October 10, 2024, 10:51 am | Read time: 3 minutes
A fire pit in the garden or patio creates a romantic atmosphere—but it is not always welcomed, for example, by the neighbors when the smoke drifts into their home. At least that’s what one myHOMEBOOK reader reported. The editorial team took up the case.
A small fire in the garden is a great thing in itself—but what if it also affects the neighbors? Reader Dieter P. from Friedberg in Bavaria reported this case. It concerns the lighting of a fire pit in a rented garden, the smoke then drifting into the reader’s apartment. Are fire pits allowed in gardens? What is permitted and what is prohibited? myHOMEBOOK asked a specialist lawyer for residential and real estate law.
This is what the specific case was about
In a letter to the editor, Dieter P. describes the conflict he is currently having with his neighbor: “During the nice weather in recent weeks, they lit their fire in a fire bowl or stove with a pipe in their rental garden every evening at dusk until around 11 pm.” According to Dieter P., the fireplace is around five meters away from his balcony. He could then no longer use it and even had to “flee from the balcony.” It was also no longer possible to air the apartment “because the smell of smoke immediately flooded into the apartment.”
Dieter P. is at a loss and asks what he can do in this situation. “You can’t call the public order office at night or the fire department; it’s not a matter for them to intervene in,” explains Dieter P. in his letter to the editor. He had already informed both the landlord and the property management, but the only reply he received was that the neighbors had to comply with the legal regulations. But what exactly are these regulations?
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myHOMEBOOK asked Thomas Pliester, a specialist lawyer for residential and real estate law, about the case. “As far as fire pits or stoves with a pipe are concerned, there are public regulations on immission control in some federal states.” However, these differ depending on the federal state. “For example, according to Section 15 of the North Rhine-Westphalia Immission Control Act, open fires are generally prohibited,” explains the lawyer from Mönchengladbach. However, there is no such regulation in the Bavarian State Immission Control Act.
“The Bavarian state immission control law does, however, give the individual municipalities the right to issue ordinances on the subject,” explains Pliester. He advises readers to find out which specific local statutes apply.
Otherwise, there is another option. The reader still has “the normal defense claim according to §§ 1004, 906 BGB.” This concerns the introduction of gases, vapors, odors, smoke, or soot onto one’s own property – especially if these exceed the tolerable level. Then, he could even demand appropriate financial compensation from his neighbor.
“I think you can activate the case law on barbecues because fire bowls or barbecues that are fired with logs are, of course, far worse and more annoying than the normal charcoal barbecue,” explains the lawyer. Civil case law is “very, very critical” in such matters, explains Pliester. “Your reader is, therefore, likely to be successful in asserting his claims.”