no. spnh : superior court motion to suspend time

NO. SPNH : SUPERIOR COURT : HOUSING SESSION

BANKERS TRUST COMPANY : J.D. OF NEW HAVEN vs. : AT NEW HAVEN JANICE FLECHA ET AL : July , 2002

MOTION TO SUSPEND TIME REQUIREMENTS TO PLEAD

Pursuant to Conn. Prac. Bk. § 10-8, defendant moves to suspend

time requirements to plead pending plaintiff’s response to its

discovery requests.

Defendant has good cause for such suspension of time, because

defendant’s discovery requests are related to whether or not

plaintiff actually has proper title to bring this action. JANICE FLECHA

THE DEFENDANT

BY: AMY EPPLER-EPSTEIN ATTORNEY AT LAW NEW HAVEN LEGAL ASSISTANCE ASSOCIATION, INC. 426 STATE STREET NEW HAVEN, CT 06510 JURIS NO. 305401 Tel: (203) 946-4811

Statewide Legal Services of CT – Eviction Defense Training PLEADINGS -

ORDER

The foregoing motion having been duly presented to this Court,

and it appearing that it ought to be granted, it is hereby

ORDERED: that further pleadings are suspended until plaintiff

complies with defendant’s discovery requests.

Dated at New Haven, Connecticut, this Day of , 2002.

BY THE COURT

JUDGE OF THE SUPERIOR COURT

CERTIFICATION

This is to certify that on July , 2002, a copy of the

foregoing was mailed, postage pre-paid, to Atty. Daniel Glass, Glass

& Braus, 2452 Black Rock Tpk., #7, Fairfield, CT 06432.

Amy Eppler-Epstein


NO. SPNH 8908-22710 SUPERIOR COURT HOUSING SESSION

JIM COLLINS, ET AL JUDICIAL DISTRICT OF NEW HAVEN

v. AT NEW HAVEN

LESHEA POUNCEY AUGUST 31, 1989

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

It is axiomatic that a notice to quit must state a legally sufficient reason for eviction under

Conn. Gen. Stat. §47a-23(a). A landlord may not resort to summary process, which is in

derogation of common law and must be strictly followed, for reasons other than those enumerated

in the statute. See, .Bongiova j v. Reardon, 8 C.L.T. No. 50,p. 16 (Hartford Housing Session

#313, March 8, 1982) ("lessor desires to regain possession of these premises" not a proper ground);

Horace Bushnell Congregate Homes v. Jefferson. 1! C.L.T. No. 34, p. 18 (Hartford Housing

Session #600, January 30, 1985) ("illegal conduct" not a proper ground); Cummings v. Jones, 12

C.L.T. No. 19, p. 40 (Bridgeport Housing Session #225, February 19, 1986) ("termination of

month-to-month tenancy" not a proper grou11d).

In this ·case the notice to quit recites the following reason: "subsequent the date of the

leasehold agreement between the parties, landlord discovered that he did not have legal authority to

lease the apartment within the meaning of the New Haven Housing Code and Section 47a-7a of the


General Statutes." This is simply not one of the permissible statutory grounds fur a notice to quit in

Connecticut.

Since the failure to serve a notice to quit in accordance with the statute deprives the Court of subject matter jurisdiction, this action must be dismissed. Lampasona v. Jacobs, 209 Conn. 724, 729 (1989).

THE DEFENDANT

BY: _

GLENN W. FALK HER ATTORNEY 426 State Street New Haven, CT 06510-2018 777-4811

CERTIFICATION

This is to certify that on the day of August,

1989, a copy of the foregoing was mailed, postage prepaid, to

Glenn W. Falk


DOCKET NO. 125458 : SUPERIOR COURT/HOUSING SESSION

NELLIE HUNT : J.D. OF HARTFORD

VS. : AT HARTFORD

SHIRLEY ALLEYNE-ALFORD : AUGUST 28, 2003

MOTION TO DISMISS

The defendant moves to dismiss this action for the following reasons:

1. The plaintiff and the defendant entered into a lease under the Section 8 program.

2. The termination of the lease is subject to the regulations at 24 C.F.R. ' 982.

3. As a condition precedent to the termination of the lease the plaintiff was required by the regulations at 24

C.F.R. ' 982.310 to send notice of the termination to the Housing Agency which administers the Section 8 lease.

4. The plaintiff has not alleged compliance with the requirements of 24 C.F.R. ' 982.310.

5. The court lacks jurisdiction over this matter due to the plaintiff's failure to send the required termination

notice.

Oral argument is requested

Testimony may be required


DEFENDANT,

BY________________________________ DAVID A. PELS - HER ATTORNEY GREATER HARTFORD LEGAL AID 999 ASYLUM AVENUE HARTFORD, CONNECTICUT 06105 TELEPHONE: (860) 541-5013

JURIS NO. 45965


ORDER

The foregoing Motion having been heard by the Court, it is hereby ORDERED: GRANTED/DENIED.

BY THE COURT,

_____________________________________ JUDGE/CLERK/ASSISTANT CLERK CERTIFICATION

I hereby certify that a copy of the foregoing Motion has been mailed on August , 2003, to:

___________________________________ DAVID A. PELS COMMISSIONER OF THE SUPERIOR COURT


DOCKET NO. 125458 : SUPERIOR COURT/HOUSING SESSION

NELLIE HUNT : J.D. OF HARTFORD

VS. : AT HARTFORD

SHIRLEY ALLEYNE-ALFORD : AUGUST 28, 2003

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

A LANDLORD OF A SECTION 8 TENANT MUST COMPLY WITH THE TERMINATION OF

TENANCY NOTICE REQUIREMENTS SET FORTH AT 24 CFR SECTION 982.310 IN ORDER TO

TERMINATE THE LEASE

The Department of Housing & Urban Development has promulgated rules and regulations governing tenant

evictions in Section 8 tenancies. These are set forth at 24 CFR Section 982.310 (copy attached). Section 982.310

provides that the "owner must give the HA (housing agency) a copy of any owner eviction notice to the tenant.@ No

such notice was sent to the HA.

As early as 1967, the Supreme Court had before it the applicability of such a regulation, although the regulation

was set forth in a HUD circular. In Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969), the Supreme

Court was asked to decide whether a tenant could be evicted from a federally assisted housing project without

having been given notice of the reasons thereof or an opportunity to respond thereto, when such procedures were

required pursuant to a HUD circular. The Court held that "the housing authorities of federally assisted housing

projects must apply... the HUD circular before evicting any tenant is such projects..." (emphasis added) 393 U.S., at

274. The Court reasoned that such regulations were mandatory not only as a condition to receiving federal aid, but

also as the minimum requirements considered consistent with fulfilling federal responsibilities under the United

States Housing Act of 1937.

Connecticut courts have previously strictly construed federal statutes and regulations governing terminations of

tenancies under federally-subsidized programs. See Jefferson v. Gardens Associates v. Greene, 202 Conn. 128, 143


(1987), Starr v. Vigo, H # 962 (1991) (copy attached).

Since the plaintiff herein failed to comply with the notice requirements of the federal regulations, the

defendant's Motion to Dismiss must be granted.


DEFENDANT, BY________________________________ DAVID A. PELS - HER ATTORNEY GREATER HARTFORD LEGAL AID 999 ASYLUM AVENUE HARTFORD, CONNECTICUT 06105 TELEPHONE: (860) 541-5013

JURIS NO. 45965

CERTIFICATION

I hereby certify that a copy of the foregoing Motion has been mailed on August , 2003, to:

___________________________________ DAVID A. PELS COMMISSIONER OF THE SUPERIOR COURT


DOCKET NO. SPH 104867 ::SUPERIOR COURT/HOUSING SESSION

ROBERT BRENNAN ET AL. ::J.D. OF HARTFORD

VS. ::AT HARTFORD

ALEXUS MISKIN AHMAD ET AL. ::SEPTEMBER , 2000

REQUEST TO REVISE

The defendant requests pursuant to Connecticut Practice Book Section 10-35 et seq., that the plaintiffs revise the

complaint as follows:

1. By stating whether the lease alleged in the complaint is oral or written.

Said revisions are necessary because paragraph 1 alleges an oral lease and paragraph 3 alleges a written lease.

