Opinion
Docket No. NBSP-045928
August 17, 2006
MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
I STATEMENT OF CASE
This is a summary process action based on nonpayment of rent. The plaintiff, hereinafter ("Landlord"), seeks a judgment of immediate possession. The defendants, hereinafter ("Tenants"), allege the following special defenses: (1) All rent has been paid to my landlord; (2) Rent was offered to my landlord before the Notice to Quit was received; (3) Condition of the premises; and (4) Retaliatory action by the landlord. The Tenants also raise concerns regarding the lease agreement. The case was tried to the Court on May 11, 2006, May 26, 2006, June 15, 2006, July 7, 2006, July 27, 2006, and August 3, 2006. Both parties appeared pro se, until the Landlord retained counsel on July 27, 2006.
II FACTS
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn. App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (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 fact finder to reject or accept certain evidence. . . ." (Citations omitted; internal quotation marks omitted.)" In re Antonio M., 56 Conn. App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (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 their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 333, 763 A.2d 199 (2001).
"[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 a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn. App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn. App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
"While a 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, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id." Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992).
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, 440 A.2d 952 (1981).
The phrase a "fair preponderance of the evidence" "simply means that evidence which outweighs that which is offered to oppose it. . . ." Black's Law Dictionary (5th Ed. 1983).
The Court finds the following facts by a fair preponderance of the evidence.
The Tenants' answer admits all but one of the material allegations of the complaint. The Tenants agree that on or about March 1, 2006, the Landlord and the Tenants entered into a written lease for the term of one month for use and occupancy of the premises at 735 East Street, 2nd Floor, New Britain, Connecticut. The Tenants agreed to pay the monthly rent of $800, payable on the first of each month. The Tenants took possession of the premises pursuant to the written lease and still occupy the premises. On April 13, 2006, the Landlord caused a Notice to Quit Possession to be served on the Tenants to vacate the premises on or before April 18, 2006, as required by law. Although the time given in the notice to quit possession of the premises has passed, the Tenants still continue in possession. The Tenants disagree that they failed to pay the rent due under the lease on April 1, 2006.
The Landlord is the owner of the premises at 735 East Street, 2nd Floor, New Britain, Connecticut. She bought the building from her father in June 2005. When the Tenants first viewed the apartment, the Landlord was in the process of making repairs, but the Tenants wanted to move in anyway because they needed a place to stay. The Tenants signed a written month-to-month lease. The Tenants agreed to "paint and repair 2nd floor unit" for a $400 rent credit. The Tenants did not pay a security deposit. In July 2005, the Tenants moved in the second floor apartment with their four month old child.
The lease contains several provisions at issue in this case. Paragraph 2 contains a holdover clause by which the Tenants continue on a month-to-month tenancy after expiration of the lease. Under the maintenance provision, Paragraph 9, the Tenants are responsible for certain maintenance and repairs. Paragraph 9 provides in relevant part: "During your residency this property will be YOUR HOME and should be treated as such. You will be responsible for hiring QUALIFIED service people to take care of all minor maintenance under $500, and to repair any damage caused by you or your guests or invitee regardless of cost. . . . Any other repairs will be addressed by the owner or his agent within 72 hours, and necessary repairs will be made within 10 days of receiving written notice from you." See Plaintiff's Exhibit 22. This provision also provides that the Landlord "WILL NOT HONOR ANY CHARGES, OR DEDUCTIONS FROM RENT NOT SPECIFICALLY AUTHORIZED IN ADVANCE IN WRITING BY HIM OR HIS AGENT."
At trial, the Tenants testified that they complained to the Landlord about problems with the apartment. When the Tenants first moved in, no tenants lived on the third floor. However, after the third floor apartment was occupied, water started leaking from the ceiling. The leak was apparently caused by the tenant's children. Water also leaked from the upstairs' bathroom, damaging the ceiling in the Tenants' bathroom. At some point, the Tenants complained to the Landlord about roaches. When the weather started to get cold, the furnace did not work. The Tenants were without heat for several days while the Landlord made arrangements to replace the furnace. The apartment was also missing storm windows. The Tenants also complained to the Landlord about the front downstairs door being kicked in, and the hinges on the apartment door being unsecured.
