Can you get in trouble for smoking on your balcony in Germany?

The sunny weather has arrived in Germany and is hopefully here to stay. For many - particularly those living in big cities - that means spending much more time in the small, private outside space they have available: on the balcony.

But what if your time reclining in the sun is constantly disturbed by wafts of cigarette smoke from your neighbour’s balcony? Is there anything you can do about it? And if you’re a smoker with a complaining neighbour, can you insist on your right to smoke?

Though there is no general smoking ban on balconies in Germany, as they are considered private spaces, it's an issue which often leads to disputes between neighbours. As a result, there are a few cases and court rulings which offer some guidance on the rules around balcony smoking. 

In April, one Twitter user in Berlin caused a storm by sharing a story about her partner being threatened with legal action if he did not submit his planned smoking schedule to his neighbour. 

Only in Berlin ?
If this doesn’t make you stop smoking, nothing will! pic.twitter.com/Yo5hB88SFf

— Riham Alkousaa (@RihamKousa) April 2, 2023

Though it's not clear if the case went to court, there is legal precedent to show that smokers can be restricted in the times they are allowed to smoke on their balconies. 

In 2017, a woman in Berlin was prohibited by a court order from smoking on her balcony between 8 pm and 6 am, as this was disturbing her upstairs neighbour. 

READ ALSO: Berlin woman faces €250,000 fine if she smokes on balcony past 8 pm

Another judgement from the Federal Court of Justice (Case No. V ZR 110/14) decided that generally, smokers are expected to consider the well-being of others even in outdoor areas, and they can be legally obliged to only smoke on their balcony at specific times.

According to the judgement in this case, non-smokers have the right to use their balcony without being bothered by smoke, while smokers have the right to live their lives as they choose, including smoking on their balcony.

Ultimately, it was decided that neighbours are not obliged to tolerate smoke constantly and therefore, smokers can be made to smoke at only specific times.

READ ALSO: From nudity to BBQs: What you can (and can't) do on your balcony in Germany

Overall, non-smokers seem to have been successful in court over the years. 

In 2012, for example, the Hamburg Regional Court ruled that tenants of surrounding apartments can have a right to rent reduction if someone in the building frequently smokes on the balcony (case no. 311 S 92/10).

In 2014, the Frankfurt Regional Court decided that an owner can even be completely prohibited from smoking on their own balcony if the apartment has a second balcony where the smoke would have less impact on other residents of the building (case no. 2-09 S 71/13).

Rolf Bosse, Chairman of the Hamburg Tenants' Association, recently told the Süddeutsche Zeitung that he expected courts will only become stricter in the future.

"Smoking as an expression of personal identity is becoming less socially accepted", he said.

It's worth noting that landlords or property owners can also prohibit smoking in shared areas such as hallways, laundry rooms, or basements. While a general or pre-formulated clause in the lease agreement is not enough on its own to enforce a smoking ban on balconies, landlords can establish individual agreements with tenants in writing and violating these agreements can potentially result in eviction.

Should I stop smoking on my balcony?

For now, smoking on your own balcony is not illegal, but it's telling that, even in Berlin - a city which still has many smoking bars and smoking is generally socially acceptable - residents have been restricted in their right to smoke on their balconies. 

So if you are planning to smoke a lot on your balcony this summer, it's probably a good idea to be considerate and initiate a conversation with your neighbours if you think your habit might become a disturbance. 

If you're someone who is disturbed by smoke from your neighbours' balcony, you are within your rights to ask them to be more considerate. 

READ ALSO: Why Germany needs to take the smoking ban more seriously