Klarinet Archive - Posting 000825.txt from 2000/02

From: "Kevin Fay (LCA)" <kevinfay@-----.com>
Subj: RE: [kl] apartment dweller woes
Date: Tue, 22 Feb 2000 15:07:41 -0500

Christina Crispin pleaded:

<<<Unfortunately, our lease states that practicing of musical instruments is
not allowed. (The lease was signed by my roommate before I was informed of
that clause!) Until now I had just gone ahead and practiced in the
apartment anyway, between reasonable hours. (I have practiced there probably
less than 20 hours total since September.) Unfortunately the woman who lives
below us complained to my roommate today and told her that she will report
it to the superintendent if she hears me again. I have heard from several
people that there is a New York City tenant law
that states that it is legal to practice in an apartment from 10am to 10pm
no matter what the lease says. Does anyone have any information on this, or
know where I might find information to back me up? I'm not sure if the law
(if it exists) applied only to residents of Manhattan, or all 5 boroughs,
since I live in Queens. I have trouble believing that my practicing is
THAT disruptive to anyone's life, but..... Does anyone have any
experience in this type or situation? Any information, opinions or advice
is greatly appreciated!!>>>

I am a lawyer, at one time admitted in NY. I haven't lived in NYC in quite
a while, however.

My gut reaction is that you are SOL because of the lease restriction. There
have been court cases holding that you can't evict a practicing musician on
general nuisance grounds -- see the cases cited under "Noise" in
http://tenant.net/nyc.html -- but your problem is that your lease
specifically prohibits practicing.

While there is a good chance that such a restriction may be unenforceable
(as being "unconscionable") under Section 235-c of the Real Property Law, as
a practical matter you'd have to get the matter adjudicated. To do that,
you'd be a defendant in an eviction proceeding . . . and as a music student,
I'm sure that you have neither the time, money or inclination to engage in
that activity.

Put another way -- the lease provision against practicing is like a baseball
bat. While it may not kill you -- in the end, you may not actually be
evicted because of it -- it's still going to hurt when your landlord beats
you with it.

My quick scan of internet resources did not find the
you're-allowed-to-practice-no-matter-what-the-lease-says provision. To be
honest, is sounds like an urban legend to me. If you want to rely on it,
you'd better run to your local library, make sure the regulation is still in
force and have a copy in your hand when the landlord drops by with the
eviction notice.

I'm afraid that I must agree w/ Mr. Charette -- better to find a church, or
some other place to practice.

kjf

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