Opinion
No. SNSP-036995
April 7, 2010
MEMORANDUM OF DECISION
This summary process action was brought by the plaintiffs, Allan M. Szabo and Barbara Szabo, against the defendants, Barbara Gavin and Dennis McCorkle for lapse of time. The defendants have moved to dismiss the action based on their claim that the court lacks jurisdiction because the plaintiffs failed to satisfy the pre-termination requirements contained in the lease.
"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." (Internal quotation marks omitted), Cox V. Aiken 278 Conn. 204, 210-11, 897 A.2nd 71 (2006). 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, the 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. Cogswell V. American Transit Ins. Co., 282 Conn 505, 923 A.2d. 638 (2007).
This action is based on a lease signed by the parties on or about September 14, 2006 for a term of one year. The defendants remained in the property per the terms of section 17 of the lease. The plaintiffs have alleged in their complaint that the term of tenancy had lapsed and with that, caused a Notice to Quit to be served on the defendants on September 30, 2009 with a quit date of October 31, 2009. The defendants have alleged in their Motion to Dismiss that the plaintiffs have not complied with the notice requirements of the lease, thereby making the notice to quit premature and depriving this court of jurisdiction.
Section 17 of the lease states, "Holdover by Lessee. Should Lessee remain in possession of the demised premises with the consent of the Lessor after the natural termination of this lease, a new month-to-month tenancy shall be created between the Lessor and the Lessee which shall be subject to all the terms and conditions hereof but shall be terminated on thirty (30) days' written notice served by either Lessor or Lessee on the other party." The defendants argue that this notice is required before the notice to quit and therefore, the lack of the thirty day notice invalidates the court's jurisdiction. The plaintiffs argue that they should be required to satisfy only the statutory notice which is the notice to quit.
In Jefferson Garden Associates v. Greene, 202 Conn 128, 143 (1987), the Supreme Court stated that "before a landlord may pursue its statutory remedy of summary process under Connecticut General Statutes § 47a-23, the landlord must prove its compliance with all the applicable preconditions set by state and federal law for the termination of a lease." Connecticut General Statute § 47a-23(e) provides in relevant part: "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." (Emphasis added).
"A lease is a contract. In its construction, three elementary principles must be kept constantly in mind: (1) the intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if possible." (Citation omitted.) Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20 (1985).
In this case, the plaintiffs provided to the defendants, in their notice to quit, the thirty days called for by paragraph 17. The language of the lease does not require or indicate that the thirty day notice should be in any particular manner other than in writing. Additionally, the lease does not have any special provisions as to where and how notices were to be delivered, only that this notice should be served on the party. There is nothing in the lease to indicate that the thirty day notice should be a second notice as claimed by the defendants. If the intention of the parties was to give such consideration to the tenants, it should have been clearly stated in the lease. Giving the language of the lease its ordinary meaning, the notice is satisfied if the thirty days is supplied by a written form served upon either party.
Furthermore, as noted in the statute, the pre-termination notice and the notice to quit can be contained in the same document as long the time to complete the pre-termination process is no later than the date to quit the premises. The pre-termination process was complete on October 30, 2009, the thirtieth day after the service of the notice. The quit date was October 31, 2009 which obviously occurs later. Hence, the notice to quit can served as the thirty day notice required by paragraph seventeen of the lease and remain an unequivocal as required by the statute and case law. Finally, the court finds no support for the defendants position in the case, Hartford East Associates v. Claire Jones, JD Hartford, Housing Session at Hartford, DN: HDSP-138268 ( Bentivegna, J., Nov. 24, 2006). The court's decision did not contain any language that it "cannot read out of the lease [that] provision" and its decision was based on facts that indicated that the parties agreed that any notice that was necessary had been sent.
Accordingly, the Motion to Dismissed is denied.