City of Bridgeport v. Barbour-Daniel Electronics, Inc. , 16 Conn. App. 574 ( 1988 )

Dupont, C. J.

The plaintiff landlord appeals from a judgment of dismissal in this summary process action. The dispositive issue on appeal is whether a second notice to quit possession for nonpayment of rent may serve as the basis for a summary process action when a prior notice to quit possession for nonpayment of rent was statutorily defective. We conclude in this case that, because the first notice to quit possession was a nullity, it did not have the effect of terminating the lease, and, therefore, the second notice to quit was properly based upon the defendant tenant’s failure to pay rent for which a summary process action may be maintained pursuant to General Statutes § 47a-23.² We therefore find error.

This case involves the following undisputed facts. The plaintiff is the owner and landlord of Sikorsky Memorial Airport in Stratford. The defendant is a tenant at that location. On August 1, 1977, the parties entered into a lease agreement which expired on July 31, 1980. The defendant tenant continued to occupy the premises after the expiration of the lease and made monthly rental payments until April, 1985. On April 30, 1986, the plaintiff issued a notice to quit possession on or before June 1, 1986, for failure to pay rent. This notice, which was served on the defendant on May 1, 1986, contained the statement: “Any monies accepted after service of this notice are accepted as use and occupancy only, and not as rent.” The plaintiff did not pursue a summary process action based on this notice. Recognizing that the May 1, 1986 service of that notice did not comply with the requirement that it be served in the same month in which it was issued, the plaintiff, on June 11, 1986, issued a second notice to quit possession of the premises on or before June 23, 1986, for the defendant’s failure to pay rent. This notice was served on the defendant on June 12, 1986.

A writ, summons and complaint based on the second notice to quit possession was served on the defendant on June 25, 1986, with a return date of July 2, 1986. This complaint alleged that the written lease between the parties for a monthly rental of $1080 had expired on July 31,1980, and that the defendant had retained possession of the premises under a month-to-month tenancy on the same terms as set forth in the written lease agreement. It also alleged that “[t]he defendant has not paid the sums due for the use and occupancy commencing April, 1985 through and including June, 1986.” On July 10, 1986, the defendant filed a motion to dismiss this original complaint for lack of subject matter jurisdiction on the ground that there is no statutory basis for eviction for the failure to pay use and occupancy. In a supporting memorandum of law, the defendant cited General Statutes § 47a-23 for the propositions that § 47a-23 expressly sets forth the sole grounds for eviction, and the failure to pay use and occupancy is not one such ground. See footnote 2, supra. On the same date, the plaintiff filed an amended complaint, alleging that “[t]he defendant has not paid the sums dm for rent and/or use and occupancy commencing April, 1985 through and including June, 1986. ”³ (Emphasis added.)

On January 30, 1987, the defendant filed a second motion to dismiss with a supporting memorandum of law. In its motion, the defendant asserted that the first notice to quit terminated any obligation to pay rent thereafter, and that the second notice to quit therefore could only have been based on a failure to pay use and occupancy. The defendant maintained, accordingly, that “[s]ince the notice to quit possession is based upon nonpayment of rent and no rent was due, only use and occupancy, this action must fail since there is no statutory basis under [General Statutes § 47a-23] upon which to base this summary process action.” On February 3, 1987, the plaintiff filed a statement in opposition to the motion to dismiss, claiming that because the first notice to quit was served in an untimely manner, it was null and void, and therefore did not have the effect of terminating the defendant’s obligation to pay rent. After a hearing on the motion to dismiss held on February 6, 1987, the court granted the defendant’s motion, and rendered a judgment of dismissal.⁴ This appeal followed.⁵

On appeal, the parties do not dispute the fact that upon the expiration of their written lease they entered into a month-to-month tenancy as evidenced by their conduct. For a duration of approximately five years, the defendant tendered payment each month as rent, and the plaintiff accepted each tender as the payment of rent. See, e.g., Maltby, Inc. v. Associated Realty Co., 114 Conn. 283, 288, 158 A. 548 (1932); Williams v. Apothecaries Hall Co., 80 Conn. 503, 506, 69 A. 12 (1908); see generally Welk v. Bidwell, 136 Conn. 603, 607-609, 73 A.2d 295 (1950); see also General Statutes §§ 47a-3b and 47a-3d.⁶ Further, the parties do not dispute the fact that at the time the first notice to quit was served, a month-to-month tenancy was still in existence. Nor do the parties dispute the fact that the first notice to quit was served in an untimely manner and, therefore, could not constitute the basis of a summary process action for the nonpayment of rent. See, e.g., Welk v. Bidwell, supra, 606-607; Tehrani v. Century Medical Center, 7 Conn. App. 301, 305, 508 A.2d 814 (1986). Thus, both parties agree that the first notice to quit, which was served in May but based upon an April nonpayment of rent, was defective and could not have been a proper basis for a summary process action.

