2. VIOLENCE AGAINST WOMEN ACT
October 17, 2017
Erin Wright

3. What is VAWA?
The Violence Against Women Act is a federal law that affords protections to victims of domestic violence, dating violence, sexual assault and stalking. 24 CFR et seq. (includes definitions of domestic violence, dating violence, sexual assault and stalking)

4. VAWA and HUD
2005: VAWA regulations implemented for Section 8 and public housing
2013: VAWA Reauthorization expands protections to victims in other federally subsidized housing programs
Regulations effective on December 16, 2016.
Covered housing programs:
Housing Choice Voucher, Section 202, Section 811, HOPWA, HOME, Homeless Programs, Section 221, Section 236 and the Housing Trust Fund.

5. Who is protected by VAWA?
Current Tenants (including the assisted family as defined under program regulations) and Applicants who receive or are applying for assistance; and
Are victims of domestic violence, sexual assault, dating violence, or stalking.
Eligible Persons: VAWA protections cover tenants and assisted families, as defined under applicable program regulations.
Ineligible Persons: Guests, unassisted members, and live-in aides of a household are ineligible for VAWA protections that are available only to tenants.
However, unassisted members who are also on the lease may qualify by way of the lease for VAWA protections at 24 CFR (c).

6. CoC Programs: VAWA applies to…
All permanent housing and transitional housing where funds are used for acquisition, rehabilitation, new construction, leasing, rental assistance, or operating costs.
Homelessness prevention, but only where funds are used to provide short- and/or medium-term rental assistance.

7. ESG Programs: VAWA applies to…
All programs: Subject to the general prohibition against denying or terminating assistance or evicting solely because an applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking
Rental Assistance: The remaining VAWA requirements apply to all eligibility and termination decisions regarding ESG rental assistance

8. HOPWA Program: VAWA applies to…
Acquisition, rehabilitation, conversion, lease, and repair of facilities to provide housing; new construction; and operating costs.
Project and tenant-based rental assistance and community residences.

9. ESG Emergency Shelters, CoC Safe Havens & HOPWA Short-term housing
Although the majority of VAWA protections apply to rental assistance, ESG, CoC and HOPWA regulations prohibit ESG shelters, CoC safe havens and HOPWA short-term supported housing from refusing to provide assistance to or removing an individual on the basis of or as a direct result of that individual being a victim under VAWA.
However, no matter what program(s) you offer, it is always good to understand what protections are out there to help your clients as needed. You may need to help a client or former client identify that a right has been violated in a particular situation.

10. Applicants for Housing Assistance
An individual’s status as a victim is not an appropriate basis for denial of admission or housing assistance.

