Opinion
No. NHSP-90112
November 1, 2007
MEMORANDUM OF DECISION
This is a Motion to Dismiss. The plaintiff brought this summary process action alleging breach of the lease. The defendant moved to dismiss, alleging lack of subject matter jurisdiction, as the Pretermination Letter (KAPA notice) failed to notify the defendant of his right to remedy (cure) the violations.
FACTS
The defendant was born in 1928. He asserts that he has lived in the unit since 1993. He had a one-year written lease with an automatic renewal for successive terms of one year. The subject lease renewal was October 1, 2005 through September 30, 2006.
The plaintiff brought this action dated June 21, 2007, seeking to evict the defendant on the following grounds: 1) a breach of eight provisions of the lease, 2) failure to abide by his obligation (pursuant to 24 C.F.R.966.4(F)) to follow the necessary and reasonable regulations of the plaintiff not to engage in any drug-related activity on the premises, and 3) failure to comply with Addendum 9 to the lease.
On May 16, 2007, the plaintiff had the defendant served with a Pretermination Letter. The plaintiff stated that, on February 10, 2006, the defendant had been arrested and charged as follows: 1) possession of drug paraphernalia and 2) possession of drug paraphernalia within 1,500 feet of a school in violation of C.G.S § 21a-267. The notice enumerated the applicable eight paragraphs of the lease, the addendum and federal regulations. The notice also specified the defendant's conduct, notified him that he had a right to reply, and that he had a right to examine documents relevant to his eviction, prior to any trial or hearing. The notice further stated that he was not entitled to a grievance hearing.
The arrest was approximately fifteen months before the pretermination letter. No further information was included such as, whether the case was still pending, not prosecuted or resulted in a conviction.
On or about June 7, 2007, the plaintiff had the defendant served with a Notice to Quit. The grounds stated in that notice reiterated the information stated in the KAPA notice.
The defendant moved to dismiss the complaint asserting the following: that since the plaintiff's action is based on noncompliance with several provisions of the lease, the KAPA notice must notify the defendant that he had a right to remedy (cure) the breach. The failure to include that notice is a defect which deprives the court of subject matter jurisdiction.
The plaintiff, in objecting to the Motion to Dismiss, has asserted that the plain language of C.G.S. § 47a-15 does not include such language in the notice and neither the statute nor Connecticut law require notice of the opportunity to cure a lease violation that is not curable.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
C.G.S. § 47a-15 provides that a landlord seeking to evict a tenant must serve the tenant with a written notice (KAPA notice), specifying the conduct constituting the breach, at which time the tenant has fifteen days to remedy the breach before the lease terminates.
C.G.S. § 47a-15 provides that: "Prior to the commencement of a summary process action, except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent, on conduct by the tenant which constitutes a serious nuisance or on a violation of subsection (h) of section 47a-11, if there is a material noncompliance with section 47a-11 which materially affects the health and safety of the other tenants or materially affects the physical condition of the premises, or if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, and the landlord chooses to evict based on such noncompliance, the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receiving of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within such fifteen-day period, the rental agreement shall terminate except that (1) if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such fifteen-day period, the rental agreement shall not terminate . . ." (Emphasis added.)
The landlord is exempt from the KAPA notice where the eviction is based on 1) nonpayment of rent, 2) conduct which constitutes serious nuisance and 3) a violation of subsection (h) of C.G.S. § 47a-aa (conviction for sale of drugs). In this case, the plaintiff has not alleged any of the three exemptions as grounds for the eviction.
In Housing Authority v. Harris, 225 Conn. 660, 605, 625 A.2d 816 (1993), the court held that the notice "must be sufficient to apprise the tenant of the information the tenant needs to protect herself (himself) against premature, discriminatory or arbitrary eviction." Although not specified in the statute, the courts have interpreted the statute that the pretermination notice must contain a statement of the right to remedy the situation (i.e., the right to cure).
The plaintiff further asserts that, even if the statute requires the notice, it is not required in this case because the plaintiff has deemed the violation (the arrest) incurable.
In Housing Authority v. Martin, 95 Conn.App. 802, 813 (2006) the court stated that the statutory language of C.G.S. § 47a-15 clearly and unambiguously anticipates a situation in which a violation cannot be cured by the tenant. The plaintiff relies on this language in asserting that the defendant's arrest is incurable and therefore it is unnecessary to notify the tenant of the right to cure.
The parties agree that whether an arrest for possession of drug paraphernalia and possession of drug paraphernalia within 1,500 feet of a school is incurable is a case of first impression.
