Room volume

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In neighboring law , room volume is when noise outside a closed apartment can no longer or barely be perceived by neighbors .

General

The starting point is the sound level of a certain noise source in a living space ( neighborhood noise , leisure noise ), triggered by housework and family work , house music , pets , home work or DIY . If a certain sound level is exceeded in the "transmitting room" of the noise source, it is no longer completely absorbed by walls , closed windows or doors and penetrates into neighboring apartments ("receiving room"). As a rule, neighboring rooms above, below or next to an interfering sound source are affected. These immissions from the interferer hit neighbors as disturbance of the peace , for whom the sensation of an average person with understanding counts. In the judgment quoted above, the Federal Court of Justice (BGH) ruled in November 1992 that even with an average person with understanding, massive disturbances in their night's rest (here 64 dB (A) compared to a guide value of 35 dB (A) during the night) through frog noise from a frog pond are unreasonable are. It is sufficient for the disturbance property if the impairment is at least indirectly due to the will of the owner and the noise nuisance is significant ( Section 906 (1) BGB ). Room volume, on the other hand, is when an average person barely perceives noises.

On the one hand, room volume is a technical issue in noise protection , on the other hand, it occupies a large area in the legal system .

Technical regulations

The technical regulations that deal with noise protection include in particular DIN 4109, the “Technical Instructions for Protection against Noise (TA Lärm)” and the “VDI Guideline 2058”. They serve to protect house and property from damage by noise and are recognized in the case law as the result of expert experience in assessing noise immissions within the framework of § 906 BGB. What they have in common is that they specify sound levels in the auxiliary unit of measurement, decibel . One speaks of a “clearly perceptible” background noise if the background noise is in individual frequency bands , e.g. B. third octave bands, or the overall level is equally strong in comparison to the background noise in a room. The metrological criterion for a "clearly perceptible" background noise would be an increase in the sound pressure level measured in the receiving room by the background noise of 3 dB (A) in one or more frequency bands.

DIN 4109

DIN 4109 deals with sound insulation in building construction, using sound insulation and sound insulation as parameters . The regulation specifies requirements for the sound insulation of components in rooms in need of protection and for the permissible sound levels in rooms in need of protection in residential and non-residential buildings in order to achieve the noise protection goals described. The building acoustics requirements in DIN 4109 are based on the fact that a sound pressure level of 80 dB (A) is generally not exceeded in living spaces ( Lit .: Schalltechnisches Handbuch) , whereby the impact sound insulation must also be observed in terms of building regulations. Permissible sound pressure levels in the receiving room are given as 30 to 40 dB (A).

TA noise

The TA Lärm is based on Section 48 (1) BImSchG . The TA Lärm is an administrative regulation of the federal government, which has to be observed with building permits by authorities . In the case of noisy trials, it gives the civil courts general guidance . The measurement of the volume in dB (A) both as a guide for the degree and nature of the sensation, as well as for the ratio of the sensation of the immission to be defended against to that of the other noises (basic level) can only provide a certain guide and one within the limits shown Represent reference value.

VDI guideline 2058

The "VDI guideline 2058" ("Assessment and defense against industrial noise" ) deals with the assessment of industrial noise in the neighborhood. It is based on the fact that the annoyance of commercial noise from a particular installation depends, among other things, on the type and extent of the noise in the environment. Since it requires work noise, it can usually only be used outside of purely residential areas .

species

The jurisprudence differentiates between avoidable ( radio reception , house music , housework ) and unavoidable sources of noise ( household appliances , showers , bathing ). This distinction is particularly important in the case of daytime noise and the night's sleep (10:00 p.m. to 6:00 a.m. or 7:00 a.m.), with the latter only unavoidable noise up to the limit value of 25 dB (A) may be generated, 35 dB during the day (A).

Legal issues

The room volume is subject to mutual consideration and as such is not an independent basis for claims , but rather the injunctive relief from § 862 BGB ( owner , tenant ), § 1004 paragraph 1 BGB, § 906 paragraph 1 BGB ( owner ). The noise-related disturbance of property triggers a claim for removal and injunctive relief ( Latin actio negatoria ), which can be enforced with an action for injunctive relief if there is a risk of repetition. It does not matter whether the “sending room” or “receiving room” is a rented apartment (Section 862 BGB) or a condominium (Section 1004 BGB). It also doesn't matter whether the room volume is an issue in apartment buildings , semi-detached houses or terraced houses . Finally, it should also be noted that the room volume must be maintained both during the day and during the night. The night's rest only forms the time limit for unavoidable noise. The limit value of the room volume in purely residential areas ( § 3 BauNVO ) is a sound pressure level of 50 dB (A) during the day and 35 dB (A) during the night, measured in the "reception room".

According to Section 906 (1) of the German Civil Code (BGB), there is usually an insignificant impairment if the limit or guide values specified in laws or ordinances are not exceeded by the effects determined and assessed according to these regulations. The same applies to values ​​in general administrative regulations that have been issued in accordance with § 48 BImSchG and reflect the state of the art . If these values ​​are exceeded, this is a significant impairment that can be counteracted as a disruption .

