Opinion
No. HDSP-102429
November 18, 1999
MEMORANDUM OF DECISION
The plaintiff brings this summary process action seeking possession of a dwelling unit on the ground that Defendant Wayne Francis' rental agreement has expired by lapse of time. Wayne Francis appeared, answered and filed a special defense in which he alleges that the plaintiff has "refused to renew the Defendant's lease because of the Defendant's race and color in violation of Connecticut General Statutes 46a-64b ." The plaintiff has moved to strike the special defense.
The action was brought against other defendants for the alleged reason of "never had the right or privilege to occupy the premises." Those defendants have not appeared.
The proper citation is General Statutes § 46a-64c, and the pertinent provisions are as follows:
(a) It shall be a discriminatory practice in violation of this section:
(1) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income or familial status.
(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income or familial status. . . .
(4)(A) To represent to any person because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability that any dwelling is not available for inspection, sale or rental when such dwelling is in fact so available. . . .
(7) For any person or other entity engaging in residential real-estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability.
Section 10-39 of the Practice Book provides that "[w]henever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross-complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut CT Page 14796National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The plaintiff contends there is no case law or Connecticut statute to support the defendant's pleading a violation of General Statutes § 46a-64c as a special defense to a summary process action based on lapse of time. The defendant contends General Statutes § 46a-98a, which allows plaintiffs to bring housing discrimination claims directly to the Superior Court, justifies his use of the statute as a defense to this summary process action.
See Endnote 2, supra.
Sec. 46a-98a. Discriminatory housing practice or breach of conciliation agreement. Cause of action; relief.
Any person claiming to be aggrieved by a violation of section 46a-64c or 46a-81e or by a breach of a conciliation agreement entered into pursuant to this chapter, may bring an action in the Superior Court, or the housing session of said court if appropriate within one year of the date of the alleged discriminatory practice or of a breach of a conciliation agreement entered into pursuant to this chapter. No action pursuant to this section may be brought in the Superior Court regarding the alleged discriminatory practice after the commission has obtained a conciliation agreement pursuant to section 46a-83 or commenced a hearing pursuant to section 46a-84, except for an action to enforce the conciliation agreement. The court shall have the power to grant relief, by injunction or otherwise, as it deems just and suitable. In addition to the penalties provided for under subsection (g) of section 46a-64c or subsection (f) of section 46a-81e, the court may grant any relief which a presiding officer may grant in a proceeding under section 46a-86 or which the court may grant in a proceeding under section 46a-89. The commission, though its counsel or the Attorney General, may intervene as a matter of right in any action brought pursuant to this section.
In a number of cases, courts have ruled on the merits of special defenses alleging discrimination. In Woodside Village v. Hertzmark, Superior Court, judicial district of Hartford New Britain at Hartford, Docket No. SPH-9204-65092 (June 22, 1993, Holzberg, J.) (H-1010), appeal dismissed, Woodside Village-Stratford Assn. v. Hertzmark, 36 Conn. App. 73, 647 A.2d 759 (1994), the court ruled on a special defense in an action based on lease violation, alleging that the landlord had failed to accommodate the tenant's disability "as required by the Federal Fair Housing Act, and its state counterpart, § 46a-64c(a) (6)(c) of the General Statutes, both of which prohibit discrimination in housing on the basis of handicap. " See also New London Housing Authority v. Tarrant, Superior Court, judicial district of New London at New London, Docket No. 12480 (January 14, 1997, Booth, J.) (3 Conn. Ops. 227) (evaluating on its merits, in an action based on lease violation, a special defense claiming illegal discrimination under § 46a-64c(a)(6) of the General Statutes); Russo v. Forbes, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. SPN-3603-7889 (June 2, 1986, Goldstein, J.) (H-751) (evaluating on its merits a special defense claiming racial discrimination in a lapse of time case).
Similarly, in Willow Arms Associates v. Palka, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. SPH-8803-43228 (August 29, 1989, Doyle, J.) (H-903), the court decided the merits of a special defense alleging discrimination in violation of § 504 of the Rehabilitation Act of 1973; 29 U.S.C. § 794. One court, Burns, J., has also adjudicated on its merits a special defense, in a lapse of time action, alleging discrimination based on infringement of free speech rights. Meriden Redevelopment Agency v. Capital Video, Superior Court, judicial district of New Haven at Meriden, Docket No. SPM-9105-3027 (September 4, 1991, Burns, J.) (finding a lack of evidence to support the claim). In Harved Realty v. Leekoff, judicial district of Hartford at Hartford, Docket No. SPH-94367 (Nov. 24, 1998, Beach, J.), the court discussed its findings on the substance of special defenses alleging unlawful discrimination in violation of both state and federal fair housing and anti-discrimination statutes.
