Opinion
No. 134356
January 9, 2006 CT Page 1
MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
The plaintiff in this action, McKee Realty, LLP, hereinafter ("Landlord"), seeks a judgment of immediate possession based on nonpayment of rent. In the Third Amended Answer dated October 21, 2005, the defendant, Futons Plus III, LLC, hereinafter ("Tenant"), raises several defenses: (1) Setoff; (2) Breach of the Covenant of Quiet Enjoyment; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (4) Unclean Hands. The case was tried to the court on October 21, 2005, and November 4, 2005.
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).
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.
In September 2003, the Tenant was exploring the possibility of consolidating its operations (office and warehouse) and increasing its warehouse space. The Tenant needed approximately 1,000 square feet of office space and 11,000 square feet of warehouse space. Working with a real estate broker, the Tenant was shown the premises at 125 McKee Street, East Hartford, Connecticut. The premises had not been rented on a full-time basis during the prior two years. The Tenant liked the building and the location, but there was more space available than was needed.
After viewing the premises, the Tenant entered into negotiations for a lease agreement with the Landlord. Based on the discussions with the Landlord, the Tenant believed that there was not an immediate demand for the additional space by either the neighboring tenant or a prospective tenant. In fact, the Landlord expressed not wanting to go to the expense of putting up a wall before there was a demand for the additional space. The parties offered conflicting testimony about whether the Tenant could temporarily use the additional space until such time as the neighboring tenant or a new tenant would want the space. The Tenant believed that there was an agreement to mutually decide how the additional space would be subdivided in the future. The lease agreement provided that the Tenant had the first right of refusal on the space that was not currently occupied, and that the Landlord reserved the right to divide the unused space accordingly to accommodate future tenants. The Tenant was concerned about how the warehouse space would be subdivided and tried to resolve this issue by having a diagram, Exhibit A, added to the lease agreement. To further complicate matters, before the lease was signed, the Landlord measured the premises and realized that the building was larger than thought.
The lease agreement, drafted by the Landlord, was signed by the parties on or about October 16, 2003. At trial, the parties offered into evidence their respective copies of the written lease agreement. These copies differ in a number of material respects. Plaintiff's Exhibit 2, hereinafter ("Landlord's Lease"), indicates that the leased premises consists of approximately 8,999 square feet of warehouse space and 3,001 square feet of office space. The Landlord's Lease gave Tenant first right of refusal on 4,625 square feet of unoccupied space. However, Defendant's Exhibit A, hereinafter ("Tenant's Lease"), indicates that the leased premises consists of more warehouse space, 10,624 square feet, and less office space, 1,376 square feet. The Tenant's Lease gave Tenant first right of refusal on less unoccupied space, 3,000 square feet.
The lease agreement became effective on November 1, 2003, and was for a term of five years with a one (5-year) option to renew. The initial rent payment was $3,500. The rent was to increase starting in the third year of the lease. Pursuant to Paragraph 19 of the lease, the Landlord was required to "deliver all mechanics pertaining to leased premises in working order including but not limited to lighting and HVAC systems." After the mechanics were delivered in working order, the Tenant was "responsible for providing and paying for maintenance and repairs to the leased premises, including but not limited to, . . . HVAC systems."
In order to get the premises ready, the Landlord retained Highpoint Heating and Cooling, hereinafter ("Highpoint"), to work on the HVAC systems. The furnace was old and the Landlord had been informed that it should start thinking about replacing the furnace. Highpoint worked on the heating system several times after November 1, 2003. The furnace was "red tagged" and needed to undergo significant repairs before being used. Highpoint spent about forty hours getting the heating systems ready for operation.
The Tenant began moving into the space after the lease agreement was signed, while work was still being done on the furnace. The Tenant spent the first several weeks installing shelving, bringing merchandise in, and setting up the office.
