Opinion
No. X08 CV02 0189249 S
March 26, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS; MOTION FOR SUMMARY JUDGMENT
I. Background
In 1997 the Town of Stratford commenced these 45 summary process actions seeking possession of an equal number of pieces of property (lots) located in the area of Stratford known as Long Beach. These lots had been leased by Stratford to various persons, many if not all, of whom had built or occupied privately owned summer cottages upon them.
In 1996 a fire damaged and essentially destroyed the only bridge to Long Beach, reducing the means of access to the area to boats or a several mile walk. There were no plans or money to rebuild the bridge. Stratford, presumably because it could not provide essential police or fire protection services, chose not to renew the 45 leases which expired at the end of June 1997, and the Town served notices to quit in early July.
The cases languished for several years and were transferred to the Complex Litigation Docket in Stamford in 2002. These 45 cases presently bear consecutive docket numbers X08 CV02 0189249 through X08 CV02 0189293. In 42 of the cases, the defendants are represented by one law firm which has filed essentially the same pleadings, motions and other papers on behalf of their clients (firm-represented defendants). In one case two defendants, Frank and Alice Showah, are represented by another attorney. In the remaining two cases the individual defendants, Irene Bratkowski and Allisha Clark, filed appearances to represent themselves pro se. For over a year the court was advised that there was a high likelihood that cases would be settled through ongoing negotiations. These negotiations failed.
Counsel agreed that the cases, or most of them, were capable of being finally determined by dispositive motions, and the court set a procedure and a schedule for such motions to be briefed and argued. Oral argument was scheduled for the fall of 2003 and then rescheduled, after the submission of additional papers, for February 2004. The individual pro se defendants have not appeared at any status or scheduling conference held by the court, despite best efforts to notify them of these events and warnings that failure to appear or participate could result in a default.
This memorandum will, to the extent possible, dispose of all pending motions in all cases.
II. Motions To Dismiss
After a briefing schedule for motions for summary judgment had been set, the firm-represented defendants amended their answers to the complaints in mid-2003 to assert a special defense based on General Statutes § 21-90 et seq. dealing with "leased cottage communities," and filed motions to dismiss based thereon. Subsequently, these defendants added a further argument which contested the validity of Stratford's original notices to quit, although this contention was not included in the original motion to dismiss. While these defenses are much belated, the court will deal with them at this time because they may involve the court's subject matter jurisdiction, and given the length of time this dispute has endured, the cases are overripe for resolution.
A. Leased Cottage Communities Statute
Chapter 413a of the General Statutes was enacted in 1990 (P.A. 90-242) and provides certain protections to owners of leased cottages when the underlying real property is to be sold by its owner. General Statutes § 21-90 defines "leased cottage community" as "plot of land upon which two or more cottages, occupied for residential purposes, are located." "Cottage" is defined as a "detached residential dwelling unit in a leased cottage community . . . owned by a person other than the person who owns the leased cottage community." General Statutes § 21-90(1)(2).
General Statutes § 21-91 provides that a "leased cottage community owner who intends to sell the land used as a leased cottage community shall give written notice" to each cottage owner if the sale will "entail the discontinuance of the use of the land for leased cottage community purposes." Furthermore, a "cottage association" (defined as an organization representing 51% of the cottages in the community) shall have a right to match any bona fide offer to purchase the land "within forty-five days of receipt of the notice of intent to sell."
These defendants contend that certain negotiations between Stratford and the federal government to sell the Long Beach lots triggered the notice provision set forth above, and since Stratford did not send notice, these actions must be dismissed.
The firm-represented defendants and plaintiff have stipulated to the following facts. In October 2002 the United States Fish and Wildlife Service had offered to buy property on which the leased lots are located for $3.75 million. The Stratford Town Council authorized the Town Manager and Town Attorney to enter into negotiations for the sale of the property in question in February 2003. In October 2003 the offer was increased to $4.1 million. On October 29, 2003 this offer was on the Town Council agenda, and a majority of the quorum present voted to terminate all negotiations for sale of the property. Stipulation, December 24, 2003, ¶¶ 8-10. It is also stipulated that no notice pursuant to § 21-91 was sent to the defendants. Id.
The Town contends, with a certain amount of logic, that the leases on the lots expired on June 30, 1997. Stipulation, ¶ 5. The defendants no longer lease the lots from Stratford, and indeed, the Town has been trying to remove the defendants from possession for over six years. Therefore, Stratford argues that the lots on Long Beach do not qualify as a leased cottage community, and Chapter 413a of the General Statutes does not apply.
However, the court cannot accept this argument. Neither the definition of "leased cottage community," nor the definition of "cottage" requires an existing lease. A cottage is simply a dwelling unit owned by someone other than the owner of the land Therefore, it appears that the statute applies.
