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Dealing With The “Claim of Exemption”

| May 5, 2020 | Firm News |

Jane Landlord had a tenant, named Joe Tenant who fell behind in his rent payments.  Jane decided she had no other choice but to commence eviction proceedings.  Following all the rules, Jane served a notice to quit and then served a writ summons and complaint on the Joe Tenant and returned her suit to court.  After attending a court ordered mediation session, the parties came to an agreement that Joe Tenant would move out by the last day of the month.  While not perfect, Jane goes home thinking all is well.  However, lurking in the shadows is a person Jane never heard about – “John Doe”.  Now John Doe files a piece of paper with the court called a “Claim of Exemption”, in which John alleges that he lived in the apartment with Joe Tenant and his occupancy started prior to service of the notice to quit on Joe Tenant.  Therefore, John Doe argues that the judgment against Joe Tenant does not apply to him and he cannot be evicted.  “SAY IT ISN’T SO”, cries Jane Landlord.

Jane calls a seasoned eviction attorney for advice and finds out the following information about so called “Claims of Exemption”:

  1. A claim of exemption is a creature of statute.  Namely, C.G.S. §47a-26h(c) provides that “any occupant not named in the action…whose occupancy commenced prior to the notice to quit…may at any time before or after judgment, but prior to issuance of an execution… file under oath a claim of exemption from such action”.
  2. The clerk of the court is required to schedule a hearing on said claim not more than seven days after such claim.
  3. At the hearing John Doe will be required to prove that his occupancy took place prior to service of the notice to quit or that his occupancy was commenced or continued with the permission or consent of Jane Landlord.  Then, the burden of proof shall be on Jane Landlord to prove that she did not know of the presence of the occupant or the name of the occupant as the case may be.  If Jane Landlord accepted payments of rent from John Doe, then she is presumed to have known of the presence and the name of the occupant.
  4. If the court finds the facts in favor of John Doe, then Jane Landlord will need to “fix” the problem.  If the court finds that John Doe is bound by the action, the judgment stands and execution may take place, removing Joe Tenant and John Doe.

After a long silence, Jane tells the attorney that she thought a guy was hanging around the apartment, but that she didn’t think he lived there.  Jane also mentions that when she was at the property a while back she noticed two names on the mailbox for Joe Tenant’s unit, but she thought nothing of it.  As she relates the facts to her attorney Jane realizes that she goofed up.  She should have added “John Doe” to her notice to quit and made him a party to the eviction.  Jane is upset… “Now what?” She asks the attorney.  “Do I have to start over?”

Like any good lawyer, the attorney tells Jane that all is not lost.  In fact, the statute provides that in a situation such as hers, where she should have served John Doe a notice to quit, she can do so now.  If John Doe is still there after the quit date, she can then serve John Doe with an amended writ, summons and complaint adding John Doe as a party defendant to the action.  Jane can then proceed against John Doe in the same manner as in the original eviction action.  Jane lost some time, but at least she won’t have to start over and pay for a new court entry fee.

Jane then asks the attorney for some advise so that she won’t get caught in a situation such as this again.  “Well” replied the attorney, “first, always do a little investigation as to who is in the unit.  Second, when you make a deal with the tenant at court, ask him if anyone lives with him.  If he says yes, ask him since when.  If the unknown person was there prior to the notice to quit, you know you may have a problem.  If he says no, put a statement in the agreement you submit to the judge which certifies that he is the only adult occupant in the unit or that the disclosed unknown occupant entered into possession after service of the notice to quit.”  “Lastly”, the attorney says, “when you have suspicions of other occupants, add ‘John Doe’ and ‘Jane Doe” to your notice to quit and allege that they never had the right or privilege to occupy the premises”.

Jane thanks the attorney for his help, thinking to herself “maybe hiring an attorney at the start is a smart move considering the complexity of eviction law in Connecticut!”

Always something to consider.