Opinion
No. CV04 0287250-S
May 21, 2004
MEMORANDUM OP DECISION
In this summary process action in which the plaintiff seeks possession of the premises because of non-payment of rent, the defendant denies the non-payment and also interposes the special defense of retaliatory eviction in reliance on both General Statutes §§ 47a-20 and 47a-33.
The allegations of the plaintiff's complaint have either been admitted or proven.
The trial proceeded on the defense of retaliatory eviction, pursuant to General Statutes § 47a-20 which provides:
A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit . . . 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 . . . Any condition constituting a violation . . . of the housing and health ordinances of the municipality wherein the premises . . . lie; (2) any municipal agency official has filed a notice, complaint or order regarding such a violation; (3) tenant has in good faith requested the landlord to make repairs . . .
As noted in Alteri v. Layton, 35 Conn. Sup. 261, 264-65 (1979), Section 47a-20 is recognized not as a right given to tenants but as a limitation of remedies of the landlord. If the tenant establishes that the landlord initiated a summary process action within six months after tenant has in good faith requested repairs, filed a complaint for violation of the housing code with a local official, or a local official has filed a notice regarding such violation, then a presumption of retaliatory eviction arises. The presumption may be rebutted by landlord's producing "substantial countervailing evidence" showing "a legitimate interest in the eviction." Id. p. 264.
The facts of this case relating to the matter at issue are as follows: Defendants took possession of the first floor of a house at 221-23 Camp Street in Meriden pursuant to a written lease at the monthly rent of $800.00. Sometime in January 2004, the defendants complained to the plaintiff about water problems emanating from the washer and about painting needs. It appears that the defendants had complained as well to public officials of the City of Merden. A letter to the plaintiff dated January 16, 2004, enclosed a Certificate of Compliance for the 1st Floor apartment at 221-23 Camp Street, Meriden and stated, "The issuance of a Certificate of Compliance indicates that either at the time of the original inspection or on a subsequent reinspection, the apartment and/or dwelling was found to be in compliance with the Housing Code at that time." It is not clear whether the defendants had complained in January about rat feces on the enclosed porch of their premises. Just two months later, however, a letter to the plaintiff dated March 11, 2004, from the Code Inspector of the City of Meriden indicates that "as a result of a recent inspection the following violations of the Code of the City of Meriden [were noted]: 1) Clean and sanitize the front porch and 2) Remove the boat from the side of the house."
The defendants failed to pay the rent due for March 2004. On March 15, 2004, the defendants were served with notice to quit for non-payment of rent. The defendants claim the plaintiff brought this action because of the complaints they lodged with the plaintiff and with officials.
The evidence does support a finding that the notice to quit was issued after the plaintiff had received complaints from the defendants and after the plaintiff was aware that complaints had been made to city officials. A pivotal issue, however, is whether the matters complained of were of sufficient significance to trigger Section 47a-20 and create the presumption of retaliatory eviction.
Not every request by a tenant for a repair or claim to a municipal official of a housing code violation can invoke § 47-20. As stated in Visco v. Cody, 16 Conn. App. 444, 453 (1988). "If we were to construe repairs as meaning any repairs, no matter how minor, we would encourage the inequitable scenario where month-to-month tenancies are unilaterally transformed into six month tenancies on the basis of a request, albeit in good faith, for the replacement of a light bulb or the tightening of a washer in a leaky faucet. What had been intended as a shield for the benefit of tenants would be metamorphosed into a sword to deprive landlords of their property." "The protection afforded by § 47a-20(3) is not invoked unless the repair requested is one which is necessary to maintain the leased premises in a fit and habitable state." Id. at 454.
The evidence is insufficient to support a finding that the housing code violations in this case, — the need to clean and sanitize the front porch and to remove the boat from the side of the house, — rendered the leased premises in an unfit and uninhabitable condition and in such a state as to trigger the presumption of retaliatory eviction under § 47a-20. That is especially so because the credible evidence is that an exterminator hired by the plaintiff could only service the exterior of the dwelling because the defendants did not allow the exterminator access to the porch. Furthermore, the boat noted as a housing code violation was owned by the defendants who were slow to respond to requests to remove it from the premises. Finally, as evidenced by photographs submitted by the plaintiff, the cluttered state of the porch which the defendants had under their control and kept locked and where they stored their possessions was the source of the uncleanliness.
The defendant also alleges a special defense under § 47a-33. That section provides:
In any action for summary process . . . 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 any town, city . . . any condition constituting a violation . . . of the housing or health ordinances of the municipality wherein the premises subject to the complaint lie.
The defendants have the burden of proof on this special defense. Based on the foregoing, the court concludes that the defendants have failed to meet this burden. Moreover, there was credible evidence that the plaintiff did not bring this action "solely" because of defendants' complaints. Judgment may enter for the plaintiff for possession of the subject premises.
BY THE COURT
Tanzer, Judge