Presidential Village, LLC v. Perkins

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PRESIDENTIAL VILLAGE, LLC v.
TONYA PERKINS ET AL.
(SC 20043)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Mullins and Kahn, Js.
Syllabus
Pursuant to federal regulation (24 C.F.R. § 247.4 [2018]), a landlord must
provide notice to a tenant in federally subsidized housing before an
eviction proceeding may be commenced, the notice must state the rea-
sons for the landlord’s action with enough ‘‘specificity’’ so as to enable
the tenant to prepare a defense, and, when the basis of the action
involves the nonpayment of rent, the notice must state the dollar amount
of the balance due on the ‘‘rent account’’ and the date of such computa-
tion in order to satisfy the requirement of specificity.
The plaintiff landlord brought a summary process action against the defen-
dant tenant, seeking immediate possession of the premises solely on
the ground of nonpayment of rent. In 2010, the defendant signed a
one year lease with the plaintiff, which owns and manages a housing
development in which the rental units are subsidized by the Department
of Housing and Urban Development (HUD). Pursuant to the terms of
that lease, the defendant remained in the apartment after the first year
on a month-to-month basis. In the plaintiff’s summary process action,
which it brought in February, 2015, the plaintiff alleged that, on January
1, 2015, the defendant failed to pay the rent of $1402 then due. Prior to
initiating the action, the plaintiff had sent a pretermination notice to
the defendant in accordance with HUD regulations. The pretermination
notice provided: ‘‘[Y]ou failed to pay your rent, in the total rental obliga-
tion of [$6189.56]. Your failure to pay such rent constitutes a material
noncompliance with the terms of your lease.’’ The notice further pro-
vided: ‘‘Your rental obligations will include the delinquent rent, late fees,
utilities, legal fees, any other eviction proceeding sundry cost.’’ The
defendant filed a motion to dismiss, claiming that the pretermination
notice was defective and, therefore, that the trial court lacked subject
matter jurisdiction. The defendant contended, inter alia, that the cure
amount of $6189.56 in the pretermination notice varied from the alleged
nonpayment of $1402 in rent that formed the basis for termination of
the tenancy. The trial court granted the motion to dismiss, concluding
that the notice was defective because it contained legally impermissible
and factually inaccurate grounds for termination and that the defective
notice deprived it of subject matter jurisdiction. The plaintiff appealed
to the Appellate Court, which reversed the trial court’s judgment, con-
cluding that the pretermination notice was not jurisdictionally defective.
The Appellate Court reasoned that the trial court improperly incorpo-
rated state summary process law in determining that the notice was
defective and that the notice should have been assessed solely in relation
to the requirements of federal law, specifically, that portion of 24 C.F.R.
§ 247.4 requiring only the dollar amount of the balance due on the
rent account and the date of such computation. The Appellate Court
determined that the plaintiff’s notice complied with that federal require-
ment because all of the charges listed therein were amounts for either
past due rent or other financial obligations due under the lease. The
Appellate Court rejected the defendant’s contention that the balance
due on the rent account was limited to the amount of the unpaid rent
that supported the nonpayment of rent ground alleged in the plaintiff’s
complaint. On the granting of certification, the defendant appealed to
this court. Held that the Appellate Court improperly reversed the trial
court’s judgment of dismissal, as the plaintiff’s inclusion in the pretermi-
nation notice of undesignated charges for obligations other than unpaid
rent rendered that notice jurisdictionally defective: the common meaning
of the term ‘‘rent,’’ as gleaned from dictionaries, federal housing statutes,
federal regulations applicable to subsidized housing, and the HUD hand-
book, led this court to conclude that the term ‘‘rent account’’ in 24
C.F.R. § 247.4 is limited to rent charges and does not encompass utilities,
costs for repairs, late fees, and attorney’s fees, and such a construction
of the regulation furthered the purpose of the specificity requirement
therein, which was to enable the tenant to prepare a defense, and also
reflected the fact that occupancy in subsidized housing is in the nature
of a welfare entitlement and that such tenants are entitled to basic
substantive and procedural protections; accordingly, the requirement
that the pretermination notice specify the dollar amount of the balance
due on the rent account was not met in the present case, as the notice
was not limited to unpaid rent, which the plaintiff alleged as the only
reason for the proposed termination of the tenancy, and did not designate
which of the charges were assigned to rent and which were assigned
to obligations other than rent; moreover, the plaintiff could not prevail
on its claim that any defect in a pretermination notice is not jurisdictional
and requires that the defendant demonstrate prejudice, this court having
determined that notice must be sufficiently accurate for the tenant to
understand and defend against the allegations and that, if a notice is
inaccurate to the point that a tenant’s ability to prepare a defense is
impaired, the notice is not effective.
Argued October 9, 2018—officially released June 18, 2019
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of New Haven, Housing
Session, where the court, Ecker, J., granted the named
defendant’s motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to the Appel-
late Court, DiPentima, C. J., and Keller and Prescott,
Js., which reversed the trial court’s judgment and
remanded the case for further proceedings, and the
named defendant, on the granting of certification,
appealed to this court. Reversed; judgment directed.
Amy Eppler-Epstein, with whom was Shelley White,
for the appellant (named defendant).
David E. Schancupp, with whom was Hugh D.
Hughes, for the appellee (plaintiff).
J.L. Pottenger, Jr., filed a brief for the Jerome N.
Frank Legal Services Organization et al. as amici curiae.