Although General Statutes §§ 21-90 and 21-91 are deemed applicable, the court determines that under the facts of these cases, there was no obligation on the part of Stratford to send the notice called for in Section 21-91 because the requisite intent to sell did not occur. An offer to purchase the property had been made in 2002. The subsequent authorization of negotiations was not evidence of an intent to sell; in fact, it emphasizes that Stratford did not intend to sell at the price offered. According to the stipulated facts, the Town decided not to sell the property, even at a higher price, and terminated negotiations. If, as argued by the defendants, the town was obligated to send notice when it authorized negotiations, the notice would not have contained any terms of the transaction for the cottage association to match. Read as a whole, Section 21-91 requires at least a tentative agreement on price and other material terms before a notice must be sent. To interpret the statute otherwise would mean the 45-day response period would expire before there was anything concrete for the cottage association to respond to, or match. There being no such tentative agreement, the notice provision was not triggered.
The parties have not cited and the court is not aware of any cases interpreting the notice provision of General Statutes § 21-91. In McQuillan v. Engelman, Superior Court, judicial district of Waterbury at Waterbury, complex litigation docket X06 CV99 0153482 (May 15, 2000) ( 27 Conn.L.Rptr. 398), Judge McWeeny dealt with an analogous statute protecting mobile home parks. In that case the mobile home park landowners sent notice of intent to sell after the terms of a sale of the property had been agreed on.
D. Validity of Notice to Quit
The firm-represented defendants in their supplemental memorandum in support of their motion to dismiss, dated October 23, 2003, bring up, for the first time, the argument that the notices to quit served on them in July 1997 were defective. The notices stated the reason the defendants must cease occupancy was "lapse of time." Defendants point out, correctly, that the leases at issue expired on June 30, 1997 (Stipulation, ¶ 5) and when the notices to quit were served, the defendants were tenants at sufferance. They cite several Superior Court cases which hold that lapse of time is not a sufficient reason to terminate a tenancy at sufferance. See e.g. Shough v. Hogan, Superior Court, judicial district of New Haven, D.N. SPNH 9702-49735 (March 21, 1997, Levin, J.) ( 19 Conn.L.Rptr. 450); Branford v. Maroon, Superior Court, judicial district of Hartford-New Britain at Hartford, (March 26, 1997, Beach, J.). Other cases indicate that the lease agreement must be in effect at the time a notice to quit is served for "lapse of time." See e.g. Bermudez v. Rodriguez, Superior Court, judicial district of Hartford-New Britain at Hartford (December 17, 1986, Goldstein, J.). The rationale of these cases appears to be based in part on the wording of General Statutes § 47a-23(a) part of the summary process laws. The above section reads in pertinent part:
(a) When the owner . . . desires to obtain possession or occupancy of any land . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a or 21-83; (E) nonpayment of rent when due for commercial property; (F) violation of section 47a-11 or subsection (b) of section 21-82; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80; or (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises; or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated; . . .
such owner . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land . . .
Defendants contend that the notice to quit was given under § 47a-23(a)(1) but should have been given under (a)(3).
While the court is cognizant that the summary process statute must be read strictly, and an improper notice to quit may affect a court's subject matter jurisdiction over a summary process action, the distinctions offered here between subsections (a)(l) and (a)(3) are difficult to parse and unpersuasive. The statute uses the word "terminates." To support the Bermudez holding, the statute should say "will terminate." However, if the statute used the future tense, subsections (a)(1)(C)(D)(E) would not make sense since it would require the landlord to predict when nonpayment of rent or a violation of rules would occur. The better reading of the statute is that termination by lapse of a lease supports a notice to quit under either (a)(1) or (a)(3).
Moreover, the Appellate Court in JFK Associates v. Karkowski, 52 Conn. App. 66 (1999), upheld removal of a tenant at sufferance by summary process based on lapse of time. In that case the written lease expired at the end of 1996. The tenant continued to pay, and the landlord continued to accept, monthly rent though May 1997, creating a series of month-to-month tenancies. The tenant did not pay rent in June 1997 thereby becoming a tenant at sufferance. The landlord gave notice to quit and commenced a summary process action based on lapse of time. The Appellate Court held that, "a landlord may properly remove such a tenant at sufferance through a summary process action for lapse of time," citing General Statutes § 47a-23(a) and Webb v. Ambler, 125 Conn. 543, 551 (1939). This Appellate Court authority is sufficient to find against defendants' contentions. Therefore, the motions to dismiss are denied.
III. Motions For Summary Judgment A. The Complaints
The plaintiff moves for summary judgment on its complaints. Summary judgment may be granted when the pleadings, affidavits and other proof show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Practice Book § 17-49.