11. Applicants for Housing Assistance
Also cannot be denied admission or assistance based on factors resulting from their victim status.
Examples: Negative credit, Rental history, Criminal Records
If the negative factors above resulted from a situation in which the applicant was the victim of domestic violence, dating violence, sexual assault or stalking, they cannot be denied assistance.
EXAMPLES:
1. Poor credit history. Depending on the circumstances, poor credit history may be a direct result of domestic violence, dating violence, sexual assault, or stalking, when the domestic violence, dating violence, sexual assault, or stalking results in, for example-
a. Forcing a victim to obtain credit, including credit cards for the perpetrator’s use;
b. Using a victim’s credit or debit card without permission, or forcing him or her to do so;
c. Selling victims’ personally identifiable information to identity thieves;
d. Running up debt on joint accounts;
e. Obtaining loans/mortgages in a victim’s name;
f. Preventing a victim from obtaining and/or maintaining employment;
g. Sabotaging work or employment opportunities by stalking or harassing a victim at the workplace, or causing a victim to lose his or her job by physically battering the victim prior to important meetings or interviews;
h. Placing utilities or other bills in a victim’s name and then refusing to pay;
i. Forcing a victim to work without pay in a family business, or forcing him or her to turn the earnings over to the abuser;
j. Job loss or employment discrimination due to status as a victim of domestic violence, dating violence, sexual assault, or stalking;
k. Job loss or lost wages due to missed work to attend court hearings, seek counseling or medical care, or deal with other consequences of the crime, and
l. Hospitalization and medical bills the victim cannot pay or cannot pay along with other bills.
2. Poor rental history. Depending on the circumstances, poor rental history may be a direct result of domestic violence, dating violence, sexual assault, or stalking, when the domestic violence, dating violence, sexual assault, or stalking results in, for example-
a. Property damage;
b. Noise complaints;
c. Harassment;
d. Trespassing;
e. Threats;
f. Criminal activity;
g. Missed or late utility payments(s);
h. Missed or late rental payment(s);
i. Writing bad checks to the landlord, and
j. Early lease termination and/or short lease terms.
3. Criminal record. Depending on the circumstances, a criminal record may be a direct result of domestic violence, dating violence, sexual assault, or stalking, when the domestic violence, dating violence, sexual assault, or stalking results in, for example-
a. Forcing a victim to write bad checks, misuse credit, or file fraudulent tax returns;
b. Property damage;
c. Theft;
d. Disorderly conduct;
f. Trespassing;
g. Noise complaints;
h. Family disturbance/trouble;
i. 911 abuse;
j. Public drunkenness;
k. Drug activity (drug use and the selling of drugs);
l. Crimes related to sex work;
m. Failure to protect a child from a batterer’s violence and/or abuse;
n. Crimes committed by a victim to defend him or herself or in defense of a third party from domestic violence, dating violence, sexual assault, or stalking, and
o. Human trafficking.
4. Failure to pay rent. Depending on the circumstances, temporary failure to pay rent may be a direct result of domestic violence, dating violence, sexual assault, or stalking, when domestic violence, dating violence, sexual assault, or stalking results in, for example-
a. The victim’s injury or temporary incapacitation;
b. The arrest of the only wage-earning member of the household;
c. Preventing the victim from obtaining and/or maintaining employment;
d. Sabotaging work or employment opportunities by stalking or harassing the victim at the workplace;
e. Causing the victim to lose the victim’s job by physically battering prior to important meetings or interviews;
f. Placing utilities or other bills in the victim’s name and then refusing to pay;
g. Forcing the victim to turn his or her earnings over to the abuser;
h. Forcing the victim to work without pay in a family business, Job loss or employment discrimination due to status as a victim of domestic violence, dating violence, sexual assault, or stalking;
i. Losing wages or a job due to missing work to attend court hearings, seek counseling or medical care, or deal with other consequences of the crime, and
j. Inability to pay bills after significant medical expenses resulting from the victim’s hospitalization.

12. How to determine if nexus?
HUD stated in comments it would release guidance.
It did release guidance pertaining to Section 811:
05HSGN.PDF. Basically, HUD says that for 811, the agency must make an objectively reasonable determination after reviewing submitted documents, speaking with the applicant, and requesting additional information pursuant to the agency’s policies.

13. Current Tenants
Cannot be terminated or evicted because they are a victim of domestic violence, dating violence, sexual assault or stalking.
An incident of domestic violence, dating violence, sexual assault or stalking where the tenant is the victim is not (1) a violation of the lease OR (2) good cause to terminate.
Exception for actual and imminent threat:
Should have objective evidence (words, actions, etc.) that shows a physical danger that would occur in an immediate time frame and could result in death or serious bodily harm.
Have to show other efforts.
Multifamily Notice
Actual and imminent threat factors to consider:
1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur, and
4. The length of time before the potential harm would occur.
“Other efforts” examples:
1. Barring the perpetrator from the property (where state and local laws permit);
2. Changing the victim’s locks (pursuant to policy and state and local laws);
3. Installing basic security features (e.g., better lighting or an alarm);
4. Encouraging the victim to seek an emergency transfer;
5. Allowing an early lease termination;
6. Allowing the victim to arrange for temporary absence from the assisted unit;
7. Helping the victim access available services and support (e.g., providing information for a local victim service provider and civil legal assistance providers, to help the victim get any necessary court orders), and/or
8. Working with police and victim service providers to develop a safety plan for the property and a plan of action for the victim.

