Vol. 11, No. 12 June 11 - 24, 1998



     
 


Neighbors' Practice Not Always Perfect

By John Dallas

A co-op shareholder contacted me recently, wondering if there was anything she could do about another shareholder's daily piano practice that's been disturbing her and her family.

Phil Ross, a Manhattan real estate attorney, says that since there's a landlord-tenant relationship, the Warranty of Habitability applies. This state law obligates all owners and managers to maintain a residential premise free of conditions that are dangerous, hazardous or detrimental to life, health or safety. The courts have found excessive noise to be one such condition. But, Ross cautions, "Whether the noise in this case is sufficient to qualify as a breach of the Warranty of Habitability is another issue."

 SOUND ADVICE
By JOHN DALLAS

First, Ross says, the shareholder "should look at the proprietary lease to determine whether there is a provision involving noise. If so, she should tell the co-op [board] that the other shareholder is in violation of the lease by adversely affecting her use of her apartment, breaching the covenant of quiet enjoyment and possibly the Warranty of Habitability. If this is in fact the case, it is incumbent upon the landlord, that is the co-op board and managing agent, to correct the condition."

What if they fail to do so?

"She has the right to withhold her maintenance," Ross says. "If, however, there's a mortgage involved, the financial institution may find she's in default of her lease. This creates another problem. The best thing to do is write the co-op board." (It should be noted that one shareholder can sue another for creating a nuisance and the cooperative and managing agent for failure to enforce the house rules.)

It should come as no surprise that in a city teeming with professional and amateur musicians that the question of whether music practice in an apartment violates the law or the lease has frequently been before the courts. As a rule, where a lease explicitly provides for the playing of a musical instrument during reasonable hours, the courts have sided with musicians who restrict their activities to such time and take steps to reduce the noise (sound-proofing, for example). These measures notwithstanding, the sounds should never rise to the level of a nuisance.

So, for example, on the one hand, neither a little girl's piano practice for about 12 hours a day nor a 15-year-old's drumming for one hour daily between 8 a.m. and 11 p.m. justified termination of the tenancy in the courts' view, since the lease contained a provision allowing the playing of musical instruments during reasonable hours. On the other hand, a court limited the hours of a professional musician's practice time, since more than 50 complaints had been lodged against him and his practicing continued after management's suggested cut-off time of 5 p.m. The court concluded that the other tenants were entitled to the "quiet enjoyment of their homes," despite the fact that 70 percent of them were also performing artists.

Can the city Department of Environmental Protection (DEP) do anything in such situations?

"It's a gray area," says Cathy DelliCarpini, the agency's spokeswoman. "It would qualify as a neighbor-to-neighbor complaint and would be best handled by the Police Department." However, a DEP air and noise inspector, speaking on the condition of anonymity, says that he personally has issued, and will continue to issue, notices of violation to tenants whose music practice has neighbors "fed up."

Lt. Richard Gribben, head of the 52nd Precinct's Special Operations Unit, says that, since the beginning of the year, roughly 95 percent of the complaints the precinct has received by way of the quality-of-life hotline are noise-related, but that none involved music-practicing tenants. He says, however, he'd have no qualms about ticketing someone for late-night music practice. The bottom line, Gribben says, is that "people should practice their instruments where they don't bother their neighbors."

Most residents would no doubt agree.

John Dallas is founder of the Bronx Campaign for Peace and Quiet. You can write to Dallas with questions in care of: Norwood News, 75 E. 208th St., Bronx, NY 10467.



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