A large number of other legal norms deal with noise pollution, such as § 3 BImSchG , the emission control laws of the federal states or the house rules . The LImSchG NRW prohibits disturbances at night (§ 9 LImSchG NRW), sound devices are not allowed to annoy uninvolved people significantly (§ 10 LImSchG NRW). The house rules may only cover serious disturbances that are no longer acceptable to the sensible average person. It must be recognizable when the permissible limit is exceeded.

Court judgments

The room volume is usually dealt with in tenancy law , which is usually the subject of lower-level courts due to the low amounts in dispute . However, the Federal Court of Justice (BGH) has also commented on this issue of neighboring law in several landmark judgments . Noises are loud in the room that can only be heard slightly in the adjacent apartments. Insignificance is when it is a matter of noises that the intelligent average person hardly perceives. So it depends on whether the neighbors can just barely hear the noises. However, if this perception threshold is exceeded and noises are clearly audible, the limit of the room volume has been exceeded. The tenant is obliged under tenancy law to avoid disturbing noise between 10 p.m. and 6 a.m. ("night's rest"), e.g. B. listening to the radio or trampling around due to excessive room volume. The legal requirement of night rest means that the volume of the room must be kept during night rest periods regulated by the state pollution control laws. During the rest of the time, devices that generate sound (e.g. stereo system, piano, drums, etc.) may only be used at such a volume that uninvolved third parties are not significantly annoyed (Section 10 (1) LImschG NRW). The district court of Dieburg made it clear in September 2016 that neighbors do not have to listen to nightly music from 8 p.m. if it exceeds the room volume. This is the case from a volume above 40 dB (A), so during the day the music should not be louder than 55 dB (A).

According to the principles of tenancy law, the use of the apartment must not impair the interests of other tenants more than unavoidably. The tenants must mutually accept insignificant impairments; a certain amount of tolerance is always required. All types of noise generation are to be refrained from if the living area of ​​another tenant is not only negligibly impaired as a result.

But it also depends on the type of noise source. The noise from children's leisure time is to be accepted, while barking dogs at night need not be tolerated. In the case of musical instruments, the law allows the musicians a maximum of 3 hours a day, depending on the instrument. Moaning during sexual intercourse should only be done at room volume.

Legal consequences

An interferer is anyone who triggers injunctive relief from third parties through impermissible immissions of smell , noise , radiation , contamination or through the emission of other disruptive factors into the environment . "Interferer is someone who, without being a perpetrator or participant , in any way willingly and adequately contributes to the violation of a protected legal asset and can therefore be claimed to cease and desist as a disruptor for an infringement of property rights". The interferer is subject to the interferer liability .

If the room volume is exceeded and is therefore "clearly noticeable" for neighbors, the person concerned can take several legal steps. These concern civil law , criminal law or administrative offense law .

  • Indirect : Affected neighbors can contact the disturber's landlord and ask him to stop the disturbance. You can tell the landlord to reduce the rent because of the noise . If the protection against noise is insufficient, the rent can be reduced due to a lack of the rental property. Noise from the normal noises in a neighboring apartment, which can be heard excessively due to the lack of sound insulation, are a reason for rent reduction and can result in the landlord's obligation to sound insulation.
  • Direct : Affected persons also have the option of taking legal action against the interferer ( § 859 , § 862 BGB). There are four options here:
  • Since maintaining or restoring a good neighborly relationship is the best way, the way to the arbitration office should be sought before an injunction . Each municipality maintains an arbitration office in which sworn arbitrators offer the opportunity to settle conflicts out of court. Arbitrators arbitrate on a voluntary basis with demonstrably great success and find a solution to the problem together with the parties. Proceedings before the arbitration office are not open to the public and thus offer the opportunity for all parties to “save face”. Arbitration proceedings are inexpensive (fees not exceeding EUR 40.00) and can be carried out without a lawyer. If the arbitration procedure has failed, legal action is open.
  • The action for injunctive relief is admissible ( § 541 , § 1004 Paragraph 1 BGB). In the event of success, it can be combined with the threat of a fine in the event that the cease and desist obligation is again violated. If the room volume is still exceeded, the court can impose a fine or, alternatively, even imprisonment .
  • A report of disturbance of the peace against the disturbing party is possible ( § 117 OWiG ). According to this, anyone who makes noise without a justified cause or to an inadmissible or in the circumstances avoidable extent that is likely to cause considerable nuisance to the general public or the neighborhood or to damage the health of another is acting improperly. This is behavioral noise, e.g. B. shouting, machine noise, vehicles, music of all kinds, etc. This provision is, however, subsidiary to other regulations (e.g. state law , local law ). The police has Offenses to explore after due consideration and all urgent arrangements to take to a darkening of the matter to prevent ( § 55 para. 1 OWiG). The prosecution and punishment of administrative offenses is the responsibility of the administrative authorities ( Section 35 (1) OWiG). If the administrative offense remains minor, the police can issue a warning fee “in the first instance” ( Section 56 (2) OWiG).
  • Permanent disturbance of the peace far beyond the above level, even at night, can endanger health and thus constitute a criminal offense of bodily harm (§ § 223 et seq. StGB ) or violate the criminal offense of § 325a Abs. StGB ("causing noise, ... ") Violated. Extremely disturbing noise can result in bodily harm.

