Canton v. Cadle Properties of Connecticut, Inc.

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TOWN OF CANTON v. CADLE PROPERTIES
OF CONNECTICUT, INC.
(SC 19225)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued January 6—officially released May 19, 2015
Daniel J. Krisch, with whom was Kenneth R. Slater,
Jr., for the appellant (plaintiff).
Eric H. Rothauser, with whom were Jay B. Wein-
traub and, on the brief, John L. Bonee III, for the appel-
lee (intervening defendant).
Opinion
McDONALD, J. This certified appeal requires us to
consider whether General Statutes § 12-163a, under
which a court may appoint a receiver of rents when
real property taxes due to a municipality are delinquent,
authorizes the receiver to: (1) evict a tenant from the
property in the event of a default; (2) lease the property
to a new tenant; and (3) use legal process to collect
back rent allegedly due. The Appellate Court concluded
that none of these acts falls within the scope of a receiv-
er’s authority under the statute. See Canton v. Cadle
Properties of Connecticut, Inc., 145 Conn. App. 438,
450–58, 77 A.3d 144 (2013). We conclude that § 12-163a
does authorize a receiver to use legal process to collect
rent due prior to the date of the receiver’s appointment,
but we agree with the Appellate Court’s conclusions in
all other respects. Accordingly, we affirm in part and
reverse in part the Appellate Court’s judgment, which
had reversed in part the judgment of the trial court
insofar as that court had modified the receivership
orders to confer authority to undertake the three afore-
mentioned actions.
The record reveals the following undisputed facts and
procedural history. The defendant, Cadle Properties of
Connecticut, Inc. (Cadle), is the owner of real property
in Canton (property).1 After Cadle effectively aban-
doned the property, which is allegedly environmentally
contaminated, the plaintiff, the town of Canton (town),
filed a petition seeking the appointment of a receiver
of rents pursuant to § 12-163a. The petition alleged that
Cadle had failed to pay real property taxes due to the
town in the amount of $362,788.59, plus interest and
lien penalties, for a total amount due of $884,263.04.
The petition further alleged that, during all relevant
periods, the property was occupied by a Volkswagen
dealership owned by M & S Associates, LLC (tenant),
which had a legal obligation to pay rent to Cadle.2 The
court, having found that Cadle owed the town taxes
in the amount of $358,220.04, granted the petition to
appoint the receiver, and issued orders authorizing the
receiver to collect all rents or use and occupancy pay-
ments due with respect to the property.
After the receiver served the tenant with a notice
to quit possession of the property on the ground of
nonpayment of rent, the tenant filed a motion to inter-
vene in the town’s action against Cadle in order to
challenge the receiver’s authority to take legal action
against it. Shortly thereafter, the receiver filed a motion
to modify the receivership order to authorize it to pur-
sue an eviction of the tenant in the event of nonpayment
of rent, to lease the property to a new tenant, and to
use all legal process to collect back rent. Prior to acting
on the tenant’s pending motion to intervene, the court
granted the receiver’s motion to modify without
objection.
