Thomas v. Roper

• Decision Date: 02 February 1972
• Citation: 162 Conn. 343,294 A.2d 321
• Court: Connecticut Supreme Court
• Parties: Gordon C. THOMAS v. Frank A. ROPER.

Page 321

294 A.2d 321

162 Conn. 343

Gordon C. THOMAS v. Frank A. ROPER.

Supreme Court of Connecticut.

Feb. 2, 1972.

James F. Bingham, and Paul D. Shapero, Stamford, on the brief for appellant (defendant).

Brian T. O'Connor, and John W. Roberts, Greenwich, on the brief for appellee (plaintiff).

Before HOUSE, C.J., and THIM, RYAN, SHAPIRO and LOISELLE, JJ.

THIM, Associate Justice.

The plaintiff brought this action to recover rent claimed to be due under a written lease and for damages caused by a breach of the lease agreement. In his answer, the defendant denied certain allegations of the complaint and interposed three special defenses, namely: (1) That the plaintiff failed to perform certain obligations under the lease; (2) that the plaintiff had induced the defendant to enter the lease by false representations concerning the condition of the premises; and (3) that the premises had become untenantable. The defendant also filed a counterclaim for damages by reason of the plaintiff's alleged failure to perform certain obligations under the lease. The referee found for the plaintiff on the complaint and the counterclaim. From the judgment rendered by the referee exercising the powers of the court, the defendant appealed to this court.

The finding, which is not subject to any material correction, discloses the following: By a written lease dated September 29, 1961, the plaintiff leased a residence in Riverside to the defendant for a term of twenty-one months commencing on October 1, 1961, and ending June 30, 1963, at a monthly rental of $345. The lease required the defendant, inter alia, to keep the premises in neat order and condition, to permit no waste or injury to the property, to perform all required maintenance and repairs to the house, garage, grounds and appliances, to surrender the premises in a good state of repair, and to reimburse the plaintiff for any expense arising from the defendant's violation of the lease covenants. With regard to the septic sewage system, in addition to the general clause requiring the defendant to surrender it in good condition, the defendant was required to perform all required maintenance and to refrain from dumping kitchen fats or ground garbage into the sinks and drains.

On October 1, 1961, the defendant entered into possession of the premises but decided to vacate on or about June 7, 1962, and so notified the plaintiff. The defendant did not vacate, however, until December 21, 1962, about six months prior to the expiration date of the lease. On quitting the premises, the defendant notified the plaintiff by telegram but left no one in charge of the house. Between the time the defendant vacated and January 8, 1963, a water pipe burst owing to the fact that the defendant, in violation of his duties under the lease, failed to cover three louvres in the attic during the cold weather. As a result, the house suffered substantial water damage necessitating extensive and expensive repairs. During the defendant's occupancy of the premises, several rental checks were dishonored and the rent was paid only through October, 1962. From the facts found, the referee concluded that the defendant had breached the lease and that the difficulties presented by the septic system did not render the premises untenantable.

The defendant's principal claim is that the subordinate facts found by the referee do not support the conclusion that the premises were not untenantable as that term is used in § 47-24 of the General Statutes. ¹ The purpose of § 47-24 is to mitigate the unconscionable hardship of the common law which required the tenant to continue rent payments even though the premises had become, without fault or neglect on his part, unfit for use or occupancy. Hayes v. Capitol Buick Co., 119 Conn. 372, 376-377, 176 A. 885; Sigal v. Wise, 114 Conn. 297, 304-305, 158 A. 891; Lesser v. Kline, 101 Conn. 740, 746, 127 A. 279. The statute provides relief 'where the building becomes untenantable by reason of some sudden and unexpected calamity; as where it is wholly or partially destroyed by fire, water, or by a mob, or other like cause.' Hatch v. Stamper, 42 Conn. 28, 30. When the premises become untenantable within the meaning of § 47-24, the lessee 'may be relieved from payment of rent if he continue (sic) to occupy, until the landlord shall restore the premises to tenantable condition, when he shall resume payment of rent, or, if he so elects, he may quit possession in the meantime.' Lesser v. Kline, supra, 101 Conn. 745, 127 A. 281, see Sigal v. Wise, supra, 114 Conn. 307, 158 A. 891. Whether the premises are untenantable is a question of fact for the trier, to be decided in each case after a careful consideration of 'the situation of the parties to a lease, the character of the premises, the use to which the tenant intends to put them, and the nature and extent to which the tenant's use of the premises is interfered with by the injury claimed.' Reid v. Mills, 118 Conn. 119, 122, 171 A. 29, 30; see Hayes v. Capitol Buick Co., supra, 119 Conn. 378-379, 176 A. 885; Tungsten Co. v. Beach, 92 Conn. 519, 524, 103 A. 632. That factual determination will not be disturbed by this court unless the conclusion is such that it could not reasonably be reached by the trier.

The referee correctly found that while the plaintiff had trouble with the septic sewage system prior to the defendant's possession of the premises and that the Greenwich health department had received a complaint about the system in 1961, at the inception of the lease the sewage system was in 'good operating condition.' On February 4, 1962, four months after the commencement of the lease, the septic tank 'backed up' but the referee did not find that the defendant had experienced any similar trouble with the system prior to that date or at any time thereafter. Nor did the defendant vacate the premises on or about February 4, but rather, he vacated approximately ten months later on December 21, 1962. These facts do not warrant a conclusion that the premises were made 'untenantable' by virtue of the condition of the septic sewage system on February 4, 1962, or at any other time. The defendant was not justified, therefore, in suspending rent payments and in leaving the premises unattended and unprotected against possible damage to them.

In addition, it must be established that the premises were rendered untenantable without the fault or neglect of the lessee. In the absence of a statute or covenant to the contrary, the lessor does not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the lessee. Bentley v. Dynarski, 150 Conn. 147, 150, 186 A.2d 791; Welk v. Bidwell, 136 Conn. 603, 609, 73 A.2d 295; Lesser v. Kline, supra, 101 Conn. 744, 127 A. 279; Rumberg v. Cutler,86 Conn. 8, 10, 84 A. 107. Rather, the duty to make ordinary repairs rests on the lessee and § 47-24 does not alter this duty in the absence of the lessor's promise to the contrary. Lesser v. Kline, supra, 101 Conn. 746, 127 A. 279. In the case at bar, the lease clearly obligated the defendant to refrain from dumping fats or ground garbage into the sinks and drains and to perform all required maintenance to the septic sewage system. The defendant has failed to meet the burden of proving either that any trouble with the septic tank was without his fault or neglect or that the making of ordinary repairs could not have corrected the condition. The fact that the health department required the plaintiff to repair the sewage system before the premises were to be rented again did not relieve the defendant of his obligations under his lease.

The defendant further claims that he was constructively evicted from the premises. Whether the defendant was relieved of his obligations under the lease due to his being constructively evicted is closely related to the above issue of whether the premises were unfit for occupancy under § 47-24 in that they both have a common element-untenantability. "A constructive eviction arises where a landlord, while not actually depriving the tenant of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable." (Emphasis supplied.) Amsterdam Realty Co. v. Johnson, 115 Conn. 243, 248, 161 A. 339, 340; see Reid v. Mills, supra. Since we have...