280 BROAD, LLC v. CARL ADAMS, SR.

2006 Ct. Sup. 17072
No. HDSP-137382Connecticut Superior Court Judicial District of Hartford Housing Session at Hartford
September 26, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
JAMES M. BENTIVEGNA, JUDGE.

I. STATEMENT OF CASE
This is a summary process action based on nonpayment of rent. The plaintiff, hereinafter (“Landlord”), seeks to evict the defendant, hereinafter (“Tenant”). The Landlord alleges that the Tenant failed to pay the rent for the months of January 2006 through and including April 2006. The Tenant alleges the following special defenses: (1) Rent was offered to my landlord before the Notice to Quit was received; (2) Condition of the premises; (3) Retaliatory action by the landlord; and (4) Physically disabled.[1] The case was tried on May 31, 2006, July 18, 2006, August 15, 2006, and September 11, 2006. The Tenant appeared pro se.[2]

II. FACTS
“The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties.” (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).

“It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the CT Page 17073 fact finder to reject or accept certain evidence . . .” (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56, Conn.App. 534, 540, 744 A.2d 915 (2000). “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].” Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). “[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony.” (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). `The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” Smith v. Smith, supra, 183 Conn. 123. “That determination of credibility is a function of the trial court.” Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 763 A.2d 199 (2001).

“[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier’s exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).

The trial court’s function as the fact finder “is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).

“While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id.Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1067 (1992).

The standard of proof in summary process actions, a fair CT Page 17074 preponderance of the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.” (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).[3]

The Tenant’s answer admits the following material allegations of the complaint.[4] The Landlord is the managing agent for the record owner of certain premises located at 5 Elm Street, Apt. 4, Windsor, Connecticut (“Premises”). The Tenant took possession of the Premises pursuant to said Lease and still occupies the Premises. The Tenant agreed to pay a monthly rent of $650, due and payable in advance on the first day of each month during the term of the Lease. Although the time given in the notice to quit possession of the premises has passed, the Tenant still continues in possession. The Tenant contests the other material allegations of the complaint.

The Court finds the following facts by a fair preponderance of the evidence.

The Landlord is the owner of the premises at 5 Elm St., Apt. 4, Windsor, Connecticut. Tullat Mahmood is the managing agent for the Landlord. On August 10, 2005, the Tenant moved into the premises. The agreed-upon rent was $650.

The Tenant paid rent from August 2005 through December 2005. The Tenant claims he attempted to offer the rent for January 2006. He testified that he tried to pay rent to Mahmood’s cousin who has a store downstairs. The Tenant also claims that he offered the Landlord $1,300 for rent in February 2006. The Landlord disputes these claims. The Landlord testified he would have accepted rent if it was actually offered.

During his tenancy, the Tenant complained to the Landlord regarding several issues with the apartment including furnace problems, water leaks and rodent infestation, The Tenant also testified he had high heating and electric bills.

In late December 2005, the Tenant experienced problems with the furnace and/or plumbing that caused flooding. He was without heat and electricity in his apartment. During this period, town officials became involved. The furnace was eventually repaired to the town’s satisfaction. The Landlord claims the Tenant was without heat for only a day. CT Page 17075

On or about February 7, 2006, the Tenant complained about a water leak around the boiler. The Landlord had the boiler serviced. The boiler was inspected and found to be functioning properly for its age and condition.

On or about April 5, 2006, the gas furnace in the Tenant’s bedroom erupted and flooded the apartment with water. The Tenant was unable to contact the Landlord. He then called the local police. The police came to the apartment and finally contacted the Landlord. At some point, town officials became involved. The furnace had to be replaced. The Landlord paid for the Tenant to stay at a local motel for a few days while the repairs were being made to the apartment. The furnace issue was eventually resolved to the town’s satisfaction. The Landlord claims that once he was informed the furnace erupted, it was replaced in a few days.

