Opinion
Docket No. HDSP-135016
February 8, 2006
MEMORANDUM OF DECISION
The plaintiff, Stephen Potz et al., hereinafter ("Landlord"), seeks a judgment of immediate possession based on nonpayment of rent and lapse of time. On December 12, 2005, the defendant, Ruth Brocuglio et al, hereinafter ("Tenant"), filed an amended answer. The case was tried to the court on December 13, 2005. Both parties were represented by counsel.
Facts
"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 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." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981);
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 following facts and procedural history are proved by a fair preponderance of the evidence.
The Landlord is the owner of the premises, a duplex, at 44 Graham Road, East Hartford, Connecticut. The Landlord lives on one side of the duplex; the Tenant lives on the other side. The Tenant moved in approximately eleven years ago. Initially, the parties had a written lease with a rental payment of $610, which later increased to $620. After the last written lease expired approximately seven years ago, the parties had a month-to-month oral lease agreement with a rental payment of $630 per month. The Landlord kept the rent at $630 as long as possible because the Tenant was doing yard and maintenance work.
On or about August 8, 2005, the Landlord mailed a new lease to the Tenant. The new lease was to take effect on September 1, 2005. The new lease called for a rent increase to $660. The lease contained several new or different terms and conditions. The Tenant ignored the proposed written lease.
On or about Labor Day, September 5, 2005, the Landlord gave the Tenant another copy of the lease. The Tenant did not sign the new lease. When the September 2005 rent came due, the Tenant refused to pay $660 and instead offered a check for $630. The Landlord told the Tenant that the payment of $630 was unacceptable. The Landlord did not cash the Tenant's check until approximately November 14, 2005.
On September 15, 2005, the Landlord served a Notice to Quit Possession alleging as grounds for eviction: nonpayment of rent for the month of September 2005, and lapse of time. In October 2005, the Tenant tendered a rent payment of $660, which the Landlord did not initially accept. The Landlord admitted that any late charges under the proposed written lease did not apply for September 2005 because the Tenant had not signed the lease.
The court will provide additional facts, as needed, that are found by a fair preponderance of the evidence.
Landlord's Case
In 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 Notice to Quit Possession 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 Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. General Statutes Sec. 47a-23(a)(1)(D).
In an eviction action based on lapse of time, 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 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; 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. General Statutes Sec. CT Page 1119 47a-23(a)(1)(A).
Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. Gulycz v. Stop Shop Cos., supra, 29 Conn. App. 523.
Tenant's Defense
The Tenant argues that the Landlord failed to prove all the elements alleged in the complaint. In August 2005, there was an oral month-to-month lease with a rent of $630. After the Landlord offered a new written lease, the Tenant never signed the Landlord's proposed lease. As a result, there was no meeting of the minds as to the rental payment for the month of September 2005, and the Tenant held over. However, the complaint alleges an oral lease with a rent payment of $660. Under General Statutes Sec. 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." Since the previous agreement, the oral lease, had expired, and the parties were unable to agree on a new lease, the status of the Tenant in September 2005 was that of a tenant at sufferance. Therefore, the causes of action pled by the Landlord, nonpayment of rent and lapse of time, are simply incorrect. In order to evict the Tenant, the Landlord would have to plead that the Tenant's right or privilege to occupy the premises has terminated pursuant to General Statutes Sec. 47a-23(a)(3). Since the Landlord did not properly plead or prove the case, the Tenant argues that the case should be dismissed.
Discussion
In this case, the Landlord offered the Tenant a new written lease effective September 1, 2005. The lease called for a rent payment of $660 per month. The Tenant ignored the proposed written lease and instead offered to pay $630 for September 2005.
"`Rent" means all periodic payments to be made to the landlord under the rental agreement. C.G.S. Sec. 47a-1(h). "Rental agreement" means all agreements, written or oral, and valid rules and regulations adopted under section 47a-9 or subsection (d) of section 21-70 embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises. C.G.S. Sec. 47a-1(i).
"There must be a meeting of the minds concerning the amount of money to be paid for the payment to be "rent." Where there has been no meeting of the minds there is no contract. When a landlord insists on one rate of rental and the tenant insists on another, there is no meeting of the minds. Welk v. Bidwell, 136 Conn. 603, 607, 609 (1950)." Commissioner of Transp. V. The Dock, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. SBPR 9508-30319 (Tierney, J.; November 20, 1995) ( 1995 Ct. Sup. 13336, 13338).
