462 A.2d 393 | Conn. Super. Ct. | 1982
This is an action for a declaratory judgment and injunctive relief wherein the plaintiffs seek a judgment declaring General Statutes §
The plaintiffs are tenants occupying certain premises in Hartford under oral month-to-month lease agreements. They have so occupied those premises for eight to twelve years under a succession of owner-landlords. *71 On January 25, 1982, the defendant State Bank for Savings filed a notice of lis pendens on the Hartford land records preparatory to commencing an action for foreclosure against the owner of the premises, who was then the plaintiffs' landlord. On January 28, 1982, State Bank mailed a copy of the notice to the owner and shortly thereafter commenced foreclosure proceedings. At no time did State Bank send copies of the notice of lis pendens to the plaintiffs, nor were the plaintiffs made party defendants in the foreclosure action.
On March 8, 1982, State Bank obtained a judgment of strict foreclosure in Superior Court in Hartford and, in accordance with that judgment, title to the premises became absolute in State Bank on May 6, 1982. On June 16, 1982, at the request of the defendant State Bank, the defendant Jonathan Field issued an execution of ejectment in his capacity as assistant clerk of the Superior Court, pursuant to General Statutes §
It may be noted at the outset that it would be appropriate to restrain the ejectment at this time simply because the execution of ejectment that was issued does not direct the officer to eject these plaintiffs but names, instead, the former owner of the premises. All parties concede, however, that a judgment based on that ground alone would only delay final resolution of the controversy since the defendant State Bank would then be able merely to obtain a new execution against the plaintiffs. It is clear to the court that there exists a justiciable controversy between the parties and that the plaintiffs have an interest based on the danger of the *72
loss of their right to possession of the premises in question. They are entitled to request the court to render a declaratory judgment on the constitutional and statutory issues that they raise. Practice Book § 390(a);Horton v. Meskill,
It is axiomatic that the heavy burden of proving unconstitutionality rests on the plaintiffs. HardwareMutual Casualty Co. v. Premo,
Section
Public Acts 1981, No. 81-8, amending General Statutes §
The notice in the present case was recorded on January 25, 1982. The plaintiffs' interest in the property was that of month-to-month tenants. The law in Connecticut is, indisputably, that the interest of such tenants in the premises expires at the end of each month and, if they remain, their interest is newly obtained at the beginning of the next month. Welk v.Bidwell,
In Kukanskis v. Griffith,
The facts in the case at bar differ from those inKukanskis v. Griffith, supra, in that the occupants of the premises here are month-to-month tenants rather than owners. We have no difficulty, however, in holding that these plaintiffs have property rights in the premises which are subject to constitutional protection. The many years of leasehold, albeit on a month-to-month basis, more than adequately substantiate their *75
claim to a property interest in the premises. In Devines
v. Maier
Subsequent to the decision in Kukanskis, the Connecticut legislature enacted Public Acts 1981, No. 81-8. That legislation changes the lis pendens procedure in an obvious attempt to conform it to the Supreme Court's decision, at least as that decision related to the owner of the property. Thus, the recording party must deliver a copy of the notice to the owner; Public Acts 1981, No. 81-8, § 1(c); the owner may apply for a judicial hearing in probable cause to determine whether the lis pendens should be discharged; Public Acts 1981, No. 81-8, § 2; and at the hearing, any owner of record of the property may appear and be heard on the validity of the underlying claim. Public Acts 1981, No. 81-8, § 3. The act does not, however, extend those rights to anyone other than the record owner of the property. We conclude, therefore, that the plaintiffs did not have an opportunity under the statute for a meaningful hearing on the issue of whether the lis pendens should be discharged.
