Opinion
No. NBSP-046592.
September 22, 2006.
Opinion Title: MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
I STATEMENT OF CASE
This is a summary process action based on lapse of time. The plaintiff, hereinafter ("Landlord"), seeks a judgment of immediate possession. The defendants, hereinafter ("Tenant"), allege the following special defenses: (1) Rent was offered to my landlord before the Notice to Quit was received; and (2) Retaliatory action by the landlord. The matter was tried on September 14, 2006. Both parties appeared pro se.
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
FACTS
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony .º. º. it is the quintessential function of the fact finder to reject or accept certain evidence . º. º." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, CT Page 21476 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 763 A.2d 199 (2001).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible .ordm. º. It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . ordm. º. The trier of fact may accept or reject the testimony of any witness . ordm. º. The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986). "While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981).
"The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087 (1992). The standard of proof in summary process actions, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
The phrase a "fair preponderance of the evidence" "simply means that evidence which outweighs that which is offered to oppose it .ordm. º." Black's Law Dictionary (5th Ed. 1983).
Tait's Handbook of Connecticut Evidence (3rd Ed. 2001) § 3.5.1, pp. 140-41: "§ 3.5.1 Civil Cases: More Probable Than Not
In the ordinary civil case, a party satisfies his or her burden of persuasion if the evidence, considered fairly and impartially, induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact or issue is true. Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d 708 (1968); Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958). It is not necessary that the proof negate all other possibilities or that it reach the degree of certainty that excludes every other reasonable conclusion. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (1968). This burden is sometimes expressed as proof by a preponderance of the evidence, Vigorito v. Allard, 143 Conn. 70, 71, 118 A.2d 906 (1955), but such preponderance does not refer to the number of witnesses but rather the evidence that is superior and more likely to be in accord with the facts, Verdi v. Donahue, 91 Conn. 448, 450, 99 A. 1041 (1917). The quality of the evidence controls, not the quantity. State v. Williams, 195 Conn. 1, 13, 485 A.2d 570 (1985).
When the evidence is equally balanced or in equipoise, then the proponent has not met his or her burden of persuasion. Brodie v. Connecticut Co., 87 Conn. 363, 364, 87 A. 798 (1913). A party has not met the burden of persuasion merely because the evidence is uncontested or uncontroverted because the trier, as the judge of credibility, may disbelieve such evidence. Mercer v. Mercer, 131 Conn. 352, 353, 39 A.2d 879 (1944).
The burden of persuasion can be satisfied by circumstantial evidence if the trier finds that the facts from which the trier is asked to draw the interference are proved and that the inference is not only logical and reasonable but also strong enough so that it can be found to be more probable than not. Terminal Taxi Co. v. Flynn, 156 Conn. at 316; Hennessey v. Hennessey, 145 Conn. At 214."
The Court finds the following facts by a fair preponderance of the evidence.
The Landlord is the owner of the premises. He purchased the building in January 2001. The Tenant has lived in the premises for approximately ten years. When the Landlord purchased the property, the Tenant was under a month-to-month lease. The monthly rent was $500. On April 23, 2005, the parties entered into a written lease agreement for the period of June 1, 2005 through May 31, 2006. The rent was increased to $650 per month. Paragraph 17 of the lease, the holdover clause, allows the Tenant to continue to occupy the premises after the lease expires on a monthly basis.
Prior to signing the lease, the Tenant discussed with the Landlord problems with the apartment. The lease reflects these issues. In the lease addendum, entitled "Charges Upon Termination," the Tenant notified the Landlord of the following problems with the premises: "Kitchen cabinet Has Dry Rot and water damage[,] extensive water damage to most ceilings (6 rooms), kitchen floor, pantry. 4 Broken electric sockets[,] several settling cracks on walls (not due to tenant)[,] 3 out of 7 floors are painted." The Tenant indicated that there was an infestation problem. In Paragraph 19, entitled "Inspection prior to occupancy," the Tenant also noted the following issues: "4 windows, 4 electric sockets, pantry light." The Tenant agreed to the rent increase based on the belief that the Landlord would make the necessary repairs to the apartment.
