Opinion
DBDCV176024424S
01-06-2020
April Klazema v. Edward Waryas et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): D’Andrea, Robert A., J.
MEMORANDUM OF DECISION
D’Andrea, Robert A., J.
The plaintiff, April Klazema ("plaintiff"), commenced this action by complaint alleging that the defendants, Edward Waryas ("Waryas"), Jennifer Berriola ("Berriola"), and Amy Kammen ("Kammen") (collectively "defendants"), breached the lease agreement ("lease") with the plaintiff as landlord, defendants Waryas and Berriola as tenants, and defendant Kammen as cosigner/guarantor, for the premises located at 69 Scott Ridge Road in Ridgefield, Connecticut ("premises"). By amended answer dated March 14, 2018, the defendants denied the allegations of the complaint, and alleged four special defenses: first, for violation of § 47a-7; second, for violation of the Connecticut Unfair Trade Practices Act ("CUTPA"); third, for return of security deposit; and fourth, for mitigation of any damages due to the plaintiff re-renting the premises. The defendants also asserted a one-count counterclaim alleging that the plaintiff breached the common-law covenant of good faith and fair dealing, in violation of General Statutes § 47a-7, a violation of the Connecticut Unfair Trade Practices Act CUTPA, and failure to return the defendants’ security deposit or interest thereon claiming damages, punitive damages, and reimbursement for money expended in dealing with premises defects. On April 11, 2018, the plaintiff filed an answer to the counterclaim, and reply to special defenses.
PLAINTIFF’S POSITION
The plaintiff alleges the following facts. She is the owner of the premises, and that the defendants entered into a lease with her, for a term of three years, beginning May 1, 2017, for a monthly rent of $3,300. All defendants signed the lease, along with the plaintiff’s husband, and made a security deposit of $6,600. After taking occupancy of the premises a few days prior to the lease date, the defendants tendered a check for the first month’s rent, which was returned for insufficient funds. Although defendant Berriola indicated that she was not sure why the check was returned, she offered a $500 payment until she was able to determine what had happened. The $500 payment was never made. A few days later, with no money paid by the defendants, they presented the plaintiff with a list of items they wanted addressed at the premises before the rent would be paid. With no rent paid by the middle of May 2017, the plaintiff commenced eviction proceedings, incurring attorneys fees of $999, entry fee of $175, and marshal’s fees of $147.34. Defendants Waryas and Berriola vacated the premises in August of 2017. The defendants never paid rent during the time they occupied the premises, and owe the months of May 2017 through December 2017, eight months at $3,300 per month for a total due of $26,400.
The defendants did not return the keys after vacating the premises, causing the plaintiff to incur an expense of $180 to change the locks. The plaintiff discovered that the defendants had painted the interior rooms of the house "rather loud colors," and did not return the interior paint schemes to their original colors upon vacating as required, causing the plaintiff to incur expenses of $2,300 for painting labor, and $736.81 for paint and other items necessary to restore the premises to the condition it was in prior to the defendants’ occupancy. Pursuant to the lease, the defendants were responsible for routine maintenance of the premises, which was not done and the plaintiff incurred expenses for yard maintenance and gutter cleaning totaling $575. The plaintiff hired a real estate agent to list the property, so as to mitigate damages, and a new tenant began occupancy in January 2018 at a monthly rate of $3,000. The plaintiff paid a $1,500 commission to the real estate agent based on the monthly rent of $3,000. The term of the new lease was eighteen months and the tenant remained for the entire term. The plaintiff is claiming the $300 difference per month between the defendants’ rent and the new tenant’s rent.
The plaintiff’s complaint alleges a breach of contract. "The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages." Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291, 87 A.3d 534 (2014). "A contract is an agreement between parties ... If the agreement is shown by the words of the parties, spoken or written, the contract is said to be an express one." (Internal quotation marks omitted.) Boland v. Catalano, 202 Conn. 333, 336-37, 521 A.2d 142 (1987). "[A] plaintiff could not recover contract damages under [an] agreement unless he has fully performed his own obligation under it, has tendered performance, or has some legal excuse for not performing." David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 406 927 A.2d 832 (2007). The plaintiff alleges, based on the facts recited above, that she has established that there was the formation of a lease, and she performed her part of the lease by permitting the defendants to take occupancy of the premises. The defendants breached the lease by failing to pay rent and fulfill their other obligations under the lease, and as a result, the plaintiff has been damaged.
The defendant’s first special defense alleges Klazema "did not enter into the lease agreement in good faith and induced the defendants to enter into the lease agreement for the purpose of evading the obligations under § 47a-7." The defendant’s second special defense alleges that the plaintiff violated the CUTPA by engaging in the conduct alleged in the first special defense. These special defenses are meritless. A tenant, to withhold payment of rent, must show that the landlord’s failure to comply with § 47a-7(a) materially affects his safety ... or has rendered the premises uninhabitable ..."Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." Patterson v. Dykins, Superior Court, judicial district of Hartford, Housing Session, docket no. HDSP-148040 (November 10, 2008, Gilligan, J.).
