Opinion
Nos. HDSP-132553, H-1279
September 2, 2005
MEMORANDUM OF DECISION
The plaintiff, SOC Group II LP, initiated this summary process action to recover possession of the premises located at 55 Donald Street, Apt. 2B, Hartford, CT. The defendant, Linda Reyes, has moved to dismiss this action for lack of subject matter jurisdiction. As the reason for her motion to dismiss, the defendant asserts that inconsistent language in the plaintiff's notice to quit renders the document equivocal. Therefore, the defendant asserts that the court lacks jurisdiction over the case that requires the action to be dismissed.
The plaintiff's notice to quit possession of the subject premises was served on March 11, 2005, with a quit date of March 31, 2005. The notice to quit includes the statement: "You have ten (10) calendar days within to discuss the termination of your tenancy with your landlord. . . . ." The notice also includes the following provision: "Any monies received after service of this notice will be accepted as use and occupancy only, and not as rent. . . ." The defendant contends that because these two provisions are inconsistent with each other, the notice to quit is equivocal, thereby, depriving the court of subject matter jurisdiction.
The 10-day work out period, mandated pursuant to federal notice requirements, can be included within a notice to quit under Conn. Gen. Stat. 47a-23(e). Here, the defendant contends that the use and occupancy language in the notice to quit does not comply with Conn. Gen. Stat. § 47a-23(e) in that the use and occupancy disclaimer takes effect prior to the expiration of the quit date or completion of the pretermination process whichever is later. In pertinent part Conn. Gen. Stat. Section 47a-23(e) states: "a use and occupancy disclaimer may be included in or combined with such notice, provided that such disclaimer does not take effect until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of the completion of the pretermination process, whichever is later." In the present case, the use and occupancy disclaimer took effect immediately upon service of the notice to quit, not the later of the quit date or the completion of the pretermination process. The court is sympathetic to the plaintiff's argument that its notice to quit clearly delineated the March 31, 2005 quit date as the Termination date. The notice to quit is clear that the lease does not terminate until March 31, 2005. However, the plaintiff's the use and occupancy provision clearly violates the statute.
Conn. Gen. Stat. § 47a-23(e) states: (e) A termination notice required pursuant to federal law and regulations may be included in or combined with the notice required pursuant to this section and such inclusion or combination does not thereby render the notice required pursuant to this section equivocal, provided the rental agreement or lease shall not terminate until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of completion of the pretermination process, whichever is later. A use and occupancy disclaimer may be included in or combined with such notice, provided that such disclaimer does not take effect until after the date specified in the notice for the lessee or occupant to quit possession or occupancy or the date of the completion of the pretermination process, whichever is later. Such inclusion or combination does not thereby render the notice required pursuant to this section equivocal. Such disclaimer shall be in substantially the following form: "Any payments tendered after the date specified to quit possession or occupancy, or the date of the completion of the pretermination process if that is later, will be accepted for use and occupancy only and not for rent, with full reservation of rights to continue with the eviction action."
This Court does not follow the court's ruling in Fairmont Heights Associates L.P. v. Phiffer, Waterbury J.D., Housing Session (Docket No. 9706-18153) (September 24, 1997) (Levin, J.) where the court ruled certain inconsistencies in a notice to quit were not fatal to deprive the court of subject matter jurisdiction. In Fairmont, the plaintiff included similar language in its notice to quit, "Any money received after the Notice to Quit will be accepted as use and Occupancy only . . . You are advised that you have (10) days within which to discuss this proposed termination of tenancy with the management. . . ." Id. There, the court held that the use and occupancy reservation and the proposed termination language did not render the notice to quit equivocal. The court ruled that the language in the notice to quit stating that "[a]ny money received after the Notice to Quit will be accepted as use and Occupancy only" did not "subvert the purpose that the notice was meant to serve, negate that good cause for the termination has been stated clearly or alter the fact that the notice has been served in strict compliance with the statutory timetables. . . ." Id.
The court in Fairmont reasoned:
The reality is that between the time the notice to quit is served and the end of the period during which the defendants may cure the cause for their eviction, the parties are very much in legal limbo. On the one hand, the plaintiff has served the defendants with a notice to quit which classically has been the most unequivocal of acts terminating the lease agreement with the tenant. On the other hand, the notice states, as it must pursuant to 24 C.F.R. § 880.607(c), that the defendants, in effect, may nullify the termination by curing its causes. . . . Id. (Internal Citation Omitted).
The defendant in the present case took issue with the Fairmont characterization that the "defendant, in effect, may nullify the termination by curing its causes" by stating that the purpose of the cure period was to prevent a termination from happening rather than nullify a termination that has already taken place. This Court agrees that the purpose of the cure period is to avoid or prevent a proposed termination and not to nullify an existing termination.
The provision in the present notice to quit stating that any monies received after service of the notice to quit will be accepted as use and occupancy is of no effect under Conn. Gen. Stat. 47a-23(e). If the defendant had tendered the amount of rent due prior to the end of the 10 day work out period, the plaintiff would have no choice but to accept the payments as rent and not as use and occupancy. However, the use and occupancy provision, as written, could have a chilling effect and dissuade a tenant from tendering the rent to cure the problem in order to prevent the lease's termination. Consequently, the fact that the provision is non-effective does not prevent the case from being dismissed. In the present case, the use and occupancy reservation could have been included on the notice to quit only if it took effect after the March 31, 2005 quit date. Under those circumstances, the plaintiff would have complied with Conn. Gen. Stat. 47a-23(e),
The Court agrees with the defendant and the motion to dismiss is granted.