A material fact has been defined as a fact which will make a difference in the result of a case. United Oil Co. v. Urban Development Commission, 159 Conn. 364, 379 (1969). The party seeking summary judgment has the burden of proving the absence of any material fact at issue, and the party opposing the motion must provide an evidentiary foundation to determine the existence of genuine issue as to a material fact. Appleton v. Board of Education, 254 Conn. 205, 209 (2000). In deciding a matter for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Id.
The following facts have been stipulated to by the parties in 42 of the 45 cases commenced by Stratford and now before the court.
1) Stratford is the owner of the lots identified in all the complaints.
2) On or about July 10, 1981 or thereafter, Stratford as lessor entered into written leases with the defendants.
3) True copies of all of the above leases were attached to the relevant complaint.
4) The defendants entered into possession of the lots and have continued in possession.
5) All of the leases expired on June 30, 1997.
Stipulation dated December 24, 2003, ¶¶ 1-5.
The other represented defendants Frank and Alice Showah in D.N. X08 CV02 0189281, the pro se defendant Irene Bratkowski in D.N. X08 CV02 018 9251, and the pro se defendant Allisha Clark in D.N. X08 CV02 018 9271 did not join in the stipulation.
The parties to the 42 cases, with the exception of defendants Roland J. Caserta (X08 CV02 0189259), Edward J. Dennehy, Helen E. Dennehy (X08 CV02 0189293), James J. Brooks, Evanne K. Brooks (X08 CV02 0189273), Cataldo Rossi, Maurren Rossi (X08 CV02 0189290), Anne C. Ruby (X08 CV02 0189288), Kathryn H. Higgins (X08 CV02 0189258), Roger Marriot, Janet Marriot (X08 CV02 018 9289), Robert Sullivan (X08 CV02 0189286), also stipulated that on or about July 1, 1997, Stratford caused a notice to be duly and properly served on them to quit possession of the property on or before July 21, 1997. The reason stated in all of the notices to quit was lapse of time. Id. ¶ 6.
With respect to the 34 cases in which the parties stipulated to the termination of the leases in 1997 and have not contested the adequacy of the service of the notice to quit, the court finds the undisputed facts warrant the granting of summary judgment in favor of Stratford on its complaint seeking possession of the premises in each case.
With respect to the cases of Stratford v. Clark (X08 CV02 018 9271) and Stratford v. Bratkowski (X08 CV02 018 9251) each defendant was given adequate notice of the scheduling and filing and argument of the Town's motion for summary judgment. The defendants did not file any papers or affidavits in opposition to summary judgment. In fact, Clark and Bratkowski never answered the complaint. Based on the affidavit of Stratford Town Manager Michael Feeney, and the lease attached to the complaints in each of these cases, the court finds that summary judgment on the complaints in these two cases should be granted.
With respect to Stratford v. Frank and Alice Showah (X08 CV02 0189281) the defendants filed a motion to dismiss on the basis of the leased cottage community statute discussed previously. For the reasons stated above, in part II A of this decision, that motion is dismissed. The Showahs filed a motion to amend their answer presumably to conform with the amended answers filed by the firm-represented defendants. However, that motion was not granted because no proposed amended pleading was attached. In their opposition to plaintiff's motion for summary judgment, the Showahs preserved their objection to the adequacy of service upon them of the original notice to quit. Therefore, the Showahs are in the same position as the defendants in the eight cases identified above who did not stipulate to proper service of the notice to quit.
B. The Defenses
In the last filing on behalf of the firm-represented defendants, an affidavit was presented by one defendant Robert Sullivan, the treasurer of the Long Beach West Improvement Association, "which association consists of forty-five cottages." Sullivan Affidavit, October 27, 2003, ¶ 3. The court presumes this association consists of the cottage owners who are defendants in these actions. Mr. Sullivan states he has been a cottage owner since 1989, and
I, like other cottage owners, have made substantial capital improvement to my property. My cost basis for my cottage and its contents, including all capital improvements total $200,506.00.
In addition to losing the value of my capital improvements, an eviction will cause me to incur substantial costs to demolish and remove my home pursuant to the terms of the lease with the Town. More importantly, an eviction will cause me to lose my home and lose my dream of watching my children grow up on the beach in Stratford in a safe and secure environment.
The eviction of the cottage owners will work a forfeiture that is disproportionate to the injury that the cottage owners [sic] will suffer.
Id. ¶ 4-7 (the court assumes the last reference to "cottage owners" should actually read "Town").
