Opinion
No. NBSP-057053
November 4, 2011
MEMORANDUM OF DECISION
This is a summary process action for possession of the subject premises at 68-70 Sexton Street, Unit 1N, New Britain, Connecticut. On November 4, 2011, the parties appeared before the court for trial on the one count complaint. The plaintiffs allege nonpayment of rent under a written lease for September, 2011. The defendant, in her answer, denies certain of the plaintiffs' claims and asserts special defenses.
SUMMARY PROCESS ACTIONS-GENERALLY
The courts of this state have consistently held that "[s]ummary process is a special statutory procedure designed to provide an expeditious remedy." (Internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, 284 Conn. 1, 5 (2007). "Summary process statutes provide a prompt hearing and final determination . . ." Id., at 5-6. Summary process is intended to . . . provide an expeditious remedy to the landlord seeking possession."HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 658 (1995). The ultimate issue in a summary process action is the right to possession." (internal quotation marks omitted.) Tinaco Plaza, LLC. v. Freebob's Inc., 74 Conn. App. 760, 766-67 (2003).
"Summary process is a special statutory procedure designed toprovide an expeditious remedy . . . It enables landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms . . . Summary process statutes secure a prompt hearing and a final determination . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed." (Citations omitted; internal quotation marks omitted.) St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn. App. 728, 733 (2010).
EQUITY CT Page 22079
"Equity does not necessarily mean full compensation to the plaintiffs. Equity is [j]ustice administered according to fairness as contrasted with the strictly formulated rules of common law . . . the term `equity' denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men . . . [e]quity takes into consideration fairness to both the plaintiff and the defendant." (Citations omitted; internal quotation marks omitted.) Krasowski v. Fantarella, 51 Conn. App. 186, 199 (1998), cert.denied, 247 Conn. 961 (1999). "It is fundamental that anyone going into equity and asking its aid submits to the imposition of such terms as well-established equitable principles require. . . ." (Internal citations omitted) Village II Glen Lochen v. Burnham, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 07-4034048, (June 4, 2010, Peck, J.). "As he is seeking equity he must do equity." Caramini v. Telegulias, 121 Conn. 548, 553 (1936).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.) Cross 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.
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.)Valentine 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
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 September 1, 2010, the parties entered into a written one year rental agreement for the subject premises;
2. The term of the written lease has expired on August 30, 2011. Pursuant to Paragraph 26 of the lease agreement, after the expiration of the one year term, the rental agreement converts to a "month to month tenancy between the lessor and lessee" (Plaintiff's Exhibit 1). For the month of September, 2011, the defendant occupied the premises under a month to month lease;
3. The plaintiff is the owner of the subject premises;
4. The subject premises are: 68-70 Sexton Street, Unit 1N, New Britain, Connecticut;
5. The agreed upon monthly rental amount was $650.00;
6. The defendant tendered a payment dated September 2, 2011 to the plaintiff in the amount of $700.00 (Defendant's Exhibit A);
7. The defendants tendered the above-referenced check as payment for September, 2011 rent;
8. The September, 2011 rent was due no later than September 10, 2011, the statutory grace period for monthly residential tenancies;
9. The defendant acknowledges an arrearage of $300.00 pursuant to her written one year lease;
10. There was an arrearage for September, 2011 of $250.00 after the defendant's $700.00 payment;
11. On September 19, 2011, the plaintiff had a Notice to Quit Possession served on the defendant to vacate the premises on or before September 24, 2011;
12. The time given in the notice to quit possession for the defendant to vacate the premises has passed, yet the defendant has not vacated the premises and remains in possession;
Additional facts will be discussed as necessary.
DISCUSSION Oral Tenancies
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, CT Page 22083 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.)
In this matter, however, for the month of September, there was a written monthly tenancy. The tender of rent for September was subject to the existing arrearage as the agreement was within the first month of the month to month tenancy.
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.
CONCLUSION
In the case at bar, the plaintiff was legally permitted to apply the $700.00 rental payment from the defendant (Defendant's Exhibit A) to any existing arrearage as the monthly tenancy was in its first month under the written lease. Kligerman v. Robinson, supra at 221; The Graduate Club Assoc. v. Mendlow, supra. The rental payment tendered, within the statutory grace period and prior to service of the notice to quit, was legally applied to the arrearage before the applied to the rental obligation for September, 2011.
The court finds that the plaintiff has proven their case by a fair preponderance of the evidence.
Special Defense
The defendant in her sole special defense asserts disability. The special defense of disability, however, does not apply to summary process actions claiming nonpayment of rent. Connecticut General Statutes § 47a-23c. The court finds this special defense inapplicable in the instant matter.
ORDER
Accordingly, the court finds that the plaintiff has established all of the essential elements of its case by a fair preponderance of the evidence.
The court enters Judgment for the plaintiff.
The court establishes an arrearage of $900.00.
The court orders a final stay of execution through November 26, 2011.