Judgment was rendered in favor of the defendant on other grounds. Additionally, the court considered viewing the defenses alleging discrimination as more traditional equitable defenses. See e.g., Fellows v. Martin, 217 Conn. 57 (1991).
There are other cases, however, which suggest that the use of discriminatory practices as a special defense might be legally impermissible. In the Supreme Court case of Ossen v. Wanat, 217 Conn. 313, 585 A.2d 685, cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991), the defendants in a summary process action "sought permission to sell [a] mobile home on the leased premises in accordance with General Statutes § 21-79." Id., 319. The Court held that the defendants did not have a right to sell their mobile home, stating that, "[s]ection 21-79 nowhere permits a defendant to use its right to sell its mobile home to delay a summary process action." Id., 319-20. The Court also stated, that "[w]e agree with the trial court's conclusion that the constitutional issues that the defendants attempted to raise `are far beyond the scope of the statutory action that is before the court'." Id., 318, 319 quoting 21 Conn. App. 40 at p. 46.
§ 21-79 (a) provides, in pertinent part, that "[n]o owner or operator of a mobile manufactured home park shall require a resident who owns a mobile manufactured home which is safe, sanitary and in conformance with aesthetic standards to remove the home from the development at the time such mobile manufactured home is sold. . . ."
Further, in Evergreen Corp. v. Brown, 35 Conn. Sup. 549, 553, 396 A.2d 146 (1978), the appellate session of the Superior Court stated that "[i]t has always been the policy of the law to limit issues in summary process actions within the express scope of the statutory provisions." Id., 553. "The necessary and only basis of a summary process proceeding is that the lease has terminated." Id. In Evergreen, the lease was terminated for nonpayment of rent. The court stated in that case, "as a practical matter, the defendant's claim of discrimination [was] based on the alleged discriminatory treatment at the hands of the plaintiff, and . . . not . . . on the terms or existence of the parol lease." Id., 555. The court questioned whether the defendant meant that the lease was illegal, or that the treatment received by him from his landlord was the basis of the alleged illegality. If the latter were true, the court stated, "this issue would more appropriately be the subject of a different type of action and is totally inappropriate in a summary process action." Id.
With no decision on point, resolution of whether a claim of racial discrimination in defense of an eviction based on lapse of time raises a legally cognizable special defense requires consideration and reconciliation of General Statutes § 47a-23, et seq (Summary Process) and General Statutes § 46a-64b and § 46a-64c (Fair Housing), bearing in mind that the summary process statute is in derogation of the common law and must be strictly construed; Jo-Mark Sand Gravel Co. v. Pantanella, 139 Conn. 598 (1953); and that the fair housing act is a remedial statute which must be broadly construed.. Commission on Human Rights Opportunities v. Sullivan Associates, 250 Conn. 763 (1999).
Plaintiff landlord relies on the narrow construction to be given the summary process statutes.
It has always been the policy of our law to limit the issues in an action of summary process to a few simple ones within the express scope of the statutory provisions." Webb v. Ambler, 125 Conn. 543, 550-51, 7 A.2d 228 (1939). "Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed." Jo-Mark Sand Gravel Co. v. Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953). "The purpose of summary process proceedings . . . is to permit the landlord to recover possession on termination of a lease . . . without suffering the delay, loss and expense to which he may be subjected under a common-law action. . . . The process is intended to be summary and is designed to provide an expeditious remedy to the landlord seeking possession." Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973).
Ossen v. Wanat, 217 Conn. 313 (1991), cert denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991).
The plaintiff contends that tenants in Connecticut who are being evicted for lapse of time have only certain statutory defenses available to them. Specifically, such tenants can assert a defense to a lapse of time eviction 1) by claiming they are within the protected class of the elderly, physically disabled and blind and reside in a building consisting of five or more dwelling units pursuant to General Statutes § 47a-23c; 2) by claiming the eviction is retaliatory pursuant to General Statutes § 47a-33; or 3) by denying the existence or the expiration of the lease.
