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Amplified electronic music from upstairs neighbors

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Amplified electronic music from upstairs neighbors

Postby tenantcatch22 » Mon Mar 16, 2009 9:51 am

Northern New Jersey. Multidwelling private house. I have the main level. There are two apartments upstairs. Above one of our bedrooms, the tenants play electric guitar with amps on, as well as CD's at a very high volume. It renders that bedroom in our apt. difficult to use. Should my roommate move out, I don't think I'd be able to rerent this room. What is my landlord's responsibility here?
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Postby JohnMI » Wed Mar 25, 2009 2:19 pm

Basically, none. Loud neighbors, in general, are not the Landlord's responsibility. If they are that loud, call the cops. If it isn't loud enough to call the cops, then it isn't loud enough that your LL can do anything either.

- John...
[I am not a lawyer. This is not legal advice. Your mileage may vary. Look both ways before crossing.]
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Postby TenantNet » Wed Mar 25, 2009 2:45 pm

Actually the LL does have a responsibility here under several theories, i.e., warranty of habitability and quiet enjoyment. The latter really refers to a prohibition of LL seeking rights while the lease is in effect, but is often extended to noise as well. If the situation does involve amplified instruments, the LL might have some responsibility.
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Postby JohnMI » Wed Mar 25, 2009 2:55 pm

Well, we'll have to agree to disagree then. At least you seem to understand "quiet enjoyment" (most people don't -- and commonly think it means that the LL has to keep the place quiet, which it really does not). However, I think stretching that to include loud neighbors is more of a stretch than would legally apply.

And, as far as habitability goes, if it is really so loud as to not be habitable, then it is clearly a LEGAL situation involving public nuisance violations or other laws. In which case, again, the cops should be called, not the LL.

So, again, I disagree that the LL has any real liability here. And this is fairly common: noisy neighbors are simply not the LLs responsibility to resolve except in very rare/odd cases -- and I don't see this as being one of them. People with obnoxiously loud neighbors should follow their legal options to do something about it. The LL MIGHT try to help, if they CHOOSE to, but the best they can do is likely just ASK them to quiet down. If it doesn't work, they have no real responsibility or liability here.

- John...
[I am not a lawyer. This is not legal advice. Your mileage may vary. Look both ways before crossing.]
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Postby TenantNet » Wed Mar 25, 2009 3:28 pm

Quiet enjoyment can easily been extended. See http://tenant.net/phpBB2/viewtopic.php?t=6986 .. and where it says:

Florida, 1987. A seller of patio furniture in a shopping center complained of loud music, screams, shouts, and yells coming from adjacent space leased to an exercise studio. Landlord acknowledged its obligation to remedy the situation, but did nothing. The noise was found to essentially deprive tenant of its beneficial enjoyment of the premises, resulting in a breach of the covenant of quiet enjoyment.


That's a commercial tenancy, but the idea is the same. The article at the bottom also speaks of noise, and that's from a notorious landlord lawyer.

It may depend on severity. Some people complain about kids or loud talking. But here the OP is speaking of amplified instruments.
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Postby JohnMI » Wed Mar 25, 2009 3:40 pm

Commercial leases are often very different when it comes to laws.

And, in that situation, the noise next door was because a COMMERCIAL tenant had a specific company business that created noise (yelling and such from the kids in there doing what was INTENDED to be done in that location). Therefore, it was not a nuisance or noise ordinance problem.

You have nuisance and noise ordinances for RESIDENTIAL locations. That is why this is completely different from what was mentioned for the commercial lease situation.

Again, in this situation, if it is that loud, then the police should be called.

The OP can feel free to try to force his LL to do something if they want to -- but I think it will be a huge waste of time for something that, if it is really that loud, is clearly going to be a local law/ordinance violation!

But, I'm done here. I've given my advice. If they want to go on blaming the LL for their noisy neighbors, that is fine -- but if they want to get something DONE about it, then they should either call the police or move.

