Opinion
No. NBSP-056576
August 18, 2011
MEMORANDUM OF DECISION
This is a summary process action for possession of the subject premises at 14 Skyline Drive, Farmington, Connecticut. On August 11, 2011, the parties appeared before the court for trial on the two count complaint. The plaintiff alleges nonpayment of rent for June, 2011 and that the right or privilege of the Does to occupy the premises has terminated. The defendant, in her answer, denies certain of the plaintiffs' claims and asserts several special defenses.
BURDEN OF PROOF
"While the 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 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop Shop, 29 Conn. App. 519, 523, cert. denied. 224 Conn. 923 (1982). Failure to do so results in judgment for the defendant. Id. ". . . [W]hat is necessarily implied [in an allegation] need not be expressly alleged." Pamela B. v. Ment, 244 Conn. 296, 308 (1998).
STANDARD OF PROOF
The standard of proof in summary process actions, 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.) CT Page 16625Cross v. Huttenlocher, 185 Conn. 390, 394 (1981).
ESSENTIAL ELEMENTS OF THE CLAIM
To prevail on a claim for nonpayment of rent, the plaintiff must establish, by a fair preponderance of the evidence, the following essential elements: (1) a rental agreement (2)that the plaintiff is the lessor or owner of the premises; (3) the address of the subject premises; (4) the amount of rent due to the plaintiff from the defendant, (5) when the rent was due to the plaintiff; (6) the date of nonpayment; (7)
The service of the notice to quit, as well as its service date and termination date; and (8) that the defendant is still in possession.Conn. Gen. Stat. § 47a-15a et seq.
In a summary process action based on the plaintiffs claim that the defendants originally had the right or privilege to occupy the premises but any such right or privilege has terminated, the plaintiff must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) the plaintiff is the owner of the property; (2) the defendants originally had a right or privilege to occupy the premises but such right or privilege has terminated; (3) the plaintiff caused a proper notice to quit possession to be served on the defendant to vacate the premises on or before a certain date; and (4) although the time given the defendant to vacate in the notice to quit possession has passed, the defendant remains in possession of the premises.Conn. Gen. Stat. § 47a-23(a)(3).
THE PLEADINGS
"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 (1971). "An admission in a pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594 (1909).
SPECIAL DEFENSES
"[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 to demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) CT Page 16626Valentine v. LaBow, 95 Conn. App. 436, 447 n. 10 (2005), cert. denied, 280 Conn. 933 (2006). The defendants have the burden of proving the allegations in their special defenses by a fair preponderance of the evidence. Lodovico v. Mihalcik, superior court, judicial district of Hartford at Hartford, Docket No. CV-07-50130991 (August 17, 2010, Rittenband, JTR).
THE PROCEEDINGS
"The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the 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, cert. denied, 274 Conn. 906 (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 factfinder to reject or accept certain evidence. . . ." (citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn. App. 534, 540 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121,123 (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 the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530 (1977).
"[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 the witnesses testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborne, 41 Conn. App. 287, 291 (1996). The trial court's function as the finder is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." In re Christine F., 6 Conn. App. 360, 366, cert. denied 199 Conn. 808 (1986).
FINDINGS OF FACT CT Page 16627
The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and reaches the conclusions set forth herein by a fair preponderance of the evidence.
1. On or about March 1, 2011, the plaintiff and the named defendant entered into a month to month agreement for the subject premises;
2. The agreement was for exclusive possession of two bedrooms and shared possession of common areas only on the first floor of the subject premises (Plaintiffs Exhibit 2);
3. The agreement for the subject premises was $1,150.00 per month, payable on the first day of the month;
4. The subject premises are 14 Skyline Drive, Farmington, Connecticut (Plaintiff's Exhibit 1);
5. The plaintiff is the owner of the subject premises;
6. The appearing defendant failed to pay the rent due under the lease on June 1, 2011 within the time allowed by law;
7. Jane and John Doe had a right or privilege to occupy the premises through Rachael Sullivan;
8. Jane and John Doe's right or privilege to occupy the premises has terminated by service of a notice to quit;
9. On June 18, 2011, the plaintiff had a Notice to Quit Possession served on the Defendants to vacate the premises on or before June 30, 2011;
10. The time given in the notice to quit possession for the defendants to vacate the premises has passed, yet the defendants have not vacated the premises and remain in possession;
11. On or about August 10, 2011, the town of Farmington issued a cease and desist order to the plaintiff regarding the premises. The order found that the premises were in violation of planning and zoning regulations in that the only single family homes are allowed in the area of the subject premises (Defendant's Exhibit A);
12. The order specifically required the plaintiff to "discontinue the use of the second floor of 14 Skyline Drive as an independent living unit" (Defendant's Exhibit A);
13. The sole basis for the violation was the presence of a door separating the first and second floor (Defendant's Exhibit A);
14. The violation would be remedied by the plaintiff "[removing] the door to to allow access from and/or between the occupants of the first and second floor as to allow the occupants to live as a single-family unit or the first floor or second floor occupant must vacate their area of the home" (Defendant's Exhibit A);
15. The zoning violations do not render the subject lease an "illegal contract" as they relate to a zoning violation that easily remediable, or can be the subject of a variance. 12 Havermeyer Place Co., LLC v. Gordon, 93 Conn. App. 140, 155 (2006). Additionally, the claimed violation affected neither the health or safety of the occupants, nor did it, in any way, alter the use of the premises as bargained for by the defendant. The defendant was not harmed in any way by the zoning violations;
16. The court finds an arrearage of $4,620.00.
Additional facts will be discussed as necessary.
DISCUSSION Oral Tenancies
A parol lease for an indefinite period reserving a monthly rental is a lease for one month only. Webb v. Ambler, 125 Conn. 543, 551, 7 A.2d 228 (1939); Corbett v. Cochrane, 67 Conn. 570, 576, 35 A. 509 (1896). The tenancy for each month is separate and distinct from that of every other month. Welk v. Bidwell, 136 Conn. 603, 607, 73 A.2d 295 (1950). There is a new contract of leasing for each successive month;DiCostanzo v. Tripodi, 137 Conn. 513, 515, 78 A.2d 890 (1951). The right of tenancy ends with that month for which the rent has been paid. Webb v. Ambler, supra.
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 (1944); Chipman v. National Savings Bank, 128 Conn. 493, 497, 23 A.2d 922 (1942);Williams v. Apothecaries Hall Co., 80 Conn. 503, 506, 69 A. 12 (1908). For each month, there must be a new contract for leasing. Welk v. Bidwell, 136 Conn. 603, 607, 73 A.2d 295 (1950).
In an oral month to month tenancy, a rent payment tendered in one month must be applied to that month's tenancy, as opposed to an existing "arrearage". Kligerman v. Robinson, 140 Conn. 219, 221 (1953); The Graduate Club Assoc. v. Mendlow, 2001 Ct. Sup. 6637 (Superior Court, Judicial District of New Haven at New Haven, Docket No. CV SPNH 0101-65831 (May 30, 2001, Devlin, J.)
Grace Periods in Residential Tenancies
"If rent is unpaid when due and the tenant fails to pay rent within nine days thereafter or, in the case of a one-week tenancy, within four days thereafter, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive."Conn. Gen. Stat. § 47a-15a.
SPECIAL DEFENSES
The Court finds that the defendant has failed to prove any of her special defenses by a fair preponderance of the evidence.
ORDER
Accordingly, the court finds that the plaintiff established all the essential elements of its case by a fair preponderance of the evidence.
The court enters Judgment for the Plaintiff and orders a final stay of execution through August 25, 2011.