Children's noise judgment of the BGH: The "Elki" children are allowed to continue raging

Breath of relief in the parent-child center "Elki": In the last instance, the Federal Court of Justice (BGH) has ruled that the family meeting in the Munich district of Schwabing may remain. The retirees living above need to accept the facility, even though the ground floor originally had only one store.

Rescued the "Elki" a law that privileges children's noise - as a "clear signal for a child-friendly society," as the chairman BGH Judge Christina Stresemann now said in the verdict.

Because according to Clause 22 of the Federal Immission Control Act, noises by day-care centers, playgrounds and similar facilities are usually "no harmful environmental impact". In the BGH case, the legal protection also included a family meeting center in a residential building.

Peter Kneffel / DPA

Parent-child center "Elki" in Munich-Schwabing: pensioners against children's noise

He does. According to the BGH, the "Elki" is a kindergarten-like institution and therefore falls under the protection of clause 22. This also applies to the right of home ownership, the BGH emphasized.

But there are limits: If in a house a kindergarten or similar institution is excluded by divisional declaration, this is also not allowed. This applies, for example, to a system designed as a medical center. Even a unit that is designated as an apartment may not be converted into a daycare center. "It can be different with a childminder," says the Karlsruhe judge.

"A win for society"

In the Munich case, the division declaration provided for a "store with warehouse". For nine years there is instead the publicly supported association "Elki". He wants according to statute "counteract the increasing isolation of parents, which results from the situation of families in the city". About 240 families from 40 nations use the offers of the "Elki" - these include a "mini kindergarten", the "open playroom" as well as language and music courses.

From this bustle feel the apartment owners living above disturbed - especially since it is sociable in the "Elki" on the weekend. The plaintiffs were successful in the district court and higher regional court in Munich, but the BGH was now right to the family center. Now, the judges at the Higher Regional Court have to examine, for example, how far buggies parked in the entrance area interfere with bicycles. Also, the plaintiffs insist on better noise reduction.

"Elki" boss Lara Mosdal was relieved: "It's a win for the company, not our profit." The club continues to strive for a good neighborhood. With the unsuccessful plaintiffs she wanted to continue to seek the conversation, such as the question of a sound-absorbing blanket: The pensioner couple is in any case always welcome in the "Elki".

Reference number: V ZR 203/18