Federal Housing Law and Survivors of Domestic Violence

1. Federal Housing Law and Survivors of Domestic Violence Presented by Kathy Zeisel, Esq. To the CSAJ Conference, Jan. 15, 2007 National Law Center on Homelessness and Poverty kzeisel@nlchp.org

2. Opening Discussion Does your PHA know about VAWA? Has it implemented it? Does your PHA send out notices about VAWA rights? When? (With leases? With denial letters? With eviction notices?) Are you seeing discriminatory evictions? Are you seeing problems with certifications? Does your PHA have the correct forms Are batterer�s self-certifying? Are PHAs demanding more than one form of certification? What problems related to domestic violence and public housing or Section 8 are you seeing?

3. Important Abbreviations VAWA: Violence Against Women Act VAWA 2005: Violence Against Women Act Reauthorization of 2005 PHA: Public Housing Authority LL: Landlord USCIS: US Citizenship and Immigration Services USC: United States Code

4. Federal Housing Programs Relevant Government Agencies: U.S. Department of Housing and Urban Development (HUD) Office of Public and Indian Housing supervises Public Housing & Section 8 HUD Fair Housing offices Local Public Housing Authorities: Each state has many PHAs, each with its own rules but governed by federal and state law and by regulations from HUD

5. Federal Housing Programs Public Housing: Run by the local PHA; PHA provides and administers housing directly. Section 8 Vouchers: Voucher is granted by PHA and recipient must find housing. Project-Based Section 8: Housing provider has Section 8 money to operate Section 8 apartments; tenant generally cannot transfer to another program Other federally funded programs (transitional housing, emergency shelter)

6. Federal Housing Law Fair Housing Act 2005 Reauthorization of the Violence Against Women Act HUD regulations and Guidance Most housing law is state or local lawMost housing law is state or local law

7. State/Local Laws to Consider� Landlord/Tenant law: Most aspects of LL/T relationship are regulated by local or state laws. Other protections for survivors Tort law: Although LAV grantees are prohibited from pursuing tort claims with their LAV money, they may be able to do so with non-LAV monies or be able to refer out to another organization who can bring the case. Attorneys should be aware of these laws because there is an ethical obligation to inform clients.

8. Application and Admissions Local PHAs have latitude to establish many policies, but are regulated by federal law and HUD regulations Must consider: credit history criminal activity debts to housing authority income requirements. HUD recommends that PHAs exercise discretion to approve admission if negative reporting and histories were a result of domestic violence (See HUD Guidebook).

9. Application and Admissions:Required Denials Federal law requires a denial to the following categories of people: Any household member has been evicted from Federally-assisted housing for drug-related criminal activity, for three years from the date of eviction. If the evicted household member who engaged in drug-related criminal activity has successfully completed a supervised drug rehabilitation program or circumstances leading to the eviction no longer exist, the Owner may, but is not required to, admit the household. Any household member is currently engaging in illegal drug use. The Owner determines that there is reasonable cause to believe that a household member�s illegal use or a pattern of illegal use of a drug may interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents. (Examples of evidence of illegal activities may include a conviction record, former landlord references, etc.)

10. Application and Admissions:Required Denials 4. Any member of the household is subject to a lifetime registration requirement under a state sex offender registration program. In accordance with Federal law, Owners shall establish standards that prohibit admission to any Federally-assisted property to sex offenders subject to a lifetime registration requirement under a state sex offender registration program. During the admissions screening process, the Owner must perform the necessary criminal history background checks in the state where the housing is located and in other states where the household members are known to have resided. 5. The Owner determines that there is reasonable cause to believe that a household member�s abuse or pattern of abuse of alcohol interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.

11. Application and Admissions:Permissible Denials Admission may be denied for: Drug-related criminal activity; Violent criminal activity; Other criminal activity that would threaten the health, safety, or right to peaceful enjoyment of the premises by other residents; or Other criminal activity that would threaten the health or safety of the PHA or Owner or any employee, contractor, subcontractor or agent of the PHA or Owner who is in involved in the housing operations. For more information see: HUD Notice H-2002 22

12. Application and Admission: Immigration Status Immigrants are eligible for Section 8 and Public Housing. Even if the head of household is ineligible for housing assistance due to immigration status, other members of the household may be eligible ie: survivor is ineligible but her children are USC, the budget would be made based on the children but all of them could live in the household Undocumented immigrants can generally enter into valid contracts, including with PHAs, so long as local or state law does not prohibit it See HUD Guidebook, Chapter 2 (in appendix) PHAs are legally obligated to call USCIS if they know a tenant is an undocumented immigrant BUT they are NOT legally obligated to evict undocumented immigrants. See HUD Letter (in appendix)

13. Application and Admissions: Preferences Local PHAs MAY but are not required to establish preferences. Many preferences are based in the former federal preferences, and include domestic violence as a preference. You can advocate with your local PHA to establish a DV preference if it does not currently have one!

