LLC v. Yue Hui Xu a/k/a Danny Xu (2010)

MEMORANDUM OF DECISION

This summary process action was tried before the court on various dates, commencing May 11, 2010 and concluding on June 23, 2010.   The parties presented evidence and testimony with submissions of briefs on July 15, 2010.   The following facts are found by a fair preponderance of the evidence.

On January 30, 2007, the parties entered into a 10-year commercial lease for premises located at 475 Hamilton Avenue in Norwich, Connecticut.   Monthly rent in the amount of $5,250.00 was payable on the first of each month.

The defendant tenant failed to make payment of the rent due on December 1, 2009.   The plaintiff landlord caused a notice to quit the premises to be served upon the defendant on December 21, 2009.   The notice stated, “Any payments tendered after the date specified to quit possession and occupancy will be accepted for use and occupancy only and not for rent, with full reservation of rights to continue with the eviction.”   This summary process action commenced thereafter with a complaint followed by an answer and eight special defenses.

On March 3, 2010, the parties entered into an agreement ¹ wherein the defendant agreed to pay $26,775.00, owed in arrearage on March 11, 2010.   The defendant paid only $14,000.00 on that date.   There is no evidence that the $14,000.00 was accepted as rent, rather than for use and occupancy.   The Court finds that the plaintiff has proven the allegations in its complaint that the defendant failed to pay rent due on December 1, 2009.

There was no evidence presented as to the First Special Defense claiming that the rental payment was subject to the defendant's right of offset.   There was no evidence presented as to the Second Special Defense as to claim of default.   There was no evidence to the claim in the Third Special Defense that the defendant overpaid the plaintiff.   Rather, the evidence was to the contrary.

As to the claim in the Fourth Special Defense that the plaintiff's failure to repair the roof constituted a breach of the lease and absolves the defendant of its obligation to pay rent, the Court credits the testimony of the plaintiff's witness, Ronald Tse, and finds that the leak in the roof was caused by the defendant tenant when installing equipment on the roof of the premises.   This is bolstered by Plaintiff's Exhibit 2, a letter from the City of Norwich Building Official, stating that the “leaks appear to be associated with penetrations of roof mounted mechanical equipment.”   The defendant conceded he had installed equipment on the roof.   Further, there is no basis found for the assertion that, even if the plaintiff had breached the lease in failing to effect a repair, such breach absolved the defendant of his obligation to pay rent.   There is no provision in the lease for such self help.

The allegations of the Fourth Special Defense are repeated in the Fifth Special Defense along with an assertion that the failure to repair the roof constitutes a breach of the covenant of quiet enjoyment.   Consistent with its holding as to the Fourth Count, the Court finds the defendant tenant caused the leak in the roof.   Additionally, the defendant's witness, Sandy Xu, testified that the premises, a supermarket, remained open despite the leaks.   The burden of proof of the claim of breach of the covenant of quiet enjoyment was not met by the defendant.

The Sixth Special Defense alleges that the plaintiff failed to “maintain the parking lot and be responsible for the repairs and snow plowing, including the maintenance of the lawns and shrubbery areas.”   The defendant's witness, Sandy Xu, testified that the defendant paid for snow removal.   However, no bills or receipts were entered into evidence.   While the defendant tenant may have elected to have this work done at his own expense and to deduct the expense from the rent due, there was no documentary evidence that he did so or to what expense.   There was no evidence presented that this was an essential service.   The Sixth Special Defense is not proven.

The Seventh Special Defense claims that the premises were not suitable for occupancy on the date set forth in the second paragraph of the lease.   However, the fourth paragraph of the lease, attached to the complaint, states:  “If for any reason the Landlord cannot deliver possession of the property to the Tenant when the lease term commences, the Lease shall not be void or voidable, nor shall the Landlord be liable to the Tenant for any loss or damage resulting therefrom.   However, there shall be an abatement of rent for the period between the commencement of the lease term and the time when the Landlord delivers possession.”   There is no remedy for the claim of the Seventh Special Defense provided for in the lease other than abatement of rent.   This claim is not a valid special defense to the plaintiff's complaint of nonpayment of rent almost three years after the premises were delivered to the defendant.

The Eighth Special Defense claims that the defendant had to expend monies to repair the roof.   This allegation was not proven by a fair preponderance of the evidence.   There was no evidence presented that this was deprivation of essential services.   There was no documentary evidence of billing for repairs or payment of same by the defendant, nor is there any provision in the lease permitting the defendant to effect repairs and deduct the amount from the rent due.   Judgment for immediate possession of the premises is awarded to the plaintiff.

BY THE COURT,

Young, J.

FOOTNOTES

FN1. The defendant attached a copy of the agreement in his post-trial brief.   However, the agreement was never entered into evidence and, therefore, that document was not reviewed or considered by the Court.   Consideration of the effects of the agreement are limited to the testimony and evidence presented at trial, together with the notice to quit attached to the complaint..  FN1. The defendant attached a copy of the agreement in his post-trial brief.   However, the agreement was never entered into evidence and, therefore, that document was not reviewed or considered by the Court.   Consideration of the effects of the agreement are limited to the testimony and evidence presented at trial, together with the notice to quit attached to the complaint.

Young, Robert E., J.