On or about November 28, 2003, the Friday after Thanksgiving, the Tenant discovered an oil spill in the building. An oil furnace in the mezzanine malfunctioned and leaked oil down into the office below, saturating the walls, soaking the carpet, and spilling into the surrounding area. The Tenant immediately contacted the Landlord who made arrangements for Highpoint to cleanup the oil spill. A problem with the OSV (oil safety) valve may have contributed to the oil leak.
The parties offered conflicting testimony about the extent of the oil spill. The Highpoint representative testified that the oil spill covered an area of approximately 480 square feet. The Landlord testified that oil soaked into the some of the walls and carpet of the office and flowed a little bit out into the warehouse. The Tenant testified that the oil had sprayed throughout the office area onto the ceiling, walls and floor, and into the warehouse space where the merchandise was stored. The oil spill caused a terrible smell. According to the Tenant, the oil odor was so overpowering that you could not stay in the building more than a few minutes without going outside to get fresh air.
The cleanup of the oil spill took about a week or so. Highpoint made efforts to alleviate the oil smell, but the odor lingered for several weeks. The Tenant was unable to use the office space for several weeks and was prevented from starting up any retail operations on the premises as planned.
The oil spill caused significant damage to the Tenant's business. The Tenant was unable to use the office space for several weeks after the oil spill. The Tenant had also planned to conduct some retail operations on the premises but was unable to do so right away. The Tenant's inventory of merchandise was substantially damaged by the oil spill. The inventory consisted mostly of futon mattresses with cotton wrap on the outside. The mattresses, constructed mostly of textiles, were porous in nature and absorbed the oil spill. The inventory directly touched by the oil was damaged as well as the merchandise that was permeated with the oil smell. Although the mattresses were covered by a protective plastic wrap, the covering had pinholes to allow for drying and did not afford much, if any, protection from the oil. Other damage was caused when the oil came into contact with wood tables and other furniture, which were stained by the oil. The Tenant's entire chain of stores fed off the merchandise in that building, and, for the first couple of weeks after the oil spill, the Tenant was unable to fulfill orders while trying to replenish the inventory. The Tenant estimated the value of the lost merchandise including freight at $45,000. The Tenant estimated the lost retail business (3 weeks x $3,500) at $10,500. The total losses were estimated at approximately $59,611. As a result of the spill, the Tenant, a small business, had to go out and borrow money to pay expenses.
After the oil spill, the furnace needed to be rebuilt including a new pump. During the repair the strainer was removed, and rust was found inside the pump. At trial, the Landlord conceded that the Tenant had nothing to do with causing the oil spill. Pursuant to the lease, the Landlord was responsible for delivering the HVAC systems in working order, but once it was up and running and in working condition, it was the Tenant's responsibility to maintain the system. However, since November 1, 2003, the Tenant has not paid for any maintenance work on the HVAC system.
The Landlord accepted responsibility for the oil spill, and the Landlord's insurance paid for the cleanup. Initially, the Landlord assured the Tenant that the Landlord's insurance would cover the damage. At some point, the Tenant made a claim on the Tenant's and the Landlord's insurance policy. However, both insurance companies refused to cover the damages to the merchandise caused by the oil spill. On or about April 5, 2004, the Tenant filed an action in damages against the Landlord relating to the damages from the oil spill, which is still pending.
At some point after the oil spill, the Landlord notified the Tenant that there had to be a lease on any additional space or the Tenant needed to vacate the additional space. In February 2004, the Landlord offered the Tenant in writing the first right of refusal on 4,625 square feet of space at the Tenant's current rental rate. The parties were not able to resolve the issue. Nothing really happened for several months. In April — May 2004, the Landlord started charging the Tenant for additional space.
In August 2004, the Landlord informed the Tenant that they needed to vacate the space designated as "A" in Exhibit A of the lease agreement. In September 2004, the Landlord had the property measured and had chalk lines drawn on the floor to indicate the space configuration. At some point, the Tenant decided that it did not need, or want, the additional space. The Tenant offered to clear "C", but the Landlord did not want "C". The Tenant felt that it needed to get on with its business and finally agreed to clear "A" which already contained a lot of shelving and inventory. The Tenant cleared the space and moved it outside the chalked area and notified the Landlord that the area was ready to construct a wall. The Landlord subsequently informed the Tenant that the space was not measured correctly, and the Tenant needed to vacate a larger space. But that would have left the Tenant with less usable warehouse space than what the Tenant had before moving into the premises. The space issue has not been fully resolved by the parties.
