Opinion
No. NBSP 050650
March 9, 2009
MEMORANDUM OF DECISION
This is a summary process action brought by the plaintiff, Bristol Housing Authority, seeking to recover possession of Apartment 202, 70 Gaylord St., Bristol Connecticut, occupied by the defendant, Donna Chaisson.
Background.
The plaintiff's notice to quit and complaint allege that the defendant violated the written rental agreement between the parties. (Plaintiff's Exhibit 1). Specifically, the plaintiff alleges that the defendant violated section XIII subparagraph G. of the lease which requires the defendant to "keep the dwelling unit and such other areas assigned to you for your exclusive use in a clean and safe condition" and section XIII subparagraph L. of the lease which obligated the defendant "to act in a manner which will not disturb other residents' peaceful enjoyment of their accommodations and will be conducive to maintaining the apartment and development and a decent, safe and sanitary condition." The plaintiff further alleges that "the plaintiff caused a Kapa Notice to be served upon the defendant allowing her until May 19, 2008 to rectify this violation, as is prescribed by law."
The parties first appeared in court on August 14, 2008 and entered into a stipulated judgment (Domnarski, J.) The stipulation included a payment schedule to repay a $290.00 arrearage, an agreement to comply with the plaintiff's "housekeeping standards" (Plaintiff's Exhibit 2), access to the defendant's apartment by the plaintiff to conduct compliance inspections, a non-final stay of execution until January 31, 2009 and a provision for reinstatement of the defendant as a tenant in good standing upon compliance with the stipulation. The plaintiff filed an affidavit of noncompliance with the stipulation by the defendant on October 17, 2008. The parties appeared in court on November 6, 2008 and were assisted by a court appointed housing specialist. The parties entered into a second stipulation which continued the matter until December 4, 2008 to permit three periodic inspections of the defendant's apartment to assess the defendant's progress in observing the housekeeping standards. On December 4, 2008 the parties appeared in court again and entered into a third stipulation which continued the matter until December 18, 2008, required the defendant to disclose the names and contact information for her social worker and doctors and provided for a further inspection of the apartment to be conducted on December 17, 2008.
On December 18, 2008 the parties appeared and the plaintiff moved for a finding by the court that the defendant was not in compliance with the August 14, 2008 stipulation based on the results of the December 17, 2008 inspection and requested an execution of possession of the premises. The court held a hearing on the plaintiff's request on December 18, 2008. The plaintiff was represented by counsel. The defendant was self-represented.
The Plaintiff's Case.
At the hearing, the plaintiff's property manager, Doreen Eickmeyer, testified that she conducted an inspection of the defendant's apartment on December 17, 2008 and described the apartment's condition as "deplorable." Eickmeyer submitted a 17 photographs (Plaintiff's Exhibit 3) of the apartment. Eickmeyer testified that she took the photographs on December 17, 2008 in the presence of the defendant and described the photographs as depicting dirty dishes, cat litter, rotting food and trash and laundry strewn throughout the apartment. The defendant did not object to the submission of the photographs or dispute that they depicted the current condition of her apartment. Eickmeyer testified that, based on her inspection, she found the condition of the apartment to be in violation of the defendant's agreement to observe the housekeeping standards so as to keep it in a "clean and safe condition."
When the court inquired whether Eickmeyer had any additional evidence which would support her opinion that the apartment was not safe, Eickmeyer responded that the defendant was "even advised by the fire marshal who regularly conducted inspections of the entire building of what she had to do to make her unit safe." When asked if she had any record of any official inspections, Eickmeyer was unable to present any such evidence to support the claim. With that, counsel advised the court that the plaintiff had no additional witnesses and the plaintiff rested.
The Defendant's Case.
The defendant's took occupancy under the lease in March, 2003. In her testimony, the defendant acknowledged that she had a problem with amassing clothing and other objects which she said was a "fairly recent" development according to her therapist. She also acknowledged that, although she had removed between fourteen and twenty-four boxes of items from her apartment, there still remained "a great deal of work to be done". She disputed Eickmeyer's testimony that the clutter obstructed passage between rooms and claimed that it was possible to access every room in the apartment. She also disputed the plaintiff's claim that the photographs showed "dirty" soda cans and professed that the soda cans were "washed" and stacked in crates.
The defendant's case manager, Melissa Sandford, of Community Mental Health Associates of Bristol accompanied her to court. As part of the services offered by her organization and provided to the defendant, Sandford made suggestions to the defendant on how to organize and maintain her apartment and dealt with other mental health aspects of her condition. Sandford's organization doesn't assist clients with re-location issues. Several times, the defendant referred to her depression as having prevented her from completing the removal of clutter in her apartment but insisted that she was working very hard and had "made progress" in reducing the clutter. Sandford stated that based on the plaintiff's photographs submitted, she saw some improvement. When asked if she had any contingency plan if she were evicted, the defendant replied that she had no other place to go.
Discussion.