- John...
[I am not a lawyer. This is not legal advice. Your mileage may vary. Look both ways before crossing.]
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Postby JohnMI » Wed Mar 25, 2009 3:55 pm

One last thing... Note that the post that you linked to above seems fairly clear that it would be very unlikely for the LL to be responsible for this. It notes that things are very confusing and vary greatly by state due to "quiet enjoyment" being all about case law because it is not defined by written law. It then goes on to state:

"It is now universally agreed that breach of the covenant of quiet enjoyment involves an interference with possession of the premises by a landlord, persons under the landlord's direction or paramount title holders, but not interferences by third parties."

Other tenants are NOT "persons under the landlord's direction" by the legal definition that seems to be implied there. They would be considered a "third party" in this situation -- one where breach of the covenant of quiet enjoyment would not apply.

Also, after that long post, you posted a Q&A where someone complains about heat pipes banging so loud that the tenant can't sleep. Even there, Ferrara states that quiet enjoyment is not breached because the tenant can use and occupy the apartment.

He then goes on to discuss whether or not it is "habitable." He says that it would generally need to make it so that the apartment was ''dangerous, hazardous or detrimental to their life, health or safety.'' He says that while habitability law has been applied to noise in the past, it would have to be " fairly severe to warrant a court's intervention."

He does say that the tenant can document it and MAYBE file a complaint to see if it is in violation of the city's noise laws. And it says that the LL MIGHT be fined -- but that was a case where the banging pipes were owned by the LL. THAT is why it might be his fault -- because he didn't fix the banging pipes and, again, only if they were violating a city noise ordinance!

So, in the case with noisy neighbors, it seems that that would again indicate that the only recourse is using a noise ordinance against THEM. Because they are a THIRD PARTY that is not under the landlord's control. Therefore, no violation could be found against the LL -- since he isn't making the noise.

So, again, even going by what YOU linked to, I see that clearly indicating that it would NOT be the landlord's responsibility. It is not a violation of "quiet enjoyment" nor does habitability law apply if the noise is not caused by something that the landlord owns.

- John...
[I am not a lawyer. This is not legal advice. Your mileage may vary. Look both ways before crossing.]
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Thank you all for your comments

Postby tenantcatch22 » Wed Mar 25, 2009 3:56 pm

Well, it was certainly interesting reading all of your conflicting points of view. I'm glad I had already gotten advice which was clear and directive with regard to my rights because if I had initially read your conflicting responses, I'd be left upset and feeling in that position I chose as my screen name here: catch22.

The fact is, for all of your information, the landlord is responsible for providing me with 'quiet enjoyment' of my apartment. In this setting, if you all could hear the volume, I think you'd agree that this is well beyond what's reasonable. Also, this condition preexisted my moving in and had I known about it, under no circumstances would I have signed a lease.

However, having said all that - I did document this in a certified letter to the landlord. I've gotten minimal response from him. (In the past, he did say to me that they had to stop and supposedly, told them so.) In fact, it's clear to me that he doesn't want to take this the distance he should, and take legal action against them. That would cost him money. So, right now, the onus is on me.

So, I called the police and the police told the neighbors to stop, particularly at the off hours (before 8 AM and after 10 PM). If they continue during 'regular' hours for long periods of time (which is what always happens), the police have told me to call them again.

The police agreed with me that I should document this in a certified letter to the landlord since the fact is, the landlord does have a responsibility to deal with this.

So, while their playing is quieter, generally, it's not 'cured'.

I now have written documentation of what's transpired which is incredibly important since my housemate, who may leave, resides in a bedroom directly below the music. There's no way I'd be able to rerent that room with the music playing as loud as it has been. Should that room be nonrentable, which would render me liable for the entire rent fee, which I cannot afford, then I need to show the judge that I've walked into this preexisting condition which the landlord will not rectify and which now renders that room nonrentable.

Thanks for your interesting arguments, though -it was amusing to read. Again, I say, I'm just glad I wasn't still in an agitated state when I read them because it would have further unglued me.
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Re: Thank you all for your comments

Postby JohnMI » Wed Mar 25, 2009 4:08 pm

tenantcatch22 wrote:The fact is, for all of your information, the landlord is responsible for providing me with 'quiet enjoyment' of my apartment.


True -- but that doesn't mean what you think it means. It does not mean that he has to keep the place "quiet." That is a very common misunderstanding because "quiet enjoyment" is an odd term for what it really means. See the article linked to above for more information, but "quiet enjoyment" does NOT mean that the landlord has a legal obligation to keep the neighbors quiet.

