Opinion
HNSP118955
11-18-2015
Carabetta Management Co. v. Shartarra Penn et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Ecker, M.D., J.
Defendant Shartarra Penn has moved to dismiss this summary process action on the ground that the Notice to Quit issued by plaintiff was defective, and thus deprives this court of subject matter jurisdiction. See, e.g., Lampasona v. Jacobs, 209 Conn. 724, 728-29, 553 A.2d 175 (1989). The housing at issue is subsidized under Section 8 of the federal Housing Act of 1937, as amended, and therefore the notice requirements governing proper termination of a residential lease under Connecticut law, found in General Statutes § 47a-23, are modified by various additional notice requirements, substantive and procedural, mandated by federal law. Plaintiff attempted to satisfy the demands of both federal and state law using a single termination notice, in what is sometimes called a " combined" notice to quit. The question here is whether that effort succeeded. The court finds that the notice passes muster, and denies the motion to dismiss.
The specific federal requirements will vary somewhat depending on which particular Section 8 program is involved. See Presidential Village, LLC v. Perkins, No. NHSP 118752, 2015 WL 6499333, at n.3 (Super.Ct. September 25, 2015) (reviewing various Section 8 programs and corresponding termination regulations).
The interrelationship between federal and state notice requirements in this context have caused confusion and difficulty over the years. See. e.g., Glastonbury Housing Authority v. Standish, No. SPH-96142, 1998 WL 246559 (Super.Ct. May 11, 1998) (Beach, J., describing these problems from historical perspective as of 1998) . Most of the difficulties have stemmed from the interaction of the following three legal imperatives:
1. Federal law governing Section 8 requires, among other things, that a termination notice inform the tenant (a) that the tenancy is terminated on a specified date in the future, and (b) that the tenant has a period of time (usually ten days from receipt of the notice) within which to cure the alleged noncompliance and thereby prevent lease termination and avoid eviction proceedings;
2. Connecticut law requires that the termination of a tenancy, to be legally effective, must be expressed in definite and unequivocal terms;
3. Connecticut law provides that (a) the landlord's acceptance of " rent" after termination of the tenancy will reinstate the tenancy, and (b) the landlord can avoid this consequence by using a " use and occupancy" admonition/disclaimer.
See " HUD Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Housing Programs, " ¶ 8-13.B.2.e(4) (Revision 1, November 2013) (" HUD Handbook") (termination notice must " [a]dvise the tenant that he/she has 10 days within which to discuss termination of tenancy with the owner. The 10-day period begins on the day that the notice is deemed effective . . .") (emphasis in original). In addition, paragraph 23 of the parties' lease requires the landlord to give written notice of any " proposed" termination, and also provides that any such notice must " advise the tenant that he/she has ten days within which to discuss the proposed termination of tenancy with the Landlord." The purpose of this ten-day period is understood to give the tenant an opportunity either to cure the underlying noncompliance or seek correction of an error by the landlord that may have caused a mistaken effort to terminate.
See Sandrew v. Pequot Drug, Inc., 4 Conn.App. 627, 630-31, 495 A.2d 1127 (1985) (" In order to effect a termination, the lessor must perform some unequivocal act which clearly demonstrates his intent to terminate the lease"); see also Centrix Management Co. v. Valencia, 132 Conn.App. 582, 587-88, 33 A.3d 802 (2011) (discussing equivocation doctrine). Compare Fairway Gardens, Inc. v. May, No. SPNH 9009-26218, 1990 WL 261978 (Super.Ct. October 20, 1990) (Vertefeuille, J.) (holding that " combined" notice to quit, which included both the federal right-to-cure language and a definitive quit date as required by Connecticut law, was rendered " equivocal" and invalid because of internal inconsistency) with Intown Management Corp. v. Knowling, No SPH 9104-59921, 1991 WL 204891, at *4 (Super.Ct. August 12, 1991) (Berger, J.) (reaching opposite conclusion).
