Melanie Velazquez v. Deserie Brown (2013)

MEMORANDUM OF DECISION

The plaintiff landlord, Melanie Velazquez, commenced this action on July 9, 2013 to recover possession of the premises known as 29–31 Whittlesey Avenue, first floor, New Haven in two counts, lapse of time and right or privilege terminated.   The defendant tenant, Deserie Brown, filed an answer together with four special defenses, asserting alternatively that the action was filed within six months of Brown having complained of conditions within her apartment in violation of General Statutes § 47a–20 and § 47a–33, that the action constituted a discriminatory practice based on lawful source of income in violation of § 46a–64c(a)(1), that Brown's right or privilege has not terminated and that Velazquez failed to serve a timely notice to quit on the New Haven Housing Authority.   This last defense had been asserted by Brown within the context of a motion to dismiss and effectively disposed of in favor of Velazquez.   After an evidentiary hearing on September 24, 2013 the court (Maronich, J.) found that the Housing Assistance Payments (HAP) contract with Velazquez's predecessor in title had been terminated by the New Haven Housing Authority prior to the commencement of this action, that Velazquez had never entered into a HAP contract with the Housing Authority, that therefore no notice was due the Housing Authority, and further that Velazquez had nonetheless, out of an abundance of caution, served a timely copy of the notice on the Housing Authority.   The trial of this matter commenced on December 10, 2013 with both parties represented by counsel.

FACTS

The court makes the following findings of fact.   The subject property is a three-family house.   Brown has occupied the first-floor apartment since at least May 1, 2012 pursuant to the terms of a written one year lease (commencing May 1, 2012 and terminating April 30, 2013) with Velazquez's predecessor in title, Whittlesey Greens, LLC. At the time the lease was entered into Whittlesey Greens had a HAP contract for the first floor apartment with the New Haven Housing Authority and Brown was a HAP approved tenant.   During the term of the one-year lease Whittlesey Greens received subsidized rent payments for Brown's apartment from the New Haven Housing Authority.

During late winter and early spring of 2013 Velazquez was shopping for a home with her real estate broker, Denise Mirto.   Velazquez was a first-time home buyer.   She sought a multiple-family home, preferably a three-family home, so that the rents from the other apartments would subsidize her mortgage payments.   Velazquez testified that she intended to move into the first-floor apartment of whichever home she would purchase.   Her testimony was corroborated by that of Mirto who testified that the first-floor apartment was the focus of Velazqeuz in all of the homes that Mirto showed her.

Mirto first showed Velazquez 29–31 Whittlesey Avenue in late February.   Upon viewing all three apartments, Velazquez liked the house and first-floor apartment the most, considering it the most desirable of the three apartments.   Mirto agreed, testifying as only a real estate broker could, “the first floor apartment spoke to the both of us.”   She explained that although the first- and second-floor apartments were equal in square footage, the first-floor apartment had a much nicer entry with a large closet and it was, of course, more conveniently located.   Velazquez echoed the sentiment that the first-floor was more conveniently located, particularly because there were fewer flights of stairs to be traversed when accessing the basement.   It seemed irrelevant to Velazquez that she could get more rental income from the first-floor than the second, $85 per month to be precise, or that it might be easier to obtain possession of the second- or third-floor apartments if summary process actions became necessary.   More on this second point later.   Velazquez made an offer on the house and she and Whittlesey Greens entered into a purchase and sales agreement.

In an email dated March 9, 2013 to the attorney who would represent her at the closing, Velazquez emphasized her desire and concern about getting possession of the first-floor apartment upon closing, writing, “My only concern now, is being able to move into the 1st floor apartment once the section 8 tenant's lease is up April 10(sic) (if I close by then).   Are there any steps we will need to take beforehand to make sure I can move in?   Does she need certain notice?   Does the seller have to notify her now?   Let me know when you get a chance.”  (Ex. 2.)

