|FROM:||The Legal Taxi|
|RE:||CT Real Estate Law- Abandonment|
CT Real Estate Law-Abandonment
What issues need to exist in order to permit a tenant to abandon a property in the middle of the lease?
Landlord and Tenant had a binding, executed lease for one year, terminating December 2013. In June 2013, Tenant abandons the property, claiming that it had the right to do so because the property had deficiencies that the landlord did not address, therefore the property was not habitable. The landlord claims the deficiencies were insignificant and Tenant did not permit the landlord to fix the deficiencies.
Standard Research Memo
Conditions under which the tenant can abandon the property in middle of the lease?
Connecticut Tenancy Statue and Case Law
In the present matter, landlord and tenant had a lease for one year, but the tenant abandoned the property, claiming that the property had deficiencies, making the property uninhabitable. The research plan revolves around any conditions under which tenants are allowed to exit leasehold early and how courts have interpreted the term “not habitable” under residential lease laws.
Connecticut Code Chapter 830 governs residential landlord-tenant relations. Section 47a-1 defines the relevant terms. Section 47a-11b addresses abandonment of the tenancy by the tenant. The Code states:
- (a) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental in mitigation of damages.
- (b) If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment.
Section 11b describes the landlord’s remedies in the event of abandonment. However, in the present instance, based on the terms of the query and the relevant facts provided, we do not believe that we have an outright abandonment as described in these sections, but instead we have what is essentially a claim of constructive eviction. The tenant alleges that the landlord has not addressed unspecified issues of upkeep of the property. To address this claim, we must turn to §47a-12, which governs tenant remedies for breaches by the landlord.
Section 47a-12 addresses remedies for “material noncompliance” with the rental agreement or any “noncompliance with section 47a-7 [defining landlord responsibilities for the premises, such as water, electricity, heat, etc.] which materially affects health and safety”. However, before using this remedy, the tenant must serve notice on the landlord of the defects that need addressed. The landlord has an opportunity to respond the problem claimed. The Code states:
- . . . The tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach. If the breach is not remedied within fifteen days after receipt of the notice, the rental agreement shall terminate on such date. If substantially the same act or omission which constituted a prior noncompliance of which notice was given, recurs within six months of the first act of noncompliance, the tenant may terminate the rental agreement upon at least fourteen days written notice specifying (1) the date the breach complained of occurred and (2) the date the tenant intends to terminate the rental agreement by vacating the premises, which date shall be within thirty days of such breach.
In your query, you state:
- Landlord and Tenant had a binding, executed lease for one year, terminating December 2013. In June 2013, Tenant abandons the property, claiming that it had the right to do so because the property had deficiencies [sic] that the landlord did not address, therefore the property was not habitable. The landlord claims the deficiencies [sic] were insignificant [sic] and Tenant did not permit the landlord to fix the deficiencies [sic].
From this we assume that the tenant claims a breach of the landlord’s duties under the provisions of §47a-7. To resolve the case, a court will have to determine the accuracy of any allegations that the landlord has breached the duties set forth in §47a-7, which states:
- (a) A landlord shall: (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.
- (b) If any provision of any municipal ordinance, building code or fire code requires a greater duty of the landlord than is imposed under subsection (a) of this section, then such provision of such ordinance or code shall take precedence over the provision requiring such lesser duty in said subsection.
The case of Bond v. Benischek, 2010 Conn. Super. LEXIS 933, 6-7 (Conn. Super. Ct. 2010) provides a succinct overview of the considerations a trial court must consider to determine whether the tenant has proven an allegation sufficient to justify termination of the rental agreement without liability for the tenant:
- Connecticut General Statutes Section 47a-7 sets forth the responsibilities of a landlord to the tenants. The section provides, in pertinent part, a landlord is mandated to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. C.G.S. 47a-7(a) (2). The remedies available to the tenant in the event of the landlord's dereliction of these statutory duties are various, providing that the tenant meets certain criteria. However, to establish inhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are un-tenantable. Evergreen Corporation v. Brown, 35 Conn.Sup. 549, 552, 396 A.2d 146 (1978). [Emphasis added]
In addition, the court will need to know if this is a single-family dwelling and whether the parties have any agreements that could affect the duties of the parties when addressing any of these issues, given the materiality of these issues as set forth in §47a-7 (c) and (d), respectively. We understand that your query deals with a residential lease, but we are not sure whether it involves a single-family home. Neither do we know if the lease altered any terms that the Code otherwise imposes on the parties.
