Opinion
No. CVH-514
May 24, 2006
MEMORANDUM OF DECISION TENANT COMPLAINT ACTION SUMMARY PROCESS ACTION
On January 23, 2006, Anthony W. Grant, hereinafter ("Tenant"), initiated a tenant complaint action. Several weeks later, on March 8, 2006, Urban Developers, LLC, hereinafter ("Landlord"), filed a summary process action based on lapse of time. The cases were consolidated and were tried on April 11, 12 and 19, 2006. The Tenant appeared pro se; the Landlord was represented by counsel.
"Although our courts are "consistently . . . solicitous of the rights of pro se litigants" the rules of practice cannot be ignored to the detriment of other parties. Connecticut Light Power Co. v. Kluczinsky, 171 Conn. 516, 519, 370 A.2d 1306 (1976); see also Higgins v. Hartford County Bar Ass'n., 109 Conn. 690, 692, 145 A. 20 (1929)." Gallogly v. Kurrus, Superior court, judicial district of Litchfield at Bantam, Docket No. CV 18-9808 (Trombley, J.; May 16, 2005) ( 2005 Ct.Sup. 8500, 8517).
Fact
"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). 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 civil 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); Failure of the plaintiff to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant. Gulycz v. Stop Shop Cos., supra, 29 Conn.App. 523.
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 Landlord is the owner of the property at 105 Sherbrooke Avenue, Apt. 24, Hartford, Connecticut. On April 1, 2002, the parties entered into a written lease agreement for a one-year term. After the term expired, the Tenant continued on a month-to-month basis. Paragraph 1(a) of the lease states: "If the Resident continues occupancy of the premises beyond the original term of the lease, the Resident shall continue in occupancy, on the same terms and conditions as the original lease, subject to monthly rent and other fee modifications . . ."
A portion of the Tenant's rent is paid by Section 8. As of April 1, 2006, the rent/use and occupancy is $600. Since filing the tenant complaint action, the Tenant has deposited with the Court his portion of the rent, $429. Section 8 has continued to pay the balance of the rent/use and occupancy.
The Tenant moved into the premises on or about April 1, 2002. On or about July 23, 2002, the Tenant changed the lock on his door after he thought an intruder entered his apartment. The Tenant has refused to give the Landlord a key to the apartment because he blamed the Landlord for allowing someone to gain access to his apartment.
In August 2005, on a Friday night, a pipe in the ceiling of the Tenant's apartment burst and spewed sewage on the Tenant and throughout the apartment. The broken pipe caused significant damage to the Tenant's personal property as well as the premises. After the pipe broke, the Tenant was unable to reach the Landlord. He apparently called the Landlord's fax number by mistake. The Tenant talked to the superintendent of the building. But the super did not work on weekends and refused to help. The Tenant then called the fire department which came and turned off the water.
The Tenant claimed that the Landlord was negligent in not fixing the pipe. The Tenant had complained about a leaking pipe to the Landlord and the housing authority for sometime before the pipe burst. He testified that the Landlord just painted over the water stain. The Landlord testified that a drain pipe from the upstairs apartment cracked and leaked into the Tenant's apartment. A maintenance person and then a plumber worked to repair the damage. The repairs took several months to complete. The parties disagree as to the reasons for the delay. The Tenant blamed the Landlord for using unqualified contractors and not making adequate repairs. The Landlord claimed the Tenant denied the Landlord reasonable access to the premises to make the repairs.
In August 2005 and September 2005, the apartment was inspected for Section 8 purposes. On September 30, 2005, Hartford Housing Authority, Section 8 sent out a notice that the rental unit failed inspection. The Landlord testified that the repairs were completed by October 21, 2005. The rent was abated for twenty days in October 2005.
On November 7, 2005, Kevin Mattia, the Hartford Public Health Sanitarian, issued a letter to the Tenant which states as follows: "On November 2, 2005 the Department of Health and Human Services conducted an inspection of the above referenced location [105 Sherbrooke Avenue, Apt. 24, Hartford, Connecticut]. This inspection was conducted based on a complaint regarding a sewage leak. At this time, our office found no public health violations within this dwelling unit. If you have any further questions or concerns please feel free to contact our office."
