HOUSING PROTECTIONS FOR VICTIMS OF DOMESTIC and sexual violence Neha Lall tel. 312.347.8313 Supervisory Attorney nlall@lafchicago.org nlall@lafchicago.org

COMMON HOUSING PROBLEMS FOR SURVIVORS Face eviction for criminal activity Multiple calls to police or security Noise resulting from violence Crime-free and nuisance property ordinances Damage to unit Stalking or threats at the unit Lock changes Relocation for safety Family break up (change in income)

Case Scenario: Mary and John Mary lives with her two kids in a townhouse in Evanston. She has a Section 8 voucher that subsidizes her rent. Two months ago he ex- boyfriend, John, sexually assaulted Mary after visiting the kids. Mary was too embarrassed and traumatized to report the rape. John keeps coming by the property and harassing her. Last week he came and kicked in the door, breaking the lock and damaging the door frame.

Case Scenario, continued The landlord issues Mary a 10-day notice saying the lease is being terminated because Mary’s guest damaged the property. The notice expired last week, but Mary did not move out because she has no where to go. The landlord came to the unit this morning and told Mary her time was up, and she needed to move out today or he was going to change the locks. Mary wants to move anyway, but right now Mary has no where to go.

Key Issues for Mary Section 8 voucher Rental subsidy triggers federal protections under VAWA Wants to move Termination Notice Lock out

Violence Against Women Act VAWA Applies Only to Federally Subsidized Housing

EXAMPLES OF FEDERAL SUBSIDIES HOUSING CHOICE VOUCHERS – Section 8 vouchers PUBLIC HOUSING—Administered by the Public Housing Authority SECTION 8 PROJECT-BASED HOUSING SUPPORTIVE HOUSING (Elderly and Disabled) HOPWA (HIV and AIDS) SHELTER PLUS CARE SUPPORTIVE HOUSING LOW INCOME HOUSING TAX CREDIT (LIHTC)— “affordable flat-rate rent”

Termination from Federally Subsidized Housing Most federally subsidized housing programs have rent that is based on the tenant’s household income or is fixed at a below-market rate Subsidy is never-ending, unless terminated for cause When you die, your remaining household members can take over the subsidy If you are evicted from any of these programs, you lose your subsidy Termination from one program may make you ineligible for other subsidy programs.

Program Violations Participants in any federally-subsidized program can be terminated if they violate the terms of the lease or of the program Participants may be terminated for the criminal activity of their household members or guests “One strike” eviction policies

WHO DOES VAWA PROTECT? Domestic violence victims Dating violence victims (parties that were not married, living together, and do not have children together) Individuals who have been victimized by an intimate partner (added in VAWA 2013) Victims of stalking Sexual assault victims (added in VAWA 2013) Includes “affiliated individuals”- victim’s immediate family member or household member (added in VAWA 2013) LGBT victims of abuse VAWA now applies to almost all federally subsidized programs

VAWA Protections in Eviction and Terminations Incident of actual or threatened DV, SA, or Stalking does not constitute a “serious or repeated lease violation” or “good cause” for evicting or termination Crimes directly relating to DV, SA, or Stalking are not grounds for evicting the survivor or termination subsidy Essentially creates a defense or exception from the one-strike policy Nothing prevents perpetrator from being evicted or terminated

Nexus Requirement Victim may be evicted for violations not related to the abuse Victim needs to establish link between abuse and the violation

What about Mary? Mary is being terminated by her landlord for incidents related to abuse by John Normally, an eviction for a lease violation would lead to termination of the Section 8 voucher by the Housing Authority Under VAWA, even if Mary is evicted, her Section 8 voucher should not be terminated by the Housing Authority because the eviction was based on abuse

Certification of Abuse Victim can assert that she is a victim of DV, SA or Stalking Owner or Housing Authority can take victim at their word Owner or Housing Authority may ask for written certification, but request must be in writing If written request is made, tenant has 14 days to comply unless an extension is granted

Acceptable Forms of Certification Police or Court Record or Administrative (Order of Protection, Police Report, Record of Criminal case, etc.) Letter from a service provider, medical provider or attorney, mental health provider HUD Self-Certification Form ** Victim is NOT required to get a police report or an order of protection ** Certification must be kept confidential

Safety Transfers in Federally Subsidized Housing Under VAWA 2013, all subsidized housing providers must have an Emergency Transfer Policy The policy must have provisions for internal and external transfers Survivors in subsidized housing should request a transfer rather than voluntarily terminate their lease (and lose subsidy)