February 23, 2013 would prove to be the first and the last time that Velazquez would view the interior of the first-floor apartment prior to the closing on May 9, 2013.   On that date Velazquez together with her broker, Mirto, and her building inspector inspected the apartment in the presence of Brown.   As they walked through, Brown pointed out her complaints about the condition of the apartment.   These included a loose faucet, loose kitchen tiles, an issue with a crack or separation in an area of the dining room floor, a cracked living room window, a hole near the front door and the front door not sealing properly resulting in a cold draft.   For her part, Velazquez recalls most of these complaints.   In the subsequent building inspection report the inspector noted that the house, over fifty years old, “has been lacking maintenance somewhat” and he further recommended that a potential asbestos issue in the basement be addressed and that the heating system be serviced prior to closing.   The seller did subsequently agree to remediate an asbestos problem by encapsulating the problem pipes, but the furnace was not serviced prior to the closing.   In addition the seller reduced the sales price by $4,000 in lieu of making repairs to the chimney.   In the coming months Brown would deny any further access to the apartment, going so far as to deny Velasquez or her agent Mirto the opportunity for a final inspection prior to closing.

On March 6, 2013 Brown's apartment was inspected as part of the annual HAP review and failed in several respects including:  several cracked windows, loose floor tiles, loose caulking around a bath tub, a non-weather tight front door seal, inadequate heating in a bedroom, a fence in a state of disrepair, a hole in a front hallway door and peeling paint.   The apartment was re-inspected again on April 18, 2013 and again failed.   Whittlesey Greens was advised in writing by the New Haven Housing Authority on that same date that the HAP agreement would be terminated effective May 31, 2013.   Although there is ample evidence that the seller, Whittlesey Greens, as well as the seller's real estate agent, Elizabeth Zakrzewski, were fully aware of the failure, there is no evidence that Velazquez, her agent Mirto or her attorney had knowledge from any source prior to the closing of the failure of the HAP inspection or, for that matter, of any complaint filed with, or of action taken by, New Haven's Livable Cities Initiative.

There is some evidence that prior to the closing there was discussion among the real estate brokers and attorneys as to which of the three apartments would be easiest to obtain possession of for Velazquez to occupy.   She was obtaining financing for the purchase from the Connecticut Housing Finance Authority and one of the conditions of the loan was that she take occupancy within sixty days of the closing.   There was an indication that perhaps the second-floor tenants had some difficulties meeting their rent obligations and that perhaps a non-payment eviction would be easier to pursue than a lapse of time eviction.   Nonetheless Velazquez persisted in her desire to occupy the first floor and, against the advice of her attorney, consummated the closing on May 9, 2013 without having any vacant apartment to move into.   This is borne out in a series of emails between Zakrzewski and the seller's attorney.  (Ex. E.) Velazquez's first act as landlord was to serve a notice to quit on Brown on May 9, 2013 immediately after the closing.   The summary process action predicated upon such notice was to ultimately fail, by Velazquez's own counsel's admission, because of a fatal error in the notice to quit.   The effort to evict Brown was re-commenced by service of a new notice to quit on June 28, 2013.   In the time between the services of these two notices there was never any discussion between Velazquez and Brown relative to a new lease agreement.

In the meantime Velazquez would come to learn of the failed HAP inspection and the termination of the HAP contract for Brown's apartment.   In a series of emails between Velazquez and Lakeya Moye of the New Haven Housing Authority commencing May 10, 2013, the day after the service of the notice to quit, Moye informed Velazquez of these facts.   Velazquez expressed shock that the seller had concealed these facts from her and she also indicated that she did not want to go through the re-certification process for a tenant who would be vacating.  (Ex. P.) Velazquez continued to correspond with Moye and based upon the desire to obtain some compensation for the remaining time that Brown would occupy the apartment during the pending summary process action and the belief she could obtain these interim rent payments, she explored the possibility of completing the repairs and sent a letter to Brown dated May 16, 2013 indicating she wanted to schedule an appointment to do the work requested for HAP approval.  (Ex. N.) When Velazquez subsequently learned that she could not receive any interim payments or use and occupancy payments but would have to sign a new lease with Brown for a year she abandoned the idea of completing the repairs and proceeded with summary process.

