Opinion
No. HDSP-150182
October 28, 2009
MEMORANDUM OF DECISION
The plaintiff, Donna H. Dudek, Trustee of the Felka trust, has brought this summary process action against the defendant, Errol Dudek seeking to recover possession of premises known as 893 Burbank Avenue, Suffield, Connecticut and additional land more particularly described in the plaintiff's complaint. The defendant has moved to dismiss the complaint on several grounds and the plaintiff has filed her objection thereto. The plaintiff and defendant were represented by counsel. Both parties filed lengthy memoranda of law in support of their arguments together with a Joint Statement of Stipulated Facts and Evidence (the "Stipulation"). For purposes of the hearing on the motion to dismiss and objection, the parties also submitted a copy of a family trust agreement and stipulated to ten factual matters in the Stipulation.
FACTUAL BACKGROUND
Based on the Stipulation submitted, the court sets forth the following factual background. The plaintiff and defendant are siblings. Fred C. Dudek Sr., now deceased, was the father of the plaintiff and defendant. Fred C. Dudek Sr. created a family trust known as the "Felka Trust" by trust instrument dated March 29, 2006 (the "Trust"). The beneficiaries of the Trust are the plaintiff, the defendant and their brother Fred C. Dudek Jr.. The plaintiff holds legal title to the subject premises in her capacity as the "Family Trustee" of the Trust. Karen Platt is the "Independent Trustee" of the Trust. The plaintiff resides in Maryland. The defendant resides at the subject premises where he has for most of his life. The parties have never entered into an agreement for the possession of the premises nor has the defendant ever paid any rent.
PROCEDURAL BACKGROUND
The plaintiff served the defendant with a notice to quit on November 4, 2008. The plaintiff's notice to quit asserts that the defendant originally had the right or privilege to occupy the premises but any such right or privilege has terminated. The plaintiff alleges in paragraph 3 of count one of her revised complaint that the defendant has been in possession of 893 Burbank Avenue, Suffield, Connecticut "without the permission of the Plaintiff and in paragraph 4 of count one that "During the time that the Defendant, Errol Dudek, has been in possession of said Premises, he has failed to pay any rent to the Plaintiff." In count two of the complaint, the plaintiff alleges that the defendant "has been in possession without permission of the Plaintiff of a second parcel of land described in the complaint as "Land on the Southerly side of Burbank Avenue and the Westerly side of Woodworth Street, Suffield Connecticut, as shown on Town of Suffield Assessor's Map 85H, Block 54, Lot 74."
The defendant has moved to dismiss the complaint on three grounds. The first ground asserted by the defendant is that the court lacks jurisdiction because the defendant is a co-owner of the premises with the plaintiff and a plaintiff may not maintain a summary process action against a co-owner. The second ground for dismissal raised by the defendant is his claim that a summary process action may not be maintained against a trust beneficiary "because the relationship between the parties is not one of landlord and tenant." The third ground for dismissal is the defendant's claim that the plaintiff lacks standing to maintain this action "because of the lack of unanimity of interest."
I. The First Ground To Dismiss (The defendant is an owner within the meaning of Connecticut General Statutes § 47a-1(e)).
The defendant argues that the plaintiff and defendant are both owners of the subject premises within the meaning of Connecticut General Statutes § 47a-1(e) and therefore the plaintiff lacks standing. § 47a-1(e) defines an owner as "one or more persons, jointly or severally, 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 and includes a mortgagee in possession." The defendant claims to be a beneficial owner as defined in subsection (2).
In his memorandum of law in support of his motion, the defendant cites Long v Fredericks, Superior Court of Connecticut, J.D. Hartford, Docket No. HDSP-105504, January 12, 2000 ( Tanzer, J.). Long involved a summary process action between siblings both of whom held equal legal interests in the title to the subject premises as a result of title having passed to them by the laws if intestacy. The court finds Long v. Fredericks to be clearly distinguishable from the present matter where legal title to the premises is held by the plaintiff trustee. The defendant also cites another Superior Court case, Sekeret, Trustee v. Zdanis, Jr., Superior Court of Connecticut, J.D. of Litchfield, Docket No. DV187692, April 19, 2001 ( Matasavage, J.). In Sekeret, the defendant transferred title to a building lot he owned to a trust and named the plaintiff as trustee. Subsequently, the defendant and the plaintiff constructed a home on the lot for their mutual use, in which they lived for seven years. In Sekeret, the court interpreted the terms of the trust as having provided for equal ownership and occupancy by the parties and the plaintiff trustee's summary process action was dismissed. The court finds Sekeret to be distinguishable from the present case and not supportive of the defendant's argument.