The Tenant did some superintendent-type work for the Landlord in return for a reduction in the rent. But the Tenant stopped after more tenants moved in because the Landlord would not agree to a greater rent reduction. The Landlord also spoke with the Tenant and a former tenant about replacing the windows in the apartment. However, the parties could not agree on a price for the work.
During the term of the lease, the Tenant continued to complain to the Landlord regarding the condition of the premises. However, the Landlord admitted that he only made minor repairs to the apartment, including replacing the bathroom faucet, repairing the oven and the kitchen tiles. The Landlord did buy new kitchen cabinets for the apartment, but he expected the Tenant to install them for free. The cabinets were later installed in another apartment. In fact, the Tenant's apartment is the only one without new kitchen cabinets. The Tenant testified as to the roach and mice infestation in the apartment. The visual evidence supports the Tenant's position that the apartment has an extensive infestation. The Landlord did not contest the infestation issue.
Whatever renovations were made to the building, the landlord did himself. He worked on the building while he was between jobs. The Landlord testified that he did not think that extensive renovations, including replacing the windows, were possible while the apartment was occupied. He expressed concerns about making repairs while the Tenant's four children lived in the apartment.
During the lease term, the fire department was called because one of the electric heaters almost caught on fire. After a building inspection, the city required the Landlord to come to New Britain immediately to address the issues with the electric heaters.
After the lease expired, the Tenant continued to occupy the premises on a month-to-month basis. The parties discussed the Tenant's plans to either stay or move out of the apartment. In July 2006, after an argument between the parties regarding the condition of the premises, the Tenant stopped paying rent.
On July 17, 2006, the Tenant made a complaint to the New Britain Housing Code Enforcement Department: The complaint stated in relevant part:
"Landlord Removed, Replaced Roof of garage w/o notifying me and destroyed most of my property inside garage[,] Back stairs are cracked, Paint chips falling off ceiling in kids rooms, cockroach and severe mice problem, Building Jacks Holding support Beams in Basement, severe electrical surges causing appliances to Burn out, He is replacing windows Himself and scraping lead paint into the open[,] electric Heat was not put in with a permit[,] mold Behind shower walls." On July 24, 2006, after an inspection, the City of New Britain issued a Notice of Violation. The apartment was cited for numerous substantial violations. See Defendant's Exhibit D. Originally, the Landlord was given until August 31, 2006, to correct the code violations.
City of New Britain
Department of Licenses, Permits and Inspections
Building Permits Inspections, Housing and Zoning Enforcement City Hall — 27 West Main Street — Suite 404 New Britain, Connecticut 06051
Telephone: 860-826-3383 (0)
Facsimile: 860-612-4212
Frank M. Wiatr
Director
Chief Building Official
NOTICE OF VIOLATION
July 24, 2006
GENRIKH GOFMAN CERTIFIED MAIL
42 West Pine Street 7005 3110 0004 0858 3281
Islip, NY 11751
RE: 169 Tremont St., Apt 3S
Dear Mr. Gofman
Upon complaint, a Housing Inspection was made of your property at 169 Tremont St., Apt. 3S, this department on July 24, 2006 finds You in violation of the following Ordinances of the City of New Britain: Chapter 13, Section 13-84, 13-104, 13-120, 13-142, 13-144, 13-146, 13-155, 13-156 and 13-158.
Attached to this letter is a Comprehensive list of code violations, which must be corrected in order to bring the subject dwelling/property within code requirements. Furthermore, all violations must be corrected in a workmanlike manner of the appropriate trade and with applicable code requirements.
You are directed to correct these conditions an or before AUGUST 31, 2006, or as otherwise indicated, at which time a re-inspection will be made to ascertain compliance.
Failure to comply with this directive will necessitate immediate legal action by the referral of this case to the State Prosecution Attorney's Office of the Housing Section of the Connecticut Superior Court for action as prescribed under Section 13-260. Any person who shall violate any section of this chapter, may, upon conviction, be punished by fine of not more than ninety-nine dollars ($99.00) and/or by imprisonment for no more than thirty (30) days and each day's failure to comply with such provision shall constitute a separate violation.
