Opinion
No. SPM CV 04-0287606S
July 6, 2004
MEMORANDUM OF DECISION
The defendant in this summary process action based on nonpayment of rent in April and May of 2004 claims that no rent was due because of the condition of the premises. Connecticut law recognizes that health or housing code violations may vitiate a tenant's obligation to pay rent but only "serious and substantial violations affecting safety or well being." Na-Mor, Inc. v. Espinosa, Superior Court, judicial district of Litchfield, Docket No. CV18-6889 (June 15, 1999, Frazzini, J.) Since the defendant has admitted, in either her answer or at trial, the essential allegations of the complaint, she has the burden of proof on her special defense that no rent was due under General Statutes section 47a-4a because of various health and housing code violations violating § 47a-7(a). Evergreen Corporation v. Brown, 35 Conn. Sup. 549, 552, 396 A.2d 146 (App.Sess. 1978). In the present case, after considering all of the evidence offered, the court finds that the defendant has not sustained that burden of proof and enters judgment for the plaintiff.
In Na-Mor, Inc. v. Espinosa, Superior Court, judicial district of Litchfield, Docket No. CV18-6889 (June 15, 1999), this court previously addressed proof of an uninhabitability claim:
Section 47a-4a, as interpreted by our courts, does not justify nonpayment for minor housing problems or cosmetic or aesthetic deficiencies in the premises. "Generally, a tenant claiming the right to withhold rent must "show that the landlord's failure to comply with 47a-7(a) materially affects his safety . . . or has rendered the premises uninhabitable." (Citation omitted; internal quotation marks omitted.) Housing Authority v. Olesen, 31 Conn. App. 359, 363, 624 A.2d 920 (1993). Similarly, for a tenant to make a successful claim that she has the right to withhold payment of rent she must show that the landlord's failure to comply with 47a-7(a) "materially affects [her] safety"; Tucker v. Lopez, 38 Conn. Sup. 67, 69, 457 A.2d 666 (1982); or has rendered the premises "uninhabitable." Steinegger v. Rosario, 35 Conn. Sup. 151, 156, 402 A.2d 1 (1979).
The defects must materially and substantially affect the tenants' use of the premises. It is not enough for the tenant to show that the premises are not in full code compliance . . . The requested repair involved must be one necessary to put and keep the premises in a fit and habitable condition . . . If minor repairs were sufficient to trigger the statutory defenses of unfit and uninhabitable what was intended as a shield for the benefit of tenants would be metamorphosed into a sword to deprive landlords of their property . . . Mere technical or cosmetic violation of governmental codes are not sufficient to rise to the level of the defense of unfit and uninhabitable.
(Internal citations omitted.) Bonatuto v. Vitola, No. SPNH 9801-53617 (Feb. 20, 1998).
In other words, the law requires serious and substantial violations affecting safety or wellbeing. Mere noncompliance with promises by a landlord to make certain repairs or to provide a rental unit with certain features does not make the unit uninhabitable. A tenant must seek different remedies than nonpayment for such violations of a landlord's promises or obligations.
Section 47a-4a of the General Statutes provides as follows: "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."
Section 47a-7(a) of the General Statutes provides as follows: "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."
The defendant claims that her apartment is infested with roaches, that roach bites have caused impetigo on her arms, that pigeons would fly through a broken exterior hallway window and leave bird feces on the hallway floor, that paint chips had fallen from the hallway ceiling onto the floor, that other windows were broken in her bedroom, that a gap between the exterior door of her apartment and the floor allowed mosquitoes to fly into her residence, that the refrigerator and stove were broken, and that doors to cupboard cabinets were broken. A report from a municipal housing code inspector admitted into evidence established that windows in her apartment were broken and needed repair, the hallway needed cleaning, the cabinet doors, stove and refrigerator needed repair, and the apartment needed extermination to get rid of roaches.
The plaintiff, on the other hand, claims that the apartment was in good condition when the defendant moved in, that she never complained to him about the problems she now alleges, and that once notified of problems in her apartment he took prompt action to address them. The defendant acknowledged that the landlord has repaired the hallway window. A follow-up report showed that the plaintiff promptly made all necessary repairs upon notice from the housing code inspector although repeat trips by the exterminator are necessary and have been contracted for. The defendant admitted that she had never complained to the landlord about these conditions.
None of the problems about which defendant complains rises to the level of affecting her health or safety, except possibly the roaches. The court is aware of no court holding that the mere presence of roaches, by itself, is sufficient to render a premises uninhabitable or end a tenant's obligation to pay rent. The defendant testified here that she has received numerous roach bites. At trial she displayed red, white and blotchy marks and what appeared to be crusting lesions on her upper right arm. She claimed these marks were impetigo as the result of roach and mosquito bites in her apartment. This court has no doubt that infestation so pervasive that roaches or other insects were regularly biting a tenant and that roach bites were causing health problems would be sufficient to render the premises uninhabitable. The strength of the defendant's case hinges, in large part, on the proof about the severity of the roach problem in her apartment. Since defendant offered no expert or medical evidence to corroborate her claim that the condition on her arm was caused by roach or insect bites, the court must examine the balance of the evidence to ascertain whether to believe her testimony on this point.
In enforcing the mandate of General Statutes § 47a-4a that no rent is due when a landlord has not complied with its statutory duty to "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition," courts have generally demanded more than a tenant's word that there are serious health or safety hazards to corroborate such a claim — such as a report from a fire marshal or housing inspector or an independent witness. "[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, 396 A.2d 146 (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. This court does not construe such cases as holding that a tenant's testimony is, as a matter of law, insufficient to prove an uninhabitability claim; see, e.g., Morgan v. White, 168 Conn. 336, 349, 362 A.2d 505 (1975); Denby v. Commissioner, 6 Conn. App. 47, 502 A.2d 954 (1986); but instead as suggesting that most courts will find the tenant's own word unpersuasive unless there is additional evidence to back up the claim.
