Opinion
No. SPNH 9804-54417
April 28, 1998
MEMORANDUM OF DECISION
This is a summary process action based on nonpayment of rent. The material allegations of the complaint were admitted. The defendant has alleged that no rent was due because of damages within the apartment, some of which existed when she leased the apartment in February, 1998. On March 5, 1998, the following housing code violations were found: cracked walls in bathroom; holes in kitchen wall which wall needed painting; inoperative electrical outlet in middle bedroom; need to provide adequate hardware for front of bedroom door; cracked glass in living room window.
These violations were corrected by the plaintiff within a month.
A tenant's right to withhold rent "is not automatic once he has alleged a breach of the landlord's statutory duty. . . . [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'; Tucker v. Lopez, 38 Conn. Sup. 67, 69, 457 A.2d 666 (1982); or has rendered the premises `uninhabitable.' Steinegger v. Rosario, 35 Conn. Sup. 151, 156, 402 A.2d 1 (1979). Furthermore, to 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, 16 Conn. App. 444, 450, 547 A.2d 935 (1988)." [T]he sanctions in these sections 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[.]' P. Marzinotto, Connecticut Summary Process Manual, p. 118, citing Evergreen Corporation v. Brown, supra; Arroyo v. Fernandez, Superior Court, judicial district of Waterbury, Housing Session, Docket No. SPWA-00076 (December 9, 1982)." Id., 450-451. "To be successful a tenant must demonstrate actual and serious deprivation of the use contemplated by the parties to the ease.'" Gayle v. Young, Superior Court, judicial district of Fairfield, Housing Session, No. SPBR 9409-27973 (Feb. 6, 1995). "The code violations must be substantial and a serious deprivation to health and safety for those to be grounds for a rent abatement or sanctions of any sort." Id. "Whether the premises are untenantable is a question of fact for the trier, to be decided in each case after a careful consideration of the situation of the parties to the lease, the character of the premises, the use to which the tenant intends to put them, and the nature and extent by which the tenant's use of the premises is interfered with by the [conditions] claimed.' Reid v. Mills, 118 Conn. 119, 122, 171 A. 29; see Hayes v. Capitol Buick Co., [ 119 Conn. 372, 378-79, 176 A. 885 (1935)]; Tungsten Co. v. Beach, 92 Conn. 519, 524, 103 A. 632." Thomas v. Roper, 162 Conn. 343, 347, 294 A.2d 321 (1972); accord, Johnson v. Fuller, 190 Conn. 552, 556-57, 461 A.2d 988 (1983).
The defendant failed to sustain this burden of proof. Judgment may enter for the plaintiff.
General Statutes § 47a-7 provides: " Landlord's responsibilities. (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. "(b) If any provision of any municipal ordinance, building code or fire code requires a greater duty of the landlord than is imposed under subsection (a) of this section, then such provision of such ordinance or code shall take precedence over the provision requiring such lesser duty in said subsection. "(c) The landlord and tenant of a single-family residence may agree in writing that the tenant perform the landlord's duties specified in subdivisions (5) and (6) of subsection (a) and also specified repairs, maintenance tasks, alterations, or remodeling, provided the transaction is entered into in good faith and not for the purpose of evading the obligations of the landlord. "(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 into 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." The plaintiff is admonished that she may not circumvent the requirements of this law by leasing a dwelling unit "as is."