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 send a series of memos 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 will review the various definitions and terms used in the Final Rule.
HUD continues in the Final Rule to make it clear that VAWA applies regardless of sex, gender identity, or sexual orientation. The rule does not apply solely to women, despite the law’s title.
In the final rule, HUD adds a provision stating that victims cannot be discriminated against on the basis of any protected characteristic, including race, color, national origin, religion, sex, familial status, disability, or, in the case of HUD programs, age.
HUD has revised the certification form, notice of occupancy rights, and model emergency transfer plan to list the four protected crimes separately, and to use the term “perpetrator” in lieu of, or in addition to the term “abuser” when referencing a person who commits one of the VAWA crimes. HUD has also revised the notice of rights and model emergency transfer plan to provide resources for victims of sexual assault and stalking, in addition to resources for victims of domestic violence.
The term “affiliated individual” does not refer to the tenant who requests or is eligible for VAWA protections. Rather, an affiliated individual refers to a person who has a certain relationship to a tenant who is eligible for VAWA protections.
A VAWA crime committed against an affiliated individual (who is not necessarily entitled to VAWA protections) is not a basis for denying or terminating assistance to the tenant. The term includes any individual “living in the household of the person who is eligible for VAWA protections.” Live-in aides fall under this category.
HUD has revised the definition of “affiliated individual” to include a relationship where an individual has guardianship of another individual, regardless of age. An “affiliated individual” means: (A) A spouse, parent, brother, sister, or child of that individual, or a person to whom that individual stands in the place of a parent or guardian; or (B) any individual, tenant, or lawful occupant living in the household of that individual.
Covered Housing Provider
For HUD’s multifamily Section 8 project-based programs, and for the Section 202 and 811 programs, the final rule provides that the owner is the covered housing provider and responsible for implementing the VAWA requirements. If a PHA is the owner of a project under one of these programs, the PHA is the covered housing provider.
If a PHA administers the programs at a property, the PHA will have primary oversight responsibilities under VAWA, including the provision of forms and notices for owners to give to tenants and applicants. For the Moderate Rehabilitation SRO program, both the PHA and the owner are responsible for ensuring that an emergency transfer plan is in place for the covered housing, but it is the owner that has the responsibility for implementing the emergency transfer plan.
In the case of the housing choice voucher program and project-based voucher program, it is the PHA that is the covered housing provider responsible for complying with the emergency transfer plan. The PHA is also responsible for providing the notice of occupancy rights and the certification form. However, for the housing choice voucher and project-based voucher programs, both PHAs and owners are covered housing providers and must adhere to the rule’s basic provisions.
For mixed-finance units and public housing developments that received public housing assistance under the Choice Neighborhoods and HOPE VI programs, the PHA is the covered housing provider.
For FHA-insured multifamily projects, the new rule clarifies that the covered housing provider is generally the mortgagor. However, if the mortgagor sells the project to a new owner, but continues as the mortgagor, the new owner is the covered housing provider.
VAWA 2013 defines domestic violence as including the following: Felony or misdemeanor crimes of violence committed by a current or former spouse on intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.
The final rule clarifies that the term “spouse or intimate partner of the victim” includes a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
The definition of “stalking” is when an individual, the perpetrator, engages in a 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. Stalking is not limited to situations where the perpetrator is someone with whom the victim was in any specific type of relationship.
This article has explained some of the basic terms used in the final HUD regulation. The next article will provide a detailed overview of the emergency transfer provisions of the final rule.