In fact, it's clear to me that he doesn't want to take this the distance he should, and take legal action against them.


The landlord does NOT have to take "legal action" against those tenants. Heck, he likely has no legal grounds to do so if he wanted to!

So, I called the police and the police told the neighbors to stop, particularly at the off hours (before 8 AM and after 10 PM). If they continue during 'regular' hours for long periods of time (which is what always happens), the police have told me to call them again.


Exactly! Very good! That is what needed to be done.

The police agreed with me that I should document this in a certified letter to the landlord since the fact is, the landlord does have a responsibility to deal with this.


Well, I still disagree. And the police commonly get landlord/tenant law wrong.

I need to show the judge that I've walked into this preexisting condition which the landlord will not rectify and which now renders that room nonrentable.


Good luck with that. It is very unlikely to happen. Most judges today will tell you that renting an apartment naturally entails having to deal with noise from surrounding apartments. Unless you get very lucky with a judge, that is all you're going to hear.

- John...
[I am not a lawyer. This is not legal advice. Your mileage may vary. Look both ways before crossing.]
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Amplified music

Postby tenantcatch22 » Wed Mar 25, 2009 4:20 pm

You know - I've been a tenant for many, many years. Never have I been in a situation like this before. It's absurb to think that anyone can be held accountable (meaning me, the tenant) or should have to suffer this extreme volume of music. You are not here. You don't know the situation. By spring, when their windows are open, the music will resonate outside. That evening when the police were here, windows were closed and the police could hear it outside. They informed the tenants that if they could hear it outside, which they could, then it was too loud. So, this will be even easier for me to document as beyond reasonable at that time.

I've spoken with the tenants association here in Bergen County. I know that I'm in the right about this situation and have been informed by them of this.

You are wrong that the landlord is not liable in this situation. HE IS. There are noise ordinances and this is easy to document. For those of you who think this is something that falls within the bounds of what's reasonable for a tenant to have to endure, I'd like to see what you would do should you rent something and find the situation that you're really in.

You will not hear from me again nor would I post other tenant questions on here in the future because of the bickering I heard in your responses. It would be counterproductive for me to do so.
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Re: Amplified music

Postby JohnMI » Wed Mar 25, 2009 4:26 pm

tenantcatch22 wrote:You know - I've been a tenant for many, many years. Never have I been in a situation like this before. It's absurb to think that anyone can be held accountable (meaning me, the tenant) or should have to suffer this extreme volume of music.


I agree completely. That is why we have noise laws. That is why the thing to do would be to contact the authorities to handle this LEGAL matter. That is all that I am saying.

You are not here. You don't know the situation. By spring, when their windows are open, the music will resonate outside.


Good -- maybe more people will call the police for this violation.

You are wrong that the landlord is not liable in this situation. HE IS. There are noise ordinances and this is easy to document.


Why is the landlord responsible for someone else (a third party) violating a noise ordinance instead of the people that actually violated it? What LAW has the landlord BROKEN exactly? If your neighbor goes drunk driving, would you also like the landlord charged?

For those of you who think this is something that falls within the bounds of what's reasonable for a tenant to have to endure,


No one here at all has said that. Please don't put words in my mouth. I never, ever said that it was something that you should have to endure. I said that it was likely a violation of a local ordinance and that, therefore, those committing that crime should be dealt with by the police.

You will not hear from me again nor would I post other tenant questions on here in the future because of the bickering I heard in your responses. It would be counterproductive for me to do so.


If you don't think that the legal system is a system of bickering -- especially when "quiet enjoyment" is involved (which has NO actually written legal definition and is strictly a CASE LAW situation) -- then you are in for a big shock if you ever have to take the next step on this. You should be seeing the discussion going on here as beneficial to your case. This is EXACTLY how it is going to be from a legal standpoint. You are trying to make a case on something that has so much conflicting case law that you can barely find two judges to agree!

I still maintain that you have done the best thing possible: report them for breaking the law. I still don't see what law or covenant you think the landlord has broken.

- John...
[I am not a lawyer. This is not legal advice. Your mileage may vary. Look both ways before crossing.]
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Postby tenantcatch22 » Wed Mar 25, 2009 4:46 pm

Dear John,

Thanks for your reasonable comments.

