Opinion
No. HDSP-126277
June 23, 2004
MEMORANDUM OF DECISION
The plaintiff, Jose M. Correa, has brought this summary process action against the defendants, Kimberly Ward and "John Doe." The plaintiff seeks possession of the premises, known as, 8 Community Street, East Hartford, Connecticut.
FACTS
In his complaint, dated October 27, 2003, the plaintiff alleges that on or about September 1, 2003, he entered into an oral month to month lease for the term of one month for the use and occupancy of the said premises. The plaintiff alleges further that the defendant agreed to pay $575.00 monthly as rent for the leased premises. The complaint alleges that on September 25, 2003 the plaintiff caused a notice to quit to be served upon the defendants. The notice to quit listed "lapse of time" as one of the reasons for termination of the rental agreement and gave the defendants until October 25, 2003 to quit possession of premises.
The defendant, Kimberly Ward, contends that Conn. Gen. Stat. Sec. 47a-20 bars this action. The defendant asserts a special defense that because this action was brought within six months of the defendant's good faith complaints to the plaintiff for repairs to the leased premises, the eviction is retaliatory. Further, the defendant claims that she made good faith complaints to officials for repairs to the subject premises and that the officials issued repair orders to the plaintiff.
When the parties agreed on a lease for the apartment, the plaintiff and the defendant declared that the cooking stove in the premises belonged to the plaintiff. (Ex. A). On June 4, 2003, an inspection by a worker of Imagineers, LLC, revealed that the stove needed repairs. (Ex. B). In the letter from the Imagineers' worker, the plaintiff was allowed until July 5, 2003 to repair the stove. The plaintiff testified that he attempted to locate the parts for the stove. However, because the stove was old, he could not find the parts to repair the stove. At some point, the gas company turned off the gas service to the stove and the stove could not be used by the defendant.
In order to resolve the issue with the stove, the plaintiff proposed to the defendant that he would replace the stove. (Ex. D). The defendant would take ownership of the replaced stove, if the defendant paid one half of the cost for the replaced stove. The defendant orally accepted the proposal. The plaintiff tendered a contract to the defendant with the details of the proposal, but the defendant declined the offer from the plaintiff. Another inspection occurred on October 6, 2003 where the plaintiff was ordered to replace the stove immediately. (Ex. C).
DISCUSSION
In Visco v. Cody, 16 Conn. App. 444 (1988), the defendants alleged as a special defense that the eviction action against them was retaliatory. There, the court held that because the repairs requested by the tenants were not necessary to maintain the leased premises in a fit and habitable condition, the tenants were not entitled to the protection afforded by Section 47a-20. A landlord is not required to provide the tenant with a cooking stove under Conn. Gen. Stat. § 47a-7. Nevertheless, if the landlord provides a cooking stove, the landlord is required to maintain it.
Connecticut General Statutes Sec. 47a-20 provides that: "A landlord shall not maintain an action . . . against a tenant to recover possession of a dwelling unit, . . . 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, . . . any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation . . .; (3) the tenant has in good faith requested the landlord to make repairs. . . ." Imagineers is not a public agency within the meaning of Section 47a-20. However, Imagineers is a "lawful means" that a tenant can avail herself of to address repair issues in her apartment. Further, the Court finds that the defendant made a good faith request to make repairs to the stove.
Through her testimony, the defendant has proven sufficient facts creating a presumption that this summary process action is retaliatory within the meaning of § 47a-20. The burden, then, shifts to the plaintiff to establish that there exist other valid reasons for the eviction.
This action was commenced by the plaintiff, when the defendant was served with a notice to quit possession on September 25, 2003. In the notice to quit, the plaintiff cites two reasons for the eviction; lapse of time, and damage to property. However, in his complaint, the plaintiff alleges lapse of time as the only reason for the eviction. The evidence establishes that a month to month tenancy existed between the parties.
In Alteri v. Layton, 35 Conn. Sup. 261 (1979) the court held that § 47a-20 creates a presumption that can be rebutted by other evidence. The court explained that the retaliatory eviction defense is not a right given to tenants, but rather a limitation upon the remedies of the landlord. Alteri, supra, at 264. The court in Murphy v. Baez, 40 Conn. Sup. 470 (1986) held that the presumption can only be rebutted by proof of one or more reasons set out in § 47a-20a of the General Statutes. Conn. Gen. Stat. § 47a-20a provides:
Sec. 47a-20a. Actions deemed not retaliatory.
(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. . . .
The court concluded in Murphy that the language of § 47a-20a clearly delineates the only grounds for such rebuttal. 40 Conn. Sup. at 474.
This Court does not agree. § 47a-20a sets out those instances where summary process actions by a landlord are not deemed retaliatory. However, § 47a-20a does not tie the hands of a landlord who may have other valid reasons to evict a tenant in an eviction based upon lapse of time.
The plaintiff testified that the replaced stove cost him $80.00 and that he had asked the defendant to pay $40.00 toward the purchase price and that she, then, would own the stove. The plaintiff testified and the Court finds that the defendant orally agreed to the proposal, but later changed her mind when she was presented with the proposal in writing. Further, the plaintiff testified that whenever he conversed with the defendant, she would use foul language, calling the plaintiff, "asshole" and "you shit". In addition, the plaintiff testified that the issue with the stove was not the reason for bringing this summary process action. The Court credits the plaintiff's testimony in this regard.
CONCLUSION
The Court finds that this summary process action was not prompted by the defendant's good faith efforts to require the plaintiff to repair the stove in her apartment. The plaintiff presented a proposal to the defendant to replace the stove, which appeared to be reasonable under the circumstances.
The parties were subject to a month to month lease. The lease terminated at the end of each month. The defendant verbally abused the plaintiff on some occasions. The Court is persuaded, by the fair preponderance of the evidence, that the defendant's mistreatment of the plaintiff prompted the plaintiff to terminate the tenancy and not the needed repairs to the stove. Although the defendant has established a presumption of retaliatory eviction in this case, this plaintiff has rebutted that presumption. The Court finds that defendant's eviction was not prompted by the dispute over the stove.
The plaintiff has proven the allegations of his complaint based on lapse of time. The defendant has failed to prevail on her special defense that the action was barred by Conn. Gen. Stat. 47a-20. Judgment for possession is entered for the plaintiff based on lapse of time of an oral one-month lease. CT Page 8895-a
BY THE COURT
Angelo L. dos Santos, Judge