Opinion
No. HCH-525.
April 24, 2007.
MEMORANDUM OF DECISION HOUSING CODE ENFORCEMENT ACTION
I STATEMENT OF CASE
This is a housing code enforcement action brought by the plaintiff-tenant pursuant to General Statutes § 47a-14h. The defendant-landlord has filed an answer/special defenses/counterclaim. The matter was tried by the court on April 23, 2007.
II FINDINGS OF FACT
The following facts were either admitted and/or proved at trial by a fair preponderance of the evidence.
"The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971)." Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977); "An admission in pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).
"The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971)." Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977); "An admission in pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn. App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony. . . .It is the quintessential function of the fact finder to reject or accept certain evidence. . . ." (Citations omitted; internal quotation marks omitted.)" In re Antonio M., 56 Conn. App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 333, 763 A.2d 199 (2001).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible. . . .It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses. . . .The trier of fact may accept or reject the testimony of any witness. . . .The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn. App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn. App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
"While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id." Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992).
The standard of proof, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
The defendant is the owner of the premises located at 140 Cannon Road, East Hartford, Connecticut. The plaintiff is the tenant. The tenant moved into the apartment on or about October 1, 2006. On December 29, 2006, the parties entered into the current lease agreement. The monthly rent is $775.00, of which the plaintiff's portion is $653.00. On or about March 5, 2007, the tenant made a complaint about the premises to the local housing inspector. The complaint was made at least twenty-one days before the filing of this action. The tenant had not been served by the landlord with a notice to quit prior to making the complaint with the appropriate municipal agency.
The tenant testified that while she has lived in the apartment, the landlord has failed to make timely repairs. She had taken off from work several times to be available at the premises, but the repairs were not made. Finally, she became so frustrated that she made a complaint to the local housing inspector. On March 5, 2007, the premises were inspected and a few violations were found. There was a plumbing problem related to the tub/shower providing insufficient hot water, and the deadbolt for the front exterior door was in disrepair. The landlord was notified of the violations and given until April 5, 2007, to correct the violations.
The tenant testified that she also did not have heat in the apartment on or about March 8, 2007 through March 16, 2007. At some point, the tenant complained of a gas smell. A gas technician was called and inspected the furnace. He was concerned that someone was tampering with a gas valve.
Prior to the tenant's complaint to the housing inspector, on or about March 1, 2007, the local fire inspector had provided the tenant with a form entitled "Notice Regarding Smoke Detectors." All the tenants were required to complete the form. The tenant claimed that she gave the form to the landlord in March 2007. The landlord disputed that he ever received a completed form from the tenant. On April 17, 2007, the tenant faxed a completed form to the local fire inspector.
After the inspection, the landlord arranged for a friend of his son, Nari Viveros, to contact the tenant to address the issues relating to the inspection. The landlord wanted another party to contact the tenant because his recent conversations with the tenant had not gone well. Viveros reached the tenant on or about March 10, 2007. The tenant was informed that Viveros was calling to make arrangements for workers to come to the apartment to make the necessary repairs. Viveros also had a back-door key to give the tenant. She told the tenant that the landlord was willing to replace the lock altogether, if requested. The tenant told Viveros that she did not want the workers coming to the apartment and refused to schedule an appointment. She did not contest Viveros' authority to act on the landlord's behalf, but she demanded to speak to the landlord and did not want to speak to anyone else. Viveros asked the tenant several times about scheduling an appointment, but the tenant refused to do so.
On or about March 14, 2007, the landlord sent a letter to the tenant regarding several issues. The landlord expressed concern with the tenant's use of profanity during their most recent communication. He understood that the tenant did not want him to come to her apartment. He noted that she was able to directly make an appointment with the gas technician to address any issues with the furnace. The landlord doubted the tenant's repeated complaints about problems with the furnace and hot water based on prior unfounded reports and the alleged tampering of the gas valve. He asked the tenant to contact him if there were any other problems. The landlord was concerned that the tenant had not yet complied with the local fire inspector's request to complete the smoke detector letter.
The landlord had sent a similar letter to the tenant several weeks earlier. On or about February 8, 2007, the landlord wrote the tenant expressing concerns regarding the situation. The landlord expressed his belief that he was fulfilling his responsibility to make repairs and was, in fact, exceeding his obligations under the lease.
