Proposed Guidance- Form HUD-5380, Notice of Occupancy Rights Under the Violence Against Women Act To All Tenants and Applicants

On August 1, 2017, HUD published a Notice of proposed rulemaking that revises a number of forms and requirements relative to the Violence Against Women Act (VAWA). One of the forms proposed for change is form HUD-5380, Notice of Occupancy Rights Under the Violence Against Women Act To All Tenants and Applicants. This article provides details on the proposals regarding the notice requirements under VAWA, and outlines the specific rights of VAWA victims.

 

Protection for Applicants

 

Applicants for assistance under a covered housing program may not be denied admission or assistance on the basis or as a direct result of the fact that they are or have been a victim of domestic violence, dating violence, sexual assault, or stalking, as long as they would otherwise qualify for the program.

 

Protection for Tenants

 

Tenants housed or receiving assistance under a covered program may not be denied assistance, terminated from participation in, or be evicted from the housing on the basis or as a direct result of the fact that they are or have been a victim of domestic violence, dating violence, sexual assault, or stalking.

 

Tenants also may not be denied assistance or residency solely on the basis of criminal activity relating to domestic violence, dating violence, sexual assault, or stalking, if:

1. The criminal activity is engaged in by a member of the household or any guest or other person under the control of the tenant; and
2. If the tenant or an affiliated individual of the tenant is or has been the victim of domestic violence, dating violence, sexual assault, or stalking.
   1. “Affiliated individual” means a spouse, parent, brother, sister, or child, or a person the tenant stands in the place of a parent or guardian (e.g., a person that is in the custody, care, or control of the tenant). It also refers to any individual, tenant, or lawful occupant living in the household.

 

Removing the Abuser or Perpetrator from the Household

 

When a member of the household engages in criminal activity directly related to domestic violence, dating violence, sexual assault, or stalking, the owner may remove the abuser or perpetrator from the lease (i.e., bifurcate the lease) without affecting the occupancy rights of the victim.

• Any bifurcation must be carried out in accordance with any requirements or procedures required by Federal, State, or local law for termination of assistance in leases and in accordance with the requirements of the applicable housing program.
• If the owner removes the abuser or perpetrator through bifurcation, and that person was the eligible tenant under the program, the owner must allow any remaining tenant(s), who are not already eligible, time to apply to establish eligibility under the same or another housing program covered by VAWA, or find alternative housing.
• Before bifurcating a lease, an owner may, but is not required to, ask the tenant for documentation or certification of the incidence of domestic violence, dating violence, sexual assault, or stalking.

 

Emergency Transfers

 

Victims of domestic violence, dating violence, sexual assault, or stalking may request emergency transfers to other units or projects. Before permitting such a transfer, owners may request that the tenant submit a written request or fill out form HUD-5383 (Certification form). In this way, the tenant will be certifying that he or she meets the criteria for an emergency transfer. The criteria are:

1. The tenant (or member of the household) must be a victim of domestic violence, dating violence, sexual assault, or stalking;
2. The tenant must expressly request the emergency transfer (submission of form HUD-5383 is considered a request for a transfer); and
3. The tenant reasonably believes that he or she is threatened with imminent harm from further violence if they remain in the current unit, or he or she has been a victim of sexual assault and the assault occurred on the premises during the 90-calendar-day period before the request for transfer.

Owners must keep requests for emergency transfers, and the location of any such move, in strict confidence.

 

Owners are not required to automatically provide copies of emergency transfer plans to applicants or tenants, but the Notice of Rights states that if requested by an applicant or tenant, a copy of the Plan must be provided.

 

Documentation of Status as a Victim of Domestic violence, Dating violence, Sexual Assault, or Stalking

 

Owners may, but are not required to, ask tenants or applicants to provide documentation to “certify” that they are or have been a victim of domestic violence, dating violence, sexual assault, or stalking.

