3.8Violence Against Women Act (VAWA) Protections¹

VAWA protects victims of domestic violence, dating violence, sexual assault, or stalking from discrimination in all HUD (United States Department of Housing and Urban Development) rental housing programs. VAWA states:

“An applicant for or tenant of housing assisted under a covered housing program may not be denied admission to, denied assistance under, terminated from participation in, or evicted from the housing on the basis that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, if the applicant or tenant otherwise qualifies for admission, assistance, participation, or occupancy.” 42 USC 14043e-11(b)(1).

“The [] agency [charged with the administration of] each covered housing program shall implement [42 USC 14043e-11] as [it] applies to the covered housing program.” 42 USC 14043e-11(g). The list of covered housing programs appears in 42 USC 14043e-11(a)(3)(A)-(J). It includes:

•Section 202 Housing Program for the elderly (see Section 3.4(D));

•Section 811 Housing Program for people with disabilities (see Section 3.4(D));

•Section 221 Housing Program (below market interest rate) (see Section 3.4(E));

•Section 236 Housing Program (interest reduction payments) (see Section 3.4(E));

•Public Housing (see Section 3.3);

•Section 8 Housing Programs (see Section 3.4—project-based, and Section 3.5—tenant-based);

•Section 515 Rural Housing Program (see Section 3.6); and

•Low Income Housing Tax Credit Program (see Section 3.7).²

The Department of Housing and Urban Development (HUD) is one of the agencies charged with implementing VAWA as it pertains to covered housing programs. The HUD’s regulations regarding implementation of the VAWA in HUD housing programs is located in Title 24 of the Code of Federal Regulations, and can be accessed on the United States Government Publishing Office website.

A.An Incident of Violence Does Not Constitute a Serious or Repeated Lease Violation or Good Cause for Termination

42 USC 14043e-11(b)(2) states:

“An incident of actual or threatened domestic violence, dating violence, sexual assault, or stalking shall not be construed as—

(A) a serious or repeated violation of a lease for housing assisted under a covered housing program by the victim or threatened victim of such incident; or

(B) good cause for terminating the assistance, tenancy, or occupancy rights to housing assisted under a covered housing program of the victim or threatened victim of such incident.”

B.Termination Based on Criminal Activity

A landlord may not deny a tenant “assistance, tenancy, or occupancy rights to housing assisted under a covered housing program” on the sole basis that a member of the tenant’s household, or a person under the tenant’s control, engages in criminal activity directly related to violence when the tenant, or a person affiliated with the tenant, is the victim or threatened victim of the violence. 42 USC 14043e-11(b)(3)(A).

When the perpetrator and the victim are both lawful tenants under a covered housing program, a landlord may bifurcate the lease. 42 USC 14043e-11(b)(3)(B)(i). A tenant or other lawful occupant of a residence may be evicted, removed, or have his or her assistance terminated under a covered housing program if that person engages in criminal activity related to violence against another lawful occupant. Id. The landlord can evict the perpetrator without penalizing the lawful occupant who is the victim of the criminal activity. Id.

If the tenant who is evicted, removed, or whose assistance is terminated is the only individual in the household who is eligible for tenancy in the covered housing program, the landlord must allow any remaining tenant the opportunity to qualify for assistance under the program. 42 USC 14043e-11(b)(3)(B)(ii). If the remaining tenant is not eligible for assistance, the tenant must be given a reasonable amount of time to obtain new housing or to qualify for assistance under another program. Id.

C.Extent of Limitations on a Landlord’s Authority

VAWA protections do not prevent the landlord from complying with a court order, including a civil protection order, that limits a tenant’s access to property or that affects the distribution or possession of a household member’s property. 42 USC 14043e-11(b)(3)(C)(i)(I)-(II).

VAWA protections do not limit a landlord’s authority to evict a tenant in a covered housing program for “any violation of a lease not premised on the act of violence in question” as long as the landlord does not hold the victim of actual or threatened violence to “a more demanding standard than other tenants in determining whether to evict or terminate[.]” 42 USC 14043e-11(b)(3)(C)(ii).

VAWA protections do not prevent a landlord from evicting a tenant from a covered housing program if the landlord can show the presence of “an actual and imminent threat to other tenants or individuals employed at or providing service to the property . . . if the assistance is not terminated or the tenant is not evicted[.]” 42 USC 14043e-11(b)(3)(C)(iii).

VAWA protections do not “supersede any provision of any Federal, State, or local law that provides greater protection than [VAWA] for victims of domestic violence, dating violence, sexual assault, or stalking.” 42 USC 14043e-11(b)(3)(C)(iv).

D.Documentation

A landlord may require written documentation from a tenant or applicant who claims he or she is entitled to VAWA protection. 42 USC 14043e-11(c)(1). However, a landlord is not required to request documentation. 42 USC 14043e-11(c)(5).

If a landlord requests documentation, the landlord must do so in writing. 42 USC 14043e-11(c)(1). After receipt of the written request, the tenant or applicant has 14 business days to provide the documentation. 42 USC 14043e-11(c)(2)(A). A landlord has discretion to extend the deadline. 42 USC 14043e-11(c)(2)(B). If the tenant or applicant fails to provide the documentation by the deadline, the landlord may:

•“deny admission by the applicant or tenant to the covered program[.]” 42 USC 14043e-11(c)(2)(A)(i).

•“deny assistance under the covered program to the applicant or tenant[.]” 42 USC 14043e-11(c)(2)(A)(ii).

