24 Conn. App. 385 | Conn. App. Ct. | 1991
The plaintiff appeals from a judgment of the trial court rendered in part in favor of the defendants in a landlord-tenant dispute. The plaintiff argues that the trial court improperly rendered judgment for the defendants because (1) no evidentiary basis existed for the court’s finding that the lease was “illegal,” and (2) the court’s denial of the plaintiff’s claims was clearly erroneous as a matter of law. We affirm the judgment of the trial court.
The trial court made the following findings of fact. On or about November 17, 1986, the defendants
In October, 1987, the local zoning enforcement agency ordered Longo to remove a commercial real estate sign and to cease and desist the operation of his business because the premises were located in a residential zone. Longo then told the plaintiff about this order.
The trial court further found that a restrictive covenant in the plaintiff’s deed prohibited any commercial use of the premises and that the plaintiff knew of this restrictive covenant prior to the execution of the lease. The plaintiff never informed the defendants of the restriction. Although he tried to assure Longo that the cease and desist order would not be enforced, a subsequent zoning notice caused Longo to wind up his business and to vacate the premises. No rent was paid for the month of December, 1987, and the premises were completely vacated in January, 1988.
The plaintiff subsequently sued the defendants
I
The plaintiff first argues that there was insufficient evidence for the trial court to find that the lease was illegal. We disagree.
“In reviewing a claim of insufficiency of evidence, ‘we review the factual findings below to ensure that they could have been legally, logically and reasonably found, thereby establishing that the trial court could reasonably conclude as it did.’ Ernst Steel Corporation v. Reliance Ins. Co., 13 Conn. App. 253, 258, 536 A.2d 969 (1988).” In re Noel M., 23 Conn. App. 410, 418, 580 A.2d 996 (1990). It is not our function to retry the case or to gauge the credibility of witnesses. In re Jason S., 9 Conn. App. 98, 109, 516 A.2d 1352 (1986). Our job is merely to examine “[i]f there is sufficient evidence in the record in support of the decision of the trial court. . . .” Cashman v. Calvo, 196 Conn. 509, 514, 493 A.2d 891 (1985).
There is absolutely no question here that the lease was being illegally maintained because of both the operative zoning laws and the restrictive covenant contained in the warranty deed. Both Longo and the plaintiff testified that the property was located in a residential zone. In addition, although the deed itself was not introduced into evidence, the plaintiff himself testified on direct examination as to the existence of the restrictive covenant.
II
The plaintiff next challenges the trial court’s failure to allow him to recover rent or fair rental value under the lease. He argues that recovery for fair rental value is allowable under the theory of quantum meruit. That theory was rejected by the trial court. On appeal, the dispositive question regarding this claim is whether recovery for rent or fair rental value for use and occupancy is allowable under an illegal lease.
“The principle that the courts will not enforce the terms of a lease of premises to be used for an illegal purpose has most frequently been applied in actions by the lessor to recover rent, and a recovery in such actions is denied.” 49 Am. Jur. 2d § 44, Landlord and Tenant. While the defense of illegality does not rescind
The plaintiff also argues that he is entitled to recover the fair rental value for use and occupancy for the month of December under the theory of quantum meruit. We first note that the plaintiff has cited no authority whatsoever to support this theory of recovery which he claimed at trial and asserts anew on appeal. His claim rests on the argument that the trial court misapplied certain case law to the facts found in the case. The trial court concluded that quantum meruit provided no relief in this case, relying on the well established rule cited by our Supreme Court in McKnight v. Gizze, 119 Conn. 251, 256, 175 A. 676 (1934), that “ ‘[wjhen the illegality, either in whole or in part, is in the thing which the party seeking to recover was to do, then there can be no recovery upon a quantum meruit.’ ” The trial court concluded that “[t]he thing to be done here and which was prohibited by the covenant, was the suffering of the premises in question to be used for commercial purposes.” The suffering of the premises by the plaintiff for an unlawful use was a part of the illegality; another part was the actual use of the premises for the prohibited commercial purposes. In any event, the trial court’s conclusion that there can be no recovery under quantum meruit when the illegality is the essence of the lease is not a misapplication of the law but is consistent with the aforementioned principle regarding the unenforceability of illegal agreements. Accordingly, the plaintiff cannot prevail on this claim.
Fair rental value in the form of use and occupancy is generally recoverable by the landlord when the tenant in possession of the premises is a tenant at sufferance. Welk v. Bidwell, 136 Conn. 603, 609, 73 A.2d 295 (1950). “ ‘A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated.’ Welk v. Bidwell, [supra,] 608-609.” Rivera v. Santiago, 4 Conn. App. 608, 609-10, 495 A.2d 1122 (1985). “After a notice to quit has been served ... a tenant at sufferance no longer has a duty to pay rent. He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 131, 357 A.2d 910 (1975).” Rivera v. Santiago, supra, 610; see also O’Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990).
None of these principles provides the plaintiff here with a basis for recovery of the reasonable value for use and occupancy because the defendants were never tenants at sufferance. The prerequisite of tenancy at sufferance that the tenant “rightfully” come into possession of the premises was never fulfilled here. The
This case does not present a situation contemplated by § 47a-3c, where recovery for use and occupancy is premised on an absence of a lease agreement or the termination of a valid lease agreement by a notice to quit. See Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 460 A.2d 1311 (1983). Here, there is at issue an illegal lease from which, in essence, the plaintiff would have the courts allow him to recover moneys as a result of that illegal tenancy. This we will not do.
The judgment is affirmed.
In this opinion the other judges concurred.
The lease provided in pertinent part that the premises were to be occupied “only for offices for conducting any and all operations as they relate to a real estate operation.”
Although Ellam left the premises before the cease and desist order was issued, he was properly named as a defendant because his signature remained on the lease.
The plaintiff testified that “[t]here was a restricted covenant in a real estate transaction the way that house, that property was bought from Luck
Again on cross-examination, the plaintiff answered in the following manner:
“Q. Mr. Sippin, you testified that there was a restrictive covenant that prohibited any business use on the property dating back I guess you said about 1940, is that correct?
“A. Correct.
“Q. And you were aware of that at the time you entered into the lease with Mr. Longo and Mr. Ellam, were you not?
“A. Correct.”
The trial court specifically found that “[tjhere is no question but that the lease was illegal pursuant to the restrictive covenant against any commercial use. It is therefore clear that such an undertaking is illegal and voids the agreement. [The plaintiff is therefore not entitled to recover rent under the lease.”
The defendant has not challenged the trial court’s award on the plaintiff’s claim for damages allegedly caused by the defendants. Therefore, we will not address the court’s ruling on that issue.