Opinion
No. NHSP 0212-73629
November 1, 2004
MEMORANDUM OF DECISION
The plaintiff, Bershtein Enterprises, LLC, is the owner of property known as 1186-1188 Dixwell Avenue, Hamden, Connecticut. Said premises has been owned by the Bershtein family since approximately 1940. Said premises was purchased by William and Bessie Bershtein and was used as both a family residence and for commercial purposes. When William Bershtein died, Bessie Bershtein became the sole owner of the premises. In 1962, title was transferred from Bessie Bershtein individually to Bessie Bershtein and two of her sons, Herman and David Bershtein as survivors. When Bessie Bershtein died in 1979, Herman and David Bershein were the sole owners of the property. They later became owners as tenants-in-common. In 1998, Herman Bershtein transferred his one-half interest in the property to himself as trustee under a revocable trust. When David Bershtein died in 2000, his one-half interest in the property was transferred to 1188 Dixwell Avenue Associates, LLC, which then sold its interest to Richard, Joy and Jan Bershtein. On January 2, 2001, the property was transferred to the current owner, Bershtein Enterprises, LLC.
Herman Bershtein is apparently a principle of Bershtein Enterprises, LLC and the primary tenant in the building is Bershtein. Bershtein Bershtein, LLC d/b/a the Bershtein Law Center.
The defendant James Bershtein, has resided continuously in the property since it was purchased by his parents, except for a brief period in the 1940s when he was a member of the Merchant Marines. James Bershtein occupied Bessie Bershtein's apartment when she was alive and continued in that apartment after she died. He also had exclusive use of one of the garage stalls and use of the basement and attic in common with others.
In 1966, Bessie Bershtein executed her will. This will was at least partially drafted by her son, Herman Bershtein. Prior to the execution of the will, Herman Bershtein had a conversation with his mother wherein he agreed that, pursuant to her request, he would make certain that his brother, James Bershtein, always had a roof over his head. Herman Bershtein was uncertain of the date of this conversation, but indicated that it was before the execution of the will. There is no provision in the will or any codicil to the will which provides for James Bershtein to have any interest in the subject premises.
The apparent conflict of interest by Herman Bershtein in drafting a will for his mother wherein he was a primary beneficiary should be noted, particularly when the stated interest of the mother was to protect her son. James, and there is no provision in the will to acknowledge that fact.
Herman Bershtein has maintained his law offices on the subject premises for many years and has made many improvements to the property at his expense without any apparent input from his brother James. None of these improvements materially infringed upon the garage unit or the apartment which was occupied by James.
Prior to David Bershtein's death. Herman Bershtein was unable to pursue any legal action against their brother, James, because David Bershtein desired to honor their mother's wishes to keep a roof over James' head. After David's death. Herman was no longer constrained by David and felt no further obligation to honor his mother's desires.
During James' occupancy of the premises, he has not always been the model tenant. There is no showing that the Bershtein law firm suffered substantially or materially as a result of James' activities. There was testimony as to a junk motor vehicle, a broken toilet and assorted junk which was accumulated by the many years of James' occupancy on the premises. The court, however, cannot find from the evidence that the junk cars along with the accumulation of the other belongings rises to the level of a health, safety or fire hazard. There was no evidence presented that the broken toilet created health or safety issues (although employees of the Bershtein law firm were undoubtedly inconvenienced by being required to use a bathroom facility on another floor). Accordingly, the plaintiffs' claim based upon serious nuisance will not be allowed.
The court previously dismissed the count of the plaintiff's complaint dealing with nuisance for failure to provide the defendant with a pre-termination notice as required by Connecticut General Statutes § 47a-15.
The remaining count to be determined is whether or not the plaintiff can recover possession from James Bershtein as a result of the claim that his right or privilege to occupy the premises has terminated. Clearly, if defendant, James Bershtein, had a right or privilege to occupy the premises the plaintiff has the burden of proving that this right or privilege has terminated. The mere service of the notice to quit does not terminate this right or privilege; it merely is a necessary requirement to obtain possession "when one originally had the right or privilege to occupy such premises but such right or privilege has terminated." Connecticut General Statutes § 47a-23(a)(3).
Whether the right or privilege of the defendant to occupy the premises has in fact terminated is a question of fact. It is clear to the court that it was the intention of the defendant's mother that the defendant be provided a roof over his head for the rest of his life. That was the right and privilege granted to him. This is further supported by the fact that the defendant's brother. David Bershtein, prevented Herman Bershtein from taking any action in attempting to evict the defendant. These actions by David Bershtein persisted up until the time of his death. This court is unable to make a finding from the facts presented to it that the right or privilege of James Bershtein to occupy the premises known as 1186-1188 Dixwell Avenue has terminated. The plaintiff has failed to sustain its burden of proof and, as such, judgment shall enter on behalf of the defendant.
As a result of the court's ruling, it is not necessary for the court to make a determination as to whether or not the defendant has an interest in the premises by adverse possession or other equitable defenses which would weigh heavily for the defendant.
PINKUS, J.