Opinion
No. CV 05 4003733
June 21, 2006
MEMORANDUM OF DECISION
This is a summary process action brought by the plaintiff Winfield Elwell against the defendants, Lucille Minor and Dominic Giordano, Jr. Elwell seeks a judgment of immediate possession, alleging that the defendants failed to pay rent due on September 1, 2005 and every month thereafter. Minor and Giordano allege that Elwell brought this summary process action to retaliate against Minor for making complaints regarding the condition of her apartment. Trial proceeded on February 22, 2006, and the court heard the testimony of Winfield Elwell, Gene Bolles, Lucille Minor and Pamela Elwell. The parties filed post-trial briefs on March 15, 2006.
The court finds the following facts. In May 2000, Winfield Elwell and Lucille Minor entered into an oral month-to-month lease for the use and occupancy of apartment two at 124 Phoenix Street, Vernon, Connecticut. The initial monthly rent was $575. In February 2004, Elwell increased the rent for the first time to $625. On July 20, 2005, Elwell sent Minor a letter notifying her of another rent increase from $625 to $650 that would take effect on September 1, 2005. Minor did not pay rent on that date. Instead, on September 5, 2005, she tendered $625 and included a letter explaining that she did not want to pay the increased rent for September or October but that she would pay the increase in later months. Elwell rejected the payment by returning the check. Minor then tendered the check a second time, and Elwell again returned it. Also, on September 5, 2005, Minor sent a letter to Pamela Elwell, the plaintiff's wife, complaining about various problems with the condition of the apartment and asserting that she had certain rights under the law.
During a September 14, 2005 conversation, Elwell told Minor that she should pay $650 or vacate the apartment. On that same day within hours of the conversation, Minor made a formal complaint to the town of Vernon asserting various housing code violations. Thereafter, on September 22, 2005, Elwell served Minor with a notice to quit based on her failure to pay rent for the month of September. Elwell then served a second notice to quit on September 28, 2005 based on Minor's failure to pay rent and lapse of time. Elwell commenced this summary process action on October 24, 2005 after Minor failed to comply with the second notice to quit. As a special defense pursuant to General Statutes § 47a-33, Minor alleges that Elwell brought this summary process action in violation of General Statutes § 47a-20 to retaliate against Minor because she contacted public officials and Elwell himself about problems with her apartment.
"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." General Statutes § 47a-33.
"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." General Statutes § 47a-20.
"Summary process is a statutory remedy that enables a landlord to recover possession from a tenant upon the termination of the lease . . . The purpose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common law cause of action. The process is intended to be summary and is designed to provide an expeditious remedy to a landlord seeking possession . . . We have recognized the principle that, because of the summary nature of its remedy, the summary process statute must be narrowly construed and strictly followed." (Citation omitted; internal quotation marks omitted.) Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn.App. 37, 43, 726 A.2d 600 (1999).
Elwell initially brought this summary process action on the grounds of nonpayment of rent and lapse of time. At trial, however, counsel for Elwell withdrew the allegation based on lapse of time and chose to proceed with this summary process action based on nonpayment of rent. Construing the summary process statutes narrowly, some Superior Court judges have held that a notice to quit based on nonpayment of rent or lapse of time served on a tenant at sufferance is defective and deprives the court of subject matter jurisdiction. See, e.g., Commissioner of Transportation v. The Dock, Superior Court, judicial district of Fairfield, Housing Session, Docket No. SBPR 9508-30319 (November 20, 1995, Tierney, J.) 15 Conn. L. Rptr. 461, 462. Therefore, it is important in this case to determine whether Minor was a tenant at will or a tenant at sufferance and whether the notice to quit relied upon by Elwell provides a proper basis for eviction.
