In its ruling of December 13, 2019, the Federal Court of Justice decided that children are allowed to make noise appropriate for children. (Ruling of the Fifth Civil Senate of December 13, 2019 – V ZR 203/18.) About the case. The defendants operate a parent-child center as tenants on the ground floor of an apartment and condominium complex, which has housed a store with a warehouse there since 1987. The parent-child center undertakes a variety of other activities in the social sphere: drawing classes, music classes, Zumba Kids, playgroups, language courses, etc. The "immissions" produced in the process can be heard on weekdays from 9:00 a.m. to 6:00 p.m. and on Saturdays from 10:30 a.m. to 12:30 p.m.
The plaintiffs live directly above.
During the court proceedings, the district court initially upheld the claim. The appeal against this decision to the higher regional court was dismissed.
The Federal Court of Justice finally dismissed the lawsuit and referred ancillary motions relating to the parking of vehicles in front of the facility back to the Higher Regional Court for a decision.
In its decision, the Federal Court of Justice made the following considerations "An apartment owner can demand that the tenant (or owner) of another unit in the same complex refrain from using the unit in a manner other than that specified in the declaration of division, in accordance with Section 1004 (1) of the German Civil Code (BGB). If the deviating use is no more disruptive than the permitted use, the affected party would not have the right to demand cessation – but this would not be the case for permitted shop/storage use compared to daycare use!
This would mean that the parent-child center would be out of the picture – if it weren't for another law that, due to its impact, declares noise caused by children to be permissible or reasonable. (See § 22 (1a) sentence 1 BISchG.)
The legislator expressly provides for privileges for facilities for children such as ball courts, daycare facilities, and playgrounds. As a rule, no impermissible nuisance is to be assumed when the facility is used as intended.
An exception to this applies if the declaration of division of the property in question expressly excludes its use as a daycare center because the facility and its emissions would prevent other users from exercising their commercial use. This may be the case, for example, with medical centers, office complexes with law firms, etc.
In the case decided, the additional use of the rented space for other purposes (language school, parents' group, etc.) does not play a significant role, as it is only incidental and to a minor extent.
The Federal Court of Justice states that "only an open understanding is in line with the legislative objective of creating a privilege of a 'fundamental nature' through Section 22 (1a) of the Federal Immission Control Act (BImSchG) and, against the background that children's noise is subject to a special requirement of tolerance, sending a clear legislative signal for a child-friendly society.
Conclusion: Before concluding a lease agreement, the planned use of the rental property must be compared with the provisions of the declaration of division and the legal requirements. Take advantage of the knowledge and experience of experts such as real estate agents and lawyers.
