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BOARDWALK REALTY ASSOCIATES, LLC v. M & S
GATEWAY ASSOCIATES, LLC, ET AL.
(SC 20395)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 12-163a (a)), a municipality may request that the
Superior Court appoint a receiver of rents or use and occupancy pay-
ments for any property for which the owner is delinquent in the payment
of real property taxes, and the ‘‘receiver appointed by the court shall
collect all rents or payments for use and occupancy forthcoming from
the occupants of the [property] in question in place of the owner . . . .’’
The plaintiff, which had been appointed, pursuant to § 12-163a (a), to serve
as the receiver of rents for certain real property owned by C Co., sought
to recover unpaid rent and use and occupancy fees from the defendants,
M Co. and V Co., which have operated an automobile dealership on that
property since 2001 without paying rent. C Co. leased the property to
M Co. for a three year term, and M Co. thereafter exercised its option
to renew the lease for another three year term, which expired in 2001.
V Co., which is owned by M Co., subleased the property from M Co.
pursuant to an agreement that incorporated the terms and rent obliga-
tions of the lease. Shortly before the lease expired, C Co. effectively
abandoned the property, which was allegedly contaminated and the
subject of an ongoing enforcement action by the Department of Environ-
mental Protection. The defendants thereafter continued to operate the
dealership on the property, but, since 2001, they have failed to pay rent
or to make use and occupancy payments to C Co., or to pay property
taxes to the town in which the property is located. The parties filed
separate motions for summary judgment. The defendants claimed that
a receiver of rents appointed under § 12-163a has no authority to seek
rent or use and occupancy payments with respect to an abandoned
property, whereas the plaintiff claimed that it was entitled to seek rent
and use and occupancy payments because, even though the lease with
C Co. had expired, the defendants remained in possession as tenants,
either at will or at sufferance. The trial court denied the plaintiff’s
motion and granted the defendants’ motion, concluding that C Co., by
abandoning the property and failing to pursue any of its rights against
the defendants, had allowed the defendants to occupy the property
without a rental obligation and that there was no rent for the plaintiff
receiver to collect. On the plaintiff’s appeal, held that the trial court
correctly concluded that § 12-163a did not authorize the plaintiff to
collect rent or use and occupancy payments from the defendants, as
the remedy provided by that statute does not extend to situations in
which a tax delinquent property owner is absent and not pursuing such
rent or payments from the occupant, and, accordingly, the trial court
properly granted the defendants’ motion for summary judgment: because
the language in § 12-163 (a) was ambiguous as to whether a receiver is
limited to collecting rent or use and occupancy payments that are the
product of an existing landlord-tenant relationship or whether a receiver
has the authority to establish those payments in the first instance, this
court considered extratextual sources, including case law interpreting
the statute, and concluded that, under the circumstances of the present
case, the narrow authority conferred on the receiver by § 12-163a did
not permit the plaintiff to establish rent or use and occupancy payments
in the first instance; moreover, that conclusion was supported by the
legislative history, which indicated that the statute was viewed as a
remedy that would avert the abandonment of properties, rather than
being intended to apply to abandoned property or to authorize receivers
to impose rent or use and occupancy payments in the place of a property
owner who has abandoned the property; furthermore, the legislature,
as the governmental body primarily responsible for formulating public
policy, was best situated to address the unusual circumstances presented
in this case, in which the town in which C Co.’s property was located
sought to recoup unpaid property taxes on an abandoned property
utilized by an apparently successful commercial enterprise.
Argued November 23, 2020—officially released August 13, 2021*
Procedural History
Action to recover damages for, inter alia, unpaid rent,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, Housing Session, where
the court, Miller, J., denied the plaintiff’s motion for
summary judgment as to liability, granted the defen-
dants’ motion for summary judgment and rendered
judgment for the defendants, from which the plaintiff
appealed. Affirmed.
Kenneth R. Slater, Jr., with whom was Logan A.
Carducci, for the appellant (plaintiff).
Eric H. Rothauser, with whom were Jay B. Wein-
traub and, on the brief, John L. Bonee III, for the appel-
lees (defendants).
Opinion
ROBINSON, C. J. This appeal is the most recent battle
in the efforts of the town of Canton (town) to collect
unpaid property taxes on a parcel of commercial real
property (property) that was effectively abandoned in
2001 by its owner, Cadle Properties of Connecticut, Inc.
(Cadle), and on which the defendants, M & S Gateway
Associates, LLC (Gateway) and Mitchell Volkswagen,
LLC (Mitchell),1 have operated an automobile dealer-
ship since 1995. The plaintiff, Boardwalk Realty Associ-
ates, LLC, which is the court-appointed receiver of rents
pursuant to General Statutes § 12-163a,2 appeals3 from
the trial court’s judgment, rendered in accordance with
the court’s granting of the defendants’ motion for sum-
mary judgment with respect to the plaintiff’s complaint
seeking rent, as well as use and occupancy payments,
from the defendants. On appeal, the plaintiff contends
that the trial court incorrectly concluded that the plain-
tiff lacked authority under § 12-163a to impose and col-
lect rent or use and occupancy payments in the place
of Cadle, the tax delinquent owner that effectively aban-
doned the property in 2001. We conclude that a receiver
appointed under § 12-163a is not statutorily authorized
to impose and collect rent or use and occupancy pay-
ments under the circumstances of this case, when the
property has been abandoned by the owner prior to the
appointment of the receiver and there is no existing
obligation for the receiver to enforce. Accordingly, we
affirm the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history, much of which is set forth in
previous decisions of this court and the Appellate Court
in prior appeals considering other aspects of this long
running dispute. Cadle owns the property, which is
located at 51 Albany Turnpike in Canton. In October,
1995, Cadle leased the property to Gateway for a three
year term from November 1, 1995, through October 31,
1998, with Gateway having an option to renew for a second
three year period. Gateway exercised its renewal rights,
which extended the lease for a second three year term
that terminated on October 31, 2001. In addition to rent
payments, the lease required that Gateway pay the town
all property taxes levied and assessed against the prop-
erty during the lease term.4
In December, 1995, Mitchell, which is owned by Gate-
way, entered into a sublease agreement with Gateway
for the rental of the property. That sublease incorpo-
rated the initial term, the renewal/second term, the rent
structure, and the taxation obligations of the lease
between Gateway and Cadle. Mitchell has operated an
automobile dealership on the property since October,
1995, despite the expiration of the Gateway lease in
2001.