On October 17, 2005, the Landlord served a notice to quit based on nonpayment of rent. That case was subsequently withdrawn on January 17, 2006. On February 24, 2006, the Tenant was served with the instant notice to quit based on lapse of time. The Tenant remains in possession of the premises. The Tenant testified that he did not want to stay in the apartment but needed more time to move out.
The Landlord testified that the parties' relationship has broken down to the point where it is very difficult for them to work together. The Tenant has not complied with the lease and the rules by changing the lock on the apartment door and not giving the landlord a key. In 2004, the Landlord sent a letter to the Tenant requesting a key without success. The Landlord also claimed that the Tenant has violated the lease by denying the Landlord reasonable access to the apartment to make repairs.
The Court will provide additional facts, as needed.
Discussion Tenant Complaint Action
The remedies available to a tenant in the event of the landlord's breach of his statutory duties include a tenant complaint action to compel the landlord to perform his legal duties. Visco v. Cody, 16 Conn.App. 444, 449, 547 A.2d 935 (1988).
Pursuant to General Statutes § 47a-14h, a tenant may initiate an action to compel the landlord to meet his/her statutory responsibilities under General Statutes § 47a-7. The tenant has the burden of proof in a tenant complaint case, also referred to as a housing code enforcement action or payment into court action. The essential elements of the case are as follows: (1) The plaintiff is a tenant at the premises; (2) The defendant is the landlord of the premises; (3) The parties entered into an oral/written lease agreement for a term of one week/month/year; (4) The tenant pays an agreed-upon rent by a certain date and the rent has been paid to the landlord; (5) At least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have been violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance; (6) The tenant has not been served with a notice to quit based upon nonpayment of rent prior to the institution of this action, and has not been served with a notice to quit based on any other ground prior to his making the complaint, provided any such notice to quit is still effective; (7) The landlord has failed to perform his/her legal duty to maintain the premises under 47a-7, in the following ways (list violations). (Emphasis added.)
General Statute § 47a-14h provides in relevant part:
"(a) Any tenant who claims that his landlord has failed to perform his legal duties, as required by section 47a-7 or subdivisions (1) to (13), inclusive, of subsection (a) of section 21-82, may institute an action in the superior court having jurisdiction over housing matters in the judicial district in which he resides to obtain the relief authorized by this section and sections 47a-20 and 47a-68. No tenant may institute an action under this section if a valid notice to quit possession or occupancy based upon nonpayment of rent has been served on him prior to his institution of an action under this section or if a valid notice to quit possession or occupancy based on any other ground has been served on him prior to his making the complaint to the agency referred to in subsection (b) of this section, provided any such notice to quit is still effective.
(b) The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of section 47a-7; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. The complaint shall also allege that at least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have been violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance. In the case of a mobile manufactured home located in a mobile manufactured home park, such complaint may be made to the Commissioner of Consumer Protection. The entry fee shall be twenty-five dollars, which may be waived in accordance with section 52-259b. Such entry fee shall be a taxable cost of the action. If, on the same day, more than one tenant from the same building or complex institutes an action under this section and pays the entry fee for such action, unless such fee is waived, the actions shall be treated as a single action. No recognizance or bond shall be required.
(c) Upon receipt of the complaint, the clerk shall promptly set the matter down for hearing to be held not more than fourteen days after the filing of the complaint or the return of service, whichever is later, and shall cause a copy of the complaint and the notice of the action to be sent separately by certified mail, return receipt requested, to (1) each landlord named in the complaint and (2) the director of the municipal or state agency to which the tenant has alleged, pursuant to subsection (b) of this section, that a complaint concerning the premises has been made. At such hearing, the agency notified pursuant to subdivision (2) of this subsection shall submit to the court the inspection report prepared as a result of the complaint made by the tenant."
(d) If proof of service is not returned to the clerk, the complaint shall be served by the plaintiff in accordance with section 52-57.
