Opinion
No. 7412
November 3, 2006
MEMORANDUM OF DECISION ENTRY AND DETAINER ACTION UNPAID RENT CLAIM
I STATEMENT OF THE CASE
This is an entry and detainer action. The plaintiff, hereinafter ("Tenant"), alleges that she was illegally locked out of her apartment by the defendant, hereinafter ("Landlord"). The Tenant seeks money damages from the Landlord. The Landlord asserts as special defenses: (1) common-law abandonment; and (2) statutory abandonment pursuant to General Statutes § 47a-11b. By way of counterclaim or setoff, the Landlord alleges that the Tenant failed to pay rent. The case was tried on April 19, 2006, and May 17, 2006. The trial transcript was completed on September 15, 2006.
The Tenant has not asked to be restored to possession of the premises pursuant to Sec. 47a-45a.
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
II FINDINGS OF FACT
The Court finds the following facts are proved by a fair preponderance of the evidence.
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, CT Page 20388 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"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).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
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 premises in question are located at 188 Magnolia Street, Unit #15, Hartford, Connecticut. The Tenant moved into the dwelling unit sometime in 2003. She was joined by her children and her husband, Lawrence Robinson, hereinafter ("Robinson"). While they were living there, the unit became the subject of a foreclosure action. Eventually, the Landlord was awarded the unit by foreclosure.
In September 2004, Robinson moved out of the apartment. The Tenant and Robinson were finally divorced on January 3, 2006. Even after the divorce, Robinson kept some of his belongings at the apartment.
On or about October 1, 2004, the Tenant entered into a written lease agreement with the new Landlord's property manager, Richard Markham. The agreed-upon monthly rent was $650. In 2004 and 2005, the Tenant had problems paying her rent. During this period, she would occasionally receive financial support from third parties, including the Department of Children and Families (DCF).
On September 14, 2005, the Landlord served the Tenant with a notice to quit for nonpayment of rent. The Tenant had not paid rent from July 2005 through September 2005. She had previously been served with a notice to quit. In October 2005, the Landlord received a check from DCF for $1,950, which covered the Tenant's rent arrearage through July 2005.
On or about December 16, 2005, the Landlord learned that the Tenant was considering moving, after he received a landlord assessment from Broad Park Development Corporation. When they spoke next, the Tenant informed him that she was looking for another apartment. Given her current payment status, the Landlord told her that he would not be able to provide a favorable recommendation. However, if she paid her arrearage for 2005, he would be able to give her a positive reference. The Landlord never returned the landlord assessment. Unbeknownst to the Landlord, the Tenant signed a new lease with Broad Park Development Corporation sometime in December 2005.
On or about January 5, 2006, the Landlord sent the Tenant a letter indicating that she was behind paying rent, and the eviction process was going forward. However, the Landlord failed to take any further action to evict her.
In early February 2006, the Tenant stopped sleeping at 188 Magnolia Street. By then, she had moved many of her belongings to the new apartment, including her children's beds. She was still back and forth between the two apartments moving her belongings. Although she was now sleeping at her new apartment, the Tenant did not surrender her key. She never notified the Landlord that she had vacated the premises, and she continued to maintain the utilities for the apartment.
From January 2005 through February 2005, the Landlord did not notice any activity in the apartment, although he was on-site several times per week. No vehicle was observed in the Tenant's designated parking spot. Other tenants indicated that they had not seen her or any vehicle for several weeks.
On or about March 1, 2006, the Landlord observed a window open in the apartment. The Landlord tried knocking on the door several times with no response. In an attempt to contact the Tenant, he placed a tag on the front door knob. On March 4, 2006, Robinson went to the apartment. He noticed a tag on the front door knob. The tag stated in writing: "The apt seems abandoned. Call me. If not so — I will come in Friday 3-3-06 morning to check." The Landlord's phone number and address were included. Robinson was able to gain access to the apartment with the key. Later that day, Robinson showed the tag to the Tenant and suggested that she contact the Landlord. However, the Tenant did not contact the Landlord in response to the door tag.
