Opinion
No. HDSP-137826
September 1, 2006
MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
I STATEMENT OF CASE
This is a summary process action based on nonpayment of rent. The plaintiff, hereinafter ("Landlord"), seeks to evict the defendants, hereinafter ("Tenants"). The Landlord alleges that the Tenants failed to pay the rent for the months of November 2005, and thereafter. The Tenants allege the following special defenses: (1) All rent was paid prior to service of the Notice to Quit; (2) Condition of the premises; and (3) Retaliatory action by the landlord. The case was tried to the Court on July 31, 2006.
The complaint alleges, as the only ground for eviction, the nonpayment of rent. However, at trial, the Landlord also raised the issue of the nonpayment of late fees. General Statutes § 47a-23(a)(1)(D) authorizes a summary process action based on "nonpayment of rent within the grace period provided for residential property in section 47a-15a . . ." "Rent" is defined as "[a]ll periodic payments to be made to the landlord under the rental agreement." § 47a-1(h). Late fees are not considered rent. "`It has always been the policy of our law to limit the issues in an action of summary process to a few simple ones within the express scope of the statutory provisions.' Webb v. Ambler, 125 Conn. 543, 550-51, 7 A.2d 228 (1939). `Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.' Jo-Mark Sand Gravel Co. v. Pentanella, 139 Conn. 598, 600-01, 96 A.2d 217 (1953). `The purpose of summary process proceedings . . . is to permit the landlord to recover possession on termination of a lease . . . without suffering the delay, loss and expense to which he may be subjected under a common-law action . . . The process is intended to be summary and is designed to provide an expeditious remedy to the landlord seeking possession.' Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973)." Ossen v. Wanat, 217 Conn. 313, 317, 585 A.2d 685 (1991). Accordingly, the nonpayment of late fees is not properly before this court.
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 458, 876 A.2d 535 (2005).
II FACTS
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"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. Eoaneu, 61 Conn.App. 329, 333, 763 A.2d 199 (2001).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
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).
Tait's Handbook of Connecticut Evidence (3rd Ed. 2001) § 3.5.1, pp. 140-41:
"§ 3.5.1 Civil Cases: More Probable Than Not
In the ordinary civil case, a party satisfies his or her burden of persuasion if the evidence, considered fairly and impartially, induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact or issue is true. Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d 708 (1968); Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958). It is not necessary that the proof negate all other possibilities or that it reach the degree of certainty that excludes every other reasonable conclusion. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (1968). This burden is sometimes expressed as proof by a preponderance of the evidence, Vigorito v. Allard, 143 Conn. 70, 71, 118 A.2d 906 (1955), but such preponderance does not refer to the number of witnesses but rather the evidence that is superior and more likely to be in accord with the facts, Verdi v. Donahue, 91 Conn. 448, 450, 99 A. 1041 (1917). The quality of the evidence controls, not the quantity. State v. Williams, 195 Conn. 1, 13, 485 A.2d 570 (1985).
When the evidence is equally balanced or in equipoise, then the proponent has not met his or her burden of persuasion. Brodie v. Connecticut Co., 87 Conn. 363, 364, 87 A. 798 (1913). A party has not met the burden of persuasion merely because the evidence is uncontested or uncontroverted because the trier, as the judge of credibility, may disbelieve such evidence. Mercer v. Mercer, 131 Conn. 352, 353, 39 A.2d 879 (1944).
The burden of persuasion can be satisfied by circumstantial evidence if the trier finds that the facts from which the trier is asked to draw the interference are proved and that the inference is not only logical and reasonable but also strong enough so that it can be found to be more probable than not. Terminal Taxi Co. v. Flynn, 156 Conn. at 316; Hennessey v. Hennessey, 145 Conn. At 214."
The Court finds the following facts by a fair preponderance of the evidence.
