Opinion
No. NBSP-052634
March 16, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff, Gale Fandacone, trustee of the Fandacone Family Trust, has brought this summary process action seeking to regain possession of the premises known as 93-95 East Robbins Avenue, Newington, Connecticut from the defendant, Marc Fandacone. The defendant has moved to dismiss the complaint on several grounds and the plaintiff has filed her objection thereto. Both parties filed lengthy memoranda and supplemental memoranda of law in support of their arguments. The plaintiff and defendant were represented by counsel at the hearing on the motion.
Factual Background
By trust instrument dated July 24, 2003, the plaintiff and her late husband, Nicholas P. Fandacone, created a trust known as The Fandacone Family Trust (the "Trust"). For purposes of the hearing on the motion to dismiss and objection, the plaintiff submitted a copy of the Trust which, by agreement of the parties, was admitted as a full exhibit. (Plaintiff's Exhibit 1). The plaintiff and her husband were initially designated as co-trustees of the Trust. Upon Nicholas Fandacone's death in 2004, the plaintiff became the sole trustee of the Trust. The defendant is the plaintiff's son and resides at the subject premises. The beneficiaries named in the Trust are the plaintiff, the defendant, Nicholas P. Fandacone II, John A. Fandacone, Joseph W. Fandacone and Michael A. Fandacone. It is not disputed that the plaintiff holds legal title to the subject premises in her capacity as trustee of the Trust.
Legal Standard
Practice Book § 10-31 provides in relevant part: "(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter. . . ." See also St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "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.) State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001). In this regard the court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegation, construing them in a manner most favorable to the pleader. Filippi v. Sullivan, 273 Conn. 1, 8 (2005).
PROCEDURAL BACKGROUND
The plaintiff served the defendant with a notice to quit on June 11, 2009. The plaintiffs notice to quit directed the defendant to surrender possession on or before June 30, 2009 for the following reasons: "non payment of rent for June, 2009, lapse of time, one who never had a right or privilege to occupy and or when one originally had the right or privilege to occupy but such right or privilege has terminated."
The defendant has moved to dismiss the action on three grounds. The first ground asserted by the defendant is that the court lacks jurisdiction because the defendant, as a beneficiary of the Trust, is a co-owner of the premises with the plaintiff and a plaintiff may not maintain a summary process action against a co-owner. The second ground for dismissal raised by the defendant is his claim that the summary process action may not be maintained against a trust beneficiary "because the relationship between the parties is not one of landlord and tenant." The third ground for dismissal is the defendant's claim that the plaintiff lacks standing to maintain this action "because of the lack of unanimity of interest."
I The First Ground To Dismiss (The defendant is an owner within the meaning of Connecticut General Statutes § 47a-l(e))
The defendant argues that the plaintiff and defendant are both owners of the subject premises within the meaning of Connecticut General Statutes § 47a-1(e) and therefore the plaintiff lacks standing. Section 47a-1 (e) defines an owner as "one or more persons, jointly or severally, in whom is vested (1) all or part of the legal title to property or (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises and includes a mortgagee in possession." The defendant argues that he is entitled to beneficial ownership of the premises, bringing him within the definition of "owner" provided by General Statutes § 47a-1 (e) (2) ("owner" includes one in whom is vested "all or part of the beneficial ownership and a right to present use and enjoyment of the premises").
In the memorandum of law in support of his motion, the defendant cites Long v. Fredericks, Superior Court, judicial district of Hartford, Housing Session, Hartford, Docket No. HDSP-105504, January 12, 2000 ( Tanzer, J.). Long involved a summary process action between siblings both of whom held equal legal interests in the title to the subject premises as a result of title having passed to them by the laws if intestacy. The court finds Long to be distinguishable from the present matter where legal title to the premises is held solely by the plaintiff Trustee. The defendant also cites another Superior Court case, Sekeret v. Zdanis, Superior Court of Litchfield, Geographic Area 18 at Bantam, Docket No. DV 187692, (April 19, 2001, Matasavage, J.). In Sekeret, the defendant transferred title to a building lot he owned to a trust and named the plaintiff as trustee. Subsequently, the defendant and the plaintiff constructed a home on the lot for their mutual use, in which they lived for seven years. In Sekeret, the court interpreted the terms of the trust as having provided for equal ownership and occupancy by the parties and the plaintiff trustee's summary process action was dismissed. The court finds Sekeret to be distinguishable from the present case and not supportive of the defendant's argument.
