Opinion
No. HDSP-141135
April 27, 2007
MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
I STATEMENT OF CASE
This is a summary process action based on nonpayment of rent. The plaintiff seeks immediate possession of the premises. The defendant alleges as special defenses: condition of the premises and retaliatory action. The matter was tried on April 10, 2007 and April 25, 2007.
II FINDINGS OF FACT
The following facts were admitted and/or proved at trial by a fair preponderance of the evidence.
"The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971)." Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977). "An admission in pleading dispenses with proof, and is equivalent to proof." (Internal quotation marks omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . ." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 2000). `The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).
"Although each witness must stand or fall upon his own testimony, the trier is nevertheless free to disbelieve even unimpeached and uncontradicted testimony." Shipman v. Carr, 38 Conn.Sup. 393, 395, 449 A.2d 187 (1982). "[A] trier is not required to believe testimony merely because it is not directly contradicted." Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986).
"While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).
The standard of proof, 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." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
The plaintiff is the owner of the building located at 384 Park Road, West Hartford, Connecticut. She has owned the building since October 2003. She lives on the first floor. The subject premises include the second floor and the attic. The defendant testified that the premises were advertised as a four-bedroom apartment. She has three children and needed four bedrooms.
On or about August 10, 2006, the plaintiff and defendant entered into a written lease for the term of one year. The defendant agreed to pay a monthly rent of $1,250, payable on the first day of each month. She paid a security deposit of $1,250. The plaintiff did not give the defendant a key because work was still being done on the apartment.
During this period, the defendant had applied for housing assistance through the Community Renewal Team, Inc. (CRT). She qualified for financial assistance for a four-bedroom apartment. In order for CRT to pay the rent, the apartment had to pass an inspection based on HUD guidelines. On August 15, 2006, the defendant's prior CRT case manager conducted an inspection. The apartment failed the inspection. The inspection report was not available at trial. Under the program guidelines, the defendant was ineligible to receive housing assistance from CRT until the premises passed inspection.
The defendant did not actually occupy the premises until October 10, 2006, because she was waiting for the plaintiff to finish work on the apartment. The second floor had two bedrooms, and the attic was carpeted. There were still repairs that needed to be made. In addition, a large dining room table had not yet been removed by the plaintiff. The defendant never received a key for the back door.
Over the next several weeks, the defendant realized that there were numerous problems with the premises, including holes and cracks in the walls and ceilings, exposed wires, peeling paint, boarded-up windows, plumbing leaks, lack of window screens, no storm doors, inoperable door bell, poorly-insulated windows and doors, and exposed wood. She also observed signs of rodents. The defendant testified that she complained to the plaintiff about these problems, including sending a letter, but the plaintiff failed to make repairs.
On or about December 23, 2006, the defendant contacted the plaintiff to complain about inadequate heat in the premises. The entire apartment was cold, especially the attic area where there was no built-in heating source. The parties discussed the possibility of the windows being replaced. Later, the defendant was informed that the windows were not going to be replaced. Frustrated with the plaintiff's inaction, the defendant began calling local agencies seeking assistance, including the West Hartford-Bloomfield Health District (WH-BHD), the local agency responsible for housing and property maintenance enforcement.
The defendant did not hear back from the plaintiff until on or about January 11, 2007. The plaintiff did not contact the defendant to discuss the problems with the apartment, but rather she called to ask about the January 2007 rent. The defendant explained that she had contacted the West Hartford-Bloomfield Health District to complain about the condition of the premises. The plaintiff insisted that the defendant still had to pay the rent. The defendant demanded that the plaintiff provide adequate heat.
During the rest of January 2007, the defendant suffered from a lack of heat. She ended up purchasing space heaters to heat the apartment.
The defendant believed that the premises were unhealthy and unsafe. Both the defendant and her daughter became very sick during this period. The defendant attributed their illnesses to the lack of heat and poorly-insulated windows and doors. The defendant's daughter reportedly could not use her bedroom because it was so cold. The windows did not have screens. Signs of rodents were present. The walls and ceilings had many cracks and holes.
The defendant failed to pay the rent due under the lease on January 1, 2007. She did not pay the rent by January 10, 2007. On January 16, 2007, the plaintiff caused a notice to quit possession to be served on the defendant to vacate the premises on or before January 24, 2007. The defendant has not made any payments since then.