14. Current Tenants – Criminal Activity
If criminal activity occurs:
Was it (1) engaged in by a member of the household or a guest and (2) the tenant or an “affiliated individual” is the victim?
THEN =
The criminal activity directly relating to the domestic violence, dating violence, sexual assault, or stalking incident is not a basis for termination.
Affiliated individual: either immediate family or any individual, tenant or lawful occupant living in the household (so unauthorized members of household fall under this) .

15. Notice requirements Applicants and tenants must receive:
Notice of Occupancy Rights: Explains VAWA protections and limitations
Certification Form: Victim can document an incident of violence, dating violence, sexual assault or stalking
HUD-5378 & HUD-5382: am_offices/administration/hudclips/forms/hud5a
I provide a link here, but I have also uploaded these forms as handouts to this webinar.
HUD: Agencies should do their best to ensure that all adult members of a household and not just the head of household receive the notice and certification forms. Don’t want only the abuser to receive it! Rule requires that it be provided to each applicant and each tenant.
Agencies must issue the VAWA Notice of Occupancy Rights without changes to the core protections and confidentiality rights in the Notice, but should customize it to reflect the specific assistance provided under the covered housing program. This may include additional language, so long as the language does not make changes to the core protections and confidentiality rights as noted above. For example, the additional language cannot add additional requirements to receive VAWA protections, but additional language may be provided to better explain VAWA.

16. When must you give the Documents?
These documents must be provided at specific times. Generally:
At the time that an applicant is denied rental assistance or admission to project-based unit.
At the time an individual begins to receive rental assistance or is admitted to a project-based unit.
When a notification of eviction from an assisted unit is received or the program terminates rental assistance.
If not the above, then at some point during the 12 month period following December 16, 2016 (lease renewal or recertification).
*See program specific regulations
HUD Comments pg 181: HUD’s final rule does not require housing providers to document in tenant files that they provided the required notice at the required times, nor does HUD’s final rule require an acknowledgement of receipt, but it is strongly recommended that they maintain a note or other documentation in each tenant’s file that indicates when each applicant or household was provided the forms at each of the times.
DOUBLECHECK WHETHER BRIAN/LADRINA ARE GOING TO BE MONITORING FOR THIS??

17. Who must provide the notice forms?
811: Owner must provide the forms
CoC (including shelter plus care):
Agencies must provide the forms regarding permanent and transitional housing per (j)(4)
ESG:
Agencies must ensure the forms are provided regarding rental assistance per (c)
HOPWA:
Project sponsor must give the forms per (d)
The housing owner or manager must give the forms with any notification of eviction

18. HOW CAN THE AGENCY OR LANDLORD CONFIRM
Documentation
What if an applicant wants the landlord to ignore past issues resulting from their victim status in deciding whether to accept an application?
What if a tenant wants to avoid eviction for a criminal act on premises because the tenant was a victim?
What if a tenant wants an emergency transfer?
HOW CAN THE AGENCY OR LANDLORD CONFIRM
THE PERSON IS A VICTIM?

19. Confirming the person is a victim
STEP ONE: Did the individual already provide sufficient documentation pursuant to your policy? STEP TWO: If not, agency or landlord may make a written request for documentation. STEP THREE: If the individual does not provide the documentation within 14 business days of receiving the request, the agency or landlord does not have to provide VAWA protections. *Agency/LL can extend 14 day deadline
Because the deadline starts from when the tenant received the request, it may be best to personally deliver the request (and document the date) or send via certified mail.

20. What documentation can prove an incident?
**HUD’S CERTIFICATION FORM MUST ALWAYS BE ACCEPTED (apart from the one exception on the next slide)**
Acceptable third-party documentation to ask for:
Document signed by a victim service provider, attorney, medical professional, or mental health professional who provided assistance to a victim relating to the incident(s) wherein the professional says under penalty of perjury that an incident(s) occurred and meets the VAWA definition. Must also be signed by the applicant/tenant.
Law enforcement, court or administrative agency document
Statement or other evidence (agency or LL discretion)
You CANNOT demand third-party documentation except pursuant to the next slide….
You CANNOT force an applicant/tenant to use your agency’s own form. You have to allow them to use HUD’s form.