The defendant further relies on Bender v. Nuzzo, Superior Court, Judicial District of New Haven, Housing Session, Docket No. SPNH 9607 47892, (July 10, 1997, Levin, J.) in support of his argument that the defendant is a beneficial "owner" of the premises. In Bender, the court, having apparently found no controlling Connecticut case law, drew on Montana Catholic Missions v. Missoula County, 200 U.S. 118, 127-128, 26 S. Ct. 197, 50 13.Ed. 398 (1906); and Christiansen v. Department of Social Security, 15 Wash.2d 465, 131 P.2d 189, 191 (1942) to conclude that "With respect to the second part of the statutory definition of `owner' dealing with beneficial ownership, it has long been said that the term, in property law, means `such a right to its enjoyment as exists where the legal title is in one person and the right to such beneficial use or interest is in another, and where such right is recognized by law, and can be enforced by the courts, at the suit of such owner or of some one in his behalf." Bender v. Nuzzo, supra.
The defendant's argument, however, overlooks the fact that although he may have a beneficial interest in the Trust (and indirectly whatever assets are held in the Trust from time to time), there has been no showing that he has any right to the present use and enjoyment of the premises, under the terms of the Trust or otherwise. The defendant has merely shown that he occupies the premises. "Beneficial use" has been defined as "[t]he right to use and enjoy property according to one's own liking or so as to derive a profit or benefit from it, including all that makes it desirable or habitable, as light, air, and access; as distinguished from a mere right of occupancy or possession." Black's Law Dictionary (6th Ed. 1990).
"The term [`owner'] is . . . a nomen generalissimum a `term of the most general meaning' or `of the most general kind' — and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied." Dole Food Co. v. Patrickson, 538 U. S. 468, 482, 123 S.Ct. 1655, 155 L. Ed. 2d 643 (2003) (Breyer J., concurring in part and dissenting in part). The words "own" and "ownership" are not technical terms or terms of art but common terms, the precise legal meaning of which depends upon the context in which they appear. Id., 481. See also 73 C. J. S. 43, § 40, (2004). (Term owner has no rigid meaning and may not be the same under all the circumstances).
The court finds a recent decision of our Appellate Court to be helpful to the resolution of the issue. In Scott v. Heinonen, 118 Conn. App. 577, 578-79, 985 A.2d 358 (2009), the plaintiff executor sought, by summary process, to regain possession of premises specifically devised in equal shares to the defendant tenant and his brother. The defendant, who was the sole occupant of the premises, challenged the court's subject jurisdiction on the basis that the plaintiff executor lacked the power to evict him since the plaintiff executor was not an "owner" of the premises as required by § 47a-1 (e). Scott v. Heinonen, supra, 581.
Although the Court found that the executor did not meet the definition of an owner, it found that the trial court had subject matter jurisdiction and that the fiduciary was empowered to maintain the summary process on behalf of the estate. "We conclude that the plaintiff, as the legal representative of the owner estate, is in compliance with the provisions of [General Statutes] § 47a-23 (a) (3), and, therefore, this summary process action was properly before the Superior Court. As executor, the plaintiff acts as the fiduciary and legal representative of the estate, which in turn holds legal title to the property and, therefore, maintains ownership. As such, we conclude that because legal title to the property rests with the estate of the decedent, it is well within the executor's power, under his statutory and fiduciary duty to manage the decedent's real property, to maintain a summary process action on behalf of the estate." Scott v. Heinonen, supra 587-88.
The Court's decision in Scott turned, in part, on its obligation to read the applicable summary process statutes so as not to "yield absurd or unworkable results." Id. 580. The court concluded that to accept the defendant's argument would "create an entirely illogical precedent. . . ." Id., 585. "We agree with the plaintiff that such a result would provide specific devisees with an incentive to obstruct an executor's efforts to sell property because the devisee could take exclusive possession without any of the responsibilities attendant to ownership." Id. 585.
