Noise and the Residential Lease

A Legal Opinion

By

Anthony J. Fejfar, B.A., J.D., Esq., Coif

©Copyright 2010 by Anthony J. Fejfar

Occasionally, the issue arises as to whether an Residential Tenant can

be evicted or ejected for allegedly causing too much noise in the residential

apartment or house tenancy. First, it must be noted that each Tenant is

entitled to the benefit of an implied covenant of quiet enjoyment from the

Landlord. However, this implied covenant of quiet enjoyment does not

relate to noise or sound, but instead relates to the Landlord’s implied

covenant not to physically interfere with the Tenant’s leased premises. That

is, the Landlord cannot trespass, nor can the Landlord change the locks on

the door. See generally, Hannan vs. Dusch, 153 S.E. 824 (1930). Some

ignorant Landlords illegally attempt to evict a Tenant for violating the

alleged covenant of quiet enjoyment, but, in fact, the Landlord has it

backwards. Also, the Pennsylvania Landlord Tenant Act purports to say

that Tenant A can be evicted or ejected from an apartment, for example,

when Tenant A is allegedly interfering with the “quiet enjoyment” of the

neighboring Tenant. In fact, the Pennsylvania Statute is both stupid and

unconstitutional. The implied covenant of quiet enjoyment only relates to

the Landlord. If Landlord were to insist on this interpretation of “quiet

enjoyment” then, it only means that one Tenant cannot trespass on the leased

premises of the other Tenant. Such an implied covenant of “quiet

enjoyment” does not relate to noise or sound at all. Additionally, the

Pennsylvania Case of Louisiana Leasing vs. Sokolow, 266 N.Y.S.2d 447

(1966) clearly states that for a Landlord to bring an eviction or ejectment

action for the allegedly excessive noise of a Tenant which is bothering

another Tenant, three legal elements must be met. First, there must be a

reasonably drafted noise clause in the Lease; second, the noise must be

unreasonably loud, third, the amount of noise must constitute an substantial

breach of contract. And, with respect to the requirement of an unreasonable

amount of noise, it is clear that the ordinary noise of loud conversation, kids

playing and shouting, and television or stereo noise, does not constitute

excessively loud noise, and therefore there is no breach of the Lease, and

certainly no grounds for an eviction or ejectment. Id.

Additionally, any purported right of the Landlord to use self-help

eviction or ejectment, is absolutely unconstitutional following, the

Pennsylvania Contstitution Guaranteed personal right to Property and

Liberty, Pugh vs. Holmes, 405 A.2d 897 (1979), Bass vs. Boetel, 217
N.W.2d 804 (1974), Fuentes vs. Shevin, 407 U.S. 67 (1972), and, Lochner

vs. New York, 198 U.S. 45 (1905) You see, the Tenant Defendant

has a Natural Right and Constitutional Right to Liberty and Property under

both the United States and Pennsylvania Constitutions, and thus has right to

the protections of Procedural and Substantive Due Process before any

leasehold property interest can be taken from him or her. Thus, it is

immoral, unethical, a clear violation of Public Policy and Natural Law to

allow the Landlord to illegally enter the Tenant’s leasehold apartment or

house and remove the Tenants furniture and possession and/or to change the

locks and force the Tenant out. If the Landlord enters the Tenant’s

leasehold apartment or house prior to a full, adversarial, jury trial, this is

criminal act of trespass on the part of the Landlord, and also is clear

violation of Magna Charta (1215), and thus the Landlord would also be

liable criminally and civilly for damages and jail time under 42 United

States Code section 1983, and 18 United States Code section 242, with the

result that the Landlord and anyone assisting the Landlord would receive a

minimum of 10 years in Federal Prison.