The landlord is responsible, by wording in the lease, to provide me with quiet enjoyment of my apartment. He advertised this place as a three bedroom apartment and the rent fee was set up accordingly. On moving in, we learned of this loud volume of music.

The part that is the landlord's responsibility is that if the tenant is violating the code of the lease, then the landlord is called upon to restate to the tenant the code in the lease and demand that the tenant abide by it. He apparently has said something verbally to the tenant, but he certainly has not taken the step to threaten to evict, which IS the power of the landlord in this situation.

Therefore, since I am in the right about this being a noise violation and if the landlord is not taking appropriate steps to rectify the situation and if the tenant does not completely abide by the dictates of what the police say, then if I'm in a situation where I can't rerent that room, should I need to, then...since the landlord would likely take me to landlord/tenant court for nonpayment of the entire rent (should it come to that), then my argument to the judge would be everything that has transpired and I could show that the landlord has not taken ALL the action that he can to rectify the situation so that the room would be rerentable and that this is an unreasonable situation to expect me to cope with on my own, leaving me in a situation where I'm stuck with a huge rent that I cannot afford, nor can I afford to move (or want to) and that I'm not getting cooperation from the very people who DO have the power to rectify this situation. In other words, I'm the sitting duck here - AT NO FAULT OF MY OWN.

Incidentally, as an aside, these tenants upstairs were found to have stolen electricity from the other upstairs tenants. They rigged an electric line from the other tenants apt. into their own. This was made evident when the electric bill of the other tenants was unusually high. It was reported to the repair person for our dwelling, who found the extra line in the basement. He did take pictures of it but I don't know if the landlord took legal action against the 'bad' tenant.

I have written a letter to the landlord informing him that I'm aware of this event and that I wanted reassurance that the appropriate legal action was taken against this tenant.

In the same way, he needs to take action against this tenant for his behavior with regard to the music. However, I know I'm just going on and on about this now. This tenant also puts his garbage out any day of the week, which is a violation of the town ordinance. In other words, that tenant is out of control.

I'm doing what I can do to protect myself and deal effectively with this. I moved here five months ago. I'm well located for my work and I couldn't afford to move again. There must be protection for me under the law - it can't be that 'out of control people' can get away with whatever they want to do.

Thanks for your comments.
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Postby JohnMI » Wed Mar 25, 2009 5:09 pm

tenantcatch22 wrote:Dear John,

Thanks for your reasonable comments.

The landlord is responsible, by wording in the lease, to provide me with quiet enjoyment of my apartment.


Yes, I know that. In fact, it doesn't even have to be in the lease -- "quiet enjoyment" is an automatic right for residential rentals. What I am saying is that "quiet enjoyment" is a legal term that does NOT mean what you think it does. It does NOT mean that you are entitled to have the place be quiet. I agree it is an oddly termed phrase, but it is a legal term that simply does not mean that the landlord will keep the place quiet. See the link that TenantNet posted above if you want to read up on what "quiet enjoyment" means. But, again, it doesn't mean what you think it does if you think it has much of anything to do with how loud your neighbors are. It is more about the landlord changing covenants during your lease than about "quiet" neighbors, sorry.

The part that is the landlord's responsibility is that if the tenant is violating the code of the lease, then the landlord is called upon to restate to the tenant the code in the lease and demand that the tenant abide by it.


If your neighbor's lease contains a clause about noise, then you are correct that the landlord should point out that clause to them and threaten with a "cure or quit" notice about the noise. But that has nothing to do with your own lease really.

He apparently has said something verbally to the tenant, but he certainly has not taken the step to threaten to evict, which IS the power of the landlord in this situation.


Agreed. If your neighbor's lease contains a clause about excessive noise, then the landlord MAY have the ability to evict. Whether or not he has a legal REQUIREMENT to do so is something else though. Again, it has nothing to do with your lease (because your right to "quiet enjoyment" is simply not about your neighbors as one might assume without an understanding of that legal term).

Incidentally, as an aside, these tenants upstairs were found to have stolen electricity from the other upstairs tenants. They rigged an electric line from the other tenants apt. into their own. This was made evident when the electric bill of the other tenants was unusually high. It was reported to the repair person for our dwelling, who found the extra line in the basement. He did take pictures of it but I don't know if the landlord took legal action against the 'bad' tenant.


