How to Comply with the Latest Housing Provisions in VAWA 2022
On March 16, President Biden signed into law the latest reauthorization of the Violence Against Women Act (VAWA), a 1994 law that provides resources for survivors and prevention of gender-based, domestic, and sexual violence. VAWA’s renewal took on added urgency because of an alarming spike in domestic violence that coincided with the coronavirus pandemic. According to experts, domestic violence often increases during periods when families spend more sustained time together. VAWA was reauthorized as part of the 2022 Consolidated Appropriations Act.
The reauthorization deal came after several years of the act not being funded. While the basic provisions of VAWA didn’t expire, the authorization for funding various VAWA programs had lapsed in 2018, when legislators failed to come to an agreement due to a 2019 provision that would’ve prohibited abusers from owning firearms.
In the most recent version, VAWA expands protections for survivors of domestic violence and sexual assault. We’ll go over the basics of the VAWA requirements and discuss the new housing provisions. We’ll also cover how the new legislation draws from fair housing laws to protect victims of domestic violence and sexual assault.
VAWA Core Protections
VAWA protections are currently extended to residents living in sites with HUD Multifamily Housing contracts (MFH), HUD Public and Indian Housing contracts (PIH), Low-income Housing Tax Credits funding (LIHTC), USDA Rural Development 515 contracts, HOPWA programs, and the HOME program. With the reauthorization, Title VI–Safe Homes for Victims updates the definition of “covered housing program” for additional housing and homelessness programs. This section expands VAWA’s applicability to the Housing Trust Fund, the Rural Housing Voucher Program, and housing programs for homeless veterans.
Here are the core VAWA housing protections for survivors of domestic violence, dating violence, sexual assault, and stalking:
Denial of admissions. An applicant’s status as a victim of domestic violence, dating violence, or stalking is not a basis for denial of admission, if the applicant otherwise qualifies for admission.
Termination of tenancy. A resident is protected from being evicted for being a domestic violence survivor. If a resident is a victim of domestic violence, dating violence, sexual assault, or stalking, you can’t evict the resident based on acts or threats of violence committed against him or her. In addition, criminal acts directly related to the domestic violence, dating violence, sexual assault, or stalking that are caused by a member of the resident’s household or a guest can’t be the reason for evicting a resident if the resident was the victim of the abuse.
However, you can still evict a resident if you can show there is an actual and imminent threat to other tenants or staff if the resident is not evicted. Also, an owner can evict a resident for serious or repeated lease violations that aren’t related to the domestic violence, dating violence, sexual assault, or stalking against the resident.
Lease bifurcation. VAWA allows owners to “bifurcate,” or split a tenancy, so that the abuser is removed from the household, without evicting or penalizing the survivor. In removing the abuser from the household, you must follow federal, state, and local eviction procedures.
Confidentiality requirements. All information provided regarding domestic violence, dating violence, sexual assault, or stalking, including the fact that an individual is a victim of such violence or stalking, must be retained in confidence. This means that an owner or manager may not enter the information into any shared database; allow employees or others to access the information unless they are explicitly authorized to do so and have a need to know the information for purposes of their work; or provide the information to any other entity or individual, except to the extent that the disclosure is:
- Requested or consented to by the individual in writing in a time-limited basis;
- Required for use in an eviction proceeding; or
- Otherwise required by applicable law [42 U.S.C.A. §14043e-11(c)(4)(A)-(C)].
Emergency transfers. VAWA requires owners to adopt an emergency transfer plan that gives victims the ability to request an emergency transfer to another safe and available unit. The transfer plan must allow survivor tenants to transfer to another available and safe dwelling unit assisted under a covered housing program if: (1) the tenant expressly requests the transfer; and (2) either the tenant reasonably believes that she is threatened with imminent harm from further violence if she remains within the same assisted dwelling unit, or the tenant is a victim of sexual assault and the sexual assault occurred on the premises within 90 days before the transfer request. In addition, the transfer plan must incorporate reasonable confidentiality measures to ensure that the owner or manager does not disclose the location of the new unit to the abuser.
Written notice. VAWA requires that residents receive a written notice of rights under VAWA upon admission, denial of housing, or notice of eviction/subsidy termination–including notification in non-English languages.
HUD VAWA Forms
With the reauthorization, owners and managers should continue to follow HUD guidance provided in HUD Notice H 2017-05 Violence Against Women Act (VAWA) Reauthorization Act of 2013.
Notice of Occupancy Rights, Certification. HUD Form 5380, Notice of Occupancy Rights, provides information to the household of their rights under VAWA. The Notice of Occupancy Rights document consists of eight pages explaining that VAWA provides protections for tenants of HUD-assisted housing programs and for people applying for housing assistance who are victims of domestic violence, dating violence, sexual assault, or stalking. Applicants for assistance can’t be denied admission or assistance, and existing tenants cannot be denied assistance, be terminated, or be evicted because they are or have been victims.
This form is distributed with HUD Form 5382, Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and Alternate Documentation. HUD has made it clear that under most circumstances, a survivor need only to self-certify in order to exercise her rights under VAWA, ensuring third-party documentation doesn’t cause a barrier to a survivor in expressing her rights and receiving the protections needed to keep herself safe. Also, instead of the certification form, the applicant or tenant may provide:
- Documentation signed by the victim and a victim service provider, an attorney, a medical professional, or a mental health professional in which the professional attests under penalty of perjury to his or her belief that the victim has experienced an incident of domestic violence, dating violence, sexual assault, or stalking that meets the grounds for protection under the statute;
- A federal, state, tribal, territorial, or local law enforcement, court, or administrative record; or
- At the discretion of the owner, a statement or other evidence provided by the applicant or tenant.
