“Can You Keep It Down?” Practicing in Your Apartment

Legal Corner

Volume CV, No. 10October, 2005

Harvey S. Mars, Esq.

Last year in this column, I briefly analyzed several cases that involved the rights of musicians to practice in their own apartments. At the time when I wrote that article, however, I had not yet acquired first-hand experience in litigating such cases. Recently, I have had the opportunity to do so. And my newly acquired experience reinforces my previous conclusions: the law possesses a soft spot for professional musicians who practice within their homes.

One specific case that I handled involved two married musicians who frequently practiced in their apartment. Another tenant in the building filed a lawsuit in New York Civil Court against these musicians. The tenant claimed that the music was damaging to her health! She said that the music resulted in a physical injury, leaving her with migraine headaches and aggravating her epilepsy.

On the other hand, the musicians asserted that they would practice for no more than an hour and a half daily and would never practice past 9:30 p.m.

The validity of the tenant’s claim was further weakened by her inability to verify her medical condition. She never produced a doctor’s note that could validate her condition. As the tenant’s argument continued to weaken, the musicians’ defense grew stronger: they were professional musicians who were simply practicing in order to maintain their livelihoods. (It also didn’t hurt that the assigned judge was an avid trumpet player!)

Additionally, the musicians’ practice sessions were brief and they occurred at reasonable hours.

Ultimately, the case was dismissed due to the tenant’s lack of support and the court’s tendency to rule in favor of the musicians in such cases.

But the law’s support of musicians who practice in their homes is most convincingly displayed in an eviction proceeding that I handled before the New York City Housing Preservation and Development Agency.

This was the case of a well-known jazz saxophonist who also happened to be a habitual noise offender.

This musician had previously been involved in two prior hearings regarding noise disturbance, which resulted in the musician’s relocation within his development — which happened to be a musician-friendly apartment complex — and an agreement to keep noise to a minimum. Indeed, this musician faced minimal penalties for these two disturbances.

Now, in this third incident of noise disturbance, the saxophonist obtained yet another lenient ruling.

Despite numerous complaints from neighboring tenants, all of whom supported similar stories regarding the saxophonist’s tendencies for lengthy and noisy rehearsals, the court permitted the musician to continue practicing in his apartment.

The saxophonist had blatantly violated his lease, which explicitly states that no tenant can “make or permit noises or acts that will disturb the rights or comfort of neighbors…[Nor can a tenant] give or permit the giving of vocal or instrumental instructions in the apartment at any time.”

This musician not only practiced for extensive periods of time, but also practiced with a full band and conducted music lessons in his apartment!

Yet, the court still permitted the saxophonist to continue practicing in his apartment within the confines of a lenient probation.

The court essentially reaffirmed the musician’s lease, telling him that he could no longer give music lessons and practice with a full-piece band in his apartment.

He would, however, be permitted to practice by himself for “three hours per day, on one instrument at a time, between the hours of 10 a.m. and 5 p.m.”

Certainly, the courts have established a precedent for such cases. When faced with lawsuits regarding noise disturbance, the musicians are, for the most part, victorious. And so, the right of professional musicians to practice in their residence most often prevails.

Harvey Mars is counsel for Local 802. Legal questions are welcome from 802 members. E-mail them to Allegro editor Mikael Elsila at

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.