The Tenant’s caseworker testified about his almost monthly visits to the apartment. He noted problems with the apartment and observed that the Tenant made repairs to the apartment. After the furnace erupted in April 2006, he saw the water damage in the apartment. He heard the Tenant talk about doing work for the Landlord and complain about his relationship with the Landlord. When asked, the caseworker testified that he did not believe the apartment was uninhabitable, except during the furnace incident in April 2006.

The Tenant also offered evidence that the apartment had a rodent infestation. The Landlord claims that once he was informed of the issue, he addressed the infestation problem to the town’s satisfaction.

On April 13, 2006, the Landlord served the Tenant with a Notice to Quit Possession based on nonpayment of rent. After the notice to quit was served, the Tenant paid $650, which was accepted as use and occupancy. The Tenant has not made any other payments since April.

During the trial, the Tenant presented evidence that he did work for the Landlord for which he was not compensated. The work included cutting down trees, cleaning the hallways and painting. He testified that he acted like a superintendent for the building. The Tenant also apparently did some work in the apartment on his own initiative. He also ran his business, selling fragrances, out of the apartment. The Landlord denies CT Page 17076 that he hired the Tenant to do work for him. The Landlord testified he felt threatened by the Tenant. The parties were not on good terms.

III. DISCUSSION A Landlord’s Case
In a summary process action based on nonpayment of rent, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed-upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The tenant failed to pay the rent due under the lease by a certain date; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. See § 47a-23(a)(1)(D).

Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. Gulycz v. Stop Shop Cos., supra, 29 Conn.App. 523.

In this case, the Tenant was obligated to pay monthly rent of $650. The Tenant failed to pay the rent due for the months of January 2006 through and including April 2006. The notice to quit served on April 13, 2006, is proper and in conformity with the statute. The Tenant failed to vacate the premises after the quit date and remains in possession of the premises.

Based on the evidence presented, the court finds that the Landlord has proved, by a fair preponderance of the evidence, all the elements of the case.

B CT Page 17077 Tenant’s Defenses (1)
Rent was offered to my landlord before the Notice to Quit was received.

The Tenant alleges that the rent was offered to the Landlord on April 1, 2006, which was before the Notice to Quit was served.

The Tenant offered evidence that he attempted to pay the rent for January 2006 and February 2006. He also testified that he paid rent for April 2006. No credible evidence was offered regarding the rent for March 2006. The Landlord denies he was offered rent for January 2006 and February 2006. He testified that he would have accepted rent if it was actually offered. The rent for April 2006 was paid after the notice to quit was served and was accepted as use and occupancy. Overall, the evidence is not sufficiently persuasive that the Tenant offered rent to the Landlord for the months in question.

Although it appears that the Tenant did some work for the Landlord, the evidence is inconclusive as to the terms of any agreement between the parties. Even if the Tenant did cut down some trees for the Landlord, he had already failed to pay rent. The evidence fails to prove that the parties had an agreement for a rent reduction or credit for work performed by the Tenant.

While the Court “is free to juxtapose conflicting versions of events and determine which is more credible,” based on the evidence presented, the Court can only speculate as to this issue. See State v. Osborne, supra, 41 Conn.App. 291. The Court is unable to find, by a fair preponderance of the evidence, the Tenant had a work arrangement with the Landlord that altered or replaced the obligation to pay rent. If the Tenant believes he was not paid for work by the Landlord, he may have grounds to file a small claims action or other lawsuit against the Landlord. But the Court is unable to resolve this issue in the context of an eviction case.

“Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense.” (Citations omitted.) Tait’s, Handbook of Connecticut Evidence (3rd Ed. 2001) § 3.3.1, CT Page 17078 p. 136. The evidence supports the finding that the Tenant did not offer rent to the Landlord for all the months in question before the service of the Notice to Quit.

Based on the evidence presented, the Court finds that the Tenant has failed to prove, by a fair preponderance of the evidence, this defense.

(2) Condition of the Premises
The Tenant argues that no rent is due because the Landlord failed to properly maintain the premises.