(e) The complainant may seek and the court may order interim or final relief including, but not limited to, the following: (1) An order compelling the landlord to comply with his duties under local, state or federal law; (2) an order appointing a receiver to collect rent or to correct conditions in the property which violate local, state or federal law; (3) an order staying other proceedings concerning the same property; (4) an award of money damages, which may include a retroactive abatement of rent paid pursuant to subsection (h) of this section; and (5) such other relief in law or equity as the court may deem proper. If the court orders a retroactive abatement of rent pursuant to subdivision (4) of this subsection and all or a portion of the tenant's rent was deposited with the court pursuant to subsection (h) by a housing authority, municipality, state agency or similar entity, any rent ordered to be returned shall be returned to the tenant and such entity in proportion to the amount of rent each deposited with the court pursuant to subsection (h).
(f) The landlord, by counterclaim, may request and the court may issue an order compelling the tenant to comply with his duties under section 47a-11.
(g) The court, in ordering interim or final relief, may order that accrued payments of rent or use and occupancy held by the clerk be used for the repair of the building or be distributed in accordance with the rights of the parties.
(h) On each rent due date on or after the date when the complaint is filed with the clerk of the court, or within nine days thereafter or, in the case of a week-to-week tenancy, within four days thereafter, the tenant shall deposit with the clerk of the court an amount equal to the last agreed-upon rent. If all or a portion of the tenant's rent is being paid to the landlord by a housing authority, municipality, state agency or similar entity, this requirements shall be satisfied if the tenant deposits an amount equal to such tenant's portion of the last agreed-upon rent with the clerk. The court may make such entity a party to the action. The clerk shall accept such payment of rent and shall provide the tenant with a receipt. Payment to the clerk shall, for all purposes, be the equivalent of having made payment to the landlord himself. No landlord may maintain an action against a tenant to recover possession for nonpayment of rent if an amount equal to the rent due has been received by the clerk. When the complaint and notice of the action are served pursuant to subsection (c) or (d) of this section, the clerk shall promptly notify the landlord of the receipt of any such payment and of the prohibition against maintaining an action to recover possession for nonpayment of rent. If the complainant fails to make such payment of rent, the court may, after proper notice, upon its own motion or upon motion by the landlord, dismiss the complaint.
(i) The landlord may, at any time, move for the termination of payment into court and the clerk shall promptly schedule a hearing on such motion. If the court finds that the violations of section 47a-7 have been corrected, it shall enter a judgment with respect to the rights and obligations of the parties in the action and with respect to the distribution of any money held by the clerk.
(j) Nothing in this section and sections 47a-20 and 47a-68 shall be construed to limit or restrict in any way any rights or remedies which may be available to a tenant to the state or to a municipality under any other law.
(k) The judges of the Superior Court may, in accordance with the provisions of section 51-14, adopt rules for actions brought under this section and sections 47a-20 and 47a-68, including the promulgation of a simplified form for the bringing of such actions.
(l) For the purposes of this section, "tenant" includes each resident of a mobile manufactured home park, as defined in section 21-64, including a resident who owns his own home, and "landlord" includes a "licensee" and an "owner" of a mobile manufactured home park, as defined in section 21-64.
General Statutes § 47a-7 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.
(b) If any provision of any municipal ordinance, building code or fire code requires a greater duty of the landlord than is imposed under subsection (a) of this section, then such provision of such ordinance or code shall take precedence over the provision requiring such lesser duty in said subsection.
(c) The landlord and tenant of a single-family residence may agree in writing that the tenant perform the landlord's duties specified in subdivisions (5) and (6) of subsection (a) and also specified repairs, maintenance tasks, alterations, or remodeling, provided the transaction is entered into in good faith and not for the purpose of evading the obligations of the landlord.
(d) 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."
Pursuant to § 47a-14h(e), the tenant may seek and the court may order interim or final relief including, but not limited to, the following:
(1) An order compelling the landlord to comply with his duties under local, state or federal law; (2) an order appointing a receiver to collect rent or to correct conditions in the property which violate local, state or federal law; (3) an order staying other proceedings concerning the same property; (4) an award of money damages, which may include a retroactive abatement of rent paid pursuant to subsection (h) of this section; and (5) such other relief in law or equity as the court may deem proper. If the court orders a retroactive abatement of rent pursuant to subdivision (4) of this subsection and all or a portion of the tenant's rent was deposited with the court pursuant to subsection (h) by a housing authority, municipality, state agency or similar entity, any rent ordered to be returned shall be returned to the tenant and such entity in proportion to the amount of rent each deposited with the court pursuant to subsection (h). (Emphasis added.)
