City of Bridgeport v. Barbour-Daniel Electronics, Inc.

• Decision Date: 04 October 1988
• Docket Number: BARBOUR-DANIEL,No. 5852,5852
• Citation: 548 A.2d 744,16 Conn.App. 574
• Court: Connecticut Court of Appeals
• Parties: CITY OF BRIDGEPORT v.ELECTRONICS, INC.

Page 744

548 A.2d 744

16 Conn.App. 574

CITY OF BRIDGEPORT v. BARBOUR-DANIEL ELECTRONICS, INC.

No. 5852.

Appellate Court of Connecticut.

Submitted on Briefs March 2, 1988.

Argued June 28, ¹ 1988.

Decided Oct. 4, 1988.

John C. Barton, Associate City Atty., for appellant (plaintiff).

David M. McHugh, Fairfield, with whom, on the brief, was K. Wynne Bohonnon, New Haven, for appellee (defendant).

Before DUPONT, C.J., and BORDEN, SPALLONE, DALY, BIELUCH, EDWARD Y. O'CONNELL, STOUGHTON, NORCOTT and FOTI, JJ.

DUPONT, Chief Judge.

The plaintiff landlord appeals from a judgment of dismissal in this summary process action. The dispositive issue on appeal is whether a second notice to quit possession for nonpayment of rent may serve as the basis for a summary process action when a prior notice to quit possession for nonpayment of rent was statutorily defective. We conclude in this case that, because the first notice to quit possession was a nullity, it did not have the effect of terminating the lease, and, therefore, the second notice to quit was properly based upon the defendant tenant's failure to pay rent for which a summary process action may be maintained pursuant to General Statutes § 47a-23. ² We therefore find error.

This case involves the following undisputed facts. The plaintiff is the owner and landlord of Sikorsky Memorial Airport in Stratford. The defendant is a tenant at that location. On August 1, 1977, the parties entered into a lease agreement which expired on July 31, 1980. The defendant tenant continued to occupy the premises after the expiration of the lease and made monthly rental payments until April, 1985. On April 30, 1986, the plaintiff issued a notice to quit possession on or before June 1, 1986, for failure to pay rent. This notice, which was served on the defendant on May 1, 1986, contained the statement: "Any monies accepted after service of this notice are accepted as use and occupancy only, and not as rent." The plaintiff did not pursue a summary process action based on this notice. Recognizing that the May 1, 1986, service of that notice did not comply with the requirement that it be served in the same month in which it was issued, the plaintiff, on June 11, 1986, issued a second notice to quit possession of the premises on or before June 23, 1986, for the defendant's failure to pay rent. This notice was served on the defendant on June 12, 1986.

A writ, summons and complaint based on the second notice to quit possession was served on the defendant on June 25, 1986, with a return date of July 2, 1986. This complaint alleged that the written lease between the parties for a monthly rental of $1080 had expired on July 31, 1980, and that the defendant had retained possession of the premises under a month-to-month tenancy on the same terms as set forth in the written lease agreement. It also alleged that "[t]he defendant has not paid the sums due for the use and occupancy commencing April, 1985 through and including June, 1986." On July 10, 1986, the defendant filed a motion to dismiss this original complaint for lack of subject matter jurisdiction on the ground that there is no statutory basis for eviction for the failure to pay use and occupancy. In a supporting memorandum of law, the defendant cited General Statutes § 47a-23 for the propositions that § 47a-23 expressly sets forth the sole grounds for eviction, and the failure to pay use and occupancy is not one such ground. See footnote 2, supra. On the same date, the plaintiff filed an amended complaint, alleging that "[t]he defendant has not paid the sums due for rent and/or use and occupancy commencing April, 1985 through and including June, 1986." ³ (Emphasis added.)