“To ensure that the landlord’s duties are performed, General Statutes 47a-4a provides that a rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a-7. Generally, a tenant claiming the right to withhold rent must show that the landlord’s failure to comply with 47a-7(a) materially affects his safety . . . or has rendered the premises uninhabitable.” (Citation omitted; internal quotation marks omitted.) Housing Authority v. Olesen, 31 Conn.App. 359, 363, 624 A.2d 920
(1993).[5]

“Connecticut law recognizes that health or housing code violations may vitiate a tenant’s obligation to pay rent but only serious and substantial violations affecting safety or well being.” (Citation omitted; internal quotation marks omitted.)Elkies v. Bear, Superior Court, judicial district of New Haven at Meriden, Docket No. SPM CV 04-0287606 (July 6, 2004, Frazzini, J.) (2004 Ct.Sup. 10984).

The Tenant has “the burden of proof on her special defense that no rent was due under General Statutes section 47a-4a because of various health and housing code violations violating § 47a-4(a) Evergreen Corporation v. Brown, 35 Conn.Sup. 549, 552, 396 A.2d 146 (App.Sess. 1978).” Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10984. “[T]he sanctions in these sections [§§ 47a-7 and 47a-4a inclusive] are not triggered until and unless evidence is adduced at trial establishing that there is a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant, . . .” (Citations omitted.) Visco v. Cody, 16 Conn.App. 444, 450-51, CT Page 17079 547 A.2d 935 (1988).

“In enforcing the mandate of General Statutes § 47a-4a that no rent is due when a landlord has not complied with its statutory duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, courts have generally demanded more than a tenant’s word that there are serious health or safety hazards to corroborate such a claim — such as a report from a fire marshal or housing inspector or an independent witness.” (Internal quotation marks omitted.) Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10985. “[T]o establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable. Evergreen Corporation v. Brown, 35 Conn.Sup. 549, 552, 396 A.2d 146 (1978) (suggesting that a tenant `utilize the broad range of municipal boards, agencies, and commissions’ to remedy defects).” Visco v. Cody, supra, 16 Conn.App. 450. “This court does not construe such cases as holding that a tenant’s testimony is, as a matter of law, insufficient to prove an uninhabitability claim; see, e.g., Morgan v. White, 168 Conn. 336, 349, 362 A.2d 505 (1975); Denby v. Commissioner, 6 Conn.App. 47, 502 A.2d 954 (1986); but instead as suggesting that most courts will find the tenant’s own word unpersuasive unless there is additional evidence to back up the claim.” Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10985-986.

Although a housing code enforcement agency may find code violations in an apartment, that fact alone does not relieve a tenant at the obligation to pay rent. In Rosow v. Gonzalez,
Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. H-7905-01528 (July 5, 1979, Spada, J.), Judge Spada found that the tenant failed to establish that the apartment was uninhabitable, although there were a number of problems. The tenant complained that the bedroom ceiling leaked, a broken window was not repaired, other windows could not be opened for ventilation, the heat did not work on several occasions, the front door was difficult to open, the apartment was infested with mice, and trash was found in the hallways which were also poorly lit. The court stated “that premises or a dwelling unit are unfit and uninhabitable when they fail to meet basic structural, mechanical and housing code regulations . . . Each situation needs to be examined on a case-by-case basis. Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would CT Page 17080 constitute a hazard to the safety and welfare of the occupants.” In regards to the no heat complaint, the court in Rosow found that “[t]he complaint of lack of heat in December 1978, even if believed, is waived because of the payment of rent.”