This action may be appealed per Section 13-55 to the Housing Board of Appeals within ten (10) days of this notice by filing with this office, a written petition which must include a request for hearing and a statement concerning the reason for this appeal.
On inspection, the following Housing Code* violations were noted:
Re: 169 Tremont St. Apt. 3S
KITCHEN
13-142 Ceilings water damage — repair source of water, repair ceiling refinish according with Housing Code
13-144; 13-146 Windows in disrepair — repair/replace as required in according with the Housing Code
13-142 Walls in disrepair — repair surfaces and paint in accordance with the Housing code
13-142 Seal all holes around pipes where is passes through under sink — repair to code to prevent rodent access — must be properly sealed and rodent in according with the Housing Code
13-142 Cabinet in severe disrepair — repair or replace
KITCHEN/PANTRY
13-142 Ceilings water damage — repair source of water; repair ceiling re-finish according with Housing code
13-120 Defective overhead lights — repair or replace install in according with the National Electrical Code
BATHROOM
13-120 Defective GFCI outlet (cover plate missing) — repair in accordance with National Electrical
13-155 Toilet in disrepair — repair in according with the Housing Code (a) Loose (b) draining mechanism inoperable 13-158 Caulk the joint between bathtub and walls — repair as required in according with the Housing Code
13-144, 13-146 Window in disrepair — repair/replace as requirement in according with the Housing Code
13-142 Seal all holes around pipes where is passes through under sink — repair to code to prevent Rodent access — must be properly sealed and rodent in according with the Housing Code
13-120 Overhead light at sink — must be wall switched or GFCI protected — install in according with the National Electrical Code
INTERIOR APARTMENT HALL WAY (outside bathroom)
13-142 Flooring severe in disrepair (unfinished wood surfaces) — repair as required in according with the Housing Code
BEDROOM (rear)
13-44, 13-146 Windows in disrepair — repair/replace as required in according with the Housing Code
13-104 No Smoke Detector — install IMMEDIATELY in according with the Housing code
Inspector's note — Smoke Detectors required at all bedroom locations
13-142 Paint peeling (paint chips loose) — remove and dispose of any loose paint — scrape/prime/paint in according with the Housing Code
13-142 ceiling in disrepair (water damage) — repair source of water, repair ceiling and re-finish according with Housing Code
13-120 Defective electric outlet — replace in accordance with National Electrical Code
BEDROOM (front/north)
13-155 Flue vent most be secure IMMEDIATELY. Improper ventilation of these appliances is a mayor contributor to CO poisoning. Repair in according with the Housing Code
Re: 169 Tremont St., Apt. 3S 13-142 Ceiling in disrepair — repair source of water, repair ceiling and re-finish according with Housing Code
BEDROOMS
13-142 Ceilings in disrepair — repair source of water, repair ceiling and re-finish according with Housing Code
13-144, 13-146 Windows in disrepair — repair/replace as required in according with the Housing Code
13-120 Defective electric outlet — replace in accordance with National Electrical Code
13-142 Paint peeling (paint chips loose) — remove and dispose of any loose paint — scrape/prime/paint in according with the Housing Code
GENERAL
13-144, 13-146 Windows in disrepair throughout apartment — repair/replace as required
INSPECTOR'S NOTE:
Clarification of the term is " windows are in disrepair"
All windows shall have the pane intact, sash cords in good condition, locks in Good working order, no peeling paint, re-glazing, weather-tight, screen in good condition and in general be in good working order.
13-142 Ceilings water damage throughout apartment — repair source of water, repair ceiling re-finish According with Housing code
13-142 Paint peeling (paint chips loose) — remove and dispose of any loose paint — scrape/prime/paint in according with the Housing Code
13-142 Walls and ceiling in disrepair throughout apartment — scrape/prime/paint in According with the Housing code
13-84 Infestation by vermin (cockroaches) and rodent (mice) — professional extermination Recommend immediately and continued on a regular basis
13-156 Defective self closing hinges — repair as required in according with the Housing Code
INSPECTOR'S NOTE: This inspection represents conditions that existed at the subject property at the time of initial inspection July 24, 2006. Any violations inadvertently omitted from this report, does not relieve the owner of the responsibility of correcting the omitted violation(s).
