No. CV-01-0452868 S
January 7, 2004
MEMORANDUM OF DECISION
This matter was tried to the court and arises out of dispute concerning monies owed to a landlord by a former tenant. The complaint alleges that the plaintiff and the defendants entered into a written lease on June 1, 2001. Premises for a business were leased to the defendants at Industrial Road in Branford. The written lease provided that the rent would be $2,425.00 per month with a 2 percent increase beginning the second year of the lease. It also provided for late fees if there was untimely payment of monthly rental fees. The lease also provided that the tenants "shall keep the premises in good condition" and the lease further provided that the tenants would "surrender the premises at the end of the (rented) term in as good condition as the reasonable use thereof will permit." The tenant also promised to keep the premises in a "clean and sanitary condition."
The main body of the lease is on a Blumberg printed form. One of the provisions on the printed form reads as follows:
Twentieth — In the event that the Tenant shall remain in the demised premises after the expiration of the term of this lease without having executed a new written lease with the Landlord, such holding over shall not constitute a renewal or extension of this lease. The Landlord may, at its option, elect to treat the Tenant as one who has not removed at the end of his term, and thereupon be entitled to all the remedies against the Tenant provided by law in that situation, or the Landlord may elect, at its option, to construe such holding over as a tenancy from month to month, subject to all the terms and conditions of this lease, except as to duration thereof, and in that event the Tenant shall pay monthly rent in advance at the rate provided herein as effective during the last month of the demised term.
This language clearly conflicts with typewritten language in a paragraph at the end of the lease just above the end of the lease where the signatures of the parties appear.
Thirty-forth — Tenant must notify Landlord in writing three months in advance of expiration of lease in the event that Tenant wishes not to renew lease. It will be assumed if we are not notified that Tenant will be staying another year and lease will automatically renewed.
These two paragraphs are more than "apparently" inconsistent and cannot be "reconciled by any reasonable construction." Eastern Bridge Structural Co. v. Curtis Bldg. Co., 89 Conn. 571, 576 (1915). The court concludes that article 34 of the lease prevails and sets forth the terms of the agreement between the parties.
It is also textbook law that "In the determination of the meaning of an indefinite or ambiguous contract, the construction placed upon the contract by parties themselves is to be considered by the court," 17A Am.Jur.2d, "Contracts," § 357, page 375, Taft Realty Corp. v. Yorkhaven Enterprises Inc., 146 Conn. 338, 343 (1959). Here Mr. MacDonald prepared and said he sent two letters, July 1 and December 10, 2002, both of which suggest it was his understanding the lease had been reviewed for failure to give notice under paragraph 34 of an intention to the contrary. Mr. Squeglia said he prepared a February 8, 2003 letter which falls interestingly within the notice period of paragraph 34 although he seems to imply he did not thereby mean to suggest the provisions of that paragraph were operative as opposed to paragraph 20.
In the Restatement of the Law 2d, Contracts it says:
In the interpretation of a promise or agreement or a term thereof, the following standards of preference are generally applicable.
. . .
(d) separately negotiated or added terms are given greater weight than standardized terms or other terms not separately negotiated.
Comment (f) states, in part: "The rule stated in subsection (d) has frequent application in cases of standardized documents. Printed forms are often misused and there may be a question whether the parties manifested assent to a printed term on a writing. A printed provision that is clearly part of an integrated contract is normally to be interpreted as consistent with other terms, but in cases of inconsistency a handwritten or typewritten term inserted in connection with the particular transaction ordinarily prevails." Cf. A. Dubrevil Sons Inc. v. Lisbon, 215 Conn. 604, 612 (1990) at page 713. Dubrevil also said in interpreting a contract to arbitrate: "To the extent that such an ambiguity exists, the rule should be applied which says typed matter controls the printed instead of the rule which says that a contract will be construed against the author." (Here the plaintiff had the lease prepared.)
Pursuant then to the language of the lease and the rights it gives him, the plaintiff claims he was not given the necessary notice under paragraph 34 and the lease automatically renewed June 1, 2002 with a monthly rental of $2,425.00 plus a 2 percent increment of $48.50 to make the new rent $2,473.50 per month. The defendants left the premises sometime at the end of January or the beginning of February 2003. The plaintiff was not able to rent the premises until May 2003. The plaintiff claims rent due and owing of $2,473.50 for the months of February, March and April 2003. He claims the 2 percent rent increment, amounting to $48.50 from June 2002 through January 2003. He also claims a late fee for January though April 2003 and reimbursement for various repairs and cleaning done at the premises after the defendants left the property. In the lease's third paragraph the tenant agreed to pay attorneys fees if the landlord had to enforce any of the lease obligations.
