If you happen to be looking for the ideal tenant for your flat, chances are you’ve been dreaming of a non-smoking couple in their early forties with no small children and no pets. In landlords’ eyes, tenants like these carry the lowest risk of disputes with the neighbours over excessive noise or cigarette smells. At the same time, you don’t have to worry about the property being damaged by tobacco smoke, which is hard to get out of a home and certainly won’t be solved by one good airing.
One person’s rights end where another’s begin
In the Czech Republic, no law explicitly regulates smoking in a flat. Nor has any court ruling dealt with the issue so far. If a lawsuit were filed, it is therefore unclear how the proceedings might turn out. As a general rule, smoking should not interfere with the rights of others. Under the new Civil Code (§ 1013 (1)), an owner – and thus typically a tenant too – should refrain from “anything that causes waste, water, smoke, dust, gas, odour, light, shade, noise, vibrations and other similar effects (immissions) to enter another owner’s (neighbour’s) land to an extent disproportionate to local conditions and substantially restricting the ordinary use of the land”. Affected neighbours bothered by cigarette smells could seek a court order requiring the originator – in this case the tenant – to stop disturbing them with smoke to a disproportionate degree. What remains unclear is where that threshold lies and what already crosses it. That is precisely what would likely be the subject of the dispute and of expert review.
A well-drafted lease is essential
Some legal experts believe that a property owner cannot ban smoking in their own flat. Doing so would infringe the tenant’s civil freedoms and rights protected by law. Other experts, on the contrary, hold that a smoking ban can be agreed in the lease, because it is not a disproportionate requirement. They rely on § 2239 of the Civil Code, which states that no regard is given only to “an arrangement imposing on the tenant an obligation that is manifestly disproportionate in the circumstances”. Again, it remains unspecified whether a smoking ban is seen as (dis)proportionate.
How annoying cigarette smells are for individual neighbours is, of course, a subjective matter
Where a smoking ban is expressly stated in the lease, the occupant of the flat should comply with it. Otherwise the landlord could terminate the lease precisely for breaching the agreement. If nothing of the sort is in the contract and the owner, for example during an inspection of the flat, decides the cigarette smell bothers them, they have no legal basis for demanding that no one smokes. Unlike in restaurants or sports facilities, there is no law preventing smoking in a rented flat. As a general principle, the tenant is obliged to use the property (the flat) in a way that does not cause its deterioration beyond normal wear and tear. And it is a question whether smoking inside a freshly painted flat, where the new wooden floors still smell of timber, breaches that obligation. A tenant’s other obligations usually include restoring everything to its original condition when moving out. In the case of smoking, that may mean cleaning the carpets or repainting to remove the cigarette smell.
Can I light up outside on the balcony?
And how does the situation change when we move from the interior of the flat to a balcony, loggia or terrace? Although it may surprise many people, balconies are often considered common areas, just like hallways, lifts or cellars. Under the Government Regulation on certain matters relating to residential co-ownership (No. 366/2013 Coll., § 5 (1) (f)), common areas include “balconies, loggias, terraces and atria, even where they are accessible only from the flat”. And that applies even though they are in the exclusive use of the owner or tenant of the unit and are not available to all residents. The exception is balconies defined in the owner’s declaration as part of the flat itself. The unit owners’ association can include a ban on smoking in common areas, and therefore on balconies, in the house rules. In real life, however, enforcing a smoking ban in common areas is fairly complicated. In any court dispute, the proportionality of such a restriction of residents’ rights would again be at issue. Worried that you might overlook something in your lease that could later prove crucial? Turn to the professional managers at Flat Service, who have many years of experience on the property market and will take complete care of renting out your flat. Call us on +420 277 000 330 or email sales@flatservice.cz and we will be happy to introduce you to the services of the Flat Service property management company.
