Violence Against Womens Act (VAWA) Recommendations Relative to the LIHTC Program

 

United States Code Title 42, Chapter 136, Subchapter III, effective March 7, 2013, provides housing protections for victims of domestic violence, dating violence, sexual assault, and stalking. The following housing programs are required to comply with the VAWA:

*Supportive Housing for the Elderly under 12 USC §1701q;

*Section 811 Program;

*Housing provided under the ‘Aids Housing Opportunity Act’;

*Housing provided under the McKinney-Vento Homeless Assistance Act;

*HOME Program;

*Housing for Moderate Income and Displaced Families under paragraph (3) of §1751l(d) of Title 12;

*HUD Rental and Cooperative Housing for Lower-Income Families under §1715z-1 of Title 12;

*Public Housing;

*Rural Development Section 515 Rural Rental Housing, Section 514/516 Farm Labor Housing, Section 538 Guaranteed Rural Rental Housing, and Section 533 Housing Preservation Grant Programs; and

*The Low-Income Housing Tax Credit Program under §42 of Title 26.

The VAWA Act provides tenant rights and protections for tenants in the programs noted above. HUD has issued comprehensive regulations relating to the implementation of VAWA on HUD properties, and the Rural Development Service recently issued guidance regarding the establishment of a Model Emergency Transfer Plan for Rural Development housing programs (RD AN No. 4747 [1944-N], February 10, 2014). While the IRS has not yet issued guidance relating to VAWA implementation for the LIHTC program, the law does apply to tax credit properties and owners must take whatever steps they can, within the rules of the Section 42 program as they currently exist, to ensure compliance with the law.

 

Highlights of VAWA

• Provides legal rights and protections for victims of domestic violence, dating violence, sexual assault or stalking, as well as their immediate family members;
• Prohibits victims of domestic violence, dating violence, sexual assault or stalking from being evicted or being denied housing if an incident of violence is reported and confirmed;
• Criminal activity directly related to domestic violence, dating violence, sexual assault or stalking is not grounds for termination of the victim’s tenancy (see 7 CFR 3560.154[j]);
• Provides for the bifurcation of the lease in order to remove an offending household member from the home, while allowing the victim, who is a tenant or lawful occupant, to remain (for implementation guidance, see 7 CFR 3560.158[b] and [d]);
• Allows owners and managers to request that a tenant certify that he or she is a victim of domestic violence, dating violence, sexual assault or stalking in determining whether the protections afforded under VAWA are applicable;
• Requires that all information pertaining to an incident of domestic violence, dating violence, sexual assault or stalking remain confidential. A notice of victim’s right to confidentiality will be provided to applicants and tenants by owner or manager, once the notice is made available by HUD (to date, this Notice has not been developed); and
• Impacted tenants may be transferred to another available safe dwelling unit.

Recommendations to Owners and Managers for Implementation of VAWA

Owners and managers of housing affected by VAWA should update their tenant selection policies and occupancy rules (if any). The update should incorporate the tenant’s rights and protections in order to ensure that applicants and residents know their rights under the law and to avoid improper evictions.

Owners and managers of housing that receive Section 8 assistance should comply with HUD requirements, and owners and managers of Rural Development Section 515 projects should follow recently provided RD guidance. HUD currently utilizes Lease Addendum, Form HUD 91067, which includes certain rights and provisions of VAWA.

 

Prohibited Basis for Denial or Termination of Assistance or Eviction

In general, an applicant for or tenant of housing assisted under any of the covered housing programs may not be denied admission to, denied assistance under, terminated from participation in, or evicted from the housing due to the fact that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, if the applicant or tenant otherwise qualifies for admission, assistance, participation or occupancy.

 

An incident of actual or threatened domestic violence, dating violence, sexual assault, or stalking shall not be construed as –

• A serious or repeated violation of a lease for housing assisted under a covered program by the victim or threatened victim of such incident; or
• Good cause for termination of assistance, tenancy, or occupancy rights to housing assisted under a covered housing program of the victim or threatened victim of such incident.

