Shortly after the BGH issued a similar ruling in Germany, an Austrian court decided that a tenant can be prohibited from smoking in his own flat. The tenant regularly smoked on his loggia or at the open window of his flat between midnight and 3.00 a.m., which a neighbour living above him felt interfered with the undisturbed use of his flat. The court of first instance - in a decision that is not yet legally binding - upheld the neighbour who had been adversely affected and forbade the emission.
Immissions, i.e. effects caused by waste water, smoke, gases, heat, odour, noise, vibration etc. emanating from a neighbouring property or a neighbouring dwelling, are not generally impermissible. It always depends on the extent of the immission. Only if these
exceed the level customary under local conditions and substantially impairs the customary use of the property.
the neighbour has the right to defend himself or herself. This right is not only available to the owner, but according to established case law also to the tenant, to whom the legal system grants a right to injunctive relief.
The landlord can assert a further right to injunctive relief against the smoking tenant, namely if there is a significantly detrimental use of the rented flat. In this case, the landlord may even terminate the tenancy.