Opinion
No. CV09-17561
June 21, 2010
MEMORANDUM OF DECISION
This is a summary process action brought by the plaintiff for nonpayment of rent. The plaintiff landlord, Robert M. Muszynski, seeks to recover possession of 30 Bogel Road, East Haddam, Connecticut, presently occupied by the tenant defendants Phillip Inkel and Meredith Inkel. The plaintiff is the owner of subject premises, 30 Bogel Road. The plaintiff alleges that the defendants failed to pay rent for the month of January 2010. On February 1, 2010, the plaintiff served the defendants with a notice to quit possession on or before February 8, 2010. The present summary process action was commenced on February 19, 2010, when the plaintiff properly served process on the defendants. The plaintiff filed the complaint on February 23, 2010.
On March 2, 2010, the defendants filed their appearances, and on March 12, 2010, they filed an answer to the complaint. In their answer, the defendants deny that the plaintiff and the defendants entered into a written lease on November 21, 2007 for the term of one month for use and occupancy of the subject premises; deny that they agreed to pay the monthly rental of $1,300.00, payable on the 21st day of each month; deny that they took possession of the premises under the written one-month lease and still occupy the premises; and deny that they did not pay the rent due on January 21, 2010, as agreed to in the lease. The defendants admit that the plaintiff served them with a notice to quit possession to vacate the premises on or before February 8, 2010, as required by law and that the notice to quit was attached to the complaint. The defendants further agree that the time given in the notice to quit possession for the defendant to vacate the premises has passed, and that they have not vacated the premises.
The defendants have asserted the following special defenses and claim that they are excused from the payment of the rent:
1. All rent has been paid to the landlord.
3. That pursuant to General Statutes §§ 47a-4a and 47a-7(a) no rent is due because of the following housing and health code violations: (1) insufficient water supply; (2) mold throughout the house; (3) windows don't lock, no screens; (4) holes in the floor, rotten wood and missing tile; (5) electrical outlets do not all work; (6) since November 21, 2005 and continuing to the present, the plaintiff, Robert Muszynski, and the property manager, Jay Muszynski, have allowed, condoned, authorized and caused two dogs to viciously attack and threaten the defendants' livestock and friends resulting in injuries and losses; and (7) the plaintiff's own acts and omissions have reduced the value of the property in question.
General Statutes § 47a-4a provides: "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."
General Statutes § 47a-7(a) provides in relevant part: "A landlord shall: (1) Comply with . . . 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."
4. The defendant notified the landlord of the violations listed in number 3 above on November 24, 2005, and the landlord knows conditions exist.
Additionally, the defendants pleaded numerous legal counterclaims seeking monetary and punitive damages, which the court dismissed sua sponte because they do not implicate the right to possession. See Fellows v. Martin, 223 Conn. 152, 154, 611 A.2d 412 (1992) (counterclaim that seeks relief in the form of compensatory and punitive damages is not permitted in summary process action because prayers for monetary relief do not implicate right to possession); Carnese v. Middleton, 27 Conn.App. 530, 535, 608 A.2d 700 (1992) (claim for damages not properly raised in summary process action because summary process action designed solely to decide issue of possession).
A court trial was held on April 26, 2010, June 1, 2010 and June 4, 2010. The parties appeared and presented sworn testimony from a number of witnesses and presented a number of exhibits. The court has weighed all of the evidence and assessed the credibility of the witnesses. Based on the evidence and testimony presented, the court finds the following facts and reaches the conclusion as set forth herein.
The defendants have continually resided in the subject premises since November 21, 2005. The plaintiff and the defendants entered into a written lease dated November 18, 2006 for one year commencing on November 21, 2006 and ending on November 20, 2007, for total rent in the amount of $15,600.00, payable in monthly payments of $1,300.00. Pursuant to a clause in the lease, the lease was converted to a month-to-month lease at the expiration of the term of the original lease period. The lease also included the following terms: that the defendants were to pay the rent on the twenty-first of each month; that no more than six people could live in the house; that the defendants were to maintain the house, fixtures and appliances in a clean and safe condition and any repairs to the appliances will be paid for by the defendants; that any repairs under $50 will be paid by the defendant; and that no pets are allowed. In addition, term thirty-three of the lease provided: "The water supply is from a drilled well, which has a slow recovery, so use must be regulated. Filters are required to remove sediment sulphur odor — you [the defendants] must change the filters at your own expense as necessary. I [the plaintiff] shall have no obligation to provide a better water supply than exists at the present time." The plaintiff and the defendants signed the lease on November 18, 2006.
