Five Rules for Responding to Domestic Violence
Dealing with domestic violence is one of the trickiest problems site managers face. You may have observed domestic violence first hand, responded to noise complaints from neighbors, have the police called to your site, been asked to terminate a lease against a resident's abusive spouse, or been asked to help enforce a restraining order. And if you haven't already been confronted with this problem, it's likely that you will be because of the staggering number of domestic violence incidents that occur each year in the United States.
In addition to federal and state laws that directly address how you may respond to domestic violence at your site, the courts have been active in shaping how owners may approach this problem. In recent years, women's rights advocates have used the courts successfully to equate discrimination against domestic violence victims with unlawful sex discrimination in violation of federal fair housing law.
To ensure that you comply with the law and minimize your chances of facing a discrimination lawsuit, here are five rules you should follow when responding to domestic violence at your site.
Rule #1: Get the Facts
If you've never been exposed to domestic violence, it can be difficult to understand the seriousness of the problem, its cyclical nature, and how it may lead to seemingly inconsistent behavior by a victim—such as continuing a relationship with her abuser. To avoid potential legal problems, it's important for your employees—not only your leasing staff, but also maintenance and cleaning staff—to know what to do if they observe or hear about domestic violence problems.
For example, a fact sheet funded by the U.S. Department of Justice's Office of Violence Against Women explains that domestic violence—sometimes known as “intimate partner violence”—is a gender-based crime with women being more likely to experience domestic violence than men.
Domestic violence victims face many barriers when leaving abusive relationships, according to the fact sheet. These include fear of the abuser, believing the abuser will take their children, hoping the abuser will change, embarrassment, shame, and self-blame for the situation. In addition, domestic violence may include economic abuse in which the abuser maintains control over finances, withholds access to money, and makes the victim financially dependent.
Domestic violence victims often return to their abusers when a viable option for permanent housing cannot be found, according to the National Coalition Against Domestic Violence. Domestic violence survivors may have trouble finding other housing not only because of limited temporary or affordable housing alternatives, but also because their history of abuse may adversely affect their employment, credit, and rental history.
Rule #2: Comply with VAWA
Any federally assisted site, such as those that participate in the Section 8 voucher and project-based programs, must comply with the Violence Against Women Act (VAWA). The VAWA provides specific protections for victims of domestic violence, dating violence, and stalking in public housing and Section 8 voucher and project-based programs.
Under VAWA, an incident of actual or threatened domestic violence, dating violence, or stalking doesn't qualify as a serious or repeated violation of the lease, nor does it constitute good cause for terminating the assistance, tenancy, or occupancy rights of the victim.
Additionally, criminal activity directly relating to domestic violence, dating violence, or stalking isn't grounds for terminating the victim's tenancy. However, the law does allow you to “bifurcate” a lease in order to evict, remove, or terminate the assistance of the offender while, at the same time, permitting the victim who is a resident or lawful occupant to remain in the unit. Also, you aren't allowed to deny admission based on an individual's status as a victim of domestic violence or in cases of criminal activity related to domestic violence [24 C.F.R. §982.553].
The VAWA requires sites to honor abuse protection orders and other court orders (such as divorce decrees) that address access to or control of the unit. The law also requires sites to inform individuals of their rights under the VAWA and to include information about those rights in lease agreements.
Be sure to get legal advice before attempting to evict a resident for noisy disturbances or violent altercations that might be related to domestic disputes. Since the VAWA was enacted, HUD has issued rules to ensure that sites comply with the VAWA. HUD has made clear that there must be an actual and imminent threat to other residents or employees to remove a victim from the site. This actual and imminent threat exception can be utilized only where there are no other actions that could be taken to reduce the threat [24 C.F.R. §5.2005(d)(3)]. The VAWA applies even in situations where the resident claims to be the victim of domestic abuse, but continues a relationship with her alleged abuser.
Rule #3: Check Applicable State and Local Laws
Depending on where your site is located, you could be subject to various state, county, or local laws aimed at protecting domestic violence victims as well. More than half of U.S. jurisdictions have measures to protect domestic violence victims through their landlord-tenant laws. The form and language used in such measures vary, but examples include:
Allowing status as a domestic violence victim as a defense to an eviction proceeding;
Prohibiting communities from denying housing based on status as a domestic violence victim;
Banning sites from interfering with a resident's right to call law enforcement in response to domestic violence;
Requiring lease protections such as the ability to bifurcate the lease (by removing the batterer from the lease) and early lease termination by a victim who needs to move for safety reasons; and
Changing locks to protect a victim.
Rule #4: Address Victims' Safety Concerns
A potential domestic violence situation may come to your attention in a number of ways. You could observe disturbing behavior, receive noise complaints from neighbors, or have the police called to your site. Or a domestic violence victim may enlist your help to enforce a protective order or ask you to change the locks, transfer her to another unit, or let her out of her lease early.
The circumstances will dictate how you should respond, but much depends on the law. The law in some states governs whether you must help keep the perpetrator of domestic violence away from the victim—or allow a victim to move out before the end of a lease to escape an abuser.
In cases where a domestic violence victim calls on you to keep out an alleged abuser, a determining factor is whether the alleged abuser is a party to the lease. Let's say, for example, that a resident asks for your help to enforce a court order—sometimes referred to as an “order of protection” or “restraining order”—requiring an abusive boyfriend to stay a certain distance away from her. If the boyfriend isn't a party to the lease, then you may take steps to protect the resident, such as changing the locks or instructing security guards not to allow him access. If you don't, you could face potential liability if the resident is injured or killed as a result.
But you're in a difficult legal position if he is a party to the lease. In this situation, your best bet is to contact your attorney to determine the best course of action. In some states, the law requires site owners under such circumstances to change the locks—or to permit the resident to do so—when the resident can document domestic violence.
HUD has stated that leases shall include regulatory references to the VAWA protections [24 C.F.R. §966.4]. One such protection may require you to consider lease bifurcation in circumstances involving domestic violence.
In a number of states, the law allows domestic violence victims to terminate a lease agreement early if they have to move to protect their safety or that of their children. Most require documentation of the abuse, and specify notice requirements. Some also address what happens to the security deposit. In most cases, the laws require owners and managers to act quickly, so such requests require priority review and decision making.
Rule #5: Document Efforts to Resolve Domestic Violence Problems
For a variety of complex reasons, domestic violence victims often stay in an abusive relationship or return a number of times before they're able to stop the cycle of domestic abuse. For that reason, you could face the challenge of addressing neighbors' complaints about noisy fights or repeated calls to the police related to ongoing domestic violence.
In general, all residents have a right to the peaceful enjoyment of their homes, so many sites have policies to ban residents from excessive noise or conduct that disturbs their neighbors. Many provide for warnings, fines, and ultimately eviction, for continued violation of these policies.
Instruct your staff to report any complaints or comments from neighbors about noisy fights or other indications of possible domestic violence. Keep track of the complaints, the steps you took to investigate, and attempts to resolve the problem. Keep good records and contact your attorney for advice, particularly if, despite your best efforts, the complaints continue and you have no choice but to initiate eviction proceedings.
Fair Housing Act: 42 USC §3601 et seq.
Violence Against Women Act: H.R. 3402, PL 109-162.
Nadeen W. Green, Esq.: Senior Counsel, For Rent Magazine, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; www.forrent.com.