14. Federal Fair Housing Act Title VIII of the Civil Rights Act of 1964; 42 U.S.C. �� 3601 et seq Prohibits LL or homeowner from discrimination on the basis of race, color, religion, sex, handicap, familial status, or national origin Applies to all dwellings except for: Single-family homes where the owner does not own more than 3 of these homes Owner-occupied dwellings containing four or fewer units Most states have comparable laws, though many protect more categories of people. Most states utilize federal interpretations of the law.

15. Fair Housing Act:Application to Survivors of Domestic Violence Disparate Treatment Theory: Policy or Practice that intentionally treats women differently from men Disparate impact theory: Policy or practice that is neutral on face but in fact falls more harshly on women than men Use of statistical evidence Generally do not need to show discriminatory intent or motive Could be used to challenge denial of admission, denial of transfer, refusal to rent, refusal to sell, eviction in PUBLIC or PRIVATECould be used to challenge denial of admission, denial of transfer, refusal to rent, refusal to sell, eviction in PUBLIC or PRIVATE

16. Fair Housing Act:Application to Survivors of Domestic Violence Case Law: United States and Alvera v. C.B.M. Group, Inc., No. 01-857-PA (D. Or. filed June 8, 2001): Filed suit under the premise that evicting a survivor from housing based on a episode of violence in the home had a disparate impact on women; therefore, this is a form of discrimination based on sex prohibited under the Fair Housing Act.� The suit survived summary judgment and was successfully settled.� Bouley v. Young-Sabourin, 394 F. Supp. 2d 675 (D. Vt. 2005):Survivor was served an eviction notice after an incident of domestic violence stating that the incident violated the noise policies of the landlord.� Suit was filed under a theory of disparate impact against a protected class (sex) under the Fair Housing Act.� It survived summary [judgment was settled favorably for the tenant Brooklyn Landlord v R.F: Survivor was served an eviction notice from her Section 8 landlord after the batterer came to her building numerous times, and, finally, shot the security guard at the building who was attempting to aid the tenant. The case alleged that the eviction was in violation of the VAWA 2005 provisions and that the eviction constituted sex discrimination prohibited by the Fair Housing Act. The case was eventually favorably settled for the tenant. Blackwell v. H.A. Housing, LP, Et Al.,+ No. 05-CV-01225-LTB-CBS (D. Colo., Filed July 1, 2005): Private landlord who owned numerous properties denied an emergency transfer for a�survivor who was brutally attacked in her apartment.� Suit was filed alleging that this constituted impermissible discrimination on the basis of sex based on a theory of disparate impact.� The case was favorable settled, and included a new domestic violence policy instituted by the landlord

17. Violence Against Women Act Public Law 109-162 VAWA was originally passed in 1994 and was reauthorized in 2000 and 2005. The 2005 reauthorization added important housing provisions and Congress made critical findings about the links between domestic violence and housing. VAWA provides protections for victims of domestic violence, sexual assault, dating violence and stalking. VAWA only covers Public Housing and Section 8 (vouchers and project-based). It does NOT cover private housing or other federally subsidized housing.

18. VAWA: FindingsSection 601 at 42 U.S.C.14043e et seq. (2006) Findings: Link between homelessness and domestic violence Evictions and housing denials of domestic violence victims occurring because of violence against them Lack of emergency shelter and affordable housing Financial abuse as part of power and control dynamic Useful for litigation because can cite in papersUseful for litigation because can cite in papers

19. VAWA: PurposeSection 601 at 42 U.S.C.14043e et seq. (2006) Purposes: Reduce domestic violence and prevent homelessness Protect victim safety in federal housing and shelter Build collaboration Enable housing providers to respond to domestic violence while maintaining safety for all residents