DEFENDANT,

BY________________________________ DAVID A. PELS - HER ATTORNEY GREATER HARTFORD LEGAL AID 999 ASYLUM AVENUE HARTFORD, CONNECTICUT 06105 TELEPHONE: (860)541-5013 JURIS NO. 45965

CERTIFICATION

I hereby certify that a copy of the foregoing has been mailed on September ,2000, to:

_______________________________

DAVID A. PELS COMMISSIONER OF THE SUPERIOR COURT


NO. SPNH 22679 SUPERIOR COURT HOUSING SESSION

NORMAN MYERS JUDICIAL

DISTRICT OF NEW HAVEN

v. AT NEW HAVEN

SHIRLEY NERREAU SEPTEMBER 13, 1989

MOTION TO STRIKE

Pursuant to Practice Book§ 151 et seq., the defendant moves to strike the First Count of

the Revised Complaint in this summary process action on the following grounds:

1. The First Count alleges that "there has been a history of disturbance and noise to

the extent that it disturbs those living in the neighborhood, including the plaintiff.",4.

2. The First Count is legally insufficient to state a claim upon which relief can

be granted, because plaintiff has failed to allege the issuance of the notice required by Conn. Gen.

Stat.

§47a-15, advising the defendant, inter alia, of the right to cure any alleged misconduct within 15

days in order to avoid termination of the lease.

ORAL ARGUMENT REQUESTED


WHEREFORE, defendant moves that the First Count of the Revised Complaint be stricken.

THE DEFENDANT

BY: _ GLENN W. FALK HER ATTORNEY

426 State Street New Haven, CT 06510-2018 777-4811

ORDER

The foregoing motion having been duly presented to the Court, and it appearing that the

same ought to be granted, it is hereby

ORDERED: that the First Count of the Revised Complaint is stricken.

Dated at New Haven, Connecticut this day of September, 1989.

JUDGE OF THE SUPERIOR COURT

CERTIFICATION

This is to certify that on the day of September, 1989, a copy of the foregoing was mailed,

postage prepaid, to

Glenn W. Falk


NO. SPNH 22679 SUPERIOR COURT HOUSING SESSION

NORMAN MYERS JUDICIAL DISTRICT

OF NEW HAVEN

v. AT NEW HAVEN

SHIRLEY NERREAU SEPTEMBER 13, 1989

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE

The Connecticut summary process statute obligates the plaintiff in its action to "set forth

facts justifying a judgment for immediate possession or occupancy of the premises" in his complaint.

Conn. Gen. Stat. §47a-23a(a). The First Count of the complaint alleges "a history of disturbances and

noise" in the premises, '\[4, but this alone, even if it were true, would not be sufficient to entitle

the plaintiff to a judgment on the First Count. An essential part of plaintiffs cause of action is the

service of the notice required by Conn. Gen. Stat. §47a-15, advising the defendant, inter alia, of her

right to cure any alleged misconduct within 15 days in order to avoid termination of her lease. The

failure to comply with this statutory notice requirement renders the notice to quit invalid and deprives

the Court of subject matter jurisdiction. Bridgeport v. Barbour- Daniel Electronics. Inc., 16 Conn.

App. 574, 581-584 (1988); see also Marrinan v. Hamer, 5 Conn.

App. 101 (1985); Housing Authority of the City of Hartford v. Perez, No. SP-H-8211-16901HD

(Hartford Housing Session #415, June 9, 1983), copy attached as Exhibit A.

' "Eviction is a statutory action and requires that the complaint allege the necessary notice to

the tenant." Tehrani v. Centurv Medical Center, 7 Conn. App. 301, 307 (1986), citing Practice

Book §185. Since the instant complaint "does not allege facts which would exempt the plaintiff

from the notice requirement of [Conn. Gen. Stat.] §47a-15 ... the failure to allege such delivery renders the complaint


insufficient." Perez, slip op. at 3.

Accordingly, defendant's motion to strike the First Count of the Revised Complaint should be granted.

THE DEFENDANT

BY: _ GLENN W. FALK HER ATTORNEY 426 State Street New Haven, CT 06510-2018 777-4811

CERTIFICATION

This is to certify that on the day of September, 1989, a copy of the foregoing was mailed, postage

prepaid, to


NO. SPNH 8801-17590 SUPERIOR COURT HOUSING SESSION

CHURCH STREET SOUTH APARTMENTS JUDICIAL DISTRICT

OF NEW HAVEN

v. AT NEW HAVEN

DAISY JIMENEZ FEBRUARY 17, 1988

ANSWER

I. Paragraphs I and 2 are admitted.

2. Paragraph 3 is denied.

3. Defendant admits receiving the notice alleged in paragraph 4, but denies that said

notice properly terminated her lease.

4. Paragraph 5 is admitted.

SPECIAL DEFENSES

FIRST SPECIAL DEFENSE: Tender of Rent Before Service of Notice to Quit

I. The defendant is a subsidized tenant in the Section 8 Property Disposition Program,

which requires good cause for termination of the lease. 24 C.F.R. §886.328(b).

2. On or before December 19, 1988, the defendant tendered her $40.00 portion of the

December rent, plus late charges, to the acting property manager, along with $75.00 as part of a

separate repayment agreement entered with the previous property manager.

3. Although these sums would have brought the defendant up to date in rent and

· arrearage payments pursuant to the agreed schedule, the acting property manager refused said

tender and told the defendant that the matter was in the hands of Attorney Herbert Hyman,

plaintiff’s counsel.


4. The defendant immediately contacted Attorney Hyman's office, but was informed by

his secretary that he was on vacation and that no notice to quit had been issued.

5. On or about December 29, 1987, the defendant was serviced a notice to quit for

nonpayment of December rent in the amount of $40.00.

6. Since the landlord refused defendant's tender of all sums then due before service of the

notice to quit, the plaintiff may not claim a forfeiture of the lease and obtain a judgment for

possession based on non-payment of the December, 1987 rent.

SECOND SPECIAL DEFENSE: Absence of Good Cause for Termination

7. 1.-6. Paragraphs 1 through 6 of the First Special Defense are incorporated herein by

reference as paragraphs 1 through 6 of the Second Special Defense.

8. Since the plaintiff refused the defendant's tender of rent before service of the notice to

quit, the plaintiff lacks good cause to evict the tenant as required by the Section 8 Property

Disposition Program.

THIRD SPECIAL DEFENSE: Failure to Comply with Federal Termination Requirements

9. 1. Paragraphs 1 through 6 of the First Special Defense are incorporated herein by

reference as paragraphs 1 through 6 of the Third Special Defense.

10. The plaintiff is required by 24 C.F.R. §886.328(c) to provide Church Street South

tenants with an opportunity to respond to the owner prior to termination of the lease.

11. The plaintiff is fm1her obligated by 24 C.F.R. §886.328(c) to serve a 15-day pre-

termination notice advising the tenant of the grounds for eviction and of the right to contact the

owner and the BUD area office in Hartford regarding the proposed termination.


12. The plaintiff failed to serve the defendant with the required pre-termination notice, and

failed to provide a meaningful opportunity to respond to the owner, even though she attempted to

meet with the acting property manager and tender her rent.

13. Since the plaintiff failed to comply with federal termination requirements in the Section

8 Property Disposition Program, the plaintiff is not entitled to a judgment for possession.

FOURTH SPECIAL DEFENSE: Estoppel

1.-6. Paragraphs 1 through 6 of the First Special Defense are incorporated herein by

reference as paragraphs 1 through 6 of the Fourth Special Defense.

7. Since the plaintiff refused defendant's tender of more than $40.00 rent before service of the

notice to quit, and induced the defendant to contact Attorney Hyman who was on vacation, the

plaintiff is estopped from evicting the defendant for non-payment of $40.00 rent in December, 1987.

FIFTH SPECIAL DEFENSE: Equitable Doctrine Against Forfeiture of the Lease

1. Paragraphs 1through 6 of the First Special Defense are incorporated herein by reference

as paragraphs 1 through 6 of the Fifth Special Defense.

