Housing Authority of Town of East Hartford v. Olesen
| Decision Date | 18 May 1993 |
| Docket Number | No. 11046,11046 |
| Citation | 624 A.2d 920,31 Conn.App. 359 |
| Court | Connecticut Court of Appeals |
| Parties | HOUSING AUTHORITY OF the TOWN OF EAST HARTFORD v. Eugene OLESEN et al. |
John F. Sullivan, with whom, on the brief, was Ralph J. Alexander, for appellant (plaintiff).
Pamela A. Mitchell, with whom was Nancy A. Hronek, for appellees (defendants).
Before EDWARD Y. O'CONNELL, LANDAU and SCHALLER, JJ.
The plaintiff housing authority 1 appeals from the judgment in favor of the defendants 2 in this summary process action based on the defendants' failure to pay their April, 1988 rent. The plaintiff claims that the trial court improperly (1) construed the plaintiff's duty under federal law to inspect for lead-based paint, and (2) applied General Statutes § 47a-4a to the facts of this case. We affirm the judgment of the trial court.
In November, 1986, the plaintiff and the defendants entered into an automatically renewable month-to-month written lease for an apartment in East Hartford. The apartment is a federally subsidized public housing unit governed by applicable state law and § 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f, and its implementing regulations in Title 24 of the Code of Federal Regulations.
As a result of the defendants' failure to make their April, 1988 rent payment, the plaintiff caused a notice to quit to be served on the defendants, ordering them to quit possession of the premises on or before April 25, 1988. When the defendants did not vacate the premises, the plaintiff commenced this summary process action. Subsequently, the East Hartford health department removed samples of peeling paint from the premises and forwarded them to the state department of health services laboratory where analysis revealed that the paint had a lead content in excess of that permitted by federal and state standards. 3 The plaintiff took immediate action and the problem was corrected within two weeks.
Thereafter, the defendants filed an amended answer that raised several special defenses including two alleging that the presence of the lead-based paint obviated their obligation to pay rent for April, 1988. 4 The matter proceeded to trial and the trial court rendered judgment for the defendants. The plaintiff appealed.
The dispositive issue in this case is whether the presence of paint with a lead content in excess of relevant federal and state standards bars the collection of rent even if the landlord is not aware of the problem at the time of nonpayment. The plaintiff first claims that the presence of lead-based paint should not act as a bar to the collection of rent because it fully observed the federal regulation in effect at the time, which required paint inspections only at unit turnover or as part of routine periodic unit inspections. See 24 C.F.R. § 965.704 (1988). The plaintiff maintains, therefore, that it was under no duty to inspect the premises for lead-based paint at the time of nonpayment. We note that although the trial court found the plaintiff to have such a duty, we decline to address this issue because it is irrelevant to the disposition of the appeal.
The outcome of this case is not governed by the frequency of inspection required by federal law. Rather, the outcome of the case is controlled by the clear mandate of state law. While the federal regulations set forth various components of a landlord's duty in lead-based paint abatement, they also expressly state that the landlord must comply with state and local law. "Nothing in this subpart [governing lead-based paint poisoning prevention] is intended to relieve a [public housing authority] of any responsibility for compliance with state or local laws, ordinances, codes or regulations governing lead-based paint testing or hazard abatement." 24 C.F.R. § 965.706 (1988); see 24 C.F.R. § 965.710 (1992); see also Connelly v. Housing Authority, 213 Conn. 354, 356 n. 2, 567 A.2d 1212 (1990) ().
Our state law provides a broad range of statutes and regulations governing lead-based paint testing and abatement. 5 Included in that body of law is the statutorily established affirmative duty of a landlord to do whatever is necessary to put and keep the premises in a fit and habitable condition, including its being free of paint with an impermissible lead content. This duty has its provenance in General Statutes § 47a-7(a), which imposes a number of responsibilities on the landlord including the mandate in subsection (2) that a landlord "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition...." The expansion of that duty to include lead-based paint abatement is unequivocally furnished by General Statutes § 47a-8, which provides in relevant part that "[t]he presence of paint which does not conform to federal standards as required in accordance with the Lead-Based Paint Poisoning Prevention Act, Chapter 63 of the Social Security Act, as amended ... shall be construed to render such dwelling unit ... unfit for human habitation and shall constitute a noncompliance with subdivision (2) of subsection (a) of section 47a-7." A violation of § 47a-8, therefore, constitutes a per se violation of § 47a-7(a)(2).
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.) Visco v. Cody, 16 Conn.App. 444, 450, 547 A.2d 935 (1988). The legislature, however, in its enactment of § 47a-8, has removed that burden from the tenant where lead-based paint is involved. The legislature has determined that the mere presence of lead-based paint shall be construed to render the dwelling unit uninhabitable and shall constitute noncompliance with § 47a-7(a)(2). Consequently, there is nothing to forestall the triggering of the sanction imposed by § 47a-4a.
In the present case, the parties agree that the lead content of the paint on the exterior of the apartment at the time of nonpayment of rent in April, 1988, exceeded the standard referenced in § 47a-8. Accordingly, by virtue of the unambiguous language of the statutes, the plaintiff was not in compliance with § 47a-7(a)(2) in April and, as a result, pursuant to § 47a-4a, the receipt of rent for that month was prohibited.
Notwithstanding the plain language of the statutes, however, the plaintiff suggests that the statutory scheme impliedly provides for either a grace period in which to cure the problem or, at least, a notice requirement before the right to withhold rent arises. 6 There is no indication that the legislature intended anything other than what it has expressed in the clear statutory language. In the absence of any ambiguity, we construe the intent of the legislature by what it said, not by what it may have meant to say. Furstein v. Hill, 218 Conn. 610, 622, 590 A.2d 939 (1991). We need look no further than the statutory language. Elections Review Committee of Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991). Moreover, in light of the significant health hazards posed by lead-based paint, the result compelled by the language of these statutes is neither absurd nor irrational. See Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991). Accordingly, we decline to impose a notice provision on this unambiguous statutory scheme.
Furthermore, if the legislature intended to include a notice provision, it was capable of doing so. For example, General Statutes § 47a-13, which was enacted as part of a public act 7 that also significantly revised § 47a-8, specifically established such a provision. In addressing the tenant's remedies when a landlord has failed to supply essential services, the statute provides in subsection (c) that the "[r]ights of the tenant under this...
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