The Landlord did not return again to the apartment until March 8, 2006. When he arrived, he noticed a window was open. Curtains were still hanging from the windows. Because of the cold weather, the Landlord was concerned that the open window would cause freezing problems in the premises or in the adjacent apartment. He was also concerned about security because the basement of the building had recently been broken into. The door was locked, and he did not have a key to the apartment. The Landlord thought it was necessary to secure the window, so he had his workman climb through the window. After entering the premises, the Landlord observed that the apartment was empty of furniture, beds and mattresses. No clothes were hung in the closets. In the living rooms area, bags of items were piled on the floor. Trash was scattered throughout the apartment. In the kitchen, the counter was full of items, and dishes were in the sink. Strong pet smells were evident. The apartment looked like the Tenant was in the process of moving. The Landlord took a few pictures of the apartment, but he did not take an inventory of the possessions in the apartment. After the window was secured, the Landlord had his workman change the front door lock.
On March 9, 2006, when the Tenant attempted to gain access to the apartment, the locks had been changed. She never expected the Landlord to change the lock when she still had a key and access to the apartment. No eviction action was pending. She called the police and told them what had happened. The police contacted the Landlord. Arrangements were made to provide the Tenant with an opportunity to remove her belongings. An appointment was scheduled for the morning of March 17, 2006.
On or about March 15, 2006, the Landlord sent the Tenant a letter. The letter stated: "In that you owe at least two months' rent, no one has seen you or your family for some time, no car is being parked there, and after leaving a note we enter the until and find that it appears you have abandoned the apartment, I am hereby notifying you that if I do not hear from you in 10 days, in accordance with the statute, I will take possession of the apartment and you will have no tenancy rights. Should you wish to enter to retrieve any belongings in the proscribed time period, contact the office at the number on the letterhead."
On March 17, 2006, the Landlord was at the apartment as scheduled, but the Tenant had not yet arrived. The Landlord decided to leave the door open, so the Tenant could gain access to the apartment to retrieve her belongings. When the Landlord returned later, he found the Tenant and Robinson removing their belongings. Nothing was missing from the apartment. They were not able to remove all their belongings that day, so the parties agreed on a second appointment for the following Friday, March 24, 2006.
On March 24, 2006, when the Landlord arrived, the Tenant was not there. The Landlord again opened the front door and left. The Tenant planned on removing the rest of her property that day. When the Tenant arrived the door was open. She entered the apartment and noticed that several items were gone. The missing items included a refrigerator, washer, dryer, computer laptop, tools, shopping cart and bicycle. The police were called, and an officer came to the apartment. After speaking with the Tenant and Robinson, the officer contacted the Landlord. The Landlord returned to the apartment and spoke with them. The Landlord noticed the missing items. The police officer suggested to the Tenant that the premises not be disturbed while the investigation was pending. The missing items were never located.
During her testimony, the Tenant initially valued the missing items at $25,000. In his brief, Tenant's counsel estimated the missing property at $2,500 to $3,500. The refrigerator, which was purchased by DCF in September 2004, was worth $200. The washer and dryer were purchased second hand and assessed at $75 each. The estimate for the shopping cart was $15. The power tools, hand tools and laptop were valuated at roughly $700. The laptop was worth $650. The bike was valued at $50. The truck rental for two days (March 17, 2006, and March 24, 2006) cost $126.88.
The Landlord had the only keys to the premises after the lock was changed on March 8, 2006. He never offered or provided a key to the Tenant. The Tenant was only able to gain access to the apartment through the Landlord. The Landlord denied allowing anyone else access to the apartment. He also denied taking any of the Tenant's belongings. He was more concerned about how the property in the apartment would be disposed of, if it was not removed by the Tenant.
The Tenant served the Landlord with the instant action on March 29, 2006. After the action was filed, the Landlord went back to the apartment and took more pictures on March 31, 2006.
The Tenant failed to pay rent or use and occupancy for the months of August 2005, September 2005, October 2005, November 2005, December 2005, January 2006, and February 2006. The Tenant's arrearage for those seven months was $4,550. Additional facts will be provided, as needed, that are proved by a fair preponderance of the evidence.
III DISCUSSION A Entry and Detainer
The Tenant has filed an entry and detainer action against the Landlord seeking damages.
General Statutes § 47a-43 provides that:
(a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.
(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.
(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.
(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present.