 

No person may deny assistance, tenancy, or occupancy rights to housing assisted under a covered housing program to a tenant solely on the basis of criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking that is engaged in by a member of the household of the tenant or any guest or other person under the control of the tenant, if the tenant or an affiliated individual of the tenant is the victim or threatened victim of such domestic violence, dating violence, sexual assault, or stalking.

 

Bifurcation

An owner or manager of housing assisted under a covered housing program may bifurcate a lease for the housing in order to evict, remove, or terminate assistance to any individual who is a tenant or lawful occupant of the housing and who engages in criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking against an affiliated individual or other individual, without evicting, removing, terminating assistance to, or otherwise penalizing a victim of such criminal activity who is also a tenant or lawful occupant of the housing.

If the owner evicts an individual who engages in domestic violence, dating violence, sexual assault, or stalking, and the individual is the sole tenant eligible to receive assistance under a covered housing program, the owner or manager of the housing shall provide any remaining tenant an opportunity to establish eligibility for the covered housing program. If such tenant cannot establish eligibility, the owner or manager of the housing shall provide the tenant a reasonable time, as determined by the appropriate agency, to find new housing or to establish eligibility for housing under another covered housing program. {Note: IRS guidance is needed in this area for projects operated under the LIHTC program}.

 Rules of Construction

Nothing in the law limits the ability of an owner or manager to evict or terminate assistance of a tenant for any violation of a lease not premised on the act of violence in question against the tenant or an affiliated person of the tenant.

The law also does not limit the authority to terminate assistance to a tenant or evict a tenant if the owner or manager of the housing can demonstrate that an actual and imminent threat to other tenants or individuals employed at or providing service to the property would be present if the assistance is not terminated or the tenant is not evicted.

 Documentation

If an applicant for, or tenant of, housing assisted under a covered housing program represents to an owner or manager of the housing that the individual is entitled to protection under VAWA, the owner or manager may request, in writing, that the applicant or tenant submit to the owner or manager a form of documentation described below.

If an applicant or tenant does not provide the documentation requested within 14 business days after the tenant receives a request in writing for such certification from the owner or manager, nothing in the law prohibits the owner or manager from –

• Denying admission to the applicant or tenant;
• Denying assistance under the covered program;
• Terminating the participation of the applicant or tenant in the covered program; or
• Evicting the tenant or a lawful occupant that commits violations of a lease.

Owners or managers may extend the 14-day deadline at their discretion.

Allowable documentation includes:

1. A certification form approved by the appropriate agency (for LIHTC projects, guidance from the IRS is needed regarding whether the IRS will provide the form or the State HFA) that –
   1. States that an applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking;
   2. States that the incident of domestic violence, dating violence, sexual assault, or stalking that is the ground for protection meets the requirements of VAWA; and
   3. Includes the name of the individual who committed the domestic violence, dating violence, sexual assault, or stalking, if the name is known and safe to provide.
2. A document that
   1.  is signed by

i.     An employee, agent, or volunteer of a victim service provider, an attorney, a medical professional, or a mental health professional from whom an applicant or tenant has sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of the abuse; and

ii.     The applicant or tenant; and

1. States under penalty of perjury that the person described in clause (B)(a)(i)  believes that the incident of domestic violence, dating violence, sexual assault, or stalking that is the ground for protection meets the requirements of VAWA;

1. A record of a Federal, State, tribal, territorial, or local law enforcement agency, court or administrative agency; or
2. At the discretion of the owner or manager, a statement or other evidence provided by an applicant or tenant.

Confidentiality

Any information submitted to an owner or manager under the VAWA, including the fact that an individual is a victim of domestic violence, dating violence, sexual assault, or stalking must be maintained in confidence and may not be entered into any shared database or disclosed to any other entity or individual, except as requested or consented to by the individual in writing, required for use in an eviction proceeding, or otherwise required by law.

There is nothing in the law that requires an owner or manager to request that an individual submit documentation of the status of the individual as a victim of domestic violence, dating violence, sexual assault, or stalking.

