Opinion
No. CV 08 5004967S
July 13, 2010
MEMORANDUM OF DECISION
This is an action for waste brought by the plaintiff, The Landmark Trust, USA, as remainderman, against the defendant, Maura Smithies, the holder of a life estate on property known as 417 Sharon-Goshen Turnpike and 37 River Road in West Cornwall, Connecticut ("the property"). The plaintiff alleges that the defendant committed waste by failing to repair the property after a fire, thereby diminishing the value of the property. The defendant has been represented by counsel while the defendant has represented herself. The case was tried to the court. Both parties have filed post-trial briefs.
Facts Found
The property consists of 0.71 acres of land improved with two buildings. The first building ("main house") is a two-family home built in 1870 that includes a total of twelve rooms, six bedrooms, three full bathrooms, and 3,418 square feet of above-ground, finished living area. The building is an accessory dwelling, which was a barn in 1800 and converted into a residence ten years ago. It consists of three rooms, two bedrooms, two full bathrooms, and 1,419 square feet of above-ground living area. The property was conveyed to the defendant and her husband, Richard Smithies, in 1970. They lived in the main house and maintained the property in excellent condition.
The plaintiff is a non-profit corporation whose corporate mission is to restore and preserve properties of historic interest. In 1998 the defendant and her husband contacted the plaintiff and invited the plaintiff's president, David Tansey, to visit the property to see if it might be of interest to his organization. Negotiations began between the parties and a warranty deed was drafted conveying the property to the plaintiff, without consideration, subject to a life estate described as follows: "Subject to a life estate in favor of the Smithies jointly and of whichever one of them survives the other, with the right to receive the income, rents, royalties from the property during the term of such life estate." The deed also provides that the conveyance is: "Subject to a mortgage dated February 28, 1997, Loan No. 2818785, in favor of the First Union Mortgage Corp., which the Smithies undertake to pay when due." Although discussions were still on-going concerning payment of real estate taxes, insurance and repairs, the defendant and her husband duly executed the warranty deed and recorded it on the Cornwall land records on December 21, 1998 without completing the negotiations.
Subsequent to the conveyance of the property to the plaintiff, the defendant continued to live in the main house. She rented the apartment in the main house and kept the rents. She paid the real estate taxes and insurance on the property. She made various upgrades to the property at her expense. On December 12, 2005 the defendant stopped paying for the property insurance. In 2007 the defendant stopped paying the property taxes on the property.
On January 7, 2008 the main house on the property was severely damaged by a fire. The portion of the property where the defendant lived was especially damaged. The electricity and water have both been disconnected. Major damage was done to the structure by the firefighters in controlling the blaze, and the entire building was rendered unfit for human habitation. The defendant's general handyman and carpenter, Mr. Wolfe, has made some temporary repairs to the building to make it water tight. The defendant is now living in the accessory building.
In accordance with a local ordinance, a building permit to carry out needed repairs at the property cannot be issued until back taxes are paid to the Town of Cornwall. The repairs which need to be done as a result of the fire involve the roof, the ceilings and walls, as well as the electrical and plumbing systems. The plaintiff did not allege, nor did it offer evidence, that the fire was caused by any act or neglect of the defendant.
The plaintiff presented evidence of substantial fire damage to the structure and the heating, electrical and water supply systems. The plaintiff also presented evidence of deferred maintenance which has accumulated since the fire. Mark Hamilton, a licensed real estate appraiser, offered credible, uncontradicted testimony which the court finds to be reasonable and accurate. First, Mr. Hamilton determined that just before the fire, the property had a gross market value of $765,000 and the value of the defendant's life estate was $435,000. Therefore, prior to the fire, the net market value of the property, subject to the life estate, was $330,000. The cost to cure deferred maintenance which has accrued since the fire is $50,000 and the cost to cure the fire damage is $400,000. Finally, Mr. Hamilton determined that the value of the defendant's life estate currently is $180,000. He used these figures to conclude that the market value of the plaintiff's remainder estate after the fire is $135,000. Therefore, comparing the "before" value of $330,000 with the "after" value of $135,000 results in a net loss the plaintiff of $195,000.
