Reminder to PHAs: Domestic Violence Victims May Have Occupancy Rights Even if They are not the Eligible Tenant Under the Voucher Program
A recent court case (
A. S. v. Been, January 2017) serves as a reminder to PHAs that victims of domestic violence have VAWA protection even if the perpetrator of the violence is the eligible tenant.
In this case, a Section 8 voucher resident claimed that her husband attempted to rape her. She obtained an Order of Protection and submitted a HUD-91066 form to the PHA to initiate a lease bifurcation action in accordance with VAWA.
The husband was the holder of the voucher and the victim sought to have the voucher transferred to her name.
After a number of hearings and procedures, the PHA terminated the husband’s voucher with no mention of a process to appeal the decision. The wife filed suit to force the PHA to transfer the voucher and the PHA asked the court to dismiss the case. The PHA’s reasoning was that since the voucher was not in the wife’s name, she had no protected property interest. The wife argued that VAWA establishes that she had a protected property interest.
A New York district court denied the PHA request and ordered a trial. The court’s reasoning was:
- The PHA is subject to VAWA;
- VAWA allows a victim the opportunity to seek eligibility to receive the voucher if the PHA terminates the husband’s voucher;
- VAWA expressly provides for a bifurcation procedure to protect victims of domestic violence;
- VAWA’s bifurcation procedure allows PHAs to terminate assistance to any individual who engages in domestic violence without "penalizing a victim of such criminal activity who is also a tenant or lawful occupant of the housing." The statute also states that if the individual who is removed due to the perpetration of domestic violence is the "sole tenant eligible to receive assistance under a covered housing program," the PHA "shall provide any remaining tenant an opportunity to establish eligibility for the covered housing program;" and
- The court indicated that the law gives occupants of a unit who are not the voucher holders themselves some interest in the voucher.
The conclusion here is that lawful occupants of a unit assisted through the voucher program are protected by VAWA, including the lease bifurcation provisions.
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