In Munich, an owner of a condominium and part-owners' association is demanding the closure of a parent-child center in the mixed-use unit. The premises located in the basement were identified in the declaration of partition as a "store with storage" and, in the opinion of the owner, should also be used for this purpose. The plaintiff's apartment is located directly above the parent-child center on the second floor. The owner feels disturbed by the volume of people and noise generated there.
The Parent-Child Center is a registered association and tenant of the premises. The center is open from Monday to Friday from 9 am to 6 pm. In the morning, there is a "mini-kindergarten" for children between the ages of 18 and 36 months, and in the afternoon, various courses for children as well as German courses for parents. In addition, occasional flea markets or lectures, for example, are held at weekends and on special occasions.
The BGH rejects the claim granted by the Regional Court and Higher Regional Court (OLG) in Munich (AZ V ZR 203/18). It is true that the noise emitted by the parent-child center is greater than if the use of the premises as a "store with warehouse" would take place. However, the noise effects emanating from children in daycare centers, children's playgrounds and similar facilities are to be accepted in principle. This is stated in a regulation in the Federal Immission Control Act (§ 22 para. 1a sentence 1 BImSchG). Even if courses are given to parents at the facility, the term "daycare facility" is not likely to be interpreted too narrowly in this case. The BGH has referred the action back to the OLG. The court must now examine the extent to which parked strollers and bicycles are a nuisance.
Source: BGH
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