According to the Tenants, the Landlord failed to make sufficient efforts to address problems with the apartment, including using unqualified repairmen. For example, when the Landlord's husband tried to fix the front downstairs door, he improperly installed dead bolt locks with no handle. The door was eventually repaired correctly. The Tenants were also concerned regarding the Landlord's efforts to address the lead paint problem, which was not actually documented until June 9, 2006.
Although the Landlord was aware of some of the Tenants' issues with the apartment, the evidence was inconclusive as to whether she knew about all their concerns. The evidence was also conflicting as to when she became aware of certain problems. The Landlord contends that she made some repairs to the apartment, but she was hampered in her efforts by the Tenants' refusal to grant access to the apartment. On a number of occasions, the Tenants refused access to the Landlord or her repairmen. Bell stated that he would not allow "any Tom, Dick, or Harry" access to the apartment. At some point, the Tenants insisted on videotaping work done in the apartment. The Landlord also complained that the Tenants never completed the agreed upon painting, and they abandoned several vehicles on the property that the Landlord was required to tow at her expense.
At trial, the Tenants disputed that they did not allow access to the apartment for repairs. In addition, Bell claimed that he helped out around the building by taking out the garbage, doing yard work and shoveling snow. He complained that the Landlord never thanked him. The Landlord testified that she never asked the Tenants to do any of these tasks.
On April 10, 2006, the Landlord spoke to Obrebaska regarding the April 2006 rent that had not yet been paid. Obrebaska said that she had her portion of the rent, $400, but she did not know if Bell had his portion. Around dinnertime, the Landlord went to the Tenants' apartment. Obrebaska said that Bell was not yet home from work, but he would be coming home soon. After Bell came home, the Landlord had a conversation with Bell and asked him if he had the rent. She left after Bell said he did not have the rent. Bell testified that he told the Landlord that he wanted to talk about the lease before he paid the rent.
Based on the nonpayment of rent for April 2006, the Landlord served the Tenants with a notice to quit on April 13, 2006. After the notice to quit was served, the Tenants paid the Landlord $650 on April 17, 2006. The evidence differs as to what happened on the date. Testimony was presented that the Tenants had several issues with the apartment and decided to withhold rent until their concerns were addressed. These issues included certain lease terms, replacement of the door hinges, and heating costs. The Landlord, however, never agreed to any deduction from the rent. Evidence was also offered that Bell offered his work check as part of the rent. The Landlord declined it because her bank was refusing to accept the work checks. Nevertheless, the evidence indicates that the Tenants did not have $800, in liquid funds, to pay the Landlord on April 17, 2006. Before April 2006, the Tenants paid the rent in full but usually late.
On April 13, 2006, the day the notice to quit was served, the Tenants made a complaint to the housing enforcement department of the City of New Britain regarding roaches and no house meter. The Tenants had not previously made a complaint to any city department. On April 20, 2006, after an inspection, the department cited the apartment for several violations. However, no city official testified at trial.
The Landlord claims she was unable to make all the required repairs because the Tenants would not allow access to the apartment. When the apartment was re-inspected, she had been able to make only some of the repairs. On May 23, 2006, after several unsuccessful attempts to gain access, the apartment was fumigated by a professional exterminator. On June 9, 2006, after an inspection, the apartment was cited for high lead levels. In June 2006, the Tenants also complained to the New Britain Police Department that the hallway light was connected to their meter.
After the Tenants began living at the premises, the Landlord's daughter moved in the first floor apartment with her boyfriend and child. Later, the Landlord's father also took up residence in the first floor apartment. After this action was initiated, the Landlord moved to the first floor apartment to live with her family.
III DISCUSSION A Landlord's Case
In a summary process action based on nonpayment of rent, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The tenant failed to pay the rent due under the lease by a certain date; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. See § 47a-23 (a) (1) (D).
Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. Gulycz v. Stop Shop Cos., supra, 29 Conn. App. 523.