The defendant relies on Bender v. Nuzzo, Superior Court of Connecticut J.D. of New Haven, Docket No. SPNH 960747892, July 10, 1997 ( Levin, J.) in support of his argument that the defendant is a beneficial "owner" of the premises. In Bender, the court, having apparently found no controlling Connecticut case law, drew on Montana Catholic Missions v. Missoula County, 200 U.S. 118, 127-128, 26 S. Ct. 197, 50 13.Ed. 398 (1906); accord, Christiansen v. Department of Social Security, 15 Wash.2d 465, 131 P.2d 189, 191 (1942) to conclude that "With respect to the second part of the statutory definition of "owner", dealing with beneficial ownership, it has long been said that the term, in property law, means "such a right to its enjoyment as exists where the legal title is in one person and the right to such beneficial use or interest is in another, and where such right is recognized by law, and can be enforced by the courts, at the suit of such owner or of some one in his behalf." Bender at page 7. The defendant's argument, however, overlooks the fact that although it is clear that he has a beneficial interest in the premises, there has been no showing that he has any right to the present use and enjoyment of the premises, under the terms of the trust or otherwise. The defendant has merely shown that he happens to occupy the premises.
The court finds the defendant's first ground to dismiss the action to be unpersuasive.
II. The Second Ground to Dismiss. (The relationship between the parties is not one of landlord and tenant).
The defendant asserts that the plaintiff can not maintain the action because no landlord tenant relationship exists between the parties. The defendant cites Chomko v. Patmon, 19 Conn. App. 483, 563 A.2d 311 (1989), Yarborough v. Demirjian, 17 Conn. App. 1, cert denied, 209 Conn. 828 (1988), Logan v. Carrington Publishing Company, 16 Conn. Supp. 46 (1948) and Sekeret, Trustee v. Zdanis, Jr., supra, in support of its argument that a summary process action requires the existence of a landlord-tenant relationship.
In Chomko, the plaintiff brought a summary process action to recover possession of the plaintiff's condominium unit that was the subject of a bond for deed which provided for the sale of the condominium to the defendant. Rather than reading the dicta in Chomko as requiring an initial finding of the existence of a landlord tenant relationship in every summary process action as the defendant would have the court do, this court reads Chomko as finding, on the facts of that case, that the parties had entered into a contractual relationship which was more appropriately viewed and construed as an agreement to purchase real estate rather than a landlord tenant relationship.
In Yarbrough, the parties had executed a bond for deed for the sale of the plaintiff's premises to the defendant. While the closing never took place, the defendant took occupancy some three years later and began paying the plaintiff's mortgage, interest and taxes. In Yarbrough, the Appellate Court sustained the trial court's finding that the plaintiff's summary process action was proper under the facts and circumstances presented in that case. This court does not read Yarbrough as requiring a landlord tenant relationship in a summary process action.
The defendant acknowledges that General Statutes § 47a-23(a)(2) authorizes a summary process action in the absence of a landlord tenant relationship where the plaintiff brings the action against an occupant "who never had the right or privilege to occupy such premises." The defendant argues in his memorandum of law that the "never had a right or privilege to occupy" grounds set forth in § 47a-23(a)(2) is "an" exception to the requirement of a landlord tenant relationship but a "very specific one." The court does not agree with the implication in the defendant's argument.