Opinion
McDONALD, J. This summary process action con-
cerns the degree of specificity required in the pretermi-
nation notice1 that, pursuant to regulations promulgated
by the federal Department of Housing and Urban Devel-
opment (HUD), must be provided to a tenant who
resides in federally subsidized housing before the land-
lord may commence an eviction proceeding against that
tenant. Specifically, the issue presented is whether a
pretermination notice asserting nonpayment of rent as
the ground for the proposed termination of the tenancy
is jurisdictionally defective if it includes either rent
charges that cannot serve as a basis for termination
of the tenancy under state summary process law or
undesignated charges for obligations other than rent.
The trial court concluded that the inclusion of both
types of charges renders the notice jurisdictionally
defective. The Appellate Court concluded that state law
is irrelevant to the legal sufficiency of such a notice,
and that the inclusion of charges other than for rent is
not a material defect under federal law. Presidential
Village, LLC v. Perkins, 176 Conn. App. 493, 500, 506,
170 A.3d 701 (2017).
The defendant tenant, Tonya Perkins,2 appeals, upon
our grant of certification, from the Appellate Court’s
judgment reversing the judgment of the trial court dis-
missing the summary process action initiated by the
plaintiff landlord, Presidential Village, LLC. We con-
clude that the inclusion of undesignated charges for
obligations other than rent rendered the notice jurisdic-
tionally defective. Accordingly, we reverse the Appel-
late Court’s judgment.
The record reveals the following undisputed facts
and procedural history. The plaintiff is a private com-
pany that owns and manages Presidential Village, a
housing development in New Haven in which the rental
units are subsidized by HUD through a project based
Section 83 program intended to benefit low income fami-
lies. Tenants are responsible for a portion of the rent,
based on a percentage of their income and other factors;
HUD makes monthly payments to the plaintiff to make
up the difference between the tenant’s portion of the
rent and the full market rent. If a tenant fails to provide
information relevant to the determination of the ten-
ant’s share of the rent, which may be periodically
adjusted as circumstances change, the tenant may be
required to pay the market rent.4 See generally United
States Dept. of Housing & Urban Development, HUD
Handbook 4350.3 Rev-1: Occupancy Requirements of
Subsidized Multifamily Housing Programs (November,
2013) (HUD Handbook).
In March, 2010, the defendant signed a HUD model
lease for an apartment in Presidential Village for a term
beginning March 2, 2010, and ending February 28, 2011,
and thereafter ‘‘continu[ing]’’ for successive terms of
one month . . . .’’ (Emphasis added.) The lease set the
defendant’s rent at $377 per month; it did not indicate
the amount of HUD’s subsidy or the market rate for
the unit. The lease provides that the defendant’s rent
may increase (or decrease) for various reasons, includ-
ing a change in her income.5
In February, 2015, the plaintiff commenced the pre-
sent summary process action against the defendant,
seeking immediate possession of the premises, solely
on the ground of nonpayment of rent. The complaint
alleged that the defendant’s monthly rent was $1402,
the defendant’s portion of that rent was $1402,6 and,
on January 1, 2015, the defendant failed to pay the rent
then due and payable.
The complaint further alleged the procedures under-
taken by the plaintiff prior to initiating the action. Spe-
cifically, it alleged that, on January 14, 2015, with the
January rent still unpaid, the plaintiff sent a pretermina-
tion notice to the defendant, in accordance with HUD
regulations, regarding her past due rent. It further
alleged that, on January 29, 2015, with the rent still
unpaid, the plaintiff served a notice to quit on the defen-
dant. Both notices were attached as exhibits to the
complaint. Relevant to the present case, the pretermina-
tion notice stated as follows:
‘‘You have violated the terms of your lease in that
you failed to pay your rent, in the total rental obligation
of $6,189.56. Your failure to pay such rent constitutes
a material noncompliance with the terms of your lease.
‘‘We hereby notify you that your lease agreement may
be subject to termination and an immediate eviction
proceeding, initiated by our office. We value our tenants
and request that you immediately contact our office,
regarding full payment of your rental obligations. Your
rental obligations will include the delinquent rent, late
fees, utilities, legal fees, and any other eviction pro-
ceeding sundry cost.
‘‘You have the right within ten days after receipt of
this notice or within ten days after the date following
the date this notice was mailed whichever is earlier to
discuss the proposed termination of your tenancy with
your landlord’s agent7 . . . .
‘‘If you remain in the premises on the date specified
for termination, we may seek to enforce the termination
by bringing judicial action at which time you have a
right to present a defense.’’ (Emphasis added.)
The defendant filed a motion to dismiss the plaintiff’s
summary process complaint on the ground that the
pretermination notice was defective and, therefore, that
the court lacked subject matter jurisdiction. The alleged
defects were (1) a variance in the cure amount
requested in the pretermination notice ($6189.56) and
the alleged nonpayment that is the basis of the com-
plaint ($1402), which contravenes federal laws regulat-
ing the pretermination notice, as articulated in the HUD
Handbook and state case law, and (2) the notice’s alle-
gations of violations of leases that are no longer in
effect, which violate Connecticut summary process law.
In its opposition to the motion, the plaintiff argued
that the pretermination notice was not defective. It
asserted that there was nothing defective about a preter-
mination notice that lists the total financial obligations
owed by the defendant to the plaintiff. The plaintiff
further contended that a federal pretermination notice
fully complies with the law if it includes the specific
information supporting the landlord’s right to termina-
tion; a notice does not become defective simply because
it contains more information than strictly necessary.
The trial court granted the defendant’s motion to
dismiss. The court determined that the notice was
defective because it contained legally impermissible
and factually inaccurate grounds for termination. The
trial court explained that one purpose of the pretermina-
tion notice is to provide the tenant with the opportunity
to cure. The present notice did not provide this opportu-
nity because it was misleading in at least two ways.