After weighing all the evidence and assessing the credibility of the witnesses, the court makes the following findings. The Tenants were obligated to pay monthly rent of $800. The Tenants failed to pay the rent due for April 2006. The notice to quit served on April 13, 2006, is proper and in conformity with the statute. The Tenants failed to vacate the premises after the quit date and remain in possession of the premises. Based on the evidence presented, the court finds that the Landlord has proved, by a fair preponderance of the evidence, all the elements of the case.
B Tenant's Defenses (1) All rent has been paid to my landlord.
The Tenants allege that all rent had been paid to the Landlord.
On April 10, 2006, the Landlord attempted to collect the rent. During the day, she spoke with Obrebaska. Obrebaska indicated that she had her portion of the rent, $400, but did not know whether Bell had his portion. When the Landlord went to the apartment in the early evening, Bell was not yet home from work. When Bell came home, the Landlord asked him if he had the rent. She left after Bell did not pay the rent. The Tenants did pay $650 on April 17, 2006, but the notice to quit had already been served. Since then, the Tenants have not made any payments to the Landlord.
The evidence does not support the finding that all rent has been paid to the Landlord. Based on the evidence presented, the Court finds that the Tenants have failed to prove, by a fair preponderance of the evidence, this defense.
(2)
Rent was offered to my landlord before the Notice to Quit was received The Tenants also allege that rent was offered to the Landlord before the notice to quit was received.
After the Tenants failed to pay the rent on April 10, 2006, the Tenants did not make any payments before the notice to quit was served on April 13, 2006. The Tenants had the ability to contact the Landlord to pay rent, if they truly wanted to do so.
The evidence does not support the finding that the Tenants offered to pay the rent before the notice to quit was received. Based on the evidence presented, the Court finds that the Tenants have failed to prove, by a fair preponderance of the evidence, this defense.
(3) Condition of the premises
The Tenants argue that no rent is due because the Landlord failed to properly maintain the premises.
"To ensure that the landlord's duties are performed, General Statutes 47a-4a provides that [a] rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a-7. Generally, a tenant claiming the right to withhold rent must `show that the landlord's failure to comply with 47a-7 (a) materially affects his safety . . . or has rendered the premises uninhabitable." (Citation omitted; internal quotation marks omitted.) Housing Authority v. Olesen, 31 Conn. App. 359, 363, 624 A.2d 920 (1993).
General Statutes Sec. 47a-7, entitled "Landlord's responsibilities," provides in relevant part: "(a) A landlord shall: (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.
"Connecticut law recognizes that health or housing code violations may vitiate a tenant's obligation to pay rent but only serious and substantial violations affecting safety or well being." (Citation omitted; internal quotation marks omitted.) Elkies v. Bear, Superior Court, judicial district of New Haven at Meriden, Docket No. SPM CV 04-0287606 (July 6, 2004, Frazzini, J.) ( 2004 Ct. Sup. 10984).
The Tenant has "the burden of proof on her special defense that no rent was due under General Statutes section 47a-4a because of various health and housing code violations violating § 47a-7 (a). Evergreen Corporation v. Brown, 35 Conn. Sup. 549, 552, 396 A.2d 146 (App.Sess. 1978)." Elkies v. Bear, supra, Superior Court, 2004 Ct. Sup. 10984. "[T]he sanctions in these sections [§§ 47a-7 and 47a-4a inclusive] are not triggered until and unless evidence is adduced at trial establishing that there is a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant, . . ." (Citations omitted.) Visco v. Cody, 16 Conn. App. 444, CT Page 14181 450-451, 547 A.2d 935 (1988).
"In enforcing the mandate of General Statutes § 47a-4a that no rent is due when a landlord has not complied with its statutory duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, courts have generally demanded more than a tenant's word that there are serious health or safety hazards to corroborate such a claim — such as a report from a fire marshal or housing inspector or an independent witness." (Internal quotation marks omitted.) Elkies v. Bear, supra, Superior Court, 2004 Ct. Sup. 10984. "[T]o establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable. Evergreen Corporation v. Brown, 35 Conn. Sup. 549, 552, 396 A.2d 146 (1978) (suggesting that a tenant `utilize the broad range of municipal boards, agencies, and commissions' to remedy defects)." Visco v. Cody, supra, 16 Conn. App. 450. "This court does not construe such cases as holding that a tenant's testimony is, as a matter of law, insufficient to prove an uninhabitability claim; see, e.g., Morgan v. White, 168 Conn. 336, 349, 362 A.2d 505 (1975); Denby v. Commissioner, 6 Conn. App. 47, 502 A.2d 954 (1986); but instead as suggesting that most courts will find the tenant's own word unpersuasive unless there is additional evidence to back up the claim." Elkies v. Bear, supra, Superior Court, 2004 Ct. Sup. 10985-10986.
