Isaac Abishour v. Sandra Langlois et al. (2012)

MEMORANDUM OF DECISION

This is a summary process action based on lapse of time.   The plaintiff alleges that the parties entered into a written lease for a period of one year commencing November 2008, and terminating on November 30, 2009.   The plaintiff served a notice to quit on the defendants on February 11, 2012, advising the tenants that they must quit possession of the property on or before February 16, 2012.   On February 21, 2012, the plaintiff returned to court a complaint seeking immediate possession of the property claiming that the tenant landlord relationship has been terminated based on lapse of time.   The defendant filed a motion to dismiss and accompanying memorandum of law on March 16, 2012.   No objection was filed by the plaintiff.   The matter was placed on the housing docket for argument on March 30, 2012.

The defendant argues that this court lacks jurisdiction and moves to dismiss the case on the grounds that the notice to quit was not effective to terminate the lease for lapse of time because of the holdover provision contained in the lease.   That provision created a month to month tenancy after the written lease expired.   The defendant further argues that since the tenant paid rent for the month of February, the notice to quit was defective because it demanded the defendant vacate the property before the legal tenancy terminated.

“Service of a valid notice to quit, which terminates the lease and creates a tenancy at sufferance ․ is a condition precedent to a summary process action under § 47a–23 that implicates the trial court's subject matter jurisdiction over that action ․ Thus, the defendants' motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo.”  (Citations omitted;  internal quotation marks omitted.)  Waterbury Twin, LLC v. Renal Treatment Centers–Northeast, Inc., 292 Conn. 459, 466–67, 974 A.2d 626 (2009).

“[Summary process] is preceded by giving the statutorily required notice to quit possession to the tenant ․ Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease.   The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a [leasehold] is converted to a tenancy at sufferance.”  (Citation omitted.)   Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988).

In this case, the written lease contained a holdover provision which provided for a month-to-month tenancy to be created upon the expiration of the lease term.   Such tenancy was to commence the first day of each month and end on the last day of each month.   There is no dispute that the tenant paid the February rent and therefore, the tenant had the right of possession to the property up to and including February 29, 2012.   The notice to quit in this case is improper in that it demanded the tenant to vacate the premises before the terminal date of the month-to-month rental agreement.   Therefore, the court finds the notice to quit was defective.

Accordingly, this court lacks subject matter jurisdiction.   The defendant's motion to dismiss is granted.

BY THE COURT

Denise D. Markle, Judge

Markle, Denise D., J.