During the late 1990s, Cadle was subject to an
enforcement action brought in the Superior Court by the
Department of Environmental Protection (department)
involving the property’s contaminated soil and ground-
water. On December 4, 2000, the Superior Court ordered
Cadle to comply with the department’s pollution abate-
ment order and assessed a civil penalty of $2,143,000
against Cadle. See Canton v. Cadle Properties of Con-
necticut, Inc., 188 Conn. App. 36, 40 n.4, 204 A.3d 62
(2019), citing Holbrook v. Cadle Properties of Connecti-
cut, Inc., Superior Court, judicial district of Hartford,
Docket No. CV-XX-XXXXXXX-S (December 4, 2000) (29
Conn. L. Rptr. 167). That order also prohibited Cadle
‘‘from conveying any interest in the . . . property . . .
until all contaminated soil and . . . groundwater . . .
ha[d] been fully remediated,’’ and required Cadle to turn
over to the state of Connecticut all rent payments (1)
that had been received from Gateway and held in
escrow pursuant to a prejudgment remedy, and (2)
forthcoming from Gateway for the remainder of the
extended lease term. Holbrook v. Cadle Properties of
Connecticut, Inc., supra, 29 Conn. L. Rptr. 177. After
the entry of that order, ‘‘Cadle took no further steps to
manage the property’’ and, since the termination date
of the lease on October 31, 2001, has not (1) demanded
any payments from Gateway under the lease, (2)
demanded or requested use or occupancy payments
from Gateway or any other party, (3) advertised the
property for a new tenancy, (4) commenced an eviction
action against Gateway or any other party, or (5) paid
for ‘‘any repairs, maintenance or improvements to the
property.’’ Mitchell continues to occupy the property
and operate its automobile dealership to date; Gateway
has not made any rent or use and occupancy payments
to Cadle, or paid any real property taxes to the town
on the property.5
‘‘After Cadle effectively abandoned the property . . .
the town . . . filed a petition [in April, 2011], seeking
the appointment of a receiver of rents pursuant to § 12-
163a. The petition alleged that Cadle had failed to pay
real property taxes due to the town in the amount of
$362,788.59, plus interest and lien penalties, for a total
amount due of $884,263.04.6 The petition further alleged
that, during all relevant periods, the property was occu-
pied by a Volkswagen dealership owned by [the defen-
dants], which had a legal obligation to pay rent to Cadle.
The court, having found that Cadle owed the town taxes
. . . granted the petition to appoint the [plaintiff as]
receiver [in June, 2011], and issued orders authorizing
the receiver to collect all rents or use and occupancy
payments due with respect to the property.’’ (Footnote
in original; footnote omitted; internal quotation marks
omitted.) Canton v. Cadle Properties of Connecticut,
Inc., supra, 188 Conn. App. 40–41.
Subsequently, the plaintiff served Gateway ‘‘with a
notice to quit possession of the property on the ground
of nonpayment of rent, [and Gateway] filed a motion
to intervene in the town’s action against Cadle in order
to challenge the [plaintiff’s] authority to take legal
action against it. Shortly thereafter, the [plaintiff] filed
a motion to modify the receivership order to authorize
it to pursue an eviction of [Gateway] in the event of
nonpayment of rent, to lease the property to a new
tenant, and to use all legal process to collect back rent.
Prior to acting on [Gateway’s] pending motion to inter-
vene, the court granted the [plaintiff’s] motion to modify
without objection.
‘‘Subsequently, the trial court granted [Gateway’s]
motion to intervene in the action. [Gateway] then filed
a motion to remove the [plaintiff as] receiver, asserting,
inter alia, that the [plaintiff] had exceeded its authority
under § 12-163a by serving it with a notice to quit and
by bringing an action to collect back taxes and prior
rents. The court denied the motion for removal . . . .’’
(Internal quotation marks omitted.) Id., 41. In a subse-
quent appeal, we upheld the denial of Gateway’s motion
to remove the plaintiff as receiver but concluded that
the plaintiff’s authority under § 12-163a was limited to
the ‘‘use [of] legal process to collect [past due] rent’’;
it did not have the authority to evict a tenant from the
property or to lease the property to a new tenant.7
Canton v. Cadle Properties of Connecticut, Inc., 316
Conn. 851, 853, 114 A.3d 1191 (2015).
In August, 2016, the plaintiff filed an amended com-
plaint, seeking rent or use and occupancy payments8
from the defendants in the amount of $1,349,648, plus
attorney’s fees. After the defendants answered the
amended complaint by denying that they owed rent or
use and occupancy payments to Cadle at any point since
2001,9 the parties filed separate motions for summary
judgment. The defendants contended that the plaintiff,
as a receiver of rents appointed under § 12-163a, has
no authority to seek rent or use and occupancy pay-
ments with respect to an abandoned property. The
plaintiff argued that, to the contrary, despite the expira-
tion of the lease with Cadle, the defendants remained
in possession as ‘‘tenants’’ of the property, either at will
or at sufferance, and the plaintiff was therefore entitled
to seek use and occupancy payments.