The plaintiff further argues that the defendant has no beneficial interest in the premises since the premises have been allocated to a "Sub Trust" A. The plaintiff claims that under the terms of the Trust, the defendant has no interest in Sub Trust A but merely a contingent interest in Sub Trusts B and C. The plaintiff also asserts that the Trust is revocable and the defendant is not a beneficiary but a "contingent" beneficiary. Our Supreme Court has held that the beneficiary of a revocable trust does not have a vested property interest, but rather mere expectancy, until the death of the settlor renders the trust irrevocable. See Bartlett v. Bartlett, 220 Conn. 372, 376-77, 599 A.2d 14 (1991); see also Bezzini v. Dept. of Social Services, 49 Conn. App. 432, 440, 715 A.2d 791 (1998).
Moreover, even if the defendant is found to be a vested beneficiary of the Trust, he would have no ownership interest in the individual assets of the Trust, including the subject premises. "A trust beneficiary has no legal title or ownership interest in the trust assets; his or her right to sue is ordinarily limited to the enforcement of the trust, according to its terms." Naier v. Beckenstein, Superior Court, judicial district of Hartford, Docket No. CV 07 5014236 (May 15, 2008, McWeeny, J.), and Owusu v. Owusu, Superior Court, judicial district of Hartford, Docket No. FA 07 4028694 (Feb. 14, 2008, Abery-Wetstone, J.).
A determination of the status of the defendant and whether the premises are held in a trust or sub-trust in which the defendant has any beneficial interest must be determined on the basis of testimonial and documentary evidence offered by the parties at trial.
The court finds that the defendant's first ground to dismiss the action is unfounded.
II The Second Ground to Dismiss (The relationship between the parties is not one of landlord and tenant)
The defendant asserts that the plaintiff can not maintain the action because no landlord tenant_relationship exists between the parties. The defendant cites Chomko v. Patmon, 19 Conn. App. 483, 563 A.2d 311, cert. denied, 212 Conn. 819 (1989), Yarborough v. Demirjian, 17 Conn. App. 1, cert denied, 209 Conn. 828 (1988), Logan v. Carrington Publishing Co., 16 Conn. Sup. 46 (1948) and Sekeret v. Zdanis, supra, in support of its argument that a summary process action requires the existence of a landlord-tenant relationship.
In Chomko v. Patman, supra, 19 Conn. App. 485, the plaintiff brought a summary process action to recover possession of the plaintiffs condominium unit that was the subject of a bond for deed which provided for the sale of the condominium to the defendant. Rather than reading the dicta in Chomko as requiring an initial finding of the existence of a landlord tenant relationship in every summary process action as the defendant would have the court do, this court reads Chomko as finding, on the facts of that case, that the parties had entered into a contractual relationship which was more appropriately viewed and construed as an agreement to purchase real estate rather than a landlord — tenant relationship.
In Yarbrough v. Demirjian, supra, 17 Conn. App. 2, the parties had executed a bond for deed for the sale of the plaintiff's premises to the defendant. While the closing never took place, the defendant took occupancy some three years later and began paying the plaintiff's mortgage, interest and taxes. Id. In Yarbrough, the Appellate Court sustained the trial court's finding that the plaintiff's summary process action was proper under the facts and circumstances presented in that case. Id., 3-4. This court does not read Yarbrough as requiring a landlord-tenant relationship in a summary process action.
Section 47a-23 (a) (2) authorizes a summary process action in the absence of a landlord tenant relationship where the plaintiff brings the action against an occupant "who never had a right or privilege to occupy such premises." . . . The defendant argues in his memorandum of law that the "never had a right or privilege to occupy" grounds set forth in § 47a-23 (a) (2) is "an" exception to the requirement of a landlord-tenant relationship but a "very specific one." The court does not agree with the implication in the defendant's argument.
