Opinion
No. CV 21-12600
October 9, 2003
MEMORANDUM OF DECISION
This is a housing code enforcement action concerning premises known as 107 Oakridge Street, Apt #1, Norwich, Connecticut. The plaintiff, Kevin Sullivan, Sr., has brought a two-count complaint dated January 7, 2003 against his landlord the defendant, Gary Rice. Count one asserts that the landlord failed to meet his statutory obligations under General Statues § 47a-7, in that he failed to provide adequate heat, and failed to remedy housing code violations identified by the Norwich Housing Inspector. Count two asserts a violation of the Connecticut Unfair Trade Practices Act for an alleged failure to pay interest on the plaintiff's security deposit as well as meet his statutory obligations.
The landlord has denied liability and brought a counterclaim asserting that the plaintiff failed to perform his statutory obligations as a tenant under General Statutes § 47a-11 causing damage to the apartment. At trial, the plaintiff denied the counterclaim's allegations.
Trial of this matter occurred on July 23, 2003 and August 6, 2003. Thereafter, counsel submitted memoranda summarizing their argument and claims for relief. Upon consideration of the evidence presented and the applicable law, the court makes the following factual findings and legal conclusions.
FINDINGS OF FACTS
In September 2002 and for approximately seven years prior thereto, the plaintiff-tenant, Kevin Sullivan, Sr. (hereinafter "tenant") rented premises located at 107 Oakridge St. Apt #1, Norwich, Connecticut from the defendant-landlord, Gary Rice (hereinafter "landlord"). The rent for the apartment was initially $500 per month including utilities. On or about September 1, 2001, the landlord notified the tenant that, commencing October 1, 2001, the rent would be $500 per month and the tenant would be responsible for his own utilities.
Through the first five years of the tenancy there were few, if any, problems between the parties. Beginning in February 1998, the tenant notified the landlord concerning plumbing problems and later a problem with the heater.
On June 25, 2001, an inspection of the apartment was done by William Sabrowski, Housing Inspector, City of Norwich. His report noted plumbing and other problems that needed repair and gave the landlord thirty days to make the repairs. The inspection report did not note any problem with the apartment's heater, but did note that a motorcycle was being repaired in the kitchen. Inspector Sabrowski's follow-up notations state that a plumber could not get in to make repairs because the tenant was sleeping and that the motorcycle was removed.
On September 1, 2001 the landlord raised the rent by requiring the tenant to pay for utilities. On September 2, 2001, the tenant wrote the landlord asking for copies of blue prints, asserting "negligence to the property," stating that 30 days notice was required, and asking the landlord to notify the neighbors concerning parking in front of the building. Thereafter, for the next few months there were a series of letters from the tenant to the landlord concerning (1) scheduling of repairs, (2) acknowledging repairs that were completed, and (3) requests for additional repairs.
On or about September 9, 2002, the tenant made a second complaint to the Norwich Housing Inspector. Pursuant to that complaint, Inspector Warren Chimielecki inspected the apartment on October 1, 2002 and identified a number of conditions needing repair or replacement. Inspector Chimielecki issued a corrections completion date of November 5, 2002.
On October 4, 2002, the tenant wrote the landlord requesting him to pay the cost for the Norwich Department of Public Utilities to service the heater. The tenant stated that it was not an emergency situation.
On October 28, 2002, the landlord sent a letter to the tenant notifying him that effective December 1, 2002, the rent would increase to $600 per month and a lease would be required.
On October 28, 2002, the tenant wrote the landlord asserting that under Connecticut law the $500 security deposit yielded interest that when compounded monthly amounted to $4,554 and demanded payment. The letter further details repairs to the kitchen sink that the tenant believed were unsatisfactory.
On January 7, 2003 the present suit was commenced asserting that the landlord had not performed his legal duty to maintain the premises due to inadequate heat and failure to complete the items as the Housing Inspector's October 1, 2002 report. In Count Two, the tenant alleged a violation of the Connecticut Unfair Trade Practices Act based on the landlord's failure to meet his statutory obligations, and pay interest on the security deposit. As a result of this lawsuit, the tenant commenced paying rent into court at the rate of $500 per month.
Commencing in late January through May 2002, the parties met with a Housing Specialist to resolve the case. Interim agreements were reached to release rent money held by the court in order to allow the landlord to make repairs. The parties also agreed that the tenant would pay zero rent for the months of May, June and July 2002. These interim agreements were not admissions of liability and were without prejudice to the parties asserting whatever claims they wished at trial.
The repairs to the premises were monitored by Inspector Chimielecki who had made the October 2002 inspection, attended the mediation sessions, and made progress inspections.
All repairs were complete by the end of May 2003 and Certificate of Housing Code Compliance was issued by him on July 25, 2003.
Inspector Chimielecki's work was hampered by the acrimony between landlord and tenant. They did not get along. It was, in his view, impossible to get anything done and he received phone calls everyday. As to heat, Inspector Chimielecki visited the apartment when the landlord had set up temporary heaters and found the residence to be sufficiently warm. He also determined that the Department of Public Utilities had cleared and adjusted the pilots on the stove. The stove was also a heater for the apartment. The inspector determined that the damage to the kitchen ceiling tiles was from something being thrown up there, and was not normal wear and tear. As to the other necessary repairs, Inspector Chimielecki could not determine if it was intentional damage or normal wear and tear.