Sec. 47a-23c. Prohibition on eviction of certain tenants except for good cause.
(a)(1) Except as provided in subdivision (2) of this subsection, this section applies to any tenant who resides in a building or complex consisting of five or more separate dwelling units or who resides in a mobile manufactured home park and who is either: (A) Sixty-two years of age or older, or whose spouse, sibling, parent or grandparent is sixty-two years of age or older and permanently resides with that tenant; (B) blind, as defined in section 1-1f; or (C) physically disabled, as defined in section 1-1f, but only if such disability can be expected to result in death or to last for a continuous period of at least twelve months.
(2) With respect to tenants in common interest communities, this section applies only to (A) a conversion tenant, as defined in subsection (3) of section 47-283, who (i) is described in subdivision (1) of this subsection, or (ii) is not described in subdivision (1) of this subsection but, during a transition period, as defined in subsection (4) of section 47-283, is residing in a conversion condominium created after May 6, 1980, or in any other conversion common interest community created after December 31, 1982, or (iii) is not described in subdivision (1) of this subsection but is otherwise protected as a conversion tenant by public act 80-370, and (B) a tenant who is not a conversion tenant but who is described in subdivision (1) of this subsection if his landlord owns five or more dwelling units in the common interest community in which the dwelling unit is located.
(3) As used in this section, "tenant" includes each resident of a mobile manufactured home park, as defined in section 21-64, including a resident who owns his own home, "landlord" includes a "licensee" and an "owner" of a mobile manufactured home park, as defined in section 21-64, "complex" means two or more buildings on the same or contiguous parcels of real property under the same ownership, and "mobile manufactured home park" means a parcel of real property, or contiguous parcels of real property under the same ownership, upon which five or more mobile manufactured homes occupied for residential purposes are located.
(b)(1) No landlord may bring an action of summary process or other action to dispossess a tenant described in subsection (a) of this section except for one or more of the following reasons: (A) Nonpayment of rent; (B) refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of this section; (C) material noncompliance with section 47a-11 or subsection (b) of section 21-82, which materially affects the health and safety of the other tenants or which materially affects the physical condition of the premises; (D) voiding of the rental agreement pursuant to section 47a-31, or material noncompliance with the rental agreement; (E) material noncompliance with the rules and regulations of the landlord adopted in accordance with section 47a-9 or 21-70; (F) permanent removal by the landlord of the dwelling unit of such tenant from the housing market; or (G) bona fide intention by the landlord to use such dwelling unit as his principal residence.
(2) The ground stated in subparagraph (G) of subdivision (1) of this subsection is not available to the owner of a dwelling unit in a common interest community occupied by a conversion tenant.
(3) A tenant may not be dispossessed for a reason described in subparagraph (B), (F) or (G) of subdivision (1) of this subsection during the term of any existing rental agreement.
(c)(1) The rent of a tenant protected by this section may be increased only to the extent that such increase is fair and equitable, based on the criteria set forth in section 7-148c.
(2) Any such tenant aggrieved by a rent increase or proposed rent increase may file a complaint with the fair rent commission, if any, for the town, city or borough where his dwelling unit or mobile manufactured home park lot is located; or, if no such fair rent commission exists, may bring an action in the Superior Court to contest the increase. In any such court proceeding, the court shall determine whether the rent increase is fair and equitable, based on the criteria set forth in section 7-148c.
(d) A landlord, to determine whether a tenant is a protected tenant, may request proof of such protected status. On such request, any tenant claiming protection shall provide proof of the protected status within thirty days. The proof shall include a statement of a physician in the case of alleged blindness or other physical disability.
Sec. 47a-33. .Defense that action is retaliatory.
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.
General Statutes § 47a-23c is entitled "Prohibition on eviction of certain tenants except for good cause," and prohibits a landlord from evicting elderly and blind or physically disabled persons except for certain specified reasons such as nonpayment of rent or violation of the lease. Lapse of time is not one of the authorized reasons. Ashley Willard Asylum v. Rodriguez, Hartford Housing Court #1015, October 19, 1993 (Holzberg, J.). A landlord is required to assert a "good cause" reason under General Statutes § 47a-23c to evict a tenant in the specified protected class. That may mean logically that in a lapse of time case a landlord may evict at will and without "good cause" a tenant who is not within the statutorily protected class of elderly, blind or physically disabled. It is, however, neither logical nor tenable to infer that a landlord may evict a tenant not within the protected class of 47a-23c for "bad cause" or a discriminatory practice.