The defendants inspected the premises at least once prior to entering into the lease. Defendant Berriola testified that the plaintiff’s husband pointed out certain issues with the property, supposedly including septic tank issues, loose stairway railings, and defendants provided a list of issues that needed to be addressed. Defendant Berriola testified that she had safety concerns, and the septic alarm kept going off. Defendants and their children stayed at the house a total of maybe six weeks, for periods not exceeding seven days. Defendant Berriola testified that the septic system was emitting an odor and moisture and described it as "[h]oriffic. Feces, urine was coming from the septic." This supposedly started happening "[a] few weeks into the lease." She indicated that it was a "pretty strong" smell that was present each and every time she was at the premises." Defendant Berriola claimed it was never rectified. When asked how, if the smell coming from the septic system was so strong and always present, the health department inspector did not ask about it, she asserted that it was because he was only there for mold, not the septic system. Even if he did not notice it, defendant Berriola certainly could have informed the health department inspector of such a potentially dangerous situation while he was there. Inexplicably, however, she did not. The defendants complained about mold in the basement. The health department was contacted. Defendant Berriola testified that the defendants purchased a dehumidifier for the basement the same day that, or within a few days of, a representative from the health department inspecting the premises. The representative from the health department noted in an e-mail to the plaintiff that at the time of his inspection, "the dehumidifier in the basement was off and unplugged."
Defendant Berriola testified that the defendants did not commence an action to deposit their rent money into court because they did not know they were supposed to, and also claimed that the defendants did not simply vacate the property because they had a lease and she wasn’t aware they could "just leave." The defendants offered no expert testimony regarding the condition of the premises. They were never ordered to vacate the premises by the Department of Health pursuant to General Statutes § 47a-52(e). The defendants’ own mold contractor found that mold was only an issue in the basement. As defendant Berriola acknowledged, many homes in Ridgefield have moisture in the basement, and that is why the plaintiff had a dehumidifier there. She also testified that there was mold in the upstairs closets, but admitted that she could "only assume that it was mold ..." This was contradicted by her own testimony and the report of her mold contractor which indicated there was no problem on the first or second floor, just the basement.
The defendants have failed to establish that the condition of the premises were uninhabitable or that the plaintiff failed to comply with § 47a-7. Other than defendant Berriola’s self-serving testimony, the defendants offered no evidence in support of their claim of uninhabitability or of any violations of applicable building, housing or health codes. The only evidence offered that in any way supports a problem at the premises was the report from the mold contractor which made recommendations to address the presence of mold in the basement only. The fact that there was mold in the basement due to moisture is not surprising, because, as even Berriola herself noted, many homes in Ridgefield have moisture problems in the basement. Moreover, the fact that the defendants continued in possession of the premises undermines their claim of uninhabitability or violation of applicable codes. Defendant Berriola’s self-serving testimony is insufficient to establish the defendants’ claims under the first and second special defenses.
The defendants’ third special defense alleges a violation of General Statutes § 47a-21, and claim a right of action for failure to return a security deposit. All that is pleaded is an entitlement to double damages based upon the premise that the plaintiff wrongfully failed to return the security deposit with accrued interest. The security deposit and accrued interest was not wrongfully withheld because the plaintiffs suffered damages. The defendants failed to comply with the statute. In order to establish a claim for double damages for failure to return a security deposit, a former tenant must first provide the landlord written notification of such tenant’s forwarding address. Gen. Stat. § 47a-21(d)(2). The Appellate Court determined in Johnson v. Mazza, 80 Conn.App. 155, 160, 834 A.2d 725 (2003) that the availability of double damages is premised upon the landlord failing to return or otherwise account for a security deposit after being provided the tenant’s forwarding address in writing. There was no testimony offered that the plaintiff was ever provided the defendants’ forwarding address in writing.
The final special defense is that the plaintiff failed to mitigate her damages, but she did mitigate her damages by securing another tenant for the premises. The plaintiff was able to recoup $3,000 per month for eighteen months, totaling $54,000, an amount that the defendants would have otherwise been liable for to plaintiff. Therefore, this special defense must also fail.
The defendants’ counterclaim largely reiterates the same factual allegations as their special defenses, failure to deal in good faith, violation of the CUTPA, and failure to return security deposit. For the reasons discussed above relative to the defendants’ special defenses, the defendants have failed to prove their counterclaim. The defendants claim in their counterclaim relocation expenses, medical expenses, professional mold research expenses, and additional losses and damages, yet put forth no evidence of these damages. They also claim damages as a result of what they term "loss of security monies and interest." In fact, they have not lost "security monies or interest" at all. Such funds have been applied against the total damages due to the plaintiff as detailed above. The defendants failed to prove their cause of action, and have failed to prove any damages whatsoever. Addressing the punitive damages and attorneys fees sought pursuant to the CUTPA, the defendants failed to demonstrate that they suffered an ascertainable loss of money or property as required under § 42-110g(a), and thus they are not entitled to such relief. With respect to the defendants’ claim for double damages under General Statutes § 47a-21, the defendants failed to adhere to that statute, and are not entitled to double damages. The defendants have failed to prove their counterclaim in any way, and are thus entitled to no damages on it.