Subsequently, the trial court granted the tenant’s
motion to intervene in the action. The tenant then filed
a motion to remove the receiver, asserting, inter alia,
that the receiver had exceeded its authority under § 12-
163a by serving it with a notice to quit and by bringing
an action to collect back taxes and prior rents. The
court denied the motion for removal, reasoning that,
because the receiver acts in the owner’s stead, it would
not be constrained from collecting back rent or evicting
a nonpaying tenant through legal process. The court
noted, however, that its order did not authorize the
receiver to collect any back taxes owed by the tenant.3
On appeal to the Appellate Court, the tenant claimed,
inter alia, that the trial court improperly had denied
its motion to remove the receiver because the court
exceeded its authority under § 12-163a when it modified
its order to allow the receiver to evict the tenant, to
secure a new tenant, and to bring an action against the
tenant for all rents due, including back rents allegedly
owed. Id., 450. The Appellate Court agreed. That court
concluded that the receiver’s responsibilities are pre-
scribed in § 12-163a and cannot be expanded by the trial
court. Id., 454. Those duties, according to the Appellate
Court, are limited to collecting rents that in turn are to
be used to pay taxes and utilities due after the date of
the receiver’s appointment. Id., 455–58. Although the
Appellate Court concluded that the statute was ambigu-
ous as to the receiver’s authority to collect back rent,
it reasoned that a construction limiting the collection
of rent to that which is due after the receiver’s appoint-
ment was more harmonious with the receiver’s author-
ity to pay only those taxes and utilities due after the
date of the receiver’s appointment. Id., 457–58. Accord-
ingly, the Appellate Court reversed the trial court’s judg-
ment insofar as it had granted the receiver’s motion
to modify the receivership orders, but it affirmed the
judgment insofar as it had denied the tenant’s motion
to remove the receiver. Id., 458. The town’s certified
appeal to this court followed. See Canton v. Cadle Prop-
erties of Connecticut, Inc., 310 Conn. 941, 79 A.3d
893 (2013).
The scope of a receiver’s authority under § 12-163a
is a question of statutory construction subject to plenary
review and well established principles. See General
Statutes § 1-2z (setting forth plain meaning rule); Teresa
T. v. Ragaglia, 272 Conn. 734, 742, 865 A.2d 428 (2005)
(‘‘[w]hen a statute is not plain and unambiguous, we
also seek interpretive guidance from the legislative his-
tory of the statute and the circumstances surrounding
its enactment, the legislative policy it was designed to
implement, the statute’s relationship to existing legisla-
tion and common-law principles governing the same
general subject matter’’).
Section 12-163a (a) sets forth the circumstances
under which a municipality may seek the appointment
of a receiver of rents and the authority vested in the
receiver upon such appointment. That subsection pro-
vides in relevant part: ‘‘Any municipality may petition
the Superior Court or a judge thereof, for appointment
of a receiver of the rents or payments for use and
occupancy for any property for which the owner, agent,
lessor or manager is delinquent in the payment of real
property taxes. . . . The receiver appointed by the
court shall collect all rents or payments for use and
occupancy forthcoming from the occupants of the
building in question in place of the owner, agent, lessor
or manager. The receiver shall make payments from
such rents or payments for use and occupancy, first
for taxes due on and after the date of his appointment
and then for electric, gas, telephone, water or heating
oil supplied on and after such date. The owner, agent,
lessor or manager shall be liable for such reasonable
fees and costs determined by the court to be due the
receiver, which fees and costs may be recovered from
the rents or payments for use and occupancy under the
control of the receiver, provided no such fees or costs
shall be recovered until after payment for current taxes,
electric, gas, telephone and water service and heating
oil deliveries has been made. The owner, agent, lessor or
manager shall be liable to the petitioner for reasonable
attorney’s fees and costs incurred by the petitioner,
provided no such fees or costs shall be recovered until
after payment for current taxes, electric, gas, telephone
and water service and heating oil deliveries has been
made and after payments of reasonable fees and costs
to the receiver. Any moneys remaining thereafter shall
be used to pay the delinquent real property taxes
. . . .’’ General Statutes § 12-163a (a).
We begin with the principal dispute in this appeal,
namely, whether the Appellate Court properly deter-
mined that the receiver may not collect back rent due,
but only rent that is due after the receiver’s appoint-
ment. The crucial sentence in § 12-163a (a) provides:
‘‘The receiver appointed by the court shall collect all
rents or payments for use and occupancy forthcoming
from the occupants of the building in question in place
of the owner, agent, lessor or manager.’’ We agree with
the Appellate Court that this sentence is ambiguous,
especially as to the meaning of the term ‘‘forthcoming.’’
See Canton v. Cadle Properties of Connecticut, Inc.,
supra, 145 Conn. App. 455. Nonetheless, we are per-
suaded that the more logical and compelling construc-
tion is the broader reading of the statute.