Pursuant to the lease agreement, the initial rent payment was $3,500. After the oil spill, the Landlord did not charge the Tenant rent for November 2003. The Tenant paid the rent for December 2003 and continued to pay rent until December 2004. The Tenant testified that it continued to pay rent because the Tenant trusted that the insurance company would cover the damages. The Tenant first withheld rent in December 2004, because the Tenant was completely frustrated over the Landlord not dealing with the oil issue. The Tenant wanted the Landlord to pay attention to the Tenant's damages and the impact of the oil spill on its business. The Tenant failed to pay the rent for December 2004, January 2005 and February 2005. On or about February 28, 2005, after discussions between the parties, the Tenant paid $10,500 to cover the past due rent. The Tenant finally stopped paying rent in March 2005. The Tenant did not pay rent for the month of August 2005, as alleged in the complaint. The Tenant decided not to pay the rent because of the dispute over the damages caused by the oil spill. After the oil spill, there were some minor issues with the building, but these issues did not significantly impact on the Tenant's ability to use the premises.
The court will provide additional facts, as needed, that are found by a fair preponderance of the evidence.
Landlord's Case
In a commercial 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 still continues in possession of the premises. Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant.
The Landlord is the owner of the property at 125 McKee Street, East Hartford, Connecticut. On or about October 16, 2003, the parties entered into a written lease agreement that called for monthly rent in the amount of $3,500. The lease became effective on November 1, 2003. The Tenant failed to pay the rent for August 2005. The notice to quit served on the Tenant on or about August 16, 2005, meets all the statutory requirements including C.G.S. Sec. 47a-23(a)(3), and was timely and properly served. Although the time designated in the notice to quit has passed, the Tenant still continues in possession of the premises.
Based on the evidence presented, the court finds that the Landlord has sustained its burden of proving by a fair preponderance of the evidence a termination of the lease for nonpayment of rent.
Tenant's Defenses
At trial, the Tenant offered evidence in support of the following defenses: (1) Setoff; (2) Breach of the Covenant of Quiet Enjoyment; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (4) Unclean Hands.
Setoff
The Tenant contends that it has offsets against the rent claimed which exceeds the amount alleged to be in default because of the Landlord's failure to deliver the mechanicals in good working order and the resulting oil leak.
"As to setoff, . . . [i]t is available only when the plaintiff sues for recovery of a debt." Stephenson, Connecticut Civil Procedure, Volume 1, p. 258 (3rd Ed. 1997). "The law of setoff is governed by General Statutes 52-139. The relevant portion of that statute provides: (a) In any action brought for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be set off against the other." (Internal quotation marks omitted.) Petti v. Balance Rock Associates, 12 Conn. App. 353, 362, 530 A.2d 1083 (1987).
