Opinion
No. HDSP-128104
September 24, 2004
MEMORANDUM OF DECISION
This summary process action was brought by the plaintiff, James C. Macomber, trustee of the James C. Macomber Trust, who seeks possession of the condominium unit ("premises") known as 90 Kane Street, Unit D2, West Hartford, Connecticut. The defendants, Luis Sanchez and Edith Sanchez, who are in possession of the said premises allege that this is a retaliatory eviction by the plaintiff because they complained about the condition of their apartment.
DISCUSSION
On September 1, 1999, the plaintiff and the defendants entered into a one-year written lease for the premises. Thereafter, on September 1, 2000, the parties executed another lease for an additional year. As of the date of the second notice to quit, the defendants have occupied the premises under an oral month-to-month lease.
The defendant, Luis Sanchez, testified that on October 4, 2003 he sent a letter to the plaintiff that listed several deficiencies in the premises. The plaintiff admitted that he received the letter. The plaintiff explained that the complaints were the responsibility of the condominium association.
On November 28, 2003, the plaintiff sent to the defendants a written notice that the premises had been sold and requested that the defendants vacate the premises by December 31, 2003. In addition, on December 19, 2003 the plaintiff caused the defendants to be served with a notice to quit possession of the premises not later than December 31, 2003, alleging non-payment of rent. After receipt of the notice to quit, the defendants tendered payments, which were accepted by the plaintiff as rent. Consequently, the defendants' tenancy was reinstated on a month-to-month basis.
On March 4, 2004 the plaintiff caused the defendants to be served with another notice to quit possession of the premises not later than March 31, 2004 for lapse of time. On March 25, 2004, the defendant, Luis Sanchez contacted the West Hartford/Bloomfield Health District requesting an inspection to determine compliance with the West Hartford property maintenance code. On April 1, 2004, Gerald Del Gaizo, an environmental sanitarian for the health district, inspected the premises. On April 2, 2004 Del Gaizo sent a letter to the plaintiff setting forth the items to be repaired by the plaintiff. The letter was received by the plaintiff on April 7, 2004.
On April 1, 2004 the plaintiff brought a complaint against the defendants based on lapse of time. The defendants answered the complaint and alleged special defenses.
The defendants allege that this eviction proceeding is retaliatory, in violation of Conn. Gen. Stat. § 47a-20(3). This Section 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: (3) the tenant has in good faith requested the landlord to make repairs.
The defendants did not complain to public authorities until after they received the second notice to quit and they do not claim a violation of the remaining three (3) subsections of § 47a-20.
In Altieri v. Layton, 35 Conn.Sup. 261, 264 (1979), the trial court (Spada, J.) held: "The establishment of a prima facie case by a tenant under any one or more of the four prescribed acts would give rise to a presumption of retaliatory action by a landlord. Once the tenant has produced sufficient evidence to bring himself within one or more of those four actions, then a prima facie case will have resulted."
In the October 4, 2003 letter to the plaintiff, Luis Sanchez complained about deficiencies with the function of the toilet, no doors to the shower and a water leak from the premises' air conditioning unit. The issue, then, is whether the defendants' request to make these repairs triggers the presumption afforded by Conn. Gen. Stat. § 47a-20.
After Altieri, supra, the Appellate Court visited the issue regarding the applicability of § 47a-20. In Visco v. Cody, 16 Conn.App. 444, 453 (1988), the court held that: "An adequate and fair balancing of the rights involved may be achieved by requiring the requested repair to be one `necessary to put and keep the premises in a fit and habitable condition." Visco, supra, further defined the applicability of Conn. Gen. Stat. § 47a-20.
"Whether or not the defect complained of goes to the tenantability of the property is question of fact to be determined by the trier." Johnson v. Fuller, 190 Conn. 552, 556 (1983). Del Gaizo testified and the Court finds that that the repairs involved were of a marginal or minor nature. The premises occupied by the defendants had multiple bathrooms. One of the conditions complained of by the defendants was beyond the plaintiff's control; specifically, the water leak in the air conditioner. The plaintiff testified that the defendants had denied him and the condominium association access to the premises to make repairs.
CONCLUSION
The defendants are not entitled to the presumption of a retaliatory eviction under the provisions of Conn. Gen. Stat. § 47a-20(3). The repairs sought in the October 4, 2003 letter to the plaintiff did not make the premises unfit or uninhabitable. There is no merit to the remaining defenses.
Judgment may enter for the plaintiff for immediate possession of the premises.
BY THE COURT:
Angelo L. dos Santos, Judge