Opinion
No. HDSP-138268
November 24, 2006
MEMORANDUM OF DECISION MOTION TO DISMISS
I STATEMENT OF THE CASE
This is a summary process action based on nonpayment of rent. The plaintiff seeks immediate possession of the premises. The defendant has moved to dismiss the complaint. The following procedural history is relevant to the disposition of the case.
On or about April 23, 2004, the plaintiff and defendant entered into a HUD model lease agreement.
On March 6, 2006, the plaintiff delivered and mailed to the defendant a pre-termination notice, entitled "Notice of Proposed Termination of Tenancy for Breach of Lease," also known as a KAPA notice. The defendant was notified that he/she was in material noncompliance with the lease agreement, and "[i]f you do not remedy this situation within fifteen days, your rental agreement will terminate without further notice on April 15, 2006, which must be not less than thirty (30) days from the date of mailing of this Notice. . . . After that date an eviction case may begin in court, and you may be served with a complaint. You will have a right to a hearing and to present any defenses you believe you have. . . . Further, please be advised that if a court proceeding for your eviction from this apartment is instituted, you have the right to appear in court and present any defenses you may have to this eviction."
On June 16, 2006, the plaintiff served the defendant with a notice to quit possession based on violation of lease and material noncompliance with lease, with a quit date of June 26, 2006.
On July 10, 2006, the plaintiff served the defendant with an eviction complaint based on violation of lease. On October 30, 2006, the defendant moved to dismiss the complaint on the basis that the notice to quit was defective because of the "Plaintiff's failure to send the required pretermination notice to the Defendant as part of the notice to quit" and that "the Plaintiff failed to send said required notice to the Defendant in the required manner." The plaintiff objected to the motion to dismiss on the grounds that the notice to quit satisfied all the content and delivery requirements.
The matter was heard on November 13, 2006. During oral argument, the defendant conceded that the KAPA notice complied with all the content and delivery requirements. Transcript, November 13, 2006, p. 4 ("For the purposes of this argument I concede that the Kapa notice . . . complies — ").
II DISCUSSION A Motion to Dismiss
"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. Cox v. Aiken, 278 Conn. 204, 210-211, 897 A.2d 71 (2006). The motion to dismiss must comply with Practice Book § 10-31.
Practice Book Sec. 10-31 provides that:
(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
(b) Any adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.
"Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. Each element of jurisdiction is dependent upon both law and fact. Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person. Facts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court are essential to jurisdiction over the subject-matter of the suit. Facts showing that a particular judgment is rendered in compliance with all existing mandatory law in that regard are essential to jurisdiction to render a particular judgment." Castro v. Viera, 207 Conn. 420, 433-434, 541 A.2d 1216 (1988). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Cox v. Aiken, supra, 278 Conn. 211. "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. . . . . A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits. . . . . If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken." (Citations omitted.) Herzog Foundation, Inc. v. Uni. Of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378 (1996).
In this case, there were no accompanying affidavits, no evidentiary hearing was requested or held and the defendant accepted the allegations of the plaintiff's complaint as true, for the purpose of the motion to dismiss only. See Herzog Foundation, Inc. v. Uni. Of Bridgeport, supra, 41 Conn. App. 793.
B Content Requirements
The defendant has moved to dismiss the case on the grounds that the plaintiff's notice to quit was defective because it lacked certain additional language required by federal regulations and the lease agreement. The plaintiff has contended that the notice to quit satisfied all the applicable content requirements.
"[B]efore a landlord may pursue its statutory remedy of summary process under 47a-23, the landlord must prove its compliance with all the applicable preconditions set by state and federal law for the termination of a lease." Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987). "As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175 (1989). "The notice [to quit] is a condition precedent to the bringing of the [summary process] action. . . ." O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946). "The issuance by a landlord of a notice to quit is an unequivocal act terminating the lease agreement with the tenant." (Internal quotation marks omitted.) O'Brien Properties, Inc. v. Rodriquez, 215 Conn. 367, 372, 576 A.2d 469 (1990). "The failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action. . . ." (Citation omitted.) Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 582, 548 A.2d 744 (1988)
"In order to demonstrate its compliance with the notices required for a proper termination, a landlord must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction. . . . To further this salutary purpose, the notice requirements . . . must be construed strictly. . . . Strict construction does not, however, require ritualistic compliance with statutory or regulatory mandates." Jefferson Garden Associates v. Greene, supra, 202 Conn. 143. "Accordingly, the notice must be specific enough to allow a tenant to recognize his violations and either cure or defend against them." Barkan Management Co., Inc. v. Artis, Superior Court, judicial district of New Haven, Docket No. SPNH 951145269 (Jones, J.; February 16, 1996) ( 1996 Ct. Sup. 1420, 1424.)
When "[t]he giving of a sufficient notice is a condition precedent to bringing action. . . . The inquiry always is: Does the notice reasonably protect the interests of the defendant under the particular circumstances of the case?" (Citations omitted.) Schapp v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952). In determining whether a notice to quit complies with all the relevant requirements, the court must look to the particular circumstances of the case.
In this case, the plaintiff served a pre-termination notice that the defendant conceded satisfied all the content requirements. On June 16, 2006, the plaintiff served a notice to quit. The notice must comply with the applicable federal, state and lease requirements.
