ypg
2021-08-01 12:50:23
- #1
(see my high-quality sketch)
The noise barrier is definitely in the wrong place o_O:cool:
Until 10 p.m. I am allowed to do whatever I want, including cutting wood in the garden or making other noise. I am also allowed to play the tuba outside, etc.
No.
If my music bothers the neighbors, they can always go into their house.
It’s not that simple.
Since each federal state (neighbor law), land use and building area is differentiated into residential and mixed-use areas, little can be said in general. But here is a good neutral text on how it is legally examined or viewed:
The impairment of one’s own living space by foreign sounds and noise is by far the most common cause of disputes in neighborly relations. Even playing children nowadays are enough cause for some people to take legal action against their neighbors. Likewise, in the past, merely operating blinds and the associated noises or even croaking frogs have already engaged the courts.
While the above examples may still bring a smile, it is clear that noise caused, for example, by airplanes taking off or landing every minute or noise from motor vehicles on a six-lane arterial road during rush hour will have a harmful effect on the health of affected residents in the long run.
On the other hand, in Germany one usually does not live on an island and has to tolerate a certain degree of loss in quality of life due to the noise of others in a technologically advanced and densely populated society.
In this sense, the law also states as follows:
The owner of a property cannot prohibit noise transmission insofar as the impact does not or only insignificantly impairs the use of his property.
As a standard for the question of significance, the case law refers to the perception of a reasonable average person. In case of conflict, the court examines whether the specifically complained-of noise nuisance goes beyond what a reasonable average person would tolerate in his concrete environment.
The court receives help in assessing the significance or insignificance of noise nuisance from the following legal provision:
An insignificant impairment generally exists if the limit or guideline values established in laws or regulations are not exceeded by the effects determined and evaluated according to these provisions.
An exceedance of limit or guideline values generally indicates a significant impairment and generally justifies claims for injunctive relief.
Limit and guideline values for noise are derived from numerous regulations that serve to assess individual impairments.
Especially noteworthy here are the Federal Immission Control Act along with its implementing ordinances, in particular the TA Noise (Technical Instructions on Noise Protection), noise protection provisions in the restaurant law or in the state immission control laws.
For example, in areas mainly occupied by commercial facilities, noise emissions of 65 dB (A) during the day are allowed according to TA Noise; in pure residential areas, however, only 50 dB (A) (35 dB (A) at night) are permitted.
Those who want to check whether the guideline or limit values are met in their case can borrow sound measuring devices from the respective state environmental protection offices in some federal states. Alternatively, purchasing such a device is recommended.
Regulations for the admissibility of noisy gardening work are provided by the Ordinance on the Introduction of the Equipment and Machine Noise Protection Ordinance. According to this, for example, lawn mowers may only be operated between 7:00 a.m. and 8:00 p.m. in residential areas. However, deviations may be made from this in state ordinances or municipal statutes that contain provisions to protect the midday rest period (1–3 p.m.).
Further indications for the question of the significance of noise impairment may be noise limit values in development plans, VDI guidelines (e.g., VDI Guideline 2058 "Assessment of Work Noise in the Neighborhood"), or DIN standards.
However, it should be considered that not every exceedance of limit or guideline values automatically results in a significant impairment and thus to a claim for cessation. The court always conducts a evaluative consideration taking into account the perception of a reasonable average person (whoever that may be) in case of dispute. This can in individual cases lead to the impairment being rated as insignificant by the court despite exceeding the limit values.
By an amendment to the Federal Immission Control Act, the German Bundestag made lawsuits against children’s noise almost impossible in May 2011. Courts have already been rather reluctant in lawsuits aimed at prohibiting children's noise, and in the future such lawsuits will generally lack a legal basis. The amended law provides, in strict legal language, that "noise emissions caused by daycare facilities, playgrounds, or similar institutions generally do not constitute a harmful environmental impact." This amendment, unanimously adopted by the German Bundestag, is also intended as a legislative signal for a child-friendly society in Germany, taking into account demographic developments.
In case of significant noise impairment, every owner or even just possessor (tenant) of a property or real estate is basically entitled to demand cessation from the noise causer. It is not necessarily required to be a direct neighbor of the noise-emitting property. Rather, spatial proximity is sufficient.
The respondent in noise complaints is the so-called disturber who is responsible for causing the noise. This can, but does not have to be, the owner of the respective property.
Finally, the law also provides for the exclusion of a claim for injunctive relief despite a significant impairment. If the significant impairment of one property is caused by the customary use of another property and the impairment cannot be prevented by economically reasonable measures, the neighbor must tolerate the impairment. In such a case, the property owner negatively affected by the noise may nonetheless have a claim for compensation.
Source: Nachbarrecht-ratgeber