A cursory reading of General Statutes § 47a-23 reveals the flaws in his argument. General Statutes § 47a-23 sets forth the grounds for the commencement of summary process actions. In the case where a rental agreement or lease exists, subdivision (1) of subsection (a) of General Statutes § 47a-23 provides, in relevant part: "(1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83; (E) nonpayment of rent when due for commercial property; (F) violation of section 47a-11 or subsection (b) of section 21-82; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80." Subdivision (2) of subsection (a) of § 47a-23 authorizes a summary process action to be brought "when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises." Subdivision (3) of subsection (a) of § 47a-23 authorizes a summary process action to be brought "when one originally had the right or privilege to occupy such premises but such right or privilege has terminated." Subdivision (4) of subsection (a) of § 47a-23 authorizes a summary process action "when an action of summary process or other action to dispossess a tenant is authorized under subsection (b) of section 47a-23c for any of the following reasons: (A) Refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of section 47a-23c, (B) permanent removal by the landlord of the dwelling unit of such tenant from the housing market, or (C) bona fide intention by the landlord to use such dwelling unit as such landlord's principal residence." Subdivision (5) of subsection (a) of § 47a-23 authorizes a summary process action "when a farm employee, as described in section 47a-30, or a domestic servant, caretaker, manager or other employee, as described in subsection (b) of section 47a-36, occupies such premises furnished by the employer and fails to vacate such premises after employment is terminated by such employee or the employer or after such employee fails to report for employment, such owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy." (Italics added).
In setting forth the grounds for the commencement of summary process actions, § 47a-23 differentiates between the terms "tenant" and "one" and clearly permits summary process actions absent a landlord tenant relationship in situations other than § 47a-23(a)(2). Subdivision (3) of subsection (a) of § 47a-23, like subdivision (2) of subsection (a), makes no reference to a landlord tenant relationship. To the contrary, subdivisions (2) and (3) of subsection (a) use the word "one" in contrast to subdivision (1) of subsection (a) which requires a rental agreement (and perforce a landlord-tenant relationship) and subdivision (4) of subsection (a) which permits summary process actions against "tenants." Moreover, § 47a-23(a)(5), by its express terms, permits summary process actions against employees and other employment related parties, all without the requirement of a landlord-tenant relationship.
The court has read and finds nothing in the additional cases cited by the defendant which would support the defendant's argument that, with the limited exception of § 47a-23(a)(2), it is essential that the court find the existence of a landlord tenant relationship as an absolute requirement to its jurisdiction.
The court finds that the defendant's second ground for dismissal is unfounded.
III The Third Ground to Dismiss. (The Plaintiff Lacks Standing).
The defendant's third claim for dismissal is that the plaintiff lacks standing to maintain this action "because of the lack of unanimity of interest." The essence of the defendant's argument is that "both the Plaintiff and Defendant are owners within the meaning of Conn. Gen. Stat. 47a-1(e), as are Fred C. Dudek, Jr. and Karen Platt, the Independent Trustee of the Felka Trust. The Plaintiff's failure to include all of the owners of the subject premises in the issuance of the Notice to Quit renders the Notice to Quit improper and deprives the court of subject matter jurisdiction."
"In a trust the trustee has legal title to the res of the trust. G. Bogert, Trusts (Rev.2d Ed. 1984) § 1, p. 5; see also B.A. Ballou Co. v. Citytrust, 218 Conn. 749, 753 n. 2, 591 A.2d 126 (1991). The trustee is the legal owner of trust property, and as such the trustee is the proper party for actions affecting title to trust property. 76 Am.Jur.2d 640, Trusts § 611 (2005). A trustee is a necessary party to assert or defend title to trust property. 76 Am. Jur.2d 638, Trusts § 609 (2005). [A]s a general rule, the trustee is [the] proper person to sue or be sued on behalf of a trust. 76 Am. Jur.2d 636, Trusts § 606 (2005)." (Internal quotation marks omitted.) Mannweiler v. LaFlamme, 232 Conn. 27 653 A.2d 168 (1995).
The defendant has stipulated that the plaintiff holds legal title to the premises as Trustee of the Felka Trust. As noted above, the defendant's argument concerning standing overlooks that, although the defendant, the plaintiff and their brother are all beneficiaries of the trust, there has been no showing by the defendant that he or either of the other beneficiaries has any right to the present use and enjoyment of the premises as a beneficiary, under the terms of the trust or otherwise.
Finally, the defendant argues that "All of the individuals have an equal interest in the property, and the effect of a judgment for the plaintiff in this case would be to award one of the three co-beneficiaries judgment of possession to the exclusion of the other two beneficiaries." The defendant's argument ignores that the defendant is currently in possession of the premises to the exclusion of the other two beneficiaries and that if the plaintiff obtains possession of the premises she would do so only in her capacity as trustee for the benefit of all the beneficiaries and not in her individual capacity
For the foregoing reasons, the defendant's motion to dismiss is denied.
SO ORDERED.