In Grant v. Urban Developers, LLC, 2006 Conn. Super. LEXIS 1508, 7-9 (Conn. Super. Ct. 2006) the trial court sets forth the specific elements that a tenant must prove in order to defeat a claim for rent due:
- Pursuant to General Statutes § 47a-14h [payment of rent to court], a tenant may initiate an action to compel the landlord to meet his/her statutory responsibilities under General Statutes § 47a-7. The tenant has the burden of proof in a tenant complaint case, also referred to as a housing code enforcement action or payment into court action. The essential elements of the case are as follows:
(1) The plaintiff is a tenant at the premises;
(2) The defendant is the landlord of the premises;
(3) The parties entered into an oral/written lease agreement for a term of one week/month/year;
- (4) The tenant pays an agreed-upon rent by a certain date and the rent has been paid to the landlord;
(5) At least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code, or to the agency responsible for enforcement of the code or ordinance alleged to have been violated, or to another municipal agency which referred such complaint to the municipal agency responsible for enforcement of such code or ordinance;
(6) The tenant has not been served with a notice to quit based upon nonpayment of rent prior to the institution of this action, and has not been served with a notice to quit based on any other ground prior to his making the complaint, provided any such notice to quit is still effective; and
(7) The landlord has failed to perform his/her legal duty to maintain the premises under 47a-7, in the following ways (list violations). (Emphasis added.)
In the present set of facts known to us, however, we have no indication that the tenant took any appropriate steps to notify the landlord of any alleged deficiencies and the need to remedy those deficiencies. It is important to determine whether the tenant complied with the notice requirements set forth under applicable sections of the Connecticut Code.
In Grant v. Urban Developers, LLC, 2006 Conn. Super. LEXIS 1508, 9-10 (Conn. Super. Ct. 2006) the court describes in detailed steps the requirements of an action under Sec. 47a-14h (e):
Pursuant to § 47a-14h (e), the tenant may seek and the court may order interim or final relief including, but not limited to, the following:
(1) an order compelling the landlord to comply with his duties under local, state or federal law;
(2) an order appointing a receiver to collect rent or to correct conditions in the property which violate local, state or federal law;
(3) an order staying other proceedings concerning the same property;
(4) an award of money damages, which may include a retroactive abatement of rent paid pursuant to subsection (h) of this section; and
(5) such other relief in law or equity as the court may deem proper. If the court orders a retroactive abatement of rent pursuant to subdivision (4) of this subsection and all or a portion of the tenant's rent was deposited with the court pursuant to subsection (h) by a housing authority, municipality, [*10] state agency or similar entity, any rent ordered to be returned shall be returned to the tenant and such entity in proportion to the amount of rent each deposited with the court pursuant to subsection (h).
If the allegation goes to “essential services”, §47a-13 addresses the issues. It states:
- If the landlord is required to supply heat, running water, hot water, electricity, gas or other essential service, and if the landlord fails to supply such essential service and the failure is not caused by conditions beyond the landlord's control, the tenant may give notice to the landlord specifying the breach and may elect [remedies to choose from].
The statute goes on to describe various remedies that the tenant may exercise, from contracting for substitute housing to termination of the rental agreement. In the query, you report that the tenant claims that the leasehold is “not habitable”; we therefore believe that the tenant may proceed under the following provision and claim that the rental agreement is terminated pursuant to the following:
- (3) if the failure to supply such service is willful, the tenant may terminate the rental agreement and recover an amount not more than two months' periodic rent or double the actual damages sustained by him, whichever is greater. If the rental agreement is terminated, the landlord shall return all security and prepaid rent and interest required pursuant to section 47a-22, recoverable under section 47a-21.
However, the tenant has no claim under the provision set forth above “(1) until the tenant has given reasonable written or oral notice to the landlord or (2) if the condition was caused by the wilful or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.” §47a-13(c). At this point we have no indication that the tenant has taken any of the required steps needed to invoke the provisions of the code that might allow the tenant to abrogate or terminate the rental agreement.
In Johnson v. Fuller, 190 Conn. 552, 556-557 (Conn. 1983) the Supreme Court wrote:
- In Thomas v. Roper, 162 Conn. 343, 347, 294 A.2d 321 (1972), we held that "[w]hether 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 the lease, the character [*557] of the premises, the use to which the tenant intends to put them, and the nature and extent by which the tenant's use of the premises is interfered with by the injury claimed.' . . . 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."
- [T]he defendants assert that they were constructively evicted from the premises and therefore released from their obligations under the lease. '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.' Thomas v. Roper, supra, 349. Having already determined that the trial court's conclusion that the premises were tenantable was justified, we find this argument also to be without merit.
As one would anticipate in this type of case, an appellate court will give great deference to the finding of the trial court.
In Raynor v. Lucisano, 1985 Conn. Super. LEXIS 275, 6-7 (Conn. Super. Ct. 1985) the court held:
- The fact that the code qua code is unenforceable does not relieve a residential landlord from his statutory duty to provide fit and habitable premises. The structure of Gen. Stat 47a-7(a) is such that landlord is required to comply with all applicable codes materially affecting health and safety and to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. It is well-established that a violation of 47a-7(a) is a successful defense under 47a-4a, to an eviction based on nonpayment of rent. Steinegger v. Rosario, 35 Conn. Supp. 151, 153-54,402 A.2d 1 (1979); A.H. Realty Corp. v. Terri SPNH-8503-8706 N.H. (1985) (N.H. H.D. # 313). The common law theory of independence of covenants in a lease has been modified by statute with respect to residential property. S.H.V.C., Inc. v. Roy, 37 Conn. Supp. 579, 585, 428 A.2d 806 (1981), affirmed 188 Conn. 503, 450 A.2d 351 (1982).