"Under the Landlord and Tenant Act, Chapter 832 of the General Statutes Sections 47a-23 through 47a-42a, a landlord may seek possession of property leased to a tenant for nonpayment of rent. Such remedy is statutory. A tenant may present any affirmative defenses that may be available . . . However, the nature of a summary process proceeding under the Act is one for possession and any responsive pleading must be related to the issue of possession or occupancy. A counterclaim that seeks relief in the form of compensatory and punitive damages is not permitted in a summary process action because prayers for monetary relief do not implicate the right to possession. Fellows v. Martin, 223 Conn. 152, 154, 611 A.2d 412 (1992). Goodhall's, Inc. v. Dave Caron Chrysler, Superior Court, judicial district of Tolland at Rockville, Docket No. CV00-0072639 (Sullivan, J.; June 1, 2000). ( 27 Conn. L. Rptr. 290) . . . Complaints and counterclaims seeking money damages are not permitted in summary process lawsuits, either tenant against landlord or landlord against tenant. Atlantic Refining Co. v. O'Keefe, 131 Conn. 528, 531, 41 A.2d 109, (1945); Curnan v. Newton, Superior Court, judicial district of Litchfield, Docket No. 185916 (Pickett, J.; August 15, 1997). ( 20 Conn. L. Rptr. 317) . . . The defendant has adequate remedies at law and in equity to pursue those claims set forth by it in its request for a setoff and in its counterclaims. If it wishes, it can simply file an action for damages in Superior Court to pursue such claims and therefore will not be prejudiced by not being able to proceed with its setoff and counterclaims in this action." (Internal quotation marks omitted.). Perrone Realty v. JP Enter., Superior Court, judicial district of Litchfield, Docket No. LLICV18-10093 (Shaban, J.; July 22, 2005).
This is a summary process action based on nonpayment of rent, not an action in damages. Before the eviction action was commenced, the Tenant filed an action to pursue the claim for damages relating to the oil spill. A setoff is not available here where the only issue is the right to possession. The court finds that the Tenant has failed to prove setoff by a fair preponderance of the evidence.
Breach of the Covenant of Quiet Enjoyment
The Tenant maintains that the Landlord's failure to deliver the mechanicals in good working order and the resulting oil leak interfered with Tenant's right to quiet enjoyment of the premises. Paragraph 15 of the lease agreement states: "Quiet Enjoyment. The Landlord hereby covenants that they have full authority to execute this Lease and that the Tenant, upon paying said rent and performing the covenants of this Lease, shall and may quietly have, hold and enjoy the leased premises during the term thereof."
"[A] breach of the landlord's implied covenant of quiet enjoyment by an eviction, actual or constructive, does provide a defense to an action for nonpayment of rent . . . A substantial interference with the tenant's beneficial enjoyment of the premises resulting from a failure to furnish essential services would be sufficient to constitute a constructive eviction if the tenant had actually vacated the premises for that reason . . . It is clear, however, that the defendant could not prevail upon such a ground so long as he continued to remain in possession of the premises." (Citations omitted.) S.H.V.C., Inc. v. Roy, 37 Conn. Sup. 579, 585-86, 428 A.2d 806 (1981).
"The classic statement [of the Connecticut law of constructive eviction] is that found in Amsterdam Realty Co. v. Johnson, 115 Conn. 243, 248, 161 A. 339 (1932), where this court held that [a] constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant's promise to pay rent." (Internal quotation marks omitted.). Conference Center LTD v. TRC, 189 Conn. 212, 220, 455 A.2d 857 (1983). "In addition to proving the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord; (2) the tenant vacated the premises because of the problem and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem." (Citations omitted; internal quotation marks omitted.) Heritage Square, LLC v. Eoanou, supra, 61 Conn. App. 332.
Although the oil spill caused significant damages to the Tenant's merchandise and impacted the Tenant's business operations, the premises were not rendered untenantable. The Tenant continued to operate its business on the premises with only some interruption. Furthermore, the Tenant has never vacated the premises and has continued to occupy the premises. The Tenant has not continued to pay rent. Accordingly, the court finds that the Tenant has failed to prove this special defense by a fair preponderance of the evidence. Breach of the Implied Covenant of Good Faith and Fair Dealing
The Tenant asserts that the Landlord's conduct regarding the space issue breached the implied covenant of good faith and fair dealing.
