408 A.2d 936 | Conn. Super. Ct. | 1979
This is a summary process action wherein the plaintiff landlord seeks possession of a retail supermarket store for nonpayment of rent. The defendant tenant has denied the allegations and has pleaded several special defenses.
The present case raises three issues of significance. They are (1) whether the notice to quit complied with the requirements of §
The evidence was not in serious dispute and could reasonably have established the following. The plaintiff, owner of a shopping center in Windsor, entered into a written lease with the defendant, a national supermarket chain, on or about October 1, 1957. Options which were exercised extended the lease to November 30, 1978. The monthly rent was $1885, of which $85.33 represented parking lot maintenance.
In October, 1978, the defendant elected to terminate its retail operation at the leased site. It intended, however, to renew its five-year option for the period from December 1, 1978, to November 30, 1983. The defendant, in accordance with the provisions of the lease, duly exercised its renewal option. The defendant assigned or sublet the lease to a third party now operating a retail supermarket store on the subject premises.
The defendant's real estate division, which is located in Massachusetts and is responsible for the payment of the monthly rent, was alerted to the defendant's termination of business, but was unaware of the defendant's election to renew the lease. The defendant's real estate office incorrectly assumed a contract termination effective November 30, 1978, and therefore, in submitting what it thought was the "last payment" in November, it set off the sum of $638, which represented a tax credit due the defendant from the plaintiff. Understandably, the December rental was not proffered.
On December 20, 1978, the plaintiff served a notice to quit for nonpayment upon the defendant's *299 statutory agent for service of process in Connecticut, the United States Corporation Company. The notice to quit was delivered to the defendant's national office in New Jersey on December 27, 1978. On January 2, 1979, the defendant delivered to the plaintiff the unpaid November balance of $638, in addition to $3599.34 representing the monthly rental payment of $1799.67 for the months of December, 1978, and January, 1979. The rental payments have been retained by the plaintiff since January 3, 1979. The defendant was alerted in early February to the parking maintenance fees and delivered on February 12, 1979, the sum of $170.66, representing the December and January assessments. This sum has also been retained by the plaintiff to date.
The statute does not authorize the service of a notice to quit on an agent of a nonresident corporation. Clearly, the method employed by the plaintiff abbreviates the time frame otherwise provided to a tenant under §
The summary process statute is precise and definite in the method of service it specifies for use in the case of nonresident defendants. The method of service elected by the plaintiff deviated from the statutory mandate. It is axiomatic that the summary process statute, being in derogation of the common law, must be "strictly followed and narrowly construed." Jo-Mark Sand Gravel Co. v.Pantanella,
In Seifert v. April,
The present notice to quit was served in violation of §
In the case at bar, the summary process complaint was served eight days after receipt of the tender of rent. Additionally, there was no proof as to endorsement or negotiation. Under these circumstances, the court would not require a landlord to undertake the affirmative act of returning the tender and, without further evidence, would have found no waiver of a forfeiture.
The defendant, however, introduced two letters delivered to it and signed by the plaintiff's attorney, dated January 19, 1979, and February 15, 1979, in which several violations of the lease were noted. Inexplicably, the letter stated in part that "failure to remedy these violations by March 23, 1979, shall cause the lease signed by the parties to terminate on the above date." (Emphasis added.)
In view of the obvious inconsistency between those letters and the pending eviction proceedings, the court would be required to find a waiver of the lease forfeiture, if any such forfeiture occurred.
Accordingly, judgment may enter for the defendant.