David Fishbein v. John Oslander et al. (2013)

MEMORANDUM OF DECISION

The plaintiff landlord, David Fishbein, commenced this action on March 21, 2012 against the defendants, former tenant, John Oslander, and his brother Martin Oslander, claiming damages arising out of a landlord tenant relationship between the parties.   The complaint sounds in three counts.   Each is based on breach of contract with each count specifying a different way in which the plaintiff claims to have been damaged.   The defendants filed a counterclaim in three counts.   Count two arises out of the plaintiff's alleged failure to comply with the provisions of General Statutes § 47a–21 in the accounting and return of the defendants' security deposit.   Counts one and three claim violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110b et seq.  (CUTPA) in two respects, first, based on the plaintiff's failure to obtain a rental certificate of compliance and second, based on the aforementioned failure to comply with the provisions of the security deposit statute.   Both parties claim attorneys fees, the plaintiff pursuant to the terms of the written lease agreement between the parties and the defendant, pursuant to CUTPA and to the provisions of General Statutes § 42–110g(9).   This matter went to trial commencing on October 3, 2013.

FACTS

The court makes the following findings of fact.   The premises consists of a three-family home located at 865 East Center Street, Wallingford.   Fishbein has been the owner of the home since 1964 and resides in one of the apartments.   During the early summer of 1997 the apartment on the first floor became vacant and Fishbein approached Martin Oslander whom he had known since childhood, about renting the unit to Martin's brother, John Oslander.   John was disabled and needed a place to live that was convenient for his brother Martin to look in on him from time to time.   Fishbein and John Oslander entered into an initial one-year written lease on July 1, 1997.   Over the course of the years the parties entered into a number of successive written leases, the last of which covered the period August 1, 2006 through June 30, 2007.   At the expiration of that lease John Oslander held over as a month to month tenant until January 31, 2012.   Martin Oslander was never a party to any of these leases in any capacity.   John Oslander vacated the premises to enter long-term care because of injuries he sustained as the result of a fall.

By letter dated February 1, 2012 John Oslander, through counsel, requested a return of his security deposit of $650.00 paid at the inception of the lease on July 1, 1997 together with accrued interest from that date.   In response Fishbein provided an accounting on February 23, 2012 claiming damages totaling $2,400.00 against the security deposit.   At no time during the fifteen-year relationship between the parties did Fishbein pay the accrued interest on the security deposit due on the yearly anniversary of the lease nor did he escrow the security deposit in a separate account.   There was no evidence that this has been part of a pattern of conduct on the part of Fishbein with regard to any other residential apartments which he may own.

At the time of trial Fishbein testified that John Oslander, during the term of his fifteen-year tenancy, caused damages above and beyond normal wear and tear which included a torn screen door, a cracked front door, a dirty bathroom mirror and water damage to a bathroom vanity caused by repeated toilet overflows, moldy bathroom walls above the bath tub as well as damage to carpeting throughout the apartment.   Fishbein's claim for damages is notable in several respects in that he claims damages for items in addition to those in his accounting of February 23, 2012.   These include replacement of all of the carpeting in the apartment as well as torn linoleum in the kitchen.   Fishbein also claims as damages the cost of replacing an apparently otherwise functioning handicapped toilet which Martin Oslander installed for his brother John. Martin Oslander testified that the condition of the apartment at the time his brother moved in fifteen years earlier appeared “well lived in.”   He further testified that he received permission from Fishbein before installing the handicapped toilet, that one of the reasons he did so was because of the difficulty flushing the existing toilet and that the toilet overflows were apparently the result of an undersized waste pipe in the basement.   Martin Oslander testified that he went to great pains to place plastic mats on high trafficked portions of his brother's apartments to minimize wear and tear because he had known Fishbein all of his life and he knew “how particular” Fishbein could be.   Fishbein testified that he spent $6,257.79 to repair the damage caused by John Oslander yet his cancelled checks and receipts entered in evidence do not support such a claim.   Further, the cancelled checks and receipts submitted do not sufficiently delineate the cost of repair for each item so as to allow the court to determine what amount should be awarded for a particular item of damage which the court might find justified.   It is also noteworthy that this claimed amount is sharply inflated from the original claim of $2,400.00.

In addition to the claimed property damage, Fishbein also asserts that John Oslander owes an additional month of rent at $925.00 under a provision of the last written lease which provides that if the tenancy lapses into a month to month tenancy the tenant must provide a minimum of thirty days prior to terminating the lease.   The lease also provided that in the event the landlord employed an attorney to collect sums due as a result of the tenant's default, the tenant would be responsible for attorneys fees and costs to the extent allowed by applicable law.