Sometime in June Brown's gas service had been terminated.   She sought to have the service turned on and to that end a serviceman came to the house on June 12, 2013 to inspect the gas service prior to restarting it.   In the course of the inspection he “red flagged” both the furnace for excessive carbon dioxide issues as well as the gas stove in Brown's apartment because it had no dedicated shutoff valve.   Brown communicated the problems and requested repairs of Velazquez through the parties' respective attorneys.   Both repairs were timely tended to by Velazquez.   As the court has already noted, the notice to quit on which the instant action is predicated was served on June 28, 2013.

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

DISCUSSION

Most of the factual allegations of Velazquez's complaint were admitted in the answer filed by Brown.   The factual allegations to which Brown has pleaded no knowledge, namely the facts surrounding the purchase of the property, are found to be proven.   As between Velazquez's two counts, lapse of time and right or privilege terminated, the court finds the allegations proven to support a judgment based on right or privilege terminated.   Lapse of time requires the existence of an oral or written weekly, monthly or yearly rental agreement.   Charles v. Lakes, Superior Court, judicial district of Hartford, Housing Session, Ct.Sup. 1553 (May 21, 2012, Oliver, J.).   The court finds that the rental agreement under which Brown claimed a legitimate right of possession terminated on midnight May 31, 2013.   Velazquez and Brown failed to enter into a subsequent rental agreement, yet Brown remains in possession of the premises.   As this court has noted, Brown's fourth special defense has been effectively disposed of by the denial of her motion to dismiss and the third special defense is merely a denial of the right or privilege claim.   The court will address Brown's two remaining special defenses in turn.

I

As to the first of these defenses, retaliatory eviction, Brown raises both General Statutes § 47a–20 as well as § 47a–33.  General Statutes § 47a–20 provides in pertinent part, “A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit ․ within six months after:  (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie;  (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation;  (3) the tenant has in good faith requested the landlord to make repairs ․” General Statutes § 47a–33 provides, “In any action for summary process under this chapter or section 21–80 it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, including contacting officials of the state or of any town, city, borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any of the provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie.”

“The retaliatory defense statutes, although outwardly similar in content, are nevertheless widely different in application.   Under § 47a–20, supra, the retaliatory eviction defense is not a right given to tenants, but rather a limitation upon the remedies of the landlord.   Upon the occurrence of one or more of four acts committed by the tenant, the landlord ‘shall maintain ․ [no] action ․ against a tenant to recover possession of a dwelling unit ․ within six months after ․’ Once the tenant has produced sufficient evidence to bring himself within one or more of those four actions, then a prima facie case will have resulted.   The presumption of § 47a–20 is rebuttable, and the landlord is permitted by substantial countervailing evidence to rebut it.   In essence, he will be required to establish a legitimate interest in the eviction.   The presumption is accorded as a matter of public policy.   It imposes upon the landlord not only the burden to produce substantial countervailing evidence but also the burden of proving facts which fairly put in issue the presumed fact ․ Conversely, § 47a–33 specifically establishes the retaliatory action as “an affirmative defense.”   No presumptions are permitted and the tenant, by affirmative proof, is required to prove that the landlord's primary motive in seeking an eviction was in retaliation for the tenant's exercise of his statutory right to report housing code violations to the appropriate authorities.   The burden of persuasion for this affirmative defense, therefore, rests upon the tenant who asserts it.”  Altieri v. Layton, 36 Conn.Sup. 261, 264, 408 A.2d 18 (1979).

With regard to the nature of the underlying housing code conditions complained of, “[t]he evidence clearly requires an interpretation of ‘repairs' ․ as meaning repairs of substantial code violations.   This court holds that repairs required to conform a dwelling unit to basic structural, mechanical and housing code regulations are the type of repairs which were contemplated by the legislature and which raise the presumption of retaliatory defense.”   Altieri v. Layton, supra, 267.

