Opinion
No. HDSP-128099
September 3, 2004
MEMORANDUM OF DECISION
The plaintiff, Warren Gray, is the owner of the property known as 32-34 Catherine Street, in the City of Hartford, State of Connecticut. On and prior to March 1, 2004, the plaintiff leased the 1st Floor Apartment to Grace Miller on a month to month basis. The defendant was required to pay $635.00 per month as rent. The plaintiff testified that on and prior to March 1, 2004, the plaintiff and the defendant had established a custom and practice wherein the defendant would pay the rent in person to the defendant in cash. On March 1, 2004, the plaintiff failed to pay the rent in the customary manner. On March 15, 2004, the defendant mailed a money order for $635.00 to the plaintiff by regular mail to 26-28 Catherine Street, Hartford. The address of 26-28 Catherine Street was neither the landlord's current address nor an address that the plaintiff gave to the defendant at any time. Prior to March 31, 2004, the plaintiff inquired of the defendant regarding the payment of March's rent including requesting that the defendant stop payment on the money order and make other arrangements to pay the March rent. The plaintiff testified that the defendant advised the plaintiff that he would have to wait for the money to get to him and would take no other measure to make the March payment. On March 31, 2004, the plaintiff caused a notice to quit to be served on the defendant for nonpayment of rent and terminating the tenancy as of April 4, 2004. On April 5, 2004, the defendant continued to reside in the premises and on April 5, 2004, the plaintiff filed this summary process complaint. On April 8, 2004, the defendant mailed a $635.00 money order to the plaintiff at 30 Catherine Street, Hartford, Connecticut. The money order made reference to the April payment. The plaintiff received the April payment via regular mail. The plaintiff never received the March rental payment, which was subsequently returned to the defendant by the postal service in May 2004.
The defendant argues that she cured the default for nonpayment of March rent when she placed it in the mail on March 15, 2004 before the plaintiff served her with his notice to quit on March 31, 2004. In support of her claim, the defendant cites to Gallas v. Sloan, WL 348959 an Unpublished Opinion from the J.D. of Hartford at New Britain.
In Gallas, the plaintiff and the defendant by custom had agreed to accept rent payment by mail. Under this custom, the "mailbox rule" applied and meant that tender occurred upon deposit in the mail system. In the instant case, the custom up to and including March 2004 had been for the defendant to make payment in person to the plaintiff. In addition, in the present case the defendant admitted that the address that she used was not the correct address as further corroborated by the money order's subsequent return to her.
The defendant's second argument in opposition to plaintiff's claim for judgment of possession after the defendant's failure to pay the March rent is that the defendant's tender of the April payment by mail after service of the notice to quit and after service of the complaint constitutes a waiver of the default for failure to pay March rent. In support, the defendant cites to Campbell v. Laboy, SPH-8406-23844-HD (H-591) (Dec. 14, 1984) (Doyle, J.).
In Campbell, the plaintiff brought a summary process action against the defendant by first serving a notice to quit with a quit date in the future. Prior to the quit date, the defendant tendered a check which the plaintiff accepted. The defendant argued, and the court agreed, that the tender of the check and its acceptance by the plaintiff prior to the quit date constituted a waiver of the forfeiture. See also, Borst v. Ruff, 137 Conn. 359 (1950).
The plaintiff asserts that the defendant never tendered payment for March rent at any time prior to the quit date or even prior to filing the complaint for possession, and in fact, the payment for March has never been tendered. What was tendered was a payment for April rent after the plaintiff had indicated through his actions in filing a notice to quit and a complaint that he clearly intended to evict the defendant.
The acceptance of rent by a landlord after the termination of a tenancy may act to waive any default by a tenant if said acceptance is an "unequivocal manifestation" that acceptance renews the tenancy. Alteri v. Layton, 35 Conn.Sup. 258 (1979).
In Alteri, the defendant mailed a check for payment after the notice to quit but prior to the issuance of a complaint. The court went on to state that there is no statutory basis for the defendant to thwart the summary process action in this manner after the notice to quit has been filed by simply tendering a check. See Alteri v. Layton, Id. at 259. In order for the tender to act as a waiver of any default prior to instituting the summary process action, there must be some objective sign by the plaintiff landlord that he has agreed to a new lease. Id. at 259. The plaintiff contends that the plaintiff at no point in time ever acknowledged to the defendant that any tender of payment would constitute a waiver. The plaintiff asserts that the instant case is factually distinguishable from the case on which the defendant relies in that in the instant case no payment of any kind was tendered or received by the plaintiff for March 2004 prior to filing the complaint.
The defendant contends that "[t]he acceptance of rent by the lessor after a forfeiture constitutes a waiver of such forfeiture by the lessor and the creation or acceptance of a new tenancy." See Campbell supra, at p. 3. In Campbell the defendant tenant, after receiving a notice to quit possession for lapse of time, tendered checks marked "rent" for 5 successive months. The plaintiff, landlord, altered the checks by crossing out the word "rent" on each check and writing "use and occupancy." The landlord then endorsed and deposited the checks. The court held that the plaintiff could not accept the payments for purposes for which they were not offered, and that the first such acceptance was sufficient to reinstate the defendant tenant's tenancy.