Yet another situation where the person that was having the power stolen should have taken legal action. I know that people always want to fall back and have the landlord do things, but, in general, when crimes are committed against people, THOSE people have to report it and follow up. Therefore, people having their power illegally stolen should have pressed charges against the bad tenant. The landlord likely wouldn't even be ALLOWED to press charges against that bad tenant. Just like if the bad tenant broke it and stole your TV. Your Landlord wouldn't be able to call the police and report YOUR TV being stolen, you would have to do it.

So, I agree that you have sucky neighbors, I just disagree that the way to solve it is to have the landlord take care of them. He might not even have any legal right to do so!

I have written a letter to the landlord informing him that I'm aware of this event and that I wanted reassurance that the appropriate legal action was taken against this tenant.


What LEGAL action do you think that the landlord could take against that tenant exactly? Again, he can't report them for a noise violation that he didn't experience -- that is why those experiencing the violation are supposed to report it.

This tenant also puts his garbage out any day of the week, which is a violation of the town ordinance.


Why doesn't the town fine him? Again, the landlord can't fine him for a violation of the town ordinance.

Don't get me wrong -- I feel bad for you. But sometimes people expect a landlord to be able to do magic. Let's turn this around for a second. What exactly would you do if you were the landlord here? What legal recourse do you think you have? I think the ONLY thing that a landlord could probably do if they wanted would be to issue a Cure or Quit -- and that is only if the lease contains some clause the the noise violations (hopefully, it does -- any well written lease should). But, that's just an optional thing -- not even a legal requirement.

So, I am curious -- if you were the landlord here, what would you do in this situation? (Note that reporting anything to the police is unlikely to help -- because the landlord was not a witness to any violation.)

The real answer is still continuing to report the violations to the authorities. The landlord just isn't one in this situation. You can keep him informed, of course, and he can try to help -- but I think any legal obligation is a stretch here.

- John...
[I am not a lawyer. This is not legal advice. Your mileage may vary. Look both ways before crossing.]
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Postby TenantNet » Wed Mar 25, 2009 5:46 pm

I pointed to a commercial case only because it was there in the article. That does not mean the theory is limited to commercial tenancies (actually there is no statutory or common-law warranty of habitability applicable to commercial tenancies).

Nor is there any meaningful distinction in noise ordinances, which are not limited to just residential or just commercial locations. You seem to think -- incorrectly -- that the police are the sole remedy of the tenant in such instances. While police may be called and may indeed solve the problem, whether temporarily or permanently, the question is whether the landlord has an obligation to take steps to maintain a reasonably quiet environment. He does despite what you may think. Nor is it appropriate to blithly suggest that a tenant just move. That is not what this site is about. SUch advice could, if followed, put the tenant in some legal liability.

You also seem to want to find some reasoning that other tenants are supposedly not being under a landlord's direction. Well, they can be, either directly or due to a landlord's negligence. Even then without direct control by the landlord, the landlord might have liability. The law -- as well as the theory -- can and should be construed liberally and expansive.

Similarly, as I raised initially, undue noise can violate the warranty of habitability. Remember, we're not talking about someone with heavy footsteps; we're talking about amplified instruments. Your analysis to exclude some situations is painful and silly. Bottom line is things depend on the facts. Sure, in some situations the LL will not be liable. But in others he can certainly be. Relying on Ferrara, one of the city's more notorious eviction mill lawyers, does not bolster your case for landlord apologias. Of course he's going to argue that way. Those are his clients who every day try to avoid obligations. Geez.

Maybe this will add some light.
------------

§ 12:108. --RESPONSIBILITY FOR THIRD-PARTY ACTS UNDER WARRANTY OF HABITABILITY

The underlying theory of the warranty of habitability is that, by entering into a landlord-tenant relationship, the tenant is paying for a package of goods and services that comprise a habitable dwelling. If these are not provided, the tenant is not receiving what was bargained for and should not, therefore, pay the amount of rent to which the tenant originally agreed. If the actions of a third party cause a violation of the warranty of habitability, the tenant is still not getting what he/she bargained for and should still be entitled to an abatement.