Several times throughout the tenancy, the defendants notified the plaintiff of various problems and conditions of the subject premises. The plaintiff responded to the defendants' complaints in a timely and effective manner and none of the conditions complained of rendered the subject premises uninhabitable. The defendants also periodically experienced problems with the water supply beginning in 2006.
The defendants failed to pay rent on January 21, 2010. As a result, on February 1, 2010, the plaintiff served the defendants with a notice to quit possession for nonpayment of rent on or before February 8, 2010. Although the time given in the notice to quit possession of the premises has passed, the defendants remain in possession of the subject premises. The plaintiffs properly served the defendants with process on February 19, 2010 and filed their complaint on February 23, 2010.
After being served with the notice to quit possession, the defendants notified the Chatham Health District (CHD) to complain of public health law violations on the subject premises. The CHD inspected the subject premises and ordered the plaintiff to provide screens for the windows, repair the kitchen and bathroom floors and provide switch plate covers and replace broken electrical outlets. The plaintiff had no notice of these conditions prior to March 15, 2010, when the defendants notified them, and these conditions did not render the subject premises uninhabitable during the month of January 2010.
DISCUSSION
General Statutes § 47a-23(a) provides in relevant part: "When the owner or lessor, or the owner's or lessor's legal representative . . . desires to obtain possession or occupancy of any land or building . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons . . . (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83 . . . such owner or lessor, or such owner's or lessor's legal representative . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy." "Summary process is a special statutory procedure designed to provide an expeditious remedy . . . [Summary process] is preceded by giving the statutorily required notice to quit possession to the tenant . . . Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a [leasehold] is converted to a tenancy at sufferance . . . 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." (Citations omitted; internal quotation marks omitted.) Bray v. Bray, 51 Conn.Sup. 133, 137-38, 978 A.2d 582 (2008).
In their pleadings and memoranda, the defendants have repeatedly argued that the Connecticut summary process statute is unconstitutional because it violates the due process clause of the fourteenth amendment to the United States constitution and unspecified articles of the constitution of Connecticut. Specifically, the defendants argue that the summary process statute unfairly deprives them of their property interest in the premises and does not provide them with adequate time to prepare and present a proper defense. As "the constitutional issues that the defendants attempted to raise are far beyond the scope of the statutory action that is before the [c]ourt," the court is not required to address this argument within the context of a summary process action. (Internal quotation marks omitted.) Ossen v. Wanat, 217 Conn. 313, 319, 585 A.2d 685, cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991). The court points out, however, that it is well within a state's constitutional powers to provide for rapid and peaceful settlement of landlord-tenant disputes; Lindsey v. Normet, 405 U.S. 56, 72-73, 92 S.Ct. 862 (1972); and the Superior Court has held that the Connecticut summary process statute does not offend due process. Housing Authority v. McKenzie, 36 Conn.Sup. 515, 522, 412 A.2d 1143 (1979).
Connecticut summary process proceedings require the court to achieve an adequate and fair balancing of the interests of both the landlord and the tenant. Visco v. Cody, 16 Conn.App. 444, 452-53, 547 A.2d 935 (1988). On the one hand, a tenant's leasehold interest, including a month-to-month tenancy, is a property interest in the premises deserving of constitutional protections. Housing Authority v. Lamothe, 225 Conn. 757, 768 n. 13, 627 A.2d 367 (1993). Accordingly, our summary process statute provides the tenant with adequate notice and affords the tenant a full judicial hearing, including the right to present evidence and argument and cross-examine witnesses. Housing Authority v. McKenzie, 36 Conn.Sup. 515, 522, 412 A.2d 1143 (1979). Additionally, because the swiftness of summary process can impose a hardship on tenants by resulting in their speedy eviction, the statutes relating to summary process are strictly construed and provide the tenant with defenses to eviction and remedies in the event that landlords fail to meet their responsibilities. Rimscha v. Hartford Formal, Inc., Superior Court, judicial district of Hartford, Housing Session, Docket No. SPH 81019271 (March 30, 1981, Satter, J.). On the other hand, a landlord's rights to evict a tenant for nonpayment of rent and to rent the premises to others for economic gain have been recognized as valuable property rights protected by the fourteenth amendment to the United States constitution. Dreamy Hollow Apartments Corp. v. Lewis, 4 Conn. Cir.Ct. 355, 360, 232 A.2d 346, cert. denied, 154 Conn. 751, 228 A.2d 559 (1967). Without a judicially supervised mechanism for the swift repossession of the property, the landlord would continue to accrue expenses, and the tenant in possession could deny the landlord the rights of income by refusing to pay rent and preventing the sale or rental of the property to someone else. Lindsey v. Normet, 405 U.S. 56, 72-73, 92 S.Ct. 862 (1972). Thus, our summary process statute provides the landlord with an expeditious remedy that enables the landlord to obtain possession of the leased premises without the suffering the delay, loss and expense to which they might be subjected by tenants wrongfully holding over their terms. Housing Authority v. DeRoche, 112 Conn.App. 355, 361, 962 A.2d 904 (2009). The court must decide two issues: (1) whether the landlord has proved his nonpayment of rent claim by an preponderance of the evidence; and (2) whether the defendants were entitled to withhold rent because the subject premises were unfit or uninhabitable.