The plaintiff has proven her claim for breach of contract and has established her damages in the amount of $38,413.15, plus costs and attorneys fees to be determined in a later proceeding. The defendants have failed to prove their special defenses or their counterclaim. Therefore, the plaintiff respectfully requests that the court enter judgment in favor of the plaintiff on her complaint and award damages in the amount of $38,413.15, and also enter judgment in her favor on the defendants’ counterclaim.
DEFENDANTS’ POSITION
The defendants allege the following significantly different set of facts. On April 5, 2017 the plaintiff executed the lease with the defendants, representing to them that the premises was in a safe and habitable condition. Pursuant to paragraph 6 of the lease agreement, the plaintiff agreed to be responsible for repair of major systems, and pursuant to paragraph 7, defendants agreed to make minor repairs defined as a repairs costing less than $250. On or about May 1, 2017, defendants and children partially moved into the premises after having paid the security deposit of $6,600. Due to the numerous and serious defects, unsafe conditions, and hazards that defendants discovered almost immediately after partially moving into the premises, defendants did not pay the rent. Defendants promptly e-mailed the plaintiff of the unsafe conditions, including nonfunctioning smoke detectors, mold on sheetrock in the basement and missing gutters. On May 7, 2017, defendants sent a more detailed list of the defects and reiterated that the defective smoke detectors were an obvious fire and safety code violations, and the home included other defects such as loose porch steps, a broken front gutter, a stained ceiling tile in the basement from a leak, and a broken kitchen faucet. All repairs amounted to well over $1,000, thus clearly falling under the responsibility of the plaintiff.
Defendants sent multiple texts and e-mails with pictures of the various defects, and inquiring about when the smoke detectors would be installed. On May 10, 2017, defendant Waryas sent the plaintiff’s husband an e-mail inquiring about all the defects that needed to be addressed. In particular, on May 13, 2017, the plaintiff sent a contractor to the home and replaced the nonoperational smoke detectors with battery operated smoke detectors, and pushed the unused wires back into the ceiling, instead of properly closing them off. On May 15, 2017, defendants sent an e-mail notifying the plaintiff that there were still two nonfunctional smoke detectors. On May 16, 2017, defendants sent pictures of the continuing defects, including water damage and mold that continued to persist in the house. On May 16, 2017, defendants sent the plaintiff an e-mail which reiterated that two smoke detectors still needed replacing, that the water leak in the basement was worse and water was pooling, that there was mold developing from the leak by the water heater, that the kitchen faucet still needed to be replaced, that a few gutters were missing and/or needed to be reattached to the house, that the railings going in the family room were not properly secured, and that there was a broken, rotted step on the porch stairs and deck. Defendants reiterated these serious concerns over the mold and indicated that he hoped the various plumbing issues would be addressed by a licensed plumber. On May 17, 2017, the plaintiff’s husband responded and indicated that his contractor would come that day to address the defects, including the mold remediation in the basement. Later on May 17, 2017, after the plaintiff’s contractor had to come to the house and performed some of the work, defendants notified the plaintiff and her husband that the work was not completed, but was extremely concerning as the contractor had merely cut off pieces of moldy material from the basement and brought it up through the house, causing pieces of moldy material to be dropped and strewn about the floor of the house.
On May 18, 2017, defendants provided a more detailed account of the ongoing problems, along with pictures of the continued unrepaired defects in the house, reiterating among other things that the railings were still not fixed, that a rotted board on the porch was not fixed, that a porch step was improperly cut shorter than the others, posing a safety issue, that the leak in the basement was still dripping and required further investigation, that the removed mold was not properly contained and moldy material was brought through the house, and that there was still wet, damaged wood where the mold was removed. On May 19, 2017, defendants sent the plaintiff additional photographs of the water leak in the basement, and explained that the towel that the contractor had placed in the ceiling had fallen out, that water continued to drop from the ceiling and was filling up a bucket, and that additional water was collecting on the floor near the dryer and requested additional towels and mopping. On May 22, 2017, the plaintiff sent a contractor back to the house to address the issues, but the contractor only managed to fix the leak, and failed to address the other outstanding defects presented, and defendants were concerned about their well-being, and that of the defendants’ minor children. Defendants remained extremely concerned about the potential health risks the black mold posted to themselves and their young daughter who suffered from asthma.
