Domestic Violence During the Pandemic: How to Ensure Safe Housing at Your Site

For victims of domestic violence, staying home during the pandemic may not be the safest option.

One effect of the COVID-19 crisis has been a spike in reports of domestic violence. In New York State, Governor Andrew Cuomo recently announced that reports of domestic violence rose during March and April. Calls to the state’s domestic violence hotline are up 30 percent in April compared to last year, and calls increased 18 percent from February to March 2020. New York State Police also report that domestic violence incident calls were up 15 percent in March compared to last year.

As the country deals with the spread of COVID-19 with periods of social distancing and quarantine, experts say the added stress, economic anxiety, and social isolation raises the risk of domestic violence. Staying at home, for victims and survivors of domestic violence, including children exposed to it, may not be a safe option. Before the pandemic, a survivor or victim might flee a violent situation by staying with a family member, going to a shelter, or filing a protective order with the police. Now, for many, such options aren’t easily available.

Considering the added risk factors for domestic violence during this crisis, ensuring safe housing for your residents is even more important. We’ll go over federal protections for domestic violence survivors and their rights in LIHTC housing during COVID-19.

Scope of Eviction Moratoriums

Due to the COVID-19 outbreak, numerous cities and states have established eviction moratoriums or pauses on eviction filings. A number of these eviction moratoriums, however, still allow for evictions based on criminal activity and other lease violations.

Historically, domestic violence survivors have been evicted for “criminal activity,” damage to the unit, or other issues directly related to abuse. Evicting a survivor for issues related to domestic violence abuse committed against her can violate the Fair Housing Act’s prohibition on sex discrimination. In addition, your state or city may also have other prohibitions against evicting someone because she’s a survivor of domestic violence or other crimes, or for calling 911. In addition, for LIHTC sites, the federal Violence Against Women Act (VAWA) protects survivors from being evicted due to the violence committed against them.

At the federal level, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) has provided a temporary moratorium on evictions for most affordable housing residents including those at LIHTC sites. Specifically, it mandates a 120-day eviction moratorium for tenants living at covered sites. It’s important to note that the CARES Act’s 120-day evictions moratorium applies only to nonpayment of rent and prohibits “charg[ing] fees, penalties, or other charges to the tenant related to such nonpayment of rent” [Sec. 4024(b)]. The CARES Act eviction moratorium doesn’t impact lease violations related to domestic violence, stalking, and other harassment covered by VAWA.

VAWA Protections