Q. For the past two weeks, our new downstairs neighbors have been blasting music so loudly from 10pm-2am that furniture is literally rattling and my wife and I can no longer sleep. We are a wreck.
The landlord has sent the neighbors two warnings, to no avail. We have informed our landlord that we intend to break our lease and move. The landlord says we can go if we pay 3 months rent (there are 9 months left on our two-year lease). It seems unfair that we should be penalized for leaving an unlivable apartment. What are our options?
A. If the noise condition is so severe that it essentially prevents you from enjoying the use of your apartment, and if the landlord is not taking reasonable and prompt legal action against the violating tenant, you may have grounds to argue that you were constructively evicted from your apartment, says real estate lawyer Eric Goidel.
However, he explains, "The problem with taking that position is that you must actually move out of the apartment with the risk that your landlord pursues you for the balance of the lease term (assuming that the premises have no been relet before then). You then must litigate the issue of whether the condition warranted your moving out, with a judge deciding the case."
And bear in mind that whether you win or lose, "a landlord-tenant litigation history may be the proverbial 'Scarlet Letter' which follows you around, affecting the willingness of other landlords to rent you their apartments," says Goidel. "As unpalatable as it may seem, settling your claim with the landlord gives you closure concerning all issues. Try and negotiate a smaller termination payment; and do not forget that you probably have security on deposit which should be taken into account.
Property manager Roberta Axelrod suggests offering to let your landlord show the apartment to prospective tenants with a lease start date of 60 to 90 days in the future. "Once the landlord indicates that he has found a tenant," she says, "you make arrangements to vacate the apartment. In this way you get out of your lease and the landlord doesn't lose any rent. In fact, as rental market is strong now, landlord may even get a higher rent."
As a last resort before breaking your lease, you might also consider seeking the help of a mediator to negotiate a solution with your downstairs neighbor.
"Noise issues are very common in this city and are generally relative, and can be hard to pinpoint and define, meaning that people might have different opinions about whether the noise exists, what the noise is, where it’s coming from, and what loud or soft means," says Melissa Thomas, the community outreach coordinator for a free local mediation program, The New York Peace Institute (formerly called the Safe Horizon Mediation Program).
"One option may be to invite your neighbors and/or landlord to mediation and have a third-party, neutral mediator facilitate and help you all communicate the issues, come to a better understanding about the situation and find a creative, mutually agreed upon solution," she says.
Noise disputes are among the many vertical-dwelling related issues mediated by The New York Peace Institute. To learn more, call them at 212-577-1740 ( Manhattan) or 718-834-6671 (Brooklyn) or visit their website at www.nypeace.org.
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