On May 26, 2017, due to defendants’ continued health concerns associated with the improper removal of the contaminated material and mold, and because of the water loss in the second floor bathroom which traveled through the wall of the first floor bathroom and caused the ceiling to fail in the basement, hired Powers Environmental, LLC ("Powers"), a licensed mold assessment company, to provide a thorough environmental assessment of the air quality and presence of mold. Results of this detailed report revealed that, a sheet of drywall with fungal staining on it was removed without proper containment and negative air pressure which serves to prevent contamination from spreading. Additionally, this mold-contaminated material was carried through the first floor of the home without proper bagging from removal. Disturbing the old activity on this material resulted in contamination of the basement with Stachybotrys mold spores. Apparent visible old mold ("AVM") staining was observed on both sides of the basement wall separating a kid’s room from the unfinished furnace room. AVM staining was observed on the drywall above the furnace, and remediation was recommended. After using thermal imaging, extensive testing of surface samples, taking photographs, and measuring levels of airborne mold spores, the report concluded that there was "an indoor environment contaminated with the presence of actual mold growth associated with spores." Specifically, the report noted that "[t]he surface sample taken from the basement kids’ room wall was positively identified as Stachybotrys with spore estimate as "very heavy" and "the surface sample taken from the Stachybotrys with spore estimate noted as ‘very heavy.’" Of particular concern to defendants was that designation of "very heavy," which meant that the amount of mold spores detected were at the highest levels, at percentages of 51 percent to 100 percent. As the Centers for Disease Control has recommended, "Stachybotrys chartarum (Stachybotrys atra) and other molds may cause health symptoms that are nonspecific. At present there is no test that proves an association between Stachybotrys chartarum (Stachybotrys atra) and particular health symptoms. Individuals with persistent symptoms should see their physician. However, if Stachybotrys chartarum (Stachybotrys atra) or other molds are found in a building, prudent practice recommends that they be removed."
The defendants received an estimate for the mold control services of $4,200, which they promptly forwarded to the plaintiff, who refused to engage Powers, or to contact another environmental company specializing in mold remediation. On or about mid-May 2017, defendants’ daughter, who had spent a great deal of time in the kids’ room of the basement, began experiencing discomfort in her throat and a slight cough that would not go away. Fearing the cause to be the mold infestation, defendants instructed her to stay out of the basement, but her symptoms persisted. Her pediatrician concluded that the symptoms were "possibly due to mold exposure" and prescribed Zyrtec, and advised her to stay out the basement until the mold was removed. Given the numerous defects and habitability issues in the home resulting in the defendants’ substantial health and safety concern, defendants never fully moved into the home and immediately began looking into other rental properties. Since defendants’ minor children were enrolled in Ridgefield Public Schools, finding rentals within the same school system was particularly challenging.
General Statutes § 47a-7 provides: "Pursuant to (a) a landlord shall: (1) comply with the requirements of chapter 368 and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (d) The landlord and tenant of a dwelling unit other than a single-family residence may agree that the tenant is to perform specified repairs, maintenance tasks, alterations or remodeling if (1) the agreement of the parties is entered in good faith; (2) the agreement is in writing; (3) the work is not necessary to cure noncompliance with subdivisions (1) and (2) of subsection (a) of this section; and (4) the agreement does not diminish or affect the obligation of the landlord to other tenants in the premises." Further, General Statutes § 47a-12 states "(a) If there is a material noncompliance by the landlord with the rental agreement or a noncompliance with § 47a-7 which materially affects the health and safety, the tenant may deliver a written note to the landlord specifying the acts and omissions constituting the breach. If the breach is not remedied within fifteen days after receipt of the notice, the rental agreement shall terminate on such date."
Housing Authority v. Olesen, 31 Conn.App. 359, 363, 624 A.2d 920 (1993), underscored, "To ensure that the landlord’s duties are performed, General Statutes 47a-4a provides that [a] rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of § 47a-7. Generally, a tenant claiming the right to withhold rent must ‘show that the landlord’s failure to comply with § 47a-7(a) materially affects his safety ... or has rendered the premises uninhabitable.’" (Internal quotation marks omitted.) Id. at 363. Hayes v. Capitol Buick, 119 Conn. 392 (1935) held, "[w]hether the premises is uninhabitable to the extent that the tenant is relieved of the obligation to pay rent depends on the facts of each individual case ..." Here the failing basement ceiling, nonworking smoke detectors, loose railing on the stairs, unrepaired porch steps, unrepaired gutters, and black mold outbreak in the basement were clearly hazardous to the health and safety of the defendants and were caused by long-term and ongoing unrepaired plumbing problems well known to the plaintiff, and although she attempted to remedy some of the defects, most of the defects were not addressed adequately, and in the case of the black mold outbreak, were addressed improperly, causing an already hazardous situation to worsen. In Welsch v. Groat, 95 Conn.App. 658, 897 A.2d 710 (2006), the parties entered into a one-year lease of a single-family residence. After the first month of the tenant’s occupancy, the tenant and his children noticed water damage and the presence of mold and mildew in the basement. The lease specified that the rental was "as-is" the court found that the landlord failed to remedy the conditions with the urgency and intensity warranted by the scope and nature of needed repairs and concluded that the water damage, mold and mildew "rendered the premises uninhabitable and constituted a constructive eviction of the tenant and breach of lease by the landlord." Id. at 661, 665. The court reasoned, "A constructive eviction arises where a landlord while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenable, and has thereby cause a failure of consideration for the tenant’s promise to pay rent." Id. at 662.
