Opinion
No. TTD CV 09 4011935 S
September 16, 2010
MEMORANDUM OF DECISION
This is a summary process action brought by the plaintiff Irish Bend Farm, LLP, to recover possession of 330 Pinney Road, Somers ("the premises"), from the defendant, Leland E. Pinney. The defendant has filed a motion to dismiss the plaintiff's complaint on the grounds that the court lacks subject matter jurisdiction because the notice to quit possession was defective since it did not use the proper statutory language or words of similar import in setting out the reasons for the notice to quit possession and because the notice did not set forth a specific date for the defendant to quit possession.
PROCEDURAL BACKGROUND
On September 15, 2009, the plaintiff, Irish Bend Farm, LLP, commenced this summary process eviction against the defendant, Leland E. Pinney. On September 17, 2009, the plaintiff filed a summary process complaint in which the following facts are alleged. On or about December 2007, the plaintiff, as landowner, gave oral permission to the defendant to use and occupy the premises at 330 Pinney Road, Somers ("the premises"). The defendant took possession of the premises pursuant to the plaintiff's permission and still occupies the premises. The defendant never paid any rent for the premises and was a guest of the plaintiff. The plaintiff withdrew its permission for the defendant to occupy and use the premises on or about August 2009. On August 11, 2009, the plaintiff caused a notice to quit possession to be served upon the defendant giving notice to the defendant to quit possession or occupancy of the premises within thirty days of the time of service of the notice. The plaintiff alleges that although the time given in the notice to quit has passed the defendant still continues in possession.
In the notice to quit, the plaintiff states that due to the defendant's previous conduct and activities on the premises, the defendant's refusal to comply with the plaintiff's letter dated June 19, 2009, served upon the defendant on June 29, 2009, and the defendant's alleged activities on the premises, such as the illegal operation of a business and the refusal to comply with local and state laws regarding animals, employees and taxes, the defendant has created an unacceptable liability to the plaintiff. Accordingly, the plaintiff revoked its permission for the defendant to remain on its land as a guest and stated that "[t]his notice serves as a written termination of any prior permission to occupy [the premises] and/or conduct any activities on" the premises.
On September 25, 2009, the defendant filed a motion to dismiss the summary process complaint on the grounds that the court lacks subject matter jurisdiction because the notice to quit attached to the complaint was defective. In his memorandum in support of the motion to dismiss, the defendant first argues that the notice to quit is not in compliance with General Statutes § 47a-23, which requires that a notice to quit possession set forth the reasons for the notice "using the statutory language [found in § 47a-23(a)] or words of similar import." The defendant argues that the notice to quit in the present case does not include the required statutory language or any words of similar import and is therefore defective. The defendant also argues that the notice to quit is defective because it does not set forth a specific date by which the defendant must quit possession, although the notice does indicate that the date should be thirty days after service of the notice to quit.
In its memorandum in opposition to the defendant's motion to dismiss, the plaintiff argues that the language used in the notice to quit setting forth the reason for the notice is substantially similar to the language in § 47a-23 and that the notice contains "specific enough detail to provide [the defendant] with information to prepare a defense."
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] courts lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) CT Page 18220 Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008).
"Summary process is a special statutory procedure designed to provide an expeditious remedy . . . It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms . . . Summary process statutes secure a prompt hearing and final determination . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed." (Internal quotation marks omitted.) Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292 Conn. 459, 466, 974 A.2d 626 (2009). "Before the [trial] court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit . . . As a condition precedent to a summary process action, proper notice to quit [pursuant to § 47a-23] is a jurisdictional necessity." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009).
The defendant argues that the notice to quit is defective and fails to comply with the provisions of § 47a-23 because, in setting out the reason or reasons for the notice to quit possession, the plaintiff fails to use the statutory language provided in § 47a-23(a) or to use words of similar import in the notice. Additionally, the defendant argues that the notice to quit is deficient because it does not set forth a specific date by which the defendant must quit possession, only indicating that such date should be thirty dates after the service of the notice to quit. The plaintiff counters that the notice to quit employs language that is substantially similar to the language required in § 47a-23 and that the notice provides the defendant with specific enough detail to prepare a defense.
General Statutes § 47a-23(a) provides in relevant part: "When the owner or lessor, or the owner's or lessor's legal representative, or the owner's or lessor's attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands, and . . . when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . 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."
The crux of the defendant's argument that the notice to quit is defective centers around the issue of whether the proper "statutory language or words of similar import," as required by § 47a-23(b), were used in setting forth the reasons for the notice to quit. The notice to quit possession served upon the defendant states that the plaintiff "hereby withdraws and revokes its permission for [the defendant] to remain on [the plaintiff's] land as its guest. This notice serves as a written termination of any prior permission to occupy [the plaintiff's] property and/or conduct any activities on [the plaintiff's] property." Subdivision (3) of § 47a-23(a) provides that in summary process actions when an owner seeks to obtain possession of any land or building and "when one originally had the right or privilege to occupy such premises but such right or privilege has terminated," the owner shall give notice to each occupant to quit possession. General Statutes § 47a-23(b) provides the form in which the notice to quit shall be constructed, requiring the plaintiff to "insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import . . ." (Emphasis added.). The notice to quit is not defective because the language used in the notice to quit contains words of similar import to § 47a-23(a)(3), since the defendant previously had the right or privilege to occupy the premises as a guest but that right or privilege has since been terminated.