As previously noted, on January 11, 2007, the defendant contacted the WH-BHD to complain about the condition of her apartment. On January 30, 2007, West Hartford-Bloomfield Health District conducted an inspection. The inspector found numerous violations: (1) lack of heating facilities in upstairs space being used as habitable space, (2) no handrail on steps going to the second floor, (3) no supplied screens on the windows, (4) unprotected plywood covering numerous sections in the back of the house — wood must be either painted or sided to protect it from rotting due to the weather, (5) the exterior of various window frames is unfinished with segments of unprotected wood, (6) missing outlet cover in the back/laundry room, (7) various gaps in the frames of doors and windows that must be filled/closed, (8) chipping and peeling paint around the windows in the upstairs space, and peeling paint throughout the porch. No evidence of rodents was noted. At trial, the inspector testified that he did not think that the premises were uninhabitable.
On or about February 1, 2007, the WH-BHD sent the plaintiff a notice of housing and property maintenance code violations. The plaintiff was originally given until March 15, 2007, to make repairs.
On February 15, 2007, the plaintiff's brother-in-law contacted the WH-BHD and reported that some of the violations had been repaired, but other repairs could not be done because the defendant would not allow access to the premises. On March 12, 2007, the plaintiff requested an extension of time to address the violations because the defendant was not being cooperative. On March 19, 2007, the WH-BHD granted an extension. The district tried unsuccessfully to reach the defendant to inform her that she needed to allow the plaintiff and her agents access to the premises to address the violations.
The defendant disputed that she refused to allow the plaintiff access to the premises for the repairs. She worked at home and believed that the inoperable doorbell contributed to the plaintiff's complaints about the defendant refusing access to the premises for repairs. From the second floor, it was difficult to hear someone knocking on the front door. At some point, someone had tried to fix the doorbell, but instead caused other electrical problems. On or about March 27, 2007, the defendant sent a letter to the plaintiff's attorney indicating that the plaintiff's contractors could have access to the premises Tuesdays, Wednesdays, and Thursdays from 9:00 a.m. to 5:00 p.m.
On April 10, 2007, the defendant's current CRT case manager conducted an inspection of the premises. The defendant was still eligible for housing assistance. However, numerous violations were found. Many of the problems were noted during the January 30, 2007 inspection. By April 2007, these problems had still not been corrected by the plaintiff. The case manager also observed signs of rodents. Based on the conditions, the premises again failed the CRT inspection.
Although the time given in the notice to quit possession has passed, the defendant still continues in possession of the premises.
Additional facts will be provided, as needed, that were proved by a fair preponderance of the evidence.
III DISCUSSION
"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." C. Tait, Handbook of Connecticut Evidence (3d Ed. 2001) § 3.3.1, p. 136.
A Plaintiff's Case
"The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).
(1) Nonpayment of Rent
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 Statutes § 47a-23(a)(1)(D).
B Defense Case
"[A] special defense is not an independent action; rather, it is an attempt to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 447 n. 10, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).
(1) Condition of the premises
By way of a special defense, the defendant alleges that the condition of the premises excused the payment of rent. The tenant has "the burden of proof on her special defense that no rent was due under General Statutes section 47a-4a because of various health and housing code violations violating § 47a-7(a). Evergreen Corp. v. Brown, 35 Conn.Sup. 549, 552, 396 A.2d 146 (App.Sess. 1978)." Elkies v. Bear, Superior Court, judicial district of New Haven at Meriden, Docket No. SPM CV 04-0287606 (July 6, 2004, Frazzini, J.); See Rosow v. Gonzalez, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. H 79 0501528 (July 5, 1979, Spada, J.); Steinegger v. Rosario, 35 Conn.Sup. 151, 402 A.2d 1 (1979).
General Statutes § 47a-4a, titled "Effect of failure to comply with section 47a-7," provides:
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 section 47a-7.
"General Statutes § 47a-7 sets forth the responsibilities of a landlord to his tenants. As well as complying with all applicable building and housing codes of the state or any political subdivision thereof, a landlord is mandated to `make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.' General Statutes § 47a-7(a)(2). The remedies available to a tenant in the event of the landlord's dereliction of these statutory duties are various: the tenant may withhold his rental payment, § 47a-4a; the tenant may initiate an action to compel the landlord to perform his legal duties, § 47a-14h; or the tenant may interpose the landlord's noncompliance as a defense in a summary process action, §§ 47a-20 and 47a-33.
"[F]or a tenant to make a successful claim that he had the right to withhold payment of rent, he must show that the landlord's failure to comply with § 47a-7(a) `materially affects his safety'; . . . or has rendered the premises `uninhabitable' . . . In light of the fact that the sanctions in these sections [§§ 47a-7 and 47a-4a inclusive] are not triggered until and unless evidence is adduced at trial establishing that there is a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant . . ." (Citations omitted; internal quotation marks omitted.) Visco v. Cody, 16 Conn.App. 444, 448-51, 547 A.2d 935 (1988).
"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 section 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.) Housing Authority v. Olesen, 31 Conn.App. 359, 363, 624 A.2d 920 (1993).