The fact pattern in the Welsch case is directly analogous here. The defendants noticed water damage and mold and mildew in the basement after they took possession, and then informed the plaintiff. Such defects were caused by long-term water leaks and ongoing plumbing issues that had been known to the plaintiff for years. The plaintiff hired a contractor with little mold remediation experience who exacerbated the already unsafe and unhealthy conditions by erroneously pulling mold-infested material through the first floor of the house, causing numerous mold spores to be released into the air. Although the plaintiff did not actually deprive defendants of possession of any part of the premises leased, her actions directly caused the premises to be untenable, and thereby caused a failure of consideration for the tenant’s promise to pay rent.
The plaintiff was aware of numerous serious defects that the defendants later encountered, including major plumbing problems, water leaks, nonfunctioning gutters, loose railings on deck, and black mold, yet failed to properly repair them before defendants took possession of the premises. Pursuant to General Statutes § 42-110b(a) [N]o person shall engage in unfair methods of competition and unfair or deceptive acts of practices in the conduct of any trade or commerce. Under CUTPA, the leasing or renting of real property falls within the scope of the act § 42-110a(4), and a landlord may incur liability for misrepresentations that cause a tenant to enter into a lease and incur expenses in reliance on it. Connecticut courts have found that defects in the premises in violation of statutory standards are a basis of CUTPA liability. For example, in Caleb Village Heights Foundation, Inc. v. Barclay, 2001 WL 56434, the tenants succeeded in stating a claim premised on the landlord’s failure to remedy defects in the premises. The tenants alleged in a counterclaim that sewage had backed up through a toilet and had flooded the basement in their apartment, and that the problem was a recurring one and that the landlord had failed to correct the plumbing. The landlord made an effort to clean the premises, but portions remained affected. The court concluded that a claim was stated because the landlord had failed to correct the condition that was known to exist, failing to make an expenditure that public policy required. Id. at *5. While the lease agreement articulated that the premises were leased "as is" following the general rule of "caveat emptor," the caveat emptor rule does not apply to defects, whether resulting from faulty design or from disrepair, existing at the beginning of the tenancy, if the (a) were not discoverable on reasonable inspection by the tenant, and (b) were defects with a knowledge of which the landlord was chargeable. Shegda v. Hartford-Connecticut Trust Co. 131 Conn. 186, 191, 38 A.2d 668 (1944); Seaman v. Henriques, 139 Conn. 561, 95 A.2d 701 (1953); DesMarchais v. Daly, 135 Conn. 623, 626, 67 A.2d 549 (1949). Furthermore, a landlord can be found liable for failure to keep the premises reasonably safe if the landlord either knew of the defect, or should have known of it, had they exercised reasonable inspection of the premises. Klahr v. Kostopoulos, 138 Conn. 653, 88 A.2d 332 (1952).
Despite being aware of these longstanding serious defects, including the significant health risk of the known black mold, the plaintiff failed to appropriately remedy the mold problem, and misrepresented that the premises were safe and habitable. Even when presented with an opportunity to adequately correct the mold issue by a mold remediation specialist, the plaintiff hired an inexperienced contractor who further exacerbated the serious health and safety risks to defendants. The plaintiff is plainly liable for failing to remedy the known defective conditions, by failing to make expenditures that "public policy required," and for misrepresenting to defendants that the premises had no serious defects. The Plaintiff has failed to prove that there are no disputed issues of facts. Issues involving unrepaired and serious defects known to the plaintiff which rendered the premises unsafe and uninhabitable. The clear violation of General Statutes § 47a-7 excused defendants’ payment of rent. Moreover, there are genuine issues of material fact regarding the plaintiff’s misrepresentations that there were no serious defects at the premises which caused defendants to enter into the lease and incur expenses in reliance on the misleading assertions.
The Plaintiffs have failed to prove a prima facie case, and has thus failed to demonstrate entitlement to judgment as a matter of law. The defendants respectfully request that this court find in favor for the defendants, both in the plaintiffs’ underlying case as well as in their counterclaim, and that this court grant such other and further relief as it deems just and proper.
LEGAL ANALYSIS OF PLAINTIFF’S CLAIM
The burden of proof on the plaintiff in a civil case, unless otherwise required, is by a fair preponderance of the evidence. "[I]n an ordinary civil action the party upon whom rests the burden of proof as to a fact or issue has sustained that burden if the evidence, considered fairly, induces in the trier’s mind a reasonable belief that it is more probable than otherwise that the fact or issue is true." Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958); Cruz v. Drezek, 175 Conn. 230, 235-36, 397 A.2d 1335 (1978).
The case involves an alleged breach of a written lease agreement, i.e., a contract between two parties. "The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages." Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291, 87 A.3d 534 (2014). "A contract is an agreement between parties ... If the agreement is shown by the words of the parties, spoken or written, the contract is said to be an express one." (Internal quotation marks omitted.) Boland v. Catalano, 202 Conn. 333, 336-37, 521 A.2d 142 (1987).