20. VAWA: No Discrimination in AdmissionSection 606 at 42 U.S.C. � 1437f (2006); Section 607 at 42 U.S.C. � 1437d (2006) An individual�s status as a victim of domestic violence, dating violence, or stalking is not an appropriate basis for denial of admission or denial of housing assistance. If your client gets a denial letter, you may be able to challenge it. Even if the reason is not directly related to DV, she may be able to overcome it and gain admission. Discrimination in application is difficult to ascertain. PHAs sometimes find out about status through criminal background checks, disclosure by applicant or prior housing records. Obvious: South Dakota: PHA told LL who asked questions and said no to tenant Less obvious: just issue denial letter. You can challenge and utilize the findings etc to link bad credit history, non-payment etc to DVDiscrimination in application is difficult to ascertain. PHAs sometimes find out about status through criminal background checks, disclosure by applicant or prior housing records. Obvious: South Dakota: PHA told LL who asked questions and said no to tenant Less obvious: just issue denial letter. You can challenge and utilize the findings etc to link bad credit history, non-payment etc to DV

21. VAWA: EvictionsSection 606 at 42 U.S.C. � 1437f (2006); Section 607 at 42 U.S.C. � 1437d (2006) VAWA 2005 prohibits evictions based on real or perceived domestic violence, dating violence or stalking. Sexual assault is specifically not included in these provisions. VAWA explicitly creates an exception to the federal �One-Strike Rule� which states that any drug-related and certain other criminal activity by any household member is grounds for eviction. Exception: An incident of actual or threatened domestic violence, dating violence, or stalking does not qualify as serious or repeated violation of lease or good cause for terminating assistance, tenancy, or occupancy rights of the victim

22. VAWA: EvictionsSection 606 at 42 U.S.C. � 1437f (2006); Section 607 at 42 U.S.C. � 1437d (2006) Examples of prohibited causes of eviction under VAWA: assault by family member assault by significant other not living in the household Damage to apartment during incident of domestic violence Noise from domestic violence incident

23. VAWA: EvictionsSection 606 at 42 U.S.C. � 1437f (2006); Section 607 at 42 U.S.C. � 1437d (2006) A survivor MAY be evicted for other violations of the lease, but they may not be held to a higher standard than other tenants (or this would be discrimination). A survivor MAY be evicted if the PHA/LL can show that having the victim remain would pose an �actual and imminent threat� to others. Permissible causes of eviction of a survivor: Criminal activity by the survivor not related to domestic violence (drug activity, child abuse) Failure to pay rent Actual and imminent threat: Failure to separate from batterer who is dangerous to other tenants/staff

24. VAWA: Other ReliefSection 606 at 42 U.S.C. � 1437f (2006); Section 607 at 42 U.S.C. � 1437d (2006) VAWA also provides other potential relief: PHAs may bifurcate leases PHAs may also turn the voucher/apartment over the survivor if she was a household member but not on the lease PHAs may grant emergency transfers Family with a Section 8 voucher may move to another jurisdiction if family has complied with all other obligations of the program and is moving to protect health or safety of an individual who is or has been the victim of domestic violence, dating violence, or stalking- even if moving otherwise would be lease violation

25. VAWA: How do I use the law? Affirmative Defense: VAWA can be used as an affirmative defense against an eviction proceeding once an eviction has been served. Utilize: Legislative History of VAWA HUD Public Housing Occupancy Guidebook Strongly encourages PHAs to consider alternatives to eviction Recommends PHAs exercise discretion to remove perpetrator while allowing victim to remain PHAs may refer immigrant victims to agencies that can assist with immigration relief

26. VAWA: How do I use the law? Request for bifurcation, emergency transfer or portability of Section 8 voucher The PHA may choose to grant relief without requesting any documentation. The PHA may make a written request for documentation. The survivor must provide written documentation within 14 business days in the form of: Police or court record Statement signed by certain professionals (ie: attorney, domestic violence advocate, medical professional, police officer) HUD-approved certification form

27. VAWA: How do I use the law? If victim provides documentation, PHA or Section 8 landlord must keep the information confidential, including the individual�s status as a victim. PHA or Section 8 landlord may not enter the information into any shared database or provide it to any related entity. The PHA may not tell future LL The PHA may not tell future LL

28. VAWA: Certifications Certifications: You may be asked to provide VAWA certifications or other letters in support of public housing. You should say the least amount possible and you should only do so at the request of your client. You should not disclose her status as a survivor without her consent. For the VAWA certification, you can simply write, �I certify that Mary Jo is a victim of domestic violence.�

29. VAWA: Practice Emily lives with her husband and has a Section 8 voucher that both her and her husband are on. Emily wants to leave her husband after a series of violent incidents. She plans to move to another state and wants to use the section 8 voucher there. What relief does Emily need? How does she request it? What documentation might she be asked to provide? What relief is the PHA required to give her? What if she is the only person on the voucher?