After the March 14, 2007 telephone conversation, Viveros continued her efforts to contact the tenant to schedule the necessary repairs. She left several messages for the tenant. On or about April 12, 2007, Viveros finally spoke with the tenant. Viveros again asked the tenant to schedule an appointment to make the necessary repairs. The tenant was again offered a key for the back door or a new lock. The tenant refused the landlord's efforts to address the problems with the apartment. The tenant indicated that she was not interested because she was already taking the landlord to court.
The landlord claimed that the tenant was motivated to make a housing code complaint because she wanted to break the lease, get her security deposit back, and move to an apartment in West Hartford with heat and hot water included.
Additional facts will be provided, as needed, that were proved by a fair preponderance of the evidence.
III DISCUSSION
"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." (Citations omitted). Tait's, Handbook of Connecticut Evidence (3rd Ed. 2001) Sec. 3.3.1, p. 136.
A Plaintiff's Case
"The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992).
(1)
Housing Code Enforcement Action The tenant alleges that the landlord has failed to perform his legal duty to maintain the premises under General Statutes § 47a-7.
In order to prevail in a housing code enforcement action, the tenant must satisfy the requirements of General Statutes Sec. 47a-14h.
General Statutes § 47a-14h (a) provides in relevant part: "Action by individual tenant to enforce landlord's responsibilities. Payment of rent into court. (a) Any tenant who claims that his landlord has failed to perform his legal duties, as required by section 47a-7 or subdivisions (1) to (13), inclusive, of subsection (a) of section 21-82, 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."
"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. . . ." § 47a-14h (b).
The tenant must prove, by a fair preponderance of the evidence, that the landlord has failed to perform his or her legal duty to maintain the premises under § 47a-7. General Statutes § 47a-7 provides in relevant part: "Sec. 47a-7. Landlord's responsibilities. (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."
If the tenant proves that the landlord has failed to perform his or her duty under § 47a-7, the court may order appropriate relief. "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 his 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) 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)." § 47a-14h (e). "The 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." § 47a-14h (g).
The landlord has several options. "The landlord, by counterclaim, may request and the court may issue an order compelling the tenant to comply with his duties under section 47a-11." § 47a-14h (f). In addition, "[t]he landlord may, at any time, move for the termination of payment into court and the clerk shall promptly schedule a hearing on such motion. If the court finds that the violations of section 47a-7 have been corrected, it shall enter a judgment with respect to the rights and obligations of the parties in the action and with respect to the distribution of any money held by the clerk." § 47a-14h (i).
B Defense Case (1) Answer
"The defendant in the answer shall specially deny such allegations of the complaint as the defendant who intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally. . . ." Practice Book § 10-46.
The landlord denies that he failed to perform his legal duty to maintain the premises under § 47a-7.
(2) Special Defense
"[A] special defense is not an independent action; rather, it is an attempt to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 447 n. 10, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).
The landlord contends that he made several attempts to address the repairs cited by the local housing inspector, but the tenant refused access to the premises.
(3)
Counterclaim
"In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff. . . provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the0 subject of the plaintiffs complaint. . . ." Practice Book § 10-10. Unlike a special defense, "a counterclaim . . . is . . . an independent action. . . ." (Internal quotation marks omitted.) Valentine v. LaBow, supra, 95 Conn. App. 447 n. 10. "The term [counterclaim] itself is a general and comprehensive one, naturally including within its meaning all manner of permissible counter-demands. . . . [T]he word counterclaim was intended to be the generic term for all cross demands other than setoffs, whether in law or in equity." (Citation omitted; internal quotation marks omitted.) Gattoni v. Zaccaro, 52 Conn. App. 274, 280, 727 A.2d 706 (1999).
By way of counterclaims, the landlord alleges that the tenant has failed to comply with her statutory responsibilities pursuant to § 47a-11, in the following ways: the tenant has refused to schedule appointments or to allow the landlord access to the premises to make the necessary repairs, the tenant has refused to accept a key from the landlord, the tenant has refused to readily comply with the local fire codes relating to smoke detectors, and the tenant has impaired the gas valve leading to the furnace.