The Town of Wallingford requires an inspection and issuance of certificate of compliance before any dwelling unit is let, and once let every five years thereafter.   Fishbein never obtained such inspection of certificate prior to renting the unit to John Oslander or at any time during the term of the tenancy.   Fishbein testified that he believed the inspection and certificate were not required because the home consisted of fewer than four residential dwelling units, one of which he occupied.   After John Oslander vacated, Fishbein did request an inspection and was issued a certificate after he corrected one violation.   The violation consisted of the absence of a ground fault circuit breaker on a separate circuit within six feet of the refrigerator.   The deficiency was corrected expeditiously and the certificate of compliance issued.

Further factual findings are set forth below when necessary to resolve the parties' specific claims.

DISCUSSION

“[I]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness's testimony.”  (Internal quotation marks omitted.)   Hoffer v. Swan Lake Ass'n., Inc., 66 Conn.App. 858, 861, 786 A.2d 436 (2001).

I

The court notes at the onset that Martin Oslander was not a party to any lease agreement between John Oslander and Fishbein.   There has been no legal or factual basis presented to the court at any time during these proceedings upon which to premise liability as to Martin Oslander.

II

As to Fishbein's claims against John Oslander, General Statutes § 47a–11(f) sets out the tenant's statutory duties, of which the most general is the duty to “not willfully or negligently destroy, deface, damage, impair or remove any part of the premises or permit any other person to do so.”   A tenant is thus liable for willful or negligent property damage.   Although Fishbein sets forth his claim as a breach of the lease agreement, the provisions of the lease concerning the tenant's responsibilities mirror those of the statute.

“Since tenant liability must be based on willful or negligent conduct, the mere fact of damage does not necessarily make the tenant liable ․ [T]he landlord must prove that (a) the damage occurred, (b) it exceeded normal wear and tear, and (c) it was caused by the tenant.   Damage may be shown either by direct evidence or circumstantially.   However, a tenant is not liable for damages that already existed when he moved into the apartment or for damage which occurred after he vacated.   Similarly, he is not liable for damage caused by persons for whom he is not responsible.”

“The tenant is also not liable for what is usually described as ‘normal’ or ‘reasonable’ wear and tear.   The determination of what is wear and tear, as distinct from what is property damage, is heavily dependent on the facts of the particular case;  but in general it refers to deterioration of or damage to the property which can be expected to occur from normal usage.”

“Wear and tear also includes normal repainting and cleaning which occur at the end of a tenancy.   The tenant is not liable for nail or pin holes in a plaster wall which would ordinarily be spackled as part of a routine repainting.   Each claim must be evaluated on its own merits, in light of the general principle that some wear and tear is inevitable in rental property.”

“The landlord must also establish sufficient evidence of the amount of the damage to remove a judgment from the area of speculation.   This will not ordinarily require expert testimony or appraisals, but it does require the presentation of some evidence from which a court can make a reasonable estimate of the amount to be awarded.”

“Property damage may be measured by repair cost or by value, as appropriate.   Replacement cost is not usually allowed.   Thus, if a tenant has destroyed or removed a landlord-provided carpet, the tenant's liability must be adjusted for the age and condition of the carpet, since the tenant is liable only for lost value.   While the court should not impose an unreasonable burden of proof, judges handling property damage claims in landlord-tenant cases have traditionally sought to make sure that such claims are legitimate and that the amount claimed as damages is not inflated.”  (Citations omitted.   Internal quotations omitted.)   Baroudjian v. Stribling, Superior Court, judicial district of Waterbury, housing session, Ct.Sup. 11802 (November 19, 1997, Levin, J.).

In light of the length of John Oslander's tenancy and the photographic evidence of the condition of the premises introduced by Fishbein at the trial, this court cannot conclude that the condition of the premises at the termination of the tenancy constituted anything more than reasonable wear and tear.   Further the court finds the testimony of Martin Oslander on the condition of the premises at the inception of the lease and on the cause of the repeated toilet overflows and subsequent vanity damage to be the more credible testimony.   This court finds the claims of damaged linoleum and the claimed necessity to replace all of the carpeting in the entire apartment, raised after the accounting of February 23, 2012, to be suspect.   Even if the court were to consider the claims valid, the evidence is insufficient for the court to separate out the cost of such repairs.   This court will certainly not award the cost of replacing a perfectly functioning handicapped toilet.   For the foregoing reasons the court finds Fishbein's claim for property damage to the apartment unproven.