The " use and occupancy" admonition is a cautionary warning that many landlords include in their notice to quit to advise the terminated tenant that payments made after a specified date will be accepted by the landlord for use and occupancy only, and not as rent. See, e.g., O& P Realty Co. v. Santana, 17 Conn.App. 314, 318-19, 551 A.2d 1287 (1989) (explaining and approving practice); Zitomer v. Palmer, 38 Conn.Supp. 341, 343, 446 A.2d 1084 (App.Sess. 1982) (approving use of admonition). See also General Statutes § 47a-23(e) (statutory provision, enacted in 1993, which prescribes specific language for valid " use and occupancy" admonition for use in combined federal/state notice). By including a proper admonition in a notice to quit, the landlord is able to accept post-termination payments without losing the ability to continue with the eviction. As explained below, notwithstanding the legislature's attempt in 1993 to harmonize the requirements of federal and state law in this regard, pitfalls still remain for Section 8 landlords who wish to avoid equivocation. See e.g., SOC Group II LP v. Reyes, HDSP-132553, 2005 WL 2143713 (Super.Ct. September 2, 2005) (Dos Santos, J.) ((holding that landlord's notice was rendered equivocal by including, in the same notice, both the right-to-cure language and a use-and-occupancy admonition); First Baptist Housing of Bridgeport, Inc. v. Boager, No. SPBR94-11-283921995 WL 118802, at *6 (Super.Ct. February 21, 1995) (Tierney, J.) (same);
A review of the superior court cases cited in footnotes 3 and 4 above (and numerous other cases) demonstrates that courts have struggled to harmonize these joint federal-state demands, especially in the context of " combined" notices that attempt simultaneously to (1) set definitive " proposed" termination dates, (2) provide notice of forward-looking cure opportunities or hearing rights, and (3) include use and occupancy admonitions that will not inadvertently equivocate the notice. No direct appellate guidance exists with respect to these problem areas. The Connecticut legislature in 1973 attempted to provide assistance in this context by amending the notice-to-quit statute for the express purpose of creating a safe harbor that would allow Section 8 landlords to satisfy both federal and state requirements using a combined notice to quit. See P.A. 93-209, codified at General Statutes § 47a-23(e). That provision states:
A termination notice required pursuant to federal law and regulations may be included in or combined with the notice required pursuant to this section and such inclusion or combination does not thereby render the notice required pursuant to this section equivocal, provided the rental agreement or lease shall not terminate until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of completion of the pretermination process, whichever is later. A use and occupancy disclaimer may be included in or combined with such notice, provided that such disclaimer does not take effect until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of the completion of the pretermination process, whichever is later. Such inclusion or combination does not thereby render the notice required pursuant to this section equivocal. Such disclaimer shall be in substantially the following form: Any payments tendered after the date specified to quit possession or occupancy, or the date of the completion of the pretermination process if that is later, will be accepted for use and occupancy only and not or rent, with full reservation of rights to continue with the eviction action.
Unfortunately, difficulties remain, especially with respect to poorly drafted communications from landlords to tenants having the unintended effect of " equivocating" a termination notice and thereby reinstating the tenancy. See, e.g., SOC Group II LP v. Reyes, supra, 2005 WL 2143713; Glastonbury Housing Authority v. Standish, supra, 1998 WL 246559, at *2 (Beach, J., describing the " wrinkles" that remain even after enactment of P.A. 93-209); First Baptist Housing of Bridgeport, Inc. v. Boager, supra, 1995 WL 118802, at *6; see also Housing Authority v. Melton, No. NHSP-118698 (Super.Ct. April 13, 2015) (Ecker, J.) (" community service letter" sent by landlord rendered equivocal a prior termination notice).
Courts deciding these cases must exercise caution to avoid the " hypertechnical dissection of the wording of the notices that [the Section 8 landlord] has sent, " Jefferson Garden Associates v. Greene, 202 Conn. 128, 145, 520 A.2d 173 (1987). At the same time, however, courts cannot ignore critical linguistic and doctrinal distinctions in housing law--especially the distinction between " rent" (which is paid by a " tenant" under a " lease") versus " use and occupancy" (which is paid by a possessor without an operative lease). These different words carry very important legal significance for landlords and tenants alike. See, e.g., Presidential Village, LLC v. Perkins, supra, 2015 WL 6499333, at *5. Landlords who choose their words carefully can take advantage of the rent/use-and-occupancy distinction. Fairness requires that courts impose upon those same landlords the corresponding disadvantages that will result from their careless use of these same words--particularly because the landlords are the ones choosing the words. See Housing Authority v. Melton, supra, No. NHSP-118698 (" The [Section 8] landlord will need to choose its words carefully in such circumstances, but the burden is not an onerous one, nor is it particularly unusual in this area to require parties to use language with precision--the difference between calling a payment 'rent' instead of 'use and occupancy' can make all of the difference in the world . . . The equivocation may have been inadvertent on the part of the [landlord], but it occurred, and the [post-termination communication at issue] would have created a reasonable doubt in the mind of a reasonable tenant as to whether the lease had, in fact, been terminated").
