Opinion
No. BRSP-069958
March 1, 2010
MEMORANDUM OF DECISION
This summary process action was brought by the plaintiff, Post Benson Corporation c/o Albert Phelps, Inc. (Post), against the defendant, Kids Fitness Fairfield LLC d/b/a My Gym Children's Fitness (Kids Fitness) for non payment of rent. The defendant has moved to dismiss the action based on his claim that the court lacks jurisdiction because (i) the plaintiff failed to comply with the pre-termination process and notice requirements under the lease, (ii) the plaintiff failed to comply with the notice requirements under the lease with regard to additional rents and/or (iii) the plaintiff's use and occupancy disclaimer language in the Notice to Quit served in this matter is in contravention of the purpose and intent of the language required by Connecticut General Statutes.
"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.2nd 71 (2006). When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. In this regard, the court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. Cogswell v. American Transit Ins. Co., 282 Conn 505, 923 A.2d. 638 (2007).
This action is based on a lease signed by the plaintiff and MEAJ, LLC, d/b/a/ My Gym Children Fitness Center on June 23, 2000. The lease was assigned to the defendant by an assignment and assumption of lease agreement dated March 14, 2008. The plaintiff has alleged in its complaint that the defendant has failed to pay base rent (Count I) and additional rent (Count II) as per the lease. The defendant has alleged in its Motion to Dismiss that the plaintiff has not complied with the notice requirements of the lease, thereby making the notice to quit premature and depriving this court of jurisdiction.
Section 25.01 of the lease, Events of Default, states, in relevant part, "if Tenant shall fail (a) to pay in full any installment of Minimum Rent within ten days of the day when same shall have become due; or (b) to pay in full, when due, any other rents, charges or other sums reserved hereunder within ten (10) days after notice shall have been given to Tenant. . . ."
"Upon the occurrence of any Event of Default, Landlord shall also have the right, at its option, in addition to and not in limitation of any other right or remedy, to terminate this Lease by giving Tenant three (3) days notice of cancellation. . . ." Article 37 of the lease states that "[e]very notice, demand, consent, approval, request, or other communication which may be or is required to be given under this Lease or by law shall be in writing and shall be sent by United States Certified or Registered Mail, postage prepaid, return receipt requested. . . ."
It should be noted that the language of § 25.01 does not require any notices as to subsection (a). It is plainly stated that the rent is due within ten days of the due date which was previously specified in the lease. Historically, a notice to quit is sufficient to start a summary process action provided it complies with the statutory requirements. The three-day notice of cancellation in this case is an optional notice, one which could be exercised by the landlord but it is not required by the lease to start a summary process action for non payment of rent. The obligation to pay the rent when due is fundamental to any lease, one which the tenant should know without reminder, and the failure to do so should not further actions on the landlord unless the lease so indicates. A careful reading of the complete lease between these parties clearly does not require a greater obligation from the plaintiff. Furthermore, the optional language of the section distinctly states that the three-day notice is in addition to and does not limits the landlord from any other right or remedy it may have under the lease.
The subsection (b) of § 25.01 does require a ten-day notice in regards to any other rent, charges or other sums reserved under the terms of the lease. However, that notice, and the ten-day period to which it refers, speaks to the time that the tenant is told about any sums that might be due under the terms of the lease and the time period that the tenant has to pay such sums. The plaintiff has alleged that the tenant was notified of sums due and owing in April 2009, May 2009, June 2009 and July 2009. The court, in reviewing the complaint in the light most favorable to the plaintiff and accepting facts necessarily implied from the allegations, would not have any reason to question that these notices were done improperly. Section 25.01 does not require, as the defendant has argued, the landlord to send a ten-day notice as a prerequisite to starting a summary process action. In regards to the optional three day notice and subsection (b), the court's previous discussion as why this language should not be considered a bar to the action for summary process applies here as well.
The defendant has further alleged in its motion to dismiss that the plaintiff's use and occupancy disclaimer language in the Notice to Quit served in this matter is in contravention of the purpose and intent of the language required by Connecticut General Statutes. The disclaimer in the present case states that "all monies received after the date of service of this notice to quit will be accepted as use and occupancy. . . ." The defendant argues that this disclaimer is in violation of Connecticut General Statutes since the statute allows such disclaimers provided that such disclaimer does not take effect until after the date specified in the notice for the lessee or occupant to quit possession. The defendant has submitted the rationale of SOC Group II LP v. Reyes, 2005 WL 2143713 (Conn. Super. 2005) in support of its argument. This court does not adopt the reasoning of that court.
"In order to demonstrate its compliance with the notices required for a proper termination, a landlord must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction. . . . To further this salutary purpose, the notice requirements . . . must be construed strictly. Strict construction does not, however, require ritualistic compliance with statutory or regulatory mandates." Jefferson Garden Associates v. Greene, 202 Conn 128, 143, 520 A.2d. 173 (1987).
Connecticut General Statutes § 47a-23(e) does provide language for disclaimers but it further indicates that the such disclaimers shall be in substantially the following form. It does not mandate that it is the language contained in the statute is the only acceptable language. The Appellate of Connecticut in O P Realty v. Lucy Santana, 17 Conn. App. 314, (1988) addressed the issue of disclaimers. The disclaimer in that notice to quit was as follows: "Notice is hereby given that effective this date any monies received by the landlord will be accepted as use and occupancy only." The court found that the disclaimer contained in appellees' notice to quit was effective and in accordance with the objectives of the summary process statute. This court has not been presented with any documentation that this precedent is no longer controlling.
Accordingly, the defendant's motion to dismiss is denied.