7. Defendant's delay in payment of December rent was slight, the loss to the lessor was

small, and to allow forfeiture of the subsidized tenancy would cause great hardship to the defendant,

in that she would be forced to pay full market rent for another apartment from her limited AFDC

income.

· 8. The Court should therefore invoke its equitable power to enjoin forfeiture of the

subsidized lease.


THE DEFENDANT DAISY JIMENEZ

BY:·____________ GLENN W. FALK HER ATTORNEY 426 State Street New Haven, CT 06510-2018 777-4811

CERTIFICATION

This is to certify that on the day of February, 1988, a copy of the foregoing was

mailed, postage prepaid, to


NO. SPNH 37875 SUPERIOR COURT

HOUSING SESSION

CONNECTICUT BANK OF COMMERCE, ETAL.

JUDICIAL DISTRICT

OF NEW HAVEN

v. AT NEW HAVEN

RONALD BROWN, ET AL. JANUARY 28, 1994

1. Paragraph 1 is admitted.

ANSWER

2. The defendants are without sufficient information to admit or deny the allegations of

paragraphs 2, 3 and 4 of the First Count, and leave plaintiffs to their proof.

3. Paragraph 5 is denied.

4. Paragraph 6 is admitted, insofar as it alleges that the defendants were in possession of the

premises prior to June 1, 1992 pursuant to a written lease agreement; the remainder of the paragraph

is denied.

5. Paragraph 7 is admitted, insofar as it alleges that the defendants did not pay rent for the

month of December, 1993; the remainder of the paragraph is denied.

6. Paragraph 8 is admitted, insofar as it alleges that a notice to quit, Exhibit A to the

Complaint, was served on or about December 31, 1993; the remainder of the paragraph is denied.


SECOND COUNT

1.-6. The defendants' answers to paragraphs 1 through 6 of the First Count are

incorporated herein by reference.

7. Paragraph 7 of the Second Count is denied.

8. The defendants' answer to paragraph 8 of the First Count is incorporated herein by

reference. (There is no paragraph 9.)

SPECIAL DEFENSES

SPECIAL DEFENSE TO FIRST COUNT

Pursuant to Conn. Gen. Stat. § 47a-4a, the plaintiffs were not entitled to collect rent for

the month of December, 1993, since the plaintiffs failed to comply with their obligations under

Conn. Gen. Stat. § 47a-7(a), in that extensive flooding, including human sewage, repeatedly

occurred in the unit, among other housing code violations.

SPECIAL DEFENSE TO SECOND COUNT

This action is barred by Con. Gen. Stat. 47a-20, because it is being maintained within six

months after (1) the defendants sought to remedy the flooding of sewage into their apartment

by contacting West Haven city officials on or about October is, 1993; (2) West Haven city

officials issued notices, complaints or orders regarding the flooding; and (3) the defendants in

good faith requested the plaintiffs or their agents to make repairs.


THE DEFENDANTS BY: ______________

GLENN W. FALK THEIR ATTORNEY 426 State Street New Haven, CT 06510 777-4811

CERTIFICATION

This is to certify that on the day of January, 1994, I caused a copy of the foregoing to

be mailed, postage prepaid, to


DOCKET NO. HDSP 155704 SUPERIOR COURT

BANK OF NEW YORK MELLON FKA HOUSING SESSION

v. AT HARTFORD SHARON CASAS, ET AL MARCH 2010 MOTION TO DISMIISS The defendant moves to dismiss the complaint for the following reasons.

1. The notice to quit possession in this summary process action states as its reason that

the defendant's right or privilege to occupy was terminated due to a foreclosure sale.

2. The Protecting Tenants at Foreclosure Act (PTFA) provides the right of bona fide

tenants to occupy after a foreclosure does not terminate until at least ninety days after the notice

required by the PTFA.

3. The defendant is a bona fide tenant within the meaning of the PTFA.

4. The delivery of the notice to quit on December 3, 2009 within ninety days of the

October 2, 2009 PTFA notice was therefore premature and legally insufficient.

5. The court therefore lacks jurisdiction over this matter WHEREFORE, the defendant moves that the complaint be dismissed. ' Oral Argument Requested No Testimony Required


DEFENDANT, SHARON CASAS BY__________ DAVID A. PELS, HER ATTORNEY GREATER HARTFORD LEGAL AID, INC. 999 ASYLUM AVENUE HARTFORD, CT 06105 JURIS NO: 45965 TEL: 860-541-5032

ORDER The foregoing motion having been heard, it is hereby ORDERED: GRANTED/DENIED.

BY THE COURT

Judge


CERTIFICATION

I hereby certify that copies of the foregoing were mailed on March, 2010 to: COMMISSIONER OF THE SUPERIOR COURT


DOCKET NO. HDSP 155704 BANK OF NEW YORK MELLON FKA

SUPERIOR COURT HOUSING

SESSION

v. SHARON CASAS, ET AL

AT HARTFORD MARCH '2010

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

I. Facts This is an action for summary process brought by the Plaintiff, Bank of Mellon New York ("the Bank''). The Bank

became the owner of the premises on September 8, 2009 after court approval of a foreclosure sale.

In paragraph 7 of the complaint the Bank alleges that it provided a notice to the defendants under the Protecting

Tenants at Foreclosure Act. That notice is dated October 2, 2009. On December 3, 2009 the Bank served the

defendants with a notice to quit.

The Tenant moves to dismiss the Banks' complaint for failure to properly terminate the tenancy by serving the

notice to quit prior to the end of the 90 day notice required by the recently enacted federal law, Protecting Tenants

at Foreclosure Act of2009.


ARGUMENT

I A NOTICE TO QUIT BASED ON ONE WHO ORIGINALLY HAD THE RIGHT OR PRIVILEGE TO

OCCUPY MUST BE BASED ON AN EVENT WHICH OCCURRED PRIOR TO THE DELIVERY OF THE

NOTICE TO QUIT

Connecticut General Statutes §47a-23 reads, in relevant part:

(a) When the owner ..., or the owner's ...attorney-at-law, desires to obtain possession or occupancy of ...any

apartment in any building, [or] any dwelling unit ..., and (l) 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 section47a-9 or21-70; (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-ll or subsection (b) of section 21-82; (G) nuisance, as defined in section 47a-32, or serious nuisance, as

defined in section47a-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 or lessor, or such owner's or lessor's ...

attorney-at-law ..., shall give notice to each lessee or occupant to quit possession or occupancy of such land, building,

apartment or dwelling m1it, at least three days before the termination of the rental agreement or lease, if any, or before the

time specified in the notice for the lessee or occupant to quit possession or occupancy.

(Emphasis supplied).

Of the reasons that may be given in a notice to quit possession, those listed under number 1 are for "when a rental

agreement or lease of such property" terminates for any of various reasons, enumerated as A through G. The lessor

under a lease or rental agreement effects a termination of said rental agreement by performing some unequivocal act that

clearly demonstrates his intent to terminate the lease. Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106

A.2d 720 (1954), Sandrew v. Peguot Drug, Inc. 4 Conn.App. 627, 628, 495 A.2d 1127 (1985). Under Conn. Gen. Stat.

§47a-23, the unequivocal act is the delivery of the notice to quit possession. See Webb v. Ambler, 125 Conn.

543,552-53,7 A.2d 228 (1939).

By contrast, the reason given under number 2 that the person to be dispossessed never had a right or privilege to occupy


the premises. The reason given under number 3 is that in the instant case, "when one originally had the right or privilege

to occupy such premises but such right or privilege has terminated ..!' The tenses of the verbs in reason11Umber 3 must

be noted: "one originally had the right or privilege" in the past, "but such right or privilege has terminated" in the present

perfect, i.e., at some time prior to the present. It is only once "such ·right or privilege has terminated" that an owner or

his attorney "shall give notice to each lessee or occupant to quit possession or occupancy ...." The meaning of the

statute is clear. If the reason for the notice to quit possession is that "one originally had the right or privilege to occupy

such premises but such right or privilege has terminated," the notice must follow the termination of the right or privilege.

The notice to quit possession cannot reach into the past and terminate the occupant's right or privilege before the notice is

delivered.