The Tenants' answer admits all but one of the material allegations of the complaint. The Tenants agree that on or about September 1, 2005, the parties entered into a lease for rental of the property known as 96 South Water Street, East Windsor, Connecticut, for the monthly rent of $975 payable in advance on the first day of each and every month. The Tenants took possession of the premises pursuant to the written lease and still occupy the premises. On May 23, 2006, the Landlord caused a Notice to Quit Possession to be duly served on the Tenants to quit possession of the leased premises on or before May 29, 2006, as required by law. Although the time designated in the notice to quit possession of the premises has passed, the Tenants still continue in possession. The Tenants disagree that they failed to pay the monthly rent due under the lease on November 1, 2005, and thereafter.
"The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971)." Rodearrnel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977); "An admission in pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).
The Landlord is the owner of the premises at 96 South Water Street, East Windsor, Connecticut. The lease agreement was signed in July 2005 for the lease term on September 1, 2005 to August 31, 2006. The agreed-upon rent was $975 per month.
The Landlord testified that the rent was not paid by the tenth of November 2005. The Tenants testified that the rent check, dated November 8, 2005, was mailed on that day. The Landlord deposited the check on November 16, 2005.
In December 2005, the rent check, dated December 10, 2006, was received after the tenth of the month. The Landlord deposited the check on December 14, 2005.
In January 2006, after discussions, the parties agreed that the Tenants could pay the January 2006 rent late, but they also had to pay the February 2006 rent and the water charges. On or about January 28, 2006, the Tenants gave the Landlord a check in the amount of $2025, which covered the rent for January 2006 and February 2006, as well as the water charges. The Landlord deposited the check on February 6, 2006. The Tenants paid the rent on time for the months of February 2006 through May 2006.
On May 23, 2006, the Tenants were served with a Notice to Quit Possession. When the notice to quit was served, the rent was paid in full, albeit late for November 2005, December 2005, and January 2006. There was no rent arrearage.
III DISCUSSION A Landlord's Case
In a summary process action based on nonpayment of rent, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. 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 § 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.
B Tenants' Defenses (1)
All rent was paid prior to service of the Notice to Quit. The Tenants allege that all rent was paid to the Landlord before the Notice to Quit was served.
"It is well established that a lessor may not assert a forfeiture of a lease for failure to pay rent due under the lease where, with knowledge of the breach of the lease, he accepts rent from the lessee. Borst v. Ruff, 137 Conn. 359, 361-62, 77 A.2d 343 (1950). Nonpayment of rent does not, in itself, terminate a lease, but gives the lessor the option to terminate the lease by some unequivocal action clearly showing the exercise of that option, and a tender of rent after a breach of the covenant of payment, but before a declaration of forfeiture by some unequivocal act by the lessor, precludes the lessor from thereafter completing a forfeiture of the lease. Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961)." Yervant v. BAJ Corporation, 4 Conn.App. 84, 85, 492 A.2d 521 (1985).
It is the nonpayment of rent by a tenant that gives the landlord the option to terminate a lease. Webb v. Ambler, 125 Conn. 543, 550-51, 7 A.2d 228 (1939). In order to exercise his option to terminate the lease, the landlord must do so by an unequivocal act. Sandrew v. Pequot Drug, Inc., 4 Conn.App. 627, 631, 495 A.2d 1127 (1985). A statutory notice to quit is such an unequivocal act. O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946); Vogel v. Bacus, 133 Conn. 95, 98, 48 A.2d 237 (1946).
In the present case, the Court finds that the Tenants tendered and the Landlord accepted the rent for November 2005, December 2005, and January 2006. The Tenants tendered the full rent after the breach, but before any declaration of forfeiture by some unequivocal act by the Landlord. The Landlord accepted and retained rent for the months in question. He also accepted as "rental income" payments from the Tenants for the months of February 2006 through May 2006. The Landlord did not exercise his option to terminate the lease for nonpayment of rent until the notice to quit was served on May 23, 2006. When the notice to quit was served, the rent was paid in full.
"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." (Citations omitted.) Tait's, Handbook of Connecticut Evidence (3rd Ed. 2001) § 3.3.1, p. 136. The evidence supports the finding that all rent was paid to the Landlord prior to the service of the Notice to Quit. Based on the evidence presented, the Court finds that the Tenants have proved, by a fair preponderance of the evidence, this defense.
(2) Condition of the premises
The Tenants argue that no rent is due because the Landlord failed to properly maintain the premises.
"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.) 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."
