Opinion
No. CV-07-4007565
April 2, 2008
MEMORANDUM OF DECISION
The present action arises from the defendant's alleged failure to return to the plaintiff, Christopher Right, a security deposit relating to an oral, month to month tenancy. The premises are an apartment located on the third floor of 35-37 Wakelee Avenue, Shelton, Connecticut.
The plaintiffs, Christopher Right and his father, Robert Right, commenced an action against the defendant by way of service of a small claims complaint dated September 20, 2006. Therein, the plaintiffs claimed that the defendant failed to return to them the amount of $2,325 representing two months rent, in the amount of $775 per month, plus a security deposit.
The defendant moved to transfer the case to the regular docket of the superior court. The motion was granted on January 23, 2007. Thereafter, the defendant denied the allegations of the plaintiffs' small claims complaint and asserted a counterclaim alleging that he is entitled to nine months rent in the total amount of $6,975 based on Christopher's breach of the lease.
Counsel appeared on behalf of the plaintiffs on February 6, 2007. Thereafter, the plaintiffs filed an answer to the counterclaim denying the allegations and asserted the following four special defenses: that the defendant lacked the authority to enter into a lease with them; that Christopher was excused from paying rent because the premises did not have a valid certificate of occupancy; that Christopher was excused from paying rent because the premises are in violation of building and housing codes; and that the defendant failed to mitigate his damages. The plaintiffs also filed a second amend complaint containing various causes of action. In their first cause of action, the plaintiffs allege that the defendant is liable to them for his failure to return the security deposit. The second count sounds in breach of contract relating to the oral, month to month lease. The plaintiffs claim in the third count that the defendant is liable to them for statutory theft. The fourth count in unjust enrichment was withdrawn on the record at trial by the plaintiffs. The plaintiffs allege in the fifth count that the defendant's conduct constitutes a violation of the Connecticut Unfair Trade Practices Act ("CUTPA"). The defendant filed an answer to the plaintiffs' operative complaint denying the material allegations.
The court finds the following facts credibly proven at trial. Christopher met with the defendant on August 20, 2006 to discuss leasing the premises, which was the third floor apartment. He believed at that time that the defendant was the owner. In fact, the defendant was the agent of the owner for purposes of leasing the property. The parties entered into an oral agreement pursuant to which the plaintiff agreed to lease the premises on a monthly basis for the amount of $775 per month commencing September 1, 2006. Christopher was required to pay prior to commencing his tenancy the first and last months rent along with a security deposit in the amount of a month's rent. Christopher's father, Robert, was present during the negotiations.
The defendant permitted Christopher to occupy the premises on August 25th, notwithstanding that the lease commenced on the 1st of September. As circumstances would have it, Christopher only occupied the premises for three days before he became incarcerated for a relatively significant period of time. At that time, Robert met with the defendant, agreed to pay to him rent for one month and asked that the security deposit be returned. The defendant stated to Robert that he would mail the deposit to him on the 5th of September, but failed to do so.
Robert promptly cleaned out his son's apartment and gave to the defendant some furniture and appliances to keep in the apartment because he felt bad over the unfortunate situation. The defendant accepted the items, which Robert testified had a value of approximately four to five thousand dollars.
Despite demand, the defendant failed to return the security deposit. This action ensued.
Security deposits are governed by Section 47a-21 of the General Statutes. Upon a termination of a tenancy, a landlord is generally required to deliver any security deposit to a tenant within thirty days. General Statutes §§ 47a-21(d)(1) and (2). The landlord may deduct from the deposit the amount attributable to any damages to the premises and must pay to the tenant any accrued interest. General Statutes § 47a-21(d)(1). In addition to other remedies, a tenant may bring a civil action to recover a security deposit. General Statutes § 47a-21(1).
It is undisputed that the defendant failed to deliver the security deposit to Christopher. Moreover, the defendant does not assert in his counterclaim or otherwise that he is entitled to withhold all or part of the deposit because Christopher damaged the premises. In fact, the evidence shows that he only occupied the apartment for three days, and his father cleaned the premises once they were vacated. The defendant's sole claim is that he is entitled under the oral, month to month lease agreement to keep the security deposit in the amount of $2,325 and to an additional nine months. The basis for the defendant's claim is that he views the agreement as providing for a one-year term. The defendant offered no rationale to support his claim.
The court credits the testimony of the plaintiffs that the agreement was provided for a month to month tenancy and that the rent was $775 a month. In this regard, the defendant admitted these issues during his cross examination where he specifically testified that the lease was oral, rent was $775 per month, and that it was not a lease for a term but a month to month tenancy. The defendant's position at trial, articulated during his closing argument, appears to arise from his mistaken belief that any tenancy by definition must be for a year. The defendant's own testimony contradicted his position as did the plaintiffs' evidence.