The statute covering forcible entry and detainer was enacted to "protect peaceable possession . . . from disturbance by any but lawful and orderly means." Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257 (1988). "As explained in Connecticut Real Property Law: `The tenants' remedy for a `lock-out,' an illegal or self-help eviction by the landlord or others, is the remedy of entry and detainer." (Citation omitted; internal quotation marks omitted.) Karantonis v. East Hartford, 71 Conn.App. 859, 862, 804 A.2d 861 (2002). "On a complaint for forcible entry and detainer the burden of proof is on the complaint to prove the facts alleged by a fair preponderance of the evidence. Stiles v. Homer, 21 Conn. 507 (1852)." Willow Point Co. v. Yachting Serv. Of Mystic, Superior Court, judicial district of New London at Norwich (July 1, 1998, Purtill, J.T.R.) ( 1998 Ct.Sup. 8101, 8105-06).
"The right of action for forcible entry and detainer is a creature of statute . . . A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed . . . The question of whether the plaintiff was in actual possession at the time of the defendant's entry is one for the trier of fact . . . Generally, the inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise . . . it is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion." (Citations omitted.) Communiter Break Co. v. Scinto, 196 Conn. 390, 392-94, 493 A.2d 182 (1985); See Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn.App. 517, 521, 772 A.2d 154 (2001) ("Although the plaintiff need not demonstrate continuous control over the premises to prove possession, the plaintiff must show that it exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion"). (Citations omitted; Internal quotation marks omitted.)
"Subsection (4) of General Statutes 47a-43(a) provides that `when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the superior court.' . . . Unlike subsections (1) and (2) of 47a-43(a), subsection (4) contains no specification or implication that force and a `strong hand' must be used as the means of entering or detaining the premises. See Hartford Realization Co. v. Travelers Ins. Co., 117 Conn. 218, 224-25, 167 A.2d 728 (1933); Gray v. Finch, 23 Conn. 495, 515 (1855). It requires a finding only that possession could not be regained without causing damage to the premises or committing a breach of the peace." Bourque v. Morris, 190 Conn. 364, 367, 460 A.2d 1251 (1983).
"As for the requirement of force and a strong hand detaining the plaintiff from entering on the property, as required by Sec. 47a-43, our courts have repeatedly held that changing the locks on the premises . . . or padlocking the door . . . met that requirement of the statute." (Citations omitted.) Wilcox v. Ferraina, Superior Court, judicial district of Hartford, Docket No. CVH-7187 (November 3, 2004, Satter, J.T.R.) ( 2004 Ct.Sup. 16300-ag, 16300-ai)."
`General Statutes § 47a-43 provides, inter alia, that it is an actionable offense when one enters into a dwelling unit and causes removal of or detention of the personal property of the possessor of that dwelling unit, and where the person put out of possession would have to breach the peace in order to regain the leased premises.' In Leonardo Industrial Properties v. Maisano, Superior Court, judicial district of New Haven, Docket No. 0412038S (April 30, 2001), the court stated: `Locking premises in order to secure them is far different from, for example, changing locks and removing or destroying [or detaining] belongings. In the former situation, courts have concluded there has been no forcible entry and detainer . . . while in the latter a violation is clear.'" (Citations omitted.) Karantonis v. East Hartford, supra, 71 Conn.App. 864.