Violations must be corrected in a workmanlike manner of the appropriate trade and also with applicable code requirements. It is your responsibility to insure if needed Building, Electrical, Plumbing permits are taken out before repair work is started or you may face fines of $250.00 per day and/or 6 months in jail, per Connecticut State Building code.
If you have any question please call 860-826-3388 between the hours of 8:15-9:30 a.m., 12:30 p.m.-1:30 p.m. and 3:00 p.m.-3:30 p.m.
Thank you for your anticipated cooperation in this matter.
Sincerely,
Nelson Banos, Housing Inspector
Cc: Frank M. Wiatr, Director of Licenses, Permits Inspections
On July 19, 2006, the Landlord served the Tenant with a Notice to Quit based on lapse of time and nonpayment of rent. On August 4, 2006, the Landlord served a Complaint on the ground of lapse of time only.
Since this action was initiated, the Landlord has failed to fully comply with the Notice of Violation. The Landlord contends that he cannot make the repairs until the apartment is empty. The Landlord also testified that he wants to make the apartment his home. He wants this particular apartment because it is the most private and has access to the roof. Currently, the Landlord lives in Islip, New York, and his wife works in New York. At some point, the Landlord offered the Tenant the second-floor apartment but at an increased rent.
III DISCUSSION A Landlord's Case
In a summary process action based on lapse of time, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed-upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The rental agreement has terminated by lapse of time; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date, as required by law; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. § 47a-23(a)(1)(A).Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. Gulycz v. Stop Shop Cos, supra, 29 Conn.App. 523.
B
Tenant's Defenses
(1) Rent was offered to my landlord before the Notice to Quit was received
The Tenant alleges that rent was offered to the Landlord before the notice to quit was served. This defense, however, has no bearing on the allegations in the eviction complaint because it relates to the payment of rent. A tenant may raise this defense as to nonpayment of rent but not lapse of time. The Court concludes that this special defense does not apply.
(2) Retaliatory action by the landlord
The Tenant also alleges retaliatory action pursuant to § 47a-20 and § 47a-33. "As explained in Alteri v. Layton, 35 Conn.Sup. 261 (1979), these two sections are different in application. Id. at 263-65. Section 47a-20 establishes limitations on the remedies of a landlord and effectively creates a presumption of retaliatory action if a tenant takes certain enumerated actions regarding the reporting of housing code violations. Section 47a-33, on the other hand, 'establishes a tenant's right to claim a defense of retaliatory eviction where the tenant has reported housing code violations to the appropriate authorities.' Id. at 263. Under Section 47a-20, certain actions of the tenant will create a presumption that the landlord acted out of retaliation, and the landlord is entitled to rebut that presumption with substantial countervailing evidence. Under Section 47a-33, however, no presumptions are permitted and the tenant by affirmative proof is required to prove that the landlord's primary motive in seeking eviction was in retaliation for the tenant's reporting of housing code violations. The burden of persuasion for this affirmative defense rests on the tenant asserting it. Id. at 265." Cornish v. Gardiner, Superior Court, judicial district of New London, Docket No. CV10-15902 (April 10, 2000, Jongbloed, J.) ( 2000 Ct.Sup. 4106, 4108-09).
General Statutes Sec. 47a-20, entitled "Retaliatory action by landlord prohibited," provides in relevant part:
A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants' union.
General Statutes § 47a-33, entitled "Defense that action is retaliatory," provides in relevant part:.
In any action for summary process under this chapter or section 21-80 it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, including contacting officials of the state or of any town, city, borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any of the provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie. The obligation on the part of the defendant to pay rent or the reasonable value of the use and occupancy of the premises which are the subject of any such action shall not be abrogated or diminished by any provision of this section.