General Statutes § 47a-7, entitled "Landlord's responsibilities," provides in relevant part:
(a) A landlord shall: (1) Comply with the requirements of chapter 368o 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; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.
"Connecticut law recognizes that health or housing code violations may vitiate a tenant's obligation to pay rent but only serious and substantial violations affecting safety or well being." (Internal quotation marks omitted.) Elkies v. Bear, supra, Superior Court, Docket No. SPM CV 04-0287606.
"Whether 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 and whether the uninhabitability is caused by the tenant. Hayes v. Capitol Buick, 119 Conn. 372, 176 A 885 (1935)." Housing Authority, Hartford v. Williams, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 92006-65824 (October 8, 1992, Holzberg, J.).
"In enforcing the mandate of General Statutes § 47a-4a that no rent is due when a landlord has not complied with its statutory duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, courts have generally demanded more than a tenant's word that there are serious health or safety hazards to corroborate such a claim — such as a report from a fire marshal or housing inspector or an independent witness." (Internal quotation marks omitted.) Elkies v. Bear, supra, Superior Court, Docket No. SPM CV 04 0287606. "[T]o establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable. Evergreen Corporation v. Brown, 35 Conn.Sup. 549, 552, 396 A.2d 146 (1978) (suggesting that a tenant `utilize the broad range of municipal boards, agencies, and commissions' to remedy defects)." Visco v. Cody, supra, 16 Conn.App. 450. "This court does not construe such cases as holding that a tenant's testimony is, as a matter of law, insufficient to prove an uninhabitability claim; see, e.g., Morgan v. White, 168 Conn. 336, 349, 362 A.2d 505 (1975); Denby v. Commissioner, 6 Conn.App. 47, 502 A.2d 954 (1986); but instead as suggesting that most courts will find the tenant's own word unpersuasive unless there is additional evidence to back up the claim." Elkies v. Bear, supra, Superior Court, Docket No. SPM CV 04 0287606.
In Rosow, the trial court found that tenant failed to establish that the apartment was uninhabitable despite many problems with the premises. The tenant complained that the bedroom ceiling leaked, a broken window was not repaired, other windows could not be opened for ventilation, the heat did not work on several occasions, the front door was difficult to open, the apartment was infested with mice, and trash was found in the hallways which were also poorly lit. The court stated "that premises or a dwelling unit are unfit and uninhabitable when they fail to meet basic structural, mechanical and housing code regulations . . . Each situation needs to be examined on a case-by-case basis. 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." Rosow v. Gonzalez, supra, Superior Court, Docket No. H 79 0501528. In regards to the no heat complaint, the court found that "[t]he complaint of lack of heat in December 1978, even if believed, is waived because of the payment of rent." Id.
In Steinegger, on the other hand, the trial court found that the premises were rendered uninhabitable and; therefore, the tenant was relieved from paying rent during the period in question. Steinegger v. Rosario, supra, 35 Conn.Sup. 157. The following circumstances were present: "The director of the city health department inspected the premises the day prior to the trial and found, inter alia, the following violations of the city health code: defective windows, i.e., rotten window frames; lack of provision on the front door for the attachment of an adequate locking device; and evidence of possible roach and rodent infestation. It was his opinion that the window and door defects developed over a long period of time and that they were hazardous to the health and safety of the occupants of the premises . . .
"The tenant had requested the landlord to repair or correct those defects or conditions on many occasions both before and after the refusal to pay the June rent. Furthermore, despite numerous complaints by the tenant to the landlord of the presence of roaches, the apartment in question had never been visited by an exterminator nor had the tenant ever been contacted by the exterminator whom the landlord kept on retainer. The landlord admitted on examination by the court that he had agreed to repair the tenant's doors and windows and to exterminate any roaches or rodents which might be present in her apartment." Id. at 152-53.
(2) Retaliatory action
The defendant also alleges, as a special defense, retaliatory action by the plaintiff pursuant to § 47a-20 and § 47a-33.
General Statutes § 47a-20, titled "Retaliatory action by landlord prohibited," provides: "A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants' union."
However, General Statutes § 47a-20a, titled "Actions deemed not retaliatory," provides: "(a) Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit if: (1) The tenant is using the dwelling unit for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent; (2) the landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode; (3) the condition complained of was caused by the wilful actions of the tenant or another person in his household or a person on the premises with his consent; or (4) the landlord seeks to recover possession on the basis of a notice to terminate a periodic tenancy, which notice was given to the tenant before the tenant's complaint. (b) Notwithstanding the provisions of section 47a-20, a landlord may increase the rent of a tenant if: (1) The condition complained of was caused by the lack of due care by the tenant or another person of his household or a person on the premises with his consent or (2) the landlord has become liable for a substantial increase in property taxes, or a substantial increase in other maintenance or operating costs not associated with his complying with the complaint, not less than four months before the demand for an increase in rent, and the increase in rent does not exceed the prorated portion of the net increase in taxes or costs. (c) Nothing in this section or section 47a-20 shall be construed to in any way limit the defense provided in section 47a-33." (Emphasis added.)