The plaintiff claims money damages in the amount of $195,000.
Discussion
The plaintiff's one-count amended complaint dated November 14, 2009 alleges that the defendant's failure to make necessary repairs to the property, to maintain the property and to repair the damage from the fire constitutes waste pursuant to C.G.S. § 52-563. As a result of the alleged waste, the plaintiff alleges that the market value of the property has been greatly diminished. The plaintiff claims money damages and a declaratory judgment terminating the life estate of the defendant.
The plaintiffs brief claims that the defendant has committed waste by failing to make repairs following the fire, failure to maintain a policy of insurance on the property, and failure to pay property taxes. The last two of these claims can be disposed of quickly. The amended complaint does not allege that the defendant committed waste by failing to maintain property insurance or for failing to pay property taxes. The plaintiff is limited to the allegations of its amended complaint. Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686 (2003). "The [trial] court is not permitted to decide issues outside of those raised in the pleadings." (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn.App. 801, n. 1 (2005). The only allegation of waste in the amended complaint is for failure to make necessary repairs to the property, to maintain the property and to repair the damage from the fire.
C.G.S. § 52-563 provides: "Any person who, having no greater interest in real property than an estate for years, or life, created by the act of the parties and not by the act of the law, commits waste upon the premises, beyond what tenants for years or life created by operation of law may do, shall be liable to the party injured in an action on this section, unless he was expressly authorized, by the contract under which the interest is created, to do the acts complained of."
Waste is not defined by the statute. Apart from § 52-563, Connecticut has surprisingly little law on the tort of waste. A 1991 Supreme Court case contains most of the black letter law that exists:
"The law of waste functionally balances the conflicting desires of persons who have interests in the same land. This body of law may be considered as a set of standards designed to compel persons to live up to the terms of various agreements that are explicit or implicit in the circumstances that give rise to an existent split in ownership. Waste is commonly regarded as a species of tort that may generally be defined as the destruction, misuse, alteration, or neglect of premises by one lawfully in possession thereof, to the prejudice of the estate or interest therein of another." Remedies for Waste Committed by Tenant for Life or Years or by Other Party in Possession of Real Property, 47 Am. Jur. Proof of Facts 3d 399 Sec. 2. See, also, 8 Powell on Real Property, Sec. 56.01.
"`A life tenant is bound to keep the land and the structures comprising the estate in as good repair as they were when he took them, not excepting ordinary or natural wear and tear . . .' Ferguson v. Rochford, 84 Conn. 202, 205, 79 A. 177 (1911); see 4A G. Thompson, Real Property § 1900, p. 30: 5 R. Powell, Real Property § 640[3], p. 56-23. The obligation to make ordinary repairs is twofold. The tenant not only has the duty to make ordinary repairs required to remedy a presently existing condition of substantial disrepair that may have injured the property substantially or permanently, but also has the duty to make any ordinary repairs necessary to prevent the property from progressively declining to the point where its deterioration, and the resultant injury to the inheritance, is substantial or permanent. See 1 Restatement, Property § 139, comment (c); 5R. Powell, supra, p. 56-22 (`duty to keep the premises in repair to prevent serious injury to the property.'). In discharging the latter duty to make preventive repairs, for example, `if a new roof is needed, [the tenant] is bound to put it on: if paint wears off, he is bound to repaint.' Feguson v. Rochford, supra." Zauner v. Brewer, 220 Conn. 176, 184-85 (1991).
The plaintiff claims that this language from the Zauner case dictates a finding that the plaintiff has committed waste by failing to maintain the property and to repair the damage done by the fire. In opposition to this argument the defendant makes the following claim in her brief:
"In fact, the rule in Connecticut is that the repair of fire damage is not the responsibility of the life tenant, unless the fire was due to its negligence, which in this case it was not." Unfortunately, the defendant gives no case citation for this statement. The court has searched in vain for Connecticut cases which support the proposition quoted by the defendant.
