Eric Garcia v. Isette Brendza (2012)

ORDER

This is a summary process action based on lapse of time.   The plaintiff seeks immediate possession of the premises.   Both parties appeared for trial on January 9, 2012.   The defendant asserts three defenses:  that housing code violations excuse the payment of rent, that eviction is impermissible based on her disability and that the present action is retaliatory.

Neither party contests that on or about January 1, 2011, an oral weekly contract was entered into between the parties for use and occupancy of the premises located at 1 Homestead Avenue, Apartment 1, Danbury, Connecticut.   Pursuant to the terms of the lease, the defendant was obligated to pay $125.00 weekly rental which was due and payable on the first day of each week.   The defendant took possession of the premises pursuant to the lease and still occupies the same.   On or about November 10, 2011, the plaintiff had a notice to quit possession served on the defendant to vacate the leased premises on or before November 15, 2011, as required by law.   Although the time designated in the notice to quit possession has passed, the defendant remains in possession of said premises.

“The purpose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common law cause of action.   The process is intended to be summary and is designed to provide an expeditious remedy to a landlord seeking possession.”   (Internal quotation marks omitted.)  Bridgeport v. Barbour–Daniel Electronics, Inc., 16 Conn.App. 574, 581, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).  “Summary process is a special statutory procedure designed to provide an expeditious remedy ․ It enables a landlord to obtain possession of leased premises without the delay associated with common-law actions.”  (Internal quotation marks omitted.)  Wilson v. Jefferson, 98 Conn.App. 147, 165, 908 A.2d 13 (2006).  “The purpose of the action is to enable the landlord upon such termination to recover possession from the tenant ․ Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.”  (Citations omitted.)  Jo-mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600–01, 96 A.2d 217 (1953).

In a summary process action based upon lapse of time, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case.   The essential elements are:  (1) On or about a certain date, the landlord and the tenant entered into an oral or written lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain 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 rental agreement has terminated based on lapse of time;  (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 C.G.S. § 47a–23(a)(1)(A);  231 Ellington, LLC v. McQuade, Superior Court, judicial district of Hartford, Docket No. HDSP–148322 (November 14, 2008, Gilligan, J.).   Failure of the plaintiff to establish any of the necessary elements by a fair preponderance of the evidence will result in judgment for the defendant.   Holding over by any lessee after the expiration of the terms of a lease, shall not be evidence of an agreement for a further lease.  FJK Associates v. Karkoski, 52 Conn.App. 66, 69, 725 A.2d 991 (1999).

“It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ․ It is the quintessential function of the fact finder to reject or accept certain evidence ․” (Citations omitted;  internal quotation marks omitted).  In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000).   The court has weighed all the evidence and assessed the testimony and credibility of the witnesses.   Based upon the evidence adduced at trial, the court credits the testimony of the plaintiff and finds that the plaintiff has established the essential elements of the complaint by a fair preponderance of the evidence.

The defendant asserts, by way of a special defense, that no rent is due based on the landlord's failure to properly maintain the premises.  “This defense, however, has no bearing on the allegations in the eviction complaint because it relates to the payment of rent.   Pursuant to § 47a–4a, a tenant may raise the conditions of the premises as a defense in a nonpayment of rent case but not a lapse of time case.”  Grant v. Urban Developers, LLC, Superior Court, judicial district of Hartford at Hartford, Docket No. CVH–514, (May 24, 2006, Bentivegna, J.) (2006 Ct.Sup. 9347).

The defendant additionally asserts that an eviction is prohibited as she is disabled.  Connecticut General Statutes § 47a–23c prohibits a landlord from evicting elderly and blind or physically disabled persons except for certain specified reasons such as nonpayment of rent or violation of the lease.   Lapse of time is not one of the authorized reasons.  Section 47a–23c(a) is applicable to “any tenant who resides in a building or complex consisting of five or more separate dwelling units ․ and who is ․ physically disabled, as defined in section 1–1f, but only if such disability can be expected to result in death or to last for a continuous period of at least twelve months.”   General Statutes § 1–1f(b) states that:  “An individual is physically disabled if he has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device.”   The record is void of any evidence of disability aside from the defendant's own unsupported statement that she is an “emotional mess.”   Similarly, there is no evidence regarding the type or number of dwelling units that comprise the premises.   Additionally, “[t]he term physical disability, as used in 1–1f, does not include mental disability.   To hold otherwise would be to distort the plain meaning of the phrase physical disability and to stretch its meaning beyond its commonly understood definition.”   Ashley Willard Asylum v. Rodriguez, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. SPH–9302–68806 (Oct. 19, 1993, Holzberg, J.) (1993 Ct.Sup. 8561) [10 Conn. L. Rptr. 209].

The defendant alternatively claims that the eviction in the present action is retaliatory in nature.   Under Connecticut General Statutes § 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 must establish a legitimate interest in the eviction.   Chaney v. Chaney, Superior Court, judicial district of Hartford at Hartford, Docket No. HDSP–158203 (Oct. 10, 2010, Oliver, J.).   A good faith request for repair, however, does not invoke the application of § 47a–20 unless the repair requested is necessary to maintain the leased premises in a fit and habitable state.   Visco v. Cody, 16 Conn.App. 444, 451–54, 547 A.2d 935 (1988).

In contrast, Connecticut General Statutes § 47a–33 establishes the affirmative defense of retaliation.   No presumptions are permitted and the tenant is required to prove that the landlord's primary motive in initiating the eviction was in retaliation for the tenant's exercise of his statutory right to report housing code violations to the appropriate authorities.   The burden for this affirmative defense rests upon the tenant who asserts it.   Gofman v. Almeida, Superior Court, judicial district of New Britain at New Britain, Docket No. NBSP–046592 (Sept. 22, 2006, Bentivegna, J.)

There are two significant differences between the retaliatory statutes.   Under Connecticut General Statutes § 47a–33, the tenant must have registered a complaint to some municipal or made some equivalent effort to remedy the condition, whereas under § 47a–20(3), a complaint can be made to the landlord directly.   Under § 47a–33, a tenant may raise retaliation as an affirmative defense which the tenant must then prove by a preponderance of evidence, whereas § 47a–20(3) 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 by proving a legitimate interest in the eviction.  Grant v. Urban Developers, LLC, supra, Superior Court, Docket No. CVH–514.

In this instance, the defendant claims that she complained to the landlord directly.   Having reviewed and assessed the evidence, the court finds credible the plaintiff's testimony and, as such, finds that the landlord has a good faith basis for ending the landlord-tenant relationship in that the lease has lapsed and was never intended to extend for a prolonged period of time.   The court finds that the defendant has failed to establish a defense of retaliation.   Additionally, there is no evidence that the leased premise is unfit and uninhabitable.   As such, the court finds that the defendant has failed to establish, by a fair preponderance of the evidence, this special defense.

Accordingly, the court enters judgment for immediate possession to the plaintiff against the defendant.

Pavia, J.

Pavia, Robin, J.