MUSIC VS. NOISE
Your Legal Right to Practice at Home -- Within Reason
Allegro Magazine
Sept. 1989
by Mort Cohen

Among the most common problems encountered by residential tenants in the performing arts are those caused by neighbors who cannot tolerate the sound of instrumental or vocal practice. More than a third of the inquiries we receive at the Local 802 Tenant Clinic are noise-related. By the time union members call us, enmity between neighbors has sometimes advanced to the point of the irrational. We know of musicians who have been evicted by unscrupulous landlords because of the breakdown in relations between neighbors over noise; we are also aware of neighbors who -- feeling terrorized by neighbors -- seem to have gone mad and started harassment tactics.

Neither of these outcomes is inevitable or, for that matter, legal, This article will attempt to explore musicians' rights in an area in which the law is very unclear.

THE NOISE CODE

In an effort to control the levels of extreme and damaging noise in our environment New York City has enacted a Noise Code. The general prohibition states that "...no person shall make, continue or cause or permit ... any unnecessary noise." By unnecessary noise, the code means "any excessive or unusually loud sound which either annoys, disturbs, injures or endangers the comfort, repose, peace or safety of a person, or which causes injury to plant or animal life, or damage to property or business." Another part of the code prohibits any person from operating sound reproduction devices in such a manner as to create unnecessary noise. Besides boom boxes and the like, sound reproduction devices include musical instruments.

Administered by the city's Department of Environmental Protection (DEP), the Noise Code is aimed at those sources which are most evident in our daily lives -- such as sirens, construction noise (unless permitted by a "variance"), air compressors, motor vehicle horns, etc. For our purposes, the code specifically prohibits commercial music that can be measured in excess of 45 decibels, (the point for measuring a complaint is three feet inside a neighbor's nearest window.) As you may know, 45 decibels is not very loud at all, according to literature distributed by the DEP, the sound level within the average home is 50 decibels, and a vacuum cleaner at close range produces 70 decibels.

It could conceivably be argued that when professional musicians practice their instruments at home, that is a commercial use. But the code does not directly address the residential use of musical instruments, except to imply that if it bothers someone else it is unnecessary noise and therefore a violation.

According to a DEP spokesperson, the city is not equipped to handle neighbor-to-neighbor complaints. For one thing, there are not enough inspectors. For another, even in the case of an offending disco, due to the technical problems of measuring sound levels of music (which are not steady vibrations) the levels rarely go above the 45 decibel limit. Finally. even if a Violation is found, due process requires that it be proven at an administrative hearing, after which the accused party has the right of administrative review and access to the courts for an appeal.

Given their limited resources, DEP Inspectors prefer to prosecute chronic offenders who operate on a large scale. Their advice is for neighbor-to-neighbor problems to be worked out between the parties. Our experience informs us that this may be possible, but often it is not.

PEACEFUL, QUIET ENJOYMENT

The most effective tool a complaining tenant has is economic pressure on the landlord. Part of every residential lease is a covenant by the landlord to the tenant guaranteeing the quiet, peaceful enjoyment of his or her rented space. This covenant, which is part of the more general Warranty of Habitability, protects the tenant against unreasonable noise caused by the landlord. It may also be claimed by a tenant who is bothered by your practicing.

Therefore, a neighbor who is bugged by your practicing may attempt to get action from the landlord by claiming a breach of the warranty and withholding rent. Courts have found that landlords are not responsible for the legal uses of apartments by tenants, and reasonable noise or other such annoyances would not be a breach of the warranty. But then the question of violation of the Noise Code may arise -- with the neighbor claiming that your practicing constitutes illegal behavior. Being charged with such a violation is a possibility, but, as mentioned above, a finding must be arrived at by the DEP. which does not usually deal with neighbor-to-neighbor complaints.

The landlord may attempt to stop you from practicing on the grounds that you are causing a nuisance to other tenants. However, court decisions on this issue have been very sympathetic to the needs of musicians. For landlords to be successful on a claim of nuisance, they must show that the tenant's use of the property was unreasonable or unlawful -- that is, causing annoyance, inconvenience, discomfort or damage to another. Mere annoyance of others by musical practice, in and of itself, does not create a nuisance or make the tenancy of the occupant undesirable.

