Opinion
No. HCN-9907-026 B.R.
January 26, 2000 Filed January 31, 2000
MEMORANDUM OF DECISION
This matter is before the court for a housing code enforcement hearing pursuant to General Statutes § 47a-14h which provides a method by which a tenant may compel his landlord to perform his legal duties under General Statutes § 47a-7.Visco v. Cody, 16 Conn. App. 444, 449 (1988). Known as the "payment of rent into court" statute, Section 47a-14h requires a tenant to deposit with the clerk of the Superior Court an amount equal to the agreed-upon rent after the date a complaint under that section is filed. General Statutes § 47a-14.
Sec. 47a-14h. Action by individual tenant to enforce landlord's responsibilities. Payment of rent into court.
(a) Any tenant who claims that his landlord has failed to perform his legal duties, as required by section 47a-7 or subdivisions (1) to (13), inclusive, of subsection (a) of section 21-82, may institute an action in the superior court having jurisdiction over housing matters in the judicial district in which he resides to obtain the relief authorized by this section and sections 47a-20 and 47a-68. No tenant may institute an action under this section if a valid notice to quit possession or occupancy based upon nonpayment of rent has been served on him prior to his institution of an action under this section or if a valid notice to quit possession or occupancy based on any other ground has been served on him prior to his making the complaint to the agency referred to in subsection (b) of this section, provided any such notice to quit is still effective.
(b) The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of section 47a-7; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. The complaint shall also allege that at least twenty-one days prior to the date CT Page 1425-l on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have been violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance. In the case of a mobile manufactured home located in a mobile manufactured home park, such complaint may be made to the Commissioner of Consumer Protection. The entry fee shall be twenty-five dollars, which may be waived in accordance with section 52-259b. Such entry fee shall be a taxable cost of the action. If, on the same day, more than one tenant from the same building or complex institutes an action under this section and pays the entry fee for such action, unless such fee is waived, the actions shall be treated as a single action. No recognizance or bond shall be required.
(c) Upon receipt of the complaint, the clerk shall promptly set the matter down for hearing to be held not more than fourteen days after the filing of the complaint or the return of service, whichever is later, and shall cause a copy of the complaint and the notice of the action to be sent separately by certified mail, return receipt requested, to (1) each landlord named in the complaint and (2) the director of the municipal or state agency to which the tenant has alleged, pursuant to subsection (b) of this section, that a complaint concerning the premises has been made. At such hearing, the agency notified pursuant to subdivision (2) of this subsection shall submit to the court the inspection report prepared as a result of the complaint made by the tenant.
(d) If proof of service is not returned to the clerk, the complaint shall be served by the plaintiff in accordance with section 52-57.
(e) The complainant may seek and the court may order interim or final relief including, but not limited to, the following: (1) An order compelling the landlord to comply with his duties under CT Page 1425-m local, state or federal law; (2) an order appointing a receiver to collect rent or to correct conditions in the property which violate local, state or federal law; (3) an order staying other proceedings concerning the same property; (4) an award of money damages, which may include a retroactive abatement of rent paid pursuant to subsection (h) of this section; and (5) such other relief in law or equity as the court may deem proper. If the court orders a retroactive abatement of rent pursuant to subdivision (4) of this subsection and all or a portion of the tenant's rent was deposited with the court pursuant to subsection (h) by a housing authority, municipality, state agency or similar entity, any rent ordered to be returned shall be returned to the tenant and such entity in proportion to the amount of rent each deposited with the court pursuant to subsection (h).
(f) The landlord, by counterclaim, may request and the court may issue an order compelling the tenant to comply with his duties under section 47a-11.
(g) The court, in ordering interim or final relief, may order that accrued payments of rent or use and occupancy held by the clerk be used for the repair of the building or be distributed in accordance with the rights of the parties.
