Opinion
No. HDSP-148040
November 10, 2008
MEMORANDUM OF DECISION
This is a summary process action brought by the plaintiff landlord, Paul D. Patterson (the "Landlord"), for possession of the premises known as 113 A Matson Hill Road, Glastonbury, Connecticut, occupied by the defendant tenant, Charles F. Dykins (the "Tenant").
The complaint filed July 8, 2008 alleges that the parties entered into an oral month to month lease at a monthly rental of $1,000 and that the lease has terminated by lapse of time. The Tenant asserts as a special defense, that the summary process action brought by the Landlord results from the Tenant's complaints to the Landlord and to the Town of Glastonbury concerning the condition of the leased premises.
A trial was conducted on September 10, 2008. The Landlord was represented by counsel, the Tenant appeared pro se. Based on the testimony and full exhibits admitted into evidence, the court makes the following factual findings and arrives at the legal conclusions set forth herein.
BACKGROUND
The Landlord purchased the two-family residence in April of 2007. The Tenant has lived on the second floor of the premises for more than ten years. At the time that the Landlord purchased the property, the Tenant occupied the premises under a month-to-month lease. Thereafter, the Landlord and Tenant continued the rental agreement on an oral month to month basis.
THE LANDLORD'S CLAIM
As noted, the notice to quit and complaint allege an oral month to month lease which has terminated by lapse of time.
In a summary process action based on lapse of time, a landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed-upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The 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). Carr v. Boileau, Superior Court, judicial district of Tolland at Rockville, Docket No. TTD CV 05 002696 (May 4, 2006, Gleeson, J.).
Failure of a landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for a tenant. Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992).
THE TENANT'S SPECIAL DEFENSES
The Tenant has asserted two special defenses to the Landlord's complaint. The first special defense asserted by the Tenant is that "All rent has been paid to my landlord." However, this summary process action is not brought based on non-payment of rent and the Landlord is not claiming any failure to pay 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.
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 provides in relevant part: "(a) A landlord shall: (1) Comply with the requirements of chapter 3680 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."
The defense that all rent has been to the Landlord, has no bearing on the allegations in a summary process action based on lapse of time. Gofman v. Almeida, Superior Court, judicial district of Hartford at New Britain, Docket No. NBSP-046592 (Sep. 22, 2006, Bentivegna, J.) ( 2006 Ct. Sup. 16161). Thus, the Tenant may not avail himself of this special defense.
RETALIATORY EVICTION
The Tenant also asserts as a special defense that the Landlord's action is retaliatory in that it results from complaints made by the Tenant to the Landlord and the Town of Glastonbury concerning the condition of the premises.
Within the context of a summary process action in which the condition of the premises is at issue, a landlord's actions may be found to be retaliatory under General Statutes § 47a-20 or § 47a-33. "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 (April 10, 2000, Jongbloed, J.) ( 2000 Ct. Sup. 4106, 4108-4109).
GENERAL STATUTES § 47a-20
Pursuant to § 47a-20, the defense of retaliatory action may be triggered by a landlord's bringing a summary process action within six months of the following: (1) A tenant has in good faith attempted to remedy by any lawful means the condition 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 the present case, the Tenant claims that he, in good faith, requested the Landlord to make certain repairs to the premises as provided in subsection (3) of § 47a-20. The testimony at trial provided the court with some insight into the strained relationship of the parties. The Landlord submitted a letter dated December 12, 2007 from the Landlord's attorney outlining thirteen alleged disputes concerning the Tenant's use of the premises. (Plaintiff's Exhibit 1). With regard to the condition of the leased premises, the Landlord submitted a letter dated December 12, 2007 from the Chief Town Sanitarian for the Town of Glastonbury, John R. Deckert, reporting the sanitarian's receipt of a complaint from the Tenant concerning the premises. (Plaintiff's Exhibit 2). The sanitarian's letter reported finding three violations as a result of his December 12, 2007 inspection: 1) The outside light fixture at the top of the stairs leading to the deck from the Tenant's porch "does not work." 2) The tenant does not have access to the circuit breaker box located in the basement. 3) An unused opening in the chimney in the Tenant's apartment was not properly "capped." The Landlord submitted a follow-up letter from the sanitarian dated March 4, 2008 reporting that the premises were re-inspected, all three violations were "corrected" and the complaint file was closed "as of February 21, 2008." (Plaintiff's Exhibit 3).
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, 16 Conn. App. 444, 454, 547 A.2d 935 (1988). "Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." Rosow v. Gonzalez, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. H 79 0501528 (July 5, 1979, Spada, J.) The court finds that the Tenant has not sustained the burden of proof that the repairs requested by the Tenant were necessary to maintain the leased premises in a fit and habitable condition.
GENERAL STATUTES $ 47a-33
Under General Statute § 47a-33 a tenant may assert an affirmative defense of retaliatory eviction in an action for summary process that the landlord 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. General Statute § 47a-33 provides in relevant part: "[I]t 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.) "§ 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. . . . ." (Citation omitted.) (Emphasis added.) Alteri v. Layton, supra, 35 Conn. Sup. 264-265.
In the present case, the Landlord offered testimonial and documentary evidence that the terms of the Landlord's mortgage required the Landlord to occupy the property. Although there was evidence that the first floor apartment was vacant, the suitability and current condition of the first floor apartment was considered, by both parties, to be significantly inferior to the second floor apartment. On the basis of the facts of this case and the evidence submitted, the court concludes that the Tenant has not met the requirement that he show that the Landlord commenced the summary process action solely because the Tenant contacted the local housing code authorities.
CONCLUSION AND ORDER
Accordingly, the court finds that the Landlord has proven all the elements of his summary process action based on the ground of lapse of time by a preponderance of the evidence, and the Landlord is entitled to possession of the leased premises.
The defendant testified that he has resided in the property for more than ten years. The Tenant may apply for a stay of execution in accordance with section 47a-37.
SO ORDERED.