Opinion
No. NBSP-56151
July 14, 2011
MEMORANDUM OF DECISION
This is a summary process action for possession of the subject premises at 17 Oldfield Street, New Britain, Connecticut. On, June 24, 2011, the parties appeared before the court for trial on the one count complaint. The plaintiffs allege that the lease agreement has terminated by lapse of time. The defendant, in an answer with special defenses, asserts an inapplicable special that no rent is due based on the condition of the premises. The defendant further asserts retaliation based on her having previously reported housing or health violations to the plaintiff.
BURDEN OF PROOF
"While the 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 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulyez v. Stop Shop, 29 Conn. App. 519, 523, cert, denied. 224 Conn. 923 (1982). Failure to do so results in judgment for the defendant. Id. ". . . [W]hat is necessarily implied [in an allegation] need not be expressly alleged."Pamela B. v. Ment, 244 Conn. 296, 308 (1998).
STANDARD OF PROOF
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 (1981).
ESSENTIAL ELEMENTS OF THE CLAIM
To prevail on a claim for lapse of time, the plaintiff must establish, by a fair preponderance of the evidence, the following essential elements: (1) a rental agreement; (2) the plaintiff is the lessor or owner; (3) the address of the subject premises; (4) the date of the rental agreement that has terminated; (5) whether the premises are residential or commercial; (6) the service of a notice to quit, including its service date and termination date; (7) that the defendant is still in possession.Conn. Gen. Stat. § 47a-23 (a) (1) (A). Termination of the lease by lapse of time signifies that the lease, whether express or implied or whether oral or written, will lapse at the end of the current period and will not be renewed. Yale University v. Valinho, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. SPN 9407-20487 (October 13, 1994, DiPentima, J.).
THE PLEADINGS
"The admission of the truth of an allegation [in a] pleading is a judicial admission conclusive on the pleader." Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199 (1971). "An admission in a pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594 (1909).
SPECIAL DEFENSES
"[A] special defense is not an independent action; rather, it is an attempt to plead facts that are consistent with the allegations of the complaint to demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.)Valentine v. LaBow, 95 Conn. App. 436, 447 n. 10 (2005), cert, denied, 280 Conn. 933 (2006). The defendants have the burden of proving the allegations in their special defenses by a fair preponderance of the evidence. Lodovico v. Mihalcik, superior court, judicial district of Hartford at Hartford, Docket No. CV-07-50130991 (August 17, 2010, Rittenband, JTR).
THE PROCEEDINGS
"The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn. App. 638, 646, cert. denied, 274 Conn. 906 (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 factfinder to reject or accept certain evidence. . . ." (citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn. App. 534, 540 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123 (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 the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530 (1977).
"[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 the witnesses testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborne, 41 Conn. App. 287, 291 (1996). The trial court's function as the finder is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." In re Christine F., 6 Conn. App. 360, 366, cert. denied 199 Conn. 808 (1986).
FINDINGS OF FACT
The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and reaches the conclusions set forth herein by a fair preponderance of the evidence.
1. On or about April 1, 2011, 2010, the plaintiffs, as landlord, and the defendant, as tenants, entered in to an oral month to month rental agreement for the use and occupancy of the subject premises;
2. The plaintiff is the owner of the subject premises;
3. The subject premises are: 17 Oldfield Street, New Britain, Connecticut;
4. The agreed upon monthly rental was $600.00 payable on the first day of each month;
5. The lease term has expired as of April 30, 2011;
7. On April 6, 2011, the plaintiff had a Notice to Quit Possession served on the Defendant to vacate the premises on or before April 30, 2011;
8. The time given in the notice to quit possession for the defendant to vacate the premises has passed, yet the defendant has not vacated the premises and remain in possession;
Additional facts will be discussed as necessary.
The court finds that the plaintiff has established all the essential elements of the complaint by a fair preponderance of the evidence.
FIRST SPECIAL DEFENSE
The defendant's first special defense asserts that no rent is due based on the conditions of the premises. Such a special defense is inapplicable to an action brought for lapse of time.
SECOND SPECIAL DEFENSE
The defendant's second special defense asserts that this eviction is sought in retaliation for the defendant's complaints to the landlord regarding needed repairs to the subject premises.