However, there is support in the Restatement of Property for a general statement that at common law a life tenant is ordinarily not liable for waste as a result of accidental damage to the property. Keeping in mind that the quotation from the Zauner case set forth above is based in part upon Section 139 of the Restatement of Property, it is instructive to refer to Section 146 of the Restatement which states: "The duty of the owner of an estate for life to preserve the land and structures in a reasonable state of repair (§ 139) does not include any duty of such owner to be answerable for the damage caused to such land or structures by the conduct of a stranger, by accident, or by extraordinary force of nature, except to the extent that such owner negligently fails to prevent such damage." Illustrations 4 and 5 are helpful:
"4. A, owning Blackacre in fee simple absolute, transfers Blackacre `to B for life.' B and all his family are absent from Blackacre at the time when C, a neighbor residing on adjacent land, negligently causes a grass fire which causes all the paint on one side of the house located on Blackacre to blister and peel off, leaving wood unprotected against the weather. B has no duty to A to repaint this part of the house, except to the extent necessary to prevent further progressive deterioration of the structure.
5. A, owning Blackacre in fee simple absolute, transfers Blackacre `to B for life.' C, a neighbor, negligently sets a fire on his own premises which spreads to Blackacre. B makes all reasonable efforts to extinguish the fire forthwith. Before these efforts are successful several holes are burned through the roof of the house on Blackacre. B has no duty to A to repair this roof, but is liable for negligently failing to prevent further damage, if he fails to cover these holes in a fashion sufficient to prevent further progressive deterioration of the interior of the house by rain and weather."
A second authority cited with favor by the Connecticut Supreme Court in the Zauner case is Powell, Real Property. In Section 56.05[2] of the current edition, the authors discuss the tenant's duty to repair. It includes this statement: "A tenant is not responsible for rebuilding a structure that was dilapidated from the beginning of the possession or destroyed by fire or natural catastrophe, unless the tenant was at fault. 8 Powell on Real Property, § 56.05[2]." The footnote for this proposition states: "Coke on Littleton 53b (18th ed. 1823); 2 Co. Inst. 303. An early English statute, 6 Anne. Ch. 31 (1707), expressly relieved tenants from liability for the consequences of `unavoidable accidents,' not an act of God or of a public enemy. IV Kent, Commentaries 82 concludes that, in America, waste never included injury cause by an accidental fire, and some states have enacted statutes so providing, as in Del. Code Am., Tit. 25, § 906; La. Civ. Code Ann., Art. 2723; N.J. Rev. Stat. Ann. § 2A:65-7. See also Earle v. Arbogast, 180 Pa. 409, 36 A. 923 (1897)."
Further support for the general rule cited above is found in American Jurisprudence 2d in its chapter on waste: "Loss or injury by accidental fire, without fault on the part of the tenant, is not ordinarily regarded as constituting waste. Thus, injury to the premises by a fire caused by the negligence of a third person does not constitute waste where the tenant is free from fault." 78 Am.Jur.2d, Waste, § 25. One of the cases cited in support of this statement of the law is from the neighboring state of Rhode Island. In Sampson v. Grogan, 21 R.I. 174, 42 A. 712 (1899), the Rhode Island Supreme Court affirmed the sustaining of a demurrer to a complaint for waste brought by a remainderman against a life tenant following the total destruction of the house on the property which was the subject of the life estate. The court undertook a fascinating review of the history of waste since ancient common law in England. As a result of that review the court concludes: "If a building is destroyed by fire through the carelessness or negligence of the tenant, or of his servants, which is the same thing, he is, and ought to be, responsible in damages therefor; for he is bound to the exercise of due care and diligence in the use of property the fee of which is in another. But he is not, and cannot in reason be held liable for damages caused by an accident, where he is entirely free from fault." (Citations omitted.) Id., 181-82.