Courts have considered a number of factors in determining whether a tenant was illegally locked-out. Bourque v. Morris, supra, 190 Conn. 364 (three-month occupant of hotel room, who was two weeks in arrears and whose door lock was changed by hotel's employee, allowed to enter and remove possessions); Fleming v. Bridgeport, 92 Conn.App. 400, 403, 886 A.2d 1220 (2005) (landlord asked police officers to remove plaintiff, who had lived with tenant full-time for seven months, from premises); Karantonis v. East Hartford, supra, 71 Conn.App. 861 (although sole member of real estate holding company informed town that several weeks were needed to arrange for removal of his personal property from foreclosed upon premises, town nevertheless changed locks, and personal property was detained); Forbotnick v. Kalinowski, Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 5967 (January 11, 2000, Tanzer, J.) ( 2000 Ct.Sup. 468) (26 Conn. L. Rptr. 517-18) (substantially all of tenant's possessions and personal effects had been left in apartment); Pearson v. Kucej, Superior Court, judicial district of New Britain, Docket No. CV 98 101713 (November 7, 1999, Tanzer, J.) (upon returning from thirty-day absence by reason of incarceration, tenant could not open new top lock that had been placed on door after maintenance person had discovered door lock broken, door partially open, and apartment vacant except for trash and sofa); Willow Point Co. v. Yachting Services of Mystic, Ltd., Supra, Superior Court. Docket No. CV 97 0112977 (owners changed locks on some doors primarily for security reasons, and tenant received keys next day); Gnandt v. DaCruz, Superior Court, judicial district of Fairfield, Housing Session, Docket No. CV 94 0302236 (April 27, 1994, Melville, J.) ( 11 Conn. L. Rptr. 500) ( 1994 Ct.Sup. 4702) (tenant locked out of apartment by landlord, after having been witnessed moving substantially all of his personal effects from premises, having not been seen by neighbors for days, having terminated gas and phone service, having left door to empty apartment open, yet having retained key). The courts have found illegal lock-outs where the possessor was an actual possessor; Fleming v. Bridgeport, supra, 405; and where the tenant did not intend to relinquish his right to possession; Forbotnick v. Kalinowski, supra, 26 Conn. L. Rptr. 520. The courts have not found an illegal lock-out to exist where a possessory interest in personal property is lacking; Karantonis v. East Hartford, supra, 71 Conn.App. 861; where the complainant fails to prove that his possession has been invaded by the acts complained of; Pearson v. Kucej, supra, Superior Court, Docket No. CV 98 101713; where force or threats were not perpetrated; Willow Point Co. v. Yachting Services of Mystic, Ltd., supra, Superior Court, Docket No. CV 97 0112977; and where the tenant evidences an intent to abandon the premises; Gnandt v. DaCruz, supra, Superior Court, Docket No. CV 94 0302236.
On March 29, 2006, the Tenant filed a Verified Lockout Complaint, Form JD-HM-24. The Tenant alleges that when she attempted to enter the apartment on March 9, 2006, the lock had been changed. At that time, there was no summary process action pending. No execution had been issued. The last notice to quit had been served in September 2005, prior to DCF's payment to the Landlord in October 2005. The Landlord had never served a Writ, Summons and Complaint relating to the notice to quit. After March 8, 2006, the Tenant was not offered or provided a new key to the apartment. The Tenant was only able to gain access to the premises with the Landlord's consent. The Tenant alleges that between March 17, 2006 and March 24, 2006, she was deprived of her property as a result of being locked out of the apartment by the Landlord.
1. Since October 1, 2003, the plaintiff(s) has/have been the actual possessor(s) of the dwelling unit located at 188 Magnolia Street, Htfd., CT 06112, unit #15 (AKA) 172-184 Magnolia St., # 15:
2. In violation of Connecticut General Statute Section 47a-43(a), the defendant or his/her/their agents has/have taken the following actions without the consent and against the will of the plaintiff(s):
(a) On or about March 9, 2006, entered the dwelling unit and with strong hand locked the plaintiff(s) out by: changing the locks;
b) Prevented the plaintiff(s) from occupying the dwelling since March 9, 2006;
c) Caused damage to the premises described above or removed, damaged or took possession and control of personal property of the plaintiff(s) including but not limited to the following items:
1. Refrigerator, 2. Washer and dryer, 3. Power tools/hand tools, 4. Laptop (Dell), 5. Childs bike, 6 Shopping cart, 7. Bucket holding tools, 8. Personal documents Misc. unrecoverable papers.
3. The above actions of the defendant(s) or his/her/their agents have caused irreparable loss or damage in that the plaintiff(s) is/are being deprived of his/her/their dwelling and possessions contained therein.
4. The plaintiff(s) is/are without any adequate remedy at law.
WHEREFORE, the plaintiff(s) request(s) that the court:
1. Issue an ex parte injunction immediately enjoining the defendant(s) and his/her/their agents from depriving the plaintiff(s) of the dwelling unit and the personal property described above; and, waive the bond requirement for said temporary injunction for good cause shown; (C.G.S. §§ 52-472, 52-473)
2. Issue an order permanently enjoining the landlord(s) and his/her/their agents from depriving the plaintiff(s) of access to the dwelling unit and the personal property described above; (C.G.S. § 52-471 et seq.)