In its notice to quit and complaint, the plaintiff alleges that the defendant violated section XIII subparagraph G. of the lease which requires that the defendant keep the dwelling unit in a "clean and safe condition." The plaintiff also alleges that the defendant violated section XIII subparagraph L. of the lease which requires that the defendant "act in a manner which will not disturb other residents' peaceful enjoyment of their accommodations and will be conducive to maintaining the apartment and development and a decent, safe and sanitary condition."
The plaintiff's photographs depict a very cluttered and messy apartment. Common sense would lead a reasonable person to conclude that the apartment suffers from excessive clutter. However, unlike probable cause, see Kosiorek v. Smigelski, 112 Conn. App. 315, 319 (2009), or other legal concepts which permit the court to apply a "common sense" standard, a summary process action based on a claim that the cluttered condition of the dwelling unit creates an "unsafe condition" must be supported by more than common sense or common knowledge. In Cardinal Realty Investors, LLC v. Bernasconi, 287 Conn. 136, 139-40, 946 A.2d 1242 (2008), our Supreme Court reversed the trial court's finding that the landlord had sustained its burden to prove that the tenant's maintaining three refrigerators in an "excessively cluttered" room was a safety hazard. Noting that the plaintiff presented no evidence that heat generated by the refrigerators might ignite the clutter, the Court stated "[W]e do not believe that it is within the ordinary knowledge of jurors and judges that running three refrigerators in a cluttered room, in and of itself, creates an immediate and serious fire hazard. Accordingly, in the absence of evidence to that effect, any such inference would be mere conjecture and speculation." (Internal quotation marks omitted.) Id. 141-42.
The plaintiff asserts that the basis for the request for an execution of possession is the defendant's failure to comply with the terms of the stipulation which required her to maintain her apartment in accordance with the "housekeeping standards." However, the court notes that the housekeeping standards are not incorporated into the lease agreement. Moreover, as noted above, the action was commenced on the grounds that the defendant failed to keep her dwelling unit in a "clean and safe condition." Although General Statutes § 47a-9 permits a landlord to adopt rules and regulations, any such rule or regulation is enforceable against a tenant under § 47a-9a(2) only if the rule or regulation "is reasonably related to the purpose for which it is adopted."[fn. 1]. In the present case, Eickmeyer's direct examination confirmed that the housekeeping standards were developed in connection with the section XIII covenant that required tenants to keep their units in clean and safe condition.
Sec. 47a-9. Landlord rules and regulations.
(a) A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant's use and occupancy of the premises. Such rule or regulation is enforceable against the tenant only if (1) the purpose of the rule or regulation is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord's property from abusive use or make a fair distribution of services and facilities held out for all the tenants generally; (2) the rule or regulation is reasonably related to the purpose for which it is adopted; (3) the rule or regulation applies to all tenants in the premises in a fair manner; (4) the rule or regulation is sufficiently explicit in its prohibition, direction or limitation of the tenant's conduct to fairly inform him of what he shall or shall not do to comply; and (5) the tenant has notice of the rule or regulation at the time he enters into the rental agreement or when the rule or regulation is adopted.
(b) If a rule or regulation that would result in a substantial modification of the terms of the rental agreement is adopted after the tenant enters into the rental agreement, such rule or regulation is not valid unless the tenant consents to such rule or regulation in writing.
It is important to note that our courts have repeatedly recognized a tenant's right to be protected against discriminatory or arbitrary evictions. (See Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 816 (1993) with regard to the degree of specificity required in a Kapa notice and Etuka v. Hightower, S.P.H. 910761514, Superior Court, Hartford-New Britain J.D., Berger, J. (November 18, 1991) requiring specificity in notices to quit). The court can see no reason not to extend the same protection against the possibility of discriminatory or arbitrary eviction to the defendant under the facts of this case.
"The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). Failure of the plaintiff to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant. Id. "Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." (Citations omitted.) Tait's, Handbook of Connecticut Evidence (3rd Ed. 2001) Sec. 3.3.1, p. 136.
In the court's view, where a tenant is to be deprived of his or her residence on the basis of the landlord's claim that the tenant has not complied with "housekeeping standards," it is not unfair to require the landlord to submit evidence other than the landlord's opinion that the tenant's non-compliance poses a threat to the safety the tenant or other residents. In the present case, the plaintiff submitted no testimony or documentary evidence from the local fire marshal, the health department or any other municipal agency that the failure to comply with the housekeeping rules or the condition of the defendant's apartment created a safety hazard. The plaintiff offered no evidence (or even a claim) that insects or rodents were present in the apartment. No evidence or testimony was submitted of any complaint from any other resident about the condition of the defendant's apartment. Had the plaintiff offered any such evidence, the court may have been persuaded to rule in the plaintiff's favor.
The court observes that the plaintiff is free to initiate proceedings with the local fire marshal or other appropriate municipal authorities for immediate inspections of the defendant's apartment to determine whether the conditions constitute a safety hazard requiring immediate intervention or orders issued by the proper officials charged with the responsibility for code enforcement.
The court finds that the plaintiff has failed to sustain its burden of proof. Accordingly, the plaintiff's request for immediate execution is denied and the defendant is reinstated as a tenant in good standing pursuant to the terms of the stipulation.
So ordered.