We put considerable weight on the fact that the stat-
ute refers to ‘‘all rents,’’ rather than simply ‘‘rent.’’ See
General Statutes § 12-163a (a). The words ‘‘all’’ and
‘‘rents’’ (plural), individually and collectively, support
the broadest possible reading. Indeed, it is difficult to
ascribe any other logical meaning to the phrase ‘‘all
rents’’ and still give full effect to both terms. ‘‘All’’ does
not modify ‘‘occupants.’’ Therefore, we cannot reason-
ably construe it to mean the collection of rent from
every occupant. Rather, the term all rents suggests mul-
tiple kinds or sources (type or temporal) of rent. The
fact that the receiver is to collect all rents ‘‘in place
of the owner,’’ who undoubtedly would be entitled to
collect past and presently due rent, lends further sup-
port to the broader construction. See General Statutes
§ 12-163a (a). Although the term ‘‘forthcoming’’ does
not clearly convey past and presently due, at least one of
the various definitions of that term would be consistent
with that meaning. See, e.g., The American Heritage
Dictionary of the English Language (3d Ed. 1992) (defin-
ing forthcoming as ‘‘[a]vailable when required or as
promised’’); Random House Unabridged Dictionary (2d
Ed. 1993) (defining forthcoming as ‘‘ready or available
when required or expected’’).
We are mindful of the fact that, in other receivership
schemes referenced in § 12-163a, the legislature used
terms that more plainly include past due rent. See Gen-
eral Statutes § 12-163a (e) (requiring receivership pro-
ceedings initiated pursuant to General Statutes §§ 47a-
14a to 47a-14h or pursuant to General Statutes §§ 47a-56
to 47a-56i to take priority over receivership established
under § 12-163a); General Statutes § 47a-14d (b) (1)
(providing for ‘‘the rents due on the date of entry of
such judgment and rents to become due subsequent
thereto from all occupying such property [to] be depos-
ited with a receiver’’); General Statutes § 47a-56d (c)
(‘‘[t]he receiver shall collect the accrued and accruing
rents’’). Nonetheless, we are persuaded that the use
of the term ‘‘all rents’’ effectively conveys the same
substance. To the extent that this phrase is ambiguous,
we note that the sponsor of the bill enacted as § 12-
163a referred to the bill as applying to back rent. See
Conn. Joint Standing Committee Hearings, Planning and
Development, Pt. 1, 1995 Sess., p. 50, remarks of Repre-
sentative Robert D. Godfrey; see also Public Acts 1995,
No. 95-353, § 1.
Finally, we observe that § 12-163a (a) authorizes the
receiver to collect rents ‘‘in place of the owner,’’ without
indicating or limiting the means by which the receiver
may do so. As such, it seems reasonable to infer that
the statute authorizes the receiver to use the legal
means that otherwise would have been available to the
owner to collect such unpaid obligations.4
To the extent that the Appellate Court assumed that
reading § 12-163a as limiting the receiver’s authority to
the collection of rent due subsequent to its appointment
would be more consistent with other authority con-
ferred on the receiver, the predicate for its conclusion
was flawed. Specifically, the Appellate Court deter-
mined that the statute authorizes the receiver to pay
only those tax and utility bills that are due on or after
the date of the receiver’s appointment. See Canton v.
Cadle Properties of Connecticut, Inc., supra, 145 Conn.
App. 457–58. It therefore reasoned that imposing a simi-
lar temporal limit on the receiver’s collection of rent
was the most harmonious construction. Id. The Appel-
late Court appears to have overlooked the fact that
§ 12-163a (a) sets forth an order of priority of payment,
under which payment is made: ‘‘first for taxes due on
and after the date of [the receiver’s] appointment and
then for electric, gas, telephone, water or heating oil
supplied on and after such date’’; next, for the fees and
costs of the receiver and the petitioner’s attorney; and
finally, that ‘‘[a]ny moneys remaining thereafter shall
be used to pay the delinquent real property taxes
. . . .’’ (Emphasis added.) General Statutes § 12-163a
(a); cf. Southern Connecticut Gas Co. v. Housing
Authority, 191 Conn. 514, 527, 468 A.2d 574 (1983) (cit-
ing similar language in General Statutes § 16-262f as
setting ‘‘statutory priority which allocates collected
rentals to arrearages only after current charges, receiv-
ership fees, and attorney’s fees have first been paid’’).