Turning to the facts in the present case, the court's opinion is that the landlord's notice satisfies the requirements of both federal and state law. Plaintiff here used a " combined notice, " addressed to defendants and served on February 6, 2015. It states as follows:
NOTICE TO QUIT POSSESSION
Carabetta Management Co. hereby gives you notice that you are to quit possession of the premises now occupied by you at 222 Day Street, New Haven, Connecticut on or before midnight of February 18, 2015. (" Quit Date.") Your lease will terminate on February 19, 2015. (" Lease Termination Date.") Carabetta Management Co.'s reasons are as follows:
Nonpayment of rent--the amount owed as of January 31, 2015 is $655.00
Any payments tendered after the date specified to quit possession or occupancy, or the date of the completion of the pretermination process if that is later, will be accepted for use and occupancy only and not for rent, with full reservation of rights to continue with the eviction action. You have ten (10) calendar days beginning upon the service of this Notice, within which to discuss the proposed termination of your tenancy with Carabetta Management Co. c/o Bella Vista Apartments, 339 Eastern Street, New Haven, CT 06513 ((203) 468-5077). If you are disabled, you have the right to request reasonable accommodations to participate in the hearing process.
If you do not voluntarily vacate the premises on or before the termination date, it is Carabetta Management Co.'s intention to commence eviction proceedings against you to recover possession of the premises. In the event that such an eviction proceeding is commenced you will receive notice and be given an opportunity to present a defense in court.
Dated at West Hartford, Connecticut, on February 5, 2015.
Carabetta Management Co.
Defendant argues that this notice is equivocal in two respects. First, she argues that the notice sets forth a definite and specific Quit Date (February 18, 2015), but then equivocates by referring to a proposed termination and offering the possibility of further discussions and a pretermination process which may occur later than the specified Quit Date. Second, defendant contends that the notice contains a use and occupancy admonition that renders the notice equivocal by stating or implying that future payments will be accepted as " rent" after the Quit Date if the " pretermination process" is not yet completed at that time.
It is certainly true that there are numerous moving parts to plaintiff's combined notice, and it seems quite possible that a tenant untrained in the law, after reading the notice, would be left with questions about certain aspects of the termination/eviction process. Specifically, the landlord's invitation to discuss the proposed termination within the next ten days may cast doubt on the certitude of its statement that the lease terminates on February 19, 2015; similarly, the clause in the use and occupancy admonition referring to " the date of the pretermination process if that is later" is unelaborated and unexplained. But these components of the notice were not included at the whim of the landlord, nor is the particular language used by the landlord the result of intentional obfuscation or sloppy drafting. To the contrary, the portions of the notice that defendant complains about are either legally mandated or explicitly permitted by law. Thus, both federal and state law mandate that the notice include a specific termination date. See 24 CFR 247.4(a)(1) (requiring the written termination notice to " [s]tate that the tenancy is terminated on a date specified therein"); General Statutes § 47a-23(b) (prescribing termination language). Likewise, applicable federal law mandates that the tenant be notified of an opportunity to cure the default within ten days, see n.2 above. With respect to the use and occupancy admonition, General Statutes 47a-23(e) expressly provides that a combined federal/state notice properly may include this admonition (" disclaimer") using exactly the language employed by plaintiff in its notice. Subsection 47a-23(e) explicitly states that such a disclaimer, if included, " does not thereby render the notice required pursuant to this section equivocal."
Other cure periods and pre-termination hearing requirements, both federal and state, apply in other contexts; the ten-day cure period is applicable here because the termination is based solely on nonpayment of rent. ---------
Defendant's claim of equivocation cannot be credited under these circumstances. The motion to dismiss is denied.
but see Fairmount Heights Associates, L.P. v. Phiffer, No. SPWA 970618153, 1997 WL 630005 (Super.Ct. September 24, 1997) (Levin, J.) (reaching opposite conclusion).