Opinion
No. CV09-17719
September 14, 2010
MOTION TO DISMISS #2
FACTS
The motion to dismiss presently before the court arises out of a summary process action that commenced on April 19, 2010, when the plaintiff, JHP Ventures, LLC, served the defendant, K'Dee Chastain, doing business as D'Vine Studio, with a notice to quit possession of the premises located at 1306 Boston Post Road, Westbrook, CT (the premises) on or before April 23, 2010, on the grounds of nonpayment of rent, breach of lease terms and lapse of time. The notice to quit included a use and occupancy disclaimer, which specified that "[a]ny payments tendered after service of the [n]otice to [q]uit will be accepted for reimbursement of costs and attorneys fees and for use and occupancy only with full reservation of rights to continue with this summary process action."
On May 18, 2010, the plaintiff served the defendant with process, and on May 25, 2010, the plaintiff filed the summary process complaint and therein alleged the following facts. On or about August 15, 2009, the plaintiff and the defendant entered into a commercial lease agreement for the premises. The lease specified that the rent was to be paid on or before the fifteenth of each month. The lease further specified that pets and smoking were not permitted on the premises. The defendant failed to timely pay rent for the months of March, April and May 2010. The defendant also kept pets and smoked on the premises. Although the time given in the notice to quit possession has passed, the defendant continues to reside in the premises. The plaintiff requests a judgment for immediate possession of the premises and such other relief in law or in equity that may pertain.
On June 9, 2010, the defendant filed her appearance and on June 14, 2010, she filed a motion to dismiss supported by a memorandum of law. On June 25, 2010, the plaintiff filed a memorandum of law in opposition. On July 2, 2010, the defendant filed a supplemental memorandum of law in support of her motion to dismiss and the court heard the matter on July 12, 2010.
DISCUSSION
Practice Book § 10-30 provides in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." The motion to dismiss shall be used to assert lack of jurisdiction over the subject matter. Practice Book § 10-31. "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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
"A summary process action is initiated by giving the required notice to quit pursuant to the statute." Marrinan v. Hamer, 5 Conn.App. 101, 103, 497 A.2d 67 (1985). "Service of a valid notice to quit . . . is a condition precedent to a summary process action under § 47a-23 that implicates the trial court's subject matter jurisdiction over that action." (Citation omitted; internal quotation marks omitted.) Waterbury Twin, LLC v. Renal Treatment Centers — Northeast, Inc., 292 Conn. 459, 466, 974 A.2d 626 (2009). Thus, "[t]he failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action." Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988). Conversely, "[a] motion to dismiss, claiming lack of jurisdiction because of a defective notice, must be denied if there has been compliance with the statute." South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 745, 899 A.2d 642 (2006).
The defendant argues that the court should dismiss the plaintiff's summary process complaint for lack of subject matter jurisdiction. Specifically, the defendant contends that the use and occupancy disclaimer in the plaintiff's notice to quit fails to strictly comply with General Statutes § 47a-23(e). In response, the plaintiff counters that the use and occupancy disclaimer is not defective. Specifically, the plaintiff argues that the language in the disclaimer is in compliance with § 47a-23(e).
General Statutes § 47a-23 provides in relevant part: "(a) When the owner or lessor . . . desires to obtain possession or occupancy of any . . . building . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time . . . (C) violation of the rental agreement or lease . . . (E) nonpayment of rent when due for commercial property . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such . . . building . . . at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.
"(b) The notice shall 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) . . .'"
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"(e) 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. A use and occupancy disclaimer may be included in or combined with such notice, provided that such disclaimer does not take effect until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of the completion of the pretermination process, whichever is later. Such inclusion or combination does not thereby render the notice required pursuant to this section equivocal. Such disclaimer shall be in substantially the following form: `Any payments tendered after the date specified to quit possession or occupancy, or the date of the completion of the pretermination process if that is later, will be accepted for use and occupancy only and not for rent, with full reservation of rights to continue with the eviction action.'"
"In order to terminate a lease, a landlord must perform some unequivocal act which clearly demonstrates his intent to terminate the lease." Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn.App. 583 n. 8. "Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease." Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). Also, "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." OP Realty v. Santana, 17 Conn.App. 314, 318, 551 A.2d 1287, cert. denied, 210 Conn. 812, 556 A.2d 610 (1989). "The [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 flawed by the acceptance of rent after commencement of the summary process." Zitomer v. Palmer, 38 Conn.Sup. 341, 344, 446 A.2d 1084 (1982). Furthermore, "[t]here 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." Gray v. Miller, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 128099 (September 3, 2004, dos Santos, J.) ( 37 Conn. L. Rptr. 799, 801). Moreover, "[a] holding that disclaimers such as the one at issue here are ineffective would force landlords to file a motion for use and occupancy payments pursuant to General Statutes § 47a-26b in every case and would require them to return any tendered offers of rent or run the risk of subjecting their summary process actions to dismissal . . . This is not a desirable policy and does not comport with the objectives of the summary process statute." (Citation omitted.) OP Realty v. Santana, supra, 17 Conn.App. 319.
General Statutes § 47a-26b provides in relevant part: "(a) If the defendant appears, the court shall, upon motion and without hearing . . . order the defendant to deposit with the court within ten days of the filing of the motion payments for use and occupancy in an amount equal to the last agreed-upon rent or, in the absence of a prior agreed-upon rent, in an amount equal to the fair rental value of the premises during the pendency of such action accruing from the date of such order."