Thus, because the receiver may use rents collected to
pay taxes that became delinquent before its appoint-
ment, our obligation to harmonize the various terms of
a statute to achieve a consistent outcome; see Stewart
v. Watertown, 303 Conn. 699, 711, 38 A.3d 72 (2012);
does not counsel in favor of a construction limiting the
receiver’s authority to the collection of rent due on or
after the receiver’s appointment.
Having determined that the receiver may collect past
due rent, we turn to the question of whether § 12-163a
confers additional authority on the receiver to evict a
defaulting tenant and to lease the premises to a new
tenant. A review of the statute reveals that the only
authority expressly conferred on the receiver is to
undertake the following actions: (1) collect funds; and
(2) make payments. There is no authority to evict a
tenant or to enter into a new lease. Although § 12-163a
(a) authorizes the receiver to collect use and occupancy
payments, which arise after a notice to quit has been
served on a tenant; see Waterbury Twin, LLC v. Renal
Treatment Centers–Northeast, Inc., 292 Conn. 459, 473
n.18, 974 A.2d 626 (2009);5 the statute does not authorize
the receiver to cause such a notice to be served (or
reference chapter 830 of the General Statutes
addressing landlord remedies), to take possession of
the property, or to undertake any other action in the
owner’s stead with respect to the property except col-
lecting payment from the building’s occupants. Indeed,
the authority conferred under § 12-163a is quite narrow
in comparison to some other receivership statutes. Cf.
General Statutes § 42-110f (receiver shall have power
to take property into his possession and to sell, convey
and assign same); General Statutes § 52-505 (receiver
shall be vested with property to manage and use for
benefit and support of members of certain associations,
communities or corporations); General Statutes § 52-
509 (receiver to hold business and all property, real
and personal, belonging to partnership); Connecticut
Light & Power Co. v. DaSilva, 231 Conn. 441, 446, 650
A.2d 551 (1994) (noting with respect to § 16-262f, on
which § 12-163a is modeled,6 that ‘‘wide-ranging equita-
ble and discretionary principles that govern rent receiv-
erships in ordinary mortgage foreclosure proceedings’’
do not apply).
Moreover, because there is no indication in § 12-163a
that the legislature has conferred the extraordinary
authority on the receiver to enter into a contract with
a new tenant that would bind the owner of the property,7
it would make no sense to construe the reference to
use and occupancy payments as implicitly authorizing
the receiver to evict the tenant. It is only when both
actions may be taken that the receiver would be able
to collect payments. That authority must rest with the
owner, who has every incentive in the usual case to
evict and replace a defaulting tenant in order to remedy
the deficiency and regain access to the rental income.
Therefore, the authority to collect use and occupancy
payments, reasonably construed, simply ensures that,
if a lease has expired or an owner has served a notice
to quit on a tenant, either before or after the receiver’s
appointment, the receiver may collect payments for use
and occupancy, just as it may collect rent payments.
Thus, the text of the statute weighs heavily against a
construction permitting a receiver appointed under
§ 12-163a to evict a defaulting tenant and to lease the
premises to a new tenant.
To the extent that the reference to use and occupancy
payments gives rise to any ambiguity as to the receiver’s
authority to evict a defaulting tenant, we find no persua-
sive evidence in the legislative history that the legisla-
ture intended to confer such authority. That history
makes clear that the legislature intended to provide a
less drastic, expensive and time-consuming mechanism
than foreclosure to recover delinquent taxes, as it
already had afforded to utility companies to collect
delinquent utility payments. See Conn. Joint Standing
Committee Hearings, supra, pp. 50–51, 53, remarks of
Representative Godfrey; id., pp. 124–26, remarks of Eric
Gottschalk, corporation counsel for the city of Danbury.