21. Conflicting information about an incident?
What if two different members of the household claim they are the victim? How can you tell who is entitled to VAWA protections?
THIS IS THE ONLY TIME YOU CAN REQUIRE THE THIRD-PARTY DOCUMENTATION. Apart from this situation, a certification form must always be accepted if that is all the individual wants to submit.
30 calendar day deadline to return third party documentation

22. How long ago could the incident have happened?
It does not matter when the incident occurred (except for one instance in qualifying for an emergency transfer – see next slide), just that an incident occurred at some point where the individual was a victim.
The agency or landlord cannot require the individual to submit documentation on their current status as a victim.

23. Emergency Transfers Emergency transfers – Eligibility?
The tenant asks to transfer AND
The tenant is a VAWA victim AND
The tenant believes there is risk of imminent harm or The tenant or a household member was a victim of sexual assault that occurred on the premises within 90 days of the transfer request.
Must keep a record of all emergency transfers requested and the outcomes for three years. This data must be reported to HUD annually (HUD will solicit comment on this provision through separate notice before you must comply with this provision).
**HOUSING PROVIDERS CAN EXTEND THE 90 DAY RULE IN THEIR EMERGENCY TRANSFER PLAN. You could say that it must have occurred within 180 days.

24. Emergency Transfers Continued
You must have an Emergency Transfer Plan. Two situations to contemplate in your Emergency Transfer Plan:
MANDATORY: Tenant must be allowed to transfer to another safe and available unit if they can transfer without reapplying for assistance or housing (“internal transfer”)
OPTIONAL: Tenant must apply to occupy the new unit (“external transfer”)
Documentation Required?
Agency may require a written emergency transfer request that certifies the tenant is eligible for emergency transfer (*HUD form)
Agency may require documentation to prove tenant is a victim, but again, self-certification is the most you can require

25. FAQs – Emergency Transfer
Can a housing provider terminate assistance to a perpetrator when an emergency transfer happens? Yes, but must following existing program regulations and policies and lease terms that allow termination, as well as state and local laws.
Can the tenant terminate the lease? A VAWA lease term/addendum is required that the tenant may terminate the lease without penalty if meets conditions for an emergency transfer.
What if tenant no longer meets income requirements for a new move- in? VAWA does not get rid of eligibility requirements. Existing program requirements are still valid and apply.
Who pays? Housing providers are not required to bear moving costs that tenants usually pay (application fees, deposits, transportation of households, etc.), but HUD encourages them to bear the costs where possible. Local victim service providers may be able to help. Note: ESG and CoC funds (24 CFR (e)(2)) cannot be used to pay for damages resulting from early lease terminations.

26. What must be in your Plan?
Eligibility for Emergency Transfer
Documentation you will require
Will you require documentation to prove an individual was in fact a victim? If so, what documentation?
Will you require a written request to transfer? Will a specific form be required?
Priority balancing – Examples: Applicants vs. Current tenants who need VAWA protections? Applicants or Current tenants who need VAWA protections vs. disability or homelessness preferences?
Confidentiality (cannot disclose new location to perpetrator)
Mandatory internal transfer when a safe unit is immediately available. If cannot provide one, spell out helpful resources and policies.
For external transfers, can discuss relationships with other agencies who will share information on available units or relationships with victim service providers who can help the tenant locate and quickly move to a new unit. Maybe provide the victim with names, addresses, phone numbers of DV agencies that stand ready to assist with emergencies.
Eligibility or other occupancy requirements still apply. For example, priority for an available accessible unit under HUD’s Section 504 regulation must still be applied to maximize the utilization of accessible units by individuals who need those features. But the objective of the emergency transfer plan is to develop a plan for how to fill an available unit quickly as while meeting other obligations like Section 504 and balancing competing needs.
Again, transfers are not mandatory for units outside of a provider’s control and/or in a different program. But, plan must say how you will help a tenant transfer as expeditiously as possible. Examples:
Place tenant on your internal emergency transfer waiting list.
While simultaneously you could:
Have arrangements that allow agencies to share tenant files with tenant’s written consent
Have arrangements where agencies alert one another when a unit becomes newly available
Provide the tenant with contact information for other agencies.
Help the tenant search for other units.
Develop relationships with groups that assist victims covered by VAWA

