Marlis Jacobowitz dba Stonybrook Mobile Home Park aka Stonybrook Valley Mobile Park v. Sean Levesque et al. (2011)

MEMORANDUM OF DECISION

The court having heard testimony in connection with the summary process complaint enters the following findings of fact, which it finds established at trial by a fair preponderance of the evidence.

The parties had an oral month-to-month lease agreement for premises located at 311-1 Fitch Hill Road, Uncasville, CT 06382.   The agreed upon rent was $700 per month.   The defendants, Sean Levesque and David Pedro, did not make any payments for rent due on July 1, 2010 through November 1, 2010.   On December 2, 2010, the plaintiff caused a Notice to Quit possession or occupancy to be served on the defendants to vacate the premises on or before December 7, 2010.   The plaintiff did not accept any payment for rent after the Notice to Quit was served and no payments were offered by the defendants.   No rent has been paid to the plaintiff or into the court.

The defendants have alleged the special defense that no rent was due as a result of a housing code violation, primarily for a defective deck.   The court finds that the defendants were not cooperative with the plaintiff's contractor who was hired to inspect and repair the deck after their complaint had been made and further, that no rent was paid into the court.

NONPAYMENT OF RENT

In a summary process action based upon nonpayment of rent, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case.   The essential elements in this case are:  (1) On or about a certain date, the landlord and the tenant entered into an oral lease/rental agreement for a monthly term for use and occupancy of the 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 remains in possession of the premises;  See Conn. Gen.Stat. § 47a-23(a)(1)(D).  Specifically, the plaintiff alleges the defendants failed to pay rent for the months of July through November 2010.

Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, would require judgment for the defendants.   Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d. 1087 (1992).

The Court finds that the defendants failed to pay the rent for the months of July through November 2010 prior to the service of the Notice to Quit. The plaintiff has neither been offered nor accepted any payment from the defendants, thereafter.   The defendants remain in occupancy of the premises beyond the date specified in the Notice to Quit. Accordingly, the Court finds that the allegations of the Complaint have been established by the plaintiff, by a fair preponderance of the evidence.

SPECIAL DEFENSE

The defendants argue that no rent is due because the plaintiff landlord failed to properly maintain the premises.   The defendants claim that because the deck is in need of repair, their obligation to pay rent was excused.  “Connecticut law recognizes that health or housing code violations may vitiate a tenant's obligation to pay rent but only serious and substantial violations affecting the safety or well being.”   Elkies v. Bear, Superior Court, J.D. of New Haven at Meriden, Docket No. SPM CV 04-0287606 (July 6, 2004, Frazzini, J.) (2004 Ct.Sup. 10984).   The tenants bear the burden of proof on their special defense that no rent was due under Conn. Gen.Stat. § 47a-4a because of various health and housing code violations.  Evergreen Corp. v. Brown, 35 Conn.Sup. 549, 552, 396 A.2d 146 (App.Sess.1978).   The sanctions in Connecticut General Statutes §§ 47a-7 and 47a-4a are not initiated until and unless evidence is adduced at trial establishing that there is a substantial violation or series of violations of housing and health codes creating a material risk of hazard to the occupants.  Visco v. Cody, 16 Conn.App. 444, 450-51, 547 A.2d 935 (1988).   In this case, the evidence does not support the finding that the tenants' obligation to pay rent under the lease was vitiated by the condition of the premises, particularly where the tenants failed to cooperate with the landlord's efforts to repair.   Based on the evidence presented, the Court finds that the tenants have failed to establish their defense, by a fair preponderance of the evidence.

CONCLUSION AND ORDER

For the above-stated reasons, the Court enters judgment of immediate possession for the plaintiff against the defendants.   Costs are also awarded as may be allowed by statute.

It is So Ordered, this 20th day of January 2011.

Kwak, J.

Kwak,, J.T.R.