Owner Notification of VAWA Rights and Obligations

Housing Authority of the County of Merced (Authority)

Notification of Your Rights and Obligations Under the Violence Against Women Act (VAWA)

VAWA provides protections for Housing Choice Voucher (HCV) applicants, tenants, and participants from being denied assistance on the basis of or as a direct result of being a victim of domestic violence, dating violence, sexual assault, and stalking.

Purpose

Many of VAWA’s protections to victims of domestic violence, dating violence, sexual assault, and stalking involve action by the public housing agency (PHA), but some situations involve action by owners of assisted housing. The purpose of this notice (herein called “Notice”) is to explain your rights and obligations under VAWA, as an owner of housing assisted through the HCV program. Each component of this Notice also provides citations to HUD’s applicable regulations.

Denial of Tenancy

Protections for applicants: Owners cannot deny tenancy based on the applicant having been or currently being a victim of domestic violence, dating violence, sexual assault, or stalking. However, the applicant must be otherwise eligible for tenancy.

(See 24 Code of Federal Regulations (CFR) 982.452(b)(1).)

Eviction

Protections for HCV participants: Incidents or threats of domestic violence, dating violence, sexual assault, or stalking will not be considered a serious or repeated lease violation by the victim, or good cause to terminate the tenancy of the victim (24 CFR 5.2005(c)). Protection also applies to criminal activity related directly to domestic violence, dating violence, sexual assault, or stalking, conducted by a member of a tenant’s household or any guest or other person under the tenant’s control, if the tenant or an affiliated individual of the tenant is the victim or threatened victim of such domestic violence, dating violence, sexual assault, or stalking (24 CFR 5.2005(b)(2)).

Limitations of VAWA Protections

A. Nothing in the VAWA Final Rule limits the authority of an owner, when notified of a court order, to comply with a court order with respect to (24 CFR 5.2005(d)(1)):

1. The rights of access or control of property, including civil protection orders issued to protect a victim of domestic violence, dating violence, sexual assault, or stalking; or
2. The distribution or possession of property among members of a household in a case.

B. Nothing in the VAWA Final Rule limits an owner from evicting a victim of domestic violence, dating violence, sexual assault, or stalking for a lease violation that is not premised on an act of domestic violence, dating violence, sexual assault, or stalking, as long as the owner does not subject the victim to more demanding standards than other tenants when deciding whether to evict. (See 24 CFR 5.2005(d)(2).)

C. Nothing in the VAWA Final Rule limits an owner from evicting a tenant (including the victim of domestic violence, dating violence, sexual assault, or stalking) if the owner can demonstrate an actual and imminent threat to other tenants or those employed at or providing services to the HCV property would be present if the tenant or lawful occupant is not evicted. (See 24 CFR 5.2005(d)(3).)

Documentation of Domestic Violence, Dating Violence, Sexual Assault, or Stalking

If an applicant or tenant requests VAWA protection based on status as a victim, the owner has the option to request that the victim document or provide written evidence to demonstrate that the violence occurred. However, nothing in HUD’s regulation requires a covered housing provider to request this documentation. (See 24 CFR 5.2007(b)(3).)

If the owner chooses to request documentation, the request must be in writing. The individual may satisfy the request by providing any one of the following document types listed under 24 CFR 5.2007(b)(1):

1. Form HUD-5382 (Self-Certification Form); or
2. A document signed by an employee, agent, or volunteer of a victim service provider, an attorney, a medical professional, or a mental health professional from whom the victim has sought assistance — signed by the applicant or tenant, and specifying under penalty of perjury that the professional believes in the occurrence of the incident; or
3. A record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or administrative agency; or
4. At the discretion of the owner, a statement or other evidence provided by the applicant or tenant.

The owner must accept any of items (a) through (c). The owner has discretion to accept (d). The owner is prohibited from requiring third-party documentation unless the submitted documentation contains conflicting information.

If the owner makes a written request for documentation, the owner may require submission within 14 business days after the date the individual received the request. (24 CFR 5.2007(a)(2).) The owner may extend this time period at its discretion. During the 14-business-day period and any granted extensions, no adverse actions, such as evictions or terminations, can be taken against the individual requesting VAWA protection.

Once a victim provides documentation, the owner is encouraged to acknowledge receipt in a timely manner.

If the applicant or tenant fails to provide documentation that meets the criteria within 14 business days (or any granted extension), nothing in the VAWA Final Rule limits the authority of the covered housing provider to:

1. Deny admission by the applicant or tenant to the housing or program;
2. Deny assistance under the covered housing program to the applicant or tenant;
3. Terminate the participation of the tenant in the covered housing program; or
4. Evict the tenant, or a lawful occupant, who commits a violation of a lease.