The parties do dispute, however, the legal consequences and effect of the first notice to quit upon the month-to-month tenancy in light of the unequivocal statements therein that the lease was terminated and that “[a]ny monies accepted after service of this notice are accepted as use and occupancy only, and not as rent.” The plaintiff argues that the statements had no effect on the month-to-month lease agreement because the entire notice to quit was null and void, and, therefore, no statement in it had any legal consequence. The plaintiff claims that since the first notice to quit was defective, and was not the basis upon which its amended complaint seeking summary process rested, the first notice is null and void for all purposes. The plaintiff, therefore, argues that the first notice to quit did not have the effect of terminating the lease, and, therefore, the second notice based on nonpayment of rent was sufficient to support the summary process action. The defendant, on the other hand, argues that the defective notice to quit had the effect of terminating the lease agreement and creating a tenancy at sufferance. It therefore argues that the second notice to quit could be based only on the failure to pay use and occupancy, which failure cannot support a summary process action.

There are two separate questions presented by this appeal. The first question is what effect the admittedly invalid notice to quit had on the tenancy between the parties. If we conclude that the month-to-month tenancy was not terminated, the nonpayment of rent alleged in the second notice to quit is sufficient to support the plaintiffs summary process action. Only if we conclude that a tenancy at sufferance was created by the service of the first notice to quit do we need to consider the second question of whether a summary process action can be maintained against a tenant who has failed to tender use and occupancy payments to the landlord. We conclude that the first notice to quit did not have the effect of terminating the month-to-month lease agreement between the parties, and, therefore, we need not address the second question.⁷

The purpose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common law cause of action. “The process is intended to be summary and is designed to provide an expeditious remedy to a landlord seeking possession.” Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973). “We have recognized the principle that, because of the summary nature of its remedy, the summary process statute must be narrowly construed and strictly followed. Southland Corporation v. Vernon, 1 Conn. App. 439, 452, 473 A.2d 318 (1984).” Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 631-32, 495 A.2d 1127 (1985); Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953); Vogel v. Bacus, 133 Conn. 95, 97, 48 A.2d 237 (1946). The failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action. Windsor Properties, Inc. v. Great Atlantic & Pacific Tea Co., 35 Conn. Sup. 297, 301, 408 A.2d 936 (1979).

The statutory notice to quit possession of leased premises is a condition precedent to the bringing of a summary process action by the lessor. O’Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946). The May 1, 1986 notice to quit was invalid because it was not served in the same month in which it was issued. Tehrani v. Century Medical Center, supra. “ ‘Invalid,’ according to Ballentine’s Law Dictionary, means: ‘Illegal, having no force or effect or efficacy; void; null.’ Webster, Seventh New Collegiate Dictionary, defines ‘invalid’ as ‘being without foundation or force in fact, truth or law.’ Because the notice to quit of [May 1] had no effect, it could not have terminated the lease.” Marrinan v. Hamer, 5 Conn. App. 101, 104, 497 A.2d 67 (1985). When the notice to quit has no effect, it cannot terminate a lease, and, therefore, cannot be the basis for the granting of the motion to dismiss in this case. Id., 104.

Although the statements contained in the first notice to quit stating that the lease was terminated and that only use and occupancy payments would be accepted were unequivocal, the claimed consequence of such statements, namely, the termination of the lease,⁸ was negated by the invalidity of the notice to quit.⁹ Without a valid notice to quit, there can be no foundation for a summary process action. Sandrew v. Pequot Drug, Inc., supra. Although many unequivocal acts may be sufficient to terminate all rights arising under a lease, the only foundation for a summary process action is a notice to quit. Id., 631. This case is a summary process action. The first notice to quit was invalid as untimely served. It was ineffectual as a basis for a summary process action. It matters not that the plaintiff regarded the tenancy as terminated in the first notice to quit but whether, as a matter of law, the first notice to quit, in fact, terminated the tenancy. We conclude thát it did not.

“[T]he necessary and only basis of a summary process proceeding is that the lease has terminated.” Webb v. Ambler, 125 Conn. 543, 550, 7 A.2d 228 (1939); Feneck v. Nowakowski, 146 Conn. 434, 436, 151 A.2d 891 (1959). If that is so, and given the necessity of a notice to quit to the commencement of a summary process action, it is illogical to conclude that an invalid notice to quit has the effect of terminating a lease, while at the same time concluding that an invalid notice to quit cannot sustain a summary process action.

We conclude that the first notice to quit was invalid for all purposes, including the termination of the month-to-month tenancy.¹⁰ We, therefore, also conclude that the plaintiff properly served the second notice to quit based on the defendant’s duty to pay rent as a month-to-month tenant.

