Peck v. Von Staats, No. MMX Housing 17757

Full title: MICHAEL RUBEN PECK ET AL. v. C. DONALD VON STAATS

Court: Connecticut Superior Court Judicial District of Middlesex, Housing Session at Middletown

Date published: Nov 22, 2010

2010 Ct. Sup. 22632 (Conn. Super. Ct. 2010)

Opinion

No. MMX HOUSING 17757

November 22, 2010

MEMORANDUM OF DECISION

RICHARD E. BURKE, Judge.

This is a housing code enforcement action brought by the plaintiff-tenant pursuant to Connecticut General Statutes Sec. 47a-14h. The matter was tried by the court on July 27, 2010. The plaintiff has asserted the following against the defendant landlord.

Failure to comply with all applicable building, housing and health codes, including but not limited to: pool violations as to fencing and safety locks; pool health violations from improper covering over standing water triggering allergic reactions and disease; improper cesspool in violation of Section 6(d) of Essex Wastewater Management (no exemptions applicable since a) the property has been transferred; and b) the property is income producing). Lack of compliance includes failure to make all repairs and do whatever is necessary to put and keep premises in fit and habitable condition.

Relevant Statutes

General Statutes § 47a-14b provides in relevant part: (a) any tenant who claims that his landlord has failed to perform his legal duties, as required by Section 47a-7 . . . may institute an action in the superior court having jurisdiction over housing matters in the judicial district in which he resides to obtain the relief authorized by this section and Sections 47a-20 and 47a-68. No tenant may institute an action under this section if a valid notice to quit possession or occupancy based upon nonpayment of rent has been served on him prior to his institution of an action under this section or if a valid notice to quit possession or occupancy based on any other ground has been served on him prior to his making the complaint to the agency referred to in subsection (b) of this section, provided any such notice to quit is still effective.

"(b) The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of Section 47a-7; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. The complaint shall also allege that at least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have been violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance."

General Statutes § 47a-7 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.

"(b) If any provision of any municipal ordinance, building code or fire code requires a greater duty of the landlord than is imposed under subsection (a) of this section, then such provision of such ordinance or code shall take precedence over the provision requiring such lesser duty in said subsection."

The Elements of a Housing Code Enforcement Action

In Grant v. Urban Developers, LLC, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 7136754 (May 24, 2006, Bentivegna, J.), the court, Bentivegna, J., articulated the elements of a tenant's action pursuant to § 47a-14h to compel the landlord to perform his statutory duties pursuant to § 47a-7: "The remedies available to a tenant in the event of the landlord's breach of his statutory duties include a tenant complaint action to compel the landlord to perform his legal duties . . . Pursuant to General Statutes § 47a-14h, a tenant may initiate an action to compel the landlord to meet his/her statutory responsibilities under General Statutes § 47a-7 . . . The tenant has the burden of proof [by a preponderance of the evidence] in a tenant complaint case, also referred to as a housing code enforcement action or payment into court action. The essential elements of the case are as follows: (1) The plaintiff is a tenant at the premises; (2) The defendant is the landlord of the premises; (3) The parties entered into an oral/written lease agreement for a term of one week/month/year; (4) The tenant pays an agreed-upon rent by a certain date and the rent has been paid to the landlord; (5) At least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have been violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance; (6) The tenant has not been served with a notice to quit based upon nonpayment of rent prior to the institution of this action, and has not been served with a notice to quit based on any other ground prior to his making the complaint, provided any such notice to quit is still effective; (7) The landlord has failed to perform his/her legal duty to maintain the premises under 47a-7, in the following ways (list violations)." (Emphasis omitted.)

In summary, prior to filing the complaint, the tenant must not have been served with a valid notice to quit. Furthermore, at least twenty-one days prior to filing the complaint, the tenant must report the alleged housing code violations to the agency responsible for enforcing the housing codes. Notification to the housing code enforcement agency is mandatory, but there is no requirement that the notification be in writing, and whether the tenant complied with this requirement is a question of fact Balint v. Casale, 40 Conn.App. 595, 598, 672 A.2d 508 (1996). Twenty-one days after notifying the enforcement agency, the tenant may file a complaint pursuant to § 47a-14h(b). Additionally, on each rent due date beginning on or after the date the complaint is filed, the tenant must deposit with the court clerk an amount equal to the rent due, and the tenant's failure to make such payment may result in the complaint being dismissed. Section 47a-14h(h); Wilson v. Jefferson, 98 Conn.App. 147, 159 n. 9, 908 A.2d 13 (2006). The court clerk will schedule a hearing not more than fourteen days after the complaint is filed; § 47a-14h(c); and at the hearing, the tenant must prove by a preponderance of the evidence that the landlord violated his statutory obligations pursuant to § 47a-7. The court must weigh the evidence and assess the credibility of the witnesses; Balint v. Casale, supra, 40 Conn.App. 599; and whether the alleged violations existed is a question of fact. Shipman v. Carr, 38 Conn.Sup 393, 395, 449 A.2d 187 (1982).