(h) On each rent due date on or after the date when the complaint is filed with the clerk of the court, or within ten days thereof, the tenant shall deposit with the clerk of the court an amount equal to the last agreed-upon rent. If all or a portion of the tenant's rent is being paid to the landlord by a housing authority, municipality, state agency or similar entity, this requirement shall be satisfied if the tenant deposits an amount equal to his portion of the last agreed-upon rent with the clerk. The court may make such entity a party to the action. The clerk shall accept such payment of rent and shall provide the tenant with a receipt. Payment to the clerk shall, for all purposes, be the equivalent of having made payment to the landlord himself No landlord may maintain an action against a tenant to recover possession for nonpayment of rent if an amount equal to the rent due has been received by the clerk. When the CT Page 1425-m complaint and notice of the action are served pursuant to subsection (c) or (d) of this section, the clerk shall promptly notify the landlord of the receipt of any such payment and of the prohibition against maintaining an action to recover possession for nonpayment of rent. If the complainant fails to make such payment of rent, the court may, after proper notice, upon its own motion or upon motion by the landlord, dismiss the complaint.
(i) The landlord may, at any time, move for the termination of payment into court and the clerk shall promptly schedule a hearing on such motion. If the court finds that the violations of section 47a-7 have been corrected, it shall enter a judgment with respect to the rights and obligations of the parties in the action and with respect to the distribution of any money held by the clerk.
(j) Nothing in this section and sections 47a-20 and 47a-68 shall be construed to limit or restrict in any way any rights or remedies which may be available to a tenant, to the state or to a municipality under any other law.
(k) The judges of the Superior Court may, in accordance with the provisions of section 51-14, adopt rules for actions brought under this section and sections 47a-20 and 47a-68, including the promulgation of a simplified form for the bringing of such actions.
(l) For the purposes of 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, and "landlord" includes a "licensee" and an "owner" of a mobile manufactured home park, as defined in section 21-64.
Sec. 47a-7. 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 CT Page 1425-n 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 CT Page 1425-o 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.
On July 1, 1999, the plaintiffs filed this action and sought an order requiring the landlord to make repairs and an award of money damages including a retroactive abatement of rent.
Sec. 47a-4a. Effect of failure to comply with section 47a-7. A rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a-7.
At the start of this hearing, which is the first before the CT Page 1425-h court, the defendant moved to dismiss the action on the ground that it was filed after he had commenced a summary process action against the plaintiffs. A notice to quit based on lapse of time was served on the defendants on June 14, 1999. The defendants had filed a complaint with the Bristol Burlington Health District on February 9, 1999.
General Statutes § 47a-14h(a) provides in pertinent part as follows:
No tenant may institute an action under this section if a valid notice to quit possession or occupancy based upon nonpayment of rent has been served on him prior to his institution of an action under this section or if a valid notice to quit possession or occupancy based on any other ground has been served on him prior to his making the complaint to the agency referred to in subsection (b) of this section, provided any such notice to quit is still effective.
The statute is clear. A housing code enforcement action may not be instituted after service on the tenant of a notice to quit based upon nonpayment of rent, but such an action may be instituted after service of a notice to quit based upon any ground other than nonpayment if the tenant has already made a complaint to a code enforcement agency designated in General Statutes § 47a-14h(b). The notice to quit served upon these plaintiffs was not based upon nonpayment of rent and was not served prior to their making a complaint to the Bristol Burlington Health District. Accordingly, the motion to dismiss was denied.
The defendant is the owner of the' premises located at 14 Harrison Street, Bristol, Connecticut. The plaintiffs have leased the premises since May of 1997. On February 9, 1999, the plaintiff called the Bristol-Burlington Health District to complain about electrical problems, flooding in the basement and chipping paint. On February 26, 1999, an inspection was conducted at the premises by Karen Cables, a registered sanitarian with the health department to investigate the plaintiffs' housing complaints. The violations noted are attached to the complaint CT Page 1425-i and include orders to upgrade the main electrical service, bring all electrical, plumbing and heating to code, clean and seal the furnace flu, and repair windows and install window locks. Karen Cables usually gives an owner two weeks to correct violations unless they are life-threatening. She discusses building code complaints with the building inspector. If the violations are of a serious nature, the building inspector will tell her to relocate the tenants. In this case, the electrical inspector said that a compliance period of two weeks was appropriate. The work was not completed within two weeks, but the defendant complied with the orders and did things on a regular basis. The electrical work had all been completed in June 1999. There was delay in completing the plumbing and heating repairs because of illness of the contractor. They had all been completed by mid July 1999. The major and majority of the repairs were made well before that time.