"A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated." Welk v. Bidwell, 136 Conn. 603, 608-09, 73 A.2d 296 (1950). "The crux of the matter lies in the fact that a lease is a contract. 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 . . . For each month, therefore, there must be a new contract of leasing. Where there has been no meeting of the minds there is no contract. If a landlord insists on one rate of rental and the tenant insists on another, there is no meeting of the minds." (Citations omitted.) Id., 606-07. Ordinarily, a landlord and a tenant form a new implied contract each month when the tenant pays rent and remains in possession with the acquiescence of the landlord. "If [however] a tenant remains in possession without the consent of the landlord, there is no contract for an extended term to be implied from the holding over . . . A fortiori, where the parties are in definite dispute as to any of the essential terms of a new tenancy, certainly no lease can be implied from the fact that the tenant holds over." (Citation omitted.) Id., 608; see also General Statutes § 47a-3d.
"Holding over by any lessee, after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease. Parol leases of lands or tenements reserving a monthly rent and in which the time of their termination is not agreed upon shall be construed to be leases for one month only." § 47a-3d.
During the month of September, Minor and Elwell corresponded extensively. In her letters, Minor refused to pay the increased rental amount which Elwell demanded. She gave reasons why she did not want to pay $650 instead of $625 and even attempted to negotiate postponing the rent increase until later months. Elwell rejected Minor's efforts by returning the checks that she tendered and continuing to insist on a $650 rental amount. These communications reveal a definite dispute between the parties which, under Welk v. Bidwell, supra, 136 Conn. 603, precludes the formation of a new one-month lease.
Because Minor remained in possession of the premises without a new monthly contract, she should be treated as a holdover occupying the apartment without the legal right to do so. In this case, as in Welk v. Bidwell, supra, 136 Conn. 603, "[t]he defendant was not a tenant at will, because such a tenancy exists only when the occupation of the property is with the landlord's consent, continuing during the tenancy." Id., 608. Elwell also served Minor with the first notice to quit for nonpayment of rent expressing his intention to terminate the lease. Once the lease terminated, whether on September 1, 2006 by the parties' failure to reach an agreement, at some later date after the breakdown in negotiations or on September 22, 2006 by service of the first notice to quit, Minor became a tenant at sufferance. Therefore, at the time Elwell served the second notice to quit, Minor was only a tenant at sufferance with no legal right to occupy the premises.
Nonpayment of rent is not a proper ground for the eviction of a tenant at sufferance because "[a] tenant at sufferance is not required to pay rent but only use and occupancy." Commissioner of Transportation v. The Dock, supra, 15 Conn. L. Rptr. 462. The arguments in favor of this line of cases are straightforward. When two parties enter into a month-to-month lease, they do not ordinarily designate a definite date when the lease, by its own terms, will expire. Instead the parties establish a tenancy at will which the tenant may terminate by moving out and the landlord may terminate by serving a notice to quit. Such a lease could never expire by lapse of time because there is no term defining the temporal existence of the lease. So, the law treats a month-to-month lease as a series of individual leases which expire at the end of the month and are ordinarily renewed each month by implication. When a lease expires at the end of the month, it expires by operation of law and not by the temporal terms of the agreement. Once the agreement expires by operation of law, the tenant's obligation to pay rent transforms into an obligation to pay a reasonable sum for the use and occupancy of the premises. Without an obligation to pay rent there can be no summary process for nonpayment of rent.
Construing the summary process statutes narrowly, our courts have refused to allow a right of eviction for nonpayment of use and occupancy. See, e.g., Potz v. Brocuglio, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP 135016 (February 8, 2006, Bentivegna, J.). The proper statutory basis for pursuing summary process against a tenant who failed to pay a reasonable sum for use and occupancy would be that the tenant "originally had the right or privilege to occupy [the] premises . . . but such right or privilege has terminated." (Internal quotation marks omitted.) Commissioner of Transportation v. The Dock, supra, 15 Conn. L. Rptr. 463; see also General Statutes § 47a-23 (a)(3).
Elwell's second notice to quit cites improper grounds for the eviction of a tenant at sufferance under our statutes. Because the grounds are improper, the notice to quit is defective and deprives this court of subject matter jurisdiction in this summary process action. See Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988). Therefore this action is dismissed for lack of subject matter jurisdiction pursuant to Practice Book § 10-33.
"Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33.