VAWA Emergency Transfer, Documentation, and Lease Bifurcation Requirements
person
A.J. Johnson
today
12/23/2016
The most detailed and complex part of the HUD Final Rule on VAWA deals with the emergency transfer requirements. This article focuses primarily on those requirements. I am also covering basic documentation and verification requirements, as well as final rule elements relating to lease bifurcation.
Emergency Transfer Documentation Requirements
The VAWA statute does not apply documentation requirements to emergency transfers. The HUD final rule works to clearly outline these requirements.
The final rule allows housing providers, at their discretion, to require that tenants requesting transfers submit a written request before a transfer occurs certifying that they meet the criteria for an emergency transfer. To make this process easier on owners, HUD has created a model emergency transfer request, and has recently made that model document available. Housing providers may accept third party documentation if that documentation is offered by tenants, but are not permitted to require any third party documentation in order to determine whether a tenant is eligible for an emergency transfer.
HUD clarifies in this final rule that housing providers may require tenants seeking emergency transfers to document an occurrence of domestic violence, dating violence, sexual assault, or stalking, in addition to documenting eligibility for an emergency transfer, if the individual has not already provided documentation of that occurrence. Housing providers must keep in mind that individuals may provide self-certification in lieu of any other documentation do document an occurrence of a VAWA-protected incident.
The final rule allows housing providers to require that tenants seeking emergency transfers provide documentation - which could be a written request - that they meet the requirements for a transfer. Those requirements are that the individual expressly request the transfer and either reasonably believe that there is a threat of imminent harm from further violence if the tenant remains in the same dwelling unit that the tenant is currently occupying, or, in the case of a tenant who is a victim of sexual assault, the tenant also qualifies for a transfer if the assault occurred on the premises during the 90-calendar-day period preceding the date of request for the transfer.
The final rule makes clear that while housing providers may require that tenants submit a written request for a transfer and certify the need for a transfer, they may not require third-party documentation for an emergency transfer. This is a change from the proposed rule.
In the final rule, HUD acknowledges that some tenants may request an emergency transfer for the purpose of obtaining a superior housing unit or to break their lease. However, HUD does not believe this justifies a third party documentation requirement. Therefore, housing providers are not permitted to require that tenants requesting an emergency transfer under VAWA submit third party documentation to qualify for an emergency transfer.
The final rule also states that housing providers must keep a record of all emergency transfer requests and the outcome of such requests. These records must be retained for a minimum of three years.
Emergency Transfer Costs
Under the final rule, housing providers will not be required to bear moving costs that tenants and their household members generally pay, including application fees and deposits, in addition to costs to physically move households and their belongings.
HUD understands that moving costs may be prohibitive for some victims and encourages housing providers to bear these costs where possible, or to work with victims to identify potential sources for funding the cost of transfers. However, there is no requirement that housing providers bear or assist in payment of these costs.
Model Transfer Requests
The model transfer request form that HUD has developed and made available is only a model and housing providers are not required to use it. However, the model form may serve as documentation of the need for a transfer and owners should give serious consideration to using the model form.
Transfer Plans
HUD’s emergency transfer plan contains specific elements that must be adopted by all housing providers, regardless of the HUD housing program in which they participate.
In terms of time periods, in the final rule HUD does not mandate specific time periods for responding to emergency transfer requests. However, HUD may consider establishing timeframes in the future.
HUD does include language in the model emergency transfer plan requiring that the housing provider maintain confidentiality with regard to any information a tenant provides when requesting an emergency transfer. Unless the tenant gives the housing provider written permission to release the information, or disclosure is required by law or required for use in an eviction proceeding or hearing regarding termination of assistance from the covered housing program.
Transfer Eligibility
The issue was raised during the comment period for the proposed rule regarding whether or not minors would be eligible for emergency transfers. The final rule states that un-emancipated minors are not eligible to sign leases under HUD programs. For this reason, housing providers should consider contacting child welfare or child protective services, or law enforcement when a minor claims to be the victim of domestic violence, dating violence, sexual assault, or stalking.
Owners are reminded that the provisions in VAWA relative to emergency transfer requests do not supersede eligibility requirements for any housing program - HUD or otherwise.
Effectiveness of Transfers
HUD notes in the final regulation that a transfer to a unit within the same project in which the perpetrator resides may not be safe for victims. However, if the unit in the same development is the only one available, the victim should be given the choice of whether or not to transfer to the unit. So, HUD does not prohibit emergency transfers within the same property, but encourages housing providers to endeavor to identify an available unit in another property.
Emergency Transfers for Sexual Assault
HUD has revised the final rule to clarify that in the case of a tenant who is a victim of sexual assault, the tenant qualifies for a transfer if either (1) the tenant reasonably believes that there is a threat of imminent harm from further violence if the tenant remains within the same unit that the tenant currently occupies, or (2) the sexual assault occurred on the premises during the 90-calendar-day period preceding the date of request for transfer.
The Scope of the Transfer Provision
The final rule has been revised to state that any emergency transfer plan must allow tenants who are victims of domestic violence, dating violence, sexual assault, or stalking to make an internal emergency transfer under VAWA when a safe unit is immediately available. The proposed rule regarding transfers to a unit in another covered housing program if such transfer is permissible under applicable program regulations has been removed from the final rule.
