The Fitch Files: Connecticut’s eviction moratorium prompts constitutional questions. “I’ve never felt more hated by my government.”

**This is the second story in a series on Connecticut’s eviction moratorium. Read the first story here and the third story here**

A Facebook post on March 30 of 2021 by David Haberfeld went viral and gained the attention of television news media across the state. 

Haberfeld, a Bristol-based landlord who owns more than 30 properties in Connecticut, posted pictures of the damage to one of his rental units that was almost unbelievable. The apartment was ransacked, with profane graffiti and paint all over the walls, furniture and appliances destroyed and food scattered everywhere.

According to Haberfeld and court documents, the tenant hadn’t paid rent since February of 2020 and all through the COVID-19 pandemic.

In his Facebook post – which was shared over 7,000 times — Haberfeld said it was the worst damage he’d seen as a landlord. Interestingly enough, the perpetrator of the vandalism – Anthony Hannah — took to social media to defend himself until he was eventually drowned out by more than 400 comments. Hannah was eventually arrested for the damage.

A landlord publicly shaming a tenant on social media is fairly rare, but in this case the damage was so extreme that Haberfeld had had enough. And he wasn’t the only one. Similar stories started popping up across the country and in Connecticut showing massive amounts of damage done to apartments as landlords struggled to evict troublesome tenants during the pandemic and eviction moratorium. 

Haberfeld says that he was already two months into a court case to evict Hannah when the COVID-19 pandemic hit. But Haberfeld says that he was eventually able to follow through with eviction during the moratorium because Hannah had stopped paying prior to the pandemic.

Haberfeld says the damages cost $14,000 to repair, plus lost rental income and legal costs. “My losses on this unit were $40,000,” Haberfeld said in an interview. “That’s for a single unit.”

The experience left Haberfeld with a bad taste in his mouth and he decided to get rid of the property. He’s found a buyer for the building and says he should be closing on the deal shortly.

Haberfeld successfully evicted two other tenants during the pandemic based on serious nuisance charges – namely drug dealing and drug use.

Overall, Haberfeld says his pandemic losses were “north of $200,000.” 

“During a normal time without the virus, normal numbers – the cost of doing business – the loss is probably $50,000,” Haberfeld said. “It’s not all virus or moratorium-related, but most of it is.” 

Nearly a year earlier Haberfeld and a number of other landlords and property management companies filed a lawsuit in federal court seeking an injunction against Lamont’s eviction moratorium on constitutional grounds.

The court complaint argued the moratorium violated the civil rights of property owners under the Equal Protection Clause, the Contract Clause — which protects private contracts from government interference — the right to due process and the Takings Clause.

But, of course, it was a pandemic which saw the government shut down businesses, schools and courts and require people to wear masks in public. It was an unprecedented move by state governments to address the only global pandemic faced since the 1916 influenza outbreak. 

Essentially, constitutional questions were jettisoned in an effort to preserve public safety and health and the judge denied the plaintiffs’ request for an injunction, saying those constitutional protections were not enough to overturn Lamont’s executive order. 

While the denial garnered media attention, the lawsuit is ongoing, one of several in the country that are still being litigated in the wake of the COVID-19 pandemic and the ensuing federal and state orders restricting evictions.

“We just wanted the governor to listen to us”

The court case was a reaction to the governor’s refusal to sit down and listen to the concerns and ideas of landlords, according David Candelora, who manages 300 rental units in the New Haven area under Prime Management, LLC.

David – cousin of House Republican Leader Vincent Candelora, R-North Branford – was also one of the plaintiffs in the lawsuit.

“All we were trying to do is sit down with the governor, to get his attention and say, ‘you’re doing this wrong,’” David said. “We wanted to be a part of the solution, not a part of the problem and he didn’t care. That’s really what the lawsuit was about.” 

 David says they were told the governor would sit down with politically active landlords and their lobbyists to talk but it never happened.

“We had tenants who told us the governor said they don’t have to pay their rent, and all we wanted him to do was understand the damage he did, and he didn’t care,” David said. “He shunned us, he ignored us, he blew off a meeting, he had one of his lieutenants cover a meeting, and nobody cared.”

“We felt [the lawsuit] was the only action that we had. We didn’t want to do it, but we felt we had no other choice. Our backs were up against the wall,” David says.