3. Award the plaintiff(s) a writ of restitution ordering that the plaintiff(s) be restored to the premises and/or to his/her/their personal property; (CGS. § 47a-45a)
4. Order any other legal or equitable relief that the court deems proper.
The Landlord contends that the Tenant had moved out of the apartment and was living elsewhere. She had abandoned the premises, and the Landlord was within his rights to enter the apartment and change the lock. On March 8, 2006, when the Landlord returned to the apartment, the front door was locked. Up to that point, the Tenant had not surrendered her key and had never notified the Landlord that she had moved out. Because of his concerns regarding the open window, the Landlord made the decision to access the premises by having his workman climb into the window. After entering, the Landlord looked around the apartment and took a few pictures. The Landlord made the decision to change the lock, even though there were recognizable signs that the Tenant was still occupying the unit and in the process of moving. First of all, someone had taken the tag he had left on March 1, 2006. The window curtains had not yet been removed. The apartment still contained many of the Tenant's belongings. Bags of clothes and other articles were piled in the living room. Although there was trash on the floor, the apartment still contained many useful things. Someone had disassembled larger items. The kitchen sink was full of dishes. Appliances were still in the apartment. There was no indication that the utilities had been canceled. After the Landlord changed the lock, he assumed possession and control of the premises and the possessions contained therein.
The Tenant's behavior upon learning of the lockout also provides evidence of her lack of intent to relinquish the premises. She did not act like she had abandoned the apartment. On March 9, 2006, she went to the apartment to continue removing her belongings. She still had the key and expected to be able to get into the apartment. When she found that the lock had been changed, she called the police.
Although the Tenant had not maintained a continuous presence at the premises over the preceding weeks, she did continue to exercise sufficient control to constitute actual possession of the premises. She still had the key. The door was kept locked. The Tenant had not informed the Landlord that she had vacated. She planned to continue moving her belongings out of the apartment. The preponderance of the evidence is consistent with an intent to retain possession of the apartment and inconsistent with its relinquishment.
Based on the evidence presented, the Court finds that the Tenant was in actual possession of the premises on March 8, 2006. The Landlord entered and detained the premises by force or strong hand when he changed the door lock. He never offered or provided a key to the Tenant. She was only able to gain access to the apartment with his permission. The Tenant could not regain possession of the premises without causing damage to the premises or committing a breach of peace. The Court finds that the Tenant has proved, by a fair preponderance of the evidence, the case for an entry and detainer pursuant to General Statutes § 47a-43.
B Special Defense — Common-Law Abandonment
The Landlord has alleged common-law abandonment by the Tenant. "Under common law, abandonment is defined as the voluntary and intentional renunciation of a known right and the intent required may be inferred from the surrounding facts. Pizzuto v. Newington, 174 Conn. 282, 285 (1978) and cases cited therein. See also, State v. Zindros, 189 Conn. 228, 240 (1983) and Stankiewicz v. Hawkes, 33 Conn.Sup. 732 (App. Sess., Super. Ct., 1976). The plaintiff cites no authority to support his claim that the aforementioned statute [§ 47a-11b] abrogates or changes this definition. To the contrary, the statutory definition of abandonment is totally consistent with the common-law concept. This conclusion is abundantly clear from the legislative history of the statute which the plaintiff himself cites in his brief. Similar to the common law the statute requires proof of both the act of relinquishment and the intent to relinquish. As at common law intention under the statute may be proven circumstantially. However, the statute specifies two circumstances which in themselves will establish the element of intent when combined with act of relinquishment, i.e., non-payment of rent in excess of two months or an expressed intent not to occupy after a specified date. At common law these circumstances would not by themselves establish the requisite intent but obviously could be considered with all of the circumstances of the case. This is not to say that proof of the element of intent in the concept of abandonment is restricted to the two circumstances specified in the statute. To the contrary, intent may be proven either under the broader common-law standards or by resort to the indicia specified in the statute. In any event, contrary to plaintiff's urging, the common-law standard was not abrogated." Gnandt v. DaCruz, Superior Court, judicial district of Fairfield, Housing Session, Docket No. CV 94 0302236 (April 27, 1994, Melville, J.) ( 1994 Ct.Sup. 4702, 4704-05).
Under common-law abandonment, the landlord is required to prove the tenant actually relinquished possession of the premises and intended to do so based on all the circumstances of the case. Nonpayment of rent and an expressed intent to vacate are factors that can be considered, but they are not dispositive as to intent.
