Housing Authority of Town of East Hartford v. Hird, 5334

• Decision Date: 05 January 1988
• Docket Number: No. 5334,5334
• Citation: 535 A.2d 377,13 Conn.App. 150
• Court: Connecticut Court of Appeals
• Parties: HOUSING AUTHORITY OF the TOWN OF EAST HARTFORD v. Elizabeth HIRD.

Page 377

535 A.2d 377

13 Conn.App. 150

HOUSING AUTHORITY OF the TOWN OF EAST HARTFORD v. Elizabeth HIRD.

No. 5334.

Appellate Court of Connecticut.

Argued Oct. 14, 1987.

Decided Jan. 5, 1988.

Bruce J. Batts, with whom, on the brief, was Geoffrey Plank, Hartford, for appellant (defendant).

Ralph J. Alexander, with whom, on the brief, was Michael E. Wolf, Windsor, for appellee (plaintiff).

Before SPALLONE, BIELUCH and STOUGHTON, JJ.

BIELUCH, Judge.

This is an appeal by a tenant from a judgment of possession for her landlord in a summary process action based on nonpayment of rent. The tenant, the defendant Elizabeth Hird, claims that the trial court erred by concluding that a rental agreement existed between the parties in January, 1986. In addition, the defendant maintains that even if a rental agreement did exist, the court erroneously concluded that she was not excused from a duty to tender rent for January, 1986. We find no error.

The facts are undisputed. The parties executed a written lease on January 9, 1981, for the rental of an apartment in Veterans Terrace, East Hartford. The lease was for only a one month term beginning February 1, 1981, but provided for automatic renewals for successive one month terms until termination by either party. ¹ Paragraph 9 of the lease provided for automatic termination and immediate possession by management if any rent was in arrears and unpaid for a period of ten days after becoming due, or if the tenant defaulted or failed to comply with its covenants, or if the tenant vacated the premises. ²

On June 7, 1985, the defendant was sent a written notice of proposed eviction by the plaintiff pursuant to General Statutes § 47a-15. ³ The notice alleged that the defendant had violated the lease by maintaining the premises in an unsanitary condition and by keeping pets on the premises. On July 15, 1985, the defendant was served with a statutory notice to quit possession. This supplemented the prior written notice to correct breach of lease and alleged the same lease violations for eviction. It also recited the following: "Notice: All payments made by you, on or after the date of this notice, shall be accepted as Use and Occupancy Only without prejudice to the Housing Authority of East Hartford's right to evict you." A subsequent summary process action ended with judgment for the defendant on November 6, 1985.

A second notice to quit possession was served on the defendant on November 15, 1985. This notice alleged as the reason for eviction "nonpayment of rent for the month of November." This second eviction notice contained the same advisory language as the July 15, 1985 notice that all future payments would be accepted only as use and occupancy payments. The summary process action based on this second notice to quit possession was withdrawn on January 29, 1986, in response to the defendant's filing of a motion to dismiss the action for failure to comply with applicable federal regulations. ⁴ While this action was pending, however, the defendant's counsel sought to make arrangements for the reinstatement of the defendant as a tenant. The plaintiff refused such consideration and advised the counsel that the defendant owed the plaintiff a total of $1497.60, including $1224 for rent as of January 6, 1986. The defendant had in fact stopped paying rent in July of 1985, making only one payment of $250 on November 20, 1985, which the trial court characterized as a "payment on account."

On January 31, 1986, the defendant was served with a third notice to quit possession. This notice claimed as the plaintiff's reason for eviction "nonpayment, month of: January, 1986." The plaintiff's amended two count complaint alleged in the first count that the parties had entered into an automatically renewable month-to-month written lease on January 9, 1981, under which the defendant was still in possession of the leased premises. The second count of the complaint alternatively alleged that the parties' relationship as lessor and lessee existed under a parol month-to-month lease. The defendant by special defense denied that any lease was in effect in January, 1986, and claimed, therefore, that she could not "be evicted for nonpayment of rent for that month."

The trial court rendered judgment of possession for the plaintiff, ruling that the defendant "was then occupying her apartment under her lease as a tenant at will" in January, 1986. Consequently, she had a duty to tender rent for that month's tenancy, which she breached. This appeal followed.

The defendant's first claim on appeal is that the trial court erred in concluding that a rental agreement existed between the parties on January 1, 1986. Specifically, the defendant argues that the court erred in holding that the written rental agreement entered into on January 9, 1981, had not been terminated, since the summary process action initiated in July of 1985 terminated with judgment for the defendant on November 6, 1985, and the second summary process action was withdrawn on January 29, 1986.

The trial court found that the defendant was occupying her apartment under her lease as a tenant at will on January 1, 1986, because the judgment rendered on November 6, 1985, in defendant's favor did not terminate the lease, and, therefore, had "revived" the original lease arrangement, and because the eviction action following the November 15, 1985 notice to quit possession having been withdrawn, had no legal effect or consequence on the preexisting lease between the parties. We agree with the trial court's holding.

Summary process is a statutory remedy which enables a landlord to recover possession of rental premises from the tenant upon termination of a lease. General Statutes § 47a-23. It is preceded by giving the statutorily required notice to quit possession to the tenant. Webb v. Ambler, 125 Conn. 543, 552-53, 7 A.2d 228 (1939). Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance. Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961); Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954); Bushnell Plaza Development Corporation v. Fazzano, 38 Conn.Sup. 683, 686, 460 A.2d 1311 (1983). It is necessary to prove the allegations of the notice to quit possession in order to obtain a judgment for possession.

Service of the July 15, 1985 notice to quit possession upon the defendant was an explicit act by the plaintiff in recognition of the existence of the defendant's lease. When the November 6, 1985 judgment was rendered in favor of the defendant in the subsequent summary process action, the trial court had determined thereby that the defendant had not committed the lease violations alleged by the plaintiff in the underlying notice and complaint. The court's decision then that the plaintiff was not entitled to possession was necessarily predicated upon a finding that the lease had not been terminated and that the defendant continued to have a valid lease on November 6, 1985. The service of the notice to quit possession on July 15, 1985, did not compromise the tenant rights of the defendant because the subsequent trial and judgment on the merits in the summary process action predicated on this notice did not uphold the allegations of the complaint asserting the termination of the lease by this notice to quit possession. The trial court, therefore, correctly concluded that the defendant's lease survived the judgment of November 6, 1985, in her favor. The parties were returned to their status quo before July 15, 1985, by this judgment.

Of similar import is the subsequent summary process action predicated upon the notice to quit possession served on November 15, 1985. After the defendant filed a motion to dismiss that action based on noncompliance with applicable federal regulations, the plaintiff on January 29, 1986, withdrew this summary process action pursuant to its statutory right. General Statutes § 52-80. ⁵ Marrinan v. Hamer, 5 Conn.App. 101, 103, 497 A.2d 67 (1985). We conclude that the defendant's lease also survived this summary process action because of its withdrawal by the plaintiff before a hearing and judgment thereon. The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional. Under our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is "strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket." Lusas v. St. Patrick's Roman Catholic Church Corporation, 123 Conn. 166, 170, 193 A. 204 (1937); Salonia v. Salonia, 16 Conn.Sup. 86, 88 (1949). The withdrawal...