27. Program-specific Plan Requirements
ESG: For TBRA, the emergency transfer plan must specify what will happen with respect to the non-transferring family member(s) if the family separates to effectuate an emergency transfer. If the lease is bifurcated, the TBRA and utility assistance must continue for members who are not evicted or removed.
HOPWA: Agencies must have a policy for determining the “reasonable grace period” for remaining persons residing in the unit to establish eligibility for HOPWA assistance or find alternative housing after an emergency transfer. Between 90 days and one year.
CoC: Your CoC should have developed one for your CoC rental assistance.
811: If a safe unit is not available, owners must (1) review the existing inventory of units and determine when a unit may be available; (2) provide a list of nearby HUD subsidized rental properties and contact information for the local HUD field office. *also see HUD guidance as previously discussed

28. Additional Plan Requirements
Everyone should have a Plan – deadline was June 16, 2017.
HUD sample plan – only a “guide”
Must make the plan available upon request and publicly available if possible (i.e. website, prominently displayed at the project site, etc.)
HUD has strongly encouraged agencies to consult with victim advocacy experts to develop the plan.
For emergency transfers to be most effective, agencies should become familiar with and establish relationships with victim advocacy organizations
“Housing providers not only should but are expected to design emergency transfer plans hat not only incorporate the key protections of VAWA 2013, but reflect unique requirements or features of their programs.” (HUD)
There is a HUD model plan, but HUD not only suggests but expects housing providers to design plans that not only incorporate the key requirements but reflect the unique requirements or features of their programs.
Multifamily Division
The VAWA Final Rule requires O/As (811 PRAC) to adopt an Emergency Transfer Plan, based on HUD’s model Emergency Transfer Plan (form HUD-5381). The model Emergency Transfer Plan is available in Hudclips. (See 24 CFR (e).)
Note: Specific to the 811 PRA program, the state housing agency, or Grantee, will adopt the Emergency Transfer Plan.

29. Lease Bifurcation Lease bifurcation
Landlord may split a lease to evict a tenant or household member who engaged in domestic violence, dating violence, sexual assault or stalking
Continue to house remaining family members.
HUD Comment: Generally speaking, lawful occupants will not have rights to a unit unless they are a tenant on the lease. Bifurcation is not the appropriate remedy to remove a household member who is not on the lease and who is not a tenant. There would be no need to divide the lease to remove a household member who is not on the lease. As explained elsewhere in this preamble, under VAWA, a covered housing provider may not evict or terminate assistance to a tenant solely on the basis that the tenant has an unauthorized abuser or perpetrator in the household, where the unreported household member is in the unit because he or she has committed an act of domestic violence against the tenant and the tenant is afraid to report him or her.

30. How does it work?
Landlord would follow normal Georgia eviction procedures (follow lease requirements and demand possession and for the perpetrator to vacate).
If successful, then determine whether remaining family members are eligible to continue receiving assistance.
Another option is to seek eviction of the perpetrator, resulting in the underlying lease becoming null and void. The landlord would then execute a new lease with remaining tenant(s).
Multifamily Notice
HUD also encourages O/As to simultaneously attempt to reach agreement to the mutual termination of the lease, if it is safe to do so.

31. Questions What happens if abuser is the one with the subsidy?
What if remaining members are not eligible?
Next slides will discuss program-specific answers on how long an individual has to establish eligibility.
If remaining members are not able to establish eligibility: Housing providers may evict or terminate assistance at the expiration of the program-specific time period.