The landlord owned the building containing the two apartments since 1981. He rented the basement apartment to the tenant in April 1995. The basement apartment is small consisting of approximately 400 square feet of living space with two bedrooms. At the time of the initial rental, the tenant provided a $500 security deposit that the landlord put into the bank. Because the tenant, on occasion, sent post-dated rent checks, the landlord withdrew the funds to pay the mortgage on the property but thereafter replenished the account.
At some point early in the tenancy the tenant installed an additional lock on the premises but did not give the landlord a key. Despite requests, there was delay in the tenant providing the landlord a key. At one point, the landlord said he would not do any further repairs without a key.
The landlord attributed most of the damage in the apartment to the tenant's conduct and were the tenant's responsibility. He acknowledged that most of the repairs were done after the commencement of the present lawsuit. The landlord stated that the reason the repairs were not done was due to: (1) no key, (2) the time available to do repairs, and (3) lack of money. The landlord used four months of the rent money he received from the court to pay an electrician to upgrade the electrical service. In addition, the landlord claimed to have spent $1,099.16 in materials and labor to repair damage caused by the tenant. This amount includes 22 hours of his own labor that he valued at $40 per hour.
DISCUSSION COUNT ONE: Housing Code Enforcement
The court finds that the tenant has proven that housing code violations existed in the apartment and were not remedied by the landlord in a timely fashion. During the pendency of this case, however, these violations have been addressed to the satisfaction of the Norwich Housing Inspector.
From October 1, 2002 to August 1, 2003, a period of ten months, the tenant made seven rental payments of $500 each for a total of $3,500. Notwithstanding the landlord's notification of a rent increase to $600 commencing December 1, 2002, the tenant continued to pay at the earlier rate of $500. In addition, by agreement, the tenant paid no rent for May, June and July 2003. In other words, the tenant paid $3,500 of the $5,800 in rent that would have been otherwise due for the apartment. This represents a rental discount of approximately 40%.
The rental arrangement required $500 rent for October and November 2002 and $600 rent for the remaining eight months for a total of $5800.
COUNT TWO: CUTPA
The tenant asserts that the landlord's failure to meet his statutory responsibilities under General Statutes § 47a-7, failure to provide adequate heat, and failure to pay interest on the tenant's security deposit constitute unfair trade practices in violation of the Connecticut Unfair Trade Practices Act, General Statues § 42-110a et seq. (CUTPA).
Our Supreme Court has held that a private cause of action exists under CUTPA for a violation of the statutes governing landlords and tenants. Conaway v. Prestia, 191 Conn. 484, 491 (1983) (renting of uninihabitable apartments to fifty-five tenants in four apartment buildings without certificates of occupancy offended public policy and was within purview of CUTPA). Whether a practice violates CUTPA turns on whether the practice offends public policy or comes within some established concept of unfairness, whether the practice is immoral, unethical, oppressive or unscrupulous or whether it causes substantial injury to consumers, competitors or other businesses. Associated Investment Co., Ltd. Partnership v. William Associates IV, 230 Conn. 148, 155 (1994); Daddona v. Liberty Mobil Home Sales, Inc., 209 Conn. 243, 254 (1988). Whether a practice violates CUTPA is an issue of fact. DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466 (1990).
In the present case, the tenant proved that the apartment had housing code defects (mildew on walls, leaky faucets, cracked plaster, cracked window, doors improperly hung, missing gutter downspout, etc.). None of these violations made the apartment uninhabitable. The tenant also proved that the landlord did not remit interest on his security deposit as required by statute. See § 47a-21(i) (interest to be paid to tenant annually or credited toward rent). The tenant did not prove that there was insufficient heat, although the use of auxiliary heaters may have been unacceptable to the tenant.
Looking at the proven defects in context, the tenant has not established the sort of immoral or unscrupulous practices outlawed by CUTPA. This is a garden variety landlord-tenant dispute. It involves an older two-family house rented at a modest rent. The statutory provisions for Housing Code Enforcement were adequate to (and in fact did) remedy the problems.
COUNTERCLAIM
The landlord has made a counterclaim asserting that the damage in the apartment is the tenant's responsibility. The court finds that the only damage proven to be the fault of the tenant relate to the kitchen ceiling tiles. The damage to those tiles and their replacement costs is the tenant's responsibility.
DAMAGES
On Count One, judgment shall enter in favor of the tenant. The court finds that the three-month rent abatement is fair compensation to the tenant for living in a substandard apartment. The landlord, however, has not paid interest on the tenant's $500 security deposit since the tenancy began in 1995. The court finds that the landlord's use of the security deposit due to late rent payments by the tenant was justified. The landlord did not, however, immediately replace the funds in an interest bearing account. The court finds that the landlord owes interest to the tenant in the amount of $120. Pursuant to § 47a-21(d)(2), the court awards twice that amount to the tenant or $240.
On Count Two, judgment shall enter in favor of the landlord.
On the Counterclaim, judgment shall enter in favor of the landlord for the damaged kitchen ceiling tiles only. The court finds that the landlord's reasonable material and labor cost to repair the ceiling was $180.
The net difference in damage awards is $60 which the tenant may take as a set off against rent.
No costs are taxed to either side.
So Ordered at New Haven, Connecticut this 9th day of October 2003.
Devlin, J.