General Statutes § 47a-14h(g) provides that: "The court, in ordering interim or final relief, may order that accrued payments of rent or use and occupancy held by the clerk be used for the repair of the building or be distributed in accordance with the rights of the parties." "If the court finds that the violations of section 47a-7 have been corrected, it shall enter a judgment with respect to the rights and obligations of the parties in the action and with respect to the distribution of any money held by the clerk." § 47a-14h(i).
The tenant must prove all the elements of the case including the 21-day requirement and the proper complaint requirement.
At least twenty-one days before filing a tenant complaint action, the tenant must have made a complaint about the premises to an appropriate agency. In Massey v. Wong, Superior Court, judicial district of New London, Docket No. 566365 (Hurley, JTR; March 19, 2004) ( 2004 Ct.Sup. 4338), the court dismissed the case because "[t]he plaintiff failed to allege in his complaint that he filed a grievance with the proper municipal authorities at least twenty-one days prior to commencing this lawsuit." Massey v. Wong, supra, 2004 Ct.Sup. 4340.
The complaint must be made to a proper municipal agency. In Balint v. Casale, 40 Conn.App. 595, 598, 672 A.2d 508 (1996), the court held that: "`[t]he requirement of notification to the housing code enforcement agency is not directory but mandatory'; Dugan v. Milledge, 196 Conn. 591, 595, 494 A.2d 1203 (1985); and that `[c]ompliance with this essential condition [is] a requisite for the court's jurisdiction.' The tenant may make an oral complaint. `Section 47a-14h(b) does not, . . . require that complaints to the health department be made in writing or that the plaintiff produce written copies of such complaints at trial.'" Balint v. Casale, supra, 40 Conn.App. 598.
In his tenant complaint action, the Tenant alleges that on July 26, 2005, he made a complaint about the premises to the Hartford Housing Authority, Section 8. The Landlord claims that the Tenant has not met one of the statutory requirements for a valid tenant complaint action under § 47a-14h(b) because the complaint made to the Hartford Housing Authority, Sec. 8 does not satisfy "[t]he requirement of notification to the housing code enforcement agency . . ." See Dugan v. Milledge, supra, 196 Conn. 595. However, in Correa v. Ward, Superior Court, judicial district of Hartford, Docket No. HDSP-126277 (Dos Santos, J.; June 23, 2004) ( 2004 Ct.Sup. 11421, 11422) ( 37 Conn. L. Rptr. 248), the court found that a Section 8 agency is a lawful means to address repair issues.
Notwithstanding, the Tenant is also required to prove, by a fair preponderance of the evidence, that the landlord failed to perform his/her legal duty to maintain the premises under § 47a-7. The landlord's responsibilities include "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition." § 47a-7(a)(2). "Fit" is defined as "suitable or appropriate." Black's Law Dictionary (5th Ed. 1983). "Habitable" is defined as a "condition of premises which permits inhabitant to live free of serious defects to health or safety." Black's Law Dictionary (5th Ed. 1983). In Visco, the Appellate Court reasoned that: "[T]he sanctions in these sections [47a-7, 47a-4a, 47a-14h, 47a-20, 47a-33,] 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, supra, 16 Conn.App. 450-51. The law does not require the premises to be more than fit and habitable.
The Tenant has alleged a number of violations, involving roaches, electrical hazards, ventilation concerns, and structural problems. This action was filed approximately three months after the apartment passed inspection and six months after the pipe broke. The Tenant presented numerous photographs depicting the conditions of the premises. The photographs show an apartment in need of some repairs. However, the Tenant failed to offer sufficient evidence that the alleged violations rendered the premises unfit and uninhabitable. The court credits the Landlord's testimony that it made all repairs and did whatever was necessary to put and keep the premises in a fit and habitable condition. The Landlord's repair efforts were hampered, in part, by the Tenant's failure to provide reasonable access to the premises.