General Statutes § 47a-23(b) provides: "The notice shall be in writing substantially in the following form: "I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). A.B." If the owner or lessor, or the owner's or lessor's legal representative, attorney-at-law or attorney-in-fact knows of the presence of an occupant but does not know the name of such occupant, the notice for such occupant may be addressed to such occupant as "John Doe," "Jane Doe" or some other alias which reasonably characterizes the person to be served."
The Supreme Court has articulated that "a landlord should not be precluded from pursuing summary eviction proceedings because of hypertechnical dissection of the wording of the notices that he has sent." Jefferson Garden Associates v. Greene, 202 Conn. 128, 145, 520 A.2d 173 (1987). In Thomas E. Golden Realty Co. v. Society for Savings, 31 Conn.App. 575, 626 A.2d 788 (1993), the Appellate Court addressed the issue of whether the reasons provided in a notice to quit possession contained the requisite specificity to comply with the statutory language in § 47a-23. In Golden, the trial court dismissed the plaintiff's summary process action on the grounds that the notice to quit, in which the defendant "was directed to quit the premises `for the reason that you are in violation of the lease and nonpayment of additional rent.'" Id., 578. The Appellate Court reversed the trial court's judgment of dismissal, concluding that the phrase "`nonpayment for additional rent' substantially tracks the language in [§ 47a-23(a)] and conveys a sufficient ground for the notice to quit." Id., 580.
In Golden, the court relied on an earlier Appellate Court opinion in Southland Corp. v. Vernon, 1 Conn.App. 439, 473 A.2d 318 (1984). In Southland, the defendant claimed "that the notice to quit, which demanded that the defendant quit the premises because `your right or privilege to occupy such premises has terminated,' was fatally defective." Id., 452. The court disagreed, noting that it "recognize[s] the principle that, because of the summary nature of its remedy, the summary process statute has been narrowly construed and strictly followed . . . This principle does not require, however, the invalidity of this notice to quit . . . [T]he language of the notice substantially tracks that of General Statutes § 47a-23(a), which sets as one of the bases of a notice to quit that `one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . `[I]t would be the height of hypertechnicality to hold this notice to quit defective." (Citations omitted.) Id., 452-53.
Additional support for this proposition is found in the Superior Court's opinion in Getty Petroleum Marketing, Inc. v. Ahmad, Superior Court, judicial district of New London, Docket No. CV 10-16427 (December 4, 2000, Jongbloed, J.). In Getty, the defendant claimed that the notice to quit was defective because it failed to track the language of § 47a-23, which sets forth the grounds and form for a notice to quit. The notice to quit in Getty stated: "[O]n or before August 31, 2000 you are to quit possession or occupancy of the Getty gasoline station located at Route 32, Waterford, CT 06385, now occupied by you for the following reasons . . . Termination and non-renewal of your Lease Agreement . . ." Id. The court stated that "[a]lthough the language of the Notice to Quit is not identical to [47a-23(a)], it does substantially track the language of the statute. The Court finds that the Notice to Quit does use `words of similar import' to fully apprise the defendant that his `right or privilege to occupy the premises' had terminated." Id. Accordingly, the court denied the defendant's motion to dismiss the summary process complaint.
In the present case, it would similarly be the height of hypertechnicality to hold that the notice to quit is defective. The language used by the plaintiff in the notice to quit substantially tracks the language used in the provisions of § 47a-23(a). The plaintiff's notice to quit instructs the defendant that the plaintiff "hereby withdraws and revokes its permission for [the defendant] to remain on [the plaintiff's] land as its guest. This notice serves as a written termination of any prior permission to occupy [the plaintiff's] property." As in Getty, the language used by the plaintiff in the present case contains "words of similar import," words which convey to the defendant that he, as a guest, originally had the right or privilege to occupy the premises but that such right or privilege has terminated. This court concludes that the words, "termination of any prior permission," are words of similar import to the statutory language found in § 47a-23(a).
The defendant's argument that the notice to quit is defective because it does not set forth a specific date for the defendant to quit possession is also unpersuasive. The notice to quit provides that the defendant was "to quit possession or occupancy of the premises . . . on or before 30 days from time of service . . ." Abode service of the notice to quit was made on August 11, 2009, giving the defendant thirty days from that date in which to quit possession. The defendant does not argue that service of the notice to quit was improper, that he did not receive the notice to quit, that the date of service was unclear or that the date by which he was to quit possession of the premises was unclear. The defendant even seems to contradict himself, stating in his memorandum of law in support of the motion to dismiss that the notice to quit is defective because it does not set forth a specific date by which the defendant must quit possession, while also stating that the notice to quit "indicates that [such] date should be thirty days after service of the notice." The defendant cites no authority indicating that this manner of identifying the date by which an occupant must quit possession is improper. Section 47a-23(a) requires only that the notice to quit shall be given to an occupant "at least three days before the . . . time specified in the notice for the . . . occupant to quit possession or occupancy." The defendant makes no argument that the plaintiff has failed to comply with this requirement. The plaintiff, through the notice, has supplied the defendant with an identifiable date by which the defendant must quit possession or occupancy of the premises, within thirty days of date of service of the notice to quit possession. The defendant's contention that the notice to quit is defective because a specific date is not listed is unavailing.
CONCLUSION
The notice to quit possession was not defective. The reason set forth in the notice to quit substantially tracks the language required in § 47a-23 and constitutes "words of similar import." Additionally, the notice to quit does set forth a specific date for the defendant to quit possession. For these reasons, the defendant's motion to dismiss is denied.