In Rosow v. Gonzalez, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. H-7905-01528 (July 5, 1979, Spada, J.), Judge Spada found that tenant failed to establish that the apartment was uninhabitable, although there were a number of problems. The tenant complained that the bedroom ceiling leaked, a broken window was not repaired, other windows could not be opened for ventilation, the heat did not work on several occasions, the front door was difficult to open, the apartment was infested with mice, and trash was found in the hallways which were also poorly lit. The court stated "that premises or a dwelling unit are unfit and uninhabitable when they fail to meet basic structural, mechanical and housing code regulations. . . . Each situation needs to be examined on a case-by-case basis. Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." In regards to the no heat complaint, the court found that "[t]he complaint of lack of heat in December, 1978, even if believed, is waived because of the payment of rent."
In this case, the Tenants claim that the Landlord failed to comply with her responsibilities under § 47a-7, to "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. . . ." § 47a-7 (a) (2). They introduced photographs depicting the condition of the premises. The photographs show an apartment in need of some repairs.
Although the housing code enforcement department found several violations in the apartment, that fact alone is insufficient to conclude that the condition of the premises excused the payment of rent. As Judge Spada stated in Rosow: "Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." Rosow v. Gonzalez, supra. Although testimony from a city official is not required, the Court believes that it would have been particularly helpful in this case given the obvious hostility between the parties. In terms of the lead paint concerns, the evidence indicates that the issue was not officially documented until June 9, 2006, nearly two months after the notice to quit was served.
The Tenants also claim that the premises were rendered uninhabitable due to roach infestation. "Courts which have considered the relationship between General Statutes Sec. 47a-7 and 47a-4 have uniformly concluded that where the premises have been rendered uninhabitable by virtue of rodent and roach infestation, the tenant is relieved from the obligation to pay rent and may raise the uninhabitability of the apartment as a defense to a summary process action based on nonpayment of rent. Steinegger v. Rosario, 35 Conn. Sup. 151 (1979); Tucker v. Lopez, 38 Conn. Sup. 67 (1982). Whether the premises is uninhabitable to the extent that the tenant is relieved of the obligation to pay rent depends on the facts of each individual case and whether the uninhabitability is caused by the tenant. Hayes v. Capitol Buick, 119 Conn. 372 (1935)." Housing Authority, Hartford v. Williams, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 92006-65824 (October 8, 1992, Holzberg, J.) ( 1992 Ct. Sup. 9310). In Williams, the court considered a number of factors in concluding that the premises were uninhabitable. The maintenance records indicated that the roach problems were present from virtually the day the tenant moved into the apartment. The tenant made repeated complaints to the housing code department and the housing authority alleging that the apartment was infested with roaches, ants, and rodents. On numerous occasions, the housing authority exterminated the apartment. A housing code inspection confirmed the tenant's complaints. After the inspection, the housing authority took nearly two months to rectify the problem. The tenant's child was treated at the hospital for an allergic reaction to a bug bite received at the apartment. Because of the replacement of the heating system, there were open holes in the tenant's apartment in which the water and heating pipes run. As a result of the ongoing infestation, the tenant and her children had effectively moved out of the apartment and moved into the grandmother's apartment. Finally, although the tenant's cleaning habits may have exacerbated the problems, they did not cause them.
The Tenants testified regarding the roach infestation. The evidence indicates that the Landlord tried to fumigate the apartment. While the Tenants found the Landlord's efforts inadequate, the Landlord claims that the Tenants hindered her efforts to gain access to the apartment to address this problem. Even if the Court credits the Tenants' testimony, the evidence still falls short of supporting the same conclusion reached in Williams, that the roach problem rendered the premises uninhabitable.