First, the notice informed the defendant that she had
to pay $6189.56 in order to prevent eviction when, under
state summary process law, payment of a far lesser
amount, $2804 (rent for December, 2014, and January,
2015), would have prevented the only eviction that
could have been initiated based on that particular
notice.8 See General Statutes § 47a-23 (d). Second, the
notice included charges as ‘‘rental obligations’’ that did
not qualify as ‘‘rent.’’ The trial court noted that the
plaintiff had conceded that the $6189.56 in ‘‘rental obli-
gations’’ included approximately $1300 in attorney’s
fees for which the defendant was not even liable,9 and
that it could not account for another portion of one of
the charges listed. The trial court concluded that the
defective notice deprived it of subject matter jurisdic-
tion and rendered a judgment of dismissal.
The plaintiff appealed to the Appellate Court. The
Appellate Court reversed the judgment, holding that the
pretermination notice was not jurisdictionally defec-
tive. Presidential Village v. Perkins, supra, 176 Conn.
App. 494. The Appellate Court determined that the trial
court improperly incorporated state summary process
law in determining that the notice was defective. Id.,
499–500. The Appellate Court held that the notice must
be assessed solely in relation to the requirements of
federal law; id., 500; under which a pretermination
notice for nonpayment of rent required only ‘‘the dollar
amount of the balance due on the rent account and the
date of such computation . . . .’’ (Internal quotation
marks omitted.) Id., 502, quoting 24 C.F.R. § 247.4 [e]
(2017). The Appellate Court determined that the plain-
tiff complied with this requirement because all of the
charges listed in the pretermination notice were
amounts for either past due rent or other financial obli-
gations due under the lease. Id., 502–503.
The Appellate Court rejected the defendant’s argu-
ment that the balance due on the ‘‘rent account’’ was
limited to the amount of unpaid rent that supported the
nonpayment of rent ground alleged in the complaint.
Id., 503–504. It agreed with the plaintiff that, irrespective
of whether the notice may have misled the defendant
as to the amount needed to cure the violation of the
lease agreement, the federal notice requirement is
intended only to allow the tenant to prepare a defense
against the summary process action, not to afford an
opportunity to cure noncompliance and thereby avoid
such an action.10 Id. Finally, the Appellate Court noted
that, even if it were to agree with the trial court that
the inclusion of nonrent charges was relevant, it would
view the inclusion of such charges as insufficient to
render the pretermination notice ‘‘fatally defective.’’ Id.,
506, citing Jefferson Garden Associates v. Greene, 202
Conn. 128, 142, 145, 520 A.2d 173 (1987).
We then granted the defendant’s petition for certifica-
tion to appeal to this court. Although the certified ques-
tions are framed in relation to whether state summary
process law is relevant to the propriety of the federal
notice; see Presidential Village, LLC v. Perkins, 327
Conn. 974, 174 A.3d 193 (2017);11 we conclude that,
because the notice is jurisdictionally defective even if
measured solely by reference to federal law, we need
not consider whether, and the extent to which, state
law would be relevant.
In reviewing the Appellate Court’s determination that
the trial court improperly granted the defendant’s
motion to dismiss, we are guided by the following well
established principles. ‘‘A motion to dismiss . . . prop-
erly attacks the jurisdiction of the court, essentially
asserting that the plaintiff cannot as a matter of law
and fact state a cause of action that should be heard
by the court. . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the trial court’s ulti-
mate legal conclusion and resulting [decision to] grant
. . . the motion to dismiss [is] de novo.’’ (Internal quo-
tation marks omitted.) Styslinger v. Brewster Park,
LLC, 321 Conn. 312, 316, 138 A.3d 257 (2016).
‘‘There is no doubt that the Superior Court is author-
ized to hear summary process cases; the Superior Court
is authorized to hear all cases except those over which
the probate courts have original jurisdiction. General
Statutes § 51-164s. The jurisdiction of the Superior
Court in summary process actions, however, is subject
to [certain] condition[s] precedent.’’ Lampasona v.
Jacobs, 209 Conn. 724, 728, 553 A.2d 175, cert. denied,
492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989).
‘‘[B]efore a landlord may pursue its statutory remedy
of summary process . . . the landlord must prove its
compliance with all the applicable preconditions set by
state and federal law for the termination of a lease.’’
Jefferson Garden Associates v. Greene, supra, 202
Conn. 143; see, e.g., Lampasona v. Jacobs, supra, 729
(‘‘[a]s a condition precedent to a summary process
action, proper notice to quit is a jurisdictional neces-
sity’’); Lampasona v. Jacobs, supra, 729 (‘‘we have held
other statutory time limitations and notice requirements
to be conditions precedent to court actions and thus
to be jurisdictional’’).
The record establishes that the preconditions
required under state summary process law were met;
there is no claim to the contrary. The plaintiff timely
served the notice to quit alleging nonpayment of rent,
and alleged in its complaint that the defendant had
failed to pay rent due January 1, 2015, in the amount
of $1402. See footnote 8 of this opinion.
Federal law, however, imposes additional precondi-
tions in order to terminate a Section 8 tenancy. The
purpose of these requirements is to afford due process
and avoid arbitrary or discriminatory termination. See
Jefferson Garden Associates v. Greene, supra, 202
Conn. 143–45; see also Anderson v. Denny, 365 F. Supp.
1254, 1260 (W.D. Va. 1973); Green v. Copperstone Ltd.
Partnership, 28 Md. App. 498, 516, 346 A.2d 686 (1975);
Timber Ridge v. Caldwell, 195 N.C. App. 452, 454, 672
S.E.2d 735 (2009); Nealy v. Southlawn Palms Apart-
ments, 196 S.W.3d 386, 389–90 (Tex. App. 2006).
