914 North Colony, LLC v. 99 West, LLC, 226 Conn. App. 720 (2024)

Citation: 914 North Colony, LLC v. 99 West, LLC, 226 Conn. App. 720 (2024)
Parent Document: 914 North Colony, LLC v. 99 West, LLC, 226 Conn. App. 720 (2024)
Jurisdiction: Connecticut (state)
Effective Date: 2024-07-16
Original Source: https://www.courtlistener.com/opinion/10131828/914-north-colony-llc-v-99-west-llc/ ↗

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was on notice that all payments made after service
          of the notice to quit would be accepted for use and
          occupancy only, and not for rent. As support for its
          argument, the plaintiff relies on this court’s decision in
          O & P Realty v. Santana, 17 Conn. App. 314, 551 A.2d
          1287, cert. denied, 210 Conn. 812, 556 A.2d 610 (1989),
          in which we held that a landlord may accept rent and
          characterize it as use and occupancy if the landlord has
          notified the tenant that any payments made after service
          of the notice to quit would be accepted only as use and
          occupancy payments. Id., 318. The plaintiff’s reliance
          on O & P Realty is misplaced considering the record
          before the trial court in the present case.
             To be sure, use and occupancy disclaimers are both
          permitted and encouraged in a notice to quit, as they
          ‘‘[avoid] misleading tenants who tender late payments
          and . . . [insulate] the summary process action from
          being flawed by the acceptance of [payment] after com-
          mencement of the summary process.’’ (Internal quota-
          tion marks omitted.) Id., 318–19. The inclusion of a use
          and occupancy disclaimer, however, does not preclude
          a determination that the tenancy was reinstated by way
          of subsequent conduct, especially when, as here, the
          conduct included sending regular invoices that specifi-
          cally identified the amounts due as rent or other
          amounts due pursuant to the lease.
             Indeed, in the present case, the plaintiff’s inconsistent
          characterization of what the lease referred to as base
          rent, sometimes as ‘‘Rent’’ and sometimes as ‘‘Use &
          Occupancy,’’ undermines the effectiveness of the use
          and occupancy disclaimer in avoiding confusion. Spe-
          cifically, shortly after the notice to quit was served, the
          defendant tendered $16,156.68, representing the base
          rent due under the lease for April and May, 2020. There-
          after, on May 20, 2020, just a little more than one week
          after DiNardo and Corrigan spoke, the plaintiff sent
          the defendant an invoice for June, 2020, requesting the
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