DISCUSSION: RETALIATORY EVICTION CONNECTICUT GENERAL STATUTES SECTION 47A-20
Under Connecticut General Statutes Section 47a-20(a), the establishment of a prima facie case by a tenant under one or more of the five prescribed acts would give rise to a presumption of retaliatory eviction by a landlord. The presumption is rebuttable, and the landlord is permitted by substantial countervailing evidence to rebut it. In essence, the landlord will be required to establish a legitimate interest in the eviction. Alteri v. Layton, 35 Conn. Sup. 261, 264-265 (1979).
Additionally, the courts of this state have held that "a good faith request for any repair" does not invoke the application of section 47a-20. Visco v. Cody, 16 Conn. App. 444, 451 (1988) (emphasis added). Such an interpretation would be overly simplistic and would transform "[w]hat had been intended as a shield for the benefit of tenants . . . into a sword to deprive landlords of their property." Id. at 453. Accordingly, the courts of this state have consistently held that "the protection afforded by 47a-20(3) is not invoked unless the repair requested is necessary to maintain the leased premises in a fit and habitable state . . . whether or not the defect complained of goes to the tenantability of the property is a question of fact to be determined by the trier." Id. at 454.
Further, regarding section 47a-20 (1) and (2), and housing / building code violations related thereto, this court finds that "violations of the [housing] code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." Bustamonte v. Diaz, Superior Court, Judicial District of Hartford, Housing Session at Hartford, Docket No. HDSP-151240 (April 16, 2009, Gilligan, J.), citing Rosow v. Gonzalez, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. H79-0501528 (July 5, 1979, Spada, J.) (Finding that tenant failed to establish that the apartment was uninhabitable despite many problems with the premises).
CONNECTICUT GENERAL STATUTES SECTION 47A-33Connecticut General Statutes § 47a-33 establishes the retaliatory action as an affirmative defense. No presumptions are permitted and the tenant, by affirmative proof, is required to prove that the landlord's primary motive in seeking an eviction was in retaliation for a tenant's exercise of his or her statutory right to report housing code violations to the appropriate authorities. The burden of persuasion for this affirmative defense, therefore, rests upon the tenant who asserts it. Altieri v. Layton, 35 Conn. Sup. 261, 264-65 (1979). Klobocista v. Zappia, 2007 Ct. Sup. 5059 (2007).
"There are two significant differences between [Connecticut General Statutes § 47a-33] and [CGS §] 47a-20: (1) under [47a-33], the tenant must have registered a complaint to some municipal or made some equivalent effort to remedy the condition, whereas 47a-20 (3) allows a complaint to be made to the landlord directly; and (2) this provision permits a tenant to raise retaliation as an affirmative defense, which the tenant must then prove by a preponderance of evidence, whereas 47a-20 establishes retaliation as a presumption, if a summary process action is initiated within six months of a complaint, which the landlord must then successfully rebut." Visco v. Cody, supra at fn. 7.
"In enforcing the mandate of General Statutes § 47a-4a that no rent is due when a landlord has not complied with its statutory duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, courts have generally demanded more than a tenant's word that there are serious health or safety hazards to corroborate such a claim — such as a report from a fire marshal or housing inspector or an independent witness."Elkies v. Bear, Superior Court, Judicial District of New Haven at Meriden, Docket No. SPM CV 04-0287606 (July 6, 2004, Frazzini, J.). "[T]o establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable." Evergreen Corporation v. Brown, 35 Conn. Sup. 549, 552 (1978). "This court does not construe [the caselaw] as holding that a tenant's testimony is, as a matter of law, insufficient to prove an uninhabitability claim . . . but instead as suggesting that most courts will find the tenant's own word unpersuasive unless there is additional evidence to back up the claim." (internal citations omitted) Klobocista v. Zappia, supra at 5065.
FINDINGS
In the instant matter, the defendant has failed to establish, by a fair preponderance of the evidence, that any substantive complaints were made by the defendants to the plaintiff regarding the conditions of the premises prior to service of the notice to quit. The defendant's testimony listed a number of minor complaints that may have been made to the plaintiff in the context of an ongoing domestic-type dispute.
The majority of the defendant's complaints related in her testimony concern her assertions of verbal and physical abuse that may have been the subject of police action and do not directly implicate this summary process action. Therefore, the defendant has neither presented sufficient evidence to give rise to the rebuttable presumption of Connecticut General Statutes § 47a-23, nor have they established their affirmative defense pursuant to Connecticut General Statutes § 47a-33.
The defendant has failed to prove her second special defense by a fair preponderance of the evidence.
ORDER
Accordingly, the court enters immediate judgment for possession of the subject premises in favor of the plaintiff based on Lapse of Time.
The Court orders a final stay of execution through Friday August 5, 2011.