An individual’s failure to timely provide documentation does not waive the individual’s right to challenge a denial of assistance or termination, nor does it preclude raising an incident of domestic violence, dating violence, sexual assault, or stalking at eviction or termination proceedings.

Moves

A victim of domestic violence, dating violence, sexual assault, or stalking may move in violation of their lease if the move is required to protect their safety. If a move results in the termination of the Housing Assistance Payment Contract, the lease is automatically terminated.

Lease Bifurcation

Owners may choose to bifurcate a lease, or remove a household member from a lease in order to evict, remove, terminate occupancy rights, or terminate assistance to such member who engages in criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking against an affiliated individual or other individual. (See 24 CFR 5.2009(a).)

If an owner chooses to bifurcate the lease, the owner must comply with the reasonable time to establish eligibility under the covered housing program or find alternative housing following the lease bifurcation provision in 24 CFR 5.2009(b). VAWA protections, including bifurcation, do not apply to guests or unreported members of a household, or anyone else residing in a household who is not a tenant.

Eviction, removal, termination of occupancy rights, or termination of assistance must be effected in accordance with the procedures prescribed by federal, state, or local law for termination of leases.

To avoid unnecessary delay in the bifurcation process, HUD recommends that owners seek court-ordered eviction of the perpetrator pursuant to applicable laws. This process results in the underlying lease becoming null and void once the owner regains possession of the unit. The owner would then execute a new lease with the victim.

Evictions Due to “Actual and Imminent Threat” or Violations Not Premised on Abuse

The VAWA Final Rule generally prohibits eviction on the basis or as a direct result of the fact 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 assistance, participation, or occupancy. (See 24 CFR 5.2005.)

However, the VAWA Final Rule does not prohibit an owner from evicting a tenant for any violation not premised on an act of domestic violence, dating violence, sexual assault, or stalking that is in question against the tenant or an affiliated individual of the tenant. Nor does the Rule prohibit an owner from evicting a tenant if the owner can demonstrate an actual and imminent threat to other tenants or those employed at or providing services to the property would be present if that tenant or lawful occupant is not evicted or terminated from assistance. (See 5.2005(d)(2) and (3).)

To demonstrate an actual and imminent threat, the covered housing provider must have objective evidence of words, gestures, actions, or other indicators that meet the following definition:

Confidentiality

Any information submitted to a covered housing provider under 24 CFR 5.2007, including the fact that an individual is a victim of domestic violence, dating violence, sexual assault, or stalking, must be maintained in strict confidence by the covered housing provider. (See 24 CFR 5.2007(c).)

Employees of the owner (or those within their employ, e.g., contractors) must not have access to the information unless explicitly authorized by the owner for reasons that specifically call for these individuals to have access under applicable Federal, State, or local law (e.g., the information is needed by an employee to provide the VAWA protections to the victim).

The owner must not enter this information into any shared database, or disclose this information to any other entity or individual, except to the extent that disclosure is:

1. Requested or consented to in writing by the individual (victim) in a time-limited release;
2. Required for use in an eviction proceeding or hearing regarding termination of assistance from the covered program; or
3. Otherwise required by applicable law.

When communicating with the victim, owners must take precautions to ensure compliance with these confidentiality requirements.

Definitions

Actual and imminent threat

A physical danger that is real, would occur within an immediate time frame, and could result in death or serious bodily harm. In determining whether an individual would pose an actual and imminent threat, factors include the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the length of time before the potential harm would occur.

Affiliated individual

(1) A spouse, parent, brother, sister, or child of that individual, or a person to whom that individual stands in the place of a parent or guardian (for example, the affiliated individual is a person in the care, custody, or control of that individual); or (2) any individual, tenant, or lawful occupant living in the household of that individual.

Bifurcate

To divide a lease as a matter of law, subject to the permissibility of such process under the requirements of the applicable HUD-covered program and State or local law, such that certain tenants or lawful occupants can be evicted or removed and the remaining tenants or lawful occupants can continue to reside in the unit under the same lease requirements (or as may be revised depending upon the eligibility for continued occupancy of the remaining tenants and lawful occupants).

Dating violence

Violence committed by a person (1) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (2) where the existence of such a relationship is determined based on (i) the length of the relationship, (ii) the type of relationship, and (iii) the frequency of interaction between the persons involved.

Domestic violence

Includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim; by a person with whom the victim shares a child in common; by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner; by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction; or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

Sexual assault

Any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent.

Stalking

Engaging in a course of conduct directed at a specific person that would cause a reasonable person to (1) fear for the person’s individual safety or the safety of others; or (2) suffer substantial emotional distress.

VAWA

The Violence Against Women Act of 1994, as amended (42 U.S.C. 13925 and 42 U.S.C. 14043e et seq.).

Attached

• Form HUD-5382 — Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking
• VAWA Notice of Occupancy Rights (Form HUD-5380)

Attached forms are included in the original PDF.