"It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language

actually used in the legislation." Gelinas v. Town of West Hartford, 65 Conn.App. 265,275,782 A.2d 679 (2001),

Vaillancourt v. New Britain Machine/Litton, 224 Cotin. 382, 391, 618 A.2d 1340 (1993). "[W]hen the language of a

statute is plain and

unambiguous, we need look no further than the words themselves because we assume that the language expresses the

legislature's intent." American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). The

legislature's use of a verb tense is important and significant in construing statutes. See Gelinas v. Town of West

Hartford, 65 Conn.App. at 281, Samoiere v. Zaretsky, 26 Conn.App. 490, 493, 602 A.2d 1037, cert. denied, 222 Conn.

902, 606 A.2d 1328 (1992).

The plain reading of Conn.Gen.Stat. §47a-23 indicates that, in the case of a summary process action based on "one

originally had the right or privilege to occupy such premises but such right or privilege has terminated," the right or

privilege must have terminated prior to the delivery of the notice to quit possession.

II. THE PROTECTING TENANTS AT FORECLOSURE ACT OF 2009.

On May 20, 2009 President Obama signed the Protecting Tenants at Foreclosure Act of 2009 ("PTFA" or "the Act"), as

part of the Helping Families Save their Homes Act, PL. No. 111-22, §§ 701-704, 132 Stat. 1632, 1660-62 (effective May

20, 2009). The Act, which was immediately effective on May 20, 2009, (copy attached).

The PTFA offers significant protections to renters residing in properties where their landlords' mortgages were foreclosed.

Section 702(a) of the Act states that it applies generally


"[i]n the case of any foreclosure on a federally-related mortgage loan [such as the mortgage in this case} or on

any dwelling or residential real property after the date of enactment of this title." Under§ 702(a), any "immediate

successor in interest in such property pursuant to the foreclosure shall assume such interest subject to" ...a

notice to vacate of at least 90 days· for all "bona fide" tenants, and with some exceptions, the rights of bona fide

tenants with leases to occupy the property until the end of the lease term (subject to the 90 day notice to vacate).

Section 703 provides special protections for tenants with federal Section & rental assistance.

The PTFA is a broadly remedial statute. Statements in the Congressional Record demonstrate that the Act was

meant to alleviate the hardship experienced by renters across the country who were subject to quick eviction with

little notice, and indicate an understanding that the PTFA was intended to assist as many tenants as possible to

avoid abrupt displacement after foreclosure.

[F]or too long, tenants have been the innocent victims of the foreclosure crisis. Countless tenants across the country have been forced to leave their homes simply because their landlords were unable to pay their mortgages. Too often, these tenants had no idea that the property was even under foreclosure until the authorities arrived at their door to inform them that they must vacate the property immediately .... Under the new law, all bona fide tenants who began renting prior to transfer of title by foreclosure of their rental property must be given at least 90 days' notice before being required to vacate the property. In addition, these bona fide tenants are allowed to remain in place for the remainder of any leases entered into prior to the transfer of title by foreclosure. These !eases may be terminated earlier only if the property is transferred to someone who intends to reside in the property and only if the tenants are given at least 90 days' notice of the fact of such sale. Successors in interest to properties with section 8 housing choice voucher tenants automatically assume the obligations of the former owner under the housing assistance payments contract. 155 Cong. Rec. S8978 (daily ed. Aug. 6, 2009) (statement of Sen. Dodd). [At] least for tenants who are in good standing on their properties, they should not be affected because the property ended up in foreclosure through whatever rationale that may have happened to the landlord. It seems to me, putting people out on the street is not what we ought to be doing at a time such as this. Whatever your views are about whether these programs; reworking as effectively as they should, I think all of us agree the innocent who are being confronted with these decisions should not be left in a more precarious position than they are already in ..." 155 Cong. Rec. S5115 (daily ed. May 5, 2009) (statement of Sen. Dodd).! 1 See also 155 Cong. Rec. 85096-97 (daily ed. May 5, 2009) (statement of Sen. Gillibrand); ISS Cong. Rec. S5lll (daily ed. May 5, 2009) (statement of Sen. Kerry). Further, statements issued by HUD, the Comptroller of the Currency, the Federal Reserve Board and the White House explaining the Act to the public, housing authorities and regulated financial institutions also stress the broad coverage of the Act and its purpose to assist tenants who are threatened with quick eviction after foreclosure. See Protecting Tenants at Foreclosure: Notice of Responsibilities Placed on Immediate Successors in Interest Pursuant to Foreclosure of Residential Property, 74 Fed. Reg. 30),106 (June 24, 20()9); Comptroller of the Currency, Adm'r of Nat'l Banks, OCC Bull. 2009-28, Helping Families Save Their Homes Act of 2009- Title VII Tenant Protections: Guidance (2009), available at http://www.occ.gov/ftp/bulletin/2009-28.html; Div. of Consumer and Cmty. Statewide Legal Services of CT – Eviction Defense Training PLEADINGS -

http://www.occ.gov/ftp/bulletin/2009-28.html%3B

Affairs, Bd. of Governors of the Fed. Reserve Sys., CA 09·5, Information and Examination Procedures for the "Protecting Tenants at Foreclosure Act of2009" (2009), available at http://www.federalreserve.gov!boarddocs/caletters/2009/0905/caltr0905.htm; Press Release, Office of the Press Sec'y, The White House, Reforms for American Homeowners and Consumers (May 20, 2009), available at http://www.whitehouse.gov/the_press_office/Reforms-for-American-Homeowners-and-Consumers-President-Obama-Signs-the"Helping"Families-Save-their"Homes-Act-and-the-Fraud-Enforcement-and-Recovery act. The PTFA thus altered the application of Connecticut law which previously provided that a foreclosure

terminated the tenant's right to occupy. Under the PTFA the tena11t's right to occupy can only be terminated after

the passage of the ninety days' notice required by the PTFA. A notice to quit delivered within that notice period

is therefore premature.

Ill. CONCLUSION Summary process statutes that grant a landlord rights in derogation of the common law have been

"'narrowly construed and strictly followed.' " Jefferson Garden Associates v. Greene. 202 Conn. 128,

143, 520 A.2d 173 (1987); Jo-M.ark Sand & Gravel Co. V. Pantanella, 139 Conn. 598. 600-601, 96

A.2d 217 (1953). "[t]he failure to comply with the statutory requirements deprives a court of

jurisdiction to hear the summary process action." Bridgeport v. Barbour-Daniel Electronics, Inc.,

16 Conn.App. 574, 582. 54& A.2d 744, cert. denied, 209 Conn. 826. 552 A.2d 432 0988).

For all these reasons, the Bank's complaint should be dismissed for failure to properly terminate the tenancy as

required by § 702 of the PTFA.


http://www.whitehouse.gov/the_press_office/Reforms-for-American-Homeowners-and-Consumers-Pres

DEFENDANT, SHARON CASAS BY__________________ DAVID A PELS, HER ATTORNEY GREATER HARTFORD LEGAL AID, INC. 999 ASYLUM AVENUE . HARTFORD, CT 06!05 JURIS NO: 45965 TEL: 860 541-5032

CERTIFICATION

I hereby certify that copies of the foregoing were mailed on March , 2010

to: COMMISSIONER OF THE SUPERIOR COURT


BRSP-071214 : SUPERIOR COURT HSBC MORTGAGE CORPORATION : J.D. OF FAIRFIELD VS. : HOUSING SESSION AT BRIDGEPORT KARLA MIKEL. : APRIL 5, 2010

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

I. Facts This is an action for summary process brought by the plaintiff, HSBC Mortgage

Corporation (USA). However, the Certificate of Foreclosure submitted on the plaintiff’s behalf

by Bendett & McHugh, PC and filed on the Bridgeport land records, certifies that title vested on

July 23, 2009. The Protecting Tenants at Foreclosure Act of 2009 (PTFA), Title VII of Public

Law 111-22, attached hereto as Appendix 1, regulates all evictions after foreclosure of

federally-related mortgages of rented property after May 20, 2009.

The plaintiff has not alleged service of a notice as required by the Protecting Tenants at

Foreclosure Act of 2009 nor has it attached a copy of the requisite notice to the complaint. The

Complaint does not allege that the defendant tenant is not protected by the PTFA. The defendant

moves to dismiss the complaint for failure to properly terminate the tenancy in accordance with the

requirements of the recently enacted federal law.