In Thomas v. Roper, 162 Conn. 343, 347 (Conn. 1972), a frequently cited case, the Connecticut Supreme Court found that the tenant did not establish that the rental unit was in fact uninhabitable. The court wrote:
- [T]he defendant assumes that the house was rendered untenantable, thereby allowing him to abandon the premises, an assumption we have held to be erroneous. The referee correctly found that the defendant had breached his lease by vacating the premises six months prior to its expiration and that the house was substantially damaged by the breach. Second, even assuming arguendo that the premises had become untenantable within the meaning of § 47-24 [since repealed], while the lessee may suspend rent payments and quit the premises, the lease is not automatically terminated. Hayes v. Capitol Buick Co., 119 Conn. 372, 376, 176 A. 885; Sigal v. Wise, 114 Conn. 297, 306, 158 A. 891. In order to prevail on the theory that the plaintiff had accepted the surrender, thereby rescinding the lease and relinquishing his rights against the defendant for breaching the lease, the defendant must point to an unequivocal act on the part of the plaintiff showing his intent to accept the surrender. Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574; Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720; Tseka v. Scher, 135 Conn. 400, 404, 65 A.2d 169. Having failed to meet this burden, this argument likewise must fail. [Emphasis added.]
As we do not currently know the nature or extent of any deficiencies claimed by the tenant, we cannot point to any specific precedents to guide your decisions. In most of the cases cited above, and under a variety of facts, the reported decisions seem to weight against the tenants’ claims. We suggest further research if the landlord and tenant offering differing accounts of whether the landlord had access to the premises to make repairs, assuming the tenant notice of any defects. Section 47a-16 governs the conditions under which a landlord has access to any leased property. This Code section states:
- (a) A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed to repairs, alterations or improvements, supply necessary or agreed to services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.
- (b) A landlord may enter the dwelling unit without consent of the tenant in case of emergency.
- (c) A landlord shall not abuse the right of entry or use such right of entry to harass the tenant. The landlord shall give the tenant reasonable written or oral notice of his intent to enter and may enter only at reasonable times, except in case of emergency.
- (d) A landlord may not enter the dwelling unit without the consent of the tenant except (1) in case of emergency, (2) as permitted by section 47a-16a, (3) pursuant to a court order, or (4) if the tenant has abandoned or surrendered the premises.
Note also that the Code addresses a refusal by the tenant to allow entry:
- If the tenant refuses to allow entry pursuant to section 47a-16 or section 47a-16a, the landlord may obtain a declaratory judgment or injunctive relief to compel access or terminate the rental agreement. In either case the landlord may recover actual damages and reasonable attorney's fees.
In any further consideration of the claims made by the parties, these provisions could prove crucial. E.g., Kahn v. Watford, 1996 Conn. Super. LEXIS 1270, 7-8 (Conn. Super. Ct. 1996) (tenant cannot avail himself of the statutory defense of Connecticut General Statutes § 47a-4a unless and until he has complied with the statutory obligation of Connecticut General Statutes § 47a-16(a) by permitting the landlord reasonable access to the premises); Gayle v. Young, 1995 Conn. Super. LEXIS 693, 19-21 (Conn. Super. Ct. 1995) (tenant cannot use the statutory defense of C.G.S. Section 47a-4a unless
and until tenant has complied with the statutory obligation of C.G.S. Section 47a-16(a) by permitting landlord reasonable access to the premises for the purpose of making landlord required repairs under C.G.S. Section 47a-7(a).
The Connecticut statutes provide a clear set of standards and procedures governing residential leases. If a tenant alleges that the landlord has failed to meet the statutory obligations for any rental agreement, the remedies are clearly set forth. While this could allow a tenant to vacate the tenancy and stop paying rent, the tenant would have to follow the specific steps set forth in the code. In the present instance, we have no evidence that the tenant did (or did not) take any of these appropriate steps. Nor do we know the specific allegations of any inadequacy in the provision of basic services or other requirements from the landlord. In addition, we do not have sufficient facts to assess the adequacy of landlord’s contention that the tenant failed to permit landlord access to cure any purported deficiencies. Until we have such information, we are not in a position to provide further guidance beyond the cases cited here that might help resolve any dispute that might go to court in this circumstance.
Thank you for allowing us to research this issue. We believe that we’ve provided an overview of the relevant statutory law as well as some relevant cases. However, since we didn’t have any specifics about the tenant’s allegations or the history (or lack thereof) of communication between the landlord and the tenant, we couldn’t point to case law precedents with the specificity that we would have liked to. In addition, because Connecticut statutory law covers the legal principles involved and because we lacked specific facts, we did not look outside of Connecticut for precedents. Because you are entitled to a revision of this memo without charge, we’d be happy to receive further information about the specifics of this case to allow us to refine our memo to better suit your particulars. We’d then send the revised memo to you gratis.
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