 Response to Conflicting Certification

If an owner or manager of covered housing receives documentation that contains conflicting information, the owner or manager may require an applicant or tenant to submit third party documentation as described earlier in this memo.

 Notification Requirements

Owners or managers of affected housing must provide a notice of rights of individuals under the VAWA, including the right to confidentiality and the limits to that right. HUD is required to develop this Notice, and to date has not done so. This Notice, together with the form that individuals may use to state their status as victims of domestic violence, dating violence, sexual assault, or stalking, must be provided to applicants and tenants

1. At the time an applicant is denied residency in a dwelling unit assisted under the covered housing program;
2. At the time the individual is admitted to a dwelling unit assisted under the covered housing program;
3. With any notification of eviction or notification of termination of assistance; and
4. In multiple languages, consistent with the requirements of Executive Order 13166, relative to persons with limited English proficiency.

(I have developed a recommended Notice for properties to use until HUD publishes an official notice. If you would like a copy of the Proposed Notice, please contact me. I recommend you seek approval from the Agency overseeing your property prior to using the Notice).

 Emergency Transfers

While agencies administering covered programs should adopt model transfer policies for owners and managers, neither the IRS nor most state agencies have done so (HUD is drafting a policy and RD has created a model transfer policy), owners of LIHTC properties should consider developing their own policies until Agency guidance is available. Such policies should provide that

1. Tenants who are victims of domestic violence, dating violence, sexual assault, or stalking may transfer to another available and safe unit assisted under the program, if
   1. The tenant specifically requests the transfer; and
   2. The tenant reasonably believes that the tenant is threatened with imminent harm from further violence if the tenant remains within the same dwelling unit; or
   3. In the case of a tenant who is the victim of sexual assault, the sexual assault occurred on the premises during the 90-day period preceding the request for transfer;
2. Aside from the cost of the actual transfer, no transfer fee should be assessed to the Tenant; and
3. The policy must incorporate reasonable confidentiality measures to ensure that the owner or manager does not disclose the location of the dwelling unit of a tenant to a person that commits an act of domestic violence, dating violence, sexual assault, or stalking against the tenant.

I recommend that operators of LIHTC properties develop a basic principle regarding allowing the transfer of a tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking. My recommended policy statement is as follows:

 LIHTC Model Emergency Transfer Plan

Tenants who are actual or imminent victims of domestic violence, dating violence, sexual assault, or stalking, shall be permitted by the owner or manager to transfer to another available and safe dwelling unit within the project when a transfer is requested by a tenant, and (1) the tenant reasonably believes that he or she is threatened with imminent harm from further violence if he or she remains within the same dwelling; and (2) in the case of a tenant who is a victim of sexual assault, the sexual assault occurred on the premises during the 90-day period preceding the request for transfer; and (3) if requesting a transfer to a different building in the project, the income of the tenant, on the most recently completed Tenant Income Certification, did not exceed 140% of the maximum qualifying income for a new household of the same size as the tenants on the date of the completed Tenant Income Certification. If the income of the tenant exceeds the income as stated in (3), the Tenant will be allowed to terminate the lease in order to move to a safer environment, without the penalties outlined in the lease for early termination of lease. The tenant will remain responsible for any damage to the unit beyond normal wear and tear.

The owner/manager will not reveal the location of the new dwelling unit to the person that committed an actual or imminent act of violence.

 

Recommended Plan of Action for Owners and Managers of LIHTC Projects

1. Update Tenant Selection Policies and Occupancy Rules, incorporating tenant’s rights and protections.

2. Pending development by the appropriate agencies, owners should develop a certification form on which an applicant or tenant can certify their status as a victim of domestic violence, dating violence, sexual assault or stalking. This form should be sent to the appropriate state agency for approval.

3. Develop a Notice of rights to individuals under the VAWA, including the rights to confidentiality and the limits to that right.

4. Develop an emergency transfer policy (I have included an example of such a policy for LIHTC properties).