As an initial matter the court is reluctant to entertain the issue of forfeiture because that was a special defense initially pleaded, but subsequently withdrawn, by these defendants when they amended their answer and special defenses in 2003. Therefore, it is an issue that is not properly before the court on these motions. 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, 436-37 (1994).
Nevertheless, the issue is akin to the proverbial elephant in the parlor: it will not disappear just because no one talks about it. Moreover, the answer of the defendants Showah was not amended in 2003 and continues to plead a special defense of unlawful forfeiture. Therefore, the court turns to the doctrine of relief from forfeiture.
In Fellows v. Martin, 217 Conn. 57 (1991), the Connecticut Supreme Court held that equitable defenses, such as relief from forfeiture, are available in summary process cases. Id. 63 and n. 8. The equitable doctrine of relief from forfeitures is based on the principle that courts are reluctant to impose an "enormous loss" on one party which is "wholly disproportionate to the injury to the other party." See Fellows v. Martin, supra, 217 Conn. 65 (quoting 3 J. Story, Equity Jurisprudence (14th ed.) 1728). In summary process actions, however, the doctrine appears to be applied only in nonpayment of rent cases. Id., 66. Indeed, in Fellows, the Connecticut Supreme Court applied the doctrine in circumstances where the tenant had withheld $25.01 of a $500.01 monthly rent payment because of a parking space dispute. The court determined that where the tenant had paid $9,900.00 in advance rent the withholding of $25.01 did not warrant forfeiture of a 99-year lease. Id. 67. See, also Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 778 (1992).
In the nonpayment of rent cases, the Connecticut Supreme Court has established a three-pronged test to ascertain the applicability of the relief from forfeiture doctrine: (1) the tenant's breach was not wilful or grossly negligent; (2) eviction will cause the tenant harm which is wholly disproportionate to the landlord's injury; (3) the landlord's injury is reparable. Fellows v. Martin, supra, 217 Conn. 66-67; Cumberland Farms, Inc. v. Dairy Mart, Inc., supra, 225 Conn. 778.
The court is not aware of any authority supporting the applicability of the doctrine of relief against forfeitures in cases involving the expiration of leases. Assuming however, that the doctrine is available if the equities of the case call for it, the test used in nonpayment cases is not wholly suitable to a summary process case which involves expiration of a lease. The first prong is aimed at evaluating the circumstances of the tenant's nonpayment of rent. In these cases, the breach is the defendants failure to surrender possession of the lots and to remove the buildings and their contents. While this failure to surrender was wilful, in part, in the absence of suitable ingress and egress to the lots, the defendants' failure to remove the structures and contents was not. As to the first prong of the test the court finds the equities are balanced between the parties. As to the second and third prongs, while the record only reflects Mr. Sullivan's loss, the court will take judicial notice that the loss of a cottage is a significant one for all the defendants. Whether the loss is disproportionate to Stratford's, is not so easily ascertained. Stratford has the responsibility to protect its residents and their property, a responsibility the lack of access to Long Beach makes much more difficult, if not impossible, to perform. This is a loss. Additionally, the loss to Stratford of not taking possession of the lots is not reparable, at least not by the defendants. Whether the land might be used for recreational purposes, for residential or commercial development, or as a wildlife refuge, is not known to this court. However, losing the right to use or occupy the property causes Stratford to suffer a significant loss.
The court believes another factor should be considered in determining whether the doctrine against forfeitures applies in these cases. The leases signed by the defendants clearly expired by their explicit terms at the end of June 1997. No evidence has been offered by any party that there was a reasonable expectation the leases would be renewed. Furthermore, Section 6 of the leases clearly stated the lessee's responsibility to remove "any cottage, building, structure, improvements or debris from the premises" at the end of the lease. Thus, neither the lease termination, nor the potential loss of the cottage should have been completely unexpected to, or unforeseen by, any defendant.
On balance, the court concludes that the defendants' losses are not so disproportionate as to justify imposition of the doctrine of relief from forfeiture.
IV. Conclusion
With respect to the nine cases noted above in which the defendants did not stipulate, and indeed dispute, that the notice to quit required by the summary process statute was properly served upon them, the Town concedes that this is a material fact in dispute thereby precluding summary judgment on the existing record.
For the reasons stated above, the court enters the following orders.
(1) the motions to dismiss by the firm-represented defendants and the Showahs are denied;
(2) the plaintiff's motions for summary judgment in the nine cases identified above wherein the service of the notice to quit is at issue, are denied, without prejudice. An evidentiary hearing in those cases will be scheduled by the court, and the parties will have an opportunity to present evidence;
(3) the plaintiff's motions for summary judgment in the 36 remaining cases are granted;
(4) a signed copy of this memorandum will be placed in each case file.
Taggart D. Adams Superior Court Judge