The Tenant also claims that the premises were rendered uninhabitable due to rodent infestation. “Courts which have considered the relationship between General Statutes Sec. 47a-7
and 47a-4 have uniformly concluded that where the premises have been rendered uninhabitable by virtue of rodent and roach infestation, the tenant is relieved from the obligation to pay rent and may raise the uninhabitability of the apartment as a defense to a summary process action based on nonpayment of rent Steinegger v. Rosario, 35 Conn.Sup. 151 (1979); Tucker v. Lopez, 38 Conn.Sup. 67 (1982). Whether the premises is uninhabitable to the extent that the tenant is relieved of the obligation to pay rent depends on the facts of each individual case and whether the uninhabitability is caused by the tenant Hayes v. Capitol Buick, 119 Conn. 372 (1935).” Housing Authority, Hartford v. Williams, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 92006-65824 (October 8, 1992, Holzberg, J.) (1992 Ct.Sup. 9310). In Williams, the court considered a number of factors in concluding that the premises were uninhabitable. The maintenance records indicated that the roach problems were present from virtually the day the tenant moved into the apartment. The tenant made repeated complaints to the housing code department and the housing authority alleging that the apartment was infested with roaches, ants, and rodents. On numerous occasions, the housing authority exterminated the apartment. A housing code inspection confirmed the tenant’s complaints. After the inspection, the housing authority took nearly two months to rectify the problem. The tenant’s child was treated at the hospital for an allergic reaction to a bug bite received at the apartment. Because of the replacement of the heating system, there were open holes in the tenant’s apartment in which the water and heating pipes run. As a result of the ongoing infestation, the tenant and her children had effectively moved out of the apartment and moved into the grandmother’s apartment. The court also found that although the tenant’s cleaning habits may have exacerbated the problems, they did not cause them.

In this case, the Tenant claims that the Landlord failed to comply with his responsibilities under § 47a-7, to “make all repairs and do whatever is necessary to put and keep the premises CT Page 17081 in a fit and habitable condition . . .” § 47a-7(a)(2). He introduced photographs depicting the condition of the premises. The photographs show an apartment in need of some repairs.

The Tenant made complaints to the Landlord regarding the condition of the premises, including problems with the furnace. The Tenant had to vacate his apartment in April 2006 because the furnace erupted, but he was able to return to the apartment several days later after appropriate repairs were made. The Tenant’s caseworker testified that he did not believe that the apartment was uninhabitable, except during the furnace incident in April 2006. The caseworker visited the Tenant on an almost monthly basis during the tenancy.

Overall, the evidence does not support the finding that the Tenant was relieved of the obligation to pay rent due to the condition of the premises. Although the Tenant was not satisfied with the Landlord’s efforts to address the furnace issue, the evidence fails to demonstrate that the furnace problems caused the premises to be rendered unfit and uninhabitable for the entire period from January 2006 through April 2006. Unlik Williams, the evidence presented regarding the rodent infestation does not demonstrate the premises were rendered uninhabitable on that basis.

The evidence also suggests that the Tenants’ failure to pay rent was not solely motivated by the condition of the premises. See Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10987. The Tenant testified he had difficulty paying the high heating and electric bills during the months in question. “Although a tenant’s reasons for not paying rent are not a necessary element for proving that no rent was due under § 47a-4a, the motives for someone’s conduct tell much about the underlying facts and circumstances.” Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10987.

“Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense.” (Citations omitted.) Tait’s, Handbook of Connecticut Evidence (3rd Ed. 2001) § 3.3.1, p. 136. In this case, the evidence does not support the finding that the Tenant was relieved of the obligation to pay rent by “a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant, . . .” Visco v. Cody, supra, 16 Conn.App. 450-51. CT Page 17082

Based on the evidence presented, the Court finds that the Tenant has failed to establish, by a fair preponderance of the evidence, this defense.

(3) Retaliatory Action pursuant to § 47a-20 and § 47a-33
The Tenant also alleges retaliatory action pursuant to § 47a-20 and § 47a-33.

General Statutes Sec. 47a-20, entitled “Retaliatory action by landlord prohibited,” provides:

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 subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants’ union.

However, General Statutes Sec. 47a-20a, entitled “Actions deemed not retaliatory,” states:

(a) 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 CT Page 17083 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 wilful 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.
(b) Notwithstanding the provisions of section 47a-20, a landlord may increase the rent of a tenant if: (1) The condition complained of was caused by the lack of due care by the tenant or another person of his household or a person on the premises with his consent or (2) the landlord has become liable for a substantial increase in property taxes, or a substantial increase in other maintenance or operating costs not associated with his complying with the complaint, not less than four months before the demand for an increase in rent, and the increase in rent does not exceed the prorated portion of the net increase in taxes or costs.
(c) Nothing in this section or section 47a-20 shall be construed to in any way limit the defense provided in section 47a-33. (Emphasis added.)