II. The Protecting Tenants at Foreclosure Act of 2009.

On May 20, 2009 President Obama signed the Protecting Tenants at Foreclosure Act of

2009 (“PTFA” or “the Act”), as part of the Helping Families Save their Homes Act, P L. No.

111-22, §§ 701-704, 132 Stat. 1632, 1660-62 (effective May 20, 2009). The act, which was

immediately effective on May 20, 2009 affords additional protections to tenants who reside in

rental properties that are foreclosed by banks and mortgage holders.


The PTFA offers significant protections to renters residing in properties where their

landlords’ mortgages were foreclosed. Section 702(a) of the Act states that it applies generally

“[i]n the case of any foreclosure on a federally-related mortgage loan or on any dwelling or

residential real property after the date of enactment of this title.” Under § 702(a), any “immediate

successor in interest in such property pursuant to the foreclosure shall assume such interest subject

to” . . . a notice to vacate of at least 90 days for all “bona fide” tenants, and with some exceptions,

the rights of bona fide tenants with leases to occupy the property until the end of the lease term,

subject to the 90 day notice to vacate.

The PTFA is a broadly remedial statute. Statements in the Congressional Record

demonstrate that the Act was meant to alleviate the hardship experienced by renters across the

country that were subject to quick eviction with little notice and indicate an understanding that the

PTFA was intended to assist as many tenants as possible to avoid abrupt displacement after

foreclosure.

[F]or too long, tenants have been the innocent victims of the foreclosure crisis. Countless tenants across the country have been forced to leave their homes simply because their landlords were unable to pay their mortgages. Too often, these tenants had no idea that the property was even under foreclosure until the authorities arrived at their door to inform them that they must vacate the property immediately. . . . Under the new law, all bona fide tenants who began renting prior to transfer of title by foreclosure of their rental property must be given at least 90 days’ notice before being required to vacate the property. In addition, these bona fide tenants are allowed to remain in place for the remainder of any leases entered into prior to the transfer of title by foreclosure. These leases may be terminated earlier only if the property is transferred to someone who intends to reside in the property and only if the tenants are given at least 90 days’ notice of the fact of such sale. Successors in interest to properties with section 8 housing choice voucher tenants automatically assume the obligations of the former owner under the housing assistance payments contract.

155 Cong. Rec. S8978 (daily ed. Aug. 6, 2009) (statement of Sen. Dodd), c

[At] least for tenants who are in good standing on their properties, they should not be affected because the property ended up in foreclosure through whatever rationale that may


have happened to the landlord. It seems to me, putting people out on the street is not what we ought to be doing at a time such as this. Whatever your views are about whether these programs are working as effectively as they should, I think all of us agree the innocent who are being confronted with these decisions should not be left in a more precarious position than they are already in . . . “

155 Cong. Rec. S5115 (daily ed. May 5, 2009) (statement of Sen. Dodd),1 Appendix 3.

1. See also 155 Cong. Rec. S5096-97 (daily ed. May 5, 2009) (statement of Sen. Gillibrand); 155 Cong. Rec. S5111 (daily ed. May 5, 2009) (statement of Sen. Kerry). Further, statements issued by HUD, the Comptroller of the Currency and the Federal Reserve Board explaining the Act to the public, housing authorities and regulated financial institutions also stress the broad coverage of the Act and its purpose to assist tenants who are threatened with quick eviction after foreclosure. See Protecting Tenants at Foreclosure: Notice of Responsibilities Placed on Immediate Successors in Interest Pursuant to Foreclosure of Residential Property, 74 Fed. Reg. 30, 106 (June 24, 2009); Comptroller of the Currency, Adm’r of Nat’l Banks, OCC Bull. 2009-28, Helping Families Save Their Homes Act of 2009 – Title VII Tenant Protections: Guidance (2009), available at http://www.occ.gov/ftp/bulletin/2009-28.html; Div. of Consumer and Cmty. Affairs, Bd. of Governors of the Fed. Reserve Sys., CA 09-5, Information and Examination Procedures for the “Protecting Tenants at Foreclosure Act of 2009” (2009), available at http://www.federalreserve.gov/boarddocs/caletters/2009/0905/caltr0905.htm.


http://www.occ.gov/ftp/bulletin/2009-28.html

http://www.federalreserve.gov/boarddocs/caletters/2009/0905/caltr0905.htm

III. Argument.

Summary process statutes that grant a landlord rights in derogation of the common

law have been “narrowly construed and strictly followed.” Jefferson Garden Associates v.

Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987); Jo-Mark Sand & Gravel Co. v.

Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953). “[t]he failure to comply with the

statutory requirements deprives a court of jurisdiction to hear the summary process action.”

Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744,

cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).

The defendant is a bona fide tenant protected by PTFA, in that she had occupied the

premises pursuant to a lease prior to the foreclosure judgment and the transfer of title to the

plaintiff. She is entitled to the federally-mandated notice and the 90-day waiting period

before a summary process action may be commenced.

IV. Conclusion. For all these reasons, the Complaint should be dismissed for failure to properly terminate

the tenancy as required by § 702 of the PTFA.


THE DEFENDANT

BY________________________________ Richard L. Tenenbaum Connecticut Legal Services, Inc. 211 State Street Bridgeport, CT 06604 Juris No. 18678 Tel. No. 203-336-3851

CERTIFICATION

I hereby certify that a copy of the above has been mailed this 5th day of April, 2010 to:

_________________________________________ COMMISSIONER OF THE SUPERIOR COURT


NEW HAVEN LEGAL ASSISTANCE ASSOCIATION, INC. 426 STATE STREET

NEW HAVEN, CONNECTICUT 06510 TELEPHONE: (203) 946-4811

FAX: (203) 498-9271 November 26, 2012 Attorney W. Herbert Reckmeyer P.O. Box 271376 West Hartford, CT 06127 RE: Carabetta v. Robert XXX Dear Attorney Reckmeyer, I am representing Mr. Robert XXX in the eviction case you have commenced against him at Bella Vista, and enclose my appearance. I am writing to request a reasonable accommodation, describe to you the steps Mr. XXX has taken to cure the situation, and hopefully resolve this matter. Mr. XXX is disabled, and, as your client knows, he receives social security disability because he has had 3 brain surgeries and a stroke. Enclosed please find a letter from Mr. XXX’ socialworker, Jane Gonzalez, and his doctor, Dr. Dana Saldaitis, outlining the steps that have been taken by Mr. XXX and his family, to respond to the incident when food burned in Mr. XXX’ oven, and to ensure that such incident does not happen again. I am requesting, as a reasonable accommodation, that your client agree not to further pursue the eviction action, in light of the actions taken as outlined in the attached letter. Please note, part of the accommodation requested is that the landlord disconnect and/or remove the stove, and allow Mr. XXX to use only the microwave, to prevent any possibility of any recurrence. In addition, Mr. XXX and his family are pursuing congregate living options that are located in closer proximity to his relatives, and that would provide meals so that he would not need to cook or utilize Meals on Wheels. Although such programs of course have waiting lists, he is currently working on completing and submitting applications in the hopes that such an option will be available for him in the near future. Please have your client provide me with a reference letter confirming that he has lived there for 18 years and his rent is up to date and paid in full. . This will help him in his applications for congregate living. Please review this with your client, and if there is any further documentation or forms that you require, do not hesitate to let me know. I trust that upon review of this, you will agree that there is no need to further pursue this eviction case. I look forward to hearing from you. Sincerely, Amy Eppler-Epstein Attorney at Law Enc.: letter from Ms. Gonzalez and Dr. Saldaitis Appearance. cc: Robert XXX


NO. NHSP 76774 : SUPERIOR COURT : HOUSING SESSION

BEST BUILT HOMES : J.D. OF NEW HAVEN vs. : AT NEW HAVEN DANIEL D******** : February 17, 2004

POST-TRIAL MEMORANDUM OF LAW

Defendant Daniel D********’s primary defense in this summary process action is that he has a mental

disability, and is entitled to a reasonable accommodation of that disability as a matter of state and federal

fair housing law; and that permitting defendant’s mother to become his conservator, take control of his

funds, and make a reasonable plan to repay his rental arrearage and timely pay his monthly use and

occupancy constitutes such a reasonable accommodation. Defendant contends that state and federal fair

housing law require plaintiff to make such a reasonable accommodation, and prohibit defendant’s eviction.