The only authority referenced in that history vis-a´-vis
the property is the collection of rent. See id., pp. 50–
51, 124–26.
Because we conclude that the receiver is authorized
to use legal process to collect past due rent, we disagree
with the town’s contention that, in the absence of
authority to replace a defaulting tenant with one that
will provide a consistent revenue stream to discharge
the tax obligations, ‘‘§ 12-163a would be a toothless
lion, able to roar, but not bite.’’ Moreover, the town’s
argument erroneously assumes that the property owner
generally lacks an incentive to regain the income pro-
duced from its rental property. It is doubtful that the
legislature had in mind the unusual circumstances of
abandoned rental property at issue in this case. To the
extent that the town believes that greater authority is
essential to vindicating its interests, especially in cases
like the present one, in which the owner has abandoned
the property and purported environmental contamina-
tion makes foreclosure of the property an impractical
alternative; see, e.g., General Statutes § 12-157; General
Statutes § 12-181 et seq.; its recourse lies with the legis-
lature.
The judgment of the Appellate Court is reversed only
as to the reversal of the trial court’s judgment granting
the receiver’s motion for modification allowing the col-
lection of back rent allegedly due and the case is
remanded to that court with direction to affirm the trial
court’s judgment in that respect; the judgment of the
Appellate Court is affirmed in all other respects.
In this opinion ROGERS, C. J., and PALMER,
ESPINOSA and VERTEFEUILLE, Js., concurred.
1
Cadle did not appear in the trial court, and neither Cadle nor Boardwalk
Realty Associates, LLC, which was appointed as receiver by the trial court,
are parties to this appeal. For convenience, we refer to Boardwalk Realty
Associates, LLC, generically as the receiver in this opinion.
2
The lease between Cadle and the tenant expired in 2001. The tenant
represented to the trial court that it thereafter continued to occupy the
premises on a month to month oral lease, but did not place in escrow rent
due after Cadle ‘‘essentially disappeared.’’
3
The tenant conceded before the trial court that, under its original lease
with Cadle, it had agreed to include certain taxes due to the town in its
payments to Cadle.
4
As we explain in footnote 5 of this opinion, when an owner causes a
notice to quit to be served on a tenant, such an action is not used to collect
past due rent, but to recover possession of the premises.
5
‘‘[A]fter a notice to quit possession has been served, a tenant’s fixed
tenancy is converted into a tenancy at sufferance. . . . A tenant at suffer-
ance is released from his obligations under a lease. . . . His only obligations
are to pay the reasonable rental value of the property which he occupied
in the form of use and occupancy payments . . . and to fulfill all statutory
obligations.’’ (Internal quotation marks omitted.) Waterbury Twin, LLC v.
Renal Treatment Centers–Northeast, Inc., supra, 292 Conn. 473 n.18; see
also General Statutes § 47a-3c (‘‘[i]n the absence of agreement, the tenant
shall pay the fair rental value for the use and occupancy of the dwelling
unit’’). We note, however, that a notice to quit is itself not a method by
which an owner collects or receives rents, but rather is a legal mechanism
to regain possession of the premises from the defaulting tenant.
6
See Conn. Joint Standing Committee Hearings, supra, pp. 49–50, remarks
of Representative Godfrey (explaining as sponsor of bill, subsequently codi-
fied as § 12-163a, that bill ‘‘gives municipalities the same kind of power we
currently give to utilities, which can petition for receivership of rent for
back payment of electric, water, power,’’ referring to § 16-262f).
7
In addition to the absence of any express authority for the receiver to
enter into a new lease, the statute provides no basis to infer a permissible
term for such a lease, thus leaving questions as to whether it would be
limited to some presumed period of the receivership or beyond that period.