Such a result would be inconsistent with the plain language and remedial purpose of the fair housing act. General Statutes § 46a-64c provides that it is a discriminatory practice
to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income or familial status; and it is a discriminatory practice to represent to any person because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability that any dwelling is not available for inspection, sale or rental when such dwelling is in fact so available; and it is a discriminatory practice for any person or other entity engaging in residential real-estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income, familial status, learning disability or physical or mental disability.
It is a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules which lead to absurd consequences or bizarre results. Such would be the case if a discriminatory practice were prohibited when denying a new lease yet allowed when denying a lease to renew. "The unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result. Commission on Human Rights Opportunities v. Sullivan Associates, supra.
Plaintiff also argues that a claim of discriminatory housing practice under General Statutes § 46a-64c comes within the jurisdiction of the State of Connecticut Commission on Human Rights and Opportunities. As pointed out by the defendant, however, the jurisdiction of the housing session of the superior court includes actions (and administrative appeals) involving discrimination in the sale or rental of residential property. General Statutes § 47a-68 (c). An action for violation of General Statutes § 46a-64c, a discriminatory housing practice, may be brought directly "in the Superior Court, or the housing session of said court if appropriate" without first exhausting administrative remedies available from the Connecticut Commission on Human Rights and Opportunities. General Statutes § 46a-98a. Gail Fulk v Richard W. Lee et al, 25 Conn. L Rptr. No 5, 181 October 4, 1999 ( Stengel, J.)
Sec. 47a-68. Definitions.
As used in this chapter, sections 51-51v, 51-165, 51-348 and subsection (b) of section 51-278, "housing matters" means:
(a) Summary process;
(b) Appeals from the decisions of a fair rent commission under sections 7-148e and 7-148f;
(c) Actions and administrative appeals involving discrimination in the sale or rental of residential property;
(d) All actions regarding forcible entry and detainer;
(e) Actions under the provisions of title 47a, chapter 412 or section 47-294;
(f) All actions involving one or more violations of any state or municipal health, housing, building, electrical, plumbing, fire or sanitation code or any other statute, ordinance or regulation concerned with the health, safety or welfare of any occupant of any housing;
(g) All actions under sections 47a-56a to 47a-59, inclusive;
(h) All actions for back rent, damages, return of security deposits and other relief arising out of the parties' relationship as landlord and tenant or owner and occupant;
(i) All other actions of any nature concerning the health, safety or welfare of any occupant of any place used or intended for use as a place of human habitation if any such action arises from or is related to its occupancy or right of occupancy.
See Endnote 4, supra.
In a direct action under General Statutes § 46a-98a, a tenant may seek to enjoin a wrongful eviction, in addition to making a claim for damages. Such an action, which is privileged, could be joined with the summary process action or asserted as a counterclaim. The concern expressed in the concurring opinion inFellows v. Martin about impairment of the usefulness of the summary process procedure as an expeditious remedy was addressed in the majority opinion as follows:
See, Practice Book Sections 14-9(8) and (11)
We disagree that such a development is sanctioned by our opinion. First, it should be noted that our holding does not involve equitable considerations generally, but declares only that "equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding." (Emphasis added.) Second, even if we were to preclude such equitable defenses in the summary process action itself, a separate action raising the same equitable considerations could be filed in the housing court as a basis for enjoining the eviction and would presumably be tried with the summary process action, if the right to possession was at issue. To allow the same matters to be raised in the summary process action without the necessity of commencing a separate suit for injunctive relief should result in a more expeditious resolution of all the issues relating to possession in a single action..__(Emphasis supplied.) Fellows v. Martin, 217 Conn. 57, 70, fn (9).
In asserting a claim of racial discrimination as a special defense, the tenant would be limited in the nature of the relief to the right to possession; whereas in an independent action, the tenant would be afforded a panoply of relief under the fair housing statute.
See Endnote 4, supra, the pertinent provisions of which are: "The court shall have the power to grant relief, by injunction or otherwise, as it deems just and suitable. In addition to the penalties provided for under subsection (g) of CT Page 14807 section 46a-64c or subsection (f) of section 46a-81e, the court may grant any relief which a presiding officer may grant in a proceeding under section 46a-86 or which the court may grant in a proceeding under section 46a-89.
