Opinion
No. DN SNSP 032955
February 9, 2007
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
ISSUE
Whether the plaintiff's status as neither owner nor lessor of the property renders his notice to quit defective, depriving the court of subject matter jurisdiction in this case. This court holds that the plaintiff's status as sublessor provides him with standing to issue a notice to quit Accordingly, the defendant's motion to dismiss for lack of subject matter jurisdiction is denied.
FACTS
This is a summary process action in which the plaintiff, J. Stephen Sheils, seeks to evict the defendant, Jeremy D. Poth, from a unit in a cooperative housing development in Greenwich, Connecticut. The plaintiff states that in 1997, his mother, Eleanor Poth, entered into a proprietary lease with Putnam Park Apartments, Incorporated (lessor). Eleanor Poth resided in the property with her son, the defendant, until her death on August 16, 2006. In 1997, Eleanor Poth created a qualified residence trust (trust), to which she assigned her proprietary lease as trust res. The plaintiff alleges that at the time of Eleanor Poth's death, he was the sole trustee of the trust and also the sole beneficiary of the premises. Additionally, the plaintiff is the executor of Eleanor Poth's estate. In his complaint, the plaintiff claims that the defendant's right to occupy the premises terminated as of Eleanor Poth's death on August 16, 2006; and alternatively, the plaintiff claims that on July 1, 2006, he requested that the defendant pay rent on a monthly basis, and that the defendant has refused to comply. On August 17, 2006, the plaintiff served the defendant with a notice to quit possession. In the notice, the plaintiff requested that the defendant vacate the premises on or before September 1, 2006, because he has no right to possession and there has been a lapse of time.
Cooperative ownership is defined as "a form of ownership in which each owner of stock in a cooperative apartment building or housing corporation receives a proprietary lease on a specific apartment and is obliged to pay a rental which represents the proportionate share of operating expenses and debt service on the underlying mortgage, which is paid by the corporation." (Internal quotation marks omitted.) Sun Valley Camping Cooperative, Inc. v. Stafford, 94 Conn. App. 696, 713, 894 A.2d 349 (2006).
On September 18, 2006, the defendant filed a motion to dismiss and an accompanying memorandum, on the ground that the court lacks subject matter jurisdiction because the plaintiff's notice to quit was improper. The plaintiff filed a memorandum in opposition to the defendant's motion on September 28, 2006.
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. . . . 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, a 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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The defendant argues that the plaintiff's notice to quit was improper because only the owner or lessor may issue a notice to quit. Although the defendant concedes that sublessors also have standing, he argues that the plaintiff does not qualify as a sublessor under the terms of the proprietary lease, absent the lessor's written consent. In response, the plaintiff asserts that the terms of the proprietary lease require the lessor's approval to validate an assignment as it relates to the lessor's rights, and does not effect the rights of the plaintiff as against the defendant. The crux of the defendant's argument is that the plaintiff lacks standing because he is not a sublessor, as the assignment of the proprietary lease to the trust was invalid absent the lessor's approval, as explicitly required by the lease. Relevant case law, however, dictates that the defendant's position is meritless because he is not the proper party to assert noncompliance with a lease provision restricting assignments. In M.R. Wachob Co. v. MBM Partnership, 232 Conn. 645, 656 A.2d 1036 (1995), the defendant attempted to evade an obligation under an assignment by asserting the fact that a non-party landlord had not approved the assignment Id., 665-66. The court held that the landlord's restriction could not be enforced by the defendant: "It is generally said that a restriction against assignment or subletting is for the landlord's benefit. . . . Such a covenant, therefore, can be enforced only by the landlord or his assignee." (Citation omitted; internal quotation marks omitted.) Id. In the present case, the defendant is not the landlord's assignee, nor is the landlord a party to the action. Accordingly, the defendant cannot avail himself to assert a breach of the assignment restriction in the proprietary lease.
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "A court does not have subject matter jurisdiction to hear a matter unless the plaintiff has standing to bring the action. . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit [in other words, statutorily aggrieved] or is classically aggrieved." (Citation omitted; internal quotation marks omitted.) Western Boot Clothing Co. v. L'Enfance Magique, Inc. 81 Conn. App. 486, 488-89, 840 A.2d 574, cert. denied, 269 Conn. 903, 852 A.2d 737 (2004).
The relevant language in the proprietary lease agreement provides that a "lessee shall not assign this lease or transfer the shares to which it is appurtenant, or any interest therein, and no such assignment or transfer shall take effect as against the lessor for any purpose, unless and until . . ." a series of steps, including written authorization, have been completed.
Contrary to the defendant's argument, the plaintiff does have standing to issue a notice to quit under General Statutes § 47a-23 (a). Section 47a-23 (a) sets out the requirements for a proper notice to quit and it provides that an "owner or lessor, or the owner's or lessor's legal representative, or the owner's or lessor's attorney-at-law, or in-fact . . ." is allowed to issue a notice to quit possession. The Appellate Court recently held that a party with a beneficial interest in the contested property is a proper party to issue a notice to quit. Western Boot Clothing Co. v. L'Enfance Magique, supra, 81 Conn. App. 490-91. In Western Boot, a sublessee appealed from a default judgment in a summary process action, arguing that the plaintiff sublessor had no standing to bring the action, as the plaintiff was neither an owner nor lessor pursuant to § 47a-23 (a). Id., 488-89. The court rejected the defendant's rigid interpretation of the statute and indicated that General Statutes § 47a-1(e) defines an owner as "one who has a beneficial interest in the premises and the right to possession." Id., 490. The court ruled that "[b]y virtue of its master lease with the landlord, the plaintiff had a beneficial interest in the premises" and had standing to bring its summary process action against the defendant. Id., 491. Following the rule in Western Boot, the plaintiff has standing as a sublessor who may properly issue a notice to quit. As the trustee, the plaintiff has legal title to the proprietary lease, giving him a beneficial interest in the property.
"The trustee's standing to sue arises out of its legal title to the trust res. . . . The trustee has a title (generally legal title) to the trust property, usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct." Second Exeter Corp. v. Epstein, 5 Conn. App. 427, 429, 499 A.2d 429 (1985), cert. denied, 198 Conn. 802, 502 A.2d 932 (1986).
Furthermore, the plaintiff is not only the trustee, but he is also the executor of Eleanor Poth's estate. Even if the defendant's claims regarding the invalidity of the assignment to the trust were valid, the plaintiff would still have a beneficial interest in the property as Eleanor Poth's legal representative. As her legal representative, according to Western Boot, the plaintiff would have standing under § 47a-23 (a) by virtue of the decedent's master lease with the original lessor.
Therefore, the defendant's motion to dismiss is denied. As a result of his trustee status, the plaintiff has standing as a sublessor to issue a notice to quit possession.
THE COURT
GROGINS, J T.R.