Thomas Breen photo
State housing court Judge John Cirello.
A housing court judge turned down a landlord’s bid to evict one of his tenants instead of accepting state rental assistance funds designed to keep her in place — ruling that a property owner who has applied to Connecticut’s pandemic-era relief program can’t simply change his mind after the state has already cut a check.
State Superior Court Judge John Cirello handed down that decision in a state housing court eviction case that dates back to November 2020.
The judge’s decision affirms the legal weight that UniteCT’s so-called Program Participation Agreement holds as a contract among a landlord, a tenant, and the state.
UniteCT is Connecticut’s emergency rental assistance program that covers up to $15,000 in back rental and electricity payments for low-income tenants who have been financially impacted by Covid.
In his decision this past Thursday, Cirello called out a section of the Program Participation Agreement that states that a landlord “shall immediately withdraw” an eviction lawsuit against a tenant if the landlord and tenant have applied for UniteCT funds, and if that application is approved by the state.
“It is undisputed that the landlord signed an application for UniteCT. It is also undisputed that the application was approved, and UniteCT funds were received by the landlord, by way of a check,” Cirello wrote.
“The landlord is required to withdraw the action once the application is approved. That event has taken place. The request for a summary process execution is denied.”
During a remote court hearing held several hours before Cirello handed down his decision, the judge commended legal aid and tenant attorney Yonatan Zamir and landlord attorney Zev Sandman for “giving the court mental gymnastics” in their spirited arguments for and against the landlord’s bid to break the UniteCT agreement and evict his tenant.
“Mr. Schwartz, the court has been a tenant, and the court has been a landlord in the past,” Cirello said to the landlord, Yonah Schwartz, whose company NHCD 4 LLC was pursuing the eviction in this case. “I sympathize with your situation. I understand there are some tenants you want out. This may be one of them.”
But, as Cirello’s decision bore out, just because a landlord wants to get rid of a tenant doesn’t mean they can break the terms of a state-sanctioned contract.
Unpaid Rent, Landlord-Tenant Stip, Vulnerable Tenant
Thomas Breen file photo
Legal aid's Yonatan Zamir.
The case itself dates back to Nov. 18, 2020, when Schwartz’s NHCD 4 LLC first filed an eviction lawsuit against a tenant living at the Edgewood apartment building at 90 – 98 Norton St.
That eviction lawsuit stated that the tenant, who has a Section 8 federal housing subsidy, had failed to pay in full her portion of the apartment’s $1,300 monthly rent for eight months straight between March and October 2020.
At that time in the pandemic, the state still had an eviction moratorium in place that prohibited evictions for nonpayment of rent — except if a tenant was six or more months behind on rent.
Attorney Sandman, writing on behalf of his landlord client, argued that the tenant fell into that six-months-or-more delinquency, and therefore should be evicted.
In January 2021, then-state housing court Judge Claudia Baio affirmed the landlord’s position. She issued a judgment of possession on his behalf due to the tenants’ nonpayment of rent.
In early March, Zamir filed an appearance with the court on behalf of the tenant, the landlord withdrew his summary process execution filing, and — on March 30 — the two sides agreed to a new stipulated agreement.
That agreement between landlord and tenant stated that the landlord could not evict the tenant until March 31, 2022, on the condition that the tenant make monthly rent payments of $240.
The stipulation also required the tenant to make additional monthly payments of $100 to chip away at $2,445 in unpaid back rent and $305 in attorney’s fees.
On July 1 of this year, Schwartz filed an affidavit of noncompliance with the stipulation. Schwartz alleged that the tenant had missed her required $240 rent payment and $100 arrearage payment in June.
The landlord then filed a summary process execution for possession, seeking to evict the tenant for falling behind again on rent and for allegedly breaking the terms of the March stipulated agreement.
In a July 2 objection to Schwartz’s move to evict the tenant, Zamir pointed that his client has a project-based federal Section 8 rental-subsidy voucher administered by the city’s housing authority. He said the tenant has a disability, and that her sole source of monthly income comes from Social Security. She is a mother of three, he said; one of her children is just an infant.
The tenant “suffered the loss of her wallet, which caused the delay in payment here,” Zamir wrote. “She does not have resources to draw upon, nor does she have family nearby to obtain assistance. If she were to be evicted, she would have to enter a homeless shelter with her children.”
On Sept. 2, after holding a remote hearing in the case, Judge Baio continued the case for 30 days after confirming with both Sandman and Zamir that “the defendant has a pending application with UniteCT.”
Since the governor’s modified eviction moratorium requires landlords to apply to the state rental assistance program before moving ahead with an eviction, Baio agreed to stay the matter for 30 days before ordering another round of mediation between the landlord and the tenant — all based on how the UniteCT application shook out.
Landlord To State: Keep Your Relief $
Which brought the case to Thursday’s remote hearing.
With Zamir, Sandman, Schwarz, and Cirello all appearing in different squares of the live online video stream, the attorneys made their cases for why the judge should or should not allow the landlord to follow through with his renewed efforts in July to evict the tenant for not following the terms of the stipulated agreement.
Cirello kicked off the hearing by confirming with both Zamir and Sandman that the state had approved the UniteCT application and that the landlord, Schwarz, had received a check worth $2,880.