The majority of Superior Court decisions considering whether a KAPA notice must include notice of the tenant's right to cure the claimed violations have held that such notice is required, reasoning that many tenants would be unaware of their rights otherwise, thus thwarting the statutory purpose of § 47a-15. See Nathan Hale Apartments v. Mortenson, Superior Court, judicial district of Hartford, Docket No. SPN 960724513 (November 26, 1996, Beach, J.) ( 18 Conn. L. Rptr. 330); accord Housing Authority v. Curtis, Superior Court, judicial district of Danbury, Docket No. SP 05 12308 (March 27, 2006, Marano, J.) ( 41 Conn. L. Rptr. 129); Rac Family, LLC v. Wallace, Superior Court, judicial district of Middlesex, Docket No. CV 91 2569 (December 14, 2002, Clifford, J.) [ 31 Conn. L. Rptr. 128]; Housing Authority v. Young, Superior Court, judicial district of New Haven, Docket No. SP NH 94 0940795 (April 28, 1995, Jones, J.) ( 14 Conn. L. Rptr. 447); N.H. Associates v. Gregorini, Superior Court, judicial district of New Haven, Docket No. SP NH 83 033908 (June 13, 1983, Harrigan, J.); Secretary of Housing and Urban Development v. McGowan, Superior Court, judicial district of New Haven, Docket No. SP NH 8110017 (November 16, 1981, Foti, J.). While not directly considering this issue, the Appellate Court in Housing Authority v. Harris, 28 Conn.App. 684, 691, 611 A.2d 934 (1992), concluded that "the defendant's conduct did not constitute a serious nuisance as defined by General Statutes [§ ] 47a-15 and, thus, the plaintiff was not relieved of its obligation to notify the defendant, in its notice to quit, of the acts or omissions forming the basis of the termination and that she was entitled to twenty-one days in which to rectify the violation." (Emphasis added.) Therefore, generally, a landlord must inform a tenant of the right to cure any purported violations in its KAPA notice.
In Housing Authority v. Curtis, 41 Conn. L. Rptr. 129, (March 27, 2006), the court was presented with a situation similar to the present one. In that case, the plaintiff landlord sought to evict the tenant after the tenant had been arrested for risk of injury to a minor and delivery of alcohol and tobacco to a minor. The court first determined that the violation of a lease provision prohibiting "drug related and other criminal activity" was a curable defect, reasoning that in order to "repair" or remedy the violation the tenant need only not repeat his violation, citing Casa Verde Sur v. Laureano, Superior Court, judicial district of Hartford, Docket No. SP 85 0528460 (September 20, 1985, Goldstein, J.) ("There must be a repeat offense to allow eviction"). Housing Authority v. Curtis, supra, 41 Conn. L. Rptr. 131-32.
The court in Martin stated that the statute anticipated that some conduct was not curable. However, the court did not hold that the landlord was not required to give notice of such right. The issue before the court in Martin was whether the plaintiff had to allege in the pretermination notice that the violations continued after the period provided by statute to cure them. The court held that the plaintiff had complied with the statutory requirements concerning notice and had provided notice that was not required concerning the grievance process. The court further found that the plaintiff did not have to allege that the defendant had not cured the violation and the tenant could assert, by way of special defense, that she had cured the violation. Obviously, the landlord in its answer to the special defense could assert that the violation had not been cured and/or is not curable.
In this case, the plaintiff further relied on Bridgestone Realty Corp. v. Mendoza, 50 Conn.Sup. 125 (2006) which involved a drug arrest and Housing Authority of Meriden v. Beltran, 2007 WL 611949 (Conn.Super. 2007) [ 42 Conn. L. Rptr. 826] which involved inappropriate sexual contact. This reliance is misplaced since in each case serious nuisance was stated as one of the grounds for eviction. Additionally, in Bridgestone, the arrest involved sale of free base cocaine. Although there was no claim of a conviction for the sale of drugs, the eviction claim was for serious nuisance, and that is one of the exemptions specified in the statute.
Whether a violation is curable is not a decision for the landlord to make unilaterally, thereby providing an exemption from the requirement of providing written notice of the right to cure. Furthermore, as noted by J. Beach in Nathan Hale Apartments v. Mortenson, (November 26, 1996), the landlord would be well advised to include in the KAPA notice the simple language of the right to remedy the violation. It is not up to the landlord to determine which violations are curable and which are not. Including the notice is not an undue burden for the plaintiff. In a case where the plaintiff is not seeking to evict based on serious nuisance, an arrest, unlike a conviction for sale of drugs, (which is specifically exempt) is not sufficient for the plaintiff to determine that there is an exemption from the notice requirement. In this case, the notice is a mandatory prerequisite to the bringing of this summary process action unless exempt by statute.
CONCLUSION
"The failure to comply with the statutory requirements deprives a court of jurisdiction." Bridgeport v. Barbour-Daniel Electronics, Inc., 209 Conn. 826, 16 Conn.App. 574, 582, 548 A.2d 744 cert. denied, 209 Conn. 86.
In this case, where the ground for eviction is violation of the lease and the conduct is not specified as incurable or exempt, the plaintiff is required to include notice to the defendant of the right to remedy the breach. In this case, the conduct was an arrest for possession of drug paraphernalia and possession of drug paraphernalia within 1,500 feet of a school. Therefore, the notice is required.
Accordingly, the Motion to Dismiss is granted.