Under HUD regulations, a tenancy in a federally sub-
sidized project cannot be terminated in the absence of
good cause. See 24 C.F.R. § 247.3 (2018). One such
ground is material noncompliance with the rental
agreement; see id., § 247.3 (a) (1); which includes
‘‘[n]onpayment of rent or any other financial obligation
due under the rental agreement . . . .’’ Id., § 247.3
(c) (4).
Service of a valid pretermination notice is a condition
precedent to a summary process action. See id.,
§ 247.4.12 In any subsequent summary process action,
the landlord can rely only on grounds that were set forth
in that notice, unless the landlord had no knowledge
of an additional ground at the time the pretermination
notice was served. See id., § 247.6 (b). With respect to
the statement of such grounds in the pretermination
notice, the regulations mandate that the notice must,
among other things, ‘‘state the reasons for the landlord’s
action with enough specificity so as to enable the tenant
to prepare a defense . . . .’’ (Emphasis added.) Id.,
§ 247.4 (a) (2). When the reason is nonpayment of rent,
the regulation provides that ‘‘a notice stating the dollar
amount of the balance due on the rent account and the
date of such computation shall satisfy the requirement
of specificity . . . .’’ (Emphasis added.) Id., § 247.4 (e).
The question then is whether the pretermination
notice served on the defendant properly states what is
due on the ‘‘rent account.’’ The notice sets forth the
defendant’s ‘‘rental obligations.’’ The notice unambigu-
ously equates this term to rent, but then indicates that
rental obligations include not only delinquent rent, but
also ‘‘late fees, utilities, legal fees, and any other eviction
proceeding sundry cost.’’ Although the notice lists vari-
ous dollar amounts and assigns a specific due date to
each amount, it does not indicate whether the amount
is derived from any particular obligation, or a combina-
tion thereof.
The term ‘‘rent account’’ is not defined in HUD regula-
tions, the HUD Handbook, or the HUD model lease
executed in the present case. The plaintiff’s view, appar-
ently shared by the Appellate Court, is that this term
encompasses any financial obligation arising under the
lease. The defendant’s view is that it is limited to rent
charges, and only those rent charges that are a proper
basis for the eviction action under state summary pro-
cess law. We agree with the defendant’s first point and
therefore need not reach the second.
We begin with the observation that the common
meaning of ‘‘rent’’ is a charge for the use and occupancy
of the property. See, e.g., The American Heritage Dic-
tionary of the English Language (5th Ed. 2011) p. 1487;
Merriam-Webster’s Collegiate Dictionary (11th Ed.
2003) p. 1054. This common meaning is consistent with
Section 8 law, under which the tenant’s rent is for a
fixed amount, set in relation to the tenant’s income.
See 42 U.S.C. § 1437a (a) (1) (2012). It is also consistent
with the definitions of various types of rent in the HUD
Handbook.13 See HUD Handbook, supra, glossary; see
also, e.g., id., p. 6 (‘‘Contract [r]ent’’ is defined as ‘‘[t]he
rent HUD or the Contract Administrator has approved
for each unit type covered under an assistance contract.
The rent may be paid by the tenant, HUD, or both. Refer
to the project’s rental schedule [Form HUD-92458] or
Rental Assistance contract for exact amounts.’’).14
Although there is some indication in one type of rent
defined in the HUD Handbook’s glossary that rent may
include utilities; see id., p. 23 (defining ‘‘[m]inimum
[r]ent’’ as ‘‘the tenant’s contribution for rent and utili-
ties’’);15 and in the HUD form used to calculate the rent
schedule; see Form HUD-92458, ‘‘Rent Schedule Low
Rent Housing’’ (November, 2005); no definition suggests
that rent may include late fees or attorney’s fees. Unlike
private parties, landlords receiving subsidies from HUD
are not free to define ‘‘rent’’ as they see fit.
Further support for a narrow construction of the term
rent is found in the federal regulations distinguishing
between nonpayment of rent and ‘‘any other financial
obligation’’ due under the rental agreement as a ground
for termination. See 24 C.F.R. § 247.3 (c) (4) (2018)
(citing nonpayment of rent ‘‘or’’ other financial obliga-
tion under lease). Nonpayment of either may demon-
strate material noncompliance with the rental
agreement. Although an eviction action may be brought
based on the failure to pay other financial obligations,
if permitted under the agreement, such an action would
not be one for nonpayment of ‘‘rent.’’ It so happens that
the HUD model lease expressly provides that ‘‘[t]he
[l]andlord may not terminate this [a]greement for failure
to pay late charges, but may terminate this [a]greement
for [nonpayment] of rent . . . .’’
A narrow construction of the term rent also is consis-
tent with the manner in which rent is defined elsewhere
in federal regulations applicable to subsidized housing,
albeit not to privately owned property. Regulations
applicable to the Public Housing Agency distinguish
‘‘[t]enant rent,’’ defined as ‘‘[t]he amount payable
monthly by the family as rent to the unit owner’’; 24
C.F.R. § 5.603 (b) (2018); from other payments due
under the lease. See id., § 966.4 (b) (listing as payments
due under lease: [1] tenant rent; [2] charges for mainte-
nance and repair beyond normal wear and tear, and
excess utilities; [3] late payment penalties; [4] and secu-
rity deposits). Additionally, lease agreements may not
include a provision providing ‘‘that the tenant agrees
to pay attorney’s fees or other legal costs whenever the
landlord decides to take action against the tenant even
though the court determines that the tenant prevails in
the action.’’ Id., § 966.6 (h). Such an exclusion plainly
indicates that such fees are not considered ‘‘rent.’’ Con-
sistent with this narrow construction, other jurisdic-
tions have defined ‘‘tenant rent’’ in accordance with the
common meaning, and have refused to construe it more
expansively to include charges for utilities, repairs, late
fees, or attorney’s fees. See Miles v. Metropolitan Dade
County, 916 F.2d 1528, 1532 n.4 (11th Cir. 1990), cert.
denied, 502 U.S. 898, 112 S. Ct. 273, 116 L. Ed. 2d 225
(1991); In re Parker, 269 B.R. 522, 533 (D. Vt. 2001);
Housing Authority & Urban Redevelopment Agency v.