The evidence also suggests that the Tenants' failure to pay rent was not solely motivated by the condition of the premises. See Elkies v. Bear, supra, Superior Court, 2004 Ct. Sup. 10987. The Court credits the Landlord's testimony that when she asked the Tenants whether they had the rent on April 10, 2006, Obrebaska indicated that she did not know if Bell had his portion of the rent. "Although a tenant's reasons for not paying rent are not a necessary element for proving that no rent was due under § 47a-4a, the motives for someone's conduct tell much about the underlying facts and circumstances." Elkies v. Bear, supra, Superior Court, 2004 Ct. Sup. 10987.
The evidence does not support the finding that the Tenants' obligation to pay rent under the lease was vitiated by the condition of the premises. Based on the evidence presented, the Court finds that the Tenants have failed to establish, by a fair preponderance of the evidence, "that there is a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant, . . ." Visco v. Cody, supra, 16 Conn. App. 450-451. In reaching this conclusion, the Court notes that the condition of the building did not prevent the Landlord's relatives from living there during most of the Tenants' occupancy. In addition, the Landlord started residing in the building after the action was initiated.
(4) Retaliatory Action pursuant to § 47a-20 and § 47a-33
As her Fourth Special Defense, the Tenants allege retaliatory action pursuant to § 47a-20 and § 47a-33.
General Statutes Sec. 47a-20, entitled "Retaliatory action by landlord prohibited," provides in relevant part:
A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants' union.
However, General Statutes Sec. 47a-20a, entitled "Actions deemed not retaliatory," provides in relevant part:
(a) Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit if: (1) The tenant is using the dwelling unit for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent; (2) the landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode; (3) the condition complained of was caused by the wilful actions of the tenant or another person in his household or a person on the premises with his consent; or (4) the landlord seeks to recover possession on the basis of a notice to terminate a periodic tenancy, which notice was given to the tenant before the tenant's complaint.
(b) Notwithstanding the provisions of section 47a-20, a landlord may increase the rent of a tenant if: (1) The condition complained of was caused by the lack of due care by the tenant or another person of his household or a person on the premises with his consent or (2) the landlord has become liable for a substantial increase in property taxes, or a substantial increase in other maintenance or operating costs not associated with his complying with the complaint, not less than four months before the demand for an increase in rent, and the increase in rent does not exceed the prorated portion of the net increase in taxes or costs. (c) Nothing in this section or section 47a-20 shall be construed to in any way limit the defense provided in section 47a-33. (Emphasis added.)
General Statutes § 47a-33, entitled "Defense that action is retaliatory," provides in relevant part:
In any action for summary process under this chapter or section 21-80 it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, including contacting officials of the state or of any town, city, borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any of the provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie. The obligation on the part of the defendant to pay rent or the reasonable value of the use and occupancy of the premises which are the subject of any such action shall not be abrogated or diminished by any provision of this section.
"As we have said on prior occasions, retaliation is not a defense to a summary process action brought because of nonpayment of rent. Smith v. Worsham, SPNH 8207-2132 (September 8, 1982); Jacobson v. Johnson, SPNH 8207-2006 (September 8, 1982); Maretz v. Apuzzo, 34 Conn. Sup. 594, 597 (1977)." Mordecai v. Botwe-Asamoah, Superior Court, judicial district of New Haven, Docket No. 8208-2228 (September 29, 1982, Foti, J.). See Bordiere v. Ramirez, Superior Court, judicial district of New Britain, housing court, Docket No. SPN 99 1031769 (December 23, 1999, Tanzer, J.) ( 1999 Ct. Sup. 16934, 16935-13936). In Bordiere, the court held that "[w]hile the temporal sequence of the complaints and service of the notice would be significant in deciding a claim of retaliatory eviction, I need not determine the point in this case because neither General Statutes § 47a-20 nor General Statutes § 47a-33 pertains where the reason for the eviction is nonpayment of rent. General Statutes § 47a-20a entitled `Actions deemed not retaliatory' states, `Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit . . . for nonpayment of rent . . .' This defense is not available to the defendants." Bordiere v. Ramirez, supra, Superior Court, 1999 Ct. Sup. 16935-13936.
