Hands Off E-Drums

A Tyrolean resident sued his neighbour for an injunction on the grounds that the neighbour’s son was playing e-drums, which he considered to constitute a noise nuisance. As Section 364(2) of the Austrian Civil Code provides, the owner of a property may successfully bring an action for an injunction if the effects emanating from a neighbouring property — including noise — exceed the level customary according to local conditions and substantially impair the customary use of the property. The courts therefore examine both the specific circumstances at the place where the impact occurs and the specific use of the property. In an industrial area, “more” must be tolerated than in an allotment garden association. The father relied on case law of the Austrian Supreme Court, according to which piano music is generally permissible. The Austrian Supreme Court rejected the applicability of that case law to the present case and referred to the need for an individual assessment of the specific effects. In the view of the Supreme Court, “the playing of e-drums is not perceived as music, but rather as knocking sounds that are difficult to identify and are therefore experienced as disturbing regardless of their volume.”