Opinion
No. NBSP-045613
April 28, 2006
MEMORANDUM OF DECISION
This is a summary process action based on nonpayment of rent. The plaintiff, hereinafter ("Landlord"), seeks a judgment of immediate possession. The defendant, hereinafter ("Tenant"), claims that no rent was due because of the conditions of the premises. The Landlord served a Notice to Quit Possession on February 11, 2006. The complaint was filed on February 23, 2006. On March 3, 2006, the Tenant filed an answer. The reply was filed on March 15, 2006. The matter was tried to the court on April 6, 2006. Both parties appeared pro se.
"Although our courts are "consistently . . . solicitous of the rights of pro se litigants," the rules of practice cannot be ignored to the detriment of other parties. Connecticut Light Power Co. v. Kluczinsky, 171 Conn. 516, 519, 370 A.2d 1306 (1976); see also Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929)." Gallogly v. Kurrus, Superior Court, judicial district of Litchfield at Bantam, Docket No. CV 18-9808 (Trombley, J.; May 16, 2005) ( 2005 Ct. Sup. 8500, 8517).
Facts
"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. . . . It is the quintessential function of the fact finder to reject or accept certain evidence. . . ." (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, 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). 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. . . ." Black's Law Dictionary (5th Ed. 1983).
The following facts were proved by a fair preponderance of the evidence at trial.
The Landlord is the owner of the premises at 455 Columbus Blvd., 3rd Floor, New Britain, Connecticut. The Tenant has lived in the apartment for approximately seven years.
In June 2005, the Tenant complained to the power company, hereinafter ("CL P"), because she thought her electric bill was too high. After an investigation, CL P reported that the electric meter was not for the Tenant's exclusive use. The common area electric charges for the stairs and garage were improperly being charged to the Tenant's meter. On or about August 5, 2005, CL P notified the Landlord that the electric service was going to be transferred into the Landlord's name until the problem was corrected. The problem was corrected in October 2005, but the meter was not transferred back under the Tenant's name until March 8, 2006, after the electrician provided the necessary documentation to CL P.
On or about January 31, 2006, the Landlord notified the Tenant in writing that the rent was going to increase to $800, effective March 1, 2006.
The Tenant failed to pay the rent of $700 by February 10, 2006. On February 11, 2006, the Tenant tried to call the Landlord and eventually reached him. The Tenant told the Landlord that she was going to be a couple of days late paying the rent and would also pay the late charge. The Tenant thought the Landlord was okay with paying the late charge. The Tenant testified that she had only paid rent late twice, once when she went to Puerto Rico. However, on February 16, 2005, the Tenant was served with the notice to quit and decided not to pay the rent afterwards. In addition, the Tenant failed to pay rent or use and occupancy for March 2006.
The Tenant testified that one of the reasons she did not pay the rent was because the Landlord did not want to fix the problems with the apartment. The Tenant introduced photographs depicting a number of different problems, including standing water by a furnace and water heater, pealing paint and water stains on the ceiling of the pantry and a bedroom, and cracks and bumps on the walls of the bathroom and a bedroom. In addition, the Tenant complained that most of the electric outlets were in a state of disrepair. If you tried to plug something into the outlet, you would see sparks and smoke. In the photo, the plug looks blackened. The back porch/balcony was also rotted and in need of major repairs. The Tenant also complained about having no heat because the Landlord refused to fix the pipes that would freeze. According to the Tenant, the Landlord did not want to fix anything until the Tenant moved out. The Tenant believed that the Landlord's attitude was related to the Tenant's complaint to CL P, which led to the Landlord having to pay for the Tenant's electricity until the violation was corrected. The Tenant complained that the Landlord never returned phone calls.
On February 16, 2006, the Tenant made a complaint to the City of New Britain, Commission on Human Rights and Opportunities regarding the Landlord's three rent increases since he bought the property, the issues related to her electric service issue, and the hassles she was going through with the Building Department. During the trial, the Tenant did not offer any evidence regarding prior dealings with the Building Department.
On March 7, 2006, the Tenant complained to the City of New Britain, Department of Licenses, Permits, and Inspections, hereinafter ("housing code enforcement agency"), about the conditions of the apartment. She complained that the furnace was not working, sewer water was on the floor in front of the oil tank for the first floor furnace, and paint was peeling on the walls and ceiling.
On March 14, 2006, the apartment was inspected by the housing inspector, Robert Krucelak.
On March 23, 2006, the housing code enforcement agency issued an emergency order letter finding the Landlord in violation of several housing code ordinances including inoperable furnace, lack of working smoke detectors, leaking roof, and water leakage from the sewer pipe. In addition, the kitchen porch had a rotted deck and other rotted materials. The Landlord had forty-eight hours to make the repairs.
On March 29, 2006, the housing code enforcement agency issued a notice of violation letter which detailed other violations including: numerous defective electrical outlets, electric boxes with exposed wires, peeling paint, wall cracks, and windows in disrepair.
At trial, Krucelak testified regarding his inspection of the premises and the conditions of the apartment. The porch had structural problems and did not look safe to walk on. The furnace was not working, but there was no oil in the tank. Although the apartment had numerous violations, Krucelak testified that the apartment was not condemnable and was fit to live in.