The trial court granted the defendants’ motion for
summary judgment and denied the plaintiff’s motion.
The trial court agreed with the defendants’ argument
that our decision in Canton v. Cadle Properties of Con-
necticut, Inc., supra, 316 Conn. 851, which held that a
receiver of rents under § 12-163a was not authorized
to evict a tenant based on nonpayment of rent, placed
‘‘very strict limits on what a receiver of rents appointed
pursuant to that statute may do to collect rents.’’ The
trial court concluded that ‘‘Cadle’s conduct in abandon-
ing the property—thereby not pursuing any of its rights
as against these defendants—inadvertently allowed
these defendants to live on the property without pay-
ment. Under these unusual circumstances, there is no
‘rent’ for the receiver to collect.’’ The trial court empha-
sized that the plaintiff was bound by ‘‘the consequences
of Cadle’s abandonment of the property in 2001,’’ inso-
far as the defendants’ lease with Cadle lacked ‘‘holdover
provisions, which, after the lease expired, would (1)
have defined the defendants’ status on the property,
and (2) have set forth the tenants’ payment obligations
while in this status.’’ Accordingly, the trial court ren-
dered judgment for the defendants as to the entire
amended complaint. This appeal followed.
On appeal, the plaintiff contends that the trial court
incorrectly concluded that § 12-163a does not permit a
receiver of rents to collect rent or use and occupancy
payments if the tax delinquent property owner is absent
and not pursuing those payments from the occupant.
The plaintiff relies on the plain language of § 12-163a
providing that the receiver collects such payments ‘‘in
place of the owner’’ as evincing ‘‘the legislature’s clear
intent to allow receivers to step into the shoes of an
otherwise absent property owner and [to] collect rent
and/or use and occupancy payments to recoup the own-
er’s delinquent tax obligation.’’ The plaintiff argues that
a construction to the contrary—requiring the presence
or participation of the owner—creates an ‘‘absurd or
unworkable result’’ by ‘‘permit[ting] a delinquent tenant
or occupant to frustrate a town’s ability to recoup delin-
quent taxes’’ and by placing ‘‘the receiver . . . at the
mercy of the property owner whose failure to diligently
pay taxes is the basis for granting the receiver the power
to collect in the first place.’’ (Internal quotation marks
omitted.) Citing the Appellate Court’s recent decision
in A1Z7, LLC v. Dombek, 188 Conn. App. 714, 205 A.3d
740 (2019), the plaintiff emphasizes that it stands in the
shoes of Cadle, which, as the owner of the property,
remains entitled to use and occupancy payments, even
outside the scope of a summary process action, because
Mitchell’s occupancy constitutes a tenancy at suffer-
ance. Finally, quoting Canton v. Cadle Properties of
Connecticut, Inc., supra, 316 Conn. 862, the plaintiff
contends that the legislative history of § 12-163a sup-
ports its construction of the statute, in furtherance of
the legislature’s intent to ‘‘ ‘provide a less drastic, expen-
sive and time-consuming mechanism than foreclosure
to recover delinquent taxes, as it already had afforded
to utility companies to collect delinquent utility pay-
ments’ ’’ via the enactment of General Statutes § 16-
262f.10
In response, the defendants urge a strict construction
of § 12-163a and contend that the trial court properly
construed its plain language in holding that a receiver
of rents appointed pursuant to that statute lacks the
authority to establish rent or use and occupancy pay-
ments. In the event we deem § 12-163a ambiguous, the
defendants also rely heavily on the legislative history of
the statute, along with authority limiting rent receivers’
authority under § 16-262f in unpaid utility cases; see,
e.g., Connecticut Light & Power Co. v. DaSilva, 231
Conn. 441, 446, 650 A.2d 551 (1994); and contend that,
under the statute, ‘‘the receiver is not the owner, and, in
the absence of rent imposed by the owner, the receiver
cannot establish rent or payments for a property that
it does not own.’’ The defendants further argue that the
receiver’s authority under § 12-163a to collect due and
owing rent, as clarified in Canton v. Cadle Properties
of Connecticut, Inc., supra, 316 Conn. 859–60, is not
implicated in the present case because Cadle, as the
owner of the property, never established rent or use
and occupancy payments, with the plaintiff lacking the
authority to do so ‘‘retroactively for the last nineteen
years.’’11 Comparing § 12-163a with the expansive pow-
ers provided by the recently enacted blight receivership
statute, General Statutes § 8-169aa,12 the defendants
posit that § 12-163a is simply inapplicable to ‘‘the situa-
tion of a landlord that has abandoned property and has
chosen not to charge for use and occupancy,’’ with
the plaintiff, as receiver, ‘‘lack[ing] standing to assert
Cadle’s potential right of action that has never been
brought by the owner, much less adjudicated.’’ We agree
with the defendants and conclude that § 12-163a does
not authorize the plaintiff to collect use and occupancy
payments under the circumstances of this case.
‘‘The scope of a receiver’s authority under § 12-163a
is a question of statutory construction subject to plenary
review and well established principles.’’ Canton v. Cadle
Properties of Connecticut, Inc., supra, 316 Conn. 856.
It is well settled that we follow the plain meaning rule
pursuant to General Statutes § 1-2z in construing stat-
utes ‘‘to ascertain and give effect to the apparent intent
of the legislature.’’ (Internal quotation marks omitted.)
