Patrick Foltz v. Gloria Garcia et al. (2013)

MEMORANDUM OF DECISION

The parties to this summary process action are self-represented.   The plaintiff landlord, Patrick Foltz, filed this action seeking to recover possession of the premises at 69 Maple Avenue, New London, Connecticut.   The named defendants/tenants are Gloria Garcia, her partner, Jose Sandoval and Garcia's daughter, Tamixa Sandoval.   The defendants live together, along with Garcia's minor son, Angel Rivera, at the subject premises.   The plaintiff alleges nonpayment of rent.   The defendants admit that they stopped paying rent, but claim that their nonpayment was due to the non-habitability of the premises.

FACTS AND PROCEDURAL HISTORY

The record reflects the following relevant facts and procedural history.

The defendants Jose Sandoval and Garcia signed a lease with the plaintiff on November 15, 2012, for a residential rental at the subject premises at the rental rate of $600 per month, payable on the first day of each month.   Plaintiff's exhibit 1. Although the lease was to commence on December 1, 2012, the defendants were allowed to move in on the date the lease was signed.   On May 10, 2013, the plaintiff caused a notice to quit to be served on the defendants, notifying the defendants that they were required to quit possession of the premises on or before May 16, 2013.   On May 21, 2013, the plaintiff filed this summary process action, alleging nonpayment of rent.   The defendants admit that they stopped paying rent in May 2013, but that their nonpayment was due to the condition of the premises.   The defendants also allege that one or more of the occupants is disabled.   A trial on the merits was held on August 2, 2013.

The parties had an agreement at the commencement of the lease that the defendants would fix certain damages to the property in exchange for a reduced rent.   The defendants claim that when they moved into the premises, they were unaware of the extent of the damage to the premises.   It was not until the defendants removed the belongings of the prior tenant—someone with whom the defendants were familiar—that they were able to see the extent of the damage to the premises.   No specific evidence was offered at trial regarding the extent of the repairs performed by the defendants.

The defendants paid the rent until May 2013, when they stopped paying due to the condition of the property.   At the time of trial, conflicting evidence was offered regarding the amount of the arrearage owed by the defendants.   The plaintiff testified that the amount due was $2,000 or $2,600, and no party offered any record of the exact amount of the arrearage.   Defendant Garcia offered receipts of rent payments, but none were for payment of rent due for May 2013, or beyond.   See Defendants' exhibit A. The uncontroverted evidence at trial was that the defendants failed to pay the $600 rent that was due and owing for the month of May 2013, and the use and occupancy fees for the months after the notice to quit was served.

Although not specifically testified to at trial, the defendants inferentially claim that they were legally justified in not paying rent because the premises were uninhabitable.   The premises suffered from water leaks, roof and door damage, and other damage.   Defendants' Exhibits B–1 through B–34 is a series of photographs offered by the defendants of the premises to support their claim that the premises were uninhabitable.   The defendants further claim that two of the occupants, defendant Tamixa Sandoval and Rivera, suffer from disabilities.   Garcia testified that Rivera suffers from attention deficit hyperactivity disorder, chronic asthma, anxiety and depression, and that Tamixa Sandoval suffers from a mental disability for which she had previously received social security insurance, and for which she would, in the future, again be receiving social security insurance.   Garcia testified that Rivera's chronic asthma started in December 2012;  Jose Sandoval testified that it started at the beginning of 2013.   No medical or other evidence was offered at trial to support the testimony regarding the claimed disabilities.

The plaintiff testified that the premises were habitable, and that it was not until after the plaintiff commenced this summary process action that the defendant Garcia made a complaint to the City of New London Housing Authority regarding the condition of the property.   See Defendants' exhibit C, July 24, 2013 report of inspector.   The plaintiff claims that Garcia made the housing complaint, not because the premises were uninhabitable, but because the plaintiff threatened to evict the defendants for nonpayment of rent.

II. LEGAL AUTHORITY

The purpose of the statutory summary process action is to allow landlords an expedited procedure to obtain possession of leased premises, where tenants are in unlawful possession, without the delay of common-law actions.  Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987);  Pollansky v. Pollansky, 144 Conn.App. 188, 191 (2013);  Bray v. Bray, 51 Conn.Sup. 133, 137–38, 978 A.2d 582 (2008).   The standard of proof in a summary process action is a fair preponderance of the evidence.   A fair preponderance of the evidence standard is “the better evidence, the evidence having the greater weight.”  (Internal quotation marks omitted.)  Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