"[T]he law is now well established that a commercial lease imposes a duty of good faith and fair dealing on the landlord and tenant . . . Good faith performance or enforcement of a [lease] contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party. . . . Good faith negotiations may be described as including honest and sincere efforts to engage in discussions and pursue reasonable possibilities to resolve the matters in dispute, with the parties taking into consideration their own respective needs, requirements and legal obligations. By definition, good faith and fair dealing exclude fraud and deceit and, depending on the circumstances, may also exclude the recapturing of opportunities that have been legally forgone." (Citations omitted; internal quotation marks omitted.) Elliott v. Staron, 46 Conn. Sup. 38, 47-48, 735 A.2d 902 (1997). "[G]ood faith and fair dealing mean an attitude or state of mind denoting honesty of purpose, freedom from intention to defraud and generally speaking means faithful to one's duty or obligation . . . an honest intention not to take an unconscientious [sic] advantage of another. . . . [b]ad faith is defined as the opposite of good faith, generally implying a design to mislead or to deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by, an honest mistake as to one's rights or duties . . . bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . it contemplates a state of mind affirmatively operating with furtive design or ill will." (Internal quotation marks omitted.) Buckman v. People Express, Inc., 205, Conn. 166, 171, 530 A.2d 596 (1998).
The space issue was a point of contention between the parties from the beginning. The Tenant was concerned enough about the issue that she had a diagram, Exhibit A, made part of the lease agreement. The oil spill and its aftermath further complicated the situation. Any discussions between the parties regarding the space issue had to take into account the applicable lease provisions: the Tenant had a first right of refusal on the space that was not currently occupied, and the Landlord reserved the right to divide the unused space accordingly to accommodate future tenants. Unfortunately, the Landlord did not have accurate measurements of the space. Ultimately, the Tenant decided not to assert the right of first refusal, and the Landlord acted to divide the unused space. Although the Landlord may have been negligent in not having more accurate measurements of the building, the Tenant has failed to prove by a fair preponderance of the evidence that the Landlord acted in bad faith.
The court finds, therefore, the tenant has failed to prove the claims set forth in this special defense by a fair preponderance of the evidence.
Unclean Hands
The Tenant argues that the Landlord lacks clean hands because of its conduct regarding the space issue and, therefore, the Landlord should be prevented from evicting the Tenant.
"Equitable defenses and counterclaims implicating the right to possession are available in summary process actions . . . Fellows v. Martin, 217 Conn. 57, 64-67, 584 A.2d 458 (1991) . . . Equitable principles barring forfeitures may apply to summary process actions for nonpayment of rent if: (1) the tenant's breach was not willful or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord's injury is reparable." Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 771-778, 627 A.2d 386 (1993); East Hartford Housing Authority v. Parker, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. SPH 9111-63027 (Holzberg, J.; August 7, 1992) ( 1992 Ct. Sup. 8735).
In East Hartford Housing Authority v. Parker, the court set forth an analytic framework to evaluate equitable claims consisting of four elements: 1) In the absence of equitable relief, the defendant will suffer a loss wholly disproportionate to the landlord; 2) The injury to the plaintiff is reparable; 3) The reason for the nonpayment and the defendant's responsibility; 4) The extent to which the tenant has demonstrated good faith in its dealing with the plaintiff. East Hartford Housing Authority v. Parker, supra, 1992 Ct. Sup. 8739-40. "The first factor, as stated in Fellows, is whether the loss to be suffered by the tenant, if evicted, is disproportionate to the loss to the landlord if the tenant is not evicted. This requires, therefore, that the hardship to each party be identified and that one be balanced against the other. Only if the balance of hardships tips decidedly in favor of the tenant should equitable relief be considered. The second factor is whether the injury to the other party is reparable. The Fellows court noted that this involves consideration of whether the landlord's injury can be remedied by money instead of forfeiture of the tenancy. The third factor, not always analytically distinct from the others, is the reason for the nonpayment and the extent to which the tenant is "culpable." Often expressed as the "clean hands doctrine", this factor evaluates whether the tenant's breach was willful or grossly negligent, on the one hand, or the product of mere neglect, on the other . . . Finally, the fourth factor identified by the courts is the extent to which the tenant has demonstrated good faith in curing the default. [T]he conduct of the plaintiff after he was informed of the non-payment is conclusive of the good faith of the plaintiff . . . and his desire to avoid a forfeiture." (Citations omitted; internal quotation marks omitted.) East Hartford Housing Authority v. Parker, supra, 1992 Ct. Sup. 8739-40.