Sena v. American Medical Response of Connecticut,
Inc., 333 Conn. 30, 45, 213 A.3d 1110 (2019); see id.,
45–46 (stating plain meaning rule). In construing § 12-
163a, ‘‘we do not write on a clean slate, but are bound
by our previous judicial interpretations of this language
and the purpose of the statute.’’ (Internal quotation
marks omitted.) Commissioner of Public Safety v. Free-
dom of Information Commission, 312 Conn. 513, 527,
93 A.3d 1142 (2014); see, e.g., Callaghan v. Car Parts
International, LLC, 329 Conn. 564, 571, 188 A.3d 691
(2018) (‘‘because we have previously construed [Gen-
eral Statutes] § 31-293 (a), we must consider its meaning
in light of our prior cases interpreting the statute’’).
We begin with the text of § 12-163a, subsection (a)
of which ‘‘sets forth the circumstances under which a
municipality may seek the appointment of a receiver
of rents and the authority vested in the receiver upon
such appointment.’’ Canton v. Cadle Properties of Con-
necticut, Inc., supra, 316 Conn. 856. Section 12-163a
(a) provides in relevant part: ‘‘Any municipality may
petition the Superior Court or a judge thereof, for
appointment of a receiver of the rents or payments
for use and occupancy for any property for which the
owner, agent, lessor or manager is delinquent in the
payment of real property taxes. . . . The receiver
appointed by the court shall collect all rents or pay-
ments for use and occupancy forthcoming from the
occupants of the building in question in place of the
owner, agent, lessor or manager. . . .’’ (Emphasis
added.) Both parties’ readings of § 12-163a (a) in con-
text are reasonable, rendering it ambiguous. See, e.g.,
Sena v. American Medical Response of Connecticut,
Inc., supra, 333 Conn. 47–48. The statute authorizes the
collection of ‘‘all’’ rents or use and occupancy payments
‘‘in place of the owner, agent, lessor or manager’’ but
is silent as to whether the receiver may establish those
use and occupancy payments in the first instance, or
whether such payments are limited to those that are
the product of an existing landlord-tenant relationship.13
The broader construction urged by the plaintiff is rea-
sonable given the expansive word ‘‘all,’’ whereas the
defendants’ construction, relying on the words ‘‘owner,
agent, lessor, or manager’’ to suggest inapplicability for
abandoned properties, is similarly reasonable. This is
particularly so, insofar as the word ‘‘forthcoming’’ sug-
gests an existing obligation as between the property
owner and the tenants. See Canton v. Cadle Properties
of Connecticut, Inc., supra, 857–62 (deeming § 12-163a
ambiguous with respect to whether it authorizes receiver
to collect back rents or evict tenants for nonpayment
of rent). Thus, we turn to the legislative history and
other extratextual sources to aid our construction of
§ 12-163a.
As we move beyond the text of § 12-163a, we next
turn to our interpretation of that statute in Canton v.
Cadle Properties of Connecticut, Inc., supra, 316 Conn.
851, in which we considered two issues under the stat-
ute, namely, (1) whether a ‘‘receiver may . . . collect
back rent due,’’ as well as ‘‘rent that is due after the
receiver’s appointment’’; id., 857; and (2) whether the
statute ‘‘confers additional authority on the receiver to
evict a defaulting tenant and to lease the premises to
a new tenant.’’ Id., 860. Beginning with the scope of the
receiver’s authority as to back rent, we deemed the
statute ambiguous on this point, observing that,
although it authorized the collection of ‘‘all rents,’’ it
also used the word ‘‘forthcoming,’’ which suggested
future rents. See id., 857. Nevertheless, we concluded
that ‘‘the more logical and compelling construction is
the broader reading of the statute’’ because ‘‘[t]he words
‘all’ and ‘rents’ (plural), individually and collectively,
support the broadest possible reading’’ insofar as the
word ‘‘ ‘[a]ll’ does not modify ‘occupants.’ Therefore,
we [could not] reasonably construe it to mean the col-
lection of rent from every occupant. Rather, the term
all rents suggests multiple kinds or sources (type or
temporal) of rent. The fact that the receiver is to collect
all rents ‘in place of the owner,’ who undoubtedly would
be entitled to collect past and presently due rent, lends
further support to the broader construction.’’ Id., 857–
58. We also relied on legislative history, specifically,
the fact that ‘‘the sponsor of the bill enacted as § 12-
163a referred to the bill as applying to back rent.’’ Id.,
859, citing Conn. Joint Standing Committee Hearings,
Planning and Development, Pt. 1, 1995 Sess., p. 50,
remarks of Representative Robert D. Godfrey; see also
Public Acts 1995, No. 95-353, § 1. ‘‘Finally, we observe[d]
that § 12-163a (a) authorizes the receiver to collect rents
‘in place of the owner,’ without indicating or limiting
the means by which the receiver may do so. As such,
it seems reasonable to infer that the statute authorizes
the receiver to use the legal means that otherwise would
have been available to the owner to collect such unpaid
obligations.’’ Canton v. Cadle Properties of Connecti-
cut, Inc., supra, 859; see id., 859–60 (harmonizing order
of priority of payment set forth in § 12-163a with receiv-
er’s authority to collect back rent).
We next considered ‘‘whether § 12-163a confers addi-
tional authority on the receiver to evict a defaulting
tenant and to lease the premises to a new tenant.’’ Id.,
860. In concluding that § 12-163a did not confer that
authority, we observed that a ‘‘review of the statute
reveals that the only authority expressly conferred on
the receiver is to undertake the following actions: (1)
collect funds; and (2) make payments. There is no
authority to evict a tenant or to enter into a new lease.
