Opinion
KNLCV175015523S
08-09-2017
Sanford Greenhouse v. Marcella McWeeney
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert F. Vacchelli Judge.
This is a summary process action based on nonpayment of rent and violation of the no-pet clause in the lease. The plaintiff landlord, Sanford Greenhouse, seeks a judgment of immediate possession against the defendant tenant, Marcella McWeeney, a mother with one child. McWeeney admits that she did not pay the rent, but raises several special defenses. For the following reasons, the court finds in favor of Greenhouse and renders judgment in his favor for immediate possession of the premises known as 51 D Virginia Avenue, Groton, CT.
I
In a summary process action based on nonpayment of rent, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed-upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The tenant failed to pay the rent due under the lease by a certain date; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. See General Statues § 47a-23; Parker v. Fleet, Superior Court, judicial district of New London, Docket No. 2116710 (June 9, 2008, Young, J.). Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. See Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 257, 618 A.2d 527 (1992).
A violation of a no-pet clause in a lease can be grounds for eviction. Evergreen Manor Associates v. Michel, 4 Conn.App. 585, 495 A.2d 1119 (1985). However, a precondition for termination based on a violation of such a lease provision is issuance of a pretermination notice to the tenant with an opportunity to cure within 15 days. General Statutes § 47-15; Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987); Kapa Associates v. Flores, 35 Conn.Supp. 274, 408 A.2d 22 (1979).
Where a tenant raises a special defense, the burden on the tenant to prove the special defense is the same: fair preponderance of the evidence. See DuBose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971); Kramer v. Petisi, 91 Conn.App. 26, 33 n.4, 879 A.2d 526 (2005), aff'd, 285 Conn. 674, 940 A.2d 800 (2008).
The standard of proof in summary process actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Citation omitted; internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
II
This matter was tried to the court on August 4, 2017. Both sides were self-represented. The court heard the testimony of both parties, and it received in evidence a copy of the lease and several photographs. The court finds the following facts: McWeeney entered into a written lease with Greenhouse on September 7, 2014, providing for rent at $750 per month due on the first day of each month. A statutory nine-day grace period applied, after which a notice to quit could issue. General Statutes § 47a-15a. The lease was for one year, and, after that, it became a month-to-month tenancy. Pets were prohibited absent written permission from the lessor. McWeeney is a mother with a five-year-old child. McWeeney soon began failing to pay the rent. She often requested delay in paying on expectation of receiving money in the future. In April 2015, the plaintiff threatened eviction unless the defendant received some assistance in paying the rent. Later in 2015, the defendant's grandmother volunteered to pay her rent. The rent was usually paid late, but eventually paid, until recently.
The premises is a unit in a condominium. In September 2015 the condominium association fees and assessments increased and the parties agreed to an increase in the rent to $800.00 per month beginning in November 2015. Again, the rent was usually paid by the grandmother, usually late, but eventually paid. In November 2016, McWeeney had a falling-out with her grandmother. The grandmother reduced her contribution to $500.00 per month and McWeeney paid the remainder, usually late. In May 2017, the grandmother reduced her contribution to $400.00 per month, but McWeeney paid only $200.00, leaving an unpaid balance of $200.00 for the May rent. Greenhouse then discovered that McWeeney was keeping a cat in the apartment in violation of the no-pets clause of the lease. Next, the grandmother stopped helping pay the rent, altogether. No rent was paid in June 2017. Greenhouse issued a notice to quit on June 21, 2017 calling for McWeeney's occupancy to end by June 26, 2017 due to non-payment of rent and for keeping a pet in the unit without permission.
McWeeney does not dispute that she failed to pay the full rent in May, and that she has paid no rent since then, and that she remains in the apartment. Based on the facts, the court finds that the plaintiff has proven his prima facie case for summary process for nonpayment of rent. Due to lack of proof of issuance of a pretermination notice required for enforcement of the no-pets clause in the lease, he has not proven his prima facie case for termination on that ground.
In her answer to the complaint, McWeeney pleaded several specific special defenses, but she abandoned or failed to prove them at trial. Nevertheless, her answer also referenced that she had not been reimbursed for supplies for repairs. That was the focus of her defense in this case. At trial, she explained that she did not pay the rent because she was expecting money in the future. She explained that the apartment sustained water damage in February 2017 when the roof leaked, and that she spent $1, 042.32 on materials to fix the ceiling and wall damage and for carpet cleaning. The court reviewed photographs of the apartment, and they showed obvious, but merely cosmetic, water damage to the interior of the apartment. McWeeney testified that the parties reported the damage and her expenses to the condominium association's insurance adjuster. McWeeney explained that she did not pay the rent because she was waiting to be reimbursed from the insurance proceeds. She also said that the State Department of Children and Families offered to pay her back rent, but that the plaintiff only wants her to leave. However, there was no proof of any such tender or stable funding commitments in the future. She testified that it would be a hardship for her to be forced to leave the apartment now because it has been her home for nearly three years and it is near a desirable school for her child. Greenhouse admitted that, a few days before the trial, he received a check from the condominium association in the amount of approximately $4, 800.00 representing the parties' share of the insurance proceeds for the damage and repairs at the apartment.
The court interprets Mcweeny's pleadings and explanation for not paying her rent and her description of the circumstances as raising the defense of equitable nonforfeiture. The defense was recently summarized as follows:
" Equitable principles barring forfeitures may apply to summary process actions . . . if: (1) the tenant's breach was not [wilful] or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord's injury is reparable." (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 777-78, 627 A.2d 386 (1993). " A landlord's injury is reparable if it can be remedied by money instead of forfeiture of the tenancy." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 97 n.8, 900 A.2d 1242 (2006). Although originally articulated in the context of the nonpayment of rent, the doctrine of equitable nonforfeiture may be applicable in evictions arising from violations of other lease terms. See PIC Associates, LLC v. Greenwich Place GL Acquisition, LLC, 128 Conn.App. 151, 173-74, 17 A.3d 93 (2011); Fairchild Heights, Inc. v. Dickal, 118 Conn.App. 163, 178-79, 983 A.2d 35 (2009), aff'd, 305 Conn. 488, 45 A.3d 627 (2012).Presidential Village, LLC v. Phillips, 325 Conn. 394, 405, 158 A.3d 772 (2017).
Under this test, the court finds that the equities do not balance in favor of the defendant. Her failure to pay rent has been wilful. Her suspension of payments was unilateral and unjustified. History shows that she is financially unreliable, which is detrimental to her landlord. While she may have enjoyed living in the apartment, and found it to be in a desirable location, she has no legitimate expectation of longevity. The lease is merely a month-to-month lease. It is not continuous. City of Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 584-85, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988). Moreover, the court is not persuaded that the injuries to the landlord would be repaired by this tenant, given the history. Accordingly, the court finds that the defendant has failed to prove her defense.
III
The court finds, by a fair preponderance of the evidence, that the plaintiff has proved all the elements of the summary process action on the grounds of nonpayment of rent. The court finds that the defendant has failed to prove, by a fair preponderance of the evidence, her special defense. Therefore, the court enters judgment for plaintiff for immediate possession of the premises known as 51 D Virginia Avenue, Groton, CT.
As provided in General Statutes § 47a-35, execution shall be stayed for five days from the date this judgment has been rendered, provided any Sunday or legal holiday intervening shall be excluded in computing such five days.