Niarchos v. Roth, 1998 WL 83093823, Conn.L.Rptr. 415 provides guidance as to cosigner/guarantor liability. "In 49 Am.Jur.2d ‘Landlord and Tenant’ at § 821, page 670 it says: As a general rule, unless the parties otherwise intended, a contract of guaranty ... for the payment of rent to accrue during the term of the lease does not obligate the guarantor ... to pay for the use and occupation of the premises by the tenant after the termination of the lease by a notice to quit ..." Id. at *2.
First, there needs to be a valid, enforceable agreement. Defendants’ exhibit A is the lease dated April 5, 2017 signed by the parties. There has been no evidence presented that would lead this court to believe that there was any undue influence exerted by or against any party to this lease, nor any evidence that would allow the court to conclude that any party did not have full understanding of their rights and obligations under the lease, and the court finds that the lease was entered into freely, knowingly, and voluntarily by all parties, and is a valid contract, binding on all parties. Second, the court finds that the plaintiff has proven by a fair preponderance of the evidence that there were breaches of the terms and conditions of the lease, which the court will examine individually, as well as the special defenses and counterclaims presented by the defendants. Finally, the court finds that damages as to the breaches were proven by a fair preponderance of the evidence, which again, the court will examine individually. The testimony and the positions of the parties could not be more diametrically opposed. This court is required to determine the credibility of all the testimony presented along with the exhibits presented by both the plaintiff and the defendants.
As to the plaintiff’s claim for damages for the breach of the lease, the court finds the plaintiff’s evidence to be the most credible as to the claims examined below. The plaintiff has proven by a fair preponderance the existence of a valid lease, with a term from May 1, 2017 to May 31, 2020, at a monthly rate of $3,300 per month, and that the defendants vacated the premises prior to its expiration. The plaintiff has also proven by a fair preponderance of the evidence a breach of the payment provision, and, has also proven by a fair preponderance of the evidence that the defendants are liable for the items listed below. The defendants are liable for the unpaid rent due of $3,300 for the eight months from May 2017 through December 2017, for a total due plaintiff for past rent in the amount of $26,400. Next, as to the eighteen-month balance of the lease term from January 2018 to June 2019, the plaintiff has also proven by a fair preponderance of the evidence that she is entitled, pursuant to the lease, to be paid for any loss for the unpaid balance of rent for the remainder of the lease term after the defendants vacated, but the plaintiff is required to mitigate or attempt to mitigate damages. The plaintiff has successfully mitigated damages by re-renting the property from January 2018 to June 2019. The plaintiff is claiming the difference between the monthly amount due of $3,300 under the lease, and the re-renting monthly rate of $3,000, for the eighteen-month period. Given the defendants’ obligation under the remainder of the term of the lease, the plaintiff has proven, by a fair preponderance of the evidence, that she is entitled to the $300 loss per month for eighteen months, for a total due the plaintiff from the defendants for rate differential in the amount of $5,400.
In order to obtain occupancy of the premises from the defendants after the nonpayment of rent, the plaintiff filed a summary process action, and claims to have incurred attorneys fees of $999, court entry fee of $175, and marshal’s fees of $147.34, for a summary process cost claim of $1,321.34. Plaintiff has proven, by a fair preponderance of the evidence, that she is entitled to reimbursement for the summary process costs in the amount of $1,321.34.
Next, the plaintiff claims $2,300 for painting expenses due to the defendants painting the rooms with "rather loud colors," and painting material costs of $736.81. The lease in paragraph 6 states "I (tenants) will not make any alterations ... including painting ... without first receiving your written permission ..."; and paragraph 22k) states "I must have written permission from you to paint walls or ceilings in a different color." Defendants claim that they had oral permission, which this court finds credible, and accepts. Once the plaintiff was on notice that the interior of the house was going to be painted, regardless of the two lease provisions requiring written permission, it now becomes incumbent upon the plaintiff, as a prudent landlord, to either send them written confirmation of either approval or denial of the painting request, or inquire fully as to what colors are going to be used, or she risks the fact that due to her lack of follow-up the colors may in fact be "rather loud colors." Once a landlord becomes aware of a intended breach of the lease, action must be taken, or you forego the right to complain later for the results of your inaction, which is tantamount to a tacit acquiescence of the announced breach. The court was presented with no evidence that the plaintiff ever contacted the defendants either orally, by phone, text, or e-mail, informing the defendants that their oral painting requests was insufficient under the lease to permit said painting, and to refrain from painting or they would face legal consequences, nor did the plaintiff inquire, either orally, by phone, text, or e-mail, as to what colors were selected. By neglecting to put the defendants on notice of the legal consequences of breaching the lease or neglecting to approve the colors the defendants selected, she must suffer the consequences of distasteful colors. A landlord, once aware of a potential breach of a lease provision, must exercise the proper authority and engage in the necessary protective measures to prevent the breach. Failure to do so is negligent behavior, and the court will provide no remedy. In addition to the above, the plaintiff presented no photograph evidence to show that the rooms were painted with "rather loud colors." The court finds that the defendants’ evidence is the more credible of the parties, and finds that the plaintiff has not proven, by a fair preponderance of the evidence, her claim to hold defendants liable for the repainting of the rooms, and awards no damages for painting expenses and no damages for painting supplies.