•“terminate the participation of the applicant or tenant in the covered program[.]” 42 USC 14043e-11(c)(2)(A)(iii).

•“evict the applicant, the tenant, or a lawful occupant that commits violations of a lease.” 42 USC 14043e-11(c)(2)(A)(iv).

1.Form of Documentation

The form of documentation may be any of the following:

•an approved certification form that states all of the following:

•The tenant or applicant is a victim of violence. 42 USC 14043e-11(c)(3)(A)(i).

•The incident of violence for which the tenant or applicant is seeking protection qualifies under 42 USC 14043e-11(b).³ 42 USC 14043e-11(c)(3)(A)(ii).

•The name of the perpetrator if known and if it is safe to include it. 42 USC 14043e-11(c)(3)(A)(iii).

•a document that meets all of the following requirements:

•It is signed by the tenant or applicant, and a qualified person from whom the victim sought assistance related to the violence or effects of the violence. 42 USC 14043e-11(c)(3)(B)(i)(I)-(II).

•A person is qualified to provide documentation if he or she is “an employee, agent, or volunteer of a victim service provider, an attorney, a medical professional, or a mental health professional from whom an applicant or tenant has sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of the abuse[.]” 42 USC 14043e-11(c)(3)(B)(i)(I).

•It “states under penalty of perjury that the [qualified person who signed the document] believes that the incident of domestic violence, dating violence, sexual assault, or stalking that is the ground for protection under [VAWA] meets the requirements of [42 USC 14043e-11(b)⁴.]” 42 USC 14043e-11(c)(3)(B)(ii).

•“a record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or administrative agency[.]” 42 USC 14043e-11(c)(3)(C).

•a statement or other evidence if permitted by the landlord. 42 USC 14043e-11(c)(3)(D).

2.Confidentiality of Documentation

Information disclosed in the documentation must be kept confidential and may not be disclosed to another entity or individual unless:

•the tenant or applicant, in writing, requests or consents to disclosure. 42 USC 14043e-11(c)(4)(A).

•the information is required in an eviction proceeding. 42 USC 14043e-11(c)(4)(B).

•the information is “otherwise required by applicable law.” 42 USC 14043e-11(c)(4)(C).

A landlord’s compliance with 42 USC 14043e-11(b)⁵ on the basis of the documentation “shall not . . . constitute evidence of an unreasonable act or omission[.]” 42 USC 14043e-11(c)(6). However, 42 USC 14043e-11(c)(6) does not limit a landlord’s liability for failing to comply with the provisions of 42 USC 14043e-11(b).

3.Conflict of Information in Documentation

If a tenant’s or applicant’s documentation contains conflicting information, the landlord may require the tenant or applicant to provide third-party documentation that satisfies the content requirements of 42 USC 14043e-11(c)(3)(B)-(D). 42 USC 14043e-11(c)(7).

4.Documentation Provisions Do Not Supersede Greater Protection Provided by Other Law

“Nothing in th[e] subsection [on documentation] shall be construed to supersede any provision of any Federal, State, or local law that provides greater protection than [42 USC 14043e-11(c)] for victims of domestic violence, dating violence, sexual assault, or stalking.” 42 USC 14043e-11(c)(8).

5.Documentation Not Required

A landlord is not required “to request that an individual submit documentation of the status of the individual as a victim of domestic violence, dating violence, sexual assault, or stalking.” 42 USC 14043e-11(c)(5).

E.Notification

HUD is responsible for developing “a notice of the rights of individuals under [42 USC 14043e-11], including the right to confidentiality and the limits thereof.” 42 USC 14043e-11(d)(1).

Each landlord of a covered housing program must provide the notice of rights and a copy of the certification form described in 42 USC 14043e-11(c)(3)(A) to tenants and applicants as indicated by all of the following:

•“[A]t the time [an] applicant is denied residency in a dwelling unit assisted under the covered housing program[.]” 42 USC 14043e-11(d)(2)(A).

•“[A]t the time [an] individual is admitted to a dwelling unit assisted under the covered housing program[.]” 42 USC 14043e-11(d)(2)(B).

•“[W]ith any notification of eviction or notification of termination of assistance[.]” 42 USC 14043e-11(d)(2)(C).

•“[I]n multiple languages, consistent with guidance issued by [HUD.]” 42 USC 14043e-11(d)(2)(D).

F.Emergency Transfers

42 USC 14043e-11(e) requires that an emergency transfer plan be established:

“Each appropriate agency shall adopt a model emergency transfer plan for use by [landlords] of housing assisted under covered housing programs that—

(1) allows tenants who are victims of domestic violence, dating violence, sexual assault, or stalking to transfer to another available and safe dwelling unit assisted under a covered housing program if—

(A) the tenant expressly requests the transfer; and

(B)(i) the tenant reasonably believes that the tenant is threatened with imminent harm from further violence if the tenant remains within the same dwelling unit assisted under a covered housing program; or

(ii) in the case of a tenant who is a victim of sexual assault, the sexual assault occurred on the premises during the 90 day period preceding the request for transfer; and

(2) incorporates reasonable confidentiality measures to ensure that the [landlord] does not disclose the location of the dwelling unit of a tenant to a person that commits an act of domestic violence, dating violence, sexual assault, or stalking against the tenant.”

“[HUD] shall establish policies and procedures under which a victim requesting an emergency transfer . . . may receive, subject to the availability of tenant protection vouchers, assistance under [the tenant-based Section 8 voucher program].”⁶ 42 USC 14043e-11(f).