Jan Nowak et al. v. Douglas Moore et al. (2010)

MEMORANDUM OF DECISION

This is a summary process action based on non-payment of rent on an oral month-to-month lease.   On November 3, 2010, the parties appeared before this Court for trial on the complaint.   The defendants allege as a special defense that no rent was due based on housing and building code violations.   The defendants also allege disability as a special defense.   The plaintiff seeks to recover possession of 24 Chester Drive, Windsor Locks, Connecticut.

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 OF FACT

The defendant Douglas Moore had resided at the subject premises under a written lease agreement with the plaintiffs.   Most recently, after the expiration of that agreement, the parties entered into an oral month-to-month lease for the subject premises.   The defendants failed to make the monthly rental payments of eight hundred fifty dollars ($850.00), which were due on July 1, 2010, and August 1, 2010.   On August 12, 2010, the plaintiff had a Notice to Quit Possession of the subject premises served on the defendants to vacate the premises on or before August 18, 2010.   As of the time of trial, the defendants remain in possession of the subject premises.   In their answer and special defenses, the defendants do not claim to have either paid or offered to pay the rent at issue.   At trial, however, the defendants claim to have offered a partial monthly rental payment for July 2010 and a full monthly rental payment for August 2010.   The testimony indicated that the defendants' offer to the plaintiff was not a true offer of payment but a promise to pay at some point in the future, after the grace period.   The court finds that the plaintiff has proved nonpayment of rent for July and August 2010 by a fair preponderance of the evidence.

The defendants testified that there was a number of housing code violations about which they had made several complaints to the plaintiff over a period of several months.   The defendants testified and pled in their special defenses that they offered only a partial July 2010 monthly rental payment due to the alleged violations.   The defendants testified that they made complaints to the plaintiff prior to service of the notice to quit.   The plaintiff admits that certain complaints were made and that the subjects of the complaints were remedied.   The largest complaint was an electrical outage resulting in a loss of electricity for a number of days in July 2010.   The evidence is clear that the matter has been adequately remedied by the plaintiff during the month of July 2010.

DISCUSSION

Connecticut General Statutes § 47a-7(a)(1) requires a landlord to comply with all applicable building and housing codes as materially affect health and safety.  Ficocelli v. Sokolovsky, 2009 Ct.Sup. 3561, Superior Court, Judicial District of Tolland, Housing Session at Rockville, Docket No. CV 08 4010443 (Feb. 17, 2009, Sferrazza, J.).

When a tenant has in good faith requested the landlord make repairs to the tenant's dwelling unit, the landlord “shall ․ (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition ․” Conn. Gen.Stat. 47a-7(a)(2).  Visco v. Cody, 16 Conn.App. 444, 454, 547 A.2d 935 (1988);  Liu v. Kukick, 2010 Ct.Sup. 6565, Superior Court, Judicial District of New London, Housing Session, Docket No. CV21-017962 (March 3, 2010, Young, J.).   Additionally, Connecticut General Statutes § 47a-7(a)(4) requires the landlord to “․ maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities ․”

“Courts which have considered the relationship between General Statutes §§ 47a-7 and 47a-4a have uniformly concluded that where the premises have been rendered uninhabitable ․ the tenant is relieved from the obligation to pay rent and may raise the uninhabitability of the apartment as a defense to a summary process action based on nonpayment of rent ․ Whether the premises is uninhabitable to the extent that the tenant is relieved of the obligation to pay rent depends on the facts of each individual case and whether the uninhabitability is caused by the tenant.”  (Citations omitted.)   Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. SPH 92006-65824 (October 8, 1992, Holzberg, J.).

Connecticut General Statutes § 47a-4a establishes, essentially, that no rent is due for any period during which the landlord has failed to comply with the responsibilities indicated in Subsection (a) of 47a-7 if that noncompliance renders the premises unfit or uninhabitable.  Carpentieri v. Gayle, 2009 Ct.Sup. 5831, 47 Conn. L. Rptr. 555, Superior Court Judicial District of Hartford, Housing Session, Docket No. HDSP-151240 (April 16, 2009, Gilligan, J.).

The issue which, if found in favor of the defendants would constitute a valid special defense is the issue of electrical problems in the subject premises.   The court finds the other issues identified by the defendants, even if proven, do not rise to a level sufficient to excuse the payment of rent.

There is a significant dispute between the parties as to the extent of the electrical outage.   The period of time during which the defendants claim to have been essentially without electricity is approximately four weeks.   According to the plaintiffs, this period was limited to a few days.   There is no dispute however, that the situation was remedied within the month of July 2010.

The court credits the testimony of the defendants as to the duration of the electrical problems.   As such, the court finds that no rent is due for July 2010.

As to the month of August 2010, however, the court finds that there is no legal or factual basis to excuse the defendants' nonpayment of rent for August 2010.   Therefore, the court finds that the defendants have failed to prove this special defense by a fair preponderance of the evidence.

As to the special defense of disability, this special defense does not apply to summary process actions claiming nonpayment of rent.  Connecticut General Statutes § 47a-23c.

ORDER

Based on the foregoing, the Court finds the following:

The plaintiff has proven the non-payment claim by a fair preponderance of the evidence;

The defendants have failed to prove their special defenses by a fair preponderance of the evidence;

Judgment is entered in favor of the plaintiff.   The Court orders a final stay of execution through November 30, 2010.

By the Court

Hon. Vernon D. Oliver

Oliver, Vernon D., J.