FACTS

Defendant, through the testimony of his mother, Jennifer D********, demonstrated the following:

Defendant is mentally disabled, and suffers from a psychotic disorder, namely schizophrenia. When

properly medicated, defendant is able to function as a responsible tenant, and timely paid his rent and met

his tenant responsibilities. Daniel D******** has sufficient income to afford his rent.

Some time during the summer of 2003, defendant faced some problems with the conditions of his

apartment, specifically a leak in the bathroom ceiling that caused the ceiling to fall down, and a severe

roach infestation. Despite notice to the landlord, the conditions persisted. Defendant had previously

delivered his rent to his mother every month, and she paid it monthly to the landlord; but in August,

defendant stopped bringing his rent to his mother. At about this same time, Daniel D******** stopped taking

his medication. His mental condition started to deteriorate due to his lack of medication.

Jennifer D******** testified as to the various attempts she made to help her son handle his affairs on

his own, and resume taking his medication. She testified that she attempted to take him to an appointment

with Rent Bank so that they could help him with any arrearage he owed, but he got out of the car and

refused to go. She attempted to pick up more medication for him from the pharmacy, but they could not


provide it without a new prescription from his doctor. She attempted to bring him voluntarily to see his

doctor, but he would not go. She attempted to have the police bring him involuntarily to be hospitalized so

that he could resume medication, but the police refused to pick him up because he was not a danger to

himself or others. She attempted to have the doctor order him to be committed, but the doctor was

unwilling to do so. She inquired about seeking to become his conservator, and was told she should submit

a recent doctor’s examination with the application, something she could not obtain because Daniel D********

refused to go to see his doctor.

In December, 2003, Jennifer D******** filed papers in probate court to become Daniel D********’s

conservator. She was appointed conservator for her son Daniel D******** on January 14, 2004.

Since becoming conservator, Mrs. D******** has taken action to place defendant’s future social

security income under her control. She has determined that he had only a minimal balance ( in his 2 bank

accounts; and that he has recently been terminated from state supplemental assistance because of his

failure to recertify. She can get him back on state assistance in short order by completing paperwork, and

providing the state with verification from the landlord of defendant’s rental amount. She has re-applied for

assistance from the Rent Bank, and determined that defendant will be eligible for $1200 in rent bank

assistance as soon as defendant is re-instated on state assistance.2 With his state assistance, he will

have a monthly income of approximately $783 which will be sufficient income with which to pay the monthly

rent for February and thereafter. A stipulation of facts regarding the Rent Bank further verifies the above

facts.

The parties agreed on the record that there is a six month arrearage of $460 per month, totaling

$2760. Mrs. D******** showed a money order for $1060, which she was ready and willing to pay to plaintiff

towards the arrearage. The parties acknowledge a security deposit of $460 plus statutory interest for over

4 years, equal to approximately $500. Mrs. D******** testified that plaintiff could apply the security deposit

2Plaintiff should not be permitted to claim that the delay that comes from accepting payment from Rent Bank, as opposed to an immediate cash payment, is grounds to refuse defendant’s proposed reasonable accommodation, since state law prohibits discrimination in housing based on lawful source of income, Conn. Gen. Stat. Sec. 46a-64c, and thus requires treating rent bank assistance the same as a cash tender.


now to the rental arrearage, and that she would pay an additional $100 per month for the next 5 months in

order to build back up the security deposit. These funds, plus the $1200 assistance from Rent Bank, are

sufficient to pay, in full, the rental arrearage owed by defendant Daniel D********. The stipulated facts verify

that the Rent Bank funds could be expected to be paid by the end of April, if all parties cooperate in a timely

manner. The landlord would thus be made whole, with all rental arrearages paid, by the end of April, 2004,

and by the beginning of June, would also have re-constituted the security deposit for the premises.

Mrs. D******** further testified that, now that she has become Daniel’s conservator, she intends to try

again to have him hospitalized, and has just obtained a letter from Daniel’s doctor which she believes will

enable her to have the police bring him to the hospital.3 She further testified that, once stabilized on his

medication, she will make arrangements with the Visiting Nurses Association to give him his medications on

a daily basis, to ensure that he continues taking his medication; and she will arrange for him to have any

necessary home making services to ensure that he keeps the premises in clean condition. She further

testified that, even when he is not on his medication, she has never known him to be violent or dangerous.4

ARGUMENT I. DEFENDANT IS ENTITLED TO A REASONABLE ACCOMMODATION OF HIS MENTAL DISABILITY IN ACCORDANCE WITH STATE AND FEDERAL FAIR HOUSING LAW, CONN. GEN. STAT. § 46A-64c(C)(ii), AND 42 U.S.C. § 3604 (f)(3)(B).

A. State and Federal Statutory Provisions Require a Reasonable Accommodation

Connecticut’s Fair Housing Act, Conn. Gen. Stat. § 46a-64c, and the Federal Fair Housing Act, as

amended, 42 U.S.C. § 3604, prohibit discrimination against people with mental disabilities, and explicitly

require landlords to take affirmative steps to make reasonable accommodations for people with disabilities

in order to give them equal housing opportunities. Conn. Gen. Stat. § 46a-64c(6)(B) prohibits landlords

from discriminating “against any person in the terms, conditions or privileges of... rental of a dwelling...

3 Defendant’s counsel made an offer of proof on the second day of trial on February 3, 2004, 5 days after Mrs. Dontfraid’s testimony on January 29, 2004, that Daniel Dontfraid had been admitted to the psychiatric ward at St. Raphael’s hospital on Sunday, February 1st. Counsel offered to re-open the hearing to provide additional testimony regarding his treatment, see p. 18 infra.

4The testimony of plaintiffs witnesses will be discussed later in the brief, in the context of the relevant legal arguments.


because of a ...mental disability of such person. Conn. Gen. Stat. § 46a-64c(6)(C) states that: ... discrimination includes: ...(ii) a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

The language of the State fair housing statute is identical to the Federal fair housing law 42 U.S.C. §

3604 (f)(2) and (3)(B), except that the federal law uses the term “handicap” instead of mental disability.

The purpose underlying the fair housing amendments to protect persons with mental and physical

disabilities is set forth in the House Judiciary Report:

The Fair Housing Amendments Act, like Section 504 of the Rehabilitation Act of 1973, as

amended, is a clear pronouncement of a national commitment to end the unnecessary

exclusion of persons with handicaps from the American mainstream. It repudiates the

use of stereotypes and ignorance, and mandates that persons with handicaps be considered

as individuals. Generalized perceptions about disabilities and unfounded speculations about

threats to safety are specifically rejected as grounds to justify exclusion.

H.R. Rep. No. 711, 100th Cong. 2d Sess.; cited in Woodside Village v. Hertzmark, 1993 WL 268293 (Conn.

Super.). Thus, the state and federal fair housing acts require more than equal treatment of people with

mental disabilities: they require landlords to take affirmative steps, and make reasonable

accommodations to ensure that people with mental disabilities have an equal opportunity to use and enjoy

housing within the mainstream community.

B. Case Law Prohibits Eviction of Mentally Disabled Tenants Without Landlords First Making a

Reasonable Accommodation.

Courts throughout the country, and in a wide variety of circumstances, have repeatedly applied the

federal fair housing act, and its state equivalents, to prohibit the eviction of mentally disabled tenants,

unless they have first been offered a reasonable accommodation of their disability. Courts from federal

district courts throughout the nation, see pp. 7-10, infra to the Supreme Court in Massachusetts, see

Citywide v. Penfield, infra, have repeatedly and clearly held that a landlord must first allow for a reasonable

accommodation of a mentally disabled tenant, and may only evict if the problem persists despite the

reasonable accommodation. Connecticut’s housing courts, too, have recognized that state and federal


law prohibit a landlord from evicting a mentally disabled tenant unless the landlord has first attempted to

resolve the problem through a reasonable accommodation of the tenant’s disability. See, Woodside

Village v. Hertzmark, 1993 WL 268293 (Conn. Super.).