First, the Tenant alleges that the Landlord is prohibited from maintaining an eviction action because the action is barred by General Statutes §§ 47a-20. "Under § 47a-20, supra, the retaliatory eviction defense is not a right given to tenants, but rather a limitation upon the remedies of the landlord. Upon the occurrence of one or more of four acts committed by the tenant, the landlord 'shall maintain . ordm. º. [no] action . ordm. º. against a tenant to recover possession of a dwelling unit . ordm. º. within six months after . ordm. º.' Section 47a-20(a), supra. Therefore, under § 47a-20(a), the establishment of a prima facie case by a tenant under any one or more of the four prescribed acts would give rise to a presumption of retaliatory action by a landlord. Once the tenant has produced sufficient evidence to bring himself within one or more of those four actions, then a prima facie case will have resulted. The presumption of § 47a-20 is rebuttable, and the landlord is permitted by substantial countervailing evidence to rebut it. In essence, he will be required to establish a legitimate interest in the eviction. The presumption is accorded as a matter of public policy. It imposes upon the landlord not only the burden to produce substantial countervailing evidence but also the burden of proving facts which fairly put in issue the presumed fact. O'Dea v. Amodeo, 118 Conn. 58." Alteri v. Layton, supra, 35 Conn.Sup. 264.
Pursuant to § 47a-20, the defense of retaliatory action may be triggered under one or more of the following grounds: (1) A tenant has in good faith attempted to remedy by any lawful means the condition of the premises; (2) A municipal agency or official has filed a notice, complaint or order regarding a violation; (3) A tenant has in good faith requested the landlord to make repairs; (4) A tenant has in good faith instituted a tenant complaint action; or (5) A tenant has organized or become a member of a tenants' union.
However, General Statutes Sec. 47a-20a, entitled "Actions deemed not retaliatory," provides in relevant part:
(a) Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit if: (1) The tenant is using the dwelling unit for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent; (2) the landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode; (3) the condition complained of was caused by the wilful actions of the tenant or another person in his household or a person on the premises with his consent or (4) the landlord seeks to recover possession on the basis of a notice to terminate a periodic tenancy, which notice was given to the tenant before the tenant's complaint. (Emphasis added.)
In Hanna v. Stewart, Superior Court, judicial district of Fairfield, Housing Session, Docket No. 9503-29166 (April 19, 1995, Tierney, J.) ( 1995 Ct.Sup. 4180-E), the court found that the plaintiff had rebutted the presumption when she explicitly sought to recover possession of the premises for use as her own abode. There, the plaintiff was "no longer permitted to occupy her current leasehold " Id. at 4180-l She needed to move into the premises in question because she had to vacate her own apartment.
In order to determine whether a landlord has engaged in retaliatory action pursuant to § 47a-20, the court must evaluate the following: (A) Has the tenant alleged one or more of the grounds under § 47a-20?; (B) Has the tenant established a prima facie case under any one or more of the prescribed grounds that gives rise to a presumption of retaliatory action by the landlord?; (C) Has the landlord rebutted the presumption with substantial countervailing evidence? (Has the landlord established a legitimate interest in the eviction?)
When a tenant has in good faith requested the landlord to make repairs, the repairs must be "necessary to maintain the leased premises in a fit and habitable state." Visco v. Cody, 16 Conn.App. 444, 454, 547 A.2d 935 (1988); See § 47a-20(3).
"Once the defendant established a prima facie case under § 47a-20, .ordm. º. the plaintiff was limited to rebutting the presumption using one of the four enumerated grounds in § 47a-20a." Correa v. Ward, 91 Conn.App. 142, 148, 881 A.2d 393 (2005). See Murphy v. Baez, 40 Conn.Sup. 470, 474, 515 A.2d 383 (1986) ("the language of § 47a-20a clearly delineates the only grounds for such rebuttal").
Second, the Tenant alleges retaliatory action as an affirmative defense pursuant to § 47a-33. The statute provides in relevant part: "it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, .ordm. º. any condition constituting a violation . ordm. º." (Emphasis added.) "§ 47a-33 specifically establishes the retaliatory action as 'an affirmative defense.' No presumptions are permitted and the tenant, by affirmative proof, is required to prove that the landlord's primary motive in seeking an eviction was in retaliation for the tenant's exercise of his statutory right to report housing code violations to the appropriate authorities. The burden of persuasion for this affirmative defense, therefore, rests upon the tenant who asserts it . ordm. º." (Citation omitted.) (Emphasis added.) Alteri v. Layton, supra, 35 Conn.Sup. 264-65.
