Garland Chaney v. Carla Chaney et al. (2010)

MEMORANDUM OF DECISION

This is a summary process action for possession of the subject premises at 102 Burnham Street, Second floor, Hartford, Connecticut.   The subject premises is a two-family home.   On December 8, 2010, the parties appeared before this Court for trial on the complaint.   The plaintiff's two-count complaint alleges first that the defendants, Carla Chaney and Calvin Chaney, originally had the right or privilege to occupy the subject premises but the right or privilege has terminated.   The second count alleges that the defendants never had the right or privilege to occupy the premises.   The defendant Carla Chaney's operative answer denies the substance of both counts of the complaint and asserts special defenses claiming first, that all rent has been paid and second, disability.   Defendant Carla Chaney sought leave to file amended special defenses and counterclaims.   This request was denied by the court for the reasons set forth on the record.   Defendant Calvin Chaney filed an answer disputing the substance of the complaint and asserting the special defenses that all rent has been paid and retaliatory eviction based on unspecified housing code violations.

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.

FINDINGS

The plaintiff, Garland Chaney, is the owner of the premises and the defendants are the occupants of the second-floor apartment.   The defendants originally had the privilege to occupy the subject premises with the knowledge of the owner, Garland Chaney, but without his explicit consent.   The named defendants moved into the premises after their mother, Juanita Chaney, became an occupant.   After Juanita Chaney vacated the premises to reside in the state of Georgia, the defendants remained as occupants.   The defendants continue to occupy the premises.   Juanita Chaney had filed a claim of exemption in this matter, however

The defendants have demonstrated no ownership interest in the subject premises.   The plaintiff notified the defendants that their privilege to occupy the premises was terminated several times, but with certainty in July 2010.   The basis of the termination was a failure of the parties to reach a mutually agreeable rental agreement after the defendants took up occupancy at the premises.   On that basis, the plaintiff served a notice to quit on the defendants on July 28, 2010 with a quit date of August 3, 2010.   The time designated in the notice for the defendants to quit possession of the premises has passed.   The defendants remain in possession of the subject premises.

This Court finds, by a fair preponderance of the evidence that the defendants once had a right or privilege to occupy the subject premises based on their occupancy of the premises for several months with the knowledge of the plaintiff.   The Court finds that such right or privilege has terminated based on the failure of the parties to reach a mutually acceptable rental agreement and not in retaliation for any purported housing code violations.   The plaintiff has proven the first count of the complaint by a fair preponderance of the evidence.

SPECIAL DEFENSES:  CARLA CHANEY

Regarding the defendant Carla Chaney's first special defense asserting that all rent has been paid the court finds that this special defense is inapplicable to both counts of the plaintiff's complaint.

The defendant Carla Chaney's second special defense claiming disability fails for two reasons:  First, this special defense is inapplicable to the instant action as the subject premises do not fall within the categories delineated in Connecticut General Statutes § 47a-23c.   Second, even if the subject premises did fit within the required category, the defendant has failed to prove, by a fair preponderance of the evidence, that the nature of her disability rises to a level to be within that protected by the aforementioned statute.

SPECIAL DEFENSES:  CALVIN CHANEY

Regarding the defendant Calvin Chaney's first and second special defenses, the court finds that the payment or offer to pay rent is not a defense to either count of this complaint.

Regarding the defendant's special defense sounding in retaliatory eviction, the court notes the following:

DISCUSSION

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, 264-65 (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-33

Connecticut 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 Carla Chaney's testimony listed a number of minor complaints that may have been made to the plaintiff in the context of an ongoing family dispute.   The more serious complaint was made to the City of Hartford approximately two months after service of the notice to quit, and within days after an appearance before this court on another motion.   The aforementioned sequence of events calls into question the credibility of the defendants.   Further, the defendants have not sustained their burden of proof that the repairs requested prior to October 2010, were necessary to maintain the subject premises in a fit and habitable condition.   Therefore, the defendants have 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.

ORDER

The court enters judgment for possession of the subject premises in favor of the plaintiff with a final stay of execution through December 19, 2010.

By the Court

Hon. Vernon D. Oliver

Oliver, Vernon D., J., J.