In a very good provision to the final rule, HUD has declined to require housing providers to keep units vacant for a period of time after a victim has moved from a unit. Some commenters on the proposed rule felt that filling a unit too soon after the move-out of a victim would alert the perpetrator that the victim had moved. HUD will allow housing providers to leave units vacant if they believe that this action will be in the best interest of the property’s residents, but HUD is not requiring that housing providers take this action.
Recommendations
While HUD does not require the use of its Model Transfer Plan, it does require that any transfer plan include the components of the HUD model. For this reason, using the HUD model makes sense and I recommend doing so. There is no reason for owners of covered properties to reinvent the wheel and the HUD Model Transfer Plan is well written and pretty easy to understand.
I also recommend use of the model for non-HUD properties that are also subject to VAWA 2013, such as the Low-Income Housing Tax Credit program.
VAWA Documentation & Verification Requirements
Part of the final VAWA rule outlines the forms that are required for implementation of VAWA. HUD makes it clear that except for documentation of emergency transfers, the victim has discretion over what form of documentation will be submitted to show that the individual is a victim of domestic violence, dating violence, sexual assault, or stalking.
In order to reduce confusion between programs, HUD has created a certification form that will be used for all covered programs. That certification form may be downloaded from HUDClips.
HUD also recognizes that some VAWA victims may not be able to acquire third party documentation to resolve conflicting evidence within 14 business days, as was contained in the proposed rule. For this reason, the rule has been revised and tenants will have 30-days to submit third party documentation in cases of conflicting evidence. Housing providers may grant extensions to this 30-day period.
Based on available information, it is apparent that some owners and Public Housing Agencies (PHAs) are demanding Orders of Protection, Harassment Orders, Trespass orders, or police reports prior to providing the VAWA required protections. Some are even requiring multiple forms of proof. As a result, the final rule states clearly that applicants or tenants may submit - at their discretion - any one of the listed forms of documentation. Except in cases involving conflicting evidence, housing providers are required to accept self-certifications. To reiterate, it is the victim who may choose whether to submit self-certifications or third party documentation.
VAWA Lease Bifurcation Provisions
VAWA 2013 allows (but does not require) owners to "bifurcate" leases in order to protect victims of domestic violence, dating violence, sexual assault, or stalking. The purpose of a lease bifurcation is to remove the perpetrator from a unit without evicting, removing, terminating assistance to, or otherwise penalizing a victim who seeks to remain in the unit. In the final VAWA rule, HUD has included provisions relating to lease bifurcation.
One of the major issues addressed in the final rule is what happens if the perpetrator who is removed from a unit due to bifurcation is the family member whose characteristics qualified the rest of the family to live in the unit or receive assistance. This final rule maintains the provisions in the proposed rule that housing providers must give victims a 90-day time period for establishing eligibility for a program and finding new housing, and that extensions for up to 60-days may be provided. However, statutory requirements of various programs are not superseded by VAWA 2013. For example, the Section 236, public housing, and Section 8 programs allow pro-ration of rent or assistance for certain families where eligibility has not been established for all members. In these cases, remaining tenants following a lease bifurcation may still need to establish their eligibility for the covered housing program if they have not provided documentation of satisfactory immigration status.
Under the Section 202 and Section 811 statutes, HUD cannot continue to subsidize a unit for remaining family members after a lease has been bifurcated if at least one of the remaining family members has not established eligibility for the program. Although this regulation provides that if a landlord chooses to bifurcate a lease under VAWA for a unit with a Project Rental Assistance Contract (PRAC) under the Section 202 or 811 programs, and the remaining family members have not established eligibility for the program, the landlord must provide a reasonable time period of 90-days for the remaining family members to remain in the unit. However, HUD will no longer be able to provide a subsidy to that unit during the time when it has not been established that an eligible individual is residing in the unit.
For this reason, the final rule has been revised to state that this 90-day calendar period will not be available to a remaining household member if statutory requirements of the covered program prohibit it, and that the 90-day calendar period also will not apply beyond the expiration of a lease, unless program regulations provide for a longer time period. For example, where an individual is ineligible because of immigration status, HUD is statutorily prohibited from permitting that family member to stay in the unit beyond 30 days if satisfactory immigration status cannot be proven.
Bifurcation Logistics
The definition of bifurcation in the regulations explains that if a VAWA act occurs, "certain tenants or lawful occupants" can be evicted while the remaining "tenants or lawful occupants" can continue to reside in the unit. This final rule clarifies that the terms "tenants or lawful occupants" does not include " affiliated individual."
Affiliated individuals are neither tenants nor lawful occupants. Affiliated individuals are not protected under VAWA 2013 or HUD’s VAWA regulations. However, a tenant may be entitled to VAWA protections and remedies because an affiliated individual of that tenant is or was a victim of domestic violence, dating violence, sexual assault, or stalking. In no case may an affiliated individual themselves seek remedies from the housing provider.
State and local laws may address lease bifurcation and, where they do, covered housing providers must follow these laws.