Discussion Landlord's Case
In a summary process action based on nonpayment of rent, the landlord must prove all the elements of the case by a fair preponderance of the evidence. 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 tenant failed to pay the rent due under the lease by a certain date; (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; 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. See General Statutes Sec. 47a-23(a)(1)(D).
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.
After weighing all the evidence and assessing the credibility of the witnesses, the court makes the following findings. The Tenant was obligated to pay monthly rent under the lease. The Tenant failed to pay the rent due for February 2006. The notice to quit served on February 11, 2006, is proper and in conformity with the statute. The Tenant failed to vacate the premises after the quit date and remains in possession of the premises. Based on the evidence presented, the court finds that the Landlord has proved all the elements of the case by a fair preponderance of the evidence.
Tenant's Case
The Tenant argues that no rent is due because the Landlord failed to properly maintain the premises.
"Connecticut law recognizes that health or housing code violations may vitiate a tenant's obligation to pay rent but only `serious and substantial violations affecting safety or well being.' (Citation omitted.) Elkies v. Bear, Superior Court, judicial district of New Haven at Meriden, Docket No. SPM CV 04-0287606 (Frazzini, J., July 6, 2004) ( 2004 Ct. Sup. 10984).
"To ensure that the landlord's duties are performed, General Statutes 47a-4a provides that `[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.' Generally, a tenant claiming the right to withhold rent must `show that the landlord's failure to comply with 47a-7 (a) materially affects his safety . . . or has rendered the premises uninhabitable.' (Citation omitted; internal quotation marks omitted.) Visco v. Cody, 16 Conn. App. 444, 450, 547 A.2d 935 (1988)." Housing Authority v. Olesen, 31 Conn. App. 359, 363, 624 A.2d 920 (1993).
General Statutes Sec. 47a-7, entitled "Landlord's responsibilities," provides in relevant part: "(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.
The Tenant has "the burden of proof on her special defense that no rent was due under General Statutes section 47a-4a because of various health and housing code violations violating § 47a-7 (a). Evergreen Corporation v. Brown, 35 Conn. Sup. 549, 552, 396 A.2d 146 (App.Sess. 1978)." Elkies v. Bear, supra, 2004 Ct. Sup. 10984. "[T]he sanctions in these sections [, including 47a-7 and 47a-4a,] 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, . . ." (Citations omitted.) Visco v. Cody, 16 Conn. App. 444, 450-451, 547 A.2d 935 (1988).
"In enforcing the mandate of General Statutes § 47a-4a that no rent is due when a landlord has not complied with its statutory duty to `make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition,' courts have generally demanded more than a tenant's word that there are serious health or safety hazards to corroborate such a claim — such as a report from a fire marshal or housing inspector or an independent witness. `[T]o 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. This court does not construe such cases as holding that a tenant's testimony is, as a matter of law, insufficient to prove an uninhabitability claim; see, e.g., Morgan v. White, 168 Conn. 336, 349, 362 A.2d 505 (1975); Denby v. Commissioner, 6 Conn. App. 47, 502 A.2d 954 (1986); but instead as suggesting that most courts will find the tenant's own word unpersuasive unless there is additional evidence to back up the claim." Elkies v. Bear, supra, 2004 Ct. Sup. 10985-10986.
The Tenant introduced several photographs depicting the conditions of the premises. The photographs show an apartment in need of some repairs. On or about March 14, 2006, the premises were inspected by a housing code inspector who found numerous violations. No evidence was offered as to any prior inspection of the premises. After the inspection, the housing code enforcement agency issued an emergency order letter and a notice of violation letter. The Landlord responded to the letters by making efforts to complete the required repairs. Krucelak believed that the apartment was fit to live in. The evidence suggests that the Tenant's nonpayment of rent was not solely motivated by the conditions of the apartment. The Tenant admitted at trial that she was also upset about the electrical service issues and the rent increases.
Based on the evidence presented, the court finds that the Tenant has failed to meet the burden of proof to establish that the Landlord has failed to comply with his statutory responsibilities to "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition" or failed to comply with his statutory duties in a way that materially affected the Tenant's safety or rendered the premises uninhabitable.
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. The Tenant could have deposited the rent with the housing court in order to require the Landlord to repair the premises pursuant to General Statute Sec. 47a-14h, which 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 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."
Conclusion
The court finds, by a fair preponderance of the evidence, that the Landlord has proved all the elements of the summary process action. The court finds that the Tenant has failed to prove any defenses by a fair preponderance of the evidence. Having considered the law and equity, the court enters judgment for the Landlord for immediate possession. The execution is stayed through June 30, 2006, subject to the Tenant making use and occupancy payments to the Landlord in the amount of $800, in good funds only, by May 10, 2006, and by June 10, 2006. If the Tenant fails to make any of the payments, the Landlord may request an immediate execution.
Notwithstanding, it appears that Section 47a-7 requires the Landlord to repair and correct all of the items listed in housing code enforcement agency letters. The Landlord, if he has not already done so, shall within thirty (30) days from today's opinion, make all of the repairs required by the housing code enforcement agency. The electrical repairs shall be completed by a competent licensed individual or company. See Valentin v. Matrosua, Superior Court, judicial district of Hartford, Docket No. HDSP-128472 (Dos Santos, J., January 5, 2005) ( 2005 Ct. Sup. 1055, 1058).