32. Program-Specific re Bifurcation
HOPWA:
Agencies must make sure the property manager or owner is aware of the option to bifurcate.
For acquisition, rehab, conversion, lease, new construction, operating costs, community residences and project-based rental assistance: Agency must define a “reasonable grace period” in policy for remaining persons in the unit to establish eligibility or find alternative housing (90 days to 1 year).
For TBRA: Agency must define a “reasonable grace period” in its policy for remaining persons in the unit to establish eligibility or find alternative housing (90 days to 1 year). In addition, the agency must determine on a case-by-case basis whether to provide new TBRA to a remaining tenant.
During the grace period, HOPWA housing assistance and supportive services shall continue for the remaining persons residing in the unit, but the agency shall notify them of the duration of the reasonable grace period and may assist with information on other available housing programs and moving expenses.

33. Program-Specific re Bifurcation
ESG: TBRA and utility assistance must continue for members who are not evicted or removed. Reasonable time period provisions will never be triggered because the family’s eligibility is based on the characteristics of the family as a whole, not the characteristics of any one family member, therefore the eligibility of remaining tenants will have already been established at the time of bifurcation.
CoC: If a family living in permanent supportive housing separates and the family’s eligibility was based on the evicted individual’s disability or chronically homeless status, the remaining tenants may stay in the project and have the right to rental assistance until the expiration of the lease. Families in other CoC projects (apart from permanent supportive housing): the remaining tenant is eligible to remain. TBRA and utility assistance must continue for members who are not evicted or removed.
811: If the lease is bifurcated, must provide a period of 90 calendar days for remaining tenants who were not already eligible to establish eligibility under 811, establish eligibility under another program, or find alternative housing. This 90 days will not apply beyond the expiration of a lease. Agency may extend the 90 calendar days for an additional 60 days. During the 90 days, cannot pay government assistance.

34. Confidentiality and access requirements
Provider must keep confidential any information about an individual’s status as a victim or documentation the victim provides.
Cannot enter information into shared databases.
Information cannot be disclosed to third parties without written time-limited release by the victim.
Employees or contractors should not be allowed access to information unless explicitly authorized by the provider under applicable law.
All notices must be available in the participant’s language.
If emergency transfer, must keep confidential the location of the new unit from the perpetrator

35. VAWA language memorialized
Contracts between the agency and property owner + leases and occupancy agreements must include:
Property owner agrees to comply with VAWA
Prohibited bases for eviction and constructions of lease terms (example: an incident of domestic violence, dating violence, sexual assault or stalking where the tenant is the victim is not (1) a violation of the lease OR (2) good cause to terminate)
Commitment to provide the Notice/Certification at the required times
Commitment to confidentiality
Tenants may terminate their leases without penalty for a VAWA emergency transfer
Agencies also must make sure that owner knows about option to bifurcate lease.
Can use a lease addendum
CHECK YOUR PROGRAMS REGULATIONS FOR SPECIFIC REQUIREMENTS. This slide is intended to be a summary and does not list the program-specific requirements for inserting VAWA language into the contracts and leases. So please check your program’s regulations.
ESG Prevention: If participant is receiving ongoing prevention in an existing unit, the rental agreement b/w the LL and agency will have the VAWA provisions. If the participant is receiving prevention in a new unit or a new lease will be executed, then VAWA needs to also be incorporated with the lease.
811: The Office of Multifamily Housing will soon issue an updated form HUD-91067, “VAWA Lease Addendum”, which will include the additional provisions required in the final rule. All O/As must use this updated form when providing or modifying a lease.
(f)
578.99(j)

36. What to do if VAWA violation?
Landlord should abide by the VAWA language agreed to in the contract for assistance and in the lease with the tenant.
Individuals can contact their local HUD field office.

37. Additional Resources National Housing Law Project www.nhlp.org
ACLU Women’s Rights Project
National Network to End Domestic Violence (NNEDV)
Office of Violence Against Women, Dept. of Justice
Atlanta Legal Aid Society, (404)
Georgia Legal Services Program, (404)
For HUD documents see

38. Housing Assistance Division
Questions?
Erin Wright
Legal Consultant
Housing Assistance Division