In one case involving a co-op (Justice Court Mutual Housing v. Sandow), the judge said "the mere playing of music is not per se a nuisance and a regulation prohibiting it past 8 p m. is unreasonable. [And furthermore,] with a regulation restricting practice to one and a half hours a day, it is doubtful any could acquire or maintain the expertise of our professional musicians. Even if born with the aptitude one must engage in extensive training and practice."

In another case (Twin Elms v. Banks), where a neighbor complained that repetitious playing of scales was dull and monotonous, the court stated that "Apartment house living in a metropolitan area is attended with certain well-known inconveniences and discomforts. The peace and quiet of a rural estate or the sylvan silence of a mountain lodge cannot be expected in a multiple dwelling."

If, however, a musician is conducting extensive music lessons within his or her apartment, the courts may construe this as an unreasonable use of a residential space as intended by the landlord. Such was the finding in one case (Anchev Realties v. Omberg), where a tenant complained of the annoyances caused by a music studio. The court agreed with the complaining tenant that a rent abatement was appropriate.

In a more recent case (People v. Cifarelli, 1982), the complaining neighbor lived in the building next door, had a different landlord and therefore could not pursue any of the remedies mentioned above. Instead, with the help of the local district attorney, he claimed criminal harassment. In this case, a drummer practiced evenings between 5:30 and 7:30 after arriving home from a day job. The judge ruled in favor of the musician, noting the difference between criminal harassment and private nuisance. "It is generally stated that there are certain inconveniences which people living in populous areas must tolerate," the judge said. "Musical instrument practice commonly falls within this category. Devotion to the development of one's musical abilities is viewed as being of high utility and, when conducted within reasonable parameters, it will usually outweigh the harm or annoyance suffered by those exposed to it." Quoting from another opinion, he noted, "...it is obvious that the only resolution to this dispute will come when the parties realize that they must learn to live with each other."

A REASONABLE APPROACH

This is probably the most important attitude that you can bring to a situation where a neighbor is annoyed by your practicing. One can only hope that it is returned.

Various things can be done to ameliorate the situation. Find out what hours are the most annoying to the neighbor and try to work around them if you can. If the room you are using has a wall adjoining your neighbor's, perhaps you can change your location. Various sound absorbing materials, which can be purchased at a small expense, also may help. In addition, carpeting, rubber mats or soundproof boards might be used to keep sound from penetrating through the floor to the apartment below. Of course, some well-known artists who can afford it have constructed "floating" soundproof studios within their homes -- but this luxury is not available to most of us.

Unfortunately, what sounds like beautiful music (or even the necessary sounds of practicing) to a musician may seem like horrendous noise to someone less attuned to the fine arts. Therefore, when reasonable approaches fail because of the unreasonableness of another tenant, you should take certain steps to protect your interests. For example, write a certified letter, return receipt requested to the offended neighbor, and keep a copy for yourself. Explain how you have attempted to work out a solution with that person. Emphasize that you were willing to take reasonable steps to solve the problem, but you are a professional musician or performer and will not stop practicing. Then keep a log of the days and hours you practice. This documentation will be extremely important if the situation causes your landlord to bring an action against you. Statements from other neighbors who are not annoyed by your practicing also will be helpful.

If, as sometimes happens, your neighbor attempts to retaliate against you by banging on the wall, ringing your doorbell or yelling at you in the hallway or street, then YOU are being harassed. Section 240.25 of the penal law states: "A person is guilty of harassment when, with intent to harm, annoy or alarm another person ... he or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." In such a case, once again, keep a log of the incidents; you would be within your rights to lodge a complaint with the police.

If a tenant is committing this harassment in the common areas of the building such as the lobby, elevator or hallways, you have the option of notifying the landlord -- who then would be required to take some steps to abate the harassing tenant's behavior. Hopefully, the problem will not advance to this level.

Now, if all of this leads anyone to believe they may practice nine hours continuously with a rock band in a residential apartment, that is not the intention. Needless to say, the musician's burden of practice is not one we should expect a neighbor to endure unreasonably. However, when both parties are willing to sacrifice some of their interests for the sake of living peaceably together, these problems can be avoided.

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