Steven Kennedy v. Frank Bell et al. (2010)

MEMORANDUM OF DECISION

This is a summary process action for possession of the subject premises at 300 Washington Street, New Britain, Connecticut.   On October 29 and November 29, 2010, the parties appeared before this Court for trial on the complaint.   The plaintiff's sole count alleges that the defendants, Frank Bell and Wioleta Obrebska, originally had the right or privilege to occupy the subject premises but the right or privilege has terminated.   The defendant Bell alleges as special defenses retaliatory eviction and disability.   The defendant Obrebska alleges retaliatory eviction as a special defense.

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 is the owner of the premises and the defendants are the occupants of the floor apartment.   The Defendants originally had the privilege to occupy the subject premises based on consent from the previous owner of the premises.   The plaintiff purchased the property on or about May 7, 2010.   The defendants' were already occupants at the time the plaintiff purchased the subject premises.   Based on an initial lack of a meeting of the minds between the parties as to a monthly rental amount, the plaintiff served a notice to quit on the defendants on June 21, 2010.   After service of this Notice, the defendants tendered a use and occupancy payment to the plaintiff, resulting in the plaintiff choosing not to file a summary process action in court.   Thereafter, the defendants occupied the premises with the consent of the plaintiff while the parties attempted to negotiate a rental agreement for the subject premises.   On June 24, 2010, the defendants complained to the City of New Britain Housing and Zoning Enforcement about housing code violations (Defendants Exhibit E).   The parties continued to negotiate a rental agreement but failed to reach mutually acceptable terms, resulting in the plaintiff again serving a notice to quit on the defendants on July 19, 2010 for non-payment of rent.   That summary process action, HDSP-157537, was subsequently withdrawn.   The instant matter followed the withdrawal of that aforementioned matter.   In the present matter, on August 31, 2010, the plaintiff caused a written notice to quit to be served on the defendants with a quit date of September 5, 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.

The evidence adduced at trial is that the plaintiffs and the defendants have failed to reach a meeting of the minds as to a rental agreement.

This Court finds, by a fair preponderance of the evidence that the defendants once had a right or privilege to occupy the subject premises conferred upon them by 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.   The Plaintiff has proven the sole count of the complaint by a fair preponderance of the evidence.

Regarding the defendants' first special defense sounding in retaliatory eviction, the court makes the following findings.

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 uninhabitabihity.   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. H79-050 1528 (July 5, 1979, Spada, J.) (Finding that tenant failed to establish that the apartment was uninhabitable despite many problems with the premises.)

Additionally, it is relevant, in the entire context of these proceedings, to note that the plaintiff has previously served a notice to quit on the defendants claiming nonpayment of rent on or about June 21, 2010, before the defendants made their first complaint to the city of New Britain.   This fact bolsters the other evidence in the record establishing an underlying failure of the parties to reach a mutually acceptable lease agreement as opposed to a retaliatory eviction action by the plaintiff.

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.

Here, the court finds, based on the whole record, that the defendants have not sustained their burden of proof that the repairs requested 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.

The defendant Bell's special defense claiming disability fails for two reasons:  First, this special defense in applicable 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 Bell has failed to prove, by a fair preponderance of the evidence, that the nature of his disability rises to a level to be within that protected by the aforementioned statute.

ORDER

The court enters judgment for possession of the subject premises in favor of the plaintiff with a final stay of execution through December 31, 2010.

By the Court

Hon. Vernon D. Oliver

Oliver, Vernon D., J.