"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; internal quotation marks omitted.) Elkies v. Bear, Superior Court, judicial district of New Haven at Meriden, Docket No. SPM CV 04-0287606 (July 6, 2004, Frazzini, J.) ( 2004 Ct.Sup. 10984).
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, Superior Court, 2004 Ct.Sup. 10984. "[T]he sanctions in these sections [§§ 47a-7 and 47a-4a inclusive] 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, 450-51, 547 A.2d 935 (1988).
In this case, the evidence does not support the finding that the Tenants' obligation to pay rent under the lease was vitiated by the condition of the premises. Based on the evidence presented, the Court finds that the Tenants have failed to establish, by a fair preponderance of the evidence, this defense.
(3) Retaliatory Action pursuant to § 47a-20 and § 47a-33
As the Second Special Defense, the Tenants allege retaliatory action pursuant to § 47a-20 and § 47a-33.
General Statutes Sec. 47a-20, entitled "Retaliatory action by landlord prohibited," provides:
A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants' union.
However, General Statutes Sec. 47a-20a, entitled "Actions deemed not retaliatory," states:
(a) Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit if: (1) The tenant is using the dwelling unit for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent; (2) the landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode; (3) the condition complained of was caused by the wilful actions of the tenant or another person in his household or a person on the premises with his consent; or (4) the landlord seeks to recover possession on the basis of a notice to terminate a periodic tenancy, which notice was given to the tenant before the tenant's complaint.
(b) Notwithstanding the provisions of section 47a-20, a landlord may increase the rent of a tenant if: (1) The condition complained of was caused by the lack of due care by the tenant or another person of his household or a person on the premises with his consent or (2) the landlord has become liable for a substantial increase in property taxes, or a substantial increase in other maintenance or operating costs not associated with his complying with the complaint, not less than four months before the demand for an increase in rent, and the increase in rent does not exceed the prorated portion of the net increase in taxes or costs.
(c) Nothing in this section or section 47a-20 shall be construed to in any way limit the defense provided in section 47a-33. (Emphasis added.)
Furthermore, General Statutes § 47a-33, entitled "Defense that action is retaliatory," provides:
In any action for summary process under this chapter or section 21-80 it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, including contacting officials of the state or of any town, city, borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any of the provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie. The obligation on the part of the defendant to pay rent or the reasonable value of the use and occupancy of the premises which are the subject of any such action shall not be abrogated or diminished by any provision of this section. (Emphasis added.)
"As we have said on prior occasions, retaliation is not a defense to a summary process action brought because of nonpayment of rent. Smith v. Worsham, SPNH 8207-2132 (September 8, 1982); Jacobson v. Johnson, SPNH 8207-2006 (September 8, 1982); Maretz v. Apuzzo, 34 Conn.Sup. 594, 597 (1977)." Mordecai v. Botwe-Asamoah, Superior Court, judicial district of New Haven, Docket No. 8208-2228 (September 29, 1982, Foti, J.). See Bordiere v. Ramirez, Superior Court, judicial district of New Britain, housing court, Docket No. SPN 99 1031769 (December 23, 1999, Tanzer, J.) ( 1999 Ct.Sup. 16934, 16935-13936) ( 28 Conn. L. Rptr. 359). In Bordiere, the court held that "[w]hile the temporal sequence of the complaints and service of the notice would be significant in deciding a claim of retaliatory eviction, I need not determine the point in this case because neither General Statutes § 47a-20 nor General Statutes § 47a-33 pertains where the reason for the eviction is nonpayment of rent. General Statutes § 47a-20a entitled `Actions deemed not retaliatory' states, `Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit . . . for nonpayment of rent . . .' This defense is not available to the defendants." Bordiere v. Ramirez, supra, Superior Court, 1999 Ct.Sup. 16935-13936.
On the facts of this case, the Court concludes that this special defense does not apply.
IV CONCLUSION AND ORDER
The Court finds that the Tenants have proved, by a fair preponderance of the evidence, all rent was paid prior to service of the Notice to Quit. As to this defense, the Tenants have demonstrated that the Landlord has no cause of action. See Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Therefore, judgment may enter for the Tenants.