When is a sound already ‘noise’?

The Brühl Local Court dealt with this question in an eviction case brought against a member of the Cologne Tenants' Association.

The tenant had concluded a rental agreement for a flat in Brühl in 1999. This flat is located in a building that was constructed in 1910. For more than 20 years, there were no complaints about any noise nuisance emanating from his flat. This changed in 2022, when the tenant living below him complained to the landlord, claiming that the tenant had repeatedly and consistently stomped loudly in his flat, banged, hammered and knocked on doors and opened and closed commode doors and drawers loudly – all of this regularly after 10 p.m. at night. The tenant denied the allegations. Instead, he pointed out that the building was extremely hard of hearing; in any case, there was no footfall sound insulation in his flat. He could even hear the content of conversations from the flat below him. He works as a teacher and regularly goes to bed at around 10.00 pm. Although he sometimes falls asleep on the couch in front of the TV and then has to prepare things for the next school day after waking up, this is not the rule. In addition, he had only been walking around the flat in slippers for a long time. Nevertheless, he was first given a warning and then dismissed for further night-time noise nuisance. When he refused to move out, the landlady filed an action for eviction with the Brühl district court. However, the court dismissed the action as unfounded, as there was no valid reason for termination. It reasoned as follows: If a tenant persistently causes disturbing noise – even outside the statutory rest periods – this can constitute good cause for termination. However, disturbances that occur in the course of typical residential use are acceptable. Noise nuisance from other residents can therefore constitute grounds for termination - however, the burden of presentation and proof for the existence of such grounds for termination lies with the plaintiff landlord. Based on the entire content of the oral hearing and the result of the taking of evidence, the court was not convinced that the defendant tenant had caused noise nuisance that went beyond the extent that typically occurs in the context of residential use and is reasonable. In fact, the court expressed doubts as to whether the noises she had documented in a noise diary could actually be heard in the neighbour's flat. Although she reported that the tenant spent half the night walking around his flat on his heels and making banging noises, the court doubted all of this. On the one hand, because the witness's testimony showed a clearly exaggerated tendency to stress. It was characterised by accusations, including in relation to circumstances about which she had not even been questioned. Among other things, she described how the defendant had already been ‘upset’ about furniture in the stairwell when she moved in and had later told other neighbours that the family was too young and that he wanted her to move out. She only mentioned that she also heard banging and the closing of doors and drawers when explicitly asked - instead of reporting this independently. When asked how she knew that the tenant was walking through the flat on his heels, she was unable to give a plausible answer. The defendant, on the other hand, explained that he behaved quite normally in the flat – in particular, he did not trample, did not exercise and did not slam doors. He even incriminated himself by admitting that he occasionally prepared materials at night for the next school day and also used the photocopier. He clearly endeavoured to give a realistic and truthful account of the situation. He had lived in this flat for over 20 years - there had never been any complaints before the witness and her family moved in. It was not clear to the court that and why the tenant should have changed his behaviour from the time this family moved in. Especially as he was already working as a teacher at the time and had to prepare for the next lesson – as he does today. In the opinion of the court, the noises admitted by the tenant himself were typical and reasonable side effects of normal residential use.