Taylor, 171 N.J. 580, 591–94, 796 A.2d 193 (2002).
Although the Appellate Court dismissed as irrelevant
case law that construed HUD regulations applicable to
public housing, we view this law as persuasive because
it is consistent with every other relevant source and
because the HUD provisions governing subsidized hous-
ing all serve the same purpose of ensuring affordable
housing to low income families. See Food & Drug
Administration v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133, 120 S. Ct. 1291, 146 L. Ed.
2d 121 (2000) (‘‘[a] court must therefore interpret the
statute as a symmetrical and coherent regulatory
scheme . . . and fit, if possible, all parts into an harmo-
nious whole’’ [citation omitted; internal quotation
marks omitted]).
Finally, we observe that a narrow construction of
‘‘rent account,’’ consistent with the meaning of ‘‘rent,’’
furthers the purpose of the specificity requirement of
a pretermination notice, to ‘‘enable the tenant to pre-
pare a defense . . . .’’ 24 C.F.R. § 247.4 (a) (2) (2018).
A defense to nonpayment of a financial obligation may
vary depending on the nature of the obligation and
its source (lease or otherwise), as well as the amount
claimed to be owed.16 The inclusion of extraneous and
irrelevant charges undoubtedly can inhibit a tenant
from preparing his or her defense. So too can the failure
to specify the particular amount claimed as unpaid rent.
Cf. Swords to Plowshares v. Smith, 294 F. Supp. 2d
1067, 1073 (N.D. Cal. 2002) (addressing specificity
requirement when nuisance was alleged as ground for
eviction); Edgecomb v. Housing Authority, 824 F. Supp.
312, 315 (D. Conn. 1993) (addressing specificity require-
ment when criminal activity was alleged as ground for
eviction). It is not the tenant’s obligation to ferret out
the particulars. The regulations place that obligation
squarely and exclusively on the landlord.
If we were to conclude otherwise, we would ignore
‘‘that occupancy in a subsidized housing project is in
the nature of a welfare entitlement and that tenants in
these units are entitled to basic substantive and proce-
dural protections.’’ ‘‘Evictions from Certain Subsidized
and HUD-Owned Projects,’’ 41 Fed. Reg. 43,330, 43,331
(September 30, 1976); see Goldberg v. Kelly, 397 U.S.
254, 261–63, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)
(recognizing welfare benefits as right, not privilege,
entitling beneficiary of welfare benefits to procedural
due process protection). These basic due process pro-
tections include not only notice of termination of wel-
fare benefits, but ‘‘effective notice,’’ by providing
‘‘enough information to understand the basis for the
[termination] . . . .’’ (Citation omitted.) Kapps v.
Wing, 404 F.3d 105, 124 (2d Cir. 2005). These protections
are especially important because the tenant’s disposses-
sion results in the loss of the subsidy and, in turn,
affordable housing, placing some low income families
at risk of homelessness. See 42 U.S.C. § 1437f (a) (2012)
(purpose of federal rental assistance program is to aid
‘‘low-income families in obtaining a decent place to
live’’); see also Task Force on the Civil Right to Counsel,
Boston Bar Assn., ‘‘The Importance of Representation in
Eviction Cases and Homelessness Prevention’’ (March,
2012), Appendix A, pp. 1–3, available at http://www.bos-
tonbar.org/docs/default-document-library/bba-crtc-
final-3-1-12.pdf. Wrongful termination of a subsidized
tenancy may cause irreparable harm. See, e.g., Caulder
v. Durham Housing Authority, 433 F.2d 998, 1003 (4th
Cir. 1970) (recognizing that wrongfully evicted tenant
is, ‘‘by definition, one of a class who cannot afford
acceptable housing so that he is condemned to suffer
grievous loss, but should it be subsequently determined
that his eviction was improper the wrong cannot be
speedily made right because of the demand for low-
cost public housing and the likelihood that the space
from which he was evicted will be occupied by others’’
[internal quotation marks omitted]), cert. denied, 401
U.S. 1003, 91 S. Ct. 1228, 28 L. Ed. 2d 539 (1971); National
Low Income Housing Coalition, ‘‘The Gap: A Shortage
of Affordable Homes’’ (March, 2019) p. 7 (estimating
that Connecticut has only thirty-eight affordable rental
units for every 100 extremely low income households),
available at https://reports.nlihc.org/sites/default/files/
gap/Gap-Report 2019.pdf.