Subsection (g) of section 46a-64c provides:
(g) Any person who violates any provision of this section shall be fined not less than twenty-five nor more than one hundred dollars or imprisoned not more than thirty days, or both.
Subsection (c) of section 46a-86 provides:
(c) In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-58, 46a-59, 46a-64, 46a-64c, 46a-81b, 46a-81d or 46a-81e, the presiding officer shall determine the damage suffered by the complainant, which damage shall include, but not be limited to, the expense incurred by the complainant for obtaining alternate housing or space, storage of goods and effects, moving costs and other costs actually incurred by him as a result of such discriminatory practice and shall allow reasonable attorney's fees and costs.
Section 46a-89 provides in pertinent part:
(b)(1) Whenever a complaint is filed with or by the commission pursuant to section 46a-82 alleging a violation of section 46a-64, 46a-64c, 46a-81d or 46a-81e concerning the sale or rental of a dwelling or commercial property, and a commissioner believes upon review and the recommendation of the investigator assigned, that equitable relief is required or that the imposition of punitive damages or a civil penalty would be appropriate, the commissioner may bring a petition in the superior court in the judicial district in which the discriminatory practice which is the subject of the complaint occurred or in the judicial district in which the respondent resides.
(2) The petition shall (A) seek appropriate injunctive relief against the respondent, including orders or decrees restraining and enjoining him from selling or renting to anyone other than the complainant or otherwise making unavailable to the complainant any dwelling or commercial property with respect to which the complaint is made, pending the final determination of proceedings on such complaint, or (B) seeking an award of damages based on the remedies available under subsection (c) of section 46a-86 and an award of punitive damages payable to the complainant, not to exceed fifty thousand dollars, or (C) seeking a civil penalty payable to the state against the respondent to vindicate the public interest: (i) In an amount not exceeding ten thousand dollars if the respondent has not been adjudged to have committed any prior discriminatory housing practice; (ii) in an amount not exceeding twenty-five thousand dollars if the respondent has been adjudged to have committed one other discriminatory housing practice during the five-year period prior to the date of the filing of this complaint; and (iii) in an amount not exceeding fifty thousand dollars if the respondent has been adjudged to have committed two or more discriminatory housing practices during the seven-year period prior to the date of the filing of the complaint; except that if the acts constituting the discriminatory housing practice that is the object of the complaint are committed by the same natural person who has been previously adjudged to have committed acts constituting a discriminatory housing practice, then the civil penalties set forth in subparagraphs (ii) and (iii) may be imposed without regard to the period of time within which any subsequent discriminatory housing practice occurred or (D) seeking two or more of these remedies.
(3) Upon service on the respondent of notice pursuant to section 46a-89a, the respondent shall be temporarily restrained from selling or renting the dwelling or commercial property which is the subject of the complaint to anyone other than the complainant until the court or judge has decided the petition for temporary injunctive relief, and the notice shall so provide.
Although neither party has asserted or commented on Section 47a-33a of the General Statutes, that statute, enacted in 1995, provides compelling support for the viability of a special defense claiming racial discrimination in an eviction action based on lapse of time. "In any action of summary process under this chapter, the tenant may present any affirmative legal, equitable or constitutional defense that, the tenant may have." (Emphasis supplied). General Statutes § 47a-33a.
Public Act 95-247, S. 8.
It is a basic tenet of statutory construction that the legislature "did not intend to enact meaningless provisions."Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991). Accordingly, care must be taken to effectuate all provisions of the statute. See Pintavalle v. Valkanos, 216 Conn. 412, 418, 581 A.2d 1050 (1990) ("[a] statute should be read as a whole and interpreted so as to give effect to all of its provisions");Hopkins v. Pac, 180 Conn. 474, 476, 429 A.2d 952 (1980) (it is a "well established principle that statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant"). "It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation." Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391, 618 A.2d 1340 (1993) Bridgeport Hospital v. Comm. On Human Rights Opp., 232 Conn. 91 (1995).
General Statutes § 47a-33a states "in any action" which would include an eviction action based on lapse of time. The statute also refers to "any . . . affirmative defense" which would include a defense of racial discrimination under General Statutes § 46a-64c.
The Motion to Strike is denied.
Tanzer, J.