Sec. 47a-11. Tenant's responsibilities.
A tenant shall: (a) Comply with all obligations primarily imposed upon tenants by applicable provisions of any building, housing or fire code materially affecting health and safety; (b) keep such part of the premises that he occupies and uses as clean and safe as the condition of the premises permit; (c) remove from his dwelling unit all ashes, garbage, rubbish and other waste in a clean and safe manner to the place provided by the landlord pursuant to subdivision (5) of subsection (a) of section 47a-7; (d) keep all plumbing fixtures and appliances in the dwelling unit or used by the tenant as clean as the condition of each such fixture or appliance permits; (e) use all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators, in the premises in a reasonable manner; (f) not wilfully or negligently destroy, deface, damage, impair or remove any part of the premises or permit any other person to do so; (g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises or constitute a nuisance, as defined in section 47a-32, or a serious nuisance, as defined in section 47a-15; and (h) if judgment has entered against a member of the tenant's household pursuant to subsection (c) of section 47a-26h for serious nuisance by using the premises for the illegal sale of drugs, not permit such person to resume occupancy of the dwelling unit, except with the consent of the landlord.
Sec. 47a-16. When landlord may enter rented unit.
(a) A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed to repairs, alterations or improvements, supply necessary or agreed to services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.
(b) A landlord may enter the dwelling unit without consent of the tenant in case of emergency.
(c) A landlord shall not abuse the right of entry or use such right of entry to harass the tenant. The landlord shall give the tenant reasonable written or oral notice of his intent to enter and may enter only at reasonable times, except in case of emergency.
(d) A landlord may not enter the dwelling unit without the consent of the tenant except (1) in case of emergency, (2) as permitted by section 47a-16a, (3) pursuant to a court order, or (4) if the tenant has abandoned or surrendered the premises.
Sec. 47a-18. Judicial relief if tenant refuses entry.
If the tenant refuses to allow entry pursuant to section 47a-16 or section 47a-16a, the landlord may obtain a declaratory judgment or injunctive relief to compel access or terminate the rental agreement. In either case the landlord may recover actual damages and reasonable attorney's fees.
C Analysis
Based on the evidence presented, the court makes the following findings as to the respective claims and defenses.
On or about December 29, 2006, the landlord and tenant entered into a lease agreement. The lease provided that: "We may enter the Apartment at reasonable time to make necessary repairs or changes that we have agreed to1 make,. . .We will give you reasonable notice of our intent to enter the Apartment. You will not unreasonably deny us the right to enter the apartment. . . ." ¶ 9.
The evidence was unclear as to what problems the tenant had before she made a complaint to the housing inspector. While the tenant claimed that the landlord was not responsive to her concerns, the landlord contended that he made the requested repairs. By March 2007, there was evident tension in the landlord-tenant relationship.
On or about March 5, 2007, the tenant made a complaint to the local housing inspector. The inspector found a few code violations in the apartment. The violations consisted of the following: a plumbing problem related to the tub/shower providing insufficient hot water, and the deadbolt for the front exterior door was in disrepair.
After the landlord was notified of the violations, he made good faith efforts through his agent, Viveros, to make the necessary repairs. The tenant, however, refused to schedule an appointment or allow access to the apartment. The landlord was unable to make the repairs due to the tenant's unreasonable refusal to cooperate. Although the tenant was still frustrated based on her past dealings with the landlord, she was not justified in refusing access to the apartment for the code violation repairs. She appeared to be motivated, in part, by a desire to move to another apartment before the lease term expired. While these code violations were significant, the evidence failed to demonstrate that the premises were ever rendered unfit or uninhabitable during the period in question.
IV2 CONCLUSION AND ORDER
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 § 47a-7. Therefore, judgment is entered for the landlord. Any monies paid into court are ordered disbursed to the landlord.
The tenant is ordered to allow the landlord's agents access to the premises to repair the code violations. If the parties are unable to reach an agreement on an appointment, the tenant is ordered to allow the landlord's agents access to the premises to make the necessary repairs on May 12, 2007, between 10:00 a.m. and 5:00 p.m.