THE BANK OF HARTFORD, INC. V. ALDA BULTRON, ET AL
NO. 9206-65684; H#997
SUPERIOR COURT OF CONNECTICUT
JUDICIAL DISTRICT OF HARTFORD-NEW BRITAIN, AT HARTFORD, HOUSING COURT
1992 Conn. Super. LEXIS 3694
December 3, 1992, Decided
MEMORANDUM OF DECISION
This action concerns plaintiff’s third attempt in less than a year to evict defendants from Apartment B-12, 15 Alden Street in Hartford. The present action was commenced by the service of a notice to quit dated May 16, 1992. The notice gave the following reasons for termination of the lease:
A) Lapse of time;
B) Serious nuisance;
C) Tenant never had the right or privilege to occupy the premises;
D) The right or privilege to occupy the premises has terminated.
On June 12, 1992, plaintiff filed a four count complaint alleging the same grounds specified in the notice to quit. A default for failure to appear entered against Luis Falcon. Defendant Alda Bultron has appeared through counsel. Her motion to strike count three of the complaint, alleging that defendants’ right to occupy the premises has terminated, was sustained, leaving a three count complaint alleging lapse of time, serious nuisance and no right or privilege.
The following additional facts are relevant to resolution of the parties’ claims. Plaintiff acquired title to the property by foreclosure in April, 1992. Defendants had been tenants of the previous owners since at least September 3, 1991, pursuant to an oral month to month lease. (See, “Complaint” in SPH 9201-63555 of which the court has taken judicial notice; State v. Lenihan, 159 Conn. 550, 554 (1964)). Since September, 1991, plaintiff twice has unsuccessfully sought to evict defendants. On April 14, 1992, the City of Hartford Department of Licenses an Inspections issued orders that the following municipal code violations be corrected: 1) living room door broken; 2) no deadbolt on the living room door, 3) peeling paint on bathroom window; 4) central hall/foyer smoke detector inoperable; 5) kitchen window sash cord broken; and 6) right-front window molding in disrepair. On May 1, 1992, plaintiff notified defendants by letter that their oral month to month lease was reinstated, effective May 1, 1992. On May 16, plaintiff served defendants with a notice to quit.
In August, 1991, eight months prior to plaintiff taking ownership of the building, defendant Bultron was arrested and charged with possession of narcotics in violation of General Statutes § 21a-279(a) and possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a). Her arrest resulted from an ongoing investigation of alleged narcotics activities taking place in defendant’s apartment. Based on that investigation the Hartford Police Department obtained a search and seizure warrant based on the affidavit of a so-called reliable and confidential informant. Armed with the warrant Hartford police officers entered defendants’ apartment and found approximately one ounce of cocaine under a sofa cushion.
Plaintiff’s complaint alleges that the sale of drugs from the apartment occurred on or about May 1, 1992. It was not until the arresting officer testified in this hearing that it was disclosed that the alleged drug sale occurred in August, 1991. Plaintiff immediately moved, pursuant to C.P.B. Sec. 178, to amend the complaint to conform it to the evidence resented at trial. Decision on that motion was reserved.
I.
Defendant has interposed a number of special defenses, the principal one of which is that plaintiff’s effort to evict defendants is in retaliation for the City of Hartford’s Office of License and Inspections issuing orders directing plaintiff to remedy certain violations of the municipal housing code. In order to resolve this and other related issues, each count of plaintiff’s complaint will be addressed individually.
A.
Lapse of Time
The defendants agree that their oral month to month lease commencing May 1, 1992, has lapsed by reason of time. Notwithstanding this agreement, defendants insist that plaintiff cannot maintain this action because it is retaliatory within the meaning and in violation of General Statutes Sec. 47a-20, which provides that:
A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsection (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants’ union.
General Statutes Sec. 47a-20a recognizes that certain eviction actions, even if commenced within six months of a complaint being filed or orders issuing by a municipal code inspector are not deemed to be retaliatory:
Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit if: (1) The tenant is using the dwelling unit for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent; (2) the landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode; (3) the condition complained of was caused by the willful actions of the tenant or another person in his household or a person on the premises with his consent; or (4) the landlord seeks to recover possession on the basis of a notice to terminate a periodic tenancy, which notice was given to the tenant before the tenant’s complaint.
