May 24, 2005
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE #10
The matter presently before the court is a summary process action brought by the plaintiff, Thomas Sayers, as the executor of the will of Senta Sayers, owner of certain premises located at 13 Miry Brook Road in Danbury, Connecticut. The plaintiff alleges that on November 1, 1977, Senta Sayers leased the premises to the defendant, Carl Robert Sayers, pursuant to a written lease, and that after the lease expired on October 31, 1997, the defendant did not vacate the premises. The plaintiff further alleges that on January 3, 2005, in the manner required by statute, he gave due notice to the defendant to quit the premises on or before January 7, 2005. He alleges that the defendant refused and neglected to quit possession.
General Statutes § 47a-23(a) provides in pertinent part: "When the owner or lessor . . . desires to obtain possession or occupancy of any land or building . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates . . . (A) By lapse of time . . . or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession of such land [or] building . . . 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."
On January 24, 2005, the defendant filed an answer and special defenses. In the first special defense, to which this motion to strike is directed, the defendant asserts that the parties extended the defendant's tenancy by their words and deeds. The defendant filed a motion to amend his answer on March 14, 2005, together with an amended answer and memorandum of law in support.
Practice Book § 10-60(a), in relevant part, permits an amended pleading to be filed at any time "(1) By order of judicial authority; or (2) By written consent of the adverse party; or (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party . . . and with proof of service endorsed thereon . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." Following oral arguments on this matter on March 14, 2004, the defendant's counsel informed this court, with no objection from opposing counsel, that he intended to file an amended answer. That same day, he filed a motion to amend his answer, together with the amended answer and a memorandum of law in support, and hand delivered the same to the plaintiff's counsel.
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Grant v. Bassman, 221 Conn. 465, 472-73, 604 A.2d 814 (1992). The defendant must plead sufficient facts in support of its special defenses. Knights of Columbus Federal Credit Union v. Salisbury, 3 Conn.App. 201, 208-09, 486 A.2d 649 (1985). Defendants are held "to the same standard of definiteness with respect to special defenses that plaintiffs are held to in their complaints. The special defense must therefore inform the plaintiff with reasonable clarity of the nature of the defense asserted." (Internal quotation marks omitted.) Ashken v. Edwards, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4000178 (December 15, 2004, Tobin, J.).
A motion to strike is the proper vehicle for a plaintiff to challenge a special defense. See Practice Book § 10-39(a)(5). "The same principles and standard are applicable to motions to strike special defenses as to motions to strike claims." Rytman v. Colchester Foods, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 88 0159961 (October 12, 2001, Hodgson, J.). Therefore, the trial court has an "obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
Although the defendant's first defense in his original answer lacks specificity, the defendant amplifies the first defense in his amended answer. He alleges that: "(1) At the expiration of the original lease term on October 31, 1997, the defendant's monthly rental obligation was set at $360; (2) Subsequent to the expiration of the original lease term, defendant has made rental payments in varying amounts and at irregular intervals which represented payment of defendant's current rental obligations during the extension, as the case may be, in addition to advance rent; (3) At the end of the original lease term on October 31, 1997 and thereafter, Senta Sayers took no action to evict the defendant, yet continued to accept defendant's rental payments from defendant; (4) After the expiration of the lease term, Senta Sayers and the defendant collectively entered into agreements with various third parties to sell the demised premises and property owned by the defendant; (5) Senta Sayers' acceptance of all payments made by the defendant coupled with the conduct of the defendant and Senta Sayers constituted an oral extension, although not a renewal, of defendant's occupancy commensurate to the amount of rent prepaid by the defendant or in the alternative, until the demised premises is sold."
The plaintiff moves to strike the first special defense on the ground that Connecticut's statute of frauds, General Statutes § 52-550, prohibits a tenant from proving the extension of a written lease with parol evidence. The defense of the statute of frauds may be raised by a motion to strike. Breen v. Phelps, 186 Conn. 86, 439 A.2d 1066 (1982). "Courts [will] permit the [s]tatute of [f]rauds to be raised by a motion to strike only when the alleged agreement falls squarely within those categories of agreements required to be in writing." (Internal quotation marks omitted.) Mars Electric, LLC v. Wooster Par, LLC, Superior Court, judicial district of Danbury, Docket No. CV 04 4000373 (January 28, 2005, Bellis, J.) (38 Conn. L. Rptr. 545). Pursuant to § 52-550(a)(4), an agreement to lease premises for a term of more than one year is within the statute of frauds. See also Simons v. New Britain Trust Co., 80 Conn. 263, 267, 67 A. 883 (1907). Therefore, the plaintiff's motion to strike is brought properly on this ground.
General Statutes § 52-550 provides, in relevant part: "(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party to be charged . . . (4) upon any . . . interest in or concerning real property." Pursuant to subsection (b), however, leases for less than a year, are exempted from the application of this section.