In view of the foregoing, the plaintiffs have proven the first two counts of their complaint. Specifically, the plaintiffs proved that the defendant failed to return to them the security deposit as required by General Statutes § 21a-21, and breached the terms of the lease by retaining more rent than he was entitled to do under the agreement.
The plaintiffs have not proven the third count brought in statutory theft. The law governing this claim is well settled.
"The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights.
Similarly, [s]tatutory theft under [General Statutes] § 52-564 is synonymous with larceny [as provided in] General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from [the] owner." (Citations omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 43-44, 761 A.2d 1268 (2000).
The plaintiffs have failed to prove that the defendant possessed the requisite intent at the time that he refused to return the security deposit to them. The evidence discloses that the defendant had a good faith, albeit mistaken, belief that he was entitled to keep the money because the lease encompassed a twelve-month period of time.
Finally, the plaintiffs have failed to establish by the required standard that the acts of the defendant in accepting rent from Christopher and failed to deliver the security deposit upon Christopher's vacating the premises constitute a CUTPA violation. In this regard, the plaintiff's rely on Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983).
In Conaway, the plaintiffs brought a class action to recover rent payments alleged to have been collected by the defendants landlords in violation of General Statutes §§ 47a-5 and 47a-57. These statutes pertain to a municipality's authorization to require that a landlord obtain a certificate of occupancy prior to a tenant occupying all or any part of a building that was previously vacated, and providing that rent not be recovered by a landlord for any period of time during which such a certificate had not been obtained. Id., 485. The defendants "received written notice from the city of New Britain informing them of the requirement that certificates of occupancy be obtained prior to any units being rented. Although the defendants applied for certificates of occupancy on one of the buildings, their application was denied. A certificate has not been obtained for any of the units within the four buildings owned by the defendants." Id., 487.
On appeal, the Court held that "the defendant's conduct in receiving the rent . . . unquestionably offended the public policy, as embodied by [the] statutes, of insuring minimum standards of housing safety and habitability. As recited above, §§ 47a-57 imposed a duty upon the defendants to obtain certificates of occupancy after a vacancy and prior to human habitation. The defendants, with full awareness of this requirement, nonetheless failed to secure the certificates and continued to accept rental payments, the collection of which they had no right to enforce. The actions of the defendants amounted to unfair acts or practices within the meaning of § 42-110b." (Emphasis added.) Id., 493.
The present case is distinguishable from Conaway to the extent that there is no evidence that the defendant knew of the requirement that a certificate of occupancy was required to be obtained under the circumstances that existed at the time the lease agreement was entered into with the plaintiffs. Moreover, the evidence shows that the defendant was an agent of the landlord, but not the actual landlord. The defendant does not own the property. Rather, an individual named Natalie Wittmer owns the property.
The building official from the City of Shelton testified that the City enacted an ordinance similar to the one at issue in Conaway requiring a landlord to obtain a certificate of occupancy after a vacancy and prior to another tenant living in the premises. The official testified that no such certificate had been issued prior to Christopher commencing his habitation of the premises on August 25, 2006.
There was no evidence, as existed in Conaway, that either the defendant or the landlord herself actually knew of the certificate requirement. The court concludes that the plaintiffs failed to prove that the defendant's acts concerning the tenancy were unfair or deceptive within the meaning of the Act.
In view of the foregoing, the plaintiffs are entitled to damages on the first and second count of their complaint. On the first count, seeking a return of the security deposit, the plaintiffs are entitled to the return of the total deposit in the total amount of $2,325. The evidence established that Shelton adopted by way of ordinance the provisions of Section 47a-5 and that the requisite certificate of occupancy was not obtained. Consequently, the defendant is not entitled to collect the rent for the month of September as he would have been had such a certificate been obtained prior to Christopher occupying the premises on the 25th of August. Additionally, in accordance with Section 47a-11(d) of the General Statutes, the plaintiffs are entitled to recover from the defendant the amount of $4,650, which represents twice the amount of the security deposit wrongfully withheld by him. The plaintiffs are also entitled to interest in accordance with the foregoing statutory subsection. On the second count, the plaintiffs are entitled to contract damages in the amount of $2,325 and no more. Of course, under the law the plaintiffs can only collect their damages once.
Finally concerning the plaintiffs' damages, as they are the prevailing party in a small claims matter that was transferred to the regular docket on the defendant's motion, the plaintiffs are allowed to request a reasonable attorneys fees and costs. General Statutes § 52-251a. The plaintiffs should contact caseflow to schedule a hearing on this issue. The court orders that the plaintiffs submit an affidavit of attorneys fees and bill of costs at least five (5) days prior to such hearing date. The plaintiffs should also submit at that time a statement of the amount that they claim as interest, which statement should also set forth their calculation of that amount. The original affidavit and interest statement should be filed at the Milford clerk's office, and a courtesy copy should be sent to the court in Derby.
The court finds that the defendant failed to prove his counterclaim. The court notes that the defendant was given an opportunity to put on a case-in-chief, but declined to do so.