HUD Moves to Implement New VAWA Requirements
HUD recently requested public comment on plans to implement the key changes the VAWA Reauthorization Act of 2022 (VAWA 2022) made to the Violence Against Women Act of 1994. Since the 2013 amendments, VAWA has applied to the LIHTC program. However, neither the Treasury Department nor the IRS has issued any formal regulations or guidance on VAWA implementation for the LIHTC program. Nevertheless, LIHTC owners are still subject to VAWA’s mandates and some state tax credit allocating agencies have taken proactive steps with their own VAWA guidance.
VAWA 2022 was passed in March 2022, and it became effective on Oct. 1, 2022. The Violence Against Women Act provides housing protections for survivors of domestic violence, dating violence, sexual assault, and/or stalking. Despite the name of the law, VAWA’s protections apply regardless of sex, sexual orientation, or gender identity.
In addition, the VAWA statute gives enforcement powers to HUD and the Attorney General equivalent to those provided for in the Fair Housing Act: “The Secretary of Housing and Urban Development and the Attorney General shall implement and enforce [VAWA] consistent with, and in a manner that provides, the same rights and remedies as those provided for in title VIII of the Civil Rights Act of 1968.” HUD’s recent notice covers each applicable VAWA 2022 section and its plans for implementation. We’ll highlight HUD’s plans for the new VAWA 2022 provisions that draw upon fair housing laws to prevent punishing domestic violence victims.
Changes to VAWA Definitions
The 2022 revision amends the definition of “domestic violence” to include “any felony or misdemeanor crimes committed under the family or domestic violence laws of the jurisdiction receiving grant funding.” This definition includes “in the case of victim services, the use or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior” by certain individuals including current or former spouses, current or former co-inhabitants, people sharing a child, or people who commit acts against people protected from acts by family or domestic violence laws of a jurisdiction.
The definitional change went into effect on Oct. 1, 2022. While the change is only for grants authorized under VAWA, HUD notes that its current definition of domestic violence covers all the additional conduct specified in the VAWA 2022 definition, and HUD interprets the existing regulatory definitions of “domestic violence” and “stalking” to encompass all of the revised conduct. Therefore, HUD is advising owners to apply HUD’s VAWA requirements in a manner that encompasses the VAWA 2022 “domestic violence” definition.
HUD says that it will consider implementing changes to update HUD’s definition for domestic violence to include the related definitions of “economic abuse” and “technological abuse” through upcoming rulemaking processes. As such, in addition to “generally” seeking comments from owners on VAWA 2022, HUD is specifically seeking comments on common forms of economic and technological abuse owners may have witnessed that affect survivors’ rental assistance and continued tenancy and how HUD policies or services could help prevent or mitigate such violence.
Prohibiting Retaliation Against Victims
VAWA 2022 addresses protections against retaliation for survivors and other persons involved. Owners or managers under covered housing programs may not discriminate against any person that has opposed any act made unlawful by VAWA or because the person testified, assisted, or participated in any related matter. In addition, those entities may not “coerce, intimidate, threaten, interfere with, or retaliate against any person who exercises or assists or encourages a person to exercise any rights or protections” under VAWA.
These changes took effect on Oct. 1, 2022. HUD says rulemaking is not necessary for HUD’s Office of Fair Housing and Equal Opportunity and its existing Fair Housing Act complaint process to enforce this requirement. But HUD left the door open and says it may conduct rulemaking to implement this provision.
Right to Report Crime and Emergencies
VAWA 2022 protects the right to report crime and emergencies from a person’s home. The new revision allows for “landlords, homeowners, tenants, residents, occupants, and guests of, and applicants for, housing” to have the right to seek law enforcement or emergency assistance for themselves or another person in need. Actual or threatened penalties to protected persons for their assistance requests are prohibited.
This provision seeks to address nuisance ordinances. Nuisance ordinances are local laws that often impose fines or other penalties on owners for activities occurring at their properties considered to be “nuisance” activity. While such laws exist to enforce local rules such as property upkeep and controlling noise, these ordinances can also designate other conduct as “nuisance” activity, such as making a certain number of calls for police or emergency assistance within a particular timeframe. Nuisance ordinances could discourage survivors from calling for police or emergency assistance out of fear of eviction or penalty.