Here, as alleged, the defendant's original lease provided for a twenty-year term commencing on November 1, 1977 and ending on October 31, 1997. A review of the parties' lease agreement, attached to the complaint as Exhibit A, shows that there are provisions for both an option to renew and an option to extend the lease after the original lease expires. "Our case law recognizes a technical distinction between a covenant to renew a lease and a covenant to extend a lease . . . A covenant to renew a lease requires a new written instrument, whereas a new written instrument is not required by a covenant to extend because the original lease operates as a continuous one . . . This distinction is particularly important if a question of satisfaction of the statute of frauds is involved." (Citations omitted.) David A. Altschuler Trust v. Blanchette, 33 Conn.App. 570, 572-73, 636 A.2d 1381, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). As neither party alleges that a new written lease was executed, if the lease continued past its expiration, it was not the result of a renewal being effected.
Practice Book § 10-29(a) provides, in relevant part: "Any plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length . . ." For purposes of addressing the present motion, the lease agreement is therefore treated as part of the pleading.
Paragraph 4 of the lease states: "Option. The Lessee shall have the option to renew on at least one hundred twenty (120) days' prior written notice to the Lessor to renew this lease for one additional term of five (5) years."
The lease provides that "in case the Lessee shall, with the written consent of the said Lessor endorsed hereon, or on the duplicate hereof, at any time hold over the said premises, beyond the period above specified as the termination of this lease, then the said Lessee shall hold said premises upon the same terms, and under the same stipulations and agreements as are in this instrument contained, and no holding over by said Lessee shall operate to renew this lease without such written consent of said Lessor."
In contrast to a lease renewal, "[t]he exercise of an option to extend the term of a lease . . . does not require any additional instrument beyond the original lease to give it validity. This is because the original lease contains all of the essential terms of the extended lease . . . Consequently, the statute of frauds is satisfied by the original lease." (Citations omitted.) Heyman v. Chen, Superior Court, Judicial District of Stamford-Norwalk Housing Session, Docket No. CVNO 91 082109 (November 9, 1993, Melville, J.)
The defendant alleges that he made "varying payments" of rent "at irregular intervals" to the plaintiff's decedent, which she accepted. That, together with the parties' alleged agreements to sell the demised premises and property to third parties, constitutes the parol evidence on which the defendant relies to establish an extension of the lease. "[W]hether the option [to extend] was effectively exercised is a question of fact which is determined by looking at the intention of the parties as expressed in their words and deeds . . . [T]he act of holding over together with the payment of the agreed upon rental has been held sufficient conduct to constitute an effective exercise despite the absence of a writing." (Citation omitted.) Id. In Heyman, for example, the court found that after the defendant tenant held over after the expiration of the lease, the tenant continued to pay rent, at the higher rate provided for in the original lease in the event of an extension, and those facts led inescapably to the conclusion that by their conduct . . . the parties intended that said lease be extended and that an option to that effect had been effectively exercised." Id. Additionally, it was found that the landlord had waived the requirement of a signed writing by accepting the tenant's oral request to extend the lease. Id.
Pursuant to the lease, payment of rent was to be made on a monthly basis.
Construed in a manner most favorable to the defendant in this matter, the facts pleaded in the first special defense do not, however, establish a legally sufficient defense to the plaintiff's summary process action. Even if the plaintiff orally acquiesced to the defendant's continued occupancy of the subject premises after the termination of the original lease term, it does not follow that there was an agreement to lease the premises for an undefined term of years. An oral agreement to lease premises for a term of years is within the statute of frauds; a tenant cannot defeat a landlord's recovery of possession of leased premises by using parol evidence to impose upon it the obligations of a lease for an unexpired term of years. Simons v. New Britain Trust Co., supra, 80 Conn. 266-67.
At best, the defendant can establish that, after expiration, the lease continued on a month-to-month basis. General Statutes § 47a-3d provides: "Holding over by any lessee after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease. Parol leases of lands or tenements reserving a monthly rent and in which the time of their termination is not agreed upon shall be construed to be leases for one month only." "In the case of a rental on a month-to-month basis the tenancy is not regarded as a continuous one. The tenancy for each month is one separate from that of every other month." (Internal quotation marks omitted.) FJK Associates v. Karkoski, 52 Conn.App. 66, 68, 725 A.2d 991 (1999). "It is well settled that the termination of a lease by a notice to quit transforms the prior tenancy into a tenancy at sufferance." Heyman v. Chen, supra, Superior Court, Docket No. CVNO 91 082109 (November 9, 1993, Melville, J.); see O'Brien Properties, Inc., v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990). "A landlord may properly remove such a tenant at sufferance through a summary process action for lapse of time;" FJK Associates v. Karkoski, supra, 52 Conn.App. 68; or based on the fact that the tenant originally had the right or privilege to occupy such premises but such right or privilege has terminated. See General Statutes § 47a-23(a).
"A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated." Welk v. Bidwell, 136 Conn. 603, 608-09, 73 A.2d 296 (1950).
The defendant's first special defense asserts that by oral agreement and conduct, the defendant and the plaintiff's decedent extended the lease. To orally extend the lease for a term of years, however, would violate the statute of frauds. If the plaintiff's decedent acquiesced to the defendant's continued tenancy, taking the facts asserted in the special defense to be true, the tenancy would only have been on a month-to-month basis. This does not defeat the plaintiff's ability to bring a summary process action and terminate the tenancy. For the foregoing reasons, the plaintiff's motion to strike is granted.