(5) Lease Provisions
At trial, the Tenants expressed concerns regarding several lease provisions.
The Tenants contend that the lease contains an illegal lease provision regarding when rent is due. The lease imposes penalties if the rent is not paid by the third day of the month. See Paragraph 3.
Under the Landlord-Tenant Act, a provision of a lease agreement which is not consistent with the law is unenforceable. General Statutes § 47a-3 provides in relevant part: "A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by law, including rent, term of the agreement and other provisions governing the rights and obligations of the parties." General Statutes § 47a-4 (b) states that: "A provision prohibited by subsection (a) of this section included in a rental agreement is unenforceable." In addition, the lease agreement itself provides in Paragraph 20, entitled "Invalid Clause,": "Should any provision of this lease be found to be invalid or [un]enforceable, the remainder of the lease shall not be affected thereby and each term and provision herein shall be valid and enforceable to the fullest extent permitted by law."
Subsection (a) of § 47a-4 provides in relevant part: "A rental agreement shall not provide that the tenant: (1) Agrees to waive or forfeit rights or remedies under this chapter and sections 47a-21, 47a-23 to 47a-23b, inclusive, 47a-26 to 47a-26g, inclusive, 47a-35 to 47a-35b, inclusive, 47a-41a, 47a-43 and 47a-46, or under any section of the general statutes or any municipal ordinance unless such section or ordinance expressly states that such rights may be waived; (2) authorizes the landlord to confess judgment on a claim arising out of the rental agreement; (3) agrees to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith; (4) agrees to waive his right to the interest on the security deposit pursuant to section 47a-21; (5) agrees to permit the landlord to dispossess him without resort to court order; (6) consents to the distraint of his property for rent; (7) agrees to pay the landlord's attorney's fees in excess of fifteen per cent of any judgment against the tenant in any action in which money damages are awarded; (8) agrees to pay a late charge prior to the expiration of the grace period set forth in section 47a-15a or to pay rent in a reduced amount if such rent is paid prior to the expiration of such grace period; or (9) agrees to pay a heat or utilities surcharge if heat or utilities is included in the rental agreement.
Clearly, General Statutes § 47a-15a applies to this case and provides for a nine day grace period for tenancies one month or longer. Under the lease, the rent is due by the first of the month. Therefore, the Tenants are required to pay rent by the tenth of the month, not by the third of the month. The provision of the lease imposing penalties if the rent is not paid by the third of the month is unenforceable.
The Tenants also complain that the lease agreement makes them responsible for maintenance costs under $500. However, in certain residential lease situations, the parties may enter into an agreement that requires a tenant to be responsible for maintenance. Subsection (d) of § 47a-7 provides in relevant part: "The landlord and tenant of a dwelling unit other than a single-family residence may agree that the tenant is to perform specified repairs, maintenance tasks, alterations or remodeling if (1) the agreement of the parties is entered into in good faith; (2) the agreement is in writing; (3) the work is not necessary to cure noncompliance with subdivisions (1) and (2) of subsection (a) of this section; and (4) the agreement does not diminish or affect the obligation of the landlord to other tenants in the premises."
While there may be some issues with the lease agreement, the Tenants' obligation to pay rent under the lease was not invalidated.
IV CONCLUSION AND ORDER
The court finds that the Landlord has proved, by a fair preponderance of the evidence, all the elements of the summary process action. The court finds that the Tenants have failed to prove, by a fair preponderance of the evidence, any defenses. Having considered the law and equity, the court enters Judgment for the Landlord for Immediate Possession. The court enters a final stay of execution through September 30, 2006, subject to the Tenants making a use and occupancy payment of $800 by September 10, 2006. The payment must be made in good funds only. If the Tenants fail to make the payment on time, an execution may issue upon the filing of an affidavit of noncompliance. The full arrearage is $3,350 for the period of April 1, 2006 to August 31, 2006.