Although there is no direct Connecticut precedent, the court concludes that the plaintiff is unable to recover for waste committed by a life tenant for failing to repair major fire damage not caused by negligence of the tenant. There is no evidence that the defendant was negligent in causing the fire at the property. However, the plaintiff is entitled to recover for waste committed by the defendant in failing to perform ordinary maintenance subsequent to the fire. This falls squarely within the principles set forth in Zauner cited above. This item is reflected as deferred maintenance in Mr. Hamilton's report. The gross cost to cure this routine maintenance is $50,000.
"In determining the proper measure of damages for injury to land, `[t]he legal effort . . . is to compensate the landowner for the damage done.' D. Dobbs, Remedies (1973) § 5.1, p. 311. This is essentially true whether the injury is redressed under a theory of tort or breach of contract. Id. `The basic measure of damages for injury to real property is the resultant diminution in its value." (Citations omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 58-59 (1998).
The plaintiff offered evidence for the diminishment in the plaintiff's remainder interest in the property caused by the fire damage and the deferred maintenance, but not the deferred maintenance alone. However, the deferred maintenance cost to cure of $50,000 is 11.11% of the total cost figure of $450,000. For this reason, the damages for the deferred maintenance should represent 11.11% of the total damage assessed by Mr. Hamilton. 11.11% of $195,000 is $21,664.50. The court will award monetary damages to the plaintiff in this amount.
The plaintiff also seeks a declaratory judgment terminating the defendant's life estate. However, the plaintiff admits in its brief that the case was not pleaded as a declaratory judgment action. For this reason, the brief asks the court to grant this relief as part of the usual claim for "any such other relief in law or equity as may pertain."
The plaintiff argues that the court should order the termination of the defendant's life estate because money damages will not be an adequate remedy. The plaintiff points to the defendant's testimony that she lives on social security and has no funds to pay money damages. Therefore, the plaintiff argues that only an equitable remedy terminating the defendant's life estate will make the plaintiff whole.
The plaintiff has not presented any precedent for termination of the defendant's life estate. In furtherance of its duty of candor to the court, it has also brought to the court's attention two Superior Court cases which have held that forfeiture of the life estate is not available under C.G.S. § 52-563. See, Northrup v. Northrup, Superior Court, judicial district of Hartford, at Hartford, Docket No. 054011599 (July 28, 2005) [ 39 Conn. L. Rptr. 805], and Stratford v. Mudre, Superior Court, judicial district of Fairfield, at Bridgeport, Docket No. 910280198 (November 18, 1993) [ 10 Conn. L. Rptr. 364]. The plaintiff argues that both cases are wrongly decided and are not binding on this court. Instead, the plaintiff asks the court to focus on the language of § 52-563 which, it argues, does not specifically limit recovery to money damages.
The modern view is that forfeiture is not a remedy for waste in the absence of a permissive statute. Contrary to the position taken by the plaintiff, the court does not read § 52-563 to include a remedy of forfeiture of a life estate for waste. The statute uses the words ". . . shall be liable to the party injured in an action on this section . . ." This language does not clearly include a right of forfeiture. In the absence of clear language giving the plaintiff the right of forfeiture, the court is unable to award this relief.
See, Remedies for Waste Committed by Tenant for Life or Years or by Other Party in Possession of Real Estate, 47 Am. Jr. Proof of Facts 3d 399, Sections 4 and 26 for a helpful discussion of the historical development of the law of waste.
Finally, the plaintiff asks the court to consider an alternative remedy which, rather than terminating the plaintiff's use, would restrict it to the converted barn where she now lives, thereby permitting the plaintiff to restore the main building and/or to sell the property subject to the defendant's limited use. As with the remedy of forfeiture, the court is unable to find any authority which would permit it to grant such relief. Absent such authority, the court is disinclined to attempt to fashion this relief.
Judgment shall enter in favor of the plaintiff ordering the defendant to pay monetary damages in the amount of $21,664.50 plus costs.