And a lot of people had their backs up against the wall over the government-imposed shutdown of businesses: restaurants were closed, sometimes permanently, hundreds of thousands of employees laid off virtually overnight, and small businesses forced to shutter while big box stores, grocery stores and Amazon were kept open.

Of course, it wasn’t just Connecticut, it was nationwide. While Lamont’s executive actions were not the least restrictive in the country, they certainly weren’t the most restrictive. The governor attempted to keep a middle-ground.

But even in the middle, the governor’s executive orders ran up against constitutional protections: it’s one thing to use emergency powers to, for instance, allow medical professionals licensed in other states work in Connecticut hospitals; it’s another thing entirely to tell one party to a contract they don’t have to pay and the other party to suck it up.

Although legislative leaders voted unanimously to grant Gov. Lamont emergency executive powers under the public health emergency and civil preparedness emergency statutes, there was a quick political rift between parties over the nature of some of the governor’s executive orders.

Indeed, the landlords and property management companies were represented by three attorneys who are also Republican state representatives, two of whom – Rep. Craig Fishbein, R-Wallingford, and Rep. Doug Dubitsky, R-Chaplin — had represented plaintiffs in other lawsuits against the governor’s orders on masks for school children and forced business closures.

Sen. Rob Sampson, R-Wolcott, was and remains against the state or federal government’s shutdown of businesses and interference with individuals’ and businesses’ rights. He is also a real estate agent who rents property to tenants. 

“I don’t believe the government ever had the right to shut any of those businesses down,” Sampson said in an interview. “They shut down those businesses and then decided only one side of the equation matters. The property owner still has to pay their mortgages and their responsibilities and certainly have to pay their taxes to their town.”

A lease is the most perfect example of a private contract that there can be. So how does the state government get away interfering with that private contract by saying one end of it doesn’t have an obligation to the other party?

Sen. Rob Sampson, R-Wolcott

“Their obligations do not cease and to say that the tenant doesn’t have to fulfill their end of the obligation is just absurd,” Sampson said. “If the government wanted to go through this process then they needed to fund those tenants, that would have been the only proper way to do it, not simply say you can just screw over your landlord and who cares? Which is what they did.”

“There’s constitutional protections for landlords under the U.S. Constitution which prohibits the interference of private contracts,” Sampson said. “A lease is the most perfect example of a private contract that there can be. So how does the state government get away interfering with that private contract by saying one end of it doesn’t have an obligation to the other party?”

“It’s completely criminal,” Sampson said of the eviction moratorium, the governor’s executive orders and the Democrat majority in the legislature. “They are picking sides and they are ruining people’s lives by abusing their authority.”

Republican House Leader Vincent Candelora also sees the eviction moratorium as a constitutional problem that was handled in a very political way.

“I’m certainly sympathetic to tenants who can’t pay their rent and certainly government came come in to help subsidize that, but this governor has gone way to far and I think callously taken away people’s constitutional rights,” Candelora said.

Candelora says he believes the Lamont administration saw the eviction moratorium as “a numbers game,” in that there are far more renters in the state than landlords and therefore there was far less political risk in alienating and angering rental property owners.

“There’s a balancing act between, when you take away someone’s constitutional rights there needs to be recognition of that,” Candelora said. “The government action needs to be construed as restrictive as possible and that is not the analysis, in my opinion, that has gone into this at all.”

To me this is a selective acknowledgement of the constitution and it’s based on the number of people impacted. It’s a numbers game and it’s a very populist type of behavior coming out of the Executive branch.

Republican House Leader Vincent Candelora, R-North Branford

“It’s really disturbing at its core,” Candelora said. “To me this is a selective acknowledgement of the constitution and it’s based on the number of people impacted. It’s a numbers game and it’s a very populist type of behavior coming out of the Executive branch.”

“The way the governor has handled the pandemic, with his high approval ratings, they are more concerned about politics than the principles of our Constitution,” Candelora said.

The federal eviction moratorium required tenants seeking eviction protection to sign documents attesting to the fact that they had suffered income deprivation due to the pandemic, had sought government relief and were in danger of becoming homeless. 

Gov. Lamont’s eviction moratorium was “automatic” in that it was blanket restriction on evicting tenants due to nonpayment of rent, only allowing for serious nuisance evictions and evicting those who were behind on rent before the pandemic.