Relief Available Under § 47a-14h

General Statutes § 47a-14h(e) provides: "The complainant may seek and the court may order interim or final relief including, but not limited to, the following: (1) An order compelling the landlord to comply with the landlord's duties under local, state or federal law; (2) an order appointing a receiver to collect rent or to correct conditions in the property which violate local, state or federal law; (3) an order staying other proceedings concerning the same property; (4) an award of money damages, which may include a retroactive abatement of rent paid pursuant to subsection (h) of this section; and (5) such other relief in law or equity as the court may deem proper. If the court orders a retroactive abatement of rent pursuant to subdivision (4) of this subsection and all or a portion of the tenant's rent was deposited with the court pursuant to subsection (h) of this section by a housing authority, municipality, state agency or similar entity, any rent ordered to be returned shall be returned to the tenant and such entity in proportion to the amount of rent each deposited with the court pursuant to subsection (h) of this section." Additionally, "[t]he court, in ordering interim or final relief, may order that accrued payments of rent or use and occupancy held by the clerk be used for the repair of the building or be distributed in accordance with the rights of the parties." Section 47a-14h(g).

Section 47a-14h(e) provides for several remedies if the court finds that the landlord has breached his or her statutory duties. The court may order the landlord to repair and correct all housing and building code violations. Gofman v. Almeida, Superior Court, judicial district of New Britain, Housing Session, Docket No. NBSP 046592 (September 22, 2006, Bentivegna, J.); see also Granjales v. Morales, Superior Court, judicial district of New Britain, Housing Session, Docket No. NBSP 045613 (May 1, 2006, Bentivegna, J). Furthermore, the court may, if necessary to address and correct the deficiencies conditions in the property, appoint a receiver of rent; Balint v. Casale, supra, 40 Conn.App. 599-600; and direct that the rent be paid over to the receiver be used exclusively for the repair and maintenance of the premises. Id., 597.

The relief of rent abatement pursuant to § 47a-14h(e)(4) deserves special attention. "[T]he public policy [the residential tenancy scheme of penalties) evidences is one of protecting tenants from conditions that materially affect health and safety . . . There is nothing to suggest that a de minimis violation of a state or local building or housing code that has no such effect would bar recovery of rent." (Citation omitted; internal quotation marks omitted.) AM Towing Recovery, Inc. v. Guay, 282 Conn. 434, 451, 923 A.2d 628 (2007). Moreover, "[a] review of the relevant case law indicates that the sorts of code violations § 47a-7 is concerned with relate specifically to the habitability of the property for the occupants and directly implicate the landlord-tenant relationship." Bray v. Bray, 51 Conn.Sup. 133, 142, 978 A.2d 582 (2008).

Our Appellate Court has concluded that "the sanctions in [§ 47a-14h] 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." (Emphasis added; internal quotation marks omitted.) Visco v. Cody, 16 Conn.App. 444, 450-51, 547 A.2d 935 (1988); Zahradka v. McNulty, Superior Court, judicial district of New Haven, Docket No. CV 04 4000292 (November 4, 2004, Tanzer, J.). Thus, "for a tenant to make a successful claim that he had the right to withhold payment of rent, he must show that the landlord's failure to comply with § 47a-7(a) materially affects his safety . . . or has rendered the premises uninhabitable . . . Furthermore, to establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable." (Citations omitted; internal quotation marks omitted.) Visco v. Cody, supra, 16 Conn.App. 450. Moreover, "[w]hen a tenant has in good faith requested the landlord to make repairs, the repairs must be necessary to maintain the leased premises in a fit and habitable state . . . Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." Patterson v. Dykins, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 148040 (November 10, 2008, Gilligan, J.).

Whether the premises are uninhabitable to the extent that the tenant is relieved of the obligation to pay rent depends on the facts of each individual case. Butt v. Lake, Superior Court, judicial district of New Haven, Housing Session, Docket No. NHSP 093280 (May 13, 2008, Crawford, J.). Conditions that render the premises uninhabitable include depriving a tenant of running water, the presence of lead paint, violations of the fire code, or a combination of violations, such as defective doors and windows and vermin infestation. Bray v. Bray, supra, 51 Conn.Sup. 142. By contrast, a tenant's claim that the premises are untenantable is undermined if the tenant continues to occupy the premises. Johnson v. Fuller, 190 Conn. 552, 558, 461 A.2d 988 (1983); see also Macciaroli v. Giannantoni, Superior Court, judicial district of Litchfield, Geographic Area 18 at Bantam, Docket No. CV 186775 (February 7, 2000, Gill, J.) (remaining in possession of premises after problems arise discredits tenant's claim that premises are unfit and uninhabitable). Furthermore, although the premises may not be uninhabitable, the landlord's failure to perform his or her statutory duties may warrant a partial abatement of rent, though it is the tenant's burden to prove the amount of his or her damages. Whitaker v. Amato, Superior Court, judicial district of New Haven, Housing Session, Docket No. HCNH 9711133 (February 24, 1998, Levin, J.).

CT Page 22638

Analysis

Based on the evidence presented, the court makes the following findings:

On or about August 12, 2009, the landlord (Charles Donald von Staats) and tenants (Michael Ruben Peck and Geraldine Ficarra) entered into a lease agreement for real property located at 109 North Main Street. The property consists primarily of a building used as a law office for both plaintiffs and also as a residence for Geraldine Ficarra.

The plaintiffs have complained about various matters to the landlord including allergy inducing conditions caused from standing water in the pool and cess pool. Moreover, the plaintiffs have complained about the pool violating the town safety ordinances.

There was evidence concerning Geraldine Ficarra's allergies. However, there was also evidence that the plaintiffs sought to extend their lease. And while the Town of Essex originally stated that the pool violated the town's ordinances, the Town changed their position and now say that the landlord is not in violation.

Conclusion

The tenant has failed to prove, by a fair preponderance of the evidence, that the landlord did not perform his legal duty to maintain the premises under C.G.S. Sec. 47a-7. Therefore, judgment is entered for the landlord.