Opinion
No. CVWA-9802-01481
March 4, 1998
MEMORANDUM OF DECISION
This is an action claiming a forcible entry and detainer, pursuant to General Statutes § 47a-43 "`The process of entry and detainer is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, who has been deprived of it, may be restored to the possession and enjoyment of that property. For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendants' entry. Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987). The question of whether the plaintiff was in actual possession at the time of the defendants' entry is one for the trier of fact. Communiter Break Co. v. Scinto, 196 Conn. 390, 394, 493 A.2d 182 (1985). Generally, the inquiry is whether the one claiming actual possession has exercised the dominion and control that owners of like property usually exercise, although it is not necessary to show a continuous personal presence on the land. Id., 394.' Catropa v. Bargas, 17 Conn. App. 285, 289, 551 A.2d 1282 (1989)." Barszck v. Solnit, 46 Conn. App. 112, 117, 698 A.2d 358 (1997). The burden of proof is on the plaintiff. Communiter Break Co. v. Scinto, supra, 196 Conn. 393.
General Statutes "Sec. 47a-43. (Formerly Sec. 52-462). Complaint and procedure: Forcible entry and detainer; entry and detainer. (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.
"(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.
"(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.
"(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present."
The court finds that in 1994, the plaintiff, who had a small tool and dye operation, was evicted from his business premises. At or about that time, the defendants were starting such a business. The defendant Van Buren told the plaintiff that he could put his equipment in the premises the defendants were leasing, so long as the defendants had access to and could use that equipment. The plaintiff also was afforded access to and use of his equipment. No particular area was assigned for the equipment, no written agreement was made, no monies were paid by the plaintiff to the defendants or others.
The court finds that the plaintiff has not proven by a fair preponderance of the evidence that he was in actual possession of the premises — that is, that he, individually or by the presence of his equipment, exercised the dominion and control that owners of like property usually exercise. See and compare Communiter Break Service Co. v. Scinto, supra, 196 Conn. 394.
In addition, the plaintiff has not been denied access to his equipment in the manner contemplated by General Statutes § 47a-43. He still has sufficient access to that equipment. That one of the defendants may have told him to remove his equipment does not bring this case within the ambit of the statute. See Harbor View Building Corporation, Inc. v. Baron, 10 Conn. Sup. 100, 101-102 (1941), cited with approval in Communiter Break Co. v. Scinto, supra, 196 Conn. 392.
Judgment may enter for the defendants.
BY THE COURT
Bruce L. Levin Judge of the Superior Court