HUD Forms 5380 and 5382 are not required to be distributed at each annual recertification. However, you should distribute them to rejected applicants, new families at move-in, and existing residents with the initial notice of termination (tenancy or assistance).
HUD also encourages owners and managers to post the VAWA Notice of Occupancy Rights and certification form on their websites and in public areas such as waiting rooms, community bulletin boards, and lobbies, where all residents may view them.
VAWA lease addendum. HUD Form 91067 is a HUD-approved lease addendum and should be attached to each new lease. It must be signed by all adult household members when any new Section 8 lease is signed. Use of the addendum is optional for other HUD Multifamily Housing programs.
Emergency transfers. HUD provides a model emergency transfer plan (HUD Form 5381). This form is not distributed to residents. This form is to be used as a template when creating your own VAWA emergency transfer plan. Owners are encouraged to post their plan and must make the emergency transfer plan available upon request.
The model emergency transfer plan explains that a victim of domestic violence, dating violence, sexual assault, or stalking may request an emergency transfer to another unit. Someone is eligible for an emergency transfer if she reasonably believes that there’s a threat of imminent harm from further violence. Also, if a tenant is a victim of sexual assault, the tenant may be eligible to transfer if the sexual assault occurred on the premises within the 90-calendar-day period prior to a request for an emergency transfer.
Owners provide HUD Form 5383, Emergency Transfer Request, upon request. It should be completed by any household member who’s seeking an emergency transfer while residing at your site. Owners may also accept other written or oral requests for a transfer. In addition, owners may require third-party documentation; the form lists a variety of acceptable documentation. But the form advises the tenant that she needs to provide documentation only if it’s safe for her to do so.
Newest VAWA Housing Provisions
The VAWA Reauthorization Act of 2022 adds to existing VAWA requirements. The latest reauthorization act:
- Provides funding for fiscal years 2023–2027 for transitional housing grants for victims of VAWA-covered violence and for collaborative grants to increase the long-term stability of victims who are homeless or at risk of becoming homeless and grants to combat violence against women in public and assisted housing;
- Expands the covered housing program to include more housing and homelessness programs. Newly covered housing programs include the Section 202 Direct Loan (1959-1974), Rural Development 542 Voucher, and national Housing Trust Fund programs;
- Requires HUD’s Secretary to conduct a study assessing the availability and accessibility of housing and services for individuals experiencing homelessness or housing instability who are survivors of trafficking or at risk of being trafficked;
- Requires HUD’s Secretary to establish a Gender-based Violence Prevention Office with a Violence Against Women Act Director;
- Requires each federal agency carrying out covered housing to regulate and assess compliance with VAWA provisions;
- Prohibits retaliation against persons when they exercise their rights or participate in processes related to VAWA housing protections;
- Prohibits coercion of persons when they exercise their rights or participate in processes related to VAWA housing protections; and
- Protects the right to report crime from one’s home.
Fair Housing and Domestic Violence Victims
The last three housing provisions draw upon fair housing laws to help prevent punishing domestic violence victims. Domestic violence survivors are not a protected class under the Fair Housing Act (FHA), but most are female. And, on this basis, the FHA has provided protections for survivors who have faced housing discrimination against them.
Survivors of domestic violence often face housing discrimination because of their history or the acts of their abusers. Owners might evict victims under zero-tolerance crime policies, citing the violence of a household member, guest, or other person under the victim’s “control.” In a fair housing context, women are disproportionately affected by such zero-tolerance policies because they are the majority of domestic violence survivors and can be evicted as a result of the violence of their abusers. As a result, these policies could have a disparate impact on women.
In addition, owners might evict victims after repeated calls to the police for domestic violence incidents because of allegations of disturbance to other tenants. Or victims may be evicted because of property damage caused by their abusers. In many of these cases, adverse housing actions punish victims for the violence inflicted upon them.
Protection to report crimes. To address situations in which an owner refuses to rent or renew a lease due to 911 calls or police visits, the VAWA statute protects the right to report crime from one’s home. According to the statute, residents “shall have the right to seek law enforcement or emergency assistance on their own behalf or on behalf of another person in need of assistance; and shall not be penalized based on their requests for assistance or based on criminal activity of which they are a victim or otherwise not at fault under statutes, ordinances, regulations, or policies adopted or enforced by covered governmental entities. Prohibited penalties include:
- Actual or threatened assessment of monetary or criminal penalties, fines, or fees.
- Actual or threatened eviction.
- Actual or threatened refusal to rent or renew tenancy.
- Actual or threatened refusal to issue occupancy permit or landlord permit.
- Actual or threatened closure of the property, or designation of the property as a nuisance or a similarly negative designation.”
Prohibition on retaliation. The new reauthorization prohibits retaliation against persons exercising their rights or participating in processes related to VAWA housing protections. The nonretaliation provisions state that no owner or manager of housing assisted under a covered housing program “shall discriminate against any person because that person has opposed any act or practice made unlawful by [VAWA] or because that person testified, assisted, or participated in any matter related to [VAWA].”
The statute also says owners and managers of housing assisted under a covered housing program shall not intimidate or threaten any person because that person is assisting or encouraging a person entitled to claim the rights or protections under VAWA nor retaliate against any person because that person has participated in any investigation or action to enforce VAWA.
Enforcement. 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.”