The plaintiff testified as to the foregoing claims. Also Mr. MacDonald testified he sent a letter to Mr. Squeglia July 1, 2002 indicating he had not received the 2 percent increment to the rent in the June 2002 rental payment and that the rent was to be $2,473.50 for the renewed lease. Apparently this letter was mailed. On December 10, 2003 he sent another letter to the defendants by certified mail in which he referred to the earlier July 1 letter restating his position that he was entitled to the 2 percent rent increment since June 2002. The December letter claimed he was due late fees for November 2003 which was waived and December 2003 which apparently is not now being pressed by the plaintiff.
The defendant Squeglia testified that on February 8, 2002 he included a letter in an envelope with the February 2002 rent to the effect that "we do not wish to renew the lease . . . we wish to go on a month to month basis." He cannot remember if he delivered this letter or one of his employees did. He only mailed the rent once. At the bottom of the February typewritten letter is the phrase "Copy enclosed in Feb. 2002 rent." Mr. Squeglia said this was his handwriting and was written on February 8, 2002. Mr. MacDonald denies ever receiving the letter which was addressed to him.
The court will now attempt to discuss the strength of the claims made. There is really no great dispute about legal issues; the resolution of this case depends on credibility of the stories involved.
The court finds it not to be credible that if the February 8, 2002 letter was in fact delivered to MacDonald, MacDonald would have gone through the charade of sending the July and December 2003 letters both of which referred to the 2 percent rent increase for the second year of the lease and both of which assumed that the lease had been reviewed by the defendants staying over on the first one-year rental period without notice of non-renewal. Mr. Squeglia denies receiving the July letter and technically the presumption that mail sent to the correct address was received cannot be applied since there was no testimony as to whether the appropriate postage was put on the letter. Garland v. Gaines, 73 Conn. 662, 664 (1901). But he could not deny receiving the December 2003 certified letter; it was signed for. The court does not find it believable that whether one or both of these letters was received, that at the time of reception the defendants would not have immediately denied any implication that the lease had been renewed, written letters to that effect, or requested a meeting to discuss the issue. When the defendants were in the process of leaving and they had a meeting with Mr. MacDonald the first week in February 2003 and contrary to MacDonald's testimony Ms. Squeglia said there was not very much discussion of rent owing. We are not talking here of late fees and a 2 percent increment on the base rent. This was a situation where the defendants knew the business was in trouble, in fact they left the premises at the end of January 2003 so that at that point a possible rental obligation of almost $10,000 was in the offing.
At one point in his testimony, seemingly relying on paragraph 20 of the lease without specifically mentioning it, Mr. Squeglia seemed to be saying his February 8, 2003 letter was not meant to be a recognition of any understanding that the lease would be renewed under paragraph 34 without proper notification. He was just trying to be considerate of another landlord since he also rents property. But he or his partner specifically negotiated paragraph 34 outside the terms of the printed lease and it is somewhat too convenient that a letter is created which happens to comply with the notice provisions as to time in paragraph 34.
The court finds that for whatever reason the February 8, 2003 letter purportedly from the defendants to Mr. MacDonald was never delivered to that gentleman so that the lease was renewed. The court further finds that Mr. MacDonald made reasonable efforts to rent the premises during the remainder of the defendants' renewed lease period. It was leased to another business in May of 2003. MacDonald's testimony was uncontradicted to the effect that he called Wilmot Realty to rent the property on February 4, 2003, the same day he had his final meeting with the defendants.
The court awards damages as follows. The defendants are obligated to pay rent for the months of February, March and April in the amount of $2,425.00 for each month. The court will award late fees under the lease for January and February 2003, however ($247.00) the lease at paragraph 33 says a late fee would "be assessed if payment is made or received after the tenth day of any given month that the tenant occupies the premises." (Emphasis added by court.) The defendants left the premises March 3, 2003. The court, from examining the photographs submitted as evidence and the testimony believes the plaintiff has established his claims for repair of the pipe ($60.00), cleaning and repairing the office walls ($100.00), changing defusers ($120.00), installing blinds ($60.00). The court has concluded the claim for cleaning the office carpets has not been established. The court further concludes that the 2 percent rental increase for the second year of the renewed lease is owing to the plaintiff for the period from June 2002 to April 2003 ($388.00). This totals $8,250.00 from which the security deposit of $2,425.00 must be subtracted for a total of $5,825.00. In addition, the plaintiff is entitled to court costs and attorneys fees. The court concludes attorneys fees in the amount of $500.00 should be awarded for a total judgment in the amount of $6,325.00 plus court costs.