As previously stated, the preponderance of the evidence supports a finding that the Tenant had not relinquished her possession of the premises when the lock was changed. She had not surrendered her key to the Landlord. The front door was kept locked. She had never notified the Landlord that she had vacated. The apartment looked like she was still in the process of moving. She still had many of her personal belongings in the apartment. As the court stated in Stankiewicz, "[t]he numerous personal belongings which she left behind, items such as winter clothing, sheets, blankets and pillow cases, bureaus, a table and chairs, bespeak an expectation of early return and not of permanent removal. The plaintiff's property rights are not measured by the state of her finances. However humble her possessions, they were hers to use. The fact that the defendant considered those possessions rags and junk gave him no right to exercise dominion over them." Stankiewicz v. Hawkes, 33 Conn.Sup. 732, 734, 369 A.2d 253 (1976). When the Tenant was locked out, she had not yet exhibited an express intent to relinquish control of the premises. Although the Landlord was aware that she was considering a move, the evidence does not support a finding that she had abandoned the premises.
Based on all the circumstances of the case, the Court finds that the Landlord has not proved, by a fair preponderance of the evidence, abandonment under common law.
C Special Defense — Statutory Abandonment
The Landlord has also asserted the special defense of statutory abandonment pursuant to § 47a-11b. "The landlord may also enter the premises if the tenant has abandoned or surrendered the premises which requires nonpayment of the rent for more than two months or an express statement by the occupants that they do not intend to occupy the premises after a specific date. General Statutes § 47a-11b(a). The landlord would then be required to send a notice pursuant to subsection (b) of that statute." Calder v. Lufkin, Superior Court, judicial district of New London, Docket No. 14872 (February 7, 2006, Foley, J.). Under General Statutes § 47a-11b(a), to prove abandonment, the landlord must prove that the tenant vacated the premises without notice and the tenant did not intend to return. The intent element may be proved by the removal by the tenant of substantially all of his or her possessions and personal effects from the premises, and either the nonpayment of rent for more than two months or an express statement by the tenant that he or she does not intend to occupy the premises after a specific date.
General Statutes Sec. 47a-11b provides:
(a) For the purposes of this section, "abandonment' means the occupants have vacated the premises without notice to the landlord and do not intend to return, which intention may be evidenced by the removal by the occupants or their agent of substantially all of their possessions and personal effects from the premises and either (1) nonpayment of rent for more than two months or (2) an express statement by the occupants that they do not intend to occupy the premises after a specified date.
(b) If all the occupants abandon the dwelling unit, the landlord may send notice to each occupant at his last-known address both by regular mail, postage prepaid, and by certified mail, return receipt requested, stating that (1) he has reason to believe that the occupant has abandoned the dwelling unit, (2) he intends to reenter and take possession of the dwelling unit unless the occupant contacts him within ten days of receipt of the notice, (3) if the occupant does not contact him, he intends to remove any possessions and personal effects remaining in the premises and to rerent the premises, and (4) if the occupant does not reclaim such possessions and personal effects within thirty days after the notice, they will be disposed of as permitted by this section. The notice shall be in clear and simple language and shall include a telephone number and a mailing address at which the landlord can be contacted. If the notices are returned as undeliverable, or the occupant fails to contact the landlord within ten days of the receipt of the notice, the landlord may reenter and take possession of the dwelling unit, at which time any rental agreement or lease still in effect shall be deemed to be terminated.
(c) The landlord shall not be required to serve a notice to quit as provided in section 47a-23 and bring a summary process action as provided in section 47a-23a to obtain possession or occupancy of a dwelling unit which has been abandoned. Nothing in this section shall relieve a landlord from complying with the provisions of sections 47a-1 to 47a-20a, inclusive, and sections 47a-23 to 47a-42, inclusive, if the landlord knows, or reasonably should know, that the occupant has not abandoned the dwelling unit.
(d) The landlord shall inventory any possessions and personal effects of the occupant in the premises and shall remove and keep them for not less than thirty days. The occupant may reclaim such possessions and personal effects from the landlord within said thirty-day period. If the occupant does not reclaim such possessions and personal effects by the end of said thirty-day period, the landlord may dispose of them as he deems appropriate.
(e) No action shall be brought under section 47a-43 against a landlord who takes action in compliance with the provisions of this section.