30. VAWA: Notice RequirementsSection 606 at 42 U.S.C. � 1437f (2006); Section 607 at 42 U.S.C. � 1437d (2006) PHAs are required to inform tenants and Section 8 landlords about the provisions of VAWA New information also must be included in Leases Housing assistance payment contracts Project-based Section 8 contracts Best Practice: Some PHAs send a notice with eviction papers or a denial letter.

31. VAWA: Planning RequirementsSection 603 at 42 U.S.C. � 1437c-1 (2006); Section 604 at 42 U.S.C. � 12705(b)(1) (2006) Local housing plans must include housing needs of child and adult victims of domestic violence, dating violence, sexual assault, and stalking Required for PHA five-year plan, PHA annual plan, and local HUD consolidated plan Best Practices: Local groups should try to become involved with the drafting of PHA plans. Local groups should comment on the plans as they relate to survivors.

32. VAWA: Other provisions HMIS Changes: Requirements for confidentiality for HMIS. This will be updated/re-adopted in the new McKinney Vento bill. [Section 605 at 42 U.S.C. � 11383(a)(8) (2006)] Authorizes new funding for housing for survivors [Section 602 at 42 U.S.C. � 13975 (2006)] Best Practices: Join coalitions lobbying for increased appropriations from Congress so that the monies authorized in the bill will be included in the budget! BUT be sure not to do this with LAV money.

33. VAWA Recap Programs affected by major amendments Public Housing Program Housing Choice Voucher Program Project-Based Section 8 Protections include: Denial of eviction Ability to bifurcate, break lease, transfer voucher Non-discrimination Local planning requirements HMIS changes Funding for housing programs

34. What can I do now to help my client be successful in obtaining permanent housing and stay safe? Education: Educate your staff about the financial effects of domestic violence. Make this a regular part of employee orientation. Educate your clients about the financial impact of domestic violence and potential hurdles in the future. Educate future landlords about domestic violence � you can help break stereotypes about renting to survivors!

35. What can I do now to help my client be successful in obtaining permanent housing and stay safe? Overcome bad rental or credit history: Have all clients check their credit Have all of your clients talk to a credit counselor and help them (re)build a good credit history Build relationships with LLs so you can help her get into safe, permanent housing Educate LLs about how DV affects credit/rental history Apply for grants to assist with rent subsidies where public funding is unavailable. Locks and Security: The grant has an emergency services component that can be used for a wide range of safety services You may be able to get this paid for by victim services organizations. Housing providers are a key component to Housing providers are a key component to Housing providers are a key component to helping survivors make it to the next phase of their lives successfullyHousing providers are a key component to Housing providers are a key component to Housing providers are a key component to helping survivors make it to the next phase of their lives successfully

36. Resources: Organizations National Law Center on Homelessness and Poverty: www.nlchp.org Center for Survivor Agency and Justice: www.csaj.org ACLU Women�s Rights Project: http://www.aclu.org/womensrights/ Legal Momentum: www.legalmomentum.org National Network to End Domestic Violence: www.nnedv.org National Housing Law Project: www.nhlp.org National Low Income Housing Coalition: www.nlihc.org

37. Resources: Governmental U.S. Department of Housing and Urban Development (HUD): www.hud.gov Office of Fair Housing: http://www.hud.gov/offices/fheo/ Office of Public and Indian Housing: www.hud.gov/offices/pih/ HUD documents: www.hudclips.org HUD Guidebook: http://www.hud.gov/offices/pih/programs/ph/rhiip/phguidebook.cfm Office of Violence Against Women, Department of Justice: http://www.usdoj.gov/ovw/ Federal Legislation database: http://thomas.loc.gov/

38. Resources: Other Womenslaw.org: www.womenslaw.org: Listings of state law relating to domestic violence Violence Against Women Net: http://www.vawnet.org/: Collection of information about violence against women DVHousing Reform Listserve: Operated by NLCHP (contact kzeisel@nlchp.org) Housing Justice Network Listserve: Operated by NHLP (see www.nhlp.org)

39. How can you use this information in your work? What new collaborations or coalitions can you work to build? How can attorneys and advocates work together more effectively on these problems? What resources do you need to be effective on these issues?