Having determined that in order to comply with title
24 of the Code of Federal Regulations, § 247.4, the plain-
tiff was required to specify the alleged dollar amount
of unpaid rent in the pretermination notice, it is appar-
ent that this requirement was not met in the present
case. The notice, by its own terms, is not limited to
unpaid rent. Even if we were to accept the plaintiff’s
dubious overinclusiveness argument (i.e., that a notice
that provides more information than that required is
not defective), the notice still would be defective. The
notice does not designate which of the charges are
assigned to rent and which are assigned to obligations
other than rent. Cf. Ford Motor Credit Co. v. Milhollin,
444 U.S. 555, 568, 100 S. Ct. 790, 63 L. Ed. 2d 22 (1980)
(The court stated in relation to the Truth in Lending
Act, 15 U.S.C. § 1601 et seq. [1976]: ‘‘The concept of
meaningful disclosure . . . cannot be applied in the
abstract. Meaningful disclosure does not mean more
disclosure. Rather, it describes a balance between com-
peting considerations of complete disclosure . . . and
the need to avoid . . . [informational overload].’’ [Cita-
tion omitted; internal quotation marks omitted.]). This
flaw similarly dooms the plaintiff’s analogy to case law
in which there is no defect when a notice to quit alleges
two grounds and the plaintiff proceeds on only one in
the complaint. See, e.g., Wilkes v. Thomson, 155 Conn.
App. 278, 282–83, 109 A.3d 543 (2015) (no defect where
one of two grounds in notice to quit turns out to be
factually unsupported). The plaintiff alleged nonpay-
ment of ‘‘rent’’ as the only reason for the proposed termi-
nation.
We agree with the amici curiae, groups providing
services to low income families in our state,17 that the
exclusion of superfluous charges that a tenant would
not need to defend against to avoid eviction is especially
important in light of the lack of legal sophistication of
many recipients of these notices. As the amici point
out, ‘‘[a] growing body of research confirms that many
low income tenants do not understand the procedural
complexities of housing court. Many tenants in court
face ‘barriers such as low literacy, mental illness, and
limited English proficiency.’ [Judiciary Committee,
Connecticut General Assembly, Report of the Task
Force To Improve Access to Legal Counsel in Civil
Matters (December 15, 2016) p. 12]. Research suggests
that federal housing aid recipients are also dispropor-
tionately hindered by financial illiteracy. See [J. Col-
lins], The Impacts of Mandatory Financial Education:
Evidence from a Randomized Field Study, 95 J. Econ.
Behavior & Org. 146 (2013).’’
The plaintiff alternatively argues that any defect in
the notice is not jurisdictional. As such, it contends
that the defendant should be required to demonstrate
prejudice, a burden that it posits the defendant cannot
meet. We disagree with the main premise of this
argument.
There is a split of authority in other jurisdictions as
to whether a defect in the pretermination notice
deprives the court of subject matter jurisdiction, requir-
ing dismissal of the action regardless of prejudice. Com-
pare Riverview Towers Associates v. Jones, 358 N.J.
Super. 85, 86, 817 A.2d 324 (App. 2003) (lack of jurisdic-
tion), Fairview Co. v. Idowu, 148 Misc. 2d 17, 22–23,
559 N.Y.S.2d 925 (Civ. 1990) (‘‘fatal’’ defect), and Hedco,
Ltd. v. Blanchette, 763 A.2d 639, 643 (R.I. 2000) (lack
of jurisdiction), with Hill v. Paradise Apartments, Inc.,
182 Ga. App. 834, 836–37, 357 S.E.2d 288 (1987) (defec-
tive notice must cause harm), Fairborn Apartments v.
Herman, Docket No. 90 CA 28, 1991 WL 10962, *6 (Ohio
App. January 31, 1991) (not jurisdictional), Pheasant
Hill Estates Associates v. Milovich, 33 Pa. D. & C.4th 74,
76–77 (Com. Pl. 1996) (same), and Nealy v. Southlawn
Palms Apartments, supra, 196 S.W.3d 392 (same).
The plaintiff reads this court’s decision in Jefferson
Garden Associates v. Greene, supra, 202 Conn. 128, as
falling into the latter camp. It is mistaken. In that case,
this court stated that, when evaluating the propriety of
a federal pretermination notice, ‘‘not every deviation
from the strict requirements of either [state] statutes
or [federal] regulations warrants dismissal of an action
for summary process. When good cause for termination
of a lease has clearly been shown, and when notices
of termination have been sent in strict compliance with
statutory timetables, a landlord should not be precluded
from pursuing summary eviction proceedings because
of hypertechnical dissection of the wording of the
notices that he has sent.’’ Id., 145. These statements
were aimed at the question of whether there is a cogni-
zable defect, not whether a cognizable defect is jurisdic-
tional. Tellingly, this court treated the federal regulation
under the same rubric as state statutes governing sum-
mary process. See id. (citing as support Southland Corp.
v. Vernon, 1 Conn. App. 439, 452–53, 473 A.2d 318 [1984],
which applied same hypertechnical standard to notice
to quit). It is well settled that a notice to quit that is
defective under our law deprives the court of subject
matter jurisdiction over the summary process action.
See Bristol v. Ocean State Job Lot Stores of Connecticut,
Inc., 284 Conn. 1, 5, 931 A.2d 837 (2007).
We recognize that certain inaccuracies in a pretermi-
nation notice may go to the merits and should be
addressed at trial (for example, if the amount of unpaid
rent for the period at issue is incorrect, or, as is claimed
in the present case, overstates the tenant’s share of the
rent). However, the notice must be sufficiently accurate
for the tenant to understand and defend against the
allegations. If a notice is inaccurate to the point that a
tenant’s ability to prepare a defense against the alleged
reason for termination is impaired, the notice is not
effective.
For the reasons previously articulated, the pretermi-
nation notice in the present case cannot be said to
reflect a hypertechnical deviation from the regulatory
requirements. See Escalera v. New York City Housing
Authority, 425 F.2d 853, 864 (2d Cir.) (‘‘even small
charges can have great impact on the budgets of public
housing tenants, who are by hypothesis below a certain
economic level’’), cert. denied, 400 U.S. 853, 91 S. Ct.