Accordingly, the court finds that the Tenant has not proved, by a fair preponderance of the evidence, that the Landlord failed to perform his/her legal duties under § 47a-7. Therefore, the tenant complaint case must be dismissed.
Eviction Action Landlord's Case
The Landlord seeks immediate possession of the premises based on lapse of time. In an eviction action based on lapse of time, the plaintiff 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 rental agreement has terminated by lapse of time; (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, as required by law; 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. § 47a-23(a)(1)(A).
Tenant's Defense
The Tenant pleaded three special defenses to the eviction action. The first special defense contends that as a result of the conditions of the premises, no rent was due under General Statutes § 47a-4a. This defense, however, has no bearing on the allegations in the eviction complaint because it relates to the payment of rent. Pursuant to § 47a-4a, a tenant may raise the conditions of the premises as a defense in a nonpayment of rent case but not a lapse of time case.
Tenant's Answer filed March 13, 2006:
3. [X] No rent is due, under Connecticut Law (C.G.S. Sec. 47a-4a) because there are housing or health code violations in violation of Connecticut Law (C.G.S. Sec. 47a-7(a)). LIST VIOLATIONS BELOW.See attached
4. [X] I notified my landlord, [X] Housing code, [X] the Health Department, or [X] the Building Department of the violations listed in No. 3 above on (date): 7/27/05."
5. [X] This eviction is being brought because I contacted my landlord or [X] public officials or agencies with regard to complaints about my apartment (C.G.S. Sec. 47a-20 and 47a-33)."
ADDITIONAL INFORMATION
This eviction action is being brought against me as a result of my filing a complaint with the Housing Authority and paying my rent through the court.
"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.) Visco v. Cody, 16 Conn.App. 444, 450, 547 A.2d 935 (1988)." Housing Authority v. Olesen, 31 Conn.App. 359, 363, 624 A.2d 920 (1993). 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, Superior court, judicial district of New Haven at Meriden, Docket No. CV-04-0287606 (Frazzini, J.; July 6, 2004) ( 2004 Ct.Sup. 10984).
The second and third special defenses allege retaliatory action by the Landlord pursuant to § 47a-20 and § 47a-33. See Alteri v. Layton, 35 Conn.Sup. 261, 263-64, 408 A.2d 18 (1979). "As explained in Alteri v. Layton, 35 Conn.Sup. 261 (1979), these two sections are different in application. Id. at 263-65. Section 47a-20 establishes limitations on the remedies of a landlord and effectively creates a presumption of retaliatory action if a tenant takes certain enumerated actions regarding the reporting of housing code violations. Section 47a-33, on the other hand, `establishes a tenant's right to claim a defense of retaliatory eviction where the tenant has reported housing code violations to the appropriate authorities.' Id. at 263. Under Section 47a-20, certain actions of the tenant will create a presumption that the landlord acted out of retaliation, and the landlord is entitled to rebut that presumption with substantial countervailing evidence. Under Section 47a-33, however, no presumptions are permitted and the tenant by affirmative proof is required to prove that the landlord's primary motive in seeking eviction was in retaliation for the tenant's reporting of housing code violations. The burden of persuasion for this affirmative defense rests on the tenant asserting it. Id. at 265." Cornish v. Gardiner, Superior Court, judicial district of New London, Docket No. CV10-15902 (Jongbloed, J.; April 10, 2000) ( 2000 Ct.Sup. 4106, 4108-109).
General Statute § 47a-20 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 hearth 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." (Emphasis added.)
General Statute § 47a-33 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 to the second special defense, the Tenant alleges that the Landlord is prohibited from maintaining an eviction action because the action is barred by General Statutes § 47a-20. "Under § 47a-20, supra, the retaliatory eviction defense is not a right given to tenants, but rather a limitation upon the remedies of the landlord. Upon the occurrence of one or more of four acts committed by the tenant, the landlord `shall maintain . . . [no] action . . . against a tenant to recover possession of a dwelling unit . . . within six months after . . .' Section 47a-20(a), supra. Therefore, under § 47a-20(a), the establishment of a prima facie case by a tenant under any one or more of the four prescribed acts would give rise to a presumption of retaliatory action by a landlord. Once the tenant has produced sufficient evidence to bring himself within one or more of those four actions, then a prima facie case will have resulted. The presumption of § 47a-20 is rebuttable, and the landlord is permitted by substantial countervailing evidence to rebut it. In essence, he will be required to establish a legitimate interest in the eviction. The presumption is accorded as a matter of public policy. It imposes upon the landlord not only the burden to produce substantial countervailing evidence but also the burden of proving facts which fairly put in issue the presumed fact. O'Dea v. Amodeo, 118 Conn. 58." Alteri v. Layton, supra, 35 Conn.Sup. 264.