Furthermore General Statutes § 47a-33, entitled “Defense that action is retaliatory,” provides:

In any action for summary process under this chapter or section 21-80 it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, including contacting officials of the state or of any town, city, borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any of the provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie. CT Page 17084 The obligation on the part of the defendant to pay rent or the reasonable value of the use and occupancy of the premises which are the subject of any such action shall not be abrogated or diminished by any provision of this section. (Emphasis added.)

“As we have said on prior occasions, retaliation is not a defense to a summary process action brought because of nonpayment of rent. Smith v. Warsham, SPNH 8207-2132 (September 8, 1982) Jacobson v. Johnson, SPNH 8207-2006 (September 8, 1952) Maretz v. Apuzzo, 34 Conn.Sup. 594, 597 (1977).” Mordecai v. Botwe-Asamoah, Superior Court, judicial district of New Haven, Docket No. 8208-2228 (September 29, 1982, Foti, J.). Se Bordiere v. Ramirez, Superior Court, judicial district of New Britain, housing court, Docket No. SPN 99 1031769 (December 23, 1999, Tanzer, J.) (28 Conn. L. Rptr. 359) (1999 Ct.Sup. 16934, 16936-936). In Bordiere, the court held that “while the temporal sequence of the complaints and service of the notice would be significant in deciding a claim of retaliatory eviction, I need not determine the point in this case because neither General Statutes § 47a-20 nor General Statutes § 47a-33 pertains where the reason for the eviction is nonpayment of rent. General Statutes § 47a-20a entitled `Actions deemed not retaliatory’ states, `Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit . . . for nonpayment of rent . . . This defense is not available to the defendants.” Bordiere v. Ramirez, supra,
Superior Court, 1999 Ct.Sup. 16935-936.

Despite allegations of retaliatory action, a landlord may maintain a summary process action based on nonpayment of rent. §47a-20a(a). In this case, the Tenant is unable to avail himself of this special defense.

(4)
Physically disabled pursuant to § 47a-23c

The Tenant also alleges that he is physically disabled. General Statutes § 47a-23c, entitled “Prohibition on eviction of certain tenants except for good cause,” provides in relevant part:

(a)(1) Except as provided in subdivision (2) of this subsection, this section applies to any tenant who resides in a building or complex consisting of five CT Page 17085 or more separate dwelling units or who resides in a mobile manufactured home park and who is either: (A) Sixty-two years of age or older, or whose spouse, sibling, parent or grandparent is sixty-two years of age or older and permanently resides with that tenant; (B) blind, as defined in section 1-1f; or (C) physically disabled, as defined in section 1-1f, but only if such disability can be expected to result in death or to least for a continuous period of at least twelve months . . .
(b)(1) No landlord may bring an action of summary process or other action to dispossess a tenant described in subsection (a) of this section except for one or more of the following reasons: (A) Nonpayment of rent; (B) refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of this section; (C) material noncompliance with section 47a-11 or subsection (b) of section 21-82, which materially affects the health and safety of the other tenants or which materially affects the physical condition of the premises; (D) voiding of the rental agreement pursuant to section 47a-31, or material noncompliance with the rental agreement; (E) material noncompliance with the rules and regulations of the landlord adopted in accordance with section 47a-9 or 21-70; (F) permanent removal by the landlord of the dwelling unit of such tenant from the housing market; or (G) bona fide intention by the landlord to use such dwelling unit as his principal residence.

(Emphasis added.)

A landlord may seek to evict a tenant described in subsection (a) of § 47a-23c for nonpayment of rent. This special defense is not available to the Tenant. In addition, the Tenant failed to offer sufficient evidence that he meets the statutory requirement of “physically disabled, as defined in section 1-1f, but only if such disability can be expected to result in death or to last for a continuous period of at least twelve months.” § 47a-23c(a). The Court concludes that the Tenant has failed to prove, by a fair preponderance of the evidence, this defense.