Section 47a-23 sets forth the grounds for the commencement of summary process actions. In the case where a rental agreement or lease exists, subdivision (1) of subsection (a) of § 47a-23 provides in relevant part: "(1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83; (E) nonpayment of rent when due for commercial property; (F) violation of section 47a-11 or subsection (b) of section 21-82; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80." . . . Subdivision (2) of subsection (a) of § 47a-23 authorizes a summary process action to be brought "when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises." (Emphasis added). Subdivision (3) of subsection (a) of § 47a-23 authorizes a summary process action to be brought "when one originally had the right or privilege to occupy such premises but such right or privilege has terminated." (Emphasis added). Subdivision (4) of subsection (a) of § 47a-23 authorizes a summary process action "when an action of summary process or other action to dispossess a tenant is authorized under subsection (b) of section 47a-23c for any of the following reasons: (A) Refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of section 47a-23c, (B) permanent removal by the landlord of the dwelling unit of such tenant from the housing market, or (C) bona fide intention by the landlord to use such dwelling unit as such landlord's principal residence." (Emphasis added). Subdivision (5) of subsection (a) of § 47a-23 authorizes a summary process action "when a farm employee, as described in section 47a-30, or a domestic servant, caretaker, manager or other employee, as described in subsection (b) of section 47a-36, occupies such premises furnished by the employer and fails to vacate such premises after employment is terminated by such employee or the employer or after such employee fails to report for employment, such owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy."
In setting forth the grounds for the commencement of summary process actions, § 47a-23 differentiates between the terms "tenant" and "one" and clearly permits summary process actions absent a landlord-tenant relationship in situations other than § 47a-23 (a) (2). Subdivision (3) of subsection (a) of § 47a-23, like subdivision (2) of subsection (a), makes no reference to a landlord — tenant relationship. To the contrary, subdivisions (2) and (3) of subsection (a) use the word "one" in contrast to subdivision (1) of subsection (a) which requires a rental agreement (and perforce a landlord-tenant relationship) and subdivision (4) of subsection (a) which permits summary process actions against "tenants." Moreover, § 47a-23 (a) (5), by its express terms, permits summary process actions against employees and other employment related parties, all without the requirement of a landlord-tenant relationship.
The court finds nothing in the additional cases cited by the defendant which would support the defendant's argument that, with the limited exception of § 47a-23 (a) (2), it is essential that the court find the existence of a landlord-tenant relationship as an absolute requirement to its jurisdiction.
The court rejects the defendant's second ground to dismiss the action.
III The Third Ground to Dismiss (The Plaintiff Lacks Standing)
The defendant's third claim for dismissal is that the plaintiff lacks standing to maintain this action "because of the lack of unanimity of interest." The essence of the defendant's argument is that "both the plaintiff and defendant are owners within the meaning of Conn. Gen. Stat. 47a-1 (e), as are the other beneficiaries of the Fandacone Family Trust," the "failure to include all of the owners of the subject premises in the issuance of the Notice to Quit renders the Notice to Quit improper and deprives the court of subject matter jurisdiction."
The defendant points out that there is no controlling appellate authority on the question of whether all "owners" must join in a summary process action and that the judges of the Superior Court have expressed different views concerning this requirement. The court does not need to address the issue for the following reasons.
In a trust the trustee has legal title to the res of the trust. See A. Hess G. Bogert, Trusts and Trustees (3d Ed. 2007) § 1, p. 7; see also B.A. Ballou Co. v. Citytrust, 218 Conn. 749, 753 n. 2, 591 A.2d 126 (1991). "The trustee is the legal owner of trust property, and as such the trustee is the proper party for actions affecting title to trust property." 76 Am. Jur. 2d 640, Trusts § 611. A trustee is a necessary party to assert or defend title to trust property. Id. § 609. "[A]s a general rule, the trustee is [the] proper person to sue or be sued on behalf of a trust." Id., p. 636, § 606. "The trustee's standing to sue arises out of its legal title to the res. . . . The trustee has a title . . . to the trust property, usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct. Although the beneficiary is adversely affected by such acts of a third party, no cause of action inures to him on that account." (Citation omitted; internal quotation marks omitted.) Second Exeter Corp. V. Epstein, 5 Conn. App. 427, 429-30 (1985), cert. Denied, 198 Conn. 1802, 502 A.2d 932 (1986).
Although the defendant and his siblings are all beneficiaries of the Trust, the plaintiff holds legal title to the premises as trustee of the Trust. "The person who has right to file suit under the substantive law generally is the real party in interest. At common law, where a cause of action is prosecuted on behalf of an express trust, the trustee is the real party of interest because the trustee has legal title to the cause. The corollary to this rule is that the beneficiary of a trust generally is not the real party in interest and may not sue in the name of the trust." Owusu v. Owusu, supra, Docket No. FA 07 4028694 and Naier v. Beckenstein, supra, Docket No. CV 07 501436.
For the foregoing reasons, the defendant's motion to dismiss is denied.