Pursuant to § 47a-20, the defense of retaliatory action may be triggered under one or more of the following grounds: (1) A tenant has in good faith attempted to remedy by any lawful means the conditions of the premises; (2) A municipal agency or official has filed a notice, complaint or order regarding a violation; (3) A tenant has in good faith requested the landlord to make repairs; (4) A tenant has in good faith instituted a tenant complaint action; or (5) A tenant has organized or become a member of a tenants' union.
In order to determine whether a landlord has engaged in retaliatory action, the court must evaluate the following: (A) Has the tenant alleged one or more of the grounds under § CT Page 9356 47a-20?; (B) Has the tenant established a prima facie case under any one or more of the prescribed grounds that gives rise to a presumption of retaliatory action by the landlord?; (C) Has the landlord rebutted the presumption with substantial countervailing evidence? (Has the landlord established a legitimate interest in the eviction?)
A tenant may make a good faith attempt to remedy conditions of the premises by any lawful means. "Any lawful means" may include a complaint to a Section 8 agency. In Correa, the court found that although "Imagineers is not a public agency within the meaning of Section 47-20 . . . Imagineers is a `lawful means' that a tenant can avail herself of to address repair issues in her apartment." Correa v. Ward, Superior Court, judicial district of Hartford, Docket No. HDSP-126277 (Dos Santos, J.; June 23, 2004) ( 2004 Ct.Sup. 11421, 11422).
When a tenant has in good faith requested the landlord to make repairs, the repairs must be "necessary to maintain the leased premises in a fit and habitable state." Visco v. Cody, supra, 16 Conn.App. 454; See § 47a-20(3).
When a landlord offers evidence to rebut a presumption of retaliatory action, the landlord must establish a legitimate interest in the eviction. The trial courts have differed as to whether the presumption may only be rebutted by one or more of the reasons set out in § 47a-20a. The court in Murphy v. Baez, 40 Conn.Sup 470, 474, 515 A.2d 383 (1986), held that "the language of § 47a-20a clearly delineates the only grounds for such rebuttal." However, the court in Correa, held that § 47a-20 "does not tie the hands of a landlord who may have other valid reasons to evict a tenant in an eviction based on lapse of time," including the tenant's mistreatment of the landlord. Correa v. Ward, supra, 2004 Ct.Sup. 11424.
General Statute § 47a-20a 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."
The third special defense alleges retaliatory action as an affirmative defense. The language of § 47a-33 provides in relevant part: "it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, . . . any condition constituting a violation . . ." (Emphasis added.) General Statutes "§ 47a-33 specifically establishes the retaliatory action as `an affirmative defense.' No presumptions are permitted and the tenant, by affirmative proof, is required to prove that the landlord's primary motive in seeking an eviction was in retaliation for the tenant's exercise of his statutory right to report housing code violations to the appropriate authorities. The burden of persuasion for this affirmative defense, therefore, rests upon the tenant who asserts it. Practice Book, 1978, § 164." (Emphasis added.) Alteri v. Layton, supra, 35 Conn.Sup. 264-65.
In Murphy, the court found that the summary process action was barred by § 47a-20, when the landlord sought to evict the tenant less than two weeks after the tenant contacted the police to complain of a lockout. Murphy v. Baez, supra, 40 Conn.Sup. 470.
In Moise v. Korab, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 0287250 (Tanzer, J.; May 21, 2004) ( 2004 Ct.Sup 8549, 8551), the court found that the tenant failed to establish a prima facie case for retaliatory eviction when the tenant denied the exterminator access to the porch, and the tenant was responsible for the cluttered state of the porch. In addition, there was credible evidence that the landlord did not bring the summary process action "solely" because of the tenant's complaints.