The defendant argues that the court lacks subject matter jurisdiction to hear this matter because the notice to quit fails to strictly comply with the provisions of § 47a-23(e). Specifically, the defendant contends that the notice to quit "improperly provides that payments after the service of the [n]otice to [q]uit . . . will be accepted as reimbursement of costs and attorneys fees and for use and occupancy only, before resolution of rights. However, the plain and unambiguous terms of [§ 47a-23(e)] only allows for such a disclaimer to take effect after the date specified in the notice for lease or occupant to quit." (Emphasis omitted.) According to the defendant, the court must dismiss the plaintiff's action for lack of subject matter jurisdiction because the plaintiff "failed to follow the mandates of [§ 47a-23(e)]."
In support of her motion, the defendant relies on SOC Group II v. Reyes, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 132553 (September 2, 2005, dos Santos, J.) ( 39 Conn. L. Rptr. 753), which, the defendant contends, "stands for the proposition that a [m]otion to [d]ismiss is appropriate when the caveat in the [n]otice to [q]uit recites that amounts tendered after the service of the [n]otice to [q]uit, rather than the effective date of the [n]otice to [q]uit, will be accepted towards use and occupancy or attorneys fees only." In that case, the plaintiff landlord included in the notice to quit both a termination notice that provided pursuant to federal law a ten-day cure period and a disclaimer that provided that any monies received after service of the notice to quit would be accepted as use and occupancy only. The defendant moved to dismiss the action for lack of subject matter jurisdiction on the ground that the notice to quit was equivocal because the cure period in the termination notice and the use and occupancy disclaimer were inconsistent with each other and failed to comply with § 47a-23(e). The court, Dos Santos, J., sustained the defendant's motion and held that the use and occupancy disclaimer failed to comply with § 47a-23(e) because it "took effect immediately upon service of the notice to quit, not the later of the quit date or the completion of the pretermination process." Id. The court reasoned that "the purpose of the cure period is to avoid or prevent a proposed termination and not nullify an existing termination," and that the disclaimer had no effect under § 47a-23(e) because, had the defendant tendered the rent prior to the end of the cure period, the plaintiff would have had no choice but to accept the payment as rent and not as use and occupancy. Id., 753-54. The court further reasoned, however, that "the use and occupancy provision, as written, could have a chilling effect and dissuade a tenant from tendering the rent to cure the problem on order to prevent the lease's termination. Consequently, the fact that the provision is [noneffective] does not prevent the case from being dismissed." Id., 754.
In response, the plaintiff counters that the use and occupancy disclaimer comports with the purpose and intent of the language required by § 47a-23(e) and, therefore, the court has subject matter jurisdiction over this summary process action. The plaintiff points out that the court in Post Benson Corp. v. Kids Fitness Fairfield, LLC, Superior Court, judicial district of Fairfield, Docket No. BRSP 069958 (March 1, 2010, Moore, J.) ( 49 Conn. L. Rptr. 423) held that a use and occupancy disclaimer almost identical to the one at issue in the present case complied with § 47a-23(e). The defendant in that case, like the defendant in the present case, relied on SOC Group II v. Reyes and argued that the use and occupancy disclaimer in the plaintiff's notice to quit, which provided that "all monies received after the date of service of this notice to quit will be accepted as use and occupancy," violated § 47a-23(e). Id., 424. The court, Moore, J., overruled the defendant's motion and held that the use and occupancy disclaimer was effective and in accordance with the summary process statute. The court, citing Jefferson Garden Associates v. Green, 202 Conn. 128, 143, 520 A.2d 173 (1987), reasoned that strict construction did not require "ritualistic compliance with statutory or regulatory mandates," and held that while § 47a-23(e) does "provide language for disclaimers . . . it further indicates that such disclaimers shall be in substantially the following form. It does not mandate that . . . the language contained in the statute is the only acceptable language." Id. The court also pointed out that the Appellate Court in OP Realty v. Santana, supra, 17 Conn.App. 314 addressed the issue of disclaimers and held that the notice to quit at issue in that case, which included a use and occupancy disclaimer similar to the one at issue in the present case, was effective, and further noted that OP Realty v. Santana has not been overruled.
In the present case, pursuant to Hird service of the notice to quit is an unequivocal act that terminates the lease. Further, the plaintiff is not entitled to a cure period because the federal regulations that provide for pretermination process do not apply here. Thus, the notice to quit is unambiguous and represents an unequivocal act which demonstrates the plaintiff's clear intent to terminate the lease. In addition, as the court in Post Benson Corp. pointed out, § 47a-23(e) provides that the use and occupancy disclaimer "shall be in substantially the following form," which indicates that this provision in the statute is directory and not, as the plaintiff argues, mandatory. Moreover, our courts have repeatedly held that notices to quit containing use and occupancy disclaimers similar to the one at issue in the present case are effective. See, e.g., OP Realty v. Santana, supra, 17 Conn.App. 314; Zitomer v. Palmer, supra, 38 Conn.Sup. 341; Connecticut Constitution Associates, LLC v. Dimauro, Superior Court, judicial district of Hartford, Housing Session, Docket No. H 1253 (March 12, 2004, dos Santos, J.); 105 Woodland Street, LLC v. Ranson, Superior Court, judicial district of New Haven, Docket No. CV 03 0284146 (June 27, 2003, Wiese, J.). Therefore, the use and occupancy disclaimer included in the plaintiff's notice to quit does not render the notice equivocal.
SOC Group II v. Reyes is distinguishable from the present case. In that case, the use and occupancy disclaimer in the notice to quit conflicted with the mandatory cure period provided in the termination notice. Here, the plaintiff is not entitled to a cure period, and, therefore, the chilling effect that concerned the court in SOC Group II is absent.
Accordingly, the court denies the plaintiff's motion to dismiss.