Sippin v. Ellam

In Sippin v. Ellam, 24 Conn. App. 385, 588 A.2d 660 (1991), the Court was asked to determine whether there was sufficient evidence to support the trial court's finding that a lease was illegal, and that, therefore, the plaintiff lessor could not recover for rent or for the fair rental value for use and occupancy because "a lease agreement entered into in violation of the law creates no rights in the wrongdoer." Id., at 392. The lease in Sippin specifically provided that "the premises were to be occupied only for offices for conducting any and all operations as they relate to a real estate operation." Id., at 387 n.1. The plaintiff lessor's deed to the leased real estate contained a restrictive covenant prohibiting any commercial use, but the defendant tenant was unaware of that restriction in the plaintiff's deed. Id., at 387. Approximately one year after the execution of the lease, the local zoning enforcement agency ordered the defendant tenant "to cease and desist the operation of his business because the premises were located in a residential zone." Id. The defendant subsequently vacated the premises and the plaintiff initiated suit to recover rent arising from a breach of the covenant to pay rent, or, in the alternative, the fair rental value of the premises, as well as damages for repairs and waste. Id., at 387-88. In Sippin, "the trial court specifically found that "there is no question but that the lease was illegal pursuant to the restrictive covenant against any commercial use. It is therefore clear that such an undertaking is illegal and voids the agreement. The plaintiff is therefore not entitled to recover rent under the lease." Id., at 389 n.4. The court, in discussing the plaintiff's claim in quantum meruit to obtain the fair rental value for use and occupancy concluded that the "thing to be done here and which was prohibited by the covenant, was the suffering of the premises in question to be used for commercial purposes." Id., at 390. Thus, the trial court rested its judgment, which was affirmed by us, on the plaintiff's violation of the restrictive covenant rather than on any violation of the zoning laws. On appeal to this court, the Sippin plaintiff argued that the trial court could not conclude that the defendants' operations involved a purpose that violated the restrictive covenant, and was therefore illegal. Sippin v. Ellam, supra, 24 Conn. App. at 389. It does not appear from the briefs in the Sippin case that either party in the trial court or in this court argued the legality of the lease because it violated a zoning regulation, but instead argued the legality on the basis of the restrictive covenant. The trial court rested its judgment solely on illegality arising from the restrictive covenant. The Court noted in Sippin that "there is absolutely no question here that the lease was being illegally maintained because of both the operative zoning laws and the restrictive covenant contained in the warranty deed"; id., at 388. In Sippin, the lessee was ordered by the town to stop using the premises for business purposes, whereas in our case, it was the lessor that was cited by the town and no argument was made that the violation was curable, whereas in the present case, the defendant lessee argues that it was curable, by among other things, the obtaining of a variance