54, 21 L. Ed. 2d 91 (1970). As such, the Appellate Court
improperly concluded that the trial court’s judgment of
dismissal must be reversed.
In light of this conclusion, we need not reach the
defendant’s claim that the notice also was jurisdiction-
ally defective because it misleadingly included rent
charges for leases that are no longer in effect and that
could not be used to support a summary process action
under Connecticut law. While prudent landlords would
be well served by limiting their pretermination notices
to the rent charges that lawfully may support the sum-
mary process action, we have no occasion to determine
that question in this case.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the trial
court.
In this opinion the other justices concurred.
1
Although federal regulations refer to the notice as a ‘‘termination notice’’;
24 C.F.R. § 247.4 (2018); we use the term ‘‘pretermination’’ in this opinion
to reflect the fact that the federal notice precedes a notice to quit, which
is the sole mechanism to terminate a tenancy under Connecticut law. We
note that the plaintiff also referred to the notice as such in its complaint.
2
We note that two additional defendants, ‘‘John Doe’’ and ‘‘Jane Doe,’’
who may have resided in the premises with Perkins, were also named in
the complaint but are not parties to the present appeal. All references in
this opinion to the defendant are to Perkins.
3
The trial court observed: ‘‘Section 8 refers to Section 8 of the Housing
Act of 1937, although what are now called Section 8 programs were not
created until almost forty years later, with the enactment of the Housing
and Community Development Act of 1974. Section 8, as amended, is codified
at 42 U.S.C. § 1437f et seq. There are many different Section 8 programs in
existence. . . . In general, the Section 8 rental assistance programs can
be categorized as either tenant based or project based. There are various
programs within each of these two categories, and the variations themselves
have spawned subvariations and permutations. . . . [HUD] has issued publi-
cations intended to provide guidance regarding occupancy and termination
issues in connection with various Section 8 programs.’’ (Internal quotation
marks omitted.)
4
Market rent is the rent HUD authorizes the owner to collect from families
ineligible for assistance. See United States Dept. of Housing & Urban Devel-
opment, HUD Handbook 4350.3 Rev-1: Occupancy Requirements of Subsi-
dized Multifamily Housing Programs (November, 2013), glossary, p. 22.
5
It appears that a qualifying tenant’s rent is capped at 30 percent of
adjusted gross income. See 42 U.S.C. § 1437a (a) (1) (2012). The model lease
indicates that, annually, the landlord requests information from the tenant
regarding income, family composition, and any other information required
by HUD to recertify eligibility for HUD rental assistance. The landlord verifies
that information and then uses it to recalculate the amount of the tenant’s
rent and the HUD assistance payment, if necessary. In the intervening period
between annual reviews, the tenant is obligated to advise the landlord if
the pertinent information changes.
6
The basis of this amount is not established in the record. Statements by
the parties’ counsel at oral argument suggest that $1402 represented the
market rent for the unit. The plaintiff’s counsel suggested that the entire
amount was owed by the defendant because she had failed to provide
information or forms necessary to maintain eligibility for the subsidy. The
defendant’s counsel disputes that the defendant owes the entire amount
but does not contend that any such overcharge would constitute a jurisdic-
tional defect.
7
In a footnote in its memorandum of decision, the trial court acknowl-
edged that the parties disputed whether the defendant had discussed, or
attempted to discuss, this matter with the plaintiff during the ten day period.
The court explained that it had declined to hold an evidentiary hearing to
resolve this dispute because its resolution of the case on other grounds
rendered it unnecessary. The Appellate Court did not address this footnote
when it stated that the defendant ‘‘did not discuss the possible termination
of her tenancy with the plaintiff’s agent during the ten day period . . . .’’
Presidential Village, LLC v. Perkins, supra, 176 Conn. App. 496.
8
As of March 1, 2011, the defendant’s one year lease converted to a month-
to-month lease. In a month-to-month tenancy, ‘‘[t]he tenancy for each month
is separate and distinct from that of every other month. Welk v. Bidwell,
136 Conn. 603, 607, 73 A.2d 295 [(1950)]. There is a new contract of leasing
for each successive month; DiCostanzo v. Tripodi, 137 Conn. 513, 515, 78
A.2d 890 [(1951)]; and the right of tenancy ends with that month for which
the rent has been paid.’’ Kligerman v. Robinson, 140 Conn. 219, 221, 99
A.2d 186 (1953). Each month is a separate contract. Id. Our summary process
law modifies the common law by permitting a landlord to terminate a month-
to-month tenancy based on nonpayment of rent not only for the month in
which the notice to quit is served but also for the immediately preceding
month. See General Statutes § 47a-23 (d). In the present case, because the
plaintiff served the notice to quit in January, 2015, it had the right to claim
nonpayment of rent for December, 2014, but not for prior months.
9
According to the trial court’s decision, the plaintiff conceded during
oral argument before that court that the attorney’s fees were from a prior,
unsuccessful action that should not have been charged to the defendant.
At oral argument before this court, the plaintiff’s counsel suggested that
perhaps the defendant was liable for the attorney’s fees. As this statement
is in direct conflict with the trial court’s decision, the proper time and means
to have raised this matter would have been through the filing of a motion
for rectification in the trial court. See Practice Book § 66-5. In the absence
of any such rectification, we presume that the plaintiff did make, and is
bound by, such a concession.
10
By drawing a clear distinction between curing a default and preparing
a defense, the Appellate Court appears to have implicitly rejected the possi-
bility that the opportunity to cure may be relevant to preparing a defense
to present in an eviction action. For example, equitable nonforfeiture is a
defense that may apply to a summary process action premised on nonpay-
ment of rent. See 19 Perry Street, LLC v. Unionville Water Co., 294 Conn.
