UZ LLC v. Zane Megos et al. (2012)

RULING AND ORDER STATEMENT OF THE CASE

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 defendant, Smithfield Associates, LLC, on or about April, 5, 2004, sold the property located at 54 Broadway, in Norwich, Connecticut, for $186,000 to New Renaissance, LLC, and also entered into a 15–year long-term lease agreement for an office space at the same location for $186 per month.   According to the defendant, the fair market price for the office space was $786.   The defendant was able to receive a reduction in the lease price because it sold the property to New Renaissance below fair market price, with the understanding that New Renaissance would not sell the property in question during the 15–year lease agreement.   The property in question was sold shortly after the lease was executed and thereafter changed ownerships several times until the plaintiff, Uz–Mah Development, Ltd., LLC, ultimately obtained the property.

On or about April 20, 2011, the plaintiff filed a Summary Process action for possession against Zane Mangos [sic],¹ only.   The complaint alleges that the defendant, Megos, failed to pay rent for possession,² that the tenants' rights and/or privilege to occupy had expired or that if the tenants ever had the right or privilege to occupy the premises, such right or privilege had terminated.   On April 4, 2011, the plaintiff caused a Notice to Quit possession or occupancy to be served on the defendant, Zane Megos, for the reasons that the tenants' rights and/or privilege to occupy had expired or that if the tenants ever had the right or privilege to occupy the premises, such right or privilege had terminated and to vacate the premises on or before April 12, 2010.   The defendant, Megos filed a special defense that no rent was due as a result of housing or health code violations in violation of General Statutes § 47a–7(a).   The defendant, Megos, also filed a counterclaim for the loss in value of the remainder of his lease in the amount of $109,200.

During the trial, it was discovered that the actual lessee was Smithfield Associates, LLC, and the court sua sponte, ordered, pursuant to General Statutes § 52–107, Smithfield Associates, and Bishop Taylor, who was the other member of the LLC, be joined in this action to determine the matter of possession of the premises with their possible interests being determined.   All parties were joined and an amended complaint and a new Notice to Quit were filed as to all defendants.   A final hearing was held on September 7, 2011.

General Statutes § 47–19.   Leases for more than one year, states in pertinent part that no lease of any building for any term exceeding one year shall be effectual against any persons other than the lessor and lessee, unless it is in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land.   Lease that conveys interest in land for more than one year is not effectual against a bona fide purchaser of leased land unless lease is recorded on land records or purchaser has actual notice of lease prior to purchase.  Clean Corp. v. Foston, 33 Conn.App. 197, 201–02 (1993).   A purchaser who has actual notice of unrecorded lease is not a bona fide purchaser and is not entitled to invalidate the lease.   See Drazen Properties Ltd Partnership v. E.F. Mahon, Inc., 19 Conn.App. 471, 477 (1989).   It is not disputed that the original lease was not recorded in accordance with CGS § 47–19, until after the plaintiff obtained the property and this suit was initiated.   However, the defendant alleged during trial that because the plaintiff had actual notice of the tenant, the plaintiff is not a bona fide purchaser and is not entitled to protection under § 47–19.

Megos testified during trial that the plaintiff had actual notice because he observed two people, whom he believed to be representatives of Uz–Mah Development, touring the property prior to the purchase of the property.   However, other than vague descriptions of the two men, Megos did not have any other information as to the identities of the two people and did not provide any supporting evidence that these two people were in fact representatives of the plaintiff.   The court finds that the defendant failed to prove by a fair preponderance of the evidence that the plaintiff had actual notice of the leases.   Therefore, the plaintiff is a bona fide purchaser and the lease is not effectual as to Uz–Mah Development, Ltd., LLC. A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated.  Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn.App. 37, 41–42 (1999).   A tenant at sufferance can be evicted on the basis that he once had the right or privilege to occupy the premises but that right had terminated.   See, Federal Home Loan Mortgage Corp., at 41–2.   The court further finds as proven by a preponderance of the evidence that although the defendants, who as of this date remain in the subject premises at 54 Broadway, Norwich, Connecticut, are tenants in sufferance and their right or privilege to occupy has terminated.

In a summary process action based upon right or privilege to occupy has terminated, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case.   The essential elements are:  (1) The plaintiff is the lessor/owner of the subject property;  (2) The tenant/defendant originally had the right to occupy, but the right has terminated;  (3) The landlord caused a proper Notice To Quit Possession to be served on the tenant to vacate the premises on before a certain termination date:  and (4) Although the time given in the Notice To Quit Possession of the premises has passed, the tenant remains in possession of the premises.   See General Statutes § 47a–23(a)(3).

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' right or privilege to occupy has terminated prior to the service of the Notice to Quit. 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.

COUNTER CLAIM

The defendant, Megos filed a Counter Claim for loss of use and value of the remainder of the lease in the amount of $109,200.   Because the defendant, Megos, and plaintiff never entered into a lease agreement, Megos has no basis for the Counter Claim.   Therefore, the Counter Claim is dismissed.

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 3rd day of January 2012.

Kwak, J.

FOOTNOTES

FN1. Defendant Zane Megos' name was misspelled as Mangos on the complaint and was later corrected.   Because the lease was not recorded, the plaintiff named Zane Megos as the only defendant because it had no knowledge of the lessee..  FN1. Defendant Zane Megos' name was misspelled as Mangos on the complaint and was later corrected.   Because the lease was not recorded, the plaintiff named Zane Megos as the only defendant because it had no knowledge of the lessee.

FN2. Because the Notice to Quit was not based on nonpayment, the court did not consider it as part of the plaintiff's case..  FN2. Because the Notice to Quit was not based on nonpayment, the court did not consider it as part of the plaintiff's case.

Kwak, Hunchu, J.