Opinion
No. SPNH 9702-49735
March 21, 1997
MEMORANDUM OF DECISION
The plaintiff's summary process complaint, the third in six months, alleges that on February 18, 1996, the plaintiff and the defendant entered into an oral month to month lease with a monthly rental of $450.00. The complaint further alleges that the defendant took possession, that the lease has terminated by lapse of time and that the defendant failed to pay rent for the period November 18, 1996 through December 17, 1996. On January 16, 1997 the plaintiff had served the defendant with a notice to quit on or before January 25, 1997 for "(1) nonpayment of rent when due for the period November 18, 1996 through December 17, 1996; (2) lapse of time." The defendant has moved to dismiss the action.
I
The first ground of the defendant's motion to dismiss is that service of the complaint was not made six days before the complaint as required by General Statutes § 47a-23a. There is no question but that there was not compliance with the statute. The plaintiff argues that the defect is not jurisdictional and is amendable. The Connecticut supreme court has stated that "the purpose of [General Statutes §] 52-72 `is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction.' Hartford National Bank Trust Co. v. Tucker, 178 Conn. 472, 478-79, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980). The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994). However, the file does not reflect that the plaintiff has sought leave to amend the return date. Compare, id., 621; Andover Limited Partnership I v. Board if Tax Review, 232 Conn. 392, 395, 655 A.2d 759 (1995).
This is the first ground asserted by the defendant at oral argument. The defendant asserted three grounds in his motion to dismiss but withdrew the first one at oral argument.
General Statutes § 47a-23a provides in pertinent part that a summary process "complaint may be made returnable six days, inclusive, after service upon the defendant and shall be returned to court at least three days before the return day. Such complaint may be served on any day of the week."
General Statutes " Sec. 52-72. Amendment of process. (a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.
"(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.
"(c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form. A certified copy of the finding shall be attached to and served with the amended process."
II
The second ground for the defendant's motion to dismiss is that the grounds stated in the notice to quit are, in the circumstances of this case, insufficient. In connection with this claim an evidentiary hearing was held.
A. Nonpayment of Rent
The first ground for termination of the tenancy in the notice to quit was "nonpayment of rent when due for the period November 18, 1996 through December 17, 1996."
This was a month to month tenancy. "In the case of a rental on a month-to-month basis the tenancy is not regarded as a continuous one. The tenancy for each month is one separate from that of every other month. Corrigan v. Antupit, 131 Conn. 71, 76, 37 A.2d 697; Chipman v. National Savings Bank, 128 Conn. 493, 497, 23 A.2d 922 ; Williams v. Apothecaries Hall Co., 80 Conn. 503, 506, 69 A. 12. For each month, therefore, there must be a new contract of leasing. Where there has been no meeting of the minds there is no contract." Welk v. Bidwell, 136 Conn. 603, 606-607, 73 A.2d 296 (1950). Not only from the two prior allegedly defective notices to quit but also from the totality of the circumstances, it is abundantly clear that by November 18, 1996, there was no meeting of the minds as to the continuation or terms of any tenancy. The plaintiff did not want the defendant as a tenant. Indeed, the defendant had tendered a check for the full amount of the rent in October, noting on the check that it was for "rent"; the plaintiff had endorsed the check but wrote on it that it was "for use and occupancy". of course, no tenancy could be inferred because of the defendant's holding over. Id., 608; General Statutes § 47a-3d; DiCostanzo v. Tripoli, 137 Conn. 513, 515, 78 A.2d 890 (1951). The defendant became a tenant at sufferance. "A tenancy at sufferance arises when a person who came into possession of land rightfully, continues in possession wrongfully after his right thereto has terminated." Welk v. Bidwell, supra, 136 Conn. 608-609 (1950); see also General Statutes § 47a-23 (d). "As a tenant at sufferance, the defendant was not liable for any stipulated rent." Welk v. Bidwell, supra, 136 Conn. 609; see Rivera v. Santiago, CT Page 726 4 Conn. App. 608, 610, 495 A.2d 1122 (1985); cf. Rosa v. Cristina, 135 Conn. 364, 366, 64 A.2d 680 (1949)]; Pelensky v. Alejos, Superior Court, Judicial District of Fairfield (Housing Session), No. SPBR 9604 31878 (Jul. 17, 1996) ( Tierney, J.). The defendant, therefore, could not be evicted for nonpayment of rent.
General Statutes " Sec. 47a-3d. (Formerly Sec. 47-22). Holding over not evidence of new lease. Determination of monthly lease. Holding over by any lessee, after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease. Parol leases of lands or tenements reserving a monthly rent and in which the time of their termination is not agreed upon shall be construed to be leases for one month only."
General Statutes § 47a-23 (d) provides: "With respect to a month-to-month tenancy of a dwelling unit, a notice to quit possession based on nonpayment of rent shall, upon delivery, terminate the rental agreement for the month in which the notice is delivered, convert the month-to-month tenancy to a tenancy at sufferance and provide proper basis for a summary process action notwithstanding that such notice was delivered in the month after the month in which the rent is alleged to be unpaid."
The defendant did not become a tenant at will. "A tenancy at will `exists only when the occupation of the property is with the landowner's consent, continuing during the tenancy.' Welk v. Bidwell, supra, 136 Conn. 608." 669 Atlantic Street v. Atlantic-Rockland Stamford, 43 Conn. App. 113, 121 n. 3, 682 A.2d 572 (1996).
B. Lapse of Time
The only other ground stated in the notice to quit is "lapse of time". Under the prevailing doctrine, "[f]or lapse of time to be a valid reason for the issuance of a notice to quit there must an underlying lease whether oral or written. Lapse of time is not a sufficient reason to terminate a tenancy at sufferance. A tenancy at sufferance does not involve a contract or a lease. Bermudez v. Rodriguez, H-798, December 17, 1986 ( Goldstein, J.), Duprey v. Bourque, H-514, February 8, 1984 ( Aronson, J.), Yale University v. Valinho, H-1033, October 12, 1994 ( DiPentima, J.), Invest II. v. The Southern Connecticut Mental Health Substance Abuse Treatment Center, SNBR-440, September 27, 1995 ( Tierney, J.), Commissioner of Transportation v. The Dock, Inc., SNBR-446, November 20, 1995, ( Tierney, J.)." Invest II v. Southern Connecticut Mental Health/SUB. AB., No. SBPR 9510-30624 (December 6, 1995) ; Larsen v. Timothy's Ice Cream, Inc., No. SPBR 9505-29502 (June 30, 1995). This is not merely a hypertechnicality spun by devious lawyers and jurists; it is grounded firmly in the statute, § 47a-23 (a) ("When the owner or lessor . . . desires to obtain possession or occupancy . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time. . . ." [Emphasis added]).
The motion to dismiss is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court