In Murphy, the court found that the summary process action was barred by § 47a-20, when the landlord sought to evict the tenant less than two weeks after the tenant contacted the police to complain of a lockout. Murphy v. Baez, supra, 40 Conn.Sup. 470.
IV CONCLUSION AND ORDER
Under Section 47a-20, the Tenant must establish a prima facie case to give rise to a presumption of retaliatory action by the Landlord. It is obvious that these problems have existed for a significant period of time. These problems have persisted since the lease was signed due to the Landlord's failure to make repairs. The Tenant made repeated complaints to the Landlord regarding the condition of the premises. Despite the Tenant's repeated complaints, the Landlord has failed to make sufficient efforts to make the necessary repairs. The Tenant also contacted the local authorities. The Landlord has also not made sufficient efforts to comply with the orders issued by the City of New Britain. The Landlord has not complied with his statutory responsibilities pursuant to General Statutes § 47a-7. In particular, the Court finds that the premises are rendered unfit and uninhabitable due to infestation by vermin (cockroaches) and rodent (mice). The Court finds the Landlord's testimony unpersuasive that the extensive roach infestation proves his point that the apartment must be vacated before the problem can be addressed. The code violations in this case, "rendered the leased premises in an unfit and uninhabitable condition and in such a state as to trigger the presumption of retaliatory eviction under § 47a-20." See Moise v. Korab, supra, 2004 Ct.Sup. 8551.
The Court finds that the Tenant has established a prima facie case under one or more of the prescribed acts under § 47a-20. Sufficient facts have been presented to create a presumption that the Landlord's action was retaliatory within the meaning of § 47a-20.
Once a presumption of retaliatory action is created, the landlord must establish a legitimate interest in the eviction. The Landlord claims that this is not a retaliatory eviction, but instead he needs the apartment vacant to make the necessary repairs and to make the apartment his abode. Although the apartment is in need of major repairs, the evidence does not support the contention that the apartment has to be vacant to be repaired. In addition, the Court is not sufficiently persuaded that the Landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own home. The Landlord lives in New York, where his wife works. Besides his stated plan to move to New Britain, there is no other credible evidence of this intent. Unlike Hanna, there is no evidence that the Landlord has to move out of his current home. The Court does not credit the Landlord's testimony regarding this issue.
The Court finds that the Landlord has failed to rebut the presumption by substantial countervailing evidence. The Landlord has not established a legitimate interest in the eviction.
Based on the evidence presented, the Court finds that the Tenant has proved, by a fair preponderance of the evidence, the defense of retaliatory eviction pursuant to § 47a-20.
Under § 47a-33, the Tenant is required to establish by affirmative proof that the eviction was retaliatory. The Tenant made repeated complaints to the Landlord and complained to the appropriate authorities regarding the condition of the premises. The Court finds that there was credible evidence the Landlord brought the eviction action "solely" because of the Tenant's complaints. The Landlord's "primary motive" in seeking eviction was in retaliation for the Tenant's complaints.
Based on the evidence presented, the Court finds that the Tenant has proved, by a fair preponderance of the evidence, the defense of retaliatory eviction pursuant to § 47a-33.
Accordingly, the Court finds that the Tenant has proved, by a fair preponderance of the evidence, retaliatory action by the landlord. The Tenant has demonstrated that the Landlord has no cause of action. See Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Therefore, the Court enters judgment for the Tenant.
Section 47a-7 requires the Landlord to address all the code violations. The Landlord is required to comply with his statutory responsibilities within thirty (30) days from today's opinion. Valentin v. Matrosua, Superior Court, judicial district of Hartford, Docket No. HDSP-128472 (Dos Santos, J., January 5, 2005) ( 2005 Ct.Sup. 1055, 1058).
The remedies available to the Tenant to address the Landlord's failure to comply with his statutory duties included withholding the rent pursuant to § 47a-4a as well as initiating a payment of rent into court action. As to the latter, the Tenant has the option of depositing rent with the housing court in order to require the Landlord to repair the premises. General Statute Sec. 47a-14h provides in relevant part: "(a) Any tenant who claims that his landlord has failed to perform his legal duties, as required by section 47a-7 . ordm. º. 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."
BY THE COURT:
Bentivegna, J.