In addition, General Statutes § 47a-33, titled "Defense that action is retaliatory," provides: "In any action for summary process under this chapter or section 21-80 it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, including contacting officials of the state or of any town, city, borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any of the provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie. The obligation on the part of the defendant to pay rent or the reasonable value of the use and occupancy of the premises which are the subject of any such action shall not be abrogated or diminished by any provision of this section." (Emphasis added.)
"As we have said on prior occasions, retaliation is not a defense to a summary process action brought because of nonpayment of rent. Smith v. Worsham, SPNH 8207-2132 (September 8, 1982); Jacobson v. Johnson, SPNH 8207-2006 (September 8, 1982); Maretz v. Apuzzo, 34 Conn.Sup. 594, 597 (1977)." Mordecai v. Botwe-Asamoah, Superior Court, judicial district of New Haven, Docket No. 8208-2228 (September 29, 1982, Foti, J.). See Bordiere v. Ramirez, Superior Court, judicial district of New Britain, Housing Session, Docket No. SPN 99 1031769 (December 23, 1999, Tanzer, J.) ( 28 Conn. L. Rptr. 359). In Bordiere, the court held that "[w]hile the temporal sequence of the complaints and service of the notice would be significant in deciding a claim of retaliatory eviction, I need not determine the point in this case because neither General Statutes § 47a-20 nor General Statutes § 47a-33 pertains where the reason for the eviction is nonpayment of rent. General Statutes § 47a-20a entitled `Actions deemed not retaliatory,' states, `[n]otwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit . . . for nonpayment of rent . . .' This defense is not available to the defendants." Bordiere v. Ramirez, supra, Superior Court, Docket No. SPN 99 1031769.
Since the plaintiff has brought an eviction action based solely on nonpayment of rent, the defense or retaliatory action is not available to the defendant.
C Analysis
Based on the evidence presented, the court makes the following findings regarding the respective claims and defenses.
Pursuant to the lease, the defendant was obligated to pay monthly rent of $1,250. The defendant did not pay the rent for January 2007, or make any payments thereafter. The notice to quit served on January 16, 2007, was proper and in conformity with the statutes. The defendant failed to vacate the premises after the quit date and has remained in possession of the premises.
Zappia has defended her actions by alleging that the plaintiff failed to comply with the landlord's responsibilities under § 47a-7. She offered credible evidence to support this defense, including the testimony of two independent witnesses, the WH-BHD inspector and her CRT case manager.
On January 30, 2007, the WH-BHD inspector found numerous health and safety code violations, including a lack of a heating source in the attic, no handrail on steps going to the second floor, no window screens, unprotected plywood covering numerous sections in the back of the house, improperly insulated windows and doors, a missing outlet cover, and chipping and peeling paint.
The defendant's CRT case manager also testified regarding the condition of the apartment. The premises had previously failed an inspection by CRT on August 15, 2006. When the apartment was re-inspected on April 10, 2007, many, if not all, of the January 30, 2007 violations still existed. The problems had not been corrected by the plaintiff. The premises did not meet the HUD guidelines for minimum housing quality standards and, therefore, failed the inspection.
The defendant also offered photographs of the premises. These photographs showed an apartment in need of significant repairs.
As previously stated, "[v]iolations 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." Rosow v. Gonzalez, supra, Superior Court, Docket No. H 79 0501528.
The preponderance of the evidence demonstrated that the subject premises had a series of violations and problems that constituted a material risk or hazard to the defendant's health and safety. The window and door defects, in particular, were hazards to the health and safety of the occupants. See Steinegger v. Rosario, supra, 35 Conn.Sup. 152-3. These issues combined to create a hazardous situation over an extended period of time.
Before and after the defendant's refusal to pay the January 2007 rent, she made numerous requests to the plaintiff to fix the problems with the apartment. The plaintiff was well aware of the problems but failed to make necessary and required repairs.
While the WH-BHD inspector testified that he did not think the premises were uninhabitable, the court finds that the combination of violations and problems rose to the level of rendering the premises unfit or uninhabitable. The evidence demonstrated that the defendant's obligation to pay rent was excused by the condition of the premises.
IV CONCLUSION AND ORDER
For the above-stated reasons, the court finds that the defendant has proved, by a fair preponderance of the evidence, the defense of condition of the premises under § 47a-4a. Therefore, judgment is entered for the defendant.