Connecticut

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Konover Construction Corp. v. Linda K. Silberstein et al.,
No. CV020467948S (Conn. 07/22/2003)

CV020467948S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN,
AT NEW HAVEN

July 22, 2003, Decided

July 22, 2003, Filed

NOTICE: [*1] THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: William L. Hadden, Jr., Judge Trial Referee.

OPINIONBY: William L. Hadden, Jr.

OPINION: MEMORANDUM OF DECISION

The plaintiff has brought this action seeking to foreclose a recorded judgment lien which it has on property located at 497 Three Corners Road, Guilford, Connecticut (property). The property is owned by the defendant Linda K. Silberstein. Also recorded on the land records are the following encumbrances which are prior in right to the plaintiff's judgment lien and which will not be affected by this action: Taxes due to the Town of Guilford; and a mortgage deed from Morton H. Silberstein and Linda K. Silberstein to America's Wholesale Lender on which the parties have stipulated that the debt as of June 30, 2003 is $ 445,622.53. An attachment by Larry M. Loeb and Linda K. Silberstein, as Co-executors of the Estate of Annette R. Schiff in the amount of $ 200,000 is subsequent in right to the plaintiff's judgment lien and will be foreclosed by this action.

The defendants Larry M. Loeb and Linda K. Silberstein, Co-executors, [*2] have been defaulted for failure to disclose a defense. The court, Celotto, J., has granted the plaintiff's motion for summary judgment as to liability with respect to the defendant Linda K. Silberstein. (Ms. Silberstein).

On July 9, 2003 this court conducted a hearing at which the plaintiff and the defendant Ms. Silberstein offered evidence concerning the fair market value of the property, and whether Ms. Silberstein is entitled to a statutory homestead exemption of $ 75,000.00.

Each party offered the testimony of an appraiser with respect to the value of the property. The plaintiff's appraiser valued the property at $ 525,000.00 and the defendants' appraiser at $ 495,000.00. The property consists of approximately 4.40 acres on which is located a contemporary style nine room frame house with a two-car attached garage. Each appraiser utilized the comparable sales method in reaching his opinion. The comparables used by the plaintiff's appraiser were all contemporary type homes, while the defendants' appraiser used colonial style homes as comparables in reaching his opinion on fair market value. The court believes that the use of contemporary style homes as comparables is a better basis [*3] upon which to find fair market value of a contemporary home. The court finds that the property has a fair market value of $ 525,000.00.

The second issue to be determined by the court is whether Ms. Silberstein is entitled to an exemption of $ 75,000.00. The "homestead exemption" is created by Connecticut General Statutes, § 52-352b(t) which provides:

Exempt property. The following property of any natural person shall be exempt: . . .

(t) The homestead of the exemptioner to the value of seventy-five thousand dollars, provided value shall be determined as the fair market value of the real property less the amount of any statutory or consensual lien which encumbers it.

The term 'homestead" is defined in Connecticut General Statutes § 52-352a(e):

(e) "Homestead" means owner-occupied real property . . . used as a primary residence.

The parties agree that Ms. Silberstein is entitled to the $ 75,000.00 homestead exemption only if she has proven that the property at 497 Three Corners Road in Guilford is her "primary residence." The court finds that she has proven that this property is her "primary residence."

The term "primary [*4] residence" as it is used in the exemption statute has not been defined in any Connecticut case. However, cases from other jurisdictions referred to by counsel indicate that the facts and circumstances concerning the owner's absence from or presence in the property are determinative in concluding whether or not the property is to be treated as a "primary residence." The cases also hold that claims of exemption are to be liberally construed in favor of the owner who is claiming the exemption. See In re Kujan, 286 B.R. 216 (Conn. B.C. 2002).

Ms. Silberstein and her husband Morton purchased the property as a home in 1994 and have occupied the home since that date. Her address on file with the motor vehicle department and on the voting lists in the Town of Guilford has been and remains as 497 Three Corners Road. Service of process in this action was made on Ms. Silberstein at her "usual place of abode" at 497 Three Corners Road. The home contains the personal property of Ms. Silberstein and her husband. There is no evidence that anyone other than Ms. Silberstein and her husband have ever occupied the home since they acquired it in 1994. She and her husband receive their [*5] personal mail at the home.

Ms. Silberstein is the owner of an assisted living facility in Newtown known as "The Homesteads at Newtown." She testified that she estimates that she spends about fifty percent of her nights at the Homesteads and the other fifty percent at Three Corners Road. When she stays at the Homesteads she does not always use the same apartment. The plaintiff primarily relies on her frequent stops at the Homesteads, and the general clutter of the home at Three Corners Road, in claiming that Ms. Silberstein has failed to prove that the property is her primary residence and that therefore she is not entitled to the exemption. The court does not agree.

For the foregoing reasons the court finds that Ms. Silberstein has proven that 497 Three Corners Road in Guilford is her primary residence and that she is entitled to claim the $ 75,000.00 homestead exemption.

The court finds the plaintiff's debt to be $ 182,255.95 as of July 3, 2003 and it is accruing at the rate of $ 40.69 per day. Counsel fees are found to be $ 17,614.80. Appraisal fees are found to total $ 950.00.

Counsel are directed to contact the court to schedule further proceedings in this matter.

By the Court, [*6]

William L. Hadden, Jr.

Judge Trial Referee

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