Adapt HUD Model Emergency Transfer Plan to Prepare for IRS VAWA Regs

In 2013, when the Violence Against Women Reauthorization Act (VAWA) was signed by President Obama, the list of covered programs was expanded to include the LIHTC and HOME programs as well as numerous other programs administered by HUD and the Department of Agriculture (USDA) Rural Development program. In November 2016, HUD published the final rule implementing housing provisions under VAWA as it applies to HUD programs.

Following HUD’s final rule, the USDA issued its own regulations with regard to VAWA. It released a new administrative notice designed to implement the 2013 VAWA amendments. Although the VAWA requirements apply to LIHTC and rural housing sites, it’s up to the agencies that govern the respective programs to issue specifics or regulations for complying with VAWA requirements. The IRS hasn’t issued VAWA regulations yet.

Some state agencies have been proactive with their own VAWA guidance. But without IRS or state agency guidance, the responsibility of living up to VAWA’s requirements is on owners and managers. HUD’s final rule, though not specifically applicable to LIHTC sites, provides a good model for compliance. We’ll review VAWA’s core protections and some of the components of HUD’s final rule so that when the IRS issues its guidance, complying with IRS regulations for VAWA requirements will be a smoother transition for your site.

Fair Housing and VAWA Compliance

Since VAWA is not self-executing or, in other words, owners cannot not be held liable for its requirements without further guidance from the federal agency that monitors the program, a report of noncompliance with Form 8823 cannot be issued against a site for not following VAWA. However, while VAWA violations, on their face, can’t be grounds for tax credit loss until the IRS issues guidance, VAWA violations could be considered a violation of fair housing law, which may be considered general public use noncompliance.

A Fair Housing and Equal Opportunity (FHEO) Notice on Domestic Violence issued in 2011 states that “statistics show that women are overwhelmingly the victims of domestic violence. An estimated 1.3 million women are the victims of assault by an intimate partner each year, and about 1 in 4 women will experience intimate partner violence in their lifetimes. The U. S. Bureau of Justice Statistics found that 85 percent of victims of violence are women. In 2009, women were about five times as likely as men to experience domestic violence. These statistics show that discrimination against victims of domestic violence is almost always discrimination against women.”

Therefore, the notice concludes that domestic violence survivors who are denied housing, evicted, or deprived of assistance based on the violence in their homes may have a cause of action for sex discrimination under the Fair Housing Act. The FHEO Notice also listed 10 examples where victims of domestic violence filed suit under the Fair Housing Act for sex discrimination. And some of these cases involved VAWA protections.

VAWA Core Protections

The law offers the following protections against eviction or denial of housing based on domestic violence, dating violence, or stalking:

• Denial of admissions. An applicant’s status as a victim of domestic violence, dating violence or stalking is not a basis for denial of admission, if the applicant otherwise qualifies for admission.
• Termination of tenancy. An incident or incidents of actual or threatened domestic violence, dating violence, or stalking will not be construed as serious or repeated violations of the lease or other “good cause” for terminating the tenancy or occupancy rights of a victim of abuse.
• Criminal activity directly related to the abuse. Criminal activity directly related to domestic violence, dating violence, or stalking, engaged in by a member of a tenant’s household or any guest or other person under the tenant’s control, shall not be cause for termination of assistance, tenancy, or occupancy rights of the victim of the criminal acts.
• Court orders. VAWA requires that owners honor court orders addressing rights of access to or control of property, including civil protection orders issued to protect the victim, as well as orders addressing the distribution or possession of property among household members in a case.
• Bifurcation. A lease may be “bifurcated” in order to remove an offending household member from the home. Whether or not the individual is a signatory to the lease and lawful tenant, if he or she engages in a criminal act of physical violence against family members or others, he or she stands to be evicted, removed, or have his or her occupancy rights terminated. This action is taken while allowing the victim, who is a tenant or a lawful occupant, to remain.
• Actual and imminent threat provision. The authority to evict or terminate assistance is not limited with respect to a victim that commits unrelated criminal activity. Furthermore, if an owner can show an actual and imminent threat to other tenants or those employed at or providing service to the property if an unlawful tenant’s residency is not terminated, then evicting a victim is an option, the VAWA 2013 notwithstanding. Ultimately, owners may not subject victims to more demanding standards than other tenants.

Emergency Transfers

One of the key elements of VAWA’s housing protections is emergency transfers. Unlike prior versions, VAWA 2013 included a new provision mandating that each federal agency adopt a model emergency transfer plan to be used by owners and managers under the covered housing programs.

This transfer plan must allow survivor tenants to transfer to another available and safe dwelling unit assisted under a covered housing program if: (1) the tenant expressly requests the transfer; and (2) either the tenant reasonably believes that she is threatened with imminent harm from further violence if she remains within the same assisted dwelling unit, or the tenant is a victim of sexual assault and the sexual assault occurred on the premises within 90 days before the transfer request. In addition, the transfer plan must incorporate reasonable confidentiality measures to ensure that the owner or manager does not disclose the location of the new unit to the abuser.

Site owners should consider developing their own policies until IRS guidance is available. We’ve included HUD’s Model Emergency Transfer Plan that you can adapt to be VAWA compliant.

Certification

VAWA 2013 allows, but doesn’t require, owners to make a written request to an individual for certification that he or she is a victim of domestic violence, dating violence, sexual assault, or stalking when seeking VAWA’s protections. At their discretion, owners or managers may apply VAWA to an individual based solely on the individual’s statement or other evidence. Any requests for certification must be in writing.

HUD’s final rule establishes a low-barrier certification process. The final rule makes it clear that under most circumstances, a survivor need only to self-certify in order to exercise her rights under VAWA, ensuring third-party documentation doesn’t cause a barrier to a survivor in expressing her rights and receiving the protections needed to keep herself safe. VAWA permits owners and managers to request that an individual certify via a form approved by the appropriate federal agency. This form must: (1) state that an applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking; (2) state that the incident that’s the ground for protection meets the requirements under the statute; and (3) include the name of perpetrator, if the name is known and safe to provide.

Also, under the current law, instead of the certification form, the applicant or tenant may provide:

• Documentation signed by the victim and a victim service provider, an attorney, a medical professional, or a mental health professional in which the professional attests under penalty of perjury to his or her belief that the victim has experienced an incident of domestic violence, dating violence, sexual assault, or stalking that meets the grounds for protection under the statute; or
• A federal, state, tribal, territorial, or local law enforcement, court, or administrative record.