The enthusiastic musician: When is it ok to make some noise?
Many of us of a certain age can remember the Frank Zappa song “Joe’s Garage”. It is a tale of teenagers doing what teenagers do; play guitars and drums in their garage in the hope of being the next Bruce Springsteen or Jon Bon Jovi. It is a scene played out across this country in every town worth jamming in; a scene as American as the first amendment itself.
But what happens when the musician next door isn’t Bruce or Frank or Jon but just a regular kid who plays in the school band and practices after homework or before dinner? What if you are the neighbor who doesn’t want to listen to those melodies? Is the right to perfect silence greater than the right to pursue a hobby?
The balancing of those rights has been the subject of several New Jersey court opinions over the past decades. The Chancery Division in Rose v. Chaikin, 187 N.J. Super 210, set forth the test for determining a private nuisance: “It is not simply whether a person is annoyed or disturbed but whether the annoyance or disturbance arises from an unreasonable use of the neighbor’s land.” In the Rose matter plaintiff sought Judgment to stop the use of a privately owned windmill on a neighboring property. Plaintiff alleged that the operation of the windmill constituted a private nuisance. The Rose Court in annunciating the holding set forth above, cited the New Jersey Supreme Court in Sans v. Ramsey Gold and Country club, 29 N.J. 438 (1959), “The Court made clear that a case by case inquiry, balance competing interest in property is required. ‘The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. The elements are myriad…The utility of the defendant’s conduct must be weighed against the quantum of harm to the plaintiff. The question is not simply whether a person is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of the neighbor’s land.” Sans 448-449. The Rose Court, continuing to cite Sans stated unreasonableness is judged ‘not according to exceptionally refined, uncommon, or luxurious habits of living, but according to the simple tastes in unaffected notions generally prevailing among plain people.’ Rose at 216. (emphasis added).
The real question then is whether the use of the property, in this case a garage is reasonable. The test is not whether the neighbor happens to likes to listen to the strains of Jungleland while eating his dinner. Who among us could argue that playing an instrument is not a good thing? Is a violin player’s practice time any different from a drummer’s? The Courts say no. The benefits of the study of music outweigh the inconvenience to the listeners.
A recent case which I handled in Morris County, New Jersey garnered some attention when a resident sued the family next to her because their 15 year old son played drums in the attic of the family garage as part of his high school band practice. The annoyed neighbor asked the court to enter judgment against the family permanently restraining the use of their garage from the undertaking of any drum or cymbal play, practicing or other live musical instrument playing by their son or any other person at any time during the day, evening, or night. In other words she never wanted anyone to play any instrument at that house forever.
The trial court dismissed the case. The neighbor appealed. The New Jersey Appellate Division reversed the trial court and remanded the case back to the Chancery Division for trial. Traetto v. Palazzo, 436 N.J. Super. 6 (App. Div. 2014). The case was tried before the Honorable Stephan C. Hansbury in September, 2014.
In his recent opinion Judge Hansbury concluded that the playing of drums in this case was not a nuisance and would not be prohibited; a victory for the drummer
The garage musician and all of his or her dreams will continue to be a staple of American life.