Thus, in Roe v. Sugar River Mills Associates, 820 F. Supp. 636, (1993) the landlord tried to evict a

mentally disabled tenant because of his obscene, threatening and harassing behavior towards other

tenants. The tenant contended that his outbursts were the product of his mental handicap, and that the

landlord had to explore what reasonable accommodations might eliminate or minimize the impact of his

handicap upon other tenants. The district court, in denying the landlord’s motion for summary judgment,

held that under the Fair Housing Act, the landlord could not attempt to evict the tenant unless it had first

made reasonable efforts to accommodate the tenant’s handicap. A Colorado district court held similarly

that the Boulder Housing Authority could not seek to evict until it could demonstrate that there was no

reasonable accommodation that would eliminate or acceptably minimize any risk plaintiff posed to other

residents. Roe v. Housing Authority of Boulder, 909 F. Sup. 814 (1995).

In Citywide v. Penfield, 409 Mass. Sup. J Ct 140, 564 NE 2d 1003 (1991), the Massachusetts

Supreme Court held that the eviction of a tenant who suffered from serious mental disability manifested by

auditory hallucinations, and who struck back at the voices she heard by hitting at apartment walls with a

broom or stick and by throwing objects and water at the walls, would be discriminatory and violative of the

Federal Rehabilitation Act which prohibits discrimination on the basis of handicap. The Supreme Court

upheld the trial court’s finding that the accommodation requested by the tenant was “reasonable.” The

tenant’s proposed accommodation was that the landlord would "forbear from further eviction steps... to give

her an opportunity to pursue a program of outreach and counseling." This, the judge concluded, was "a

reasonable step as long as more substantial damage is not caused. The [landlord] has not shown that it

would be greatly prejudiced by holding off further and giving the tenant further opportunity to find the

assistance needed to address the problem."

Similarly, in Peabody Properties v. Jeffries, No. 88-SP–7613-S (Mass. Trial Ct., Housing Ct.,


Hampden Div., Feb. 13, 1989)(copy attached), the court would not permit the eviction of a disabled tenant

who exhibited anti-social behavior such as spitting, throwing trash, kicking walls making threatening

gestures towards and attacking security guards and other tenants, who kept her apartment in “a disorderly

condition, strewn with bags, beverage containers and the like,” despite having received a citation for these

conditions id. at p. 4, and who also owed a rental arrearage of $788. The Court held that the landlord

could not evict the tenant for conduct that “if exhibited by one not disabled, would likely serve as good cause

for termination of tenancy,” because the landlord had not shown that it had attempted to make reasonable

accommodations of defendant’s disability. As part of the reasonable accommodations, the court also

would not allow the tenant’s eviction for non-payment of rent, since the tenant was willing and able to repay

the arrearage and make the landlord whole. (Id., p. 9). See, also, for additional cases that reasonable

accommodation must be attempted before mentally disabled tenant can be evicted, Majors v. Housing

Authority of the County of DeKalb, 652 F. 2d 454, 456 (5th Cir. 1981); Whittier Terrace Assoc. v. Hampshire,

26 Mass. App. Ct. 1020, 532 N.E.2d 712 (1989); Shuett Investment Co. v. Anderson, 386 N.W. 2d. 249, 253

(Minn. Ct. App. 1986); Cobble Hill Apts. v. McLaughlin, 1999 WL 788517 (Mass. App. Div. June 23, 1999);

Housing Authority of Portland v. Belknap No. 98F-012209 (Or. Cir. Ct. Multnomah County Sept.

4,1998)(Clearinghouse Review, No. 52,286); City of Phoenix v. Roberts, CV 98-15151 (Arix. Super. Ct.

Dec. 14, 1998) (Clearinghouse Review, No. 52,205).

In the instant case, defendant has shown that he is disabled, within the meaning of the fair housing

act, and that his failure to pay rent on time and handle his finances was the result of his disability and his

deteriorating condition when he stopped taking his medication. Daniel D******** thus is entitled under state

and federal fair housing law to a reasonable accommodation of his disability, before he can be evicted.

II ALLOWING DEFENDANT’S MOTHER THE OPPORTUNITY TO PAY HIS

RENTAL ARREARS, AND PAY HIS FUTURE RENT ON TIME, CONSTITUTES AN APPROPRIATE AND REASONABLE ACCOMMODATION.

A. Reasonable Accommodations can include some cost to the landlord.

The accommodation sought by defendant in this case is entirely reasonable; and is necessary in Statewide Legal Services of CT – Eviction Defense Training PLEADINGS -

order to allow Mr. D******** an “equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604. As

evidenced at trial, Daniel D******** has sufficient income to afford the rent; but defendant D********’s mental

disability, at least while he was not taking prescribed medication, prevented him from timely paying his rent,

maintaining his state assistance, or pursuing rental assistance for which he was eligible. The

accommodation sought, of simply allowing his mother, now that she has become his conservator, to make

a reasonable payment plan by which to fully compensate the landlord for all rent due, is eminently

reasonable. Under the defendant’s mother’s proposal, plaintiff would be fully compensated for all rent

due by the end of April; and would have the security deposit reconstituted, up to its existing level, by the

beginning of June. All current rent or use and occupancy would be timely paid.

Upon defendant’s presentation of his prima facie case of the existence of his mental disability

(which was not disputed here), and his request for a reasonable accommodation, the burden shifts to the

landlord to show that the eviction of the defendant was not discriminatory because sufficient, reasonable accommodations were attempted.... In evaluating the accommodation efforts of the plaintiff, the trial court was obligated to balance the overall costs and benefits.... If the overall costs [were] reasonable in light of the anticipated benefits, and the burdens imposed [were] not ‘undue,’ then it can be reasonable concluded that the handicapped have suffered discrimination solely by reason of their handicap...

Cobble Hill Apts. Co v. McLaughlin, 1999 WL 788517 (Mass. App. Div.), p. 4, citing Whittier Terrace Assoc.

v. Hampshire, 26 Mass.App.Ct. 1020, 532 N.E.2d 712 (1989).

As in Peabody v. Jeffries, supra, it is not an undue burden on the landlord if the landlord is paid the

rental arrearage in full, as Mrs. D******** has offered here, and simply must suffer a delay in receipt of the

funds.

The Ninth Circuit Court of Appeals recently made clear that a landlord can be required to change its

traditional rules and practices, including its financial requirements and means of insuring the payment of

rent, as a reasonable accommodation of a tenant’s disabity. In Giebeler v. M&B Associates, 343 F.3d

1143 (2003), the appellate court found discrimination under the Fair Housing Act by a landlord’s failure to

reasonably accommodate a disabled person when it would not allow the prospective tenant’s mother to


co-sign a lease. In that case, the tenant admittedly could not afford the rent on his own due to his loss of

employment income because his disability made him unable to work, and insufficient social security

income. He proposed, as a reasonable accommodation, that his mother, who had sufficient income, be

allowed to rent the apartment for him, but the landlord refused, citing its policy against permitting lease

co-signers. The Appellate Court found the requested reasonable accommodation to be reasonable, not

unduly burdensome, and to be required by the Fair Housing Act. The Court noted that “Accommodations

need not be free of all possible cost to the landlord,” and that “Reasonable accommodations can function to

adjust for special needs that flow from the inability of disabled residents to meet otherwise applicable

financial requirements.” Id., at 1151.

In the present case, defendant is even better situated than the tenant in Giebeler, and the

accommodation requested is even more limited. Defendant has demonstrated that he can, in fact, afford

the rent based on his own income, and his conservator will readily be able to pay all future rent in a timely

manner. The only accommodation he is requesting is the allowance of a reasonable time in which to repay

the rental arrearages accrued while Daniel D******** was unable to manage his financial affairs due to his

disability. This is precisely the type of accommodation required by the Fair Housing Act: an affirmative act

by the landlord that will not unduly burden him, or cause him any significant financial burden, in order to

enable a mentally disabled tenant to continue to live in the housing of his choice in the community.