However, Sandman said, the landlord has not yet deposited that check — and does not want to accept those funds. Instead, he wants to let the uncashed check go void, and evict the tenant instead of taking the approved state help.
Why is that?
Because the tenant has missed making some of the rental payments required under the March stipulated agreement.
There have been “too many missed payments,” Sandman said. “Too many missed use-and-occupancy payments.”
Because of that, the landlord doesn’t want to participate in the UniteCT program anymore. “They’re afraid they’ll participate, and then they’ll be back here in two months” when the state rental relief money runs out and if the tenant doesn’t pay rent again.
Instead, Sandman said, the landlord wants to “move on from this landlord-tenant relationship.”
Sandman said that the tenant currently owes $3,340 in back rent. That includes the “prior balance” coming into the March stipulated agreement.
Zamir defended his client by clarifying that she has “made some payments” before and after the stipulation, and “then she had some great difficulty with [the $240 monthly rent and $100 monthly arrearage payments] for a number of reasons directly due to the pandemic.”
After agreeing to the stipulation with the landlord, Zamir said, he worked with the tenant to apply for UniteCT.
UniteCT subsequently approved the application, and has now sent the landlord a check worth $2,880.
Assuming that Sandman’s assertion that the tenant owes a total of $3,340 in back rent at this time, Zamir said, the $2,880 state check would bring his client to within $460 of being whole.
“She is very clear on the need to repay that amount,” Zamir said.
He also reiterated just how hard life has been for his tenant during the ongoing pandemic. “She struggles,” she said. “She receives only a monthly income of Social Security disability. That’s her sole source of income. The pandemic dealt her a difficult blow.” When she signed onto the stipulation in March, she genuinely thought she would be able to make good on those monthly payments, he said.
“She struggled. No two ways about it.”
Tenant's Lawyer: A Contract Is A Contract
Zamir then pointed to the UniteCT agreement.
Since that pandemic-era rental relief program requires both the landlord and the tenant to sign on, and since both parties did in this case, both parties also explicitly agreed to the terms of the program.
“It would be against the rules of the Program Participation Agreement, which are a contract, for them to decide now” that they don’t want to participate in UniteCT, Zamir asserted. Especially since UniteCT has already approved the application and sent the landlord a check.
Cirello paused to mull that assertion over.
As he talked through his own thinking on the matter, he used an analogy of a car sale to illustrate the binding nature of contracts.
“To refuse funds after they’ve been delivered and backing out of the contract at that point when full performance has been made … If I’m selling my car and I agree on a price of $6,000, and by Friday, the person comes and gives me a check for $6,000 and wants the car, and I say, ‘I’m sorry, I’m not going to cash your check. Here’s your check back.’ … I think the purchaser of the car still has contract rights.”
He turned back to Sandman. “To refuse the funds after a check has been issued … I think it would go against contract law to say that I’m refusing the funds after everybody’s complied.”
A fair point, Sandman said. But the landlord wants to renege on the UniteCT contract because the tenant reneged on the stipulation agreement contract first.
When the tenant failed to make her monthly rent and arrearage payments in full in June, he said, she violated the terms of that March agreement approved by the court.
“She had a contract from that perspective which she didn’t keep to, and based on that is why we initiated the execution,” he said.
“She didn’t keep to her side of the bargain” with the stip, Sandman continued. So “we’re not going to keep to our side of the bargain” with UniteCT.
“All We Want Is Possession”
That’s when Schwartz spoke up.
“We had not interest in UniteCT,” the landlord told the court. “We had interest in possession of the property.”
He said that “we were forced under duress” to apply to the state rental relief program. He never really wanted that state help.
“All we want is possession,” he said. “What’s the point of eviction court if you can’t get possession?”
Zamir pushed back on Schwartz’s characterization that he was “forced” to participate in UniteCT.
“UniteCT is not a compulsory program,” Zamir said. “There was no compulsion on the part of the landlord to fill out or complete the UniteCT forms. … I would be surprised in anybody told him, ‘You have no choice.’”
“The Assistance Was Approved. The Check Was Cut”
Zamir then took aim at Sandman’s argument that the landlord should be able to break his contract because the tenant had already broken hers.
“We had a stipulated agreement [from March], which is a contract,” Zamir agreed. “She broke the contract.” The landlord then filed an affidavit of noncompliance and moved to follow through with the eviction in July. Zamir and the tenant then filed an objection.
“Then I say, ‘How about this, a new contract?’” Zamir continued about the negotiations between landlord and tenant over the summer. “‘You accept UniteCT,” which will pay substantially all of the arrears to date, “she will pay the rest,” and the case will be over.
The two parties then entered into that new contract, Zamir said, when they both applied to UniteCT.
“The assistance was approved. The check was cut.” And now the landlord wants to go back on that most recent contractual obligation.
“I don’t think I have much of a choice here,” Cirello said.
The UniteCT Program Participation Agreement clearly states that a landlord who has applied to the program has to withdraw an eviction lawsuit against a tenant if and when the state approves that application for rent relief money.
“The triggering effect for the filing of the withdrawal is approval of assistance.”
With that, he thanked both parties for making their cases to the court. And later that same day, he issued his decision turning down the landlord’s bid to evict his tenant because he no longer wanted to take the UniteCT check that had already been sent by the state.
On Monday, Schwartz’s company formally withdrew the eviction lawsuit “as UniteCT funds have been received.”