Ralph Saucier, an electrical inspector employed by the City of Bristol met with Cables to inspect the premises and determined that the electrical service had to be replaced and that electrical items in the basement were unsafe and had to be replaced. He testified that the work was done pretty quickly, that the repairs took approximately three weeks and that one could live in the premises while the repairs were being made.
Keith Fournier complained that he and his family were required to vacate the premises for 4-5 hours on two occasions because of the painting and they were without electrical service for several hours. Plaintiff Elizabeth Fournier listed among her complaints that there were "hot plugs," that the toilet overflowed on one occasion, and that there were problems with the windows.
At the time of the hearing, the landlord had complied with all orders from the Bristol Burlington Health District and had corrected all violations. The tenants, however, continue to complain about the electrical service about the quality of the workmanship.
The plaintiffs are seeking an award by way of rent reduction for substandard housing. CT Page 1425-i
For 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, supra.
The relief of rent abatement is triggered where there is evidence of a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant. See Visco v. Cody, supra 449-451.
In this case, there is evidence of numerous code violations and that not all repairs were made within a few weeks. The plaintiffs, however, made no complaints to the health department before February 1999, nearly two years after they had moved into the premises and around the time that they were concerned that the defendant would be raising their rent. The sanitarian and the inspector did not require that the violations they found be corrected immediately or that the tenants be relocated, which would have been required in the face of serious or life-threatening violations. Virtually all the matters complained of, taken individually, were of a minor nature, more in the realm of annoyances. They did not create a material risk or hazard to the tenants which rendered the premises uninhabitable. There were, however, code violations in the basement, such as exposed wires in the presence of leaking water, defects in the furnace flue, and improper venting, which rendered the basement unsafe. The tenants, on equitable grounds, are entitled to some rent abatement for hazards to which they have been exposed. CT Page 1425-j
Under General Statutes § 47a-14h (e) the complainant may seek and the court may order interim or final relief including, but not limited to, the following:
(1) An order compelling the landlord to comply with his duties under local, state or federal law; (2) an order appointing a receiver to collect rent or to correct conditions in the property which violate local, state or federal law; (3) an order staying other proceedings concerning the same property; (4) an award of money damages, which may include a retroactive abatement of rent paid pursuant to subsection (h) of this section; and (5) such other relief in law or equity as the court may deem proper. If the court orders a retroactive abatement of rent pursuant to subdivision (4) of this subsection and all or a portion of the tenant's rent was deposited with the court pursuant to subsection (h) by a housing authority, municipality, state agency or similar entity, any rent ordered to be returned shall be returned to the tenant and such entity in proportion to the amount of rent each deposited with the court pursuant to subsection (h). Emphasis supplied.
The court, in ordering interim or final relief, may order that accrued payments of rent or use and occupancy held by the clerk be used for the repair of the building or be distributed in accordance with the rights of the parties. General Statutes § 47a-14h(g)
See Endnote 1, supra.
Inasmuch as virtually all violations had been corrected before this action was initiated in July 1999, and all had been corrected at the time of hearing, there is no reason to order that the money paid into court to date be used to make repairs or be held for future repairs. There is no reason to require further payments into court.
At the time of the hearing, the plaintiff, pursuant to statute, had paid $3250.00 to the court clerk's office, in lieu of payment of rent at $650.00 per month for the months of July 1999 through November 1999. An additional $650 for December 1999, has been paid. Thus, the total paid in court is $3900.00. As of this date, CT Page 1425-k the payment for January 2000, has not been made into court by the plaintiffs and is past due. As such, this action is subject to dismissal pursuant to General Statutes § 47a-14h(h).
See Endnote 1, supra.
The action is dismissed. Additionally, since the plaintiffs have failed to make the January payment into court, all payments being held by the clerk of the court shall be remitted to the defendant landlord. Nothing in this order shall be deemed to relieve the plaintiffs of their obligation to pay $650.00 to the defendant for their January use and occupancy, except that the plaintiffs may deduct from any such payment the sum of $300.00 because they are entitled to — modest abatement.
TANZER, J.