Opinion
No. HDSP-133049
March 24, 2006
MEMORANDUM OF DECISION
This is a summary process action based on nonpayment of rent. The following procedural history is relevant to the disposition of the case. The Notice to Quit Possession was served on May 11, 2005. The complaint was filed on May 20, 2005. On July 18, 2005, the defendant, hereinafter ("Tenant"), filed a motion to dismiss. The matter was heard on February 14, 2006. The Plaintiff, hereinafter ("Landlord"), filed a brief in opposition on March 2, 2006. The Tenant filed a reply brief on March 17, 2006.
The Tenant argues that the case should be dismissed because the Landlord failed to serve the Tenant with a proper notice to quit. The notice to quit did not provide the ten-day notice required under the lease. The Landlord contends that the notice to quit is valid because the Tenant is under an oral lease agreement. Accordingly, the Landlord is not required to provide a pretermination notice under an oral lease.
The following facts are proved by a fair preponderance of the evidence. The Tenant's family has lived at the premises since February 1975. In January 1987, the Tenant moved into the apartment to take care of his parents. The HUD model lease, hereinafter ("Lease"), was signed by the Landlord and the Tenant's mother, Edna Pertillar, on June 26, 1996. Mrs. Pertillar passed away in March 2000. The Tenant remained living in the apartment. On July 6, 2000, the Landlord required the Tenant to sign a Lease Addendum. The Tenant continued to live in the apartment as a non-subsidized tenant. The Landlord did not attempt to evict the Tenant until the notice to quit was served on May 11, 2005.
The court must determine whether the notice to quit is proper. A number of provisions must be considered. The Notice to Quit Possession provides in relevant part:
"I hereby give you notice that you are to quit possession or occupancy of the premises described above and now occupied by you on or before 5/16/05 for the following reason(s) (specify): NON-PAYMENT OF RENT"
The length of term provision of the Lease, Paragraph 2, states in relevant part:
"The initial term of this Agreement shall be for one year and will begin on 8/1/96, and shall end on 7/31/97. After the initial term ends, the agreement will continue for successive terms of one month each automatically unless terminated as permitted by paragraph #23 of this agreement."
The termination provision of the Lease, Paragraph 23C, provides in relevant part:
"If the Landlord proposes to terminate this Agreement, the Landlord agrees to give the Tenant written notice of the proposed termination . . .
All termination notices must:
1. Specify the date this Agreement will be terminated;
2. State the grounds for termination with enough detail for tenant to prepare a defense;
3. Advise the Tenant that he/she has ten (10) days within which to discuss the proposed termination of tenancy with the Landlord. The ten (10) day period will begin on the earlier of the date the notice was hand-delivered to the unit or the day after the date the notice is mailed. If the Tenant request the meeting, the Landlord agrees to discuss the proposed termination with the Tenant; and
4. Advise the Tenant of his/her right to defend the action in court."
The Lease Addendum states in relevant part:
"The following agreement is an addendum to the lease dated 2/1/75 between CT Associates, Inc. and Lawrence Pertillar. This addendum changes the afforementioned lease for the following reasons: INITIAL CERTIFICATION."
The Tenant argues that the Lease remains in effect, and the notice to quit must comply with the pretermination process set forth in the termination provision of the Lease. In this context, it should be borne in mind that:
"A lease is a contract. In its construction, three elementary principles must be kept constantly in mind: (1) the intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible." (Citation omitted.) Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20 (1985).
Although the Landlord alleges an oral lease, the evidence amply supports the finding of a monthly tenancy under the Lease.
The Tenant became a successor in interest when his mother died. A "successor in interest" is defined as: "One who follows another in ownership or control of property. A successor in interest retains the same rights as the original owner, with no change in substance." Black's Law Dictionary (7th Ed. 1999); See Bobhic Assoc., Ltd. v. Carrabba OB-GYN Assoc., 44 Conn.App. 719, 722 (1997). "The death of the tenant is not an abandonment of the leased property even though the tenant's death may result in the leased property being unoccupied until his personal representative is appointed or his successor in interest is ascertained. The conduct of the personal representative after his appointment, or the successor in interest after he is ascertained, may justify the conclusion that the leased property has been abandoned." Rest.2d Prop-LT § 12.1, p. 5 (2005).
After his mother died, the Tenant continued to live in the apartment. He never abandoned the premises. The Landlord ascertained that the Tenant was the successor in interest. The Landlord required the Tenant to sign the Lease Addendum. An addendum to the lease is controlling over the original lease with respect to the alteration, but the addendum does not invalidate the original lease. See Terlizzi v. Linsley, 9 Conn.App. 434 (1987). When the Lease Addendum was signed on July 6, 2000, there was a meeting of the minds that the Tenant would remain in possession of the premises under the Lease as a non-subsidized tenant. There was no dispute between the parties as to the terms of the future occupancy. The Landlord acquiesced to the Tenant continuing in possession of the premises under the Lease. The Landlord's actions constituted a novation. A "novation" is defined as: "The act of substituting for an old obligation a new one that either replaces an existing obligation with a new obligation or replaces an original party with a new party." Black's Law Dictionary (7th Ed. 1999).
The Landlord accepted the Tenant as a tenant under the Lease. As a result, the landlord-tenant relationship is governed by the Lease and the Lease Addendum. The Lease contains an express provision, Paragraph 2, to trigger a monthly tenancy after the initial term ends, unless terminated by Paragraph 23. The notice to quit must comply with the pretermination process required under Paragraph 23 of the Lease. A pretermination notice is required in order to provide the tenant with an opportunity to cure the violation of the lease, and thus possibly avoid the necessity for a summary process action.
In a similar case, the trial court dismissed the eviction case because the landlord failed to provide the tenant with the pretermination notice required under the parties' lease. Wyndwood Associates v. Sarah Steele, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. SPH-8401-21933 (Aronson, J.; June 6, 1984). The Court reasoned that: "we have no right to read out of the contract a provision inserted by the landlord who is presumed to know the statute and choose to include it in the contract. The plaintiff, by contract, obligated itself to give the defendant a ten-day written notice of a proposed eviction before commencing this summary process action. Lacking compliance with this condition precedent, the plaintiff cannot maintain this summary process action." (Citations omitted.) Wyndwood Associates, supra.
In Jefferson Garden Associates v. Greene, 202 Conn. 128, 143 (1987), the Supreme Court stated that "before a landlord may pursue its statutory remedy of summary process . . ., the landlord must prove its compliance with all the applicable preconditions set by state and federal law for the termination of a lease." General Statutes Sec. 47a-23(e) provides in relevant part: "A termination notice required pursuant to federal law and regulations may be included in or combined with the notice required pursuant to this section and such inclusion or combination does not thereby render the notice required pursuant to this section equivocal, provided the rental agreement or lease shall not terminate until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of completion of the pretermination process, whichever is later." (Emphasis added.). Because of its nature, the summary process statute has been narrowly construed and strictly followed. Southland Corporation v. Vernon, 1 Conn.App. 439, 452-53 (1984).
After due consideration, the court finds that the Landlord failed to comply with the pretermination process required under the Lease. The court cannot read out of the Lease the provision that "All termination notices must . . .; 3. Advise the Tenant that he/she has ten (10) days within which to discuss the proposed termination of tenancy with the Landlord." The notice to quit is defective because it fails to provide the required pretermination notice. The Landlord failed to comply with the pretermination process in the Lease.
Accordingly, the motion to dismiss is granted.