General
As a rule, smoking is permitted in a rented flat. Even if the tenancy agreement contains a smoking ban, such a clause is generally not legally binding. Nevertheless, smoke emissions from a neighbouring flat may constitute a defect if they reach a certain intensity and occur with a frequency that exceeds what is reasonable.
Legal Basis
The landlord is obliged to hand over and maintain the flat in a condition that corresponds to the use agreed in the contract (Art. 256 para. 1 CO). If the actual condition deviates from this, a defect exists which triggers the tenant’s rights in respect of defects. Cigarette smoke entering the flat and noticeably impairing its use may constitute such a deviation. Minor and reasonable smoke emissions do not constitute a defect; however, if the exposure exceeds a reasonable level, a defect is present. If the smoke penetrates due to structural issues such as leaky windows or floors, the tenant may demand that the landlord remedy the problem. In cases of inconsiderate behaviour by neighbours – for example, leaving the flat door open so that smoke drifts into the stairwell – the landlord is likewise obliged to intervene. The assessment is made objectively according to the agreed use of the flat, not according to the tenant’s subjective sensitivity.
Procedure
As a first step, the tenant must notify the landlord of the defect in writing. The notice of defect should describe the specific situations as precisely as possible, in particular the timing, frequency and intensity of the odour nuisance. At the same time, an appropriate deadline for remedying the defect must be set. The notification must be sent immediately and by registered post. The period for which a rent reduction may be claimed under Art. 259d CO begins with the written notice of defect.
If the landlord remains inactive despite the set deadline, the tenant may deposit future rent payments with the competent cantonal authority. The deposit serves as a means of exerting pressure and requires that the tenant has previously requested the defect to be remedied. It is important that the conciliation authority is contacted within 30 days of the due date of the first deposited rent payment; otherwise, the deposited rent will be released to the landlord.
If the defect is not too severe, the tenant may, in some circumstances, arrange for what is known as substitute performance at the landlord’s expense, or claim damages for proven losses – for example, cleaning costs or damaged items – again after having given prior notice of the defect.
Should you have any questions regarding tenancy law, our attorneys-at-law will be pleased to assist you.