Opinion
No. SPN 9910-31769-NB
December 23, 1999
Memorandum Filed
This is a summary process action for nonpayment of rent for September 1999. The plaintiff has alleged that he and the defendants, Madeline Ramirez and Jose Baez, entered into an oral month to month lease for premises located at 28 Viets Street, First Floor in New Britain, Connecticut, for a monthly rental of $625.00. On September 20, 1999, the plaintiff served the defendants with a notice to quit the premises by September 27, 1999, because of their failure to pay the September rent. The defendants have pled the following special defenses: 1) Rent was offered to the landlord on September 26, 1999, which was before the date that the Notice to Quit was received; 2) the defendants notified the landlord and the Housing Code Inspector of violations; and 3) the eviction is retaliatory because the defendants contacted public officials or agencies with complaints about their apartment, pursuant to General Statutes §§ 47a-20 and 47a-33.
Sec. 47a-20. (Formerly Sec. 19-375a.) Retaliatory action by landlord prohibited.
A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled 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 good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants' union.
Sec. 47a-33. (Formerly Sec. 52-540a.) Defense that action is retaliatory.
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 obligation on the part of the defendant to pay rent or the reasonable value of the use and occupancy of the premises which are the subject of any such action shall not be abrogated or diminished by any provision of this section.
The pertinent facts found follow: In response to a tenant complaint that the hot water heater and furnace had been out for at least three days, co-owner Marcus A. Bordiere went to the premises on Sunday, September 19, 1999. He cleared water from the basement, fixed the hot water boiler, and told defendant Ramirez that he would return that week to fix the furnace. At that time he requested rent for September from defendant Ramirez but she refused to pay until he repaired the bathroom ceiling and until he returned to fix the furnace. At that point the plaintiff told Ramirez that he would evict her. The next day, Monday, September 20, 1999, at about ten in the morning, Housing Inspector John D. Salvetti, Jr. conducted an inspection of the premises in response to a complaint made by the defendants to the City of New Britain Building Department. By letter dated September 20, 1999, Inspector Salvetti cited the owners for numerous code violations, including "Smoke detectors required at the front and rear hallways [and] at all bedroom locations" and ordered them to "INSTALL (smoke detectors) IMMEDIATELY TO CODE." Re-Inspections were conducted on October 26, 1999 and November 3, 1999. The smoke detectors had been installed by October 26, 1999. Bordiere testified that he installed the smoke detectors on Columbus Day, a holiday which I judicially notice occurs in October.
I find the plaintiff sustained the burden to prove the defendants did not pay rent for the month of September and the other material allegations of his complaint necessary to prove his claim for possession. The defendants have the burden to prove their special defenses. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237 (1987).
The defendants allege a tender of rent prior to receipt of the notice to quit. A tender of rent by the lessee after a breach of the covenant of payment but before a declaration of forfeiture by some unequivocal act (such as service of Notice to Quit) by the lessor precludes the latter from completing a forfeiture of the lease. Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156 (1961). In order to maintain an action for summary process for the nonpayment of rent, the lessor must prove a termination of the lease prior to a tender of rent by the lessee. Simsbury Turnpike Realty v. Great AP Tea Co., 39 Conn. Sup. 367, 370 (App.Sess. 1983).
The defendants claim that rent was offered to the landlord on September 26, 1999, prior to the date of receipt of the Notice to Quit. The evidence is otherwise. The sheriff's return on the Notice to Quit indicates service was made on September 20. The sheriff's return is prima facie evidence of the facts stated therein; Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 390 (1957); and there is a presumption that the matters stated in the return are true. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 53 (1983). Moreover, the defendants have admitted the plaintiff's allegation that "On September 20, 1999, the plaintiff caused a notice to quit possession to be served on the defendant . . ." Accordingly, the defendants cannot prevail on this defense.
In their special defense pursuant to General Statutes §§ 47a-20 and 47a-33, the defendants allege they notified the landlord and public agencies of complaints about the apartment and claim the eviction is in retaliation. The Housing Inspector testified that he conducted an inspection on September 20, 1999 at about 10 in the morning. Sometime on that same day the defendants were served with Notice to Quit. While the temporal sequence of the complaints and service of the notice would be significant in deciding a claim of retaliatory eviction, I need not determine the point in this case because neither General Statutes § 47a-20 nor General Statutes § 47a-33 pertains where the reason for the eviction is nonpayment of rent. General Statutes § 47a-20a entitled "Actions deemed not retaliatory" states, "Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit . . . for nonpayment of rent . . ." This defense is not available to the defendants.
Although the defendants in their special defenses do not clearly articulate a defense to nonpayment pursuant to General Statutes §§ 47a-7 and 47a-4a, they have produced sufficient evidence at trial, primarily from an independent nonparty witness, to support such a claim.
Sec. 47a-7. Landlord's responsibilities provides in pertinent part:
(a) A landlord shall: (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof, (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators. supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes. garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.
(b) If any provision of any municipal ordinance, building code or fire code requires a greater duty of the landlord than is imposed under subsection (a) of this section, then such provision of such ordinance or code shall take precedence over the provision requiring such lesser duty in said subsection.
Sec. 47a-4a. Effect of failure to comply with section 47a-7.
A rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a-7.
In defense of a summary process action based on § 47a-7, the defendant must prove that the premises were in such a state in the month of nonpayment so as to render the premises unfit and uninhabitable. "[T]o establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable. Evergreen Corporation v. Brown, 35 Conn. Sup. 549, 552 (1978) (suggesting that a tenant `utilize the broad range of municipal boards, agencies, and commissions' to remedy defects)." Visco v. Cody, 16 Conn. App. 444, 450. These defendants have done that.
Based on the testimony of the Housing Code Inspector and his report, I find the lack of smoke detectors at the front and rear hallways and at all bedroom locations rendered the premises unsafe in September, the month of nonpayment and relieved the defendants of the obligation to pay rent. See Tucker v. Lopez, 38 Conn. Sup. 67, 69 (1982) (Failure to install smoke detectors constitutes a material safety hazard and tenants are relieved of obligation to pay rent during period detectors not installed).
Defendants' complaints included lack of hot water and heat and landlord's repeated failure to repair a leak from the second floor bathroom and the damage caused. I need not decide at this time whether or when those problems rendered the premises untenantable.
Judgment may enter in favor of the defendants.