In addition, with respect to a retaliatory eviction defense under General Statutes § 47a–20a, General Statutes § 47a–20 imposes an additional limitation by providing the following, “Notwithstanding the provisions of § 47a–20, the landlord may maintain an action to recover possession of the dwelling unit if ․ the landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode ․”

Thus the two issues presented to this court in the instant case are first, whether the conditions complained of are substantial code violations and second, Velazquez's motivation in pursuing summary process.   With regard to the first issue the court finds that there is no credible evidence that any of the issues documented in the failed HAP report of March 6, 2013 amount to substantial code violations.   With respect to the issues with the gas furnace and the complaints made to Velazquez on June 12, 2013 the court finds that the defective conditions complained of are substantial code violations which relate to the health and safety of the occupants of the premises.

The inquiry now turns to Velazquez's motivation in pursuing the summary process action.   The court notes that the inquiry is essentially the same as it applies to whether Velazquez seeks “in good faith” to recover possession under General Statutes § 47a–20a or conversely under General Statutes § 47a–33 whether she brought the summary process action “solely because the defendant attempted to remedy” the code violations.   Velazquez has steadfastly maintained that she has wanted the first-floor apartment for her own use from the beginning, in fact she wanted a first-floor apartment before she even saw the house that she would eventually buy.  “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 factfinder 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 finds the testimony of Velazquez to be credible.   Further, the testimony of the real estate brokers and the documentary evidence introduced at trial provide more than adequate corroboration of Velazquez's intent.   Brown maintains that events which have transpired during the course of the pending litigation cast doubt on Velazquez's motives in commencing and maintaining the summary process action.   Brown points to emails to New Haven Housing Authority officials from Velazquez in which she falsely accuses Brown of misconduct and attempts to sabotage Brown's status as a HAP tenant.   In a recent letter to the Department of Public Health Velazquez accuses Brown of having tampered with the encapsulated asbestos in the basement of the premises.   There is no doubt that Velazquez's demeanor toward Brown has turned vindictive during the six months that this matter has been pending and Brown has been living in the first-floor apartment rent free.   Perhaps the seeds of Velazquez's distrust of Brown which has blossomed into anger and frustration were laid when Brown refused to cooperate with Velasquez and allow her access to the apartment to complete a final inspection at the time of the closing.   In any event such anger and frustration is neither evidence of a lack of good faith within the meaning of General Statutes § 47a–20a nor of a retaliatory intent under General Statutes § 47a–33.   For these reasons the court finds that Velazquez has commenced this action and continues to maintain it in good faith to recover possession of the first-floor apartment for immediate use as her own abode and without retaliatory motive.

II

As to Brown's second special defense, that Velazquez's refusal to enter into a HAP contract with the New Haven Housing Authority on behalf of Brown constitutes a discriminatory practice based on lawful source of income in violation of § 46a–64c(a)(1) and that such violation is an affirmative defense to this summary process action, the court notes that there exists no appellate authority directly on point.

In support Brown relies on a trial court ruling which denied a motion to strike a special defense which asserted a violation of § 46a–64c as a defense to a summary process action based on lapse of time.   See Ansonia Acquisition, LLC v. Francis, Superior Court, judicial district of Hartford, Housing Session, Ct.Sup. 14795 (November 18, 1999, Tanzer, J.) [26 Conn. L. Rptr. 363].