I
The court first addresses the landlord's nonpayment of rent claim. General Statutes § 47a-15a provides in relevant part: "If rent is unpaid when due and the tenant fails to pay rent within nine days thereafter . . . the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive." Furthermore, "[i]n a summary process action based on nonpayment of rent, the landlord must prove all the elements of the case by a fair preponderance of the evidence. 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 [n]otice to [q]uit [p]ossession 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 [n]otice to [q]uit [p]ossession of the premises has passed, the tenant remains in possession." Granjales v. Morales, Superior Court, judicial district of New Britain, Docket No. NBSP045613 (May 1, 2006, Bentivegna, J.).
General Statutes § 47a-23(a) provides in relevant part: "When the owner or lessor . . . desires to obtain possession or occupancy of any land or building, any apartment in any building [or] any dwelling unit . . . and . . . when a rental agreement or lease of such property, whether in writing or by parol, terminates for . . . nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83 . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy."
General Statutes § 47a-23a(a) provides in relevant part: "If, at the expiration of the three days prescribed in section 47a-23, the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the Superior Court may issue a writ, summons and complaint which shall be in the form and nature of an ordinary writ, summons and complaint in a civil process, but which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises . . . Such complaint shall be returnable to the Superior Court. Such complaint may be made returnable six days, inclusive, after service upon the defendant and shall be returned to court at least three days before the return day. Such complaint may be served on any day of the week. Notwithstanding the provisions of section 52-185 no recognizance shall be required of a complainant appearing pro se."
The plaintiff has proved the elements of his case by preponderance of the evidence. The court finds that the parties entered into a written lease agreement for use and occupancy of the subject property by the defendants, and that the defendants were in possession of the premises pursuant to the terms of the lease. The lease specified that the rent was due on the twenty-first day of each month. The defendants agreed to pay $1,300.00 monthly and the defendant Meredith Inkel testified that she did not pay rent for the month of January 2010. Furthermore, it is undisputed that the plaintiff properly served the defendants with a notice to quit possession and that the defendants remained in possession after the time given in the notice to quit possession. The issue is whether the defendants proved their defenses by a preponderance of the evidence.
II
The court next addresses the defendants' special defenses alleging that they were entitled to withhold rent because the subject premises were unfit or uninhabitable. General Statutes § 47a-7 requires that a landlord shall "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition," and, pursuant to § 47a-4a, a tenant is excused from paying rent for the period of time that the premises are unfit or uninhabitable. In addition, § 47a-7(a)(6) requires a landlord to provide a supply of running water to the premises, although § 47a-7(c) allows a landlord of a single-family residence to have a tenant perform the landlord's duties, including supplying running water, if the transaction is entered into in good faith and not for the purposes of evading the obligations of the landlord. Cf. Sproviero v. J.M. Scott Associates, Inc., 108 Conn.App. 454, 469, 948 A.2d 379, cert. denied, 289 Conn. 906, 957 A.2d 873 (2008) (lease shifted maintenance of septic system from landlord to tenant).
Furthermore, "[t]he remedies available to a tenant in the event of the landlord's dereliction of these statutory duties are various: the tenant may withhold his rental payment, § 47a-4a; the tenant may initiate an action to compel the landlord to perform his legal duties, § 47a-14h; or the tenant may interpose the landlord's noncompliance as a defense in a summary process action, §§ 47a-20 and 47a-33." Klobocista v. Zappia, Superior Court, judicial district of Hartford, Docket No. HDSP-141135 (April 27, 2007, Bentivegna, J.). Furthermore, if a landlord is required to provide a supply of running water and fails to do so, the tenant may procure water and deduct the cost of it from the rent, obtain substitute housing or, if the landlord's failure is wilful, terminate the lease. General Statutes § 47a-13.