• If requested, the applicant or tenant must submit the documentation within 14 business days from the date that they receive the written request from the housing provider asking for the documentation of the occurrence of domestic violence, dating violence, sexual assault, or stalking. I recommend that such requests be sent certified mail, return receipt requested, so that the beginning date of the 14 business days is undisputed.
• Housing providers may extend the time period to submit the documentation. If the documentation is not provided within the 14-business day timeframe, or any extension of the timeframe, owners are not limited in their ability to deny admission, assistance, participation, or tenancy. However, owners should remember that other laws or regulations may require different time periods. For example, owners may have to grant reasonable accommodations to disabled individuals in the form of additional time or assistance with responding to written requests.

 

If an owner requires documentation, applicants or tenants have the right to choose from one of four methods of documentation:

1. A completed HUD-approved certification, form HUD-5382;
2. A record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or administrative agency that documents the incident of domestic violence, dating violence, sexual assault, or stalking. Examples of such documentation include police reports, protective orders, and restraining orders;
3. A statement signed by an employee, agent, or volunteer of a victim service provider, an attorney, a medical or mental health professional from whom the applicant or tenant sought assistance relative to the domestic violence, dating violence, sexual assault, or stalking. The applicant or tenant must also sign this statement; or
4. Any other statement or evidence that the owner has agreed to accept.

 

If an owner receives conflicting evidence that an incident of domestic violence, dating violence, sexual assault, or stalking has been committed (such as receiving certification forms from two or more members of a household each claiming to be a victim and naming one or more of the other petitioning household members as the abuser or perpetrator), the owner has the right to request that third party documentation be provided within 30-calendar days to resolve the conflict. The responding applicant or tenant may satisfy this request by providing any of the documentation described above, except for the self-certification, form HUD-5382. If the applicant or tenant fails to provide such documentation when there is conflicting evidence, the owner may deny them admission, assistance, participation, or tenancy. However, owners should remember that other laws or regulations may require different time periods.

 

Confidentiality

 

Owners must keep strictly confidential any information provided concerning the incident(s) of domestic violence, dating violence, sexual assault, or stalking.

• Information about the incident(s) and the person’s status as a survivor, such as the information provided on form HUD-5382 and HUD-5383, may only be available to the owner’s employees or contractors if explicitly authorized by the owner for reasons that specifically call for those individuals to have access to the information under applicable Federal, State, or local law. Owners should ensure that third party file reviewers not have access to any information relative to requests for protection under VAWA.
• Information about the incident(s) and a person’s status as a survivor may not be entered into any shared database or disclosed to any other entity or individual, except to the extent that the disclosure is:
  • Consented to by the victim in writing in a time-limited release;
  • Required for use in an eviction proceeding or hearing regarding termination of assistance; or
  • Otherwise required by applicable law.
• VAWA does not limit an owner’s duty to honor court orders relating to access to or control of the documentation.

 

Reasons a Tenant Eligible for Occupancy Rights under VAWA May Be Evicted or Assistance May Be Terminated

 

1. Serious or repeated lease violations that are not related to an act or acts of domestic violence, dating violence, sexual assault, or stalking;
2. The owner can demonstrate that not evicting the tenant or terminating assistance will present a real physical danger that:
   1. Would occur within an immediate time frame; and
   2. Could result in death or serious bodily harm to other tenants or those who work at the property.

If an owner can demonstrate this kind of danger, assistance should only be terminated or eviction undertaken if there are no other actions that could be taken to reduce or eliminate the threat.

 

HUD does not define “immediate,” but I recommend that the threat be so serious that a dangerous situation is expected without delay and literally could occur at any moment.

 

Other Laws

 

VAWA does not replace any Federal, State, or local law that provides greater protection for victims of domestic violence, dating violence, sexual assault, or stalking, so owners should be aware of any such laws.

 

While the form HUD-5380, in its current form, is a draft, it is highly likely that there will be few, if any, changes to the final form. Owners should familiarize themselves with the content of the form and understand the rights of VAWA victims.