ILLINOIS State and local housing protections - GENERALLY Applies to Private and Subsidized housing

ILLINOIS SAFE HOMES ACT 765 ILCS 750 Who is covered? Victims of Domestic Violence Victims of Sexual Assault Victims of Stalking What kind of housing is covered? All private housing and federally subsidized housing EXCEPT the Public Housing program

Right to Lease Termination Victim of DV, SA or Stalking may break a lease if: Credible imminent threat of future harm Harm will occur at the premises Victim provides landlord with written notice of her fear before or within three days after vacating premises No further proof is required at this stage Sexual violence victim does not need to show credible imminent threat if assault took place on the premises within the last 90 days If Landlord sues for rent, victim has an affirmative defense

Lock Changes Abuser not on the Lease Upon written request landlord must change the locks Request must be from everyone on lease Must include evidence of credible imminent threat of violence (e.g. police report, medical record, court record, statement from victim services provider)

Lock Changes, continued Abuser on the Lease or no written lease exists In addition to requirements above written request from everyone on lease evidence of credible imminent threat of violence Must include a plenary order of protection or civil no contact order granting exclusive possession of the premises

What if the Landlord does not Respond? Landlord must change locks within 48 hours of written request or give permission to tenant to change locks If landlord does not respond, tenant may change locks **Tenant can be charged for costs of lock change

Forcible Act: Affirmative Defense 735 ILCS 5/9-106.2 Victim has an affirmative defense in eviction case if: Eviction is based on victim’s status as a victim of domestic or sexual violence Eviction is based solely on an incident of actual or threatened domestic or sexual violence against tenant Case is based solely upon criminal activity related to domestic violence that has been perpetrated by a household member or guest against the tenant Case is based on the violation of a bar order, and the tenant did not let the barred person on the premises or that individual was there pursuant to a valid court order

Forcible Act: Affirmative Defense 735 ILCS 5/9-106.2 Landlord can defeat affirmative defense if he can show that tenant’s continued occupancy would pose and actual and imminent threat to other residents, the landlord, or his employees

Forcible Act: Affirmative Defense 735 ILCS 5/9-106.2 Landlord has a right to bar any individual not in the household Written notice to the tenant, and a violation of the bar order can be treated as a lease violation Verbal or Written Notice to the barred individual. Violator of bar order can be charged with criminal trespass

What about Mary? The termination by the landlord is arguably based solely on incidents of abuse Mary can raise the affirmative defense Landlord will only prevail if he can show that John is a threat to him, his staff, or other residents Landlord can bar John from the premises Mary will be responsible for complying with any bar order She cannot invite him back He cannot pick up or see the kids at the unit

Termination Notices Length of the Notice (30-day, 10-day, 5-day) depends on: The type of housing involved (federally-subsidized housing have very specific rules) Local ordinances Type of lease violation (nonpayment or material violation of lease)

Termination Notices, continued What do you do if you get a notice? Read it carefully May have a right to discuss the notice or have a grievance hearing with the property manager May have a right to cure the problem within the notice period Depends on the type of housing and the local ordinance Get legal help

Eviction Proceedings Forcible Entry and Detainer Act requires that the landlord bring an eviction action to remove a tenant Eviction action can only be filed after the notice expires Tenant must be served with court papers (summons) and be given an opportunity to fight the eviction Eviction cases move quickly Landlord must obtain an Order of Possession from the court, and place the order with the Sheriff to enforce

Lock Outs and Self-Help Some local ordinances expressly prohibit Landlords from ousting a tenant outside of the eviction process and provide for attorneys fees and punitive damages Chicago, Evanston Includes threats or action to change locks, remove doors, shut off utilities, etc. Tenant may have defense in eviction case, or an affirmative cause of action against the landlord Many local police departments ignore lockout situations

Crime Free and Nuisance Ordinances Many suburbs have enacted local laws that punish landlords if there are repeated problems at their units Landlords can be fined or lose their ability to rent Landlords who rent condos or townhouses in a Homeowners Association (HOA) are also bound by the HOA’s rules, and can be fined by them BUT landlords are still required to follow federal and state laws protecting victims of domestic violence Some landlords feel like they are between a rock and a hard place Recent legislation passed to carve out an exception for victims and people with disabilities

Most Challenging Cases: Issues Not Directly Addressed by Current Law Abuser refuses to pay rent or makes it impossible for survivor to pay rent (steals money, sabotages employment) Cost of damage to units caused by abuse (holes in walls, broken windows and doors) Survivor reconciles with the abuser, and does not want a bar order in place Survivor is arrested for fighting back against the abuser