If the parties are unable to agree on the amount of the rent, there is no rental agreement. "Although the tenant remained in possession of the subject premises after that date, no new lease or rental agreement was thereafter agreed to by the parties, or created between them. A new lease is not implied from the mere fact that a tenant has stayed on after the lease term ends. Berling v. Sterling Ocean House Inc., 5 Conn. App. 302 (1986)." Faria v. Faria, Superior Court, judicial district of New London, Docket No. CV 99-15600 (Dyer, J.; January 10, 2000) ( 2000 Ct. Sup. 423, 426).
The Landlord has failed to establish that there was any rental agreement for the occupancy of the premises for September 2005. The court finds that the Tenant was occupying the premises as a tenant at sufferance beginning September 1, 2005. "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. O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372 (1990); Welk v. Bidwell, 136 Conn. 603, 608-09 (1950). The mere act of holding over does not create a new tenancy. General Statutes § 47a-3d; Webb v. Ambler, 125 Conn. 543, 551 (1939). Instead, the holdover tenant becomes a tenant at sufferance with no legal right to possession." FJK Associates v. Karkoski, 52 Conn. App. 66, 68 (1999)." (Internal quotation marks omitted.) Norling v. Anthony, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV99-0175669 S (Tierney, J.; January 2, 2001) ( 2001 Ct. Sup. 217, 223).
In the Notice to Quit, the Landlord stated as grounds for eviction: nonpayment of rent for the month of September 2005, and termination of the month-to-month tenancy by lapse of time. "A proper notice to quit is a condition precedent to a valid summary process action. Lampasona v. Jacobs, 209 Conn. 724, 729 (1989). The nonpayment of rent by a tenant gives the landlord the option to terminate a lease. Webb v. Ambler, 125 Conn. 543, 550-551 (1939). The landlord, in order to exercise his option to terminate the lease, must do so by an unequivocal act. Sandrew v. Pequot Drug Co., 4 Conn. App. 627, 631 (1985). A statutory notice to quit is a such an unequivocal act. O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 622 (1946); Vogel v. Bacus, 133 Conn 95, 98 (1946). Once terminated by the unequivocal act, the tenancy at will is converted to a tenancy at sufferance. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 130 (1975). A tenant at sufferance has no obligation to pay rent since there is no longer a lease contract. Welk v. Bidwell, 136 Conn. 603, 607 (1950). A tenant at sufferance is still obligated to pay use and occupancy. Longergan v. Connecticut Food Store, Inc., supra 130. There is no action in Connecticut for nonpayment of use and occupancy. Connecticut General Statutes § 47a-23; Rosa v. Cristina, 135 Conn 364, 367 (1949). Cohen v. Thorpe, SNBR-345, 3 CONN. L. RPTR. 692, 1991 Ct. Sup. 1210, 1211 (February 21, 1991) (Melville, J.)" Lombardi v. Dunning, Superior Court, judicial district of Stamford-Norwalk, Docket No. SPNO 950617515 (Tierney, J.; July 31, 1995) ( 1995 Ct. Sup. 8526, 8527). Nonpayment of rent is not a valid ground for evicting a tenant at sufferance. "There is no statutory right of eviction for nonpayment of use and occupancy." Commissioner of Transp. V. The Dock, supra, 1995 Ct. Sup. 13338.
"As a matter of law, lapse of time is [also] not a valid reason for the eviction of a tenant at sufferance. Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 686 (1983); Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 130 (1975)." (Internal quotation marks omitted.) Norling v. Anthony, supra, 2001 Ct. Sup. 223. "Under the prevailing doctrine, for lapse of time to be a valid reason for issuance of a notice to quit, there must [be] an underlying lease whether written or oral. Lapse of time is not a sufficient reason to terminate. A tenancy at sufferance. A tenancy at sufferance does not involve a contract or lease." Shough v. Hogan, No. SPNH 9702-4735, Superior Court, Judicial District of New Haven, (Levin, J.) March 21, 1997 (internal quotation marks and additional supporting citations omitted)." Faria v. Faria, supra, 2000 Ct. Sup. 425.
No oral lease existed on September 15, 2005, when the Notice to Quit for nonpayment of rent and lapse of time was served on the Tenant. The Tenant was a tenant at sufferance as of September 1, 2005. The court finds that the Notice to Quit was legally ineffective under the provisions of General Statutes Sec. 47a-23. "An ineffective notice to quit deprives the court of subject matter jurisdiction in summary process actions. City of Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 582, 548 A.2d 744 (1988)." Faria v. Faria, supra, 2000 Ct. Sup. 426. The Tenant's defense is meritorious.
Based on the evidence presented, the court finds that the Landlord failed to prove all the essential allegations of the complaint by a fair preponderance of the evidence. Accordingly, judgment may enter in favor of the Tenant.