Applicability of Final VAWA Rule

On November 16, 2017, I sent a memo to clients informing them of the publication of the HUD Final Rule implementing the changes to the Violence Against Women Act (VAWA). Over the next few weeks, I will post a series of articles outlining the various sections of the rule. The rule is long and complex, and explaining the requirements through a series of memo/articles may make it easier to digest and understand. In this article, I want to discuss the applicability of the rule.

Applicability

• Eligibility for VAWA Protections.
  • The final rule seeks to ensure proper evaluation of individuals who are or have been victims of domestic violence, dating violence, sexual assault, or stalking.
  • VAWA 2013 prohibits the denial of admission or assistance to an individual “on the basis” of that person having been a victim of domestic violence, dating violence, sexual assault, or stalking. HUD interprets “on the basis” to include factors directly resulting from the domestic violence, dating violence, sexual assault, or stalking.
    • g., if an individual has a poor rental or credit history, or a criminal record, or other adverse factors that directly result from being a victim of domestic violence, dating violence, sexual assault, or stalking, the individual cannot be denied assistance under a HUD program if the person otherwise qualifies for the program.
  • VAWA 2013 does not independently provide protection for victims of economic abuse who are not also the victim of domestic violence, dating violence, sexual assault, or stalking.
  • Both VAWA 2013 and the final rule provide that applicants will be provided with notice when they are denied assistance or admission under a covered housing program for any reason.
  • The final rule adopts the universal definition of stalking, which is “any course of conduct directed at a specific person that would cause a reasonable person to fear for their own safety or the safety of others, or suffer substantial emotional distress.”
  • The rule clarifies that only tenants who are assisted by a covered program can invoke the VAWA protections that apply solely to residents.
    • The term “tenant” refers to an assisted family and the members of the household on the lease but does not include guests or unreported members of a household.

• A Live-in aide or caregiver is not a tenant, and cannot invoke VAWA protections.
  • However, a live-in aide or guest could be an affiliated individual of a tenant, and if that aide or guest is a victim of domestic violence, dating violence, sexual assault, or stalking, the tenant with whom the affiliated individual is associated cannot be evicted or have assistance terminated on the basis of the domestic violence, dating violence, sexual assault, or stalking.
  • Also, if a live-in aide is a victim of domestic violence, dating violence, sexual assault, or stalking, and the tenant seeks to maintain the services of the aide, the housing provider cannot require that the aide be removed from the household on the grounds of being a victim of abuse covered by VAWA.
  • To require removal of the aide solely because the aide is a victim of abuse covered by VAWA likely would violate the Fair Housing Act’s reasonable accommodation provisions.
  • If a tenant requests and qualifies for an emergency transfer because the aide is a victim of domestic violence, dating violence, sexual assault, or stalking, the tenant’s entire household – including the aide – can be transferred.
• If an unreported person is living in a unit and the tenant is afraid to ask the unreported member to leave due to a domestic violence experience, the tenant is covered by VAWA and eligible for the remedies provided.

• The final rule clarifies that only properties using HUD covered programs are subject to the rule. Therefore, housing providers with a mixed portfolio (i.e., a combination of HUD and non-HUD projects) may not be required to provide VAWA protection to tenants in non-covered projects.
  • Housing providers should be aware of other Federal, State, and local laws that may apply.
    • g., properties with Low-Income Housing Tax Credits (LIHTC) are subject to VAWA and should seek guidance from the Department of Treasury or the appropriate Housing Finance Agency (HFA).

• A tenant or family may invoke VAWA protections on more than one occasion and cannot be subjected to additional requirements because they have invoked VAWA in the past.
  • In cases where the presence of the perpetrator on the property will endanger persons other than the tenant, a housing provider may evict or terminate assistance to a tenant.
    • The housing provider must be able to demonstrate an actual and imminent threat to others if the tenant is not removed, and this is considered a last resort action.
  • Victims do not have to contact authorities, such as police, or initiate legal proceedings against an abuser or perpetrator to qualify for VAWA protections. In other words, housing providers may not require that a victim obtains or seek a restraining order.
• Covered Programs:
  • The final rule lists all the programs covered by VAWA and adds the Housing Trust Fund (HTF) program. Since the HTF is very similar to the HOME program, which is a covered program, HUD states that exclusion of the program from VAWA coverage would not be logical.
  • Virtually all Section 202 projects are also covered, unless the Section 202 direct loan project has no agreements or contracts with HUD (such as project-based Section 8). These projects are limited in number but are not subject to VAWA.
  • Concerning the Rental Assistance Demonstration (RAD) program, tenants in converted units continue to be covered by VAWA protections provided under HUD’s Section 8 Project-Based Voucher or Project-Based Rental Assistance Program.
  • Residents residing in units with assistance under the Choice Neighborhoods program receive VAWA protection under the relevant rental subsidy programs if the assistance comes from a HUD covered housing program.
  • Tenants in public housing that received funding under the HOPE VI program will have the same VAWA rights as other public housing tenants.
  • HUD funded emergency shelters are also covered by VAWA.

The next article will focus on the various definitions and terminology unique to the VAWA 2013 Act and final HUD rule.