75 CHARTER OAK LTD. PTS. v. WALTER SIDOR, JR.

2008 Ct. Sup. 17823
No. HDSP 147328Connecticut Superior Court Judicial District of Hartford, Housing Session at Hartford
November 10, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
PETER E. WIESE, JUDGE.

I PROCEDURAL HISTORY
This matter is a summary process action commenced by notice to quit and writ, summons and complaint, dated May 13, 2008. In the complaint, the plaintiff, 75 Charter Oak Limited Partnership (Charter Oak) alleges the following facts. Charter Oak is a limited partnership that owns commercial property located at 75 Charter Oak Avenue, Suite 1-105, Hartford, Connecticut (the premises). On July 28, 2004, Charter Oak entered into a written lease agreement with the defendant, Attorney Walter Sidor, Jr., for the premises. The term of the lease was for a period of one year. The lease was subsequently extended three times, by yearly amendments. Attorney Sidor took possession of the premises on July 28, 2004, and has remained in possession since that time. Pursuant to the lease, as amended, Attorney Sidor agreed to pay $515 in rent per month. Attorney Sidor has defaulted under the lease by failing to pay the monthly rental payments due for April 1, 2008 and May 1, 2008. On April 18, 2008, Charter Oak caused a notice to quit possession to be served on Attorney Sidor, which required him to quit possession on or before April 22, 2008.

Attorney Sidor responded to the complaint with an answer and a special defense, dated July 2, 2008. In the special defense, he alleges that Charter Oak has interfered with his peaceful possession of the premises.[1]

The matter was tried to the court on July 30, 2008. Thereafter, counsel for the parties filed detailed memoranda of law and proposed findings of fact.

II
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FACTS
Based on the credible evidence presented, the court finds the following facts to have been proven. Charter Oak is a limited partnership that owns commercial property located at 75 Charter Oak Avenue, Hartford, Connecticut. Attorney Sidor is a practicing attorney in the state of Connecticut. He has professional experience and knowledge of landlord-tenant law, as well as housing court. In August 2004, the parties entered into a written commercial lease agreement. (Plaintiff’s Exhibit 1.)

The leased premises is used by Attorney Sidor as his law office. The term of the lease was for one year, commencing on August 1, 2004. The “basic” rent was specified at $486.40 per month. The lease agreement distinguished “basic” rent from the term “rent,” which it defined as “the amounts so payable plus other amounts payable by the tenant under this lease.” (Plaintiff’s Exhibit 1, (2.) The lease agreement provided for the payment of a late fee, in paragraph thirty-six: “If Rent is not received by Landlord on or before the fifth (5th) day of any month, Tenant shall pay landlord a late fee equal to fifteen percent (15%) of the amount of Rent due, which shall be paid by Tenant to Landlord immediately upon written notice from Landlord. Failure by Tenant to make immediate payment of the delinquent Rent plus the late fee shall constitute an Event of Default. This provision, expressly, does not relieve the Tenant’s obligation to pay Rent on the first of each month and is not a waiver by the Landlord to require payment on the first day of each month.” (Plaintiff’s Exhibit 1.)

The third amendment to the lease covered the period of August 1, 2007 to July 31, 2008. The monthly rental payment was specified at $515. The amendment contained the late fee provision set forth above. (Plaintiff’s Exhibit 1.)

Each month, Charter Oak mails its tenants a coupon, which the tenant includes with the rental payment. Charter Oak maintains a resident ledger for each of its tenants. (Plaintiff’s Exhibit 2.) The ledger for Attorney Sidor covered the period of August 1, 2004 through August 1, 2008. (Plaintiff’s Exhibit 2.) It indicates that on April 1, 2008, the base rent due was $515. This rent was unpaid as of April 6, 2008. Accordingly, a 15 percent late fee was assessed on the base rent and $290.12, the balance due from previous months. Thereafter, on April 15, 2008, Attorney Sidor paid $507 and $76.05. The second figure is 15 percent of the partial payment. Attorney Sidor failed to pay the full amount of the base rent and any overdue balance. (Plaintiff’s Exhibit 2.) Attorney Sidor admits in paragraph nine of his answer that he failed CT Page 17825 to pay the full amount of the April 2008, base rent.

Charter Oak did not accept the partial payment in April 2008, in full satisfaction for that month’s rent. On April 18, 2008, Charter Oak served a notice to quit, dated April 16, 2008, on Attorney Sidor. The notice called upon Attorney Sidor to quit possession on or before April 22, 2008. It stated the following reason: “Termination due to non-payment of rent when due for commercial property.” As a result of the notice to quit, Attorney Sidor had no obligation to pay rent for the month of May 2008. He remains in possession of the premises. There is no credible evidence that Charter Oak interfered with Attorney Sidor’s peaceful possession of the premises.

III DISCUSSION
“[S]ummary process is a special statutory procedure designed to provide an expeditious remedy . . . It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms . . . Summary process statutes secure a prompt hearing and final determination . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed . . .

“General Statutes § 47a-23(a), which governs summary process actions, provides in relevant part: When the owner or lessor . . . desires to obtain possession or occupancy of any land or building . . . and . . . when a rental agreement or lease of such property, whether in writing or by parol, terminates for . . . nonpayment of rent when due for commercial property . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land [or] building . . . General Statutes § 47a-23(b) also directs that a notice to quit shall include the reasons that the lessee or occupant must quit the premises, using the statutory language or words of similar import . . .” (Citation omitted; internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5-6, 931 A.2d 837 (2007).

Attorney Sidor makes two arguments in support of his position that he has not breached the lease agreement. First, he argues that Charter Oak accepted the partial payment in April 2008, in satisfaction of the rent. This argument fails because it is not supported by the credible evidence, as previously discussed. Second, he contends that a late charge of 15 percent of the amount of “rent” due is unconscionable because of CT Page 17826 the manner in which it is calculated in the lease. The court finds that it is unnecessary to address this issue because Attorney Sidor failed to pay even the “basic” rent for the month of April 2008.

The court finds that Charter Oak has sustained its burden of proving that Attorney Sidor failed to pay the rent for April 2008, and is in default under the lease agreement.[2] Charter Oak properly caused a notice to quit to be served on Attorney Sidor, who has remained in possession.

The court further finds that Attorney Sidor has failed to sustain his burden of proof on the special defense.

Accordingly, judgment for immediate possession of the premises is ordered in favor of Charter Oak for nonpayment of rent.

IV CONCLUSION
Judgment shall enter in favor of the plaintiff for the reasons stated.

So ordered.

[1] Attorney Sidor has not asserted a special defense of equitable non-forfeiture. “Special defenses, including equitable defenses such as relief from forfeiture, are available to tenants in summary process proceedings.” Housing Authority v. Martin, 95 Conn.App. 802, 814, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006). “The equitable defense of relief from forfeiture does not deny the allegations of a plaintiff’s complaint for summary process. A defendant asserting a defense of relief from forfeiture does not dispute that a lease has been terminated and that rent is owed and has not been paid. Such a defendant alleges, however, that there are equitable reasons that establish that possession should not be taken away from the defendant. Therefore, the equitable defense of relief from forfeiture must be pleaded as a special defense.” Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn.App. 432, 436, 651 A.2d 281 (1994).
[2] Charter Oak has failed to prove that the rent was unpaid in May 2008, because no rent was due subsequent to the service of the notice to quit on April 18, 2008.

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