A tender of rent after the delivery of a notice to quit may be characterized as use and occupancy if the tenant is notified of this fact in the notice to quit possession. In OP Realty v. Santana, 17 Conn.App. 314 (1989), the Appellate Court upheld a trial court's ruling that a use and occupancy disclaimer on a notice to quit had prevented the creation of a new tenancy and had preserved the plaintiff's right to continue the summary process proceeding. The Appellate Court listed Housing Session decisions that "have repeatedly held that a landlord may accept a tender of rent after the service of a notice to quit and characterize it as payment for use and occupancy if the landlord has, prior to the offer of rent, notified the tenant that the tender will be accepted only as use and occupancy payments." (Emphasis in original.) OP Realty v. Santana, supra, 17 Conn.App. at 318.
A use and occupancy admonition serves two useful purposes. It avoids misleading tenants who tender late payments and it insulates the summary process action from being flaws by the acceptance of rent after commencement of the summary process. Zitomer v. Palmer, 38 Conn.Sup. 341 (1982). "If, as the landlords claimed, the lease had already been terminated, they had a right to refuse a belated tender of rent, and to notify the tenant that it would be accepted on as compensation for use and occupation." Casper v. Resin, 95 Conn. 281, 287 (1920). In OP Realty, the Appellate Court endorsed this reasoning in deciding that a plaintiff landlord did not reinstate a tenant by retaining, without cashing, a money order that the tenant had marked "rent" after the delivery of a notice to quit possession that contained a use and occupancy disclaimer.
Use and occupancy admonitions are not a rarity. They abound in the summary process cases. See Zitomer v. Palmer, supra, 38 Conn.Sup. 341. In Damato v. Jones, SP-H-7907-2446-MR (Sep. 12, 1979) (Spada, J.), the court held "there is authorization to accept rental money as use and occupancy after service of process provided the landlord has first notified the tenant that acceptance of a tender would be only on that basis." In OP Realty, supra, 17 Conn.App. 314, the Appellate Court upheld a trial court's ruling that a plaintiff landlord's disclaimer in the notice to quit, having been served on the defendant prior to her tender of the money order marked "rent," effectively prevented the creation of a new tenancy and preserved the plaintiff's right to continue the summary process proceeding.
In this case, there was no use and occupancy admonition. On the contrary, the landlord, having delivered a notice to quit for the claimed nonpayment of March rent, afterward accepted and tendered a written receipt for April rent, calling it "rent."
Where landlords accept payments without a prior use and occupancy admonition, the courts have found that the payments were accepted as rent.
In Tuttle v. Martin, 32, Conn.Sup. 297 (1975), a landlord who had commenced a summary process action endorsed a tenant's checks, writing on them "accept for use and occupancy only," and depositing them. The court restated the maxim that "the acceptance of rent after a forfeiture waives that forfeiture and creates or accepts a new tenancy," Tuttle v. Martin, supra, 32 Conn.Sup. at 299 (citing Hartford Wheel Club v. Travelers Ins. Co., 78 Conn. 355, 359 (1905), Camp v. Scott. 12 Conn. 366, 370, and Hudson v. Kuszynski, 12 Conn.Sup. 264, 266), and held that by depositing the payments, the landlord "did in fact accept the defendant's check in payment of rent and such acceptance in fact waived the claimed forfeiture or termination." Tuttle v. Martin, supra, 32 Conn.Sup. at 301.
In Hintlian v. Beachard, SPN-8203-3512-WE, (H-324) (April 8, 1982) (Mahoney, J.), where the parties had a day-to-day tenancy, and the plaintiff landlord accepted current payments and chose to continue prosecution its nonpayment eviction action, the court stated that:
There is no question that a landlord who has served a notice to quit on a nonpaying tenant may thereafter accept payments from the tenant and, provided he notifies the tenant that the payments are for use and occupancy only, continue to maintain his summary process action. Damato v. Jones, SP-H-7907-2446-MR (Superior Court, Housing Session, Hartford, September 12, 1979). In the absence of such notification, however, the payment will be construed as current rent, whether or not it is sufficient to cover the entire sum of unpaid rent, and will renew the tenancy.
CONCLUSION
There is no merit to the defendant's first argument. The "mail box" rule does not apply to this case because the parties had not established the method of payment of rent by mail.
The Court holds that by giving a receipt for April rent, and calling it rent, the plaintiff reinstated the defendant in writing on a monthly oral lease. Although the receipt was written and signed by the plaintiff's wife, she was authorized to act as agent for the plaintiff. The plaintiff testified that his wife is empowered to represent him in his landlord transactions.
Judgment is rendered for the defendant.
BY THE COURT:
Angelo L. dos Santos, J.