Our conclusion also follows from the fact that a lease is a contract. “In the case of a rental on a month-to-month basis the tenancy is not regarded as a continuous one. The tenancy for each month is one separate from that of every other month. Corrigan v. Antupit, 131 Conn. 71, 76, 37 A.2d 697 [1944]; Chipman v. National Savings Bank, 128 Conn. 493, 497, 23 A.2d 922 [1942]; Williams v. Apothecaries Hall Co., 80 Conn. 503, 506, 69 A. 12 [1908]. For each month, therefore, there must be a new contract of leasing.” Welk v. Bidwell, supra, 606-607; Hour Publishing Co. v. Gorez, 5 Conn. Cir. Ct. 419, 421, 254 A.2d 919 (1968) (tenancy from month-to-month is not a continuing right of possession, but ends and recommences at expiration of every month).

The reason why the notice to quit was defective in this case was because it was served in an untimely manner. Each new month of a tenancy is a separate contract. A failure to pay rent in one month cannot be acted upon in the next month since there is a creation of a new contract. An untimely notice to quit, therefore, cannot terminate a lease that has previously lapsed. After receiving the first notice to quit possession, the defendant was still under an obligation to pay rent as a month-to-month tenant.

The second notice to quit terminated the defendant’s status as a month-to-month tenant and created a tenancy at sufferance, thereby furnishing a basis for the plaintiff’s summary process action. Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961); Rivera v. Santiago, 4 Conn. App. 608, 610, 495 A.2d 1122 (1985); Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 686, 460 A.2d 1311 (1983). The trial court erred in dismissing the plaintiff’s action for lack of subject matter jurisdiction.

There is error, the case is remanded to the trial court with direction to vacate the judgment of dismissal and to reinstate the plaintiff’s summary process action against the defendant.

In this opinion Spallone, Daly, O’Connell, Stoughton, Norcott and Foti, Js., concurred.

2 “[General Statutes] Sec. 47a-23. (Formerly Sec. 52-532). notice to quit possession of premises, form, service, (a) When a rental agreement or lease of any land or building or of any apartment in any building, or of any dwelling unit, or of any trailer, or any land upon which a trailer is used or stands, whether in writing or by parol, terminates by lapse of time, or by reason of any expressed stipulation therein, or under the provisions of section 47a-15a, or as a result of a violation of section 47a-ll, or where such premises, or any part thereof, is occupied by one who has no right or privilege to occupy such premises, or where one originally had the right or privilege to occupy such premises but such right or privilege has terminated, and the owner or lessor, or his legal representatives, or his attorney-at-law, or in-fact, desires to obtain possession or occupancy of the same, at the termination of the rental agreement or lease, if any, or at any subsequent time, he or they shall give notice to the lessee or occupant to quit possession of such land, building, apartment or dwelling unit, at least eight 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.

“(b) The notice shall be in writing substantially in the following form: T (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you, on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy, also the date and place of signing notice). ...”

General Statutes § 47a-15a provides: “nonpayment of rent by tenant: landlord’s remedy. If rent is unpaid when due and the tenant fails to pay rent within nine days thereafter, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive.”

3 On July 11, 1986, the plaintiff, in opposition to the defendant’s motion to dismiss, claimed that the motion was moot because of the filing of the amended complaint and that it was made for dilatory purposes. The record does not indicate any action of the trial court with respect to that motion.

4 At the hearing on the defendant’s motion to dismiss, the trial court stated that “a notice to quit has several purposes. An invalidity [as to] one of those purposes doesn’t necessarily mean that it is invalid for all purposes.” The court held, accordingly, that “once you’ve given notice that the lease has ended, if its unequivocal, then that lease has ended, but you may not have conferred jurisdiction on the court.”

5 We note that the plaintiff did not file its memorandum of law in opposition to the motion to dismiss at least five days before the motion was considered by the court. This court’s recent decision in Burton v. Planning Commission, 13 Conn. App. 400, 536 A.2d 995 (1988), would seem to require that the trial court’s granting of the motion to dismiss be affirmed on this ground. We conclude, however, that the rule announced in Burton and the strict requirement of Practice Book § 143 that “[a]n adverse party who fails timely to file such a memorandum . . . shall be deemed by the court to have consented to the granting of the motion” are not applicable to a summary process case.

The holding in Burton and the requirements placed on the nonmovant by § 143 must be read in conjunction with the requirement of Practice Book § 142 that “[ejxcept in summary process matters, the motion [to dismiss] shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion . . . .” (Emphasis added.) In an ordinary civil action, Practice Book §§ 142 and 143 together ensure that a plaintiff will have at least ten days to respond to a motion to dismiss. In a summary process action, however, matters move more quickly. General Statutes § 47a-26c. The plaintiff does not have the fifteen day period provided by Practice Book § 142. Thus, the strict requirement of Practice Book § 143 is not applicable to a summary process action.