As to Fishbein's claim of an additional month's rent, as noted, the last written lease provided that if the lease lapsed into a month to month tenancy the tenant must provide a minimum of thirty days prior to terminating the lease.   Because John Oslander vacated the premises and terminated the lease without such notice the court finds that he is liable to Fishbein in the amount of $925.00.

III

As to John Oslander's counterclaim under the security deposit statute, General Statutes § 47a–21(d)(2) provides in relevant part, “Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenant's forwarding address.   Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section after deduction for any damages suffered by such landlord by reason of such tenant's failure to comply with such tenant's obligations, together with a written statement itemizing the nature and amount of such damages.   Any such landlord who violates any provision of this subsection shall be liable for twice the amount or value of any security deposit paid by such tenant, except that, if the violation is the failure to deliver accrued the interest, such landlord shall only be liable for twice the amount of such accrued interest.”   General Statutes § 47a–21(d)(4) provides in relevant part, “Any landlord who does not have written notice of his tenant's or former tenant's forwarding address shall deliver and written statement and security deposit due to the tenant ․ within the time required by subdivision (2) of this subsection or within fifteen days after receiving written notice of such tenant's forwarding address, whichever is later.”

The court finds that Fishbein has complied with the requirement to provide an accounting within thirty days after the termination of the tenancy.   However, because Fishbein has failed to pay the annually accrued interest to John Oslander on the security deposit pursuant to the provisions of § 47a–21(i) he will be liable for twice the accrued interest over the fifteen year term of the lease in addition to the return of the security deposit itself.   The court calculates these amounts as follows:

Security deposit 650.00

Interest 7–1–1997 to 9–30–2013

the sum of $179.00 *2 pursuant

to § 47a–21(i) 358.00

Total 1,008.00

IV

As to John Oslander's CUTPA claims, violations of the Landlord–Tenant Act, General Statutes § 47a–1 et seq., may be a basis for a finding of a violation of CUTPA.  Conaway v. Prestia, 191 Conn. 484, 493, 464 A.2d 847 (1983).   In fact, John Oslander relies upon Conaway v. Prestia, in support of his claim that Fishbein's failure to have obtained the necessary inspections and certificates of compliance from the Town of Wallingford supports a damage award of all of the rent he has paid to Fishbein over the past fifteen years, a sum total of $118,777.00.   The facts of the instant case are not analogous to those of the Conaway case.   There is no evidence upon which the court can find that the failure to have a ground fault circuit breaker on a separate circuit within six feet of the refrigerator rendered the premises uninhabitable and constituted a serious threat to the health and welfare of the tenant.   Under the facts and circumstances of the instant case the court cannot find the failure to obtain the inspections and certificates of compliance to be a violation of General Statutes § 47a–21(h)(1).

The court finds that Fishbein's failure to deposit John Oslander's security deposit into an escrow account was a violation of General Statutes § 47a–21(h)(1).   Such a violation may support an award of punitive damages if landlord's conduct reveals reckless indifference to tenant's rights or intentional and wanton violation of those rights.  Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987);  Murphy v. Grigas, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 8903–3129 SW (December 4, 1992, Holzberg, J.).   The court finds that the facts and circumstances of the instant case do not support an award of punitive damages or attorneys fees.   The court further notes that John Oslander has failed to prove any ascertainable loss either from Fishbein's failure to obtain the inspections and certificates of compliance or to segregate the security deposit funds into a separate escrow account or to pay the annual accrued interest on the security deposit.   For the foregoing reasons the court finds John Oslander's CUTPA claim unproven.

CONCLUSION AND ORDERS

On the plaintiff's claim for breach of contract as to the defendant, Martin Oslander, judgment will enter in favor of the defendant, Martin Oslander.

On the claim for breach of contract pursuant to the first count of the plaintiff's complaint John Oslander owes David Fishbein the sum of $925.00.   On the second count of the defendant's counterclaim David Fishbein owes John Oslander the sum of $1,008.00.   For the foregoing reasons, the court enters judgment in favor of the defendant, John Oslander, against the plaintiff, David Fishbein, in the amount of $83.00 plus attorneys fees pursuant to General Statutes § 42–110g(9) to be determined by the court after hearing.

Michael G. Maronich, Judge

Maronich, Michael G., J.