Defendant claims that a presumption of retaliation arises in this case because the City of Hartford Office of License and Inspections issued a corrective order to plaintiff on or about April 14, 1992, and the notice to quit was issued approximately one month later, on May 16, 1992. “Sec. 47a-20 establishes retaliation as a presumption, if a summary process action is initiated within six months of a complaint, which the landlord must then successfully rebut.” Visco v. Cody, 16 Conn. App. 444, n.7 (1988). The purpose and operation of the retaliatory eviction provisions of the summary process law have been summarized previously:
Under § 47a-20, supra, the retaliatory eviction defense is not a right given to tenants, but rather a limitation upon the remedies of the landlord. Upon the occurrence of one or more of four acts committed by the tenant, the landlord “shall maintain . . . [no] action . . . against a tenant to recover possession of a dwelling unit . . . within six months after . . . .” Section 47a-20 (a), supra. Therefore, under § 47a-20 (a), the establishment of a prima facie case by a tenant under any one or more of the four prescribed acts would give rise to a presumption of retaliatory action by a landlord. Once the tenant has produced sufficient evidence to bring himself within one or more of those four actions, then a prima facie case will have resulted. The presumption of § 47a-20 is rebuttable, and the landlord is permitted by substantial countervailing evidence to rebut it. In essence, he will be required to establish a legitimate interest in the eviction. The presumption is accorded as a matter of public policy. It imposes upon the landlord not only the burden to produce substantial countervailing evidence but also the burden of proving facts which fairly put in issue the presumed fact.
Alteri v. Layton, 35 Conn. Sup. 261, 264 (1979) (cites omitted).
In this case plaintiff admits that it received an abatement order from the City of Hartford within thirty days of its commencing the present summary process action. The burden therefore shifts to it to “produce substantial countervailing evidence” which establishes “a legitimate interest in the eviction.” Id. Plaintiff has failed to present substantial countervailing evidence rebutting the presumption that its eviction was retaliatory. Indeed the record is silent with respect to any evidence rebutting the presumption of retaliation. The only exception under Sec. 47a-20a that might apply is subsection (1) which permits a landlord to maintain an eviction action if “the tenant is using the dwelling for an illegal purpose.” While plaintiff has presented substantial evidence that defendant’s apartment was being used for the sale of drugs in August, 1991, it has not presented any facts suggesting that in May, 1992, such drug sales were occurring. Accordingly, judgment shall enter for defendant on count one, the defendant having sustained its special defense. McGregor v. Hartfield, SPH-8408-24708 (Sept. 26, 1984) (Aronson, J.) Zlokower v. Pelletier, SPH-8110-1238 (January 6, 1981) (Satter, J.)
B.
Defendant never had the right or privilege to occupy the apartment
Plaintiff’s second count alleges that defendants never had the right or privilege to occupy the apartment. This claim fails for two reasons. First, plaintiff’s own evidence indicates that in fact defendants had the right or privilege to occupy the apartment. On May 1, 1992, plaintiff advised defendants by letter that “we have reinstated your month-to-month tenancy at 1 Alden Street, Apartment B-12, Hartford, Connecticut effective May 1, 1992.” (Def. Exh 1) The clear import of this letter is that prior to May 1, 1992, defendants had a right or privilege to occupy the apartment pursuant to a month-to-month tenancy; that right or privilege was terminated; and was reinstated pursuant to the May 1 letter. This is consistent with the allegations in plaintiff’s previous summary process complaint which alleges a month to month tenancy. See, “Complaint” in SPH 9201-63555. Under these circumstances it cannot be said that the defendants “never had the right or privilege to occupy the apartment.” Alternatively, defendants’ special defense alleging this eviction is retaliatory is as applicable to this count as it is to count one. Therefore judgment shall enter for defendants on count two.
C.
Defendants use of the premises constituted a serious nuisance
Plaintiff’s fourth count alleges that defendants’ use of the premises constituted a serious nuisance, in that, pursuant to the definition of serious nuisance in General Statutes Sec. 47a-15, the premises were used for the illegal sale of drugs. In support of this claim plaintiff presented evidence indicating that the Hartford Police Department, over an extended period of time, surveilled defendants’ apartment and concluded, based on the personal observations of investigating officers and information provided by at least one confidential, reliable informant, that illegal drugs were being sold from defendants’ apartment. This information was presented to a “neutral and detached magistrate”, a Judge of the Superior Court, who determined pursuant to the Fourth Amendment to the United States Constitution and Article I Section 8 of the Connecticut Constitution that there was probable cause to believe that a crime or crimes were being committed in defendants’ apartment and that a search of that apartment would disclose the fruit, evidence or instrumentalities of that crime. See, generally, General Statutes Sec. 54-33a; Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.Ed.2d. 527 (1983); State v. Barton, 219 Conn. 529 (199); State v. Miller, 29 Conn. App. 207 (1992). Execution of the warrant resulted in one ounce of cocaine being discovered, in the immediate presence of defendant Bultron, in her apartment. Bultron’s ensuing arrest for possession and sale of narcotics was found to be based on probable cause by a Judge of the Superior Court, Gerstein v. Pugh, 420 U.S. 103 (1975); General Statutes Sec. 54-1b; C.P.B. Sec. 634.