“There are other cases, however, which suggest that the use of discriminatory practices as a special defense might be legally impermissible.   In the Supreme Court case of Ossen v. Wanat, 217 Conn. 313, 585 A.2d 685, cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991), the defendants in a summary process action “sought permission to sell [a] mobile home on the leased premises in accordance with General Statutes § 21–79.”[fn.6] Id., 319.   The Court held that the defendants did not have a right to sell their mobile home, stating that, “[s]ection 21–79 nowhere permits a defendant to use its right to sell its mobile home to delay a summary process action.”  Id., 319–20.   The Court also stated, that “[w]e agree with the trial court's conclusion that the constitutional issues that the defendants attempted to raise ‘are far beyond the scope of the statutory action that is before the court’.”  Id., 318, 319 quoting 21 Conn.App. 40 at p. 46.   Further, in Evergreen Corp. v. Brown, 35 Conn.Sup. 549, 553, 396 A.2d 146 (1978), the appellate session of the Superior Court stated that “[i]t has always been the policy of the law to limit issues in summary process actions within the express scope of the statutory provisions.”  Id., 553.  “The necessary and only basis of a summary process proceeding is that the lease has terminated.”  Id. In Evergreen, the lease was terminated for nonpayment of rent.   The court stated in that case, “as a practical matter, the defendant's claim of discrimination [was] based on the alleged discriminatory treatment at the hands of the plaintiff, and ․ not ․ on the terms or existence of the parol lease.”  Id., 555.   The court questioned whether the defendant meant that the lease was illegal, or that the treatment received by him from his landlord was the basis of the alleged illegality.   If the latter were true, the court stated, “this issue would more appropriately be the subject of a different type of action and is totally inappropriate in a summary process action.”  Id.” Ansonia Acquisition, LLC v. Francis, supra.

Yet other courts have considered special defenses alleging violations of Connecticut's Fair Housing Act within the context of the court's equitable powers.  “These defenses allege unlawful discrimination in violation of both state and federal fair housing and anti-discrimination statutes ․ I considered viewing the [these] defenses as more traditional equitable defenses.   See, e.g., Fellows v. Martin, 217 Conn. 57 (1991).”   Harved Realty v. Leekoff, Superior Court, judicial district of Hartford, Housing Session, Ct.Sup. 15274 (November 24, 1998, Beach, J.) [24 Conn. L. Rptr. 29].   See also Meriden Redevel.   Agency v. Capital Video, Superior Court, judicial district of New Haven at Meriden, Ct.Sup. 7614 (September 4, 1991, Burns, J.).

In support of her claim that Velazquez acted with discriminatory intent based on lawful sources of income in violation of § 46a–64c(a)(1) in her refusal to enter into a HAP agreement to allow Brown to remain a tenant on the first floor, Brown offered evidence that Velazquez entered into favorable lease renewal agreements with both the second- and third-floor tenants, both non-HAP tenants, in July 2013, offering each the option to apply a portion of their respective security deposits to future rent.   Velazquez testified that she was comfortable with these tenants and made the offer as incentive for them to remain as tenants.   When questioned on cross examination whether she would rent either the second- or third-floor apartments to Brown as a HAP tenant, Velazquez responded that she would not rent any apartment to Brown, either as a HAP tenant or a non-HAP tenant, under any circumstances.   She elaborated that Brown rebuffed any attempts that Velazquez made to communicate with her either prior to or immediately after the closing and that she believed Brown to be dishonest and spiteful.   She did not believe that she and Brown could co-exist peacefully in the same house.   The court finds her testimony credible.

The court does not address the issue of the viability of a landlord's violation of § 46a–64c as a “stand alone” special defense in a summary process action.   Irrespective of whether such a defense is viable or whether it is more appropriately considered in the context of the court's equitable powers in ordering the remedy of a judgment of possession, the court finds the evidence upon which to base a finding of a violation of § 46a–64c based on lawful source of income insufficient and the factual allegations of this special defense unproven.

CONCLUSION

For the foregoing reasons and on the basis of the court's factual findings, the court finds the allegations of the complaint proven and the allegations of any of the defendant's several special defenses not proven.   Judgment for possession of the premises is entered in favor of the plaintiff, Melanie Velazquez, and against the defendant, Deserie Brown, based on right or privilege terminated.

Michael G. Maronich, Judge

Maronich, Michael G., J.