Owner's Default Notice Wasn't Premature

July 31, 2006

A tenant's original monthly rent of $5,188 increased in August 2004. But the tenant continued to pay only $5,188 in August, September, and October. On Oct. 28, 2004, the tenant sent the owner a check for $5,188, but the owner returned it. On Oct. 29, 2004, the owner sent the tenant a default notice. The owner then sued to evict the tenant. The tenant asked the court to dismiss the lawsuit, arguing that the default notice was premature since 1) it had previously sent the owner a check for the rent due and 2) its November rent wasn't due until Nov. 1.

A tenant's original monthly rent of $5,188 increased in August 2004. But the tenant continued to pay only $5,188 in August, September, and October. On Oct. 28, 2004, the tenant sent the owner a check for $5,188, but the owner returned it. On Oct. 29, 2004, the owner sent the tenant a default notice. The owner then sued to evict the tenant. The tenant asked the court to dismiss the lawsuit, arguing that the default notice was premature since 1) it had previously sent the owner a check for the rent due and 2) its November rent wasn't due until Nov. 1. The court dismissed the lawsuit, so the owner appealed.

A Connecticut appeals court reinstated the lawsuit, ruling that the owner could evict the tenant for not paying its increased rent. The court rejected the tenant's argument that the owner's default notice was premature. The check the tenant sent the owner on Oct. 28 wasn't for the increased rent due, the court noted. The check was marked “PE 10-04,” which the tenant's comptroller testified meant “period ending Oct. 2004.” So that check was for the rent due on Nov. 1. Since the tenant directed the owner to apply that check to the November 2004 rent, the owner couldn't have applied it to the rent due. And because the tenant hadn't paid the increased rent due, the tenant was in default when the owner sent it the default notice, the court reasoned.

  • South Sea Co., Inc. v. Global Turbine Component Tech., LLC: No. AC 26626, 2006 Conn. App. LEXIS 264 (Conn. App. Ct. 6/6/06).

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