Haberfeld says the court system should have been allowed to determine whether or not a tenant who wasn’t paying rent was affected by the pandemic.

“The intention [of the moratorium] was noble, is noble,” Haberfeld said. “If you have a short eviction moratorium, I get it, but after two months we should have had online Zoom court cases.”

“You have to give people their day in court,” Haberfeld said. “The only way to tell the difference between who was taking advantage and who was a real victim of the virus was to give them their day in court.”

Instead, the court system was closed down for several months during the pandemic, creating a backlog of cases that are just now being adjudicated and that backlog has spurred fears of an “eviction tsunami.”

In an effort to prevent that tsunami, Gov. Ned Lamont issued an executive order requiring landlords to first apply to UniteCT for federal funds before moving to evict a tenant for nonpayment of rent, but some of the landlords trying to get help are being blocked by their tenants.

“Nobody is winning in Connecticut in housing.”

David Candelora says that of the 300 units he manages, 75 tenants are behind on their rent and says the pandemic-related losses have been “astronomical,” with collection rates dipping from a normal 98 percent to 92 percent or 94 percent.

“If you consider that most of our clients have a 10 percent profit, when you take away 4 percent, that’s 40 percent of their profit,” David said. “That’s a significant hit, some owners never recovered.”

While Connecticut’s eviction moratorium took effect in April of 2020, the UniteCT program to allow property owners and tenants access to federal COVID relief funds wasn’t put in place until March of 2021, after Connecticut received $235 million in federal funds when President Joe Biden and Congress passed a stimulus package in December.

Prior to that funding package, there was little relief for landlords who were owed rent. The paycheck protection program did not cover lost rent, only payroll for employees. 

Some real estate management companies who employ agents, contractors and managers were able to receive PPP loans, including Prime Management, LLC which received two loans totaling $99,416 for 16 jobs related to real estate agents, brokers and building equipment contractors. Haberfeld’s Landlord Solutions, LLC, received two loans totaling $61,679, according the federal government’s website. Haberfeld says one of the loans was for his car dealership and the second was for office employees of his property management company. 

Housing is really, really damaged in Connecticut. It’s a bad time to be a tenant and a bad time to be a landlord. Nobody is winning in Connecticut in housing. Nobody.

David Haberfeld, rental property owner

Small property owners, however, were out of luck. Landlords could apply for an Economic Injury Disaster Loan through the Small Business Administration, although the low-interest loans would have to be paid back. 

“UniteCT provides Connecticut tenants and landlords and much-needed fresh start and further assistance so our families can get back on their feet without worrying about a roof over their heads,” Gov. Lamont said in a press release. “The pandemic exacerbated a national housing affordability crisis, especially for families of color who are more likely to rent their homes and more likely to have missed payments through no fault of their own.”

But David Candelora says he believes “a lot of people” are using the moratorium as an excuse to not pay, rather than because they were affected by a job loss during the pandemic. He bases his opinion on his company’s efforts to get UniteCT funding, which requires that both the landlord and the renter apply for funds.

Prime Management, LLC has applied for UniteCT funds for the 75 tenants who are behind on rent, however only 17 tenants have filled out their part of the application. The remaining 58 tenants “are intentionally not participating in the program,” David said.

“The only assumption I can make from that is that if someone wants to give you free money and all you have to do is prove you couldn’t afford the rent because of COVID and you’re not doing it, it means you could afford the rent,” David said. “That, to me, is the telling tale of what’s going on here.”

The constitutional questions of what occurred during the pandemic, particularly the question of whether state or federal governments could place a moratorium on evictions will eventually play out in the court system.

To date, three U.S. district court judges have ruled against the Centers for Disease Control and Prevention’s eviction moratorium, saying the CDC overstepped their authority. The most recent ruling against the CDC came in May of 2021 from a Washington D.C. district judge. The Biden administration is expected to appeal that ruling.

Meanwhile, three other district judges have upheld the federal moratorium. The case involving Connecticut property owners remains open.

But for some landlords and rental property owners the damage is already done.

“I’ve never felt more hated by my government than I have during this virus,” Haberfeld said. “They hate us. They think we offer no value. They think we’re greedy, rich and that we hurt tenants somehow.”

“Housing is really, really damaged in Connecticut. It’s a bad time to be a tenant and a bad time to be a landlord,” Haberfeld said. “Nobody is winning in Connecticut in housing. Nobody.”