As a result of VAWA 2022, municipal, county, or state governments that receive community development block grants from HUD must report on their laws or policies that impose penalties on protected persons for law enforcement or emergency assistance based on criminal activity at a property. The governmental entities must certify compliance with these provisions within 180 days of providing their report. These changes took effect on Oct. 1, 2022. HUD will issue implementing regulations and guidance, although in 2016 HUD already issued guidance on apply the Fair Housing Act to local nuisance law. The current fair housing complaint process will be used for enforcement of these provisions.
Federal VAWA Housing Protections
The Violence Against Women Act (VAWA) protects federally assisted residents from being denied housing or from being evicted because they are the victim of domestic violence, dating violence, sexual assault, or stalking. VAWA aims to encourage survivors to report and seek help for the abuse committed against them, without being afraid of being evicted. VAWA’s protections include, for example:
Nondiscrimination. It is illegal to deny admission to or assistance under, or to evict a resident from or terminate participation in, a covered housing program if a resident or a member of the household is or has been a survivor of VAWA violence/abuse. In addition, it is illegal to deny tenancy or occupancy rights in a covered housing program solely on the basis of criminal activity directly relating to the VAWA violence/abuse.
Notification of Occupancy Rights. VAWA requires that residents receive a written notice of their rights under VAWA upon admission, denial of housing, or notice of eviction/subsidy termination—including notification in non-English languages. You should check with your state housing agency with regard to specific notice requirements to comply with VAWA. For example, the California Tax Credit Allocation Committee (CTCAC), the office that administers the federal LIHTC program in California, has adopted HUD’s Notice of Occupancy Rights under the Violence Against Women Act (HUD-5380). CTCAC requires owners to provide this form to all tenants when admitted to the property and with any notification of eviction or notification of termination of assistance. Additionally, CTCAC requires the use of HUD VAWA Lease Rider (HUD-91067).
Emergency Transfers. Residents can request an emergency transfer if: (1) the resident expressly requests the transfer; and (2)(a) the resident reasonably believe there is a threat of imminent harm from further violence if the resident remains in the same unit; or (2)(b) in the case of sexual assault, the sexual assault occurred at your housing during the 90-calendar-day period preceding the date of the transfer request.
Confidentiality Requirements. Owners have specific obligations to maintain the confidentiality of the fact that a person is a survivor of domestic violence, dating violence, sexual assault, or stalking. Any information a resident provides under VAWA’s housing protections, including the fact that a resident is a VAWA survivor, must be kept confidential. These obligations include keeping any such information out of a shared database and not disclosing such information to others unless the resident consents in writing to such disclosure, it is required for use in an eviction proceeding, or the law otherwise requires it.
Documentation. If the resident informs the owner or manager that the resident is a survivor of VAWA violence/abuse entitled to VAWA protections, the covered housing provider may request, in writing, that the resident submit documentation of the occurrence of the domestic violence, dating violence, sexual assault, or stalking. The resident has the discretion to choose which documentation to provide from the list identified in HUD’s VAWA rule, unless there is conflicting information of VAWA violence/abuse.
Lease Bifurcation. VAWA protects the resident and other household members when a covered housing provider removes a household member from a lease, in order to evict, remove, terminate occupancy rights, or terminate assistance to a household member who engages in criminal activity directly relating to VAWA violence/abuse (known as “bifurcating” a lease). The housing provider may choose whether to bifurcate the lease, and if it is done, it must be done consistent with applicable federal, state, or local laws and the requirements of your covered housing program. In the event of a lease bifurcation, if the household member who was removed was the resident who made the household eligible for assistance under the covered housing program, the housing provider must give those who remain a reasonable time to establish eligibility under the same program, under a different program, or to find other housing. While this is generally 90 days, it may be a different amount of time, depending on which covered housing program the resident is participating in.
Prohibition on Retaliation. It is illegal for a PHA or owner to retaliate against a victim because the resident opposed any action it took or practice it has that is prohibited by VAWA. The housing provider also cannot subject a resident to retaliation, coercion, intimidation, or threats because he or she testified, assisted, or participated in an action to enforce VAWA rights, including encouraging another or exercising his or her own rights under VAWA.
The Right to Report Crime and Emergencies from One’s Home. Residents, occupants, guests of, or applicants for, any housing have the right to seek law enforcement or emergency assistance on their own behalf or on behalf of another person in need of assistance. They may not be penalized based on their requests for assistance, based on criminal activity for which they are a victim, or based on activity for which they are otherwise not at fault under a law, ordinance, regulation, or policy adopted by or enforced by a governmental entity that receives certain HUD funding.