| Eviction through Summary Process and Ejectment after Foreclosure |
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OLR Research Report
The Connecticut General Assembly
OFFICE OF LEGISLATIVE RESEARCH
November 21, 1995 95-R-1386
FROM: Helga Niesz, Principal Analyst
RE: Eviction through Summary Process and Ejectment after Foreclosure
You asked whether in CGS § 47a-23c(b)(1), which is part of the summary process eviction statute, the words “or other action to dispossess a tenant” include an ejectment after a foreclosure.
The Office of Legislative Research does not give legal opinions and the following should not be considered one.
It is not entirely clear whether the protections for elderly, blind, and disabled tenants from eviction under summary process also apply to tenants subjected to an execution of ejectment after a foreclosure (which, however, can only happen if they are named as parties in the foreclosure action). The general nature of the phrase “or other action to dispossess a tenant” appears on its face to cover them, according to several experts we spoke to, but others disagree. We found no specific reported case law on this particular point. But a recent unreported Superior Court case, which we are trying to obtain a copy of, apparently extends the protections to ejectments after a foreclosure. This case will apparently be appealed. We have enclosed two reported cases that do not directly speak to this point, but that say the protections have to be construed liberally. If the tenants are not named in the foreclosure action, the lender must evict them under the summary process eviction section, where the protections clearly apply.
The statute's legislative history, which we researched, did not address this point. The phrase in question was added in 1983 by PA 83-474, the common interest ownership act. The prior law was more limited and referred only to actions under 47a-23, the summary process statute.
PROTECTED GROUPS UNDER 47a-23c
CGS § 47a-23c prohibits landlords from evicting certain protected tenants through summary process except for certain grounds.
The protected group includes tenants who live in a building or complex that has five or more separate dwelling units or who live in a mobile manufactured home park and who are either:
1. at least 62 years old or whose spouse, sibling, parent, or grandparent is that age and permanently resides with the tenant;
2. blind, as defined in CGS § 1-1f; or
3. physically disabled, as defined in CGS § 1-1f, but only if the disability can be expected to result in death or to last continuously for at least 12 months.
For condominiums or other common interest communities, the protections apply only to:
1. a conversion tenant who is in the protected class;
2. a conversion tenant who is not in the protected class but, during a transition period, is living in a conversion condominium created after May 6, 1980 or any other common interest community created after December 31, 1982; or
3. a conversion tenant who is not in the protected class under this statute but is otherwise protected by Public Act 80-370; and
4. a tenant who is not a conversion tenant but is in the protected class under this statute if his landlord owns at least five units in the common interest community where the dwelling unit is located.
PROHIBITED ACTIONS AND EXCEPTIONS
The statute prohibits a landlord from bringing an action of summary process or other action to dispossess the tenants described above except if:
1. the tenant does not pay his rent;
2. the tenant refuses to agree to a fair and equitable rent increase;
3. the tenant fails to materially comply with sections of the statute that set out the tenant's responsibilities for upkeep of the premises and this failure materially affects other tenants' health and safety or the physical condition of the premises;
4. the rental agreement becomes void because the premises are used for illegal purposes;
5. the tenant does not materially comply with the landlord's rules and regulations;
6. the landlord intends to permanently remove the unit from the housing market; or
7. the landlord intends to use the unit as his principal residence (CGS § 47a-23c(b)(1).
The tenant cannot be dispossessed for reasons no. 2, 6, and 7 above during the term of an existing rental agreement (CGS § 47a-23c(b)(3).
APPLICATION TO EJECTMENTS AFTER FORECLOSURE
Under the statute, a landlord cannot bring an action of summary process or other action to dispossess the protected tenants except for good cause as listed above. At first look, it would appear that the phrase “or other action to dispossess” would cover any kind of action to dispossess these protected tenants, regardless of whether it results from action taken under 47a-23 or under the ejectment following foreclosure under 49-22, although there is no specific reference to this section in the all-encompassing language of the protective statute.
CGS § 49-22 concerning ejectment after foreclosure allows the lender to demand possession of the property from the owner in the foreclosure action and allows the court to issue an execution of ejectment commanding the officer to eject the person or persons in possession. But this statute states that no execution of ejectment can be issued against anyone in possession who is not a party to the action except a transferee or lienor who is bound by the judgment by virtue of a lis pendens. In other words, it seems that unless the lender names the tenants in the foreclosure action, he cannot eject them under this statute at all and must do so after the foreclosure under the CGS § 47a-23 summary process provisions, where the protections clearly apply.
If the lender does name the tenants in the foreclosure action, he can generally eject them, but if they fall into the protected classes under CGS § 47a-23c they can apparently still use that as a defense because that statute now refers not only to summary process but to any “other action to dispossess a tenant . . . . ” Both Victor Feigenbaum, Chief Clerk of the Housing Court in Hartford, and Raphael Podolsky, an attorney with the Legal Assistance Resource Center, told us that the protections do apply to ejectments after foreclosure because the statute is clear on its face and, since it was the legislature's intent to protect the elderly, blind, and disabled people from eviction except for good cause, it would be a very unequal result to protect them only where the person seeking to evict them is their landlord and not where the person seeking to eject them is the bank that has foreclosed.
On the other hand, Denis Caron, an attorney who is the author of Connecticut Foreclosures, gave us his initial impression that the summary process protections of certain tenants from eviction do not extend to ejectments after foreclosure. Tom Mongillow of the Connecticut Bankers' Association pointed us to a recent, apparently unreported Superior Court case, Berkeley Federal Savings Bank v. Whitney Development Corporation (CV 93003540355) July 24, 1995, which apparently deals with this very issue and, for the first time, extends the protection of 47a-23c to ejectments after foreclosure. Mr. Mongillow informed us that he had full confidence this decision would not stand on appeal, because (1) the law has historically not been applied that way and (2) it would be a serious barrier to a speedy foreclosure process and would hamper the foreclosing banks' ability to rehabilitate a foreclosed property and get it back on the marked quickly to recoup its money. We are attempting to obtain a copy of this case and will forward it to you as soon as we receive it.