In evaluating a claim of unclean hands, the court must consider "the equitable maxim that one who seeks to show that he is entitled to the benefit of equity must demonstrate that he comes to court with clean hands." (Citation omitted; internal quotation marks omitted.) Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980). "[T]he clean hands doctrine . . . is a legal euphemism which expresses the principle that where a party comes into equity for relief he must show his conduct has been fair, equitable and honest as to the particular controversy in issue." (Citation omitted.) Collens v. New Canaan Water Co., 155 Conn. 477, 491-492, 234 A.2d 825 (1967). "The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked." (Citation omitted.) Polverari v. Peatt, 29 Conn. App. 191, 202, 614 A.2d 484 (1992). "Application of the doctrine of unclean hands rests within the sound discretion of the trial court . . . The doctrine generally should not be employed to insulate the party who asserts it from the consequences of his own wrongdoing." (Citations omitted; internal quotation marks omitted.) A B Auto Salvage, Inc. v. Zoning Bd of Appeals, 189 Conn. 573, 578, 456 A.2d 1187 (1983). The party who seeks to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation. DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 (1977).
Clearly, the Landlord-Tenant relationship was adversely impacted by the unresolved issues regarding the use of space. Based on its discussions with the Landlord, the Tenant honestly believed that there was not a current demand for the additional space, and there was some flexibility in terms of its use of the space. Furthermore, the Tenant's understanding was that the parties would mutually agree to the division of space. The lease agreement provided that the Tenant had the first right of refusal on the space that was not currently occupied, and the Landlord reserved the right to divide the unused space accordingly to accommodate future tenants. To further complicate matters, the Landlord did not have accurate measurements of the space. Unfortunately, the oil spill interceded and made it difficult for the parties to mutually agree to a resolution of the space issues. However, even though there was a dispute regarding the use of space, the Tenant continued to operate its business on the premises.
The oil spill issue needs to be factored into any determination of the equities in this matter. Both parties originally believed that some, if not all, of the Tenant's damages from the oil spill would be covered by insurance. After the parties' insurance companies denied coverage, the parties were unable to resolve the issues in dispute. The Tenant exercised its legal right to file an action in damages relating to the oil spill, which is still pending. When the Tenant failed to pay rent in frustration over the situation, the Landlord exercised its legal right to commence summary process proceedings based on the Tenant's failure to pay rent. "[A] party to a contract is entitled to take reasonable positions to protect its interests and to resist efforts that would compromise its legal rights." Elliott v. Staron, supra, 46 Conn. Sup. 48. The plaintiff "seized the opportunity that the tenant's non-compliance provided, an opportunity that, under the lease contract and under Connecticut law, he was entitled to make use of, in seeking to formally sever a commercial relationship that he no longer desired to be a part of." Gallogly v. Kurrus, 2005 Ct. Sup. 8500, 8515, Superior Court, judicial district of Litchfield, Docket No. CV18-9808 (Trombley, J.; May 16, 2005).
Based on the evidence presented, the court finds the equitable considerations do not decidedly favor the Tenant. The Tenant has not paid rent since March 2005, in frustration over the lack of progress in resolving the oil spill issue. There is a substantial arrearage. Here, both parties exercised their legal rights to file actions to protect their respective interests. Under the circumstances, the Landlord's filing of the eviction action was a reasonable position to protect its interests. The Tenant has not expressed a willingness to pay the full arrearage. The court finds that the Tenant's breach is willful, the delay is not slight, and the loss to the Landlord is not small. Under the circumstances of this case, invocation of the "clean hands" doctrine is not appropriate to bar the Landlord's request for immediate possession. The Landlord should not be estopped from evicting the Tenant.
CONCLUSION
The court finds by a preponderance of the evidence that the Landlord has proved all the elements of the summary process action, and the Tenant has failed to prove any of the defenses. Judgment may enter for the plaintiff.
Dated at Hartford, Connecticut this 9th day of January, 2006.