The cost of implementing the VAWA 2013 requirements can be significant. The HUD final rule provides guidance on who will bear the cost of implementation.
One issue is who bears the cost if a property is damaged due to a VAWA-related incident. The final rule lacks clarity and simply states that the means for recuperating costs for damages will vary depending on the HUD-covered program.
HUD also states that while implementation of these new rules will increase costs to housing providers, there will be no increase in funding to offset the additional expenses. Basically, the law creates an “unfunded mandate” on covered housing providers.
At least one section of the final rule is clear with regard to the cost of emergency transfers. While covered housing providers are “encouraged” to pay for or assist with the cost of emergency transfers, there is no requirement that they do so.
Issue: Can a tenant or applicant terminate a lease for VAWA related reasons? The answer is yes – the VAWA lease term/addendum must provide that the tenant may terminate the lease without penalty if a determination is made that the tenant has met the conditions for an emergency transfer.
Issue: What are the rights of Limited English Proficient (LEP) victims under VAWA? Executive Order 13166 directs all federal agencies to ensure that programs receiving federal assistance provide meaningful access to LEP persons. Covered housing providers are required to follow the Executive Order, but are not required to go beyond that order. Required steps may include providing oral interpretation services, hiring bilingual staff, and providing notices of LEP services.
Issue: To what extent to VAWA protections to mixed status immigrant families? There are no special protections for mixed status immigrant families.
Issue: Are lease violations unrelated to domestic violence affected by VAWA? No – housing providers may evict or terminate assistance to a victim of domestic violence for a lease violation not related to domestic violence. There must be a connection between the alleged violation and domestic violence to trigger VAWA protections.
Issue: Confidentiality Requirements are not outlined in detail by HUD. Will more guidance be given? Issues that HUD has not addressed with regard to confidentiality include:
- How to maintain an auditable trail while also protecting the privacy of details of a tenant’s status;
- Whether VAWA documentation should be retained separately from the tenant file; and
- How actions such as transfers should be documented.
HUD has indicated that they will take steps to ensure that housing providers understand their obligations with respect to maintaining confidentiality. We do know at this point that no confidential information may be placed in a shared data-base without a request or consent in writing by the individual. There is no specific exception for disclosure to law enforcement or government agencies. Where disclosure of the fact that someone is the victim of a VAWA crime is necessary to secure VAWA protections, the individual requesting the protections may consent to the disclosure.
Issue: In the case of Housing Choice Vouchers, do the confidentiality provisions apply to the PHA or the property owner? The answer is – both. Neither the PHA administering the voucher nor the owner of the property using the voucher may violate the confidentiality provisions of VAWA.
Issue: Where must VAWA-related documents be kept? The final rule does not require housing providers to maintain VAWA-related documents in a particular location. Housing providers should determine the best strategy for maintaining confidentiality in accordance with VAWA 2013.
Issue: Will program specific regulations include VAWA confidentiality provisions? No – such a prohibition could limit a PHA from providing other landlords and owners with relevant and necessary information about a tenancy that is unrelated to a VAWA crime.
Issue: Are tenants in HOME-assisted units covered by VAWA? For project-based HOME assistance, the assistance may be in the form of operating assistance, development assistance, and mortgage interest rate subsidy. VAWA requirements apply to “all HOME tenant-based rental assistance and rental housing assisted with HOME funds.” Rental housing assisted with HOME funds is rental housing that has been newly constructed, acquired, or rehabilitated with HOME funds. When HOME assistance is provided “solely for development assistance,” VAWA applies. Since an entire project is assisted by the HOME funds, the language of the law indicates that all units are subject to VAWA requirements – not just the HOME units.
Issue: Are HOME funded projects begun prior to the effective date of the final VAWA rule subject to the rule? No – compliance with the regulations set forth in the final rule is required for any tenant-based rental assistance or rental housing project for which the date of the HOME funding commitment is on or after the effective date of the final rule, which is December 16, 2016. However, basic statutory core protections of VAWA were effective upon enactment of VAWA 2013. The law was enacted on March 7, 2013. The core protection of VAWA prohibits denial or termination of assistance or eviction on the basis of domestic violence, dating violence, sexual assault, or stalking.