Fair Rent Rejects 9 Retaliation Claims

“Because.”

That was the key word in the Fair Rent Commission’s rejection of a host of tenants union retaliation complaints, on the grounds that the Emerson Apartments’ new landlord had done no legal wrong in not renewing their leases.

The commission issued those rejections at online hearings Tuesday night, the latest in the ongoing saga of the Emerson Apartments at 284 Orange St.

The Fair Rent Commission gathered for its latest virtual monthly meeting to hear retaliation complaints filed in late June by more than half a dozen tenants of that downtown, 18-unit apartment building.

Those complaints alleged that the building’s new owner, a holding company controlled by Edgewood-based landlord Michael Hayes, violated city and state law by retaliating against union members by choosing not to renew the renters’ leases in order to facilitate needed building repairs.

Some of those leases expire next spring. Some expire at the end of this month.

The Fair Rent Commission heard two cases on those matters Tuesday night — and ultimately sided with the landlord on both of them.

They threw out the tenants’ complaints because the tenants hadn’t proven that the landlord had chosen not to renew their leases because of their membership in a tenants union.

They also ruled a lease non-renewal does not rise to the level of retaliatory action in the same way that a lawsuit or eviction does.

The tenants’ ​“whole argument is disingenuous,” Fair Rent Commission member Doug Losty said Tuesday night in reference to their claim that a lease non-renewal should be viewed in the same light as a pre-eviction notice to quit. And if these tenants are hit with notices to quit, he said, tenants will have plenty of time to contest those in court and before the Fair Rent Commission.

Bita Taubes, the sole commissioner to side with the tenants in one of the two cases heard Tuesday night, argued that ​“you can’t displace people” in this rental market — in the way that these lease non-renewals would.

“We can’t change the ownership status of the building,” Losty replied, even if the commission wanted to.

Tenants: This Is "Union Busting"

In the first case, Emerson tenants Raymond (RJ) Hinds and Stephanie Perez sought a ruling of retaliation and a cease-and-desist order allowing them to renew their lease long-term when it expires in April 2025. The second case sought the same for eight other tenants of the Emerson Apartments.

There were two relevant statutes in play. One was the state-level General Statute Sec. 47a-20, which deems that a landlord ​“shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled” within six months of the formation of a tenants union.

The other is Sec. 12 ¾‑10 of Title III of New Haven’s municipal code. The relevant definition of retaliatory action from that statute is as follows: ​“it shall be retaliatory action for a landlord to refuse to renew the lease or other rental agreement of any tenant…because a tenant has filed a complaint with the Fair Rent Commission.”

Hinds and Perez laid out a timeline to demonstrate that the notices of non-renewal posted on the doors of their Emerson Apartments unit constituted retaliatory action.

On Feb. 23, they were enrolled as members of the Emerson Tenants Union.

On June 7, the building’s sale to new owner Michael Hayes was registered in the city’s land records.

On June 10, after finding contact information for the new property manager, Naomi Freeman, Hinds sent an e‑mail inquiring about the new owner, asking about rental payments, which had been double-charged for the month of June, and notifying the property manager of the existence of a tenants union in the building.

On June 14, notices were posted on the doors of each unit, notifying tenants that their leases would not be renewed long-term once they expired.

The same day, Hinds and Perez filed a complaint with the Fair Rent Commission.

To Hinds, this clearly demonstrated a ​“landlord seeking to remove union presence” and reflected a ​“shotgun approach” to ​“union busting.”

The attorney representing the Emerson tenants, Dahlia Romanow of Connecticut Fair Housing Center, asked the commission to issue a cease-and-desist order to the landlord.

Landlord: This Is Just About Renovations

Ian Gottlieb of Gambardella, Cipriano, Gottlieb & Hathaway, representing Michael Hayes and Emerson LLC, came in swinging like a trial lawyer. Gottlieb laid out the legal principles and statute interpretations at work.

Above all, he said, the statutes have to be ​“strictly construed.”

“The commission cannot engage in hypotheticals” and ​“smash together statutes,” Gottlieb added.

Here’s what he meant: the state statute protects tenants union organizers from ​“an action or proceeding,” i.e. a lawsuit. The local statute does classify lease non-renewal as potential retaliation but only if it’s because of a previously filed Fair Rent Commission complaint. Gottlieb argued that the local statute cannot be combined with the state statute to protect tenants union organizers from lease non-renewal.

Gottlieb demanded that the Fair Rent Commission produce a timestamp for the June 14 complaint filed by Hinds and Perez. If the June 14 complaint was issued before the non-renewal notices posted the same day, there might be a case for retaliation.

According to the wording of the municipal ordinance, communications to the property owner cannot be the basis for retaliation — there must be a complaint filed with the Fair Rent Commission. Thus, Hinds’s e‑mail alerting property management of the existence of a tenants union could not be considered the foundation for retaliatory action.

FRC Executive Director Wildaliz Bermudez said all filings are processed at the end of the day, so there was no way to find a direct timestamp. But, Bermudez added, the FRC’s records show that the landlord was only notified of the June 14 complaint on July 3, well after the notices were posted on the doors.

The next case, which operated on similar principles, involved eight other tenants of the Emerson Apartments filing retaliation complaints: Samantha Shepherd, Ahmad Chaudhry, Yvonne Bird-Griffin, Aysel Aziz, Colin Glen Hoch, Chad Beebe, Xinyi Xie, and Nour Ebid. Unlike Hinds and Perez, these tenants had not filed previous complaints with the Fair Rent Commission.

In the absence of a complaint, this second group of tenants was reliant on the state statute, i.e. on demonstrating the landlord had maintained an ​“action or proceeding” against the tenants within six months of their joining a tenants union.

Assistant Corporation Counsel Joseph Merly, the commission’s in-house city attorney, told the commission that ​“action or proceeding” referred strictly to a legal action like a suit or an eviction proceeding. The notices of non-renewal, he said, were closer to a ​“non-action.”

Romanow asked the commission to consider a notice of non-renewal as ​“a threat to issue a notice to quit,” a definition that ultimately did not hold water with the commission.

According to Hayes, the non-renewals had nothing to do with retaliation. ​“As far as union activity, my client really doesn’t care about that,” Gottlieb said. Hayes’s interest is to ​“make the property solvent,” and to do so, the building needs to be vacant to undergo dramatic construction and repairs.

It would be ​“impossible to continue renovations with tenants in place,” Hayes told the commission, though he wouldn’t ​“pigeonhole” himself with a date for starting construction.

The tenants disputed this need for vacancy, citing texts between tenant Samantha Shepherd and property management in which property management claimed current tenants would have a ​“high probability” of experiencing ​“construction noise, etc.” should they ​“opt to carry [their] lease to term.”

The Fair Rent Commission voted unanimously that Hinds and Perez’s case was not retaliation. They voted 7 – 1, with Commissioner Bita Taubes opposed, to find that there was no retaliation in the second case. They based their decisions on the fact that there was no notice to quit issued in either case, and no formal complaint filed in the second case.

Alexander Kolokotronis, the president of the Emerson Tenants Union, wrote to the Independent that the union is ​“disappointed in the outcome of the proceedings.” The members ​“are a community of friends and neighbors that preexists the formation of this tenants union, and are disheartened at the continued prospect of our community being broken apart.” They will ​“continue to push for him to engage with us in collective bargaining.”

Hayes did not respond to a request for comment.