Although § 12-163a (a) authorizes the receiver to collect
use and occupancy payments, which arise after a notice
to quit has been served on a tenant . . . the statute
does not authorize the receiver to cause such a notice
to be served (or reference chapter 830 of the General
Statutes addressing landlord remedies), to take posses-
sion of the property, or to undertake any other action
in the owner’s stead with respect to the property except
collecting payment from the building’s occupants.’’
(Citation omitted; footnote omitted.) Id., 860–61. We
further observed that ‘‘the authority conferred under
§ 12-163a is quite narrow in comparison to some other
receivership statutes.’’14 Id., 861; see Connecticut Light
& Power Co. v. DaSilva, supra, 231 Conn. 446 (noting,
with respect to § 16-262f, on which § 12-163a is mod-
eled, that ‘‘wide-ranging equitable and discretionary
principles that govern rent receiverships in ordinary
mortgage foreclosure proceedings’’ do not apply); see
also footnote 14 of this opinion. Finally, we determined
that the legislative history did not support an interpreta-
tion of § 12-163a authorizing the receiver to evict a
defaulting tenant, observing that ‘‘history makes clear
that the legislature intended to provide a less drastic,
expensive and time-consuming mechanism than fore-
closure to recover delinquent taxes, as it already had
afforded to utility companies to collect delinquent util-
ity payments. See Conn. Joint Standing Committee
Hearings, supra, pp. 50–51, 53, remarks of Representa-
tive Godfrey; id., pp. 124–26, remarks of Eric Gottschalk,
corporation counsel for the city of Danbury. The only
authority referenced in that history vis-à-vis the prop-
erty is the collection of rent. See id., pp. 50–51, 124–26.’’
Canton v. Cadle Properties of Connecticut, Inc., supra,
316 Conn. 862.
Most significant, we relied on our conclusion ‘‘that
the receiver is authorized to use legal process to collect
past due rent’’ in rejecting ‘‘the town’s contention that,
in the absence of authority to replace a defaulting tenant
with one that will provide a consistent revenue stream
to discharge the tax obligations, § 12-163a would be
a toothless lion, able to roar, but not bite.’’ (Internal
quotation marks omitted.) Id., 862–63. We believed that
this argument ‘‘erroneously assumes that the property
owner generally lacks an incentive to regain the income
produced from its rental property. It is doubtful that
the legislature had in mind the unusual circumstances
of abandoned rental property at issue in this case. To
the extent that the town believes that greater authority
is essential to vindicating its interests, especially in
cases like the present one, in which the owner has
abandoned the property and purported environmental
contamination makes foreclosure of the property an
impractical alternative . . . its recourse lies with the
legislature.’’ (Citations omitted; emphasis added.) Id.,
863. It is evident then, that our decision in Canton v.
Cadle Properties of Connecticut, Inc., supra, 316 Conn.
851, which relies on the presence and participation of
the property owner to establish that the receiver’s right
to collect back rent is meaningful—despite the lack of
an eviction remedy—strongly supports a conclusion
that the receiver appointed under § 12-163a cannot
establish use and occupancy payments in the first
instance with respect to a property that has been aban-
doned.
Indeed, the legislative history of § 12-163a, beyond
that discussed in Canton v. Cadle Properties of Con-
necticut, Inc., supra, 316 Conn. 851, provides even more
compelling evidence that the legislature did not envision
the statute applying to abandoned property; instead,
it was viewed as a remedy that would avert the abandon-
ment of properties. The proceedings before the Plan-
ning and Development Committee are illuminating,
given that it ‘‘is well established that testimony before
legislative committees may be considered in determin-
ing the particular problem or issue that the legislature
sought to address by legislation.’’ (Internal quotation
marks omitted.) Republican Party of Connecticut v.
Merrill, 307 Conn. 470, 498, 55 A.3d 251 (2012). In an
exchange with Representative Lawrence G. Miller about
‘‘any negative tax’’ that would be created should the
property owner ‘‘[decide] to take a walk’’ subsequent
to the appointment of the receiver, Representative God-
frey, the sponsor of the bill, specifically stated that he
did not ‘‘foresee a landlord taking a walk.’’ Conn. Joint
Standing Committee Hearings, supra, p. 52; see Con-
necticut Assn. of Not-for-Profit Providers for the Aging
v. Dept. of Social Services, 244 Conn. 378, 395 n.22,
709 A.2d 1116 (1998) (‘‘[w]e pay particular attention to
statements of the legislators who sponsored the bill’’
(internal quotation marks omitted)). Responding to a
question from Representative Marie L. Kirkley-Bey about
whether the statutory receivership process would increase
the abandonment of buildings in cities, Representative
Godfrey stated that the statutory receivership proceed-
ing would help avert the abandonment of buildings
because ‘‘currently the only tool that a municipality has
to go after back taxes is to foreclose on the property,
which can be much more expensive for all parties
involved and literally takes the property away from the
landlord. This is something in between. It’s a lesser
step. It’s a finer tool that gives the municipalities the
ability to step in and take over the rent, to take over
the property in lieu of taking the property and taking the
ownership.’’15 Conn. Joint Standing Committee Hear-
ings, supra, p. 51.