To successfully claim that he or she had the right to withhold the payment of rent, the tenant must show that the landlord's failure to comply with § 47a-7(a) materially affects his or her safety or has rendered the premises uninhabitable. Bray v. Bray, supra, 51 Conn.Sup. 140-41. Furthermore, the tenant has the burden of proving that no rent is due under § 47a-4a because of health and housing code violations, and the sanctions in §§ 47a-7 and 47a-4a are not triggered unless the evidence establishes that there is a substantial violation or series of violations that create a material risk or hazard to the tenants. Id., 141. See also Eklies v. Bear, Superior Court, judicial district of New Haven at Meriden, Docket No. SPM CV 04 0287606 (July 6, 2004, Frazzini, J.) (only serious and substantial violations of health and housing codes vitiate tenant's obligation to pay rent). In addition, "[w]hether 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;" Butt v. Lake, Superior Court, judicial district of New Haven, Housing Session, Docket No. NHSP 093280 (May 13, 2008, Crawford, J.); and "to establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable." Visco v. Cody, supra, 16 Conn.App. 450. Moreover, "the common law and the statutes of our state allow the landlord a reasonable time to cure should a problem with habitability occur." Bond v. Benischek, Superior Court, judicial district of Fairfield, Docket No. 1007854 (April 7, 2010, Moore, J.); see also Ziobro v. Vasquez, Superior Court, judicial district of New Britain, Housing Session, Docket No. SPH 821116824HD (January 3, 1983, Maloney, J.) (temporary conditions which are promptly remedied by landlord will not excuse payment of rent, even if the conditions create a risk to the health or safety of the tenant, because to hold otherwise would work an injustice to landlords who act promptly and responsibly).
For instance, in Rosow v. Gonzalez, Superior Court, judicial district of New Britain, Docket No. H 79 0501528 (July 5, 1979, Spada, J.), the court found that the tenant failed to establish that the apartment was uninhabitable despite many problems with the premises. 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 poorly lit. "[P]remises 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." Id. In another example, our Supreme Court concluded in Reid v. Mills, 118 Conn. 119, 123, 171 A. 29 (1934) that the diminution of the well water supply did not render the premises uninhabitable so as to justify the tenant's withholding of rent because the tenant knew that the well was the sole source of water for the premises, was assumed to know that prolonged periods of dry weather would result in water shortages and continued to occupy the premises despite the water shortages.
The court finds that the problems and conditions of the subject premises complained by way of the special defenses presented and pursuant to the testimony of the witnesses at the time of trial clearly do not rise to the level of a material risk or hazard to the defendant's health and safety. Further, the landlord presented credible testimony that neither he nor his wife had knowledge the alleged defects on the property prior to the date the notice to quit was served. See Guo v. Poole, Superior Court, judicial district of New London, Docket No. CV 210016522 (April 1, 2008, Young, J.) (withholding rent due to violations of health and building codes is not valid defense to summary process action based on nonpayment of rent if tenant did not raise this issue prior to notice to quit possession). Indeed, prior to that time, the plaintiff responded to other unrelated complaints made by the defendants in a timely and effective manner. Furthermore, the court notes that with regard to the special defense regarding an insufficient water supply, the lease expressly shifted the duty to supply water to the tenant, which is permissible pursuant to § 47a-7(c). In addition, the lease clearly states that use of the water on the subject premises must be regulated due to the slow recovery of the well and further states that the landlord has no obligation to provide a better water supply then existed at the present time. Morever, the defendants remained in possession of the subject premises despite experiencing problems with the water supply since, according to them, 2006, which supports the court's finding that this problem did not render the premises unfit or uninhabitable. See Macciaroli v. Giannantoni, Superior Court, judicial district of Litchfield, Geographic Area 18 at Bantam, Docket No. CV 186775 (February 7, 2000, Gill, J.) (remaining in possession of the premises after problems arise discredits tenant's claim that the premises are unfit and uninhabitable).
The complaints filed with the CHD after the notice to quit was served confirmed violations in the subject premises, and a notice of violation was sent to the plaintiff. Specifically, the plaintiff was ordered to provide window screen in upstairs bathroom for proper ventilation, noted that the kitchen floor was in severe disrepair, many missing tiles and part of sub-flooring missing/worn, no screens on windows in home for ventilation, provide switch plate covers and replace broken electrical outlets and upstairs bathroom floor in severe disrepair, many missing tiles and part of sub-flooring missing/worn. In any event, the special defenses as raised by the defendants and pursuant to testimony and exhibits presented at the time of trial did not render the premises uninhabitable during the month of January 2010. Again, the conditions complained of do not rise to the level of rendering the premises unfit or uninhabitable and does not excuse the non-payment of rent for the month of January 2010.
The defendants, therefore, have not sustained their burden of proof on their special defenses. Based on the facts and circumstances of this case, the defendants failed to prove, by a preponderance of the evidence, that the subject premises had been rendered uninhabitable to the extent that they are relieved from paying rent. Therefore, judgment for immediate possession of the premises is ordered in favor of the plaintiff for non-payment of rent.