In this case, the Landlord has argued that the Tenant vacated the premises without notice and did not intend to return based on the nonpayment of rent for more than two months. The evidence supports the Landlord's contention that the Tenant failed to pay rent for more than two months. However, the preponderance of the evidence does not support a finding that the Tenant actually vacated the premises. She maintained actual possession of the premises. The Tenant had not yet removed many of her possessions and personal effects from the premises. She did not surrender her key. The front door was kept locked. The utilities for the apartment were not cancelled. She was still in the process of moving when the Landlord changed the lock. The preponderance of the evidence supports a finding that the Tenant intended to return. The Tenant had not abandoned the premises.
The Landlord attempted to provide the required statutory notice to the Tenant; however, the letter was defective. When the Landlord sent the letter, dated March 15, 2006, he had already entered and taken possession of the premises by changing the lock. The letter was sent after the fact. In addition, the notice did not include all the information required under § 47a-11b(b). For example, the letter does not make sufficient reference to the thirty-day period to reclaim possession under § 47a-11b(b)(4). The Landlord also did not inventory the Tenant's property. § 47a-11b(d). The importance of the inventory requirement is clear when an issue arises as to lost or stolen property.
As the court stated in Gnandt, "[t]he lesson to be learned from this case is that where the landlord acts to dispossess a tenant without the benefit of summary proceedings and without actually knowing that the tenant has abandoned the premises, he acts imprudently. If he acts precipitously, as the defendant did in this case, he acts at his peril unless an abandonment has in fact taken place before dispossession . . . 47a-11b rewards prudence and importunes against such risks as the defendant took." Gnandt v. DaCruz, supra, 1994 Ct.Sup. 4707. Unlike CT Page 20384 Gnandt, in this case, the Landlord gambled and lost. Id. at 4707.
Landlord-tenant statutes are narrowly construed and strictly followed. See Thomas v. Lenhart, 38 Conn.Sup. 1, 4, 444 A.2d 246 (1982). Based on the evidence presented, the Court finds that the Landlord has failed to prove, by a fair preponderance of the evidence, the special defense of statutory abandonment pursuant to § 47a-11b.
D Damages
"Damages are an essential element of the plaintiff's proof and must be proved with reasonable certainty." (Citation omitted.) Simone Corporation v. Connecticut Light Power Co., 187 Conn. 487, 495, 446 A.2d 1071 (1982). "The trial court has broad discretion in determining whether damages are appropriate." Amwax Corporation v. Chadwick, 28 Conn.App. 739, 745, 612 A.2d 127 (1992). A property owner is competent to testify to the value of his or her property. Shane v. Tabor, 5 Conn.App. 363, 364, 497 A.2d 1047 (1985). "Mere difficulty in the assessment of damages is not a sufficient reason for refusing them where the right to them has been established." (Citation omitted.) Forbotnick v. Kalinowski, supra, 2000 Ct.Sup. 475. If a tenant prevails in an lockout case but fails to provide sufficient proof of compensatory damages or fails to provide any proof at all, the tenant may still be entitled to nominal damages. Fleming v. Bridgeport, supra, 92 Conn.App. 405-06.
After the Landlord changed the lock, he assumed possession and control of the premises and the Tenant's possession contained therein. The actions of the Landlord caused irreparable loss in that the Tenant was deprived of her apartment and possessions. The preponderance of the evidence supports an award of damages. Having considered the evidence presented regarding the extent of the loss sustained by the Tenant caused by the Landlord's actions, the court finds that the Tenant sustained damages in the amount of $2,000.