Similarly, in responding to a question from Represen-
tative Janet K. Lockton, Attorney Gottschalk stated that
he did not believe that the statutory receivership pro-
cess would increase the abandonment of buildings
because it is ‘‘a mechanism that you would use earlier
in the process than you would use a foreclosure where
you’re divesting the property owner, when things
haven’t gotten so out of hand that there really is no
solution short of taking that property. These are cases
where something could be done to fix the problem. And
if we pick them up earlier than we’re picking them
up now with foreclosures after eight and ten years of
delinquency, then perhaps we can begin to turn this
around. If all you have in your quiver are foreclosures
and [nonjudicial] tax sales, then you’re beyond the point
where you’re worried about ‘[w]hat’s going to happen
to those poor people . . . [w]hat’s going to happen to
the properties?’ ’’ Id., p. 127; see id., pp. 52–53, remarks
of Representative Godfrey (suggesting that abandon-
ment by landlord would not ‘‘muddy the waters in any
way’’ because receivership served as ‘‘a conventional
weapon instead of a [thermonuclear] device’’ by avert-
ing need for tax foreclosure proceedings that could
lead to abandonment). This legislative history strongly
suggests, then, that the legislature did not intend for
§ 12-163a to apply to abandoned property or to autho-
rize receivers appointed pursuant to that statute to
impose rent or use and occupancy payments in the place
of a property owner who has abandoned the property.
Finally, as we stated in Canton v. Cadle Properties
of Connecticut, Inc., supra, 316 Conn. 858–59, the legis-
lature is able to give receivers broader powers when it
desires to do so. In addition to the statutes discussed in
that case,16 the legislature recently enacted § 8-169aa,17
which allows for the appointment of receivers to man-
age and undertake the rehabilitation of abandoned
buildings in an attempt to combat urban blight—the
propagation of which was a concern expressly raised
by legislators during hearings on the bill that was
enacted as § 12-163a. Unlike § 12-163a, though, § 8-
169aa expressly gives receivers appointed pursuant
thereto a vast array of powers, including ‘‘[t]aking pos-
session and control of the abandoned property’’ and
‘‘[p]ursuing all claims or causes of action of the owner
with respect to the’’ abandoned property. General Stat-
utes § 8-169aa (d) (1) (A) and (C). That statute specifi-
cally envisions abandoned real property, like the land at
issue in this case, insofar as it provides for receivership
without saddling the receiver with the owner’s obliga-
tion to remediate any environmental contamination.
See General Statutes § 8-169aa (e) (3). Section 8-169aa
demonstrates, therefore, that the legislature, as the gov-
ernmental body with primary responsibility for formu-
lating public policy, is capable of addressing the situa-
tion presented by the present case. See, e.g., Shannon
v. Commissioner of Housing, 322 Conn. 191, 200 n.14,
140 A.3d 903 (2016); Commissioner of Public Safety v.
Freedom of Information Commission, supra, 312
Conn. 550–51 and n.35. Although the town’s desire to
use a receiver of rents to recoup unpaid property taxes
from an apparently successful commercial property is
certainly understandable, the narrow remedy provided
by § 12-163a simply does not extend to the situation
presented in this case. As we stated previously, ‘‘[t]o
the extent that the town believes that greater authority
is essential to vindicating its interests, especially in
cases like the present one, in which the owner has
abandoned the property and purported environmental
contamination makes foreclosure of the property an
impractical alternative . . . its recourse lies with the
legislature.’’ (Citations omitted.) Canton v. Cadle Prop-
erties of Connecticut, Inc., supra, 863. The trial court,
therefore, properly granted the defendants’ motion for
summary judgment.
The judgment is affirmed.
In this opinion the other justices concurred.
* August 13, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We refer to the defendants individually when appropriate for purposes
of clarity.
2
General Statutes § 12-163a (a) provides in relevant part: ‘‘Any municipal-
ity may petition the Superior Court or a judge thereof, for appointment of
a receiver of the rents or payments for use and occupancy for any property
for which the owner, agent, lessor or manager is delinquent in the payment
of real property taxes. . . . The court shall make a determination of any
amount due and owing and any amount so determined shall constitute a
lien upon the real property of such owner. . . . The receiver appointed by
the court shall collect all rents or payments for use and occupancy forthcom-
ing from the occupants of the building in question in place of the owner,
agent, lessor or manager. The receiver shall make payments from such
rents or payments for use and occupancy, first for taxes due on and after
the date of his appointment and then for electric, gas, telephone, water or
heating oil supplied on and after such date. The owner, agent, lessor or
manager shall be liable for such reasonable fees and costs determined by
the court to be due the receiver, which fees and costs may be recovered
from the rents or payments for use and occupancy under the control of the
receiver, provided no such fees or costs shall be recovered until after pay-
ment for current taxes, electric, gas, telephone and water service and heating
oil deliveries has been made. The owner, agent, lessor or manager shall be
liable to the petitioner for reasonable attorney’s fees and costs incurred by
the petitioner, provided no such fees or costs shall be recovered until after
payment for current taxes, electric, gas, telephone and water service and
heating oil deliveries has been made and after payments of reasonable fees
and costs to the receiver. Any moneys remaining thereafter shall be used
to pay the delinquent real property taxes and any money remaining thereafter
shall be paid to such parties as the court may direct after notice to the
parties with an interest in the rent or payment for use and occupancy of
the property and after a hearing. The court may order an accounting to be
made at such times as it determines to be just, reasonable and necessary.’’
3
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4
The parties acknowledged in the lease that ‘‘substantial delinquent taxes
were due on the property’’ and that, although Gateway’s current tax pay-
ments would be applied to delinquent taxes first, Gateway ‘‘was not in any
way liable for delinquent taxes.’’
5
Gateway and Mitchell have paid their own independent property tax
obligations to the town since that time, along with utility payments in excess
of $439,000.