The court does, however, find that the plaintiff has provided credible evidence to the following below, and finds that the plaintiff has proven, by a fair preponderance of the evidence, the need to change the locks, for security of the new tenant, to ensure no unauthorized person has access to the premises, and finds the plaintiff is entitled to damages of $180 for lock replacement. The court further finds that the plaintiff has proven, by a fair preponderance of the evidence, that the defendants were required to maintain the exterior of the premises under paragraph 6 of the lease, and did not do so, thus breaching that lease provision, and the plaintiff is awarded $575. The plaintiff also claims $1,500 as real estate commission for the re-renting of the premises after the defendants vacated the premises, in order to mitigate her damages. The court finds that the plaintiff has proven, by a fair preponderance of the evidence, that the real estate commission is a valid expense for the purpose of mitigation of damages, and awards the plaintiff $1,500 as damages.
In summary, the court awards the plaintiff the following amounts: eight months of rent at the rate of $3,300 per month for a total of $26,400; eighteen months of rent differential at the rate of $300 per month for a total of $5,400; summary process cost of $1,321.34 (attorneys fees of $999, court entry fee of $175, and marshal’s fees of $147.34); cost to replace locks of $180; property maintenance costs of $575; and real estate commission of $1,500, for a total damages of $35,376.34.
LEGAL ANALYSIS OF DEFENDANTS’ SPECIAL DEFENSES AND COUNTER CLAIM
As to the defendants’ first special defense, the defendants claim that the plaintiff did not enter into the lease agreement in good faith and induced the defendants to enter into the lease agreement for the purpose of evading the obligations under General Statutes § 47a-7 in that she sought to lease the property after failing to maintain the premises in good and safe working order, and there were defective and dangerous conditions in various areas of the electrical, plumbing, sanitary, heating, ventilating of the premises. The court finds, after review of all the evidence, that there is little merit to this claim.
First, the defendants must show that the plaintiff’s failure to comply with § 47a-7(a) materially affects their safety ... or has rendered the premises uninhabitable ..."Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." Patterson v. Dykins, Superior Court, judicial district of Hartford, Housing Session, docket no. HDSP-148040 (November 10, 2008, Gilligan, J.). The defendants inspected the premises at least once prior to entering into the lease, and defendant Berriola testified that the plaintiff’s husband pointed out certain issues with the property, supposedly including septic tank issues, loose stairway railings, and defendants provided him with a list of issues that needed to be addressed. It is noted that there is a specific provision in the lease at paragraph 17 which states "I (tenants) acknowledge that I have inspected the premises and at the commencement of this lease agreement the interior and exterior of the leased premises, as well as all equipment and appliances are found to be in an acceptable condition and working order ." (Emphasis added.) Defendant Berriola testified that the septic system was emitting an odor of feces and urine, and claimed it was never rectified, and had the Ridgefield health department inspector come to the premises to evaluate the mold, but the health department inspector did not notice or acknowledge any issue with septic odor, nor did the defendants ask him to inspect the septic system. The court does not find it credible that the health department inspector did not acknowledge the septic issue, if it was in fact present. The health department inspector has a duty under both Connecticut law and Ridgefield municipal regulations to ensure safe human waste disposal either by onsite septic systems or public sewer systems. Had he been put on notice of the septic system issue, whether by defendants, or by his own visual or olfactory senses, he would have taken action had it been needed. The defendants offered no expert testimony regarding the condition of the septic system or the premises, save for the Powers report, and were never ordered to vacate the premises by the Department of Health. The defendants’ own mold contractor found that mold was only an issue in the basement. Defendants’ exhibit M, a June 28, 2017 e-mail from health department inspector Edward Briggs recommends that the defendants "follow the recommendations listed in the Powers report to ensure the safety of the residents and would ensure that use of dehumidifiers is followed," but makes no mention of any need to vacate the premises. The fact the defendants decided to expend money and time to paint multiple rooms leads credibility to the fact that they found the premises tenable, and intended to remain at the premises and not vacate, providing contradictory evidence to their claim that the premises was uninhabitable. The defendants have not provided any credible evidence to allow this court to find that the condition of the premises rendered it uninhabitable, or that the plaintiff failed to comply with § 47a-7, and therefore, no abatement of the rent is justified.
As to the defendants’ second special defense, it claims that the plaintiff’s fraudulent misrepresentations to the defendants caused them to enter into a lease, incur expenses in reliance of it and loss and damages to personal property, constituting a violations of CUPTA, as the plaintiff had actual and constructive knowledge of the unsafe and/or unfit conditions then existing as mentioned in defendants’ first special defense. For the reasons outlined above, the court finds no merit to this special defense.