611, 630, 987 A.2d 1009 (2010). ‘‘[T]he doctrine against forfeitures applies
to a failure to pay rent in full when that failure is accompanied by a good
faith intent to comply with the lease or a good faith dispute over the meaning
of a lease.’’ (Internal quotation marks omitted.) Id. ‘‘[T]he conduct of the
[lessee] after he was informed of the nonpayment . . . is conclusive of the
good faith of the [lessee] . . . and his continuous desire to avoid a forfeiture
. . . .’’ Thompson v. Coe, 96 Conn. 644, 657, 115 A. 219 (1921). ‘‘[M]any
courts have also taken into consideration the tenant’s actions after receiving
notice by the landlord of the termination of the lease, looking favorably on
any actions by the tenant to cure the default or evidencing an intent to
prevent the forfeiture . . . .’’ (Emphasis added; internal quotation marks
omitted.) 19 Perry Street, LLC v. Unionville Water Co., supra, 634. Thus,
if the lack of specificity in a notice discourages the tenant from taking steps
to cure the default, it also could impair the tenant’s ability to establish an
equitable defense to eviction. In light of our conclusion that the inclusion
of nonrent charges rendered the notice defective, we need not determine
whether a notice could be jurisdictionally defective if it is so misleading as
to impair the opportunity to cure.
11
We granted the defendant’s petition for certification as to the following
issues: ‘‘1. Did the Appellate Court properly reverse the trial court’s holding
that a federal pretermination notice for nonpayment of rent must be limited
to rent charges that are a permissible basis for such an eviction under
Connecticut summary process law?
‘‘2. Did the Appellate Court properly conclude that state law is not relevant
in determining whether the information provided in a federal pretermination
notice is so misleading as to render it jurisdictionally defective?’’ Presiden-
tial Village, LLC v. Perkins, supra, 327 Conn. 974.
12
Title 24 of the 2018 edition of the Code of Federal Regulations, § 247.4
(a), provides: ‘‘The landlord’s determination to terminate the tenancy shall
be in writing and shall: (1) State that the tenancy is terminated on a date
specified therein; (2) state the reasons for the landlord’s action with enough
specificity so as to enable the tenant to prepare a defense; (3) advise the
tenant that if he or she remains in the leased unit on the date specified for
termination, the landlord may seek to enforce the termination only by bring-
ing a judicial action, at which time the tenant may present a defense; and
(4) be served on the tenant in the manner prescribed by paragraph (b) of
this section.’’
We note that, although the defendant did not advance this ground in the
trial court, it is apparent that the pretermination notice served on her clearly
fails to comply with subsection (a) (1), in that it does not include a date
on which the tenancy will terminate. We need not base our decision on this
ground in light of our conclusion that the notice is jurisdictionally defective
for another reason that was raised in the trial court.
13
The trial court observed that, ‘‘[t]o the extent that a requirement con-
tained in the HUD Handbook does not appear in the relevant federal regula-
tions, it is fair to ask whether those requirements are legally enforceable
against Section 8 landlords.’’ The trial court did not decide this issue because
the plaintiff did not challenge the binding nature of the HUD Handbook,
many provisions of which are reflected in the HUD model lease used by
plaintiff. We observe that, even when an agency handbook is not legally
binding, courts have relied on the agency’s interpretations of the governing
law therein to the extent that such interpretations are persuasive. See, e.g.,
Burroughs v. Hills, 741 F.2d 1525, 1529 (7th Cir. 1984), cert. denied, 471
U.S. 1099, 105 S. Ct. 2321, 85 L. Ed. 2d 840 (1985); Roberts v. Cameron-
Brown Co., 556 F.2d 356, 360–61 (5th Cir. 1977); Jackson v. Medical Board,
Docket No. CV-07-2188 SVW (RZ), 2008 WL 11378892, *4 (C.D. Cal. April 17,
2008); see also Commissioner of Public Health v. Freedom of Information
Commission, 311 Conn. 262, 268 n.4, 86 A.3d 1044 (2014).
14
This definition also conforms to state law. See General Statutes § 47a-
1 (h) (defining ‘‘[r]ent’’ as ‘‘all periodic payments to be made to the landlord
under the rental agreement’’).
15
In the HUD model lease, the landlord may designate certain utilities as
ones that the tenant is responsible for paying directly to the utility company
or as ones that are ‘‘included in the [t]enant’s rent.’’ In the lease between
the parties in the present case, gas (for hot water and heat) was included
in tenant rent.
16
As state law will be the principal source of defenses to a summary
process action, it is clear that state law will be relevant in some cases as
to whether a pretermination notice is sufficiently specific to allow the tenant
to prepare a defense. Moreover, HUD regulations expressly acknowledge
that state law applies, except if preempted. See 24 C.F.R. § 247.6 (a) (2018)
(‘‘[t]he landlord shall not evict any tenant except by judicial action pursuant
to [s]tate or local law’’); id., § 247.6 (c) (‘‘[a] tenant may rely on [s]tate or
local law governing eviction procedures where such law provides the tenant
procedural rights which are in addition to those provided by this subpart,
except where such [s]tate or local law has been preempted’’).
17
An amicus brief was filed in support of the defendant by the Jerome
N. Frank Legal Services Organization at Yale Law School on its behalf and
on behalf of Connecticut Legal Rights Project, Connecticut Legal Services,
Inc., The Connecticut Veterans Legal Center, and Disability Rights Connecti-
cut, Inc.