What can apartment owners do to protect themselves from smoke coming from neighbouring balcony barbecues?

If you own a holiday apartment in the Czech Republic or if you are intending to purchase one, you should pay attention to a fascinating debate that has been going on in Prague over the past few years.

Summer is coming and it is a time for relaxation and chilling. But not everybody enjoys the summer- particularly not those of us who own an apartment in a prefabricated buildings or multi-unit residential buildings with many neighbours. More and more frequently we witness a phenomenon where tenants or apartment owners file complaints against neighbours who use balconies to hold barbecues or to smoke, activities which lead to unpleasant smoke in their own balconies and apartments.

On the other hand many anonymous complaints against balcony owners are also being filed in spite of the balcony owners using their balconies in a strictly normative and legal manner. What is the best way of dealing with these inter-neighbour disputes and what does Czech civil law have to say about the issue?

The Czech Civil Law Code states that home owner must refrain from any action or activity that can be considered vandalism, including emitting waste, water, smoke, dust, gas, unpleasant odours, light, shadow, noise, vibration and other similar effects (law calls this “material ‘emissions’) in the event that the emitted “material” trespasses onto the territory of other homeowners (neighbours) to an extent that is disproportionate to the circumstances and which substantially restricts normal use of the neighbours territory. This basic legal principle applies to use of privately owned apartments, apartments that are cooperatively owned and leased apartments.

How should this norm be interpreted? Does it mean I cannot smoke cigarette on my balcony or grill a few sausages?

For example in regard to summer “balcony barbecue parties” it is important not to cross the threshold of “use proportionate to the local circumstances” when grilling or smoking. What does that mean in practice? In summer it is a common activity to grill occasionally, and therefore about occasional grilling on the balcony cannot, generally speaking, be considered excessive usage of property. However, if your neighbour were to grill on his balcony every day and allowed the grill smoke to reach his neighbours` windows, this behaviour could have legal ramifications. Nevertheless, district official hygiene authorities has so far ignored cases of excessive smoke or grilling in residential buildings.

The authorities generally encourage neighbours to settle their disputes out of court. However in such cases that out of court dispute settlement is not possible no option other than legal action against one’s neighbour is possible if one wishes to prevent him from abusive use of his property. The plaintiff would have to prove in court that the excessive smoking or grilling carried out by his neighbour constitutes a restriction of his normal use of his apoartment (for example of his balcony or common building areas). Proving this would be difficult to do if all his neighbour does is occasionally enjoys a cigar, cigarette or grilled sausage on balcony every now and then. However if his neighbour smokes so often that smoke from the neighbour’s cigarettes can be smelt inside of the plaintiff` s apartment, then legal action might be successful.

There is one additional option for tenants- making use of the provisions of their lease contract or provisions of the civil legal code that favour their case. You can demand your landlord to assist you in proper and adequate use of the leased apartment – which in this case means to live in apartments without daily exposure to cigarettes smoke from your neighbours. In the event that a landlord fails to improve the situation, the tenants are entitled to terminate the lease contract or else require the landlord to reduce the rent.

Should the neighbour continue to excessively smoke or grill even after a valid court decision regarding his case, he will be exposed to penalties amounting to tens of thousands of Czech Korunas. In addition he would be obliged to reimburse the costs of the legal proceedings.

You can expand your legal actions against neighbour in common building areas (to prevent your neighbour from smoking excessively in the common areas of your residential house). A ban on smoking can ,in addition, be explicitly written into the common house statuette, that is legally binding according to the bylaws of SJM (the cooperative building is considered a common holding of all apartment owners in the building). Breaching the House Rules can, in some cases, lead into termination of the lease contract. 

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