In Cornish, the court found that the tenant failed to establish the special defenses under § 47a-20 and § 47a-33. There, the tenant made complaints to the landlord about sewage backup and water damage to the apartment, and the landlord made certain efforts to repair the problem. The unit failed an annual HUD inspection, but there was no evidence that the inspection occurred because the tenant complained or contacted any authorities. The tenant testified that she did not think the landlord was acting out of retaliation, but the tenant was simply looking for additional time to attempt to find new housing. Cornish v. Gardiner, supra, 2000 Ct.Sup. 4108-110. The court held that: "the defendant has failed to establish that the summary process action was brought due to retaliation. Here, the lease the defendant had with the landlord simply came to an end and the landlord elected not to renew." Id. at 4109-110.
In Underwood Towers Limited Partnership v. Wright, Superior Court, judicial district of Hartford, Docket No. HDSP 104757 (Satter, JTR; October 6, 1999) ( 1999 Ct.Sup. 13291) ( 26 Conn. L. Rptr. 362), the court also found that the tenant failed to establish the special defenses of retaliatory eviction in reliance on § 47a-20 and § 47a-33. There was no proof that the landlord was aware of the inspection before the notice to quit was served. But even if the landlord was aware of the inspection, the violations did not render the premises unfit and uninhabitable and the landlord promptly responded to the problems. The court held that the "defendant has failed to produce evidence of requests for repair or notice of housing code violations that trigger the presumption of retaliatory eviction under § 47a-20." Underwood Towers Limited Partnership v. Wright, supra, 1999 Ct.Sup. 13295. The court also found that the tenant had failed to meet his burden of proof under § 47a-33, in part, given that "there was no evidence plaintiff brought this action `solely' because of defendant's complaints." Id.
Under Section 47a-20, the Tenant must establish a prima facie case to give rise to a presumption of retaliatory action by the Landlord. The Tenant presented evidence that the premises were in need of repairs. But the evidence does not support a finding that the premises were unfit and uninhabitable. The Tenant failed to present sufficient evidence that the violations in this case, "rendered the leased premises in an unfit and uninhabitable condition and in such a state as to trigger the presumption of retaliatory eviction under § 47a-20." See Moise v. Korab, supra, 2004 Ct.Sup. 8551. The Court finds that the Tenant has failed to establish a prima facie case under any one or more of the four prescribed acts under § 47a-20.
Assuming for the sake of argument that the actions by the Tenant created a presumption of retaliatory action, the Court finds that the Landlord rebutted that presumption with substantial countervailing evidence. The Landlord has established a legitimate interest in the eviction by proof of the following: the Tenant has not complied with the lease and rules regarding changing the lock and failing to provide the Landlord with a key; the Tenant has not provided the Landlord and contractors with reasonable access to the premises to make repairs; and the landlord-tenant relationship has irreparably broken down.
Under § 47a-33, the Tenant is required to establish by affirmative proof that the eviction was retaliatory. The Court finds that there was credible evidence the Landlord did not bring the eviction action "solely" because of the Tenant's complaint. The Court credits the Landlord's testimony that the following factors contributed to the eviction action being brought: the Tenant's failure to comply with the lease and rules regarding changing the lock and failure to provide a key; the Tenant's failure to give the Landlord and contractors reasonable access to the premises to make repairs; and the irreparable breakdown of the landlord-tenant relationship.
Conclusion and Orders
As to the tenant complaint action, the court finds that the Tenant has failed to prove, by a fair preponderance of the evidence, all the elements of the case. Therefore, the case is dismissed. All funds deposited in Court are ordered disbursed to the Landlord.
As to the summary process action, the court finds that the Landlord has proved, by a fair preponderance of the evidence, all the elements of the case based on lapse of time. The Court finds that the Tenant has failed to prove, by a fair preponderance of the evidence, any defenses to the eviction action. Therefore, the court enters Judgment for Landlord for Immediate Possession. Having considered the law and equity, the Court stays the execution through July 31, 2006. The Tenant is not obligated to pay use and occupancy during the stay period for the months of June 2006 and July 2006.