On January 30, 1987, the defendant filed a second motion to dismiss with a supporting memorandum of law. In its motion, the defendant asserted that the first notice to quit terminated any obligation to pay rent thereafter, and that the second notice to quit therefore could only have been based on a failure to pay use and occupancy. The defendant maintained, accordingly, that "[s]ince the notice to quit possession is based upon nonpayment of rent and no rent was due, only use and occupancy, this action must fail since there is no statutory basis under [General Statutes § 47a-23] upon which to base this summary process action." On February 3, 1987, the plaintiff filed a statement in opposition to the motion to dismiss, claiming that because the first notice to quit was served in an untimely manner, it was null and void, and therefore did not have the effect of terminating the defendant's obligation to pay rent. After a hearing on the motion to dismiss held on February 6, 1987, the court granted the defendant's motion, and rendered a judgment of dismissal. ⁴ This appeal followed. ⁵

On appeal, the parties do not dispute the fact that upon the expiration of their written lease they entered into a month-to-month tenancy as evidenced by their conduct. For a duration of approximately five years, the defendant tendered payment each month as rent, and the plaintiff accepted each tender as the payment of rent. See, e.g., Maltby, Inc. v. Associated Realty Co., 114 Conn. 283, 288, 158 A. 548 (1932); Williams v. Apothecaries Hall Co., 80 Conn. 503, 506, 69 A. 12 (1908); see generally Welk v. Bidwell, 136 Conn. 603, 607-609, 73 A.2d 295 (1950); see also General Statutes §§ 47a-3b and 47a-3d. ⁶ Further, the parties do not dispute the fact that at the time the first notice to quit was served, a month-to-month tenancy was still in existence. Nor do the parties dispute the fact that the first notice to quit was served in an untimely manner and, therefore, could not constitute the basis of a summary process action for the nonpayment of rent. See, e.g., Welk v. Bidwell, supra, 606-607, 73 A.2d 295; Tehrani v. Century Medical Center, 7 Conn.App. 301, 305, 508 A.2d 814 (1986). Thus, both parties agree that the first notice to quit, which was served in May but based upon an April nonpayment of rent, was defective and could not have been a proper basis for a summary process action.

The parties do dispute, however, the legal consequences and effect of the first notice to quit upon the month-to-month tenancy in light of the unequivocal statements therein that the lease was terminated and that "[a]ny monies accepted after service of this notice are accepted as use and occupancy only, and not as rent." The plaintiff argues that the statements had no effect on the month-to-month lease agreement because the entire notice to quit was null and void, and, therefore, no statement in it had any legal consequence. The plaintiff claims that since the first notice to quit was defective, and was not the basis upon which its amended complaint seeking summary process rested, the first notice is null and void for all purposes. The plaintiff, therefore, argues that the first notice to quit did not have the effect of terminating the lease, and, therefore, the second notice based on nonpayment of rent was sufficient to support the summary process action. The defendant, on the other hand, argues that the defective notice to quit had the effect of terminating the lease agreement and creating a tenancy at sufferance. It therefore argues that the second notice to quit could be based only on the failure to pay use and occupancy, which failure cannot support a summary process action.

There are two separate questions presented by this appeal. The first question is what effect the admittedly invalid notice to quit had on the tenancy between the parties. If we conclude that the month-to-month tenancy was not terminated, the nonpayment of rent alleged in the second notice to quit is sufficient to support the plaintiff's summary process action. Only if we conclude that a tenancy at sufferance was created by the service of the first notice to quit do we need to consider the second question of whether a summary process action can be maintained against a tenant who has failed to tender use and occupancy payments to the landlord. We conclude that the first notice to quit did not have the effect of terminating the month-to-month lease agreement between the parties, and, therefore, we need not address the second question. ⁷

The purpose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common law cause of action. "The process is intended to be summary and is designed to provide an expeditious remedy to a landlord seeking possession." Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973). "We have recognized the principle that, because of the summary nature of its remedy, the summary process statute must be narrowly construed and strictly followed. Southland Corporation v. Vernon, 1 Conn.App. 439, 452, 473 A.2d 318 (1984)." Sandrew v. Pequot Drug, Inc., 4 Conn.App. 627, 631-32, 495 A.2d 1127 (1985); Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953); Vogel v. Bacus, 133 Conn. 95, 97, 48 A.2d 237 (1946). The failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action. Windsor Properties, Inc. v. Great Atlantic & Pacific Tea Co., 35 Conn.Sup. 297, 301, 408 A.2d 936 (1979).

The statutory notice to quit possession of leased premises is a condition precedent to the bringing of a summary process action by the lessor. O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946). The May 1, 1986 notice to quit was invalid because it was not served in the same month in which it was issued. Tehrani v. Century Medical Center, supra. " 'Invalid,' according to Ballentine's Law Dictionary, means: 'Illegal, having no force or effect or efficacy; void; null.' Webster, Seventh New Collegiate Dictionary, defines 'invalid' as 'being without...