The plaintiff's only remaining opportunity to be heard with regard to the seizure of their property was at the foreclosure proceedings. As indicated above, however, they were not made parties to that action. Under such *76
circumstances, the lis pendens procedure is apparently designed to provide the necessary notice of and entree to the foreclosure action. General Statutes §
Although the Supreme Court in Kukanskis v.Griffith, supra, 506, placed its major emphasis on the requirement of a hearing, the court included in its holding the requirement of adequate notice as a natural and necessary corollary to a meaningful hearing. Indeed, the right to be heard would be hollow and illusory if it were not accompanied by the right to adequate notice of the proceedings. Mullane v. Central HanoverBank Trust Co.
In Mullane v. Central Hanover Bank Trust Co., supra, 314, the United States Supreme Court held that an "elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to *77 present their objections." In that case, the issue was whether notice solely by publication in a newspaper was sufficient for trust beneficiaries whose mailing addresses the trustee had in its records. In concluding that such notice was inadequate, the court examined the alternatives which were available to the trustee and the practical considerations which the trustee was entitled to take into account. Since the trustee would have been able with little difficulty to mail notices individually to those beneficiaries and since the likelihood was extremely remote that actual notice would ever reach them by publication alone, the court found that the latter method, under all the circumstances, was constitutionally inadequate. With respect to those beneficiaries whose addresses were not on file, the court found that they were numerous and that their whereabouts could not readily be ascertained with due diligence. As to those beneficiaries, therefore, the court held that notice by publication alone was sufficient.
In the case at bar, the defendant offered no evidence as to what, if any, would be the practical difficulties in furnishing actual notice by mail or otherwise to the plaintiffs. The evidence did show, on the other hand, that the plaintiffs are essentially only two families, that they had occupied the premises continuously for many years prior to the initiation of the foreclosure proceedings and that a representative of the defendant State Bank had actually visited the property after the foreclosure and had arranged with one of the plaintiffs to send his rent payments to the bank. On the basis of those facts, we do not find that the defendants, in particular the defendant State Bank, faced any serious practical difficulties in ascertaining the identities of the plaintiffs and in providing them with actual notice, by mail or otherwise, of the foreclosure proceedings. In the absence of such actual notice, however, the likelihood that the plaintiffs would ever be apprised of the pending legal action was, in our opinion, even more remote than it was in Mullane v. Central Hanover Bank *78 Trust Co., supra. As month-to-month tenants, the plaintiffs would have to search the land records continuously in order to learn of foreclosure actions that could result in their summary ejectment. Such a task would be totally foreign to the average tenant who, in the normal course of events, would have no reason whatsoever to consult the land records. Furthermore, even if the plaintiffs did check the land records, they would not find any reference to themselves with respect to the property in question. Commenting on analogous facts in Mullane v. Central Hanover Bank Trust Co., supra, 315, the United States Supreme Court observed, "[t]he chance of actual notice is further reduced when, as here, the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention."
For those reasons, we find that the notice procedure established by the lis pendens statute and followed by the defendants in the case at bar was not one which was reasonably calculated to apprise the plaintiffs of the pendency of the foreclosure action so as to afford them an opportunity to present their objections. Accordingly, we hold that the plaintiffs' were denied their right to due process of law, guaranteed them by both the
Although we view our ruling on the plaintiffs' due process argument as essentially dispositive of this action, we deem it appropriate to rule briefly on the plaintiffs' many other claims in order to clarify and limit the holding in the case. First, we disagree with the plaintiffs' contention that the defendants were required to proceed exclusively in accordance with the provisions of General Statutes §§
There is no guarantee in those sections that tenants who are evicted following termination of their lease *79
agreements by lapse of time will receive any longer stay of execution than they would if they were enabled to appear at foreclosure proceedings and request a deferral of law day or other relief. The court's discretion is invoked in either case and we are not persuaded that the difference in procedure necessarily establishes different classes of tenants so as to deny the plaintiffs equal protection of the law. We also disagree with the plaintiffs' argument that §
With respect to the plaintiffs' argument that their occupancy of long standing prior to the filing of the lis pendens creates a property interest under Connecticut law that exempts them from the effect of the notice, we would simply note that it conflicts with the doctrine of