The federal regulations provide that: "The landlord's determination to terminate the tenancy shall be in writing and shall: (1) State that the tenancy is terminated on a date specified therein; (2) state the reasons for the landlord's action with enough specificity as to enable the tenant to prepare a defense; (3) advise the tenant that if he or she remains in the leased unit on the date specified for termination, the landlord may seek to enforce the termination only by bringing a judicial action, at which time the tenant may present a defense; and (4) be served on the tenant in the manner prescribed by paragraph (b) of this section." 24 CFR Part 247.4 (a).
"The landlord shall not evict any tenant except by judicial action pursuant to State . . . law and in accordance with the [federal] requirements . . ." 24 C.F.R. 247.6(a). General Statutes § 47a-23 provides the statutory basis for an eviction in Connecticut. Under state law, the notice to quit is required to "be in writing substantially in the following form: `I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). A.B.'.". "A copy of such notice shall be delivered to each lessee or occupant or left at such lessee's or occupant's place of residence or, . . ." § 47a-23 (c).
Paragraph 23 (e) of the HUD model lease agreement that was signed by the parties on April 23, 2004, provides that:
If the Landlord proposes to terminate this Agreement, the Landlord agrees to give the Tenant written notice and the grounds for the proposed termination. If the Landlord is terminating this agreement for "other good cause," the termination notice must be mailed to the Tenant and hand-delivered to the dwelling unit in the manner required by HUD at least 30 days before the date the Tenant will be required to move from the unit and in accordance with State law requirements. Notices of proposed termination for other reasons must be given in accordance with any time frames set forth in State and local law. Any HUD-required notice period may run concurrently with any notice period required by State or local law. All termination notices must:
• specify the date this Agreement will be terminated;
• state the grounds for termination with enough detail for the Tenant to prepare a defense;
• advise the Tenant that he/she has 10 days within which to discuss the proposed termination of tenancy with the Landlord. The 10-day period will begin on the earlier of the date the notice was hand-delivered to the unit or the day after the date the notice is mailed. If the Tenant requests the meeting, the Landlord agrees to discuss the proposed termination with the Tenant; and
• advise the Tenant of his/her right to defend the action in court.
"A termination notice required pursuant to federal law and regulations may be included in or combined with the notice required pursuant to this section and such inclusion or combination does not thereby render the notice required pursuant to this section equivocal, provided the rental agreement or lease shall not terminate until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of completion of the pretermination process, whichever is later." § 47a-23 (e). In this case, the plaintiff did not include or combine the notices, as it could have, but instead provided the defendant with both a pre-termination notice and a notice to quit.
At the motion hearing, the defendant cited Chappelle Gardens, Inc., Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP — 133049 (March 24, 2006, Bentivegna, J.). This case can be distinguished from Chappelle Gardens, Inc., on the basis that the plaintiff complied with the pre-termination process. In Chappelle Gardens, Inc., there was no pre-termination notice, and the notice to quit did not include or combine the termination notice required.
Another case cited by the defendant, Wyndwood Associates v. Steele, Superior Court, judicial district of Hartford-New Britain-Hartford, Docket No. SPH-8401-21933 (June 6, 1984, Aronson, J.), can also be differentiated from the present case. While the instant plaintiff gave the required ten day written notice in the pre-termination notice, the plaintiff in Wyndwood failed to do so.
"When good cause for termination of a lease has clearly been shown, and when notices of termination have been sent in strict compliance with statutory timetables, a landlord should not be precluded from pursuing summary eviction proceedings because of hypertechnical dissection of the wording of the notices that he has sent. . . ." (Citations omitted.) Jefferson Garden Associates v. Greene, supra, 202 Conn. 143-145.
Under the particular circumstances of this case, the court must determine whether the notice to quit sufficiently complied with all the relevant requirements. The defendant has conceded that the pre-termination notice was not defective. The notice to quit provided the following information: the address of the premises, the termination date, and the specific reason for the termination so as to enable the defendant to prepare a defense. Both the pre-termination notice and the notice to quit satisfied the applicable content requirements. The notices sufficiently apprised the defendant of the information needed to protect against premature, discriminatory or arbitrary eviction and prepare a defense. When the notice to quit was served, the defendant was clearly on notice of the plaintiff's intent to bring an eviction action if the defendant did not vacate. The notice to quit satisfies all the relevant requirements and reasonably protects the interests of the defendant under the particular circumstances of the case.
C Delivery Requirements
The defendant has alleged that the plaintiff failed to deliver the notice to quit in the required manner. The plaintiff has argued that the notice to quit was delivered in accordance with all the requirements.
In the instant case, the defendant has conceded that the pre-termination process was not defective in this regard. The pretermination notice was delivered in person and by first class mail, as required. Unlike the defendant in Devcon Management v Pope, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. SPN-802-1098-NB (April 14, 1980, Spada, J.), the defendant in this case was properly served with a "preliminary notice." Id.
The notice to quit was served by abode service on June 16, 2006. Section 47a-23 (c) provides that: "A copy of such notice shall be delivered to each lessee or occupant or left at such lessee's or occupant's place of residence . . ." The notice to quit may, but need not be, combined or included with the pre-termination notice. § 47a-23 (e). Both the pre-termination notice and the notice to quit were delivered in accordance with all the relevant requirements.
III CONCLUSION AND ORDER
For the above-stated reasons, the court denies the motion to dismiss.