Opinion
No. NH 875
July 3, 2008
MEMORANDUM OF DECISION
This is a Motion to Dismiss. The plaintiff brought this summary process action alleging the following: "1) the tenant permitted persons to come to the dwelling unit who have endangered other residents in the building; 2) intentionally caused damage to the walls and light fixtures in the dwelling unit; 3) permitted persons not on the lease or section 8 agreement to move in and reside in the dwelling unit; and 4) the landlord has elected to rent the dwelling unit at a higher rent, as permitted in the section 8 agreement."The defendant moved to dismiss the action on the following grounds: 1) the plaintiff did not comply with C.G.S. § 47a-15 by failing to advise the defendant that she had a right to cure the breach within fifteen days; and 2) the plaintiff did not list in the notice to quit any ground specified in C.G.S. § 47a-23.
The plaintiff objected to the motion and asserted that the fourth ground did not require notice of a right to cure and the language contained words of similar import to that contained in the statute.
DISCUSSION
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
"As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." (Internal quotation marks omitted.) Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn. App. 37, 44, 726 A.2d 600 (1999).
C.G.S. § 47a-15 requires that a landlord seeking to evict a tenant must serve the tenant with a written notice (KAPA notice) specifying the conduct constituting the breach of the rental agreement and informing the tenant of the allowable fifteen days to remedy the breach before the lease terminates.
The plaintiff notified the defendant by letter dated February 11, 2008 of her intent to terminate the tenancy. The plaintiff specified the conduct which constituted the breach but did not notify the defendant that she had fifteen days to remedy the breach before the lease could be terminated. (Attachment A)
The parties agree that the plaintiff did not provide the required notice to the defendant of the right to remedy the breach. The defendant therefore did not have the opportunity to take any action including informing the individuals referred to in count 1 not to come to the premises and enforcing that ban, repairing the damage to the walls and light fixtures referred to in count 2, or having any individuals referred to in count 3 vacate the premises.
24 CFR CL 1X § 982.310(3)(d)(iv) permits a landlord to terminate a tenancy if there is a desire to lease the unit at a higher rental. However, C.G.S. § 47a-23(a) lists the reasons for issuing a notice to quit. In HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 648, 782 A.2d 165 (2002) the court concluded that the reasons for issuing a notice to quit set forth in § 47a-23(a) are exclusive. General Statutes § 47a-23(a) provides in relevant part: "When the owner or lessor . . . desires to obtain possession or occupancy of. .any apartment in 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; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; (D) non payment of rent within the grace period provided for residential property in section 47a-15a or 21-83; (E) nonpayment of rent when due for commercial property; (F) violation of section 47a-11 or subsection (b) of section 21-824; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80; or (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises; or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated; or (4) when an action of summary process or other action to dispossess a tenant is authorized under subsection (b) of section 47a-23c5 for any of the following reasons: (A) Refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of section 47a-23c, (B) permanent removal by the landlord of the dwelling unit of such tenant from the housing market, or (C) bona fide intention by the landlord to use such dwelling unit as such landlord's principal residence. . . .Therefore, only the grounds listed or words of similar import are permissible reasons for a valid notice to quit.
In this case, the plaintiff did not state any of reasons listed in § 47a-23 in the notice to quit. The defendant argues that the only applicable ground the plaintiff could state is lapse of time. The elements of lapse of time include whether the rental agreement is weekly, monthly or yearly and the date the rental agreement terminated. The plaintiff responded that the court should interpret the language in count 4 to be words of similar import to lapse of time.
The court does not make any finding as to which ground or grounds in § 47a-23(a) is applicable to this tenancy. However, the court finds that the language expressing a desire to rent the unit at a higher price is not expressly stated in the statute and is not of similar import to any grounds recited in the statute.
CONCLUSION
The plaintiff is required, as to counts one, two, and three, to inform the defendant in the KAPA notice that she had fifteen days to cure the breach. The failure to provide such notice deprives the court of subject matter jurisdiction. Furthermore, the reason set forth in count 4 is not one listed in § 47a-23 nor does it contain language similar to that stated. Therefore, only the grounds listed or words of similar import are permissible reasons for the notice to quit to be valid.
Accordingly, the motion to dismiss is granted.
ATTACHMENT A
February 11, 2008
Ms. Toccara Calloway 100 Hobart Street, 2nd floor New Haven, CT 06511
Re: Termination of Your Tenancy
Dear Ms. Calloway:
Please be advised that I represent your landlord, Wanda Moore. You are hereby informed of her intention to terminate your tenancy at 100 Hobart Street, 2nd floor, New Haven, CT. The reasons are that a) you have persons coming to the dwelling unit who, while intending to threaten/harm you, have endangered other residents in the building; b) you have intentionally caused damage to the walls and light fixtures in the dwelling unit; c) your have allowed persons not listed on your lease or in your agreement with Section 8 to move into the dwelling unit; d) additionally, your landlord has decided to rent your dwelling unit at a higher rent, as permitted by your Section 8 agreement. For the foregoing reasons, Ms. Moore has elected to terminate your tenancy, and will be commencing summary process proceedings.
cc: Wanda Moore
Housing Authority of the City of New Haven, Section 8 Coordinator