The plaintiff's claim of possession in the instant summary process action is nonpayment of rent.  General Statutes § 47a–15a.   In order to prove that he is entitled to possession under the lease agreement, the plaintiff must prove the following:  (1) the landlord and tenant entered a written or oral agreement, on or about a certain date, for use and occupancy of a certain premises based on a certain term;  (2) the tenant agreed to pay a certain rent on a certain date;  (3) the tenant took possession of the premises pursuant to the lease;  (4) the tenant failed to pay the rent pursuant to the lease agreement;  (5) the landlord served the tenant with a proper notice to quit possession on a certain date;  (6) the tenant remains in possession, although the time to quit possession in the notice has lapsed.   41 Talcott, LLC v. Cutter, Superior Court, judicial district of Tolland, Docket Nos. CV–11–4016092–S and CV11–4016107–S (June 28, 2012, Baldini, J.), citing Granjales v. Morales, Superior Court, judicial district of New Britain, Docket No. 045613 (May 1, 2006, Bentivegna, J.);   see also General Statutes §§ 47a–23 to 47a–23b;  Pollansky v. Pollansky, supra, 144 Conn.App. 192–94 (termination of the right or privilege to occupy the premises need not occur separately from the notice to quit).

Certain protections from the summary process action exist for individuals with a physical or mental disability, when such individual is a child of a tenant and lives permanently with the tenant, 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 § 47a–23c(a)(1)(B).  To determine whether a tenant is a protected tenant, the landlord may request proof of such a disability.  General Statutes § 47–23c(d).  Upon request, the tenant shall provide proof of such disability, and in the case of claimed physical disability, the proof shall include the statement of a physician.  General Statutes § 47–23c(d).

A

Plaintiff's Summary Process Complaint

Based upon all of the evidence at trial, including the exhibits and testimony, as well as the court record, the court finds the following facts by a fair preponderance of the evidence:

(1) On November 15, 2012, the plaintiff and the defendants Jose Sandoval and Garcia entered into a written lease agreement, which lease was to begin on December 1, 2012;

(2) Although the written lease agreement does not specify the address of the rental, the parties intended that the written agreement apply to the premises located at 69 Maple Street, New London, Connecticut;

(3) The defendants agreed to pay monthly rent in the amount of $600 on the first day of each month;

(4) The defendants took possession of the premises on November 15, 2012, pursuant to the parties' oral agreement;

(5) The defendants failed to pay the rent on May 1, 2013, and for all subsequent months to and including the date of trial, August 2, 2013;

(6) The plaintiff caused a proper notice to quit to be served on the defendants on May 10, 2013, based upon nonpayment of rent, requiring the defendants to vacate the premises on or before May 16, 2013;  and

(7) Although the time given in the notice to quit has passed, the tenants remain in possession of the premises as of the time of trial.

B

Defendants' Special Defenses

In order for the defendants to succeed in their claim that their nonpayment of rent was justified due to non-habitability, they must prove by a preponderance of the evidence that the plaintiff has violated his statutory duties to comply with all building and housing codes, and to keep the premises in a safe, fit and habitable condition.  General Statutes § 47a–7(a).  “[T]he tenant has the burden of proving that no rent is due under General Statutes § 47a–4a because of health and housing code violations and the sanctions in General Statutes §§ 47a–7 and 47a–4a are not triggered unless the evidence establishes that there is a substantial violation or series of violations that create a material risk or hazard to the tenants.  [Bray v. Bray, supra, 51 Conn.Sup. 141] ․ ‘Whether the premises [are] uninhabitable to the extent that the tenant is relieved of the obligation to pay rent, depends on the facts of each individual case.’   Butt v. Lake, Superior Court, judicial district of New Haven, Housing Session, Docket No. CV 093280 (May 13, 2008, Crawford, J.).”   (Citations omitted;  footnote omitted.)  41 Talcott, LLC v. Cutter, supra, Superior Court, Docket Nos. Docket Nos. CV–11–4016092–S and CV–11–4016107–S.   Additionally, in order for the protections of § 47a–23c(a)(1) to apply, the defendants must prove, by a preponderance of the evidence, that Tamixa Sandoval and/or Rivera possessed a physical or mental disability, and that such disability can be expected to result in death or to last for a continuous period of at least twelve months.

Based upon all of the evidence at trial, including the exhibits and testimony, as well as the court record, the court finds that the defendants have failed to prove by a preponderance of the evidence that they were justified in not paying rent because the premises were uninhabitable.   The court finds that the photographs offered by the defendants, Defendants' exhibits B–1–B34, did not sufficiently prove that the premises were uninhabitable because the photographs did not prove the existence of a health and/or housing violation, or series thereof, which created a material risk or hazard to the tenants.   The court further finds that the defendants have failed to prove by a fair preponderance of the evidence that either Tamixa Sandoval or Angel Rivera at the relevant times possessed either a physical or mental disability as such disability is contemplated by § 47a–23c(a)(1).

III. CONCLUSION

The court finds that the plaintiff has proven by a preponderance of the evidence nonpayment of rent and all other requisite statutory elements of his summary process action against the defendants.   The court further finds that the defendants have failed to prove by a preponderance of the evidence their special defenses of retaliatory eviction and disability.   The court orders judgment in favor of the plaintiff.   The defendants are ordered to quit possession and vacate the premises on or before September 6, 2013.

Goodrow, J.

Goodrow, Karen, J.