In the present case, where the motion to dismiss was considered by the court only six days after its filing, compliance with the time requirements of § 143 for the filing of a memorandum in opposition to the motion was not required. It was sufficient that the plaintiff filed its memorandum in opposition to the motion sufficiently in advance of the hearing to permit the defendant to have a meaningful opportunity to respond to the plaintiffs opposition at the hearing.

6 General Statutes § 47a-3b provides: “Unless the rental agreement fixes a definite term, the tenancy is month to month, except in the case of a tenant who pays weekly rent, then the tenancy is week to week.”

General Statutes § 47a-3d provides: “Holding over by any lessee, after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease. Parol leases of lands or tenements reserving a monthly rent and in which the time of their termination is not agreed upon shall be construed to be leases for one month only.”

7 Although we need not address this issue, we note that had we been confronted with deciding the issue, we would have concluded, as does the dissent, that the nonpayment of use and occupancy is not a proper ground for eviction and, therefore, cannot sustain a summary process action. A recent opinion of this court included the statement that a tenant’s failure “to pay rent or a fair rental value for use and occupancy for the month . . . General Statutes § 47a-3c; authorized the [landlord] to issue a notice to quit possession under the provisions of General Statutes § 47a-23 (a) . . . preliminary to an action for summary process.” (Emphasis in original; footnote omitted.) Housing Authority v. Hird, 13 Conn. App. 150, 158, 535 A.2d 377 (1988). We do not believe that the quoted statement is a precise statement of our law. A tenant’s failure to pay a fair rental value or any amount as use and occupancy cannot be the basis for the maintenance of a summary process action.

8 A breach of a covenant to pay rent does not automatically result in the termination of a lease. Rosa v. Cristina, 135 Conn. 364, 366, 64 A.2d 680 (1949). The failure to pay rent gives the landlord a right to terminate the lease. Id. In order to terminate a lease, a landlord must perform some unequivocal act which clearly demonstrates his intent to terminate the lease. Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954).

9 Our decision in Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 495 A.2d 1127 (1985), is not to the contrary. In Sandrew, the plaintiff landlord sent the defendant tenant a letter of termination of the lease for nonpayment of rent. In the letter, the plaintiff stated: “You are hereby advised that your landlord . . . terminates the lease . . . because you have defaulted in the payment of the monthly rent .... Any future payments which you might make to the landlord will not be considered to be rent but only reasonable use and occupancy for the premises. I suggest that you call me immediately upon receipt of this letter so that we might discuss a resolution of this matter.” Id., 628 n.l.

Although the letter constituted the unequivocal act necessary to terminate the lease, it did not conform to the substantive requirements of General Statutes § 47a-23 (b), and therefore did not constitute a notice to quit. Id., 632. As such, the letter did not furnish a foundation for a summary process action. Id. The letter in Sandrew was not only an invalid notice to quit, but it was not a notice to quit at all. The Sandrew court stated: “While there is almost no limit to the possible words or deeds which might constitute the unequivocal act necessary to terminate the lease, none of the cases relied upon by the plaintiff supports the proposition that his actions were sufficient to serve as a substitute for the statutory notice to quit. It is conceivable to this court that a lessor might wish to terminate a lease but not wish to institute a summary process action. For example, a lessor might want to terminate a lease in order to extinguish an option to purchase, even though the lessee had moved from the premises so that a summary process action was unnecessary. In such a circumstance, any type of unequivocal act would be sufficient to terminate all rights arising under a lease although not furnishing a foundation for a summary process action.” Id., 631. The present case, however, involves a notice to quit which is invalid as it was untimely served. It, therefore, was not only ineffectual upon which to base a summary process action, but was also ineffectual to terminate the lease.

10 “A notice to quit may serve several functions: (1) as an unequivocal manifestation by the lessor that he terminates the rental agreement; Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 686, 460 A.2d 1311 (1983); (2) as an indication that any holding over by the tenant after the expiration of the monthly tenancy will not be acquiesced in by the lessor; Welk v. Bidwell, 136 Conn. 603, 607-608, 73 A.2d 295 (1950); and (3) as compliance with the statutory requirement that a period of eight days pass between the termination of the agreement and the bringing of a summary process action. General Statutes § 47a-23a; Hour Publishing Co. v. Gorez, 5 Conn. Cir. Ct. 419, 421, 254 A.2d 919 (1968).” Messinger v. Laudano, 4 Conn. App. 162, 163-64, 493 A.2d 255, cert. denied, 196 Conn. 812, 495 A.2d 279 (1985).