International

In Switzerland , the noise law is cantonal regulated, particularly in the police orders . For example, Article 20 of the General Police Ordinance (APV) of the City of Zurich of April 6, 2011 stipulates that disruptive behavior outdoors, in mobile structures and in tents is prohibited during the night. "During the rest of the time, noisy behavior may not bother third parties. Activities inside buildings and those that have an effect outside must not cause significant annoyance to third parties ”. Nationwide, there are two general regulations governing noise. Art. 257f OR prescribes that the tenant must show consideration for residents and neighbors. According to Art. 684, Paragraph 1 of the Civil Code , everyone is obliged “to refrain from any excessive influence on the property of their neighbors when exercising their property”. In particular, all harmful effects that are not justified by the location and nature of the property or by local use due to air pollution, bad smell, noise, noise, vibrations, radiation or the withdrawal of tanning or daylight are prohibited (Art. 684 Para. 2 ZGB).

In Austria , Section 364 (2) ABGB regulates that the owner of a property can prohibit the neighbors from the effects of sewage, smoke, gases, heat, smell, noise, vibrations and the like caused by the property, insofar as they do so according to the local conditions exceed the usual size and significantly impair the customary use of the property. The inadmissible impact is therefore determined by two criteria: on the one hand, the disturbance must not (no longer) be customary in the location, on the other hand, the customary use of the property must be significantly impaired by the interference. The Supreme Court (OGH) only used the term "room volume" in isolated decisions, for example in connection with the fact that the restriction to "room volume" does not make it possible to make meaningful music on the piano as well as in connection with disturbing the night's sleep or in connection with it with a rent reduction objected by the tenant, has not defined the term in any way.

literature

Web links

Wiktionary: Room volume  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ BGHZ 120, 239 = BGH, judgment of November 20, 1992, Az .: V ZR 82/91
  2. ↑ VDI guideline 2058 sheet 1
  3. ↑ BGHZ 90, 255 , 266
  4. ↑ BGH NJW 1982, 440 , 441
  5. ↑ BGHZ 46, 35 , 40
  6. ↑ Home Ward Alheit / Hans hot, neighboring rights of AZ , 1993, p 195
  7. ↑ BGHZ 46, 35
  8. ↑ BGHZ 46, 35
  9. ↑ Cologne Regional Court, judgment of April 17, 1997, Az .: 1 S 304/96 = NJW-RR 1997, 1440
  10. ↑ Harald Kinne / Klaus Schach / Hans-Jürgen Bieber, Tenancy and Tenancy Procedure Law , 2005, p. 126
  11. ↑ § 9 Paragraph 1 State Immission Control Act NRW
  12. ↑ VDI guideline 2058
  13. ↑ Marcus Grosch, legal change and legal force in injunctive relief , 2002, p. 35
  14. ↑ Landgericht Berlin , judgment of October 19, 1987, Az .: 13 O 2/87 = NJW-RR 1988, 909
  15. ↑ Heimward Alheit / Hans Heiß, neighbor law from AZ , 1993, p. 209
  16. ↑ BGHZ 120, 239 , 255
  17. ^ BGH, judgment of September 10, 1998, Az .: V ZB 11/98 = BGHZ 139, 288
  18. ↑ BGH NJW 1982, 441
  19. ↑ BGH, judgment of September 10, 1998, Az .: VZB 11/98 = BGHZ 139, 288
  20. ↑ According to Section 9 (1) LImschG NRW, activities that are likely to disturb the night's rest are prohibited between 10 p.m. and 6 a.m.
  21. ^ District court Dieburg , judgment of September 14, 2016, Az .: 20 C 607/16 (23)
  22. ^ BGH, judgment of February 5, 1993, Az.V ZR 62
  23. ↑ OLG Cologne, judgment of June 7, 1993, Az .: 12 U 40/93
  24. ↑ OLG Hamm, judgment of November 7, 1985, Az .: 15 W 181/85
  25. ↑ Sex games only at room volume - noise pollution from sexual intercourse with neighbors in an apartment building - Warendorf District Court, judgment of August 19, 1997, 5 C 414/97, free-urteile.de
  26. ^ BGH, judgment of March 11, 2004, Az .: I ZR 304/01 "ROLEX" = BGHZ, 158, 236
  27. ↑ representative for many: LG Cologne, judgment of November 24, 1970, WM 1971, p. 96: Excessive children's noise in the early morning and late evening from large co-tenants
  28. ^ AG Berlin Mitte, judgment of February 11, 1999, Az .: 7 C 741/98
  29. ↑ AG Ratingen DWVV 1989 394
  30. ^ OGH, judgment of July 15, 1998, Az .: 3 Ob 61 / 97k
  31. ^ OGH, judgment of October 14, 1997, Az .: 1 Ob 262 / 97d
  32. ^ OGH, judgment of May 31, 2006, Az .: 7 Ob 306 / 05h