Next, as to the defendants’ third special defense, it claims that General Statute § 47a-21 is applicable as the failure to return a security deposit when due subjects the landlord to liability to pay the tenant twice the amount of the tenant’s security deposit, and the plaintiff has failed to return the defendants’ security deposit with interest. The plaintiff asserts that there was no violation of § 47a-21 as the plaintiff suffered damages, the security deposit was used for the damages suffered, and the defendants never provided a forwarding address as required by § 47a-21. The court finds that the defendants’ claim has merit.
First, the court finds that any need for the defendants to provide a forwarding address under § 47a-21(d)(2) is not required, as the plaintiff knew exactly where the defendants resided, as they were served with the lawsuit by the plaintiff’s state marshal on November 29, 2017, at 18 Lake Road, Ridgefield, Connecticut. Plaintiff had actual knowledge of the defendants’ address, and could have easily forwarded the deposit at the initiation of this suit once the defendants’ address was known. The plaintiff cannot use § 47a-21(d)(2) as a shield and sword to demand written notification of the defendants’ address, when she knew exactly where the defendants resided. The court will next examine what amount of the security deposit was allowed to be used to offset damages incurred by the plaintiff, and what amount should have been returned.
The lease contains a paragraph entitled Security Deposit. In paragraph 17, it states "I have deposited with you six thousand six hundred ($6,600.00) dollars as security deposit and last month’s rent ... This deposit is a security deposit ... intended to pay the costs of damages, excessive wear and tear, cleaning, and returning keys ..." Based on the terms of the paragraph, $3,300 was available for reimbursement for damages as described in the paragraph, and $3,300 was available for last month’s rent. Since no rental amount was paid, plaintiff was entitled to retain $3,300 for unpaid rent, leaving a balance due of $32,076.34 ($35,376.34-$3,300). Based on the foregoing, the plaintiff was entitled to deduct the following from the $3,300 security deposit: replacement of locks at a cost of $180, and property maintenance costs of $575, for a total of $755. The plaintiff cannot deduct the $2,300 for painting expenses and $736.81 for painting supplies which this court disallowed. Deducting $755 from the $3,300 security deposit, the defendants have proven, by a fair preponderance of the evidence, that the plaintiff was required to have returned $2,545 to the defendants, at their known address of 18 Lake Road, Ridgefield, Connecticut. As this was not done, based on § 47a-21(d)(2), the defendants are awarded double that amount, or $5,090.
Finally as to the defendants’ fourth special defense, it claims that the plaintiff has rented out the premises since the defendants vacated the property, therefore any claims or continuing claims otherwise are false and misleading. Based on the analysis above, and award of damages by the court to the plaintiff, this court finds the claim has no merit.
Lastly, as to the defendants’ counterclaim, it outlines in more detail similar factual allegations as in their special defenses, failure to deal in good faith, violation of the CUTPA, and failure to return security deposit. The defendants claim damages in their counterclaim for relocation expenses, medical expenses, professional mold research expenses, and additional losses and damages, plus loss of security deposit and interest. Aside from the partial security deposit return which this court finds as required, the defendants have provided no credible evidence of the claimed damages. Based on the analysis above, and award of damages by the court to the plaintiff, this court finds the counterclaim has no merit.
The last issue to be dealt with is the liability of the cosigner, defendant Kammen, for the damages suffered by the plaintiff. The defendant Kammen produced no evidence that in any way shows that she was unaware that she was holding herself out to the plaintiff as being secondarily liable for the lease provisions in the event the two defendant tenants breached its terms and conditions. It is inconceivable to the court that she signed the lease as cosigner not knowing what her responsibility would be in the event of a default. Niarchos makes it clear that defendant Kammen as cosigner/guarantor is responsible for any unpaid rent from the first month the lease became effective, until the termination of the lease by notice to quit, unless the lease or other document provided otherwise. This lease did not provide otherwise, and the notice to quit was served on May 23, 2017 terminating the lease, thus defendant Kammen’s liability for unpaid rent ran from May 1, 2017 until May 23, 2017. Since the defendants Waryas and Berriola made no payments for 23 days until service of the notice to quit, defendant Kammen is liable to the plaintiff for $2,448 ($3,300 divided by 31 days times 23 days).
CONCLUSION
It is the judgment of this court, that after review of all the testimony and all documentary evidence, that the plaintiff has proved damages, by a fair preponderance of the evidence, against the defendants Waryas and Berriola in the amount of $32,076.34, and the defendants Waryas and Berriola have proved a breach of the required return of the security deposit in the amount of $5,090, therefore, the plaintiff is awarded $26,986.34 in damages against the defendants Waryas and Berriola, plus interest in the amount of ten percent until paid in full; and further finds that the plaintiff has proved damages, by a fair preponderance of the evidence, against the defendant Kammen in the amount of $2,448, plus interest in the amount of ten percent until paid in full. The $2,448 the defendant Kammen is required to pay is part of the $26,986.34 in damages against the defendants Waryas and Berriola.