This was the reasoning of the Court of Appeals in Park West Mgmt v. Mitchell, in which a condition of mounds of uncollected refuse resulting from a strike by sanitation workers was found to constitute a breach of the warranty of habitability. However, after the Court of Appeals decision in Park West, the Legislature amended Real Property Law § 235-b to exempt conditions caused by a labor dispute that is not the fault of the landlord. Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 418 N.Y.S.2d 310, 391 N.E.2d 1288 (1979).

Nevertheless, other acts of third parties can still be the basis for landlord liability:

• Because of the negligence of another tenant, water cascaded through the ceiling in four separate incidents of flooding. Although the landlord was not directly at fault, the court granted a 50% rent abatement for both breach of warranty of habitability and breach of covenant of quiet enjoyment. Sargent Realty Corp. v. Vizzini, 101 Misc. 2d 763, 421 N.Y.S.2d 963 (N.Y. City Civ. Ct. 1979).

• The court divided the cost of the rent abatement to the tenant between the landlord (40%) and the noisy neighbor whose actions caused the landlord to be subject to rent abatement (60%). Regency Joint Venture v. DeMaio, 140 Misc. 2d 691, 531 N.Y.S.2d 871 (N.Y. City Civ. Ct. 1988).

• A claim of breach of warranty of habitability based on breach of covenant of quiet enjoyment was dismissed where disturbances between two tenants had become personal; the landlord was not obliged to play the role of a mediator. The landlord may, depending on the circumstances, have a cause of action against the third party. Gaylor Co v. Strauss, NYLJ 3/8/90 25:5 (Civ. Ct. Bronx Co.).

• Landlord breached warranty of habitability by failing to prevent an upstairs tenant from repeatedly causing floods and letting water flood the basement apartment. Benitez v. Restifo, 167 Misc. 2d 967, 641 N.Y.S.2d 523 (City Ct. 1996).

Practice Tip As the foregoing cases indicate, a tenant whose right to a habitable dwelling has been breached by the acts of a third party is entitled to a rent abatement, even if the landlord has no control over that third party. Tenant living near Ground Zero may have particular claims related to the September 11, 2001 terrorist attack on the World Trade Center complex. Possible health risks, such as dust particles that impair breathing and inconveniences during the time period after that attack that restrict ability to access necessary services such as checkpoints and barriers that prevent pharmacy deliveries or school attendance are the types of concerns that are already giving rise to tenant claims.

View from the Bench To date, there is little development in the law after the attack on the World Trade Center on September 11, 2001, as most disputes have been settled by parties. One would hope that this is so, because both owners and tenants felt equally horrified, victimized, and violated by the terrorism, which led to more settlements. One court on a World Trade Center related claim, has reiterated the Court of Appeals' holding in Park West Management Co. v. Mitchell, supra, that the warranty of habitability can apply to conditions beyond the landlord's control, including acts of third parties. The court also found that the defendant sufficiently plead a breach of warranty claim for air and noise pollution resulting from the World Trade Center attack. Duane Fabs Props. Corp. v. Cronus Consulting LLC, NYLJ 9/11/02 18:5 (Sup. Ct. N.Y. Co.). See also, Ansonia Assoc. v. Moan, NYLJ 8/21/92 24:3 (Civ. Ct. N.Y. Co.) (granting abatement for fine particles of asbestos dust that settled on apartment walls).

-- Scherer, Residential Landlord-Tenant Law in New York, § 12:108 (2005).
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Postby tenantcatch22 » Wed Mar 25, 2009 5:59 pm

Dear John,

I will continue to deal with the noise problems via the police. I also did speak to the police about the garbage issue and they have issued the appropriate summons against the tenant.

It's my experience, from my prior apartment, that the landlord can and does issue a 'notice to quit' when a tenant is in violation of the lease. I think that this landlord is a wus and that that's why he doesn't take further action - it would cost him money anyway.

However, I appreciate your comments and I'll further explore this issue of quiet habitability. Though - having already spoken to a lawyer about this in the past and based on words from the tenant's association here, they all agree that it is the landlord's responsibility to deal with this issue. However, I'm not sitting around waiting - I'm contacting the police.

Thanks again.
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