The Ninth Circuit Court of Appeals has also held that the Fair Housing Act’s affirmative duty on

landlords to reasonably accommodate the needs of handicapped persons “may require landlords to

assume reasonable financial burdens in accommodating handicapped residents.” United States v.

California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1417 (1994). In that case, the court held that the

Fair Housing Act’s requirement of reasonable accommodation required the landlord to waive the guest

visitor and parking fees charged to all other visitors, and not charge those fees for the handicapped tenant’s

home health care aide. The accommodation requested here has a much smaller financial burden, since

defendant’s mother stands ready, willing and able to pay all rent that is due and owing, but simply requires


an extension of time in which to do so.5

Similarly, in Samuelson v. Mid-Atlantic Realty, 947 F. Supp. 756, (1996) the Delaware District Court

held that the reasonable accommodation requirement could require affirmative steps by a landlord to

change rules and practices, that could have a financial cost. Thus, the court held that the landlord’s refusal

to allow a mentally disabled tenant to terminate the lease afer his disability made it unsafe for him to

continue living at the premises was a violation of the Fair Housing Act, and that the landlord must forgo

charges to the tenant for further rent due under the lease, and could not retain his security deposit. See

also, Citywide Assoc. v. Penfield, 409 Mass. Sup. J.Ct. 140, 564 N.E. 2d 1003 (Mass. 1991), (holding that

reasonable accommodation provisions required the landlord to absorb some repair costs). See also,

Shapiro v. Cadman Towers, 844 F. Supp. 116, 125(1994)(“Although a defendant should not be required to

assume ‘undue financial burdens’ that does not mean that a defendant cannot be required to incur

reasonable costs.” citing Nelson v. Thornburgh, 567 F. Supp. 369 (E,.D. Pa. 1983), aff’d, 732 F.2d 146 (3d

Cir. 1984), cert. Denied, 469 U.S. 1188 (1985)). 1. The Equitable Doctrine Against Forfeiture Also Requires the Court to Permit Late Payment and

Prohibit Defendant’s Eviction

In addition to the Fair Housing Act’s requirement that defendant’s mother be permitted to pay

defendant’s rental arrearages as a reasonable accommodation of his disability, the equitable doctrine

against forfeiture, as set forth in defendant’s fifth special defense, prohibits defendant’s eviction in this case.

Our courts have recognized an equitable doctrine against forfeiture when a tenant is delayed from paying

timely rent for reasons that are not their fault, but fully reimburses the landlord for all rent due. See, e.g.,

Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991); Nicoli v. Frouge Corp., 171 Conn. 245, 368 A.2d 74

(1976). Here, defendant’s mental illness caused him to be unable to pay his rent on time, but his

conservator is now ready, willing and able to make plaintiff whole. The equitable doctrine against forfeiture

5Plaintiff’s claim for attorney’s fees as a financial burden is unavailing, since, had plaintiff been in compliance with the state and federal fair housing act and agreed to the requested reasonable accommodation, there would have been no need to initiate this eviction action or incur legal fees for this trial. Similarly, plaintiff’s claim of the financial burden of utilizing the security deposit for rent is unavailing, since defendant’s mother has offered to re-pay the security deposit at the rate of $100 per month, so that it would be fully re-constituted by June, 2004. That agreement can be easily incorporated into a lease between the parties, to make it a binding obligation.


should also act to prevent defendant’s eviction.

B. The Court Cannot Consider Alleged Harm to Plaintiff’s Employees, or Alleged Damages to the

Premises, at This Time

Plaintiff, through the testimony of furnace repairman Rodney Jones appeared to be attempting to

demonstrate that defendant posed some kind of threat to plaintiff’s agent or employee, and that Daniel

D******** should be evicted on that basis. As a matter of law, such an argument should not be considered

for two reasons: First, this case involves only non-payment of rent. Should plaintiff wish to pursue an

eviction for any other violation of a tenant’s obligations, Daniel D******** would be entitled to the notice and

opportunity to cure provisions of Conn. Gen. Stat. § 47a-15, which was not provided here.

Furthermore, as set forth above, the Court cannot consider whether a tenant’s behavior is a threat

to other tenants or persons at the premises without first evaluating whether there can be a reasonable

accommodation that would eliminate or reduce such a threat. See, supra, Roe v. Sugar River Mills

Associates, 820 F. Supp. 636, (1993); Roe v. Housing Authority of Boulder, 909 F. Sup. 814 (1995).

The same is true regarding the testimony of Paul Cannon, and Alexis Rinaldi, regarding

defendant’s housekeeping, and alleged placement of inappropriate objects in the sink and toilet. The

Court permitted the testimony of inspector Rinaldi in relation to defendant’s First Special Defense regarding

the conditions; and permitted property manager Cannon’s testimony regarding damage to the premises to

show that there may currently exist damages for which the security deposit may need to be used.

However, as set forth above, none of this testimony should be considered for the purpose of evaluating

Daniel D********’s ability to live in the premises independently and maintain them in good condition, since

this action is only for non-payment, and since defendant would be entitled to a reasonable accommodation

in those regards as well. See, e.g., Cason v. Rochester Housing Authority, 748 F. Supp. 1002 (W.D.N.Y.

1990)(It is a Fair Housing Act violation for a landlord to require handicapped housing applicants to prove

their ability to live independently.)

Defendant’s counsel contended at trial that, should the Court disagree, and wish to consider the

above testimony for the purposes of evaluating defendant’s ability to continue to reside safely at the


premises, defendant sought a continuation of the hearing in order to call rebuttal witnesses. Defendant

made an offer of proof that Daniel D******** has now been admitted to the hospital for psychiatric treatment,

and offered to submit rebuttal testimony by defendant’s doctor, regarding his current treatment plan, his

ability to maintain the premises in good condition on his own, the home-making and visiting nurse services

that he will receive in order to assure he will continue taking his medication and that he will keep the

premises in good condition, and the likelihood of any threat he would pose to others, particularly once he is

back on his medication. It is legally unnecessary and inappropriate to consider these issues at this time;

but should the Court wish to do so, defendant requests to re-opening of the hearing in order to provide such

rebuttal witnesses.

III. Conditions Defense: No Rent is Due

Defendant’s First Special Defense in this action alleged that because of the conditions of the

premises and the landlords failure to make repairs as required by Conn. Gen. Stat. § 47a-7, pursuant to

Conn. Gen. Stat. § 47a-4a, no rent is due.

Plaintiff’s property manager Paul Cannon confirmed in his testimony that he did not, in fact, repair

the ceiling in defendant’s bathroom, or exterminate for roaches, during the months of August or September,

the months of alleged non-payment.

Health Department Inspector Alexis Rinaldi affirmed in her testimony that she had received a

complaint regarding the conditions of the premises in August, 2003, and that the conditions problems were

in evidence when she inspected the premises in October, 2003. She further testified that she initially gave

the plaintiff the opportunity to correct the violations on his own, but because he had not done so when she

reinspected the premises in November, 2003, she issued orders on December 1, 2003.

Although it was clear from the testimony of all parties that Daniel D********’s housekeeping

contributed to the roach problem, it was also clear that there were significant code violations in existence in

the months of alleged non-payment, and that plaintiff did not fully repair them until after orders were issued

in December, 2003, more than 4 months after the initial complaint was made.


Accordingly, whether or not the conditions complaints rise to the level of justifying withholding of

rent, defendant’s legitimate, unresolved conditions complaints surely lend strength to his equitable claims of

why he should not be evicted.

CONCLUSION

For all of the foregoing reasons, defendant should not be evicted, and his conservator should be

permitted the requested reasonable accommodation of paying defendant’s rental arrearages.

DANIEL D********

THE DEFENDANT

BY: AMY EPPLER-EPSTEIN ATTORNEY AT LAW NEW HAVEN LEGAL ASSISTANCE ASSOCIATION, INC. 426 STATE STREET NEW HAVEN, CT 06510 JURIS NO. 305401 Tel: (203) 946-4811

CERTIFICATION

This is to certify that on February 17, 2004, a copy of the foregoing was mailed, postage pre-paid, to


no. spnh : superior court motion to suspend time

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