E Double Damages "Section 47a-46 requires the trial court to make an independent determination that, taking into account all of the circumstances of the case, an award of double damages is appropriate. In exercising it's discretionary authority, the trial court must examine critically any weakness in the plaintiff's case. `In so far as [the statute] requires the person at fault to pay to the injured party a greater sum than that which measures the injury sustained, though not strictly penal, it so far partakes of the nature of a penal statute that it should be construed with reasonable strictness in determining whether the act complained of comes within the description in the statute of the acts for which the person in fault is made liable.' Dubreuil v. Waterman, 84 Conn. 47, 51, 78 A. 721 [1911]" Dunbar v. Jones, 87 Conn. 253, 256, 87 A. 787 (1913)." Freeman v. Alamo Management Company, 221 Conn. 674, 684, 607 A.2d 370 (1992). In awarding double damages, the trial court in Freeman found that "the defendants had unilaterally seized control of the premises by removing and destroying almost all of the plaintiff's personal property in her apartment without attempting to contact her or giving her any opportunity to remove the property herself." Freeman v. Alamo, supra, 221 Conn. 684. The Supreme Court found that "[t]his is precisely the type of misconduct that 47a-43 and 47a-46 were intended to prevent." Id. Although the Landlord committed an entry and detainer in violation of § 47a-43, he acted responsibly in trying to contact the Tenant and later providing her with an opportunity to retrieve her belongings. The Landlord's conduct was not such as to warrant an award of double damages. The Tenant has failed to offer sufficient evidence for an award of statutory double damages.F Attorneys Fees
The Tenant has requested attorneys fees in the amount of $2,485. In an entry and detainer action, the court does not have the authority to award attorneys fees. Fleming v. Bridgeport, 92 Conn.App. 400, fn. 6, 886 A.2d 1220 (2005) ("The plaintiff also requested attorneys fees. Because General Statutes §§ 47a-45a(a) and 47a-46 do not contain any express language authorizing an award of attorneys fees, we will not presume that the legislature intended those provisions to operate in derogation of our long-standing common-law rule disfavoring the award of attorneys fees to the prevailing party. See Czaplicki v. Ogren, 87 Conn.App. 779, 790, 868 A.2d 61 (2005).")
Counterclaim or Set-off
The Landlord, by way of counterclaim or set-off, seeks damages, fees and costs, arising out of the Tenant's failure to pay rent.
"Landlord claims for property damage, like back-rent claims, usually arise either as part of a suit for damages or as a setoff or counterclaim to a tenant's action for return of a security deposit. In either case, the burden of proof is on the landlord to establish all elements of the claim. Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474 (1991); Morris v. Kookoolis, NH-582 (1992)." Denino v. Valenti, Superior Court, judicial district of New Haven, Docket No. 9108-4608 (Riddle, J.; September 30, 1993) ( 1993 Ct.Sup. 8193, 8199-8200). The Landlord must prove by a fair preponderance of the evidence that: (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; and (4) The tenant failed to pay the rent due under the lease by a certain date.
"In Connecticut, a setoff may be legal or equitable in nature . . . Legal setoff is governed by General Statutes § 52-139 et seq. and involves mutual debts between parties in any action: (1) to recover on a debt pursuant to § 52-139; (2) by an assignee of a nonnegotiable chose in action pursuant to General Statutes § 52-140; (3) for trespass to real or personal property or other tort committed without force pursuant to General Statutes § 52-141; or (4) involving joint debtors pursuant to General Statutes § 52-142. See also Practice Book § 10-54. When the statutes governing legal setoff do not apply, a party may be entitled to equitable setoff, nonetheless, only to enforce the simple but clear natural equity in a given case . . . The right to setoff, although it may arise out of a written instrument, is a common law equitable right that is not itself a written instrument . . . An action to foreclose on a mortgage, circumscribed by statute; see General Statutes § 49-1 et seq.; is an equitable proceeding and as such, does not implicate the statutes governing setoff . . . Although we have discerned no meaningful distinction between setoff rights that may derive from common-law principles and contract versus those that are moored in statute; . . . [i]t is clear that a setoff does not occur automatically but, rather, it must be exercised affirmatively . . . In the usual case, setoff is [t]he equitable right to cancel or offset mutual debts or cross demands . . ." (Citations omitted; internal quotation marks omitted.) OCI Mortgage Corp. v. Marchese, 255 Conn. 448, 463-65, 774 A.2d 940 (2001).
In this case, the Landlord has proved, by a fair preponderance of the evidence, the unpaid rent claim for the seven months from August 2005 through February 2006. The DCF payment did not cover any of these months. After the Tenant was locked out, she was no longer obligated to pay rent or use and occupancy. The court finds in favor of the Landlord on the counterclaim in the amount of $4,550.
IV CONCLUSION AND ORDER
Judgment shall enter in favor of the Plaintiff-Tenant on the entry and detainer action in the amount of $2,000.
Judgment shall enter in favor of the Defendant-Landlord on the counterclaim in the amount of $4,550. The Court sets off from the damages awarded herein the amount of $2,000.
Therefore, judgment is awarded to the Defendant-Landlord to recover the sum of $2,550.