IV
CT Page 17086 CONCLUSION AND ORDER
The court finds that the Landlord has proved, by a fair preponderance of the evidence, all the elements of the summary process action based on nonpayment of rent. The court finds that the Tenant has failed to prove, by a fair preponderance of the evidence, any defenses. Having considered the law and equity, the court enters Judgment for the Landlord for Immediate Possession. The court enters a final stay of execution through October 31, 2006, subject to the Tenant paying use and occupancy in the amount of $650 by October 10, 2006. The payment must be made to the Landlord in good funds only in the usual manner. If the Tenant fails to make a timely payment, an execution may issue upon the filing by the Landlord of an affidavit of noncompliance. The full arrearage is $5,200 for the period of January 2006 through September 2006.

[1] “Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50.” Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 676 A.2d 535 (2005).
[2] “Although our courts are `consistently . . . solicitous of the rights of pro se litigants,’ the rules of practice cannot be ignored to the detriment of other parties. Connecticut Light Power Co. v. Kluczinsky, 171 Conn. 516, 519, 370 A.2d 1306
(1976); see also Higgins v. Hartford County Bar Ass’n., 109 Conn. 690, 492, 15 A. 20 (1929).” Gallogly v. Kurrus, Superior Court, Judicial District of Litchfield at Bantam, Docket No. CV 18-9808 (May 16, 2005, Trombley, J.) (2005 Ct.Sup. 8500, 8517).
[3] The phrase a “fair preponderance of the evidence” “simply means that evidence which outweighs that which is offered to oppose it . . .” Black’s Law Dictionary (5th Ed. 1983).

Tait’s Handbook of Connecticut Evidence (3rd. 2001) § 3.6.1, pp. 140-41:

Ҥ 3.51 Civil Cases: More Probable Than Not
In the ordinary civil case, a party satisfies his or her burden of persuasion if the evidence, considered fairly and impartially, induces in the mind of the trier a reasonable belief that it is more probable CT Page 17087 than otherwise that the fact or issue is true. Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d 708 (1968); Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958). It is not necessary that the proof negate all other possibilities or that it reach the degree of certainty that excludes every other reasonable conclusion. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (1988). This burden is sometimes expressed as proof by a preponderance of the evidence, Vigorito v. Allard, 143 Conn. 70, 71, 118 A.2d 906 (1955), but such preponderance does not refer to the number of witnesses but rather the evidence that is superior and more likely to be in accord with the facts, Verdi v. Donahue, 91 Conn. 448, 450, 99 A. 1041 (1917). The quality of the evidence controls, not the quantity. State v. Williams, 195 Conn. 1, 13, 485 A.2d 670 (1985).
When the evidence is equally balanced or in equipoise, then the proponent has not met his or her burden of persuasion. Brodie v. Connecticut Co., 87 Conn. 363, 364, 87 A. 798 (1913). A party has not met the burden of persuasion merely because the evidence is uncontested or uncontroverted because the trier, as the judge of credibility, may disbelieve such evidence. Mercer v. Mercer, 131 Conn. 352, 353,39 A.2d 879 (1944).
The burden of persuasion can be satisfied by circumstantial evidence if the trier finds that the facts from which the trier is asked to draw the inference are proved and that the inference is not only logical and reasonable but also strong enough so that it can be found to be more probable than not, Terminal Taxi Co. v. Flynn, 156 Conn. at 316; Hennessey v. Hennessey, 145 Conn. At 214.”

[4] “The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308
(1971).” Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977); “An admission in pleading dispenses with proof, and is equivalent to proof.” (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).

CT Page 17088

[5] General Statutes Sec. 47a-7, entitled “Landlord’s responsibilities,” provides in relevant part: “(a) A landlord shall: (1) comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premise in a clear and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and 6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.”

CT Page 17089