In this case, there is independent documentary evidence substantiating defendant's claim of roaches in the apartment. The plaintiff introduced into evidence photographs showing dead roaches in her cupboard. Another exhibit showed that on June 3, 2004, a city housing code inspector found roaches in the apartment and ordered the plaintiff to "[e]xterminate to rid the apartment of roaches." The Meriden City Code places responsibility for exterminating pests on the tenant except where the owner has failed "to maintain a dwelling in a . . . reasonably insectproof [sic] condition" or infestation exists in more than one dwelling unit. Meriden City Code, § 125-15, "Responsibility for extermination of rodents." The fact that the housing inspector ordered the landlord, not the tenant, to exterminate suggests that the inspector concluded that the plaintiff had not kept the dwelling "reasonably insectproof"; otherwise, the inspector would have entered the extermination order against the defendant.
The court takes judicial notice of the Meriden City Code, as authorized by General Statutes § 52-163(3): "The court shall take judicial notice of: . . . (3) ordinances of any town, city or borough of this state, . . ."
Under the presumption of regularity, that city officials have performed their duty in accordance with the requirements of law, at least in the absence of contrary evidence; Witty v. Hartland Planning Zoning Commission of Hartland, Superior Court, judicial district of Litchfield, Docket No. CV 96-0072389 S (May 31, 2000, Frazzini, J.), aff'd, 66 Conn. App. 387, 784 A.2d 1011, cert. den., 258 Conn. 950, 788 A.2d 100 (2001), the court may infer that the housing code inspector would have issued a correction order against defendant-tenant unless it concluded the plaintiff-landlord had not complied with its responsibilities under Code § 125-15.
On the other hand, the code inspector gave the landlord plaintiff thirty days to comply with its order. The City Code directs municipal officials that when a dwelling is so ". . . unsanitary, unsafe or vermin-infected that it creates a serious hazard to the health or safety of the occupants," they shall condemn the building as "unfit for human habitation" and order it placarded accordingly. City Code § 125-54. From the fact that the housing code inspector did not exercise that authority but instead gave the plaintiff a month to correct the problem, the court infers that the housing code inspector did not believe the roach problem was so severe as to create a health or safety problem for the tenant. Furthermore, the evidence also established that during defendant's tenancy in the apartment, which began in January 2001, the city inspected her apartment and issued a certificate of occupancy, a fact establishing that during at least part of the time that defendant lived in the apartment there were no health or housing code violations or other conditions materially affecting her safety. Since the certificate of occupancy was issued during defendant's tenancy, the court infers that the roach problems either did not exist or were not severe during at the time of that inspection.
Section 125-47 of the City Code, entitled "Certificate of compliance required," provides that landlords may not receive rent without a valid certificate of compliance issued by the Department of Development and Enforcement for the specific dwelling or dwelling unit and that such certificates of compliance are effective for only two years. Section 125-54 of the City Code, entitled "Conditions which make dwellings unfit," directs city officials to designate, condemn and placard any dwelling that it finds to be "so . . . unsanitary, unsafe or vermin-infected that it creates a serious hazard to the health or safety of the occupants" as "as unfit for human habitation."
Finally, the defendant's own conduct suggests that the roach problem was not as severe as she claimed at trial. She admitted that she had never complained to the landlord about any of these problems. She claimed, however, that she had complained to the rental agent who found the apartment for her and often collected rent. While notice to an agent may be construed as notice to the principal on matters within the scope of the agent's authority; Bank of Montreal v. Gallo, 3 Conn. App. 268, 275, 487 A.2d 1101 (1985); defendant also had frequent opportunity to complain directly to the landlord but did not. Both parties testified that she had agreed with the landlord that her boyfriend could perform certain work for plaintiff in exchange for her rent. She certainly could have mentioned roach problems, if infestation were so severe that it was causing the horrible marks on her arms, to the plaintiff then. Yet she chose not to, a factor suggesting the roaches were not as bad as she claimed.
The evidence also suggests that the defendant's nonpayment of' rent was not motivated by the conditions in her apartment. The defendant admitted at trial that her gas and electricity had been shut off because she could not afford to pay her utility bills — a fact suggesting that she has been in dire financial straits, an inference supported by the barren cupboards in the photographs she submitted into evidence. This evidence further suggests that the defendant's nonpayment was motivated by her financial circumstances, not the conditions in the apartment. Although a tenant's reasons for not paying rent are not a necessary element for proving that no rent was due under § 47a-4a, the motives for someone's conduct tell much about the underlying facts and circumstances. All this, plus the late timing of her complaint to the municipal code enforcement agency (not until after the eviction was filed), her failure to complain to the landlord, and her failure to offer evidence corroborating her claim that she had complained about the conditions to the rental agent, seriously undermines the persuasiveness of her claim about the severity of the roach problem.
On this evidence, the court concludes that defendant has not met her burden of proof to establish that the plaintiff failed to comply with his statutory duty as a landlord to "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition" or failed to comply with his statutory duties in a way that materially affected her safety or rendered the premises uninhabitable. Since the defendant offered the special defense, she had the burden of proving her claim by a preponderance of the evidence. The court finds that the defendant has not sustained her burden of proof on the special defense and enters judgment of possession for the plaintiff.
SO ORDERED.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE CT Page 10988