Defendant has a three part response to plaintiff’s claim that she used the premises for the illegal sale of drugs. First, she argues that although plaintiff’s complaint alleges that the sale occurred on or about May 1, 1992, the testimony of the officer indicates that the sale in fact occurred on or about August 11, 1991. Defendant objects to plaintiff’s motion to amend the complaint to conform to the evidence. Second, defendant argues that if the sale of drugs occurred on August 11, 1991, as plaintiff alleges, plaintiff does not have standing to pursue this claim since plaintiff did not become owner of the building until April, 1992, eight months after the alleged sale. Finally, defendant argues that in any event plaintiff failed to present sufficient evidence to sustain its burden of proof.
The notice to quit issued by plaintiff states that the lease is terminated because of “serious nuisance”. Because that reason is not sufficiently precise in terms of specifying the particular conduct of defendant that constitutes the serious nuisance, the notice to quit is defective. Because the notice to quit is defective, the court does not have subject matter jurisdiction over count four of plaintiff’s complaint. It is not necessary, therefore, to resolve the parties’ dispute as to plaintiff’s request to amend complaint and defendant’s claim that plaintiff lacks standing to pursue the claim of serious nuisance.
“Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss he action.” C.P.B. § 178. Castro v. Viera, 207 Conn. 420 (1988). The court, of course, may at any time consider whether it has jurisdiction to hear the matter before it, and may dismiss a case, sua sponte, for lack of subject matter jurisdiction. Park City Hospital v. Commission on Hospitals and Health Care, 14 Conn. App. 413 (1988).
It is axiomatic that the service of a valid notice to quit is the condition precedent to bringing a summary process action. Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627 (1985). The absence of a valid notice to quit deprives the court of subject matter jurisdiction to hear the case. Webb v. Ambler, 125 Conn. 543 (1939); Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598 (1953). Our courts have repeatedly emphasized that a valid notice to quit must be clear, unambiguous and specific. Jefferson Garden Associates v. Greene, 202 Conn. 128, 143 (1987). Id; Housing Authority of the Town of East Hartford v. Schub, SPH-8010-8299 (December 15, 1980) (Spada, J.); Horace Bushnell v. Jefferson, SPH-841126033 (January 30, 1985) (Goldstein, J.); Parkridge Apartments v. McGann, SPH-8408-24518 (September 26, 1984) (Aronson, J.).
Reference must be made to the provisions of Sec. 47a-23 and 47a-15 in order to evaluate the notice in this case. Sec. 47a-23 sets forth the statutorily acceptable grounds for terminating a lease. One of those grounds is specified in subsection (G) which refers to “serious nuisance, as defined in section 47a-15.” Sec. 47a-15, in turn, states:
For the purposes of this section, “serious nuisance means (A) inflicting bodily harm upon another tenant or the landlord or threatening to inflict such harm with the present ability to effect the harm and under circumstances which would lead a reasonable person to believe that such threat will be carried out, (B) substantial and willful destruction of part of the dwelling unit or premises, (C) conduct which presents an immediate and serious danger to the safety of other tenants or the landlord, or (D) using the premises for prostitution or the illegal sale of drugs.
Serious nuisance can be committed in one of four ways. Therefore the notice to quit in this case, by referring only to “serious nuisance”, could be understood to refer to defendant inflicting bodily harm on another, or destroying the premises, or engaging in conduct which presents an immediate danger to other tenants or using the premises for prostitution or drugs. Such a notice, which lends itself to multiple interpretations, is defective for lack of specificity. A tenant is not required to guess the actual reason for the summary process action. Bushnell Plaza Development Corp. v. Brett, SPH 8501-26883 (May 15, 1985) (Goldstein, J.); Pierson v. Pierson, SPNH-8205-1624 (Foti, J.).
For these reasons the blanket assertion that tenant has committed a serious nuisance without reference to the conduct constituting the serious nuisance renders the notice defective. Because of the summary nature of summary process, “the statute granting it has been narrowly construed.” Jo-Mark Sand & Gravel Co. v. Pantanella, supra. Count four of plaintiff’s complaint is therefore dismissed for lack of subject matter jurisdiction as it is based on a defective notice to quit.
To summarize, judgment will enter for defendant on count one and two of the complaint. Count four is dismissed.
SO ORDERED.
Robert L. Holzberg, J.