6
‘‘The petition was filed on April 26, 2011. On May 12, 2017, the town
filed a report with the trial court indicating that the amount of real estate
taxes due and owing for the period from June 23, 2011, the date the receiver
was appointed, to April 25, 2017, including interest and lien fees, was
$208,731.43.’’ Canton v. Cadle Properties of Connecticut, Inc., supra, 188
Conn. App. 41 n.5.
7
In a subsequent appeal challenging the plaintiff’s failure to pay utility
bills for dates subsequent to its appointment, the Appellate Court rejected
Gateway’s argument that ‘‘§ 12-163a (a) requires the receiver to pay the costs
for utilities due on and after its appointment’’; Canton v. Cadle Properties
of Connecticut, Inc., supra, 188 Conn. App. 43; concluding that, under ‘‘§ 12-
163a, the receiver is mandated to pay only utility bills that are the obligation
of the owner, not those incurred by tenants of the subject property.’’ Id., 52.
8
By way of background, we note that use and occupancy payments are
the ‘‘reasonable rental value’’ of the property and are paid to a landlord by
a tenant at sufferance who occupies the land in the absence of a lease
agreement. Sproviero v. J.M. Scott Associates, Inc., 108 Conn. App. 454,
463, 948 A.2d 379, cert. denied, 289 Conn. 906, 957 A.2d 873 (2008). They
are most frequently associated with summary process proceedings to evict
a tenant because, ‘‘after a notice to quit possession has been served, a
tenant’s fixed tenancy is converted into a tenancy at sufferance. . . . A
tenant at sufferance is released from his obligations under a lease. . . . His
only obligations are to pay the reasonable rental value of the property [that]
he occupied in the form of use and occupancy payments . . . and to fulfill
all statutory obligations.’’ (Citations omitted; footnote omitted.) Id., 462–63.
Although use and occupancy payments are provided by statute, they are
also an obligation that is enforceable independently of a summary process
action. See A1Z7, LLC v. Dombek, 188 Conn. App. 714, 716, 205 A.3d 740
(2019) (summary process was not exclusive remedy, and property owner
could seek use and occupancy via unjust enrichment action); see also Gen-
eral Statutes § 47a-3c (‘‘[i]n the absence of agreement, the tenant shall pay
the fair rental value for the use and occupancy of the dwelling unit’’); General
Statutes § 47a-26b (providing for use and occupancy payments during pen-
dency of summary process action).
9
In their answer, the defendants alleged that, at no time since 2001 has
Cadle, as the owner of the property, (1) managed, repaired or remediated
the property, or (2) demanded rent or use and occupancy payments from
the defendants. The defendants then raised numerous special defenses and
a counterclaim that Gateway had suffered damages by making some limited
rent and use and occupancy payments to the plaintiff under threat of eviction
because the plaintiff (1) had exceeded its authority under § 12-163a by
threatening them with eviction, and (2) had failed to follow the plain language
of the statute in distributing some proceeds that it had collected to itself
first and then to the town for the back taxes.
10
General Statutes § 16-262f provides in relevant part: ‘‘(a) (1) Upon default
of the owner, agent, lessor or manager of a residential dwelling who is
billed directly by an electric distribution, gas or telephone company or by
a municipal utility for electric or gas utility service furnished to such building,
such company or municipal utility or electric supplier providing electric
generation services may petition the Superior Court or a judge thereof, for
appointment of a receiver of the rents or payments for use and occupancy
or common expenses, as defined in section 47-202, for any dwelling for
which the owner, agent, lessor or manager is in default. . . .
***
‘‘(3) The receiver appointed by the court shall collect all rents or payments
for use and occupancy or common expenses forthcoming from or paid on
behalf of the occupants or residents of the building or facility in question
in place of the owner, agent, lessor, manager or administrator. . . . ’’
11
To this end, the defendants argue that, as a factual matter, there simply
is no established landlord-tenant relationship between the defendants and
Cadle after 2001 for which the plaintiff can assert rights to collect use and
occupancy payments, given that ‘‘Cadle has not undertaken any responsibili-
ties of landlord [or] made any effort to establish such a relationship with
any of the defendants since 2001,’’ insofar as it ‘‘clearly and undisputedly
abandoned the property,’’ including by not making any ‘‘efforts at remediat-
ing the environmental contamination’’ or paying its property taxes to the
town. The defendants contend that mere occupation is not sufficient to
establish a tenancy for which a receiver can charge rent.
12
See footnote 17 of this opinion for the relevant text of § 8-169aa.
13
We acknowledge the plaintiff’s reliance on the Appellate Court’s recent
decision in A1Z7, LLC v. Dombek, supra, 188 Conn. App. 714, for the proposi-
tion that Cadle, as the owner of the land, remains entitled to use and
occupancy payments, even outside the scope of a summary process action,
because Mitchell’s occupancy constitutes a tenancy at sufferance. See foot-
note 9 of this opinion. This argument does not, however, squarely speak to
the scope of the receiver’s authority to seek use and occupancy payments
when the owner has abandoned the property.
14
As a practical matter, we observed that, ‘‘because there is no indication
in § 12-163a that the legislature has conferred the extraordinary authority
on the receiver to enter into a contract with a new tenant that would bind
the owner of the property, it would make no sense to construe the reference
to use and occupancy payments as implicitly authorizing the receiver to
evict the tenant. It is only when both actions may be taken that the receiver
would be able to collect payments. That authority must rest with the owner,
who has every incentive in the usual case to evict and replace a defaulting
tenant in order to remedy the deficiency and regain access to the rental
income. Therefore, the authority to collect use and occupancy payments,
reasonably construed, simply ensures that, if a lease has expired or an
owner has served a notice to quit on a tenant, either before or after the
receiver’s appointment, the receiver may collect payments for use and
occupancy, just as it may collect rent payments. Thus, the text of the
statute weighs heavily against a construction permitting a receiver appointed
under § 12-163a to evict a defaulting tenant and to lease the premises to a new
tenant.’’ (Emphasis added; footnote omitted.) Canton v. Cadle Properties
of Connecticut, Inc., supra, 316 Conn. 861–62.
15
Another question illuminating the limited role of the receiver and the
anticipated presence of the property owner came from Representative Janet
K. Lockton, who asked: ‘‘If you’re collecting the rent instead of the owner,
say something goes wrong in the building and you, for all intents and pur-
poses, would be the owner—would you be the owner responsible for a
broken pipe if you were collecting the rent?’’ Conn. Joint Standing Committee
Hearings, supra, p. 125. Responding to that question, Attorney Gottschalk,
corporation counsel for Danbury, stated that the ‘‘statute provides that the
receiver is responsible only for collection of the rent and payment of the bills
in accordance with a ranking. The other responsibilities that are attendant
to home ownership remain with the landlord.’’ Id. Acknowledging that land-
lords generally rely on the rent to fund the maintenance of the property
and to pay for utilities, Attorney Gottschalk emphasized that ‘‘one of the
most effective elements of this program is that by virtue of its surety and
its certainty and its speed a landlord doesn’t indulge in the process of waiting
to see whether something else will happen. A landlord comes in and makes
an arrangement and pays the delinquency pursuant to some kind of schedule.
That is usually the way it happens. And we attempt to work with every
property owner that has a delinquency.’’ Id., p. 126. He emphasized that, ‘‘if
a court order is established appointing a receiver, the receiver will collect
the rents and the property owner will be left to deal with all the other issues
attendant to home ownership or property ownership.’’ Id.
16
‘‘General Statutes § 42-110f (receiver shall have power to take property
into his possession and to sell, convey and assign same); General Statutes
§ 52-505 (receiver shall be vested with property to manage and use for
benefit and support of members of certain associations, communities or
corporations); General Statutes § 52-509 (receiver to hold business and all
property, real and personal, belonging to partnership) . . . .’’ (Citation omit-
ted; footnote omitted.) Canton v. Cadle Properties of Connecticut, Inc.,
supra, 316 Conn. 861.
17
General Statutes § 8-169aa provides in relevant part: ‘‘(b) (1) In any
municipality with a population of thirty-five thousand or more, a party in
interest may file a petition for the appointment of a receiver to take posses-
sion and undertake rehabilitation of a building within such municipality,
which petition shall be filed in the superior court for the judicial district in
which such building is located. The proceeding on the petition shall consti-
tute an action in rem.
***
‘‘(d) (1) A receiver appointed pursuant to this section shall have all powers
necessary and appropriate, as approved by the court, for the efficient opera-
tion, management and improvement of the abandoned property in order to
bring the same into compliance with municipal code requirements and fulfill
all duties described in this subsection. Subject to approval of the court, the
powers and duties shall include, but not be limited to:
‘‘(A) Taking possession and control of the abandoned property and any
personal property of the owner used with respect to the abandoned property;
‘‘(B) Collecting outstanding accounts receivable;
‘‘(C) Pursuing all claims or causes of action of the owner with respect
to the property described in subparagraph (A) of this subdivision;
‘‘(D) Contracting for the repair and maintenance of the abandoned prop-
erty, provided the receiver shall make a reasonable effort to solicit three
bids for any contract valued at more than twenty-five thousand dollars
unless the contractor or developer provides or obtains financing for the
receivership, and each of which contract shall be appropriately documented
and included in the reports and accounting required to be submitted or filed
by the receiver pursuant to this section;
***
‘‘(H) Entering into a rental contract or lease for a period of time not to
exceed twelve months, provided the court shall approve any such contract
or lease;
***
‘‘(N) Exercising any right a property owner would have to improve, main-
tain and otherwise manage such property, including to the extent necessary
to carry out the purposes of this section.
***
‘‘(e) (1) The receiver appointed pursuant to subdivision (2) of subsection
(c) of this section shall be deemed to have powers and authority equivalent
to ownership and legal control of the abandoned property for the purposes
of filing plans with any public agency or board, seeking or obtaining construc-
tion permits or other approvals and submitting applications for financing
or other assistance to public or private entities.
‘‘(2) Notwithstanding the provisions of subdivision (1) of this subsection,
nothing in this section shall be construed to relieve the owner of a building
that has been determined to be an abandoned property pursuant to subdivi-
sion (2) of subsection (c) of this section of any civil or criminal liability or
of any obligation to pay any tax, municipal lien or charge, mortgage, private
lien or other fee or charge incurred before or after the appointment of the
receiver, and no such liability shall transfer to the receiver.
‘‘(3) Notwithstanding any provision of the general statutes, the receiver
shall not be liable for any environmental damage to a building that has
been determined to be an abandoned property pursuant to subdivision (2)
of subsection (c) of this section, which environmental damage existed prior
to such determination and the appointment of such receiver. The owner of
the building shall be held liable for the environmental damage. . . .’’
(Emphasis added.) See also General Statutes § 8-169aa (a) (13) (defining
‘‘receiver’’ as ‘‘any person or entity that takes possession of a building
pursuant to the provisions of this section for the purpose of rehabilitating
such building or otherwise disposing of such building’’); General Statutes § 8-
169aa (c) (2) (establishing elements for proof of blight and abandonment).