Anna T. Pollansky v. Steven Pollansky et al. (2012)

MEMORANDUM OF DECISION

In this summary process action, the plaintiff, Anna T. Pollansky, seeks a judgment of immediate possession of property located off Goose Lane in Coventry Connecticut, presently occupied by her son, Steven Pollansky, his family and his and his wife's business.   In addition to Steven Pollansky, the defendants are:  Darby Pollansky, Steven's wife, Kyle and Anna Pollansky, Steven's and Darby's children and the plaintiff's grandchildren, Pollansky Construction, LLC and Skyland Properties, LLC, Steven and Darby's businesses.   The plaintiff claims that although the defendants had the right or privilege to occupy the property, their right or privilege has terminated.   The plaintiff seeks immediate possession of the property.   The defendants deny the essential allegations of the complaint and have pleaded two special defenses.

A trial in this case was held on January 6, 2012 and January 27, 2012, at which the court heard the testimony of witnesses, including the plaintiff and defendant Steven Pollansky, and received a number of exhibits.   The parties filed post-trial briefs.

The court finds the following facts.

The plaintiff, and her now deceased husband, Andrew Pollansky, purchased the Coventry property in the 1960s, and held it jointly until Andrew's death on July 25, 2010.   Anna and Andrew purchased the property as a location for their business but also as an investment for their retirement.   When Andrew died on July 25, 2010, the plaintiff became the sole owner of the property and was the sole owner when the complaint was filed and at the time of trial in this case.   The property consists of three adjoining parcels of land totaling 84.5 acres, which has frontage on Goose Lane in Coventry.   Over the years, the property has been used for commercial and recreational purposes.   There are no residences on the property.   From the time that they purchased the property in the 1960s to the present, Andrew and Anna, and after Andrew's death, Anna, paid all of the property taxes and other expenses on the property.

Andrew Pollansky operated a sand and gravel business on the property until he retired in approximately 1992.   The defendant Steven Pollansky worked with his father in his father's business on the property from his teen years until his father retired.   When Andrew retired, he and Anna permitted Steven and the other defendants' access to the property for recreational purposes and to operate their business.   There were never any written agreements or leases between Anna and/or Andrew and Steven and/or the defendants that allowed the defendants to continue to operate a business on the property but all parties agree that the defendants had Andrew's and Anna's permission to do so.

Although Steven claims that Andrew promised to give him the property when he died, the defendants did not produce any written agreements or testamentary documents memorializing Steven's claim that his father promised to give him the property when he died.   In fact, the written documents produced reflect that as a co-owner of the property, at Andrew's death the property would be Anna's, and vice versa, absent countervailing agreement or testamentary gift of Andrew's fifty percent of the property to Steven.   In addition, the plaintiff disputes Steven's claim that she and/or Andrew promised the property, or any portion of the property, to Steven at Andrew's death.   Anna testified that in addition to Steven she and Andrew have two daughters who also would have a future interest in the property.   In addition, the property was purchased by Anna and Andrew for investment and retirement purposes in addition to business purposes.   The court credits the plaintiff's testimony on this point and finds that defendant Steven has failed to prove that Andrew made any legally binding oral promise to leave the land to Steven when he died.

After Andrew died, and without the plaintiff's permission, the defendants changed the locks on the property and the plaintiff had difficulty entering her property.

The plaintiff, who is in her eighties, wishes to sell or rent the property to subsidize her income.   The plaintiff has asked the defendants to pay her rent for the use of the property for their business, but the parties have not been able to come to any agreement on rent.   As a result, the plaintiff asked the defendants to vacate the property so that she can sell or rent it to obtain additional income, but the defendants have refused to do so.

On April 28, 2011, the plaintiff served on the defendants a valid notice to quit possession of the property on or before May 11, 2011 for the reason that:  “The premises described above is being occupied by one who originally had the right or privilege to occupy such premises but such right or privilege has terminated (Conn.Gen.Stat. § 47a–23(a)(3)).”   The defendants did not vacate the premises on or before May 11, 2011, and the plaintiff then brought this action seeking a judgment of immediate possession.

The court finds the issues for the plaintiff and rejects the defendants' two special defenses.

Discussion

A. The plaintiff's summary process action

“ ‘Summary process is a special statutory procedure designed to provide an expeditious remedy ․ It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms ․ Summary process statutes secure a prompt hearing and final determination ․ Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.’  (Citations omitted;  internal quotation marks omitted.)  Young v. Young, 249 Conn. 482, 487–88, 733 A.2d 835 (1999).”  Bristol v. Ocean State Job Lot Stores of Connecticut, 284 Conn. 1, 5, 931 A.2d 837 (2007).  “ ‘The ultimate issue in a summary process action is the right to possession.’  Southland Corp. v. Vernon, 1 Conn.App. 439, 443, 473 A.2d 318 (1984).”  Tinaco Plaza, LLC v. Freebob's Inc., 74 Conn.App. 760, 766–67, 814 A.2d 403 (2003).

General Statutes § 47a–23(a), which governs summary process actions, provides in relevant part:  “When the owner or lessor ․ desires to obtain possession or occupancy of any land or building, any apartment in any building, [or] any dwelling unit ․ and (1) when a rental agreement or lease of such property, whether in writing or by parole, terminates for any of the following reasons:  (A) By lapse of time;  (B) by reason of any expressed stipulation therein ․ (E) nonpayment of rent when due for commercial property ․ or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated ․ such owner or lessor ․ shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit ․” General Statutes § 47a–23(b) also directs that a notice to quit shall include the reasons that the lessee or occupant must quit the premises, “using the statutory language or words of similar import ․” The statutory definition of “owner” is set forth in General Statutes § 47a–1(e):  “ ‘Owner’ means one ․ in whom is vested (1) all or part of the legal title to property or (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises ․”

A party seeking summary process must allege and prove ownership, or that it acts as the legal representative of an owner, of the subject property and asserts a demand for possession in the form of a notice to quit.  Scott v. Heinonen, 118 Conn.App. 577, 586, 985 A.2d 358 (2009).

The court finds that the plaintiff has proved that she is the owner of the property, that after her husband's death she continued to permit the defendants to operate a business on the property, and that the plaintiff terminated her permission when she asked the defendants to vacate the premises and then served on them a valid notice to quit.   Despite their permission to occupy the premises having been properly terminated by the plaintiff, the defendants have remained in possession of the property.

Thus, based on these findings, the court concludes that the plaintiff has proved her summary process claim under § 47a–23(a).

B. Defendants' Special Defenses

The defendants' have asserted two special defenses to this summary process claim, that (1) “One or more of the Defendants occupy the premises not pursuant to the permission given as a tenant, but rather pursuant to an ownership interest in the premises granted by Andrew Pollansky;” and (2) “As to Defendants, Kyle Pollansky and Anna Pollansky, their period of occupancy derives not from having been given permission to occupy, but rather from their having turned 18.”

“ ‘[E]quitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding.’  Fellows v. Martin, 217 Conn. 57, 62–63, 584 A.2d 458 (1991).”  Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 777, 627 A.2d 386 (1993);  see also Housing Authority v. Martin, 95 Conn.App. 802, 814, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006).

In their first special defense, the defendants assert that they have an “ownership interest” in the property “granted to defendant Steven Pollansky by Andrew Pollansky.” ¹  The court finds that the defendants have failed to prove this special defense.

In support of this special defense, in their brief, the defendants cite General Statutes § 47–30 and recount the defendants' trial testimony regarding the “extensive improvements that they made to the land ․” Defendants state that their “interest” in improving the land “must be addressed before their can be any claim to put the defendants off the land.”   In the conclusion of their brief, the defendants seek “compensation.”   The court rejects this claim.

General Statutes § 47–30 is entitled “Ejectment, Set-off of defendant's improvements” and provides, in relevant part:  “Final judgment shall not be rendered, in any action to recover the possession of land, against any defendant who has, in good faith, believing his title to the land in question absolute, made improvements on the land before the commencement of the action, or whose grantors or ancestors have made the improvements, until the court has ascertained the present value of the improvements and the amount reasonably due the plaintiff from the defendant for the use and occupation of the land.   If the value of the improvements exceeds the amount due for use and occupation, execution shall not be issued until the plaintiff has paid the balance to the defendant or into court for his benefit.”

Section 47–30 is located in Title 47, Chapter 821 of the General Statutes, and pertains to ejectment actions and specifically allows for set-off of defendant's improvements in an ejectment action and not a summary process action.   The defendants have provided no authority, and the court is aware of none, applying § 47–30 as a special defense to a summary process action under § 47a–23, which is located in a different title, 834, and chapter, 47a, of the General Statutes.   In fact, the one decision the court was able to find, rejected such a defense to a summary process action.   Norling v. Anthony, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. 99 0175669 (January 2, 2001, Tierney, J.) (§ 47–30 “is not applicable to and does not implicate the right to possession in summary process eviction actions.”).

It is well established that:  “[T]he nature of a summary process proceeding under the [Landlord and Tenant] Act is one for possession and any responsive pleading must be related to the issue of possession or occupancy.   A counterclaim that seeks relief in the form of compensatory and punitive damages is not permitted in a summary process action because prayers for monetary relief do not implicate the right to possession.  Fellows v. Martin, 223 Conn. 152, 154, [611 A.2d 412] (1992) ․ Complaints and counterclaims seeking money damages are not permitted in summary process lawsuits, either tenant, against landlord or landlord against tenant.  Atlantic Refining Co. v. O'Keefe, 131 Conn. 528, 531, 41 A.2d 109 (1945).”  (Internal quotation marks omitted.)  Fellows v. Martin, 217 Conn. 57, 70 (1991);  Perrone Realty, LLC v. J & P Enterprises of New Milford, LLC, Superior Court, Judicial District of Litchfield, Docket No. CV 1810093 (July 22, 2005, Shaban, J.) (39 Conn. L. Rptr. 696);  see also Qeriqi v. Slep, Superior Court, judicial district of Hartford, Housing Session., Docket No. 141726 (November 23, 2007, Peck, J.) (“Claims for money damages, however, are not permitted in summary process cases.”)   Thus to the extent the defendants seek compensation for improvements made to the property such claims are not permissible in this summary process action.

Accordingly, the court rejects the defendants' special defense of “ownership interest” and a set-off for improvements made to the property based on General Statutes § 47–30.²

To the extent that the defendants' special defense of an “ownership interest” in the property is based on defendants' claims that Andrew Pollansky orally promised him the property, the court rejects this claim as well.   The defendants produced no credible evidence to support this claim.   The defendants did not provide any written documents, including, letters, testamentary documents, deeds, contracts signed or authored by Andrew or Anna granting Steven, or any of the defendants any interest in the property.   Although Anna and Andrew permitted the defendants to operate a business on the property, such permission was not intended, and did not create, an ownership interest in the property.

The only evidence that Andrew promised to give the property to Steven was Steven's testimony concerning the hearsay statements ³ of Andrew that the “operations would be his someday” and that Andrew would not have the property without Steven's help.   Darby Pollansky also testified regarding a hearsay statement she overheard Andrew say during the last week of his life that he would leave the property to Steven.   Putting aside whether such oral statements, if true, would be sufficient to create an ownership interest in the property, the court does not credit Steven's or Darby's self-serving and unsupported testimony that Andrew orally promised to leave the property to Steven.⁴

Steven and Darby's testimony is at odds with Anna's testimony, who testified credibly that she was not aware that her husband had made any such promises.   As a co-owner of the property and Andrew's wife, if such statements were made, Anna would likely been aware of her husband's wishes.   Moreover, as a co-owner of the property, Anna's interest in the property could not be given away without her consent.   When Andrew died she became the sole owner.   The court credits Anna's testimony that she and Andrew would not have left the property to only one of her three children and that she and Andrew viewed the property as an investment to be used for their retirement.   Thus, even if Steven could gain an interest in the property by virtue of the oral promise of one of the owners of the property, the court does not credit Steven's statements that such a promise was ever made in this case.⁵

Finally, the defendants make a claim that the business is part of the land and cannot be separated from the land, and therefore, it would be inequitable for the court to evict them from the property.   The defendants have this backwards.   Subject to equitable considerations, to the extent that the business cannot be separated from the land, then the business stays with the land, not the other way around.   See Seaboard Oil Co. v. Williamson, 1 Conn.Sup. 47, 57 (1935) (judgment against lessee in summary process action causes lessee to “lose not only possession of the land, but lose this business, while [lessor] will retake the land and also all of the valuable improvements made to the land by the [lessee]”).   Moreover, the court finds the equities in favor of the plaintiff.   The defendant Steven Pollansky has been allowed to work for his father on the property since he was a teenager.   Since 1992, when his father retired, Steven and the other defendants have been allowed to operate a business on the property rent free, while the plaintiff and Andrew continued to pay most of the expenses for the property including the property tax.   Thus, the court would find the equities for the plaintiff in this case.

The defendants' second special defense pertains to Steven's two children, Kyle and Anna Pollansky.   The defendants assert that the notice to quit was invalid as to them.   Both Anna and Kyle were eighteen years old when they were served with the notice to quit because like their parents, had the plaintiff's permission to occupy the property.   That permission has since been terminated by the plaintiff.   In order for the plaintiff to ensure that all persons with possession of the property are subject to the order of this court granting the plaintiff immediate permission it was necessary for the plaintiff to serve all possible defendants.   See § 47a–23(c) (“A copy of such notice [to quit] shall be delivered to each lessee or occupant ․ by a proper officer or indifferent person.”);   see also Foster v. Smith, 91 Conn.App. 528, 536–37, 881 A.2d 497 (2005) (“the Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process”).   The court finds that the plaintiff properly did so, and the notice to quit was valid.   Thus, the court rejects this special defense.

Conclusion

For the forgoing reasons, judgment of immediate possession shall enter in favor of the plaintiff.   The defendants have failed to establish their special defenses.

Cobb, J.

FOOTNOTES

FN1. To the extent that the defendants have asserted other purported defenses in their brief that were not asserted as special defenses in their answer and special defenses the court is not required to consider them.   Practice Book § 10–50 (“Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action must be specially alleged.”).  FN1. To the extent that the defendants have asserted other purported defenses in their brief that were not asserted as special defenses in their answer and special defenses the court is not required to consider them.   Practice Book § 10–50 (“Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action must be specially alleged.”)

FN2. Even if § 47–30 applied to a summary process action, it only applies to a defendant who “in good faith, believ[ed] his title to the land in question is absolute ․” when he made the improvements.   Here the court does not find this to be the case.   To the extent any improvements were made by the defendants, they were done at a time when there was no question from the land records that the plaintiff and/or the plaintiff and her husband owned the property.   Thus, even if the statute applied to this summary process action, it does not apply to these defendants who the court finds knew or should have known that the plaintiff owned the property.   Moreover, because this statute is in the nature of a set-off, it must be pleaded that way.  Practice Book § 10–54.   Even if § 47–30 applied to a summary process action, which the court has found it does not, the defendant has not properly pleaded a set-off and sought a monetary remedy in his answer and, therefore, would not be entitled to any relief for any improvements made to the property, even if such relief was allowable here..  FN2. Even if § 47–30 applied to a summary process action, it only applies to a defendant who “in good faith, believ[ed] his title to the land in question is absolute ․” when he made the improvements.   Here the court does not find this to be the case.   To the extent any improvements were made by the defendants, they were done at a time when there was no question from the land records that the plaintiff and/or the plaintiff and her husband owned the property.   Thus, even if the statute applied to this summary process action, it does not apply to these defendants who the court finds knew or should have known that the plaintiff owned the property.   Moreover, because this statute is in the nature of a set-off, it must be pleaded that way.  Practice Book § 10–54.   Even if § 47–30 applied to a summary process action, which the court has found it does not, the defendant has not properly pleaded a set-off and sought a monetary remedy in his answer and, therefore, would not be entitled to any relief for any improvements made to the property, even if such relief was allowable here.

FN3. The plaintiff objected on hearsay grounds to the introduction of these hearsay statements, and the court reserved decision on the objection until it rendered its decision.   Because the court found the hearsay statements incredible, it is unnecessary to determine if they are hearsay..  FN3. The plaintiff objected on hearsay grounds to the introduction of these hearsay statements, and the court reserved decision on the objection until it rendered its decision.   Because the court found the hearsay statements incredible, it is unnecessary to determine if they are hearsay.

FN4. The plaintiff claims that because the promised interest was an interest in real property, under the statute of frauds, it would have had to be in writing and properly notarized.   Since the court does not find that Steven's testimony was credible on this point, it is unnecessary for the court to render a finding on this issue of the applicability of the statute of frauds to the defendants' special defense..  FN4. The plaintiff claims that because the promised interest was an interest in real property, under the statute of frauds, it would have had to be in writing and properly notarized.   Since the court does not find that Steven's testimony was credible on this point, it is unnecessary for the court to render a finding on this issue of the applicability of the statute of frauds to the defendants' special defense.

FN5. To the extent there is any difference in the defendants claim to an “ownership interest” and their claim of a “constructive trust,” the court rejects the constructive trust claim for the same reasons.   It was simply not credible for Steven Pollansky to believe that he earned any interest in the property by virtue of the fact that his parents allowed him to use their property for his business, which he profited from, without providing any payments to his parents over a period of many years..  FN5. To the extent there is any difference in the defendants claim to an “ownership interest” and their claim of a “constructive trust,” the court rejects the constructive trust claim for the same reasons.   It was simply not credible for Steven Pollansky to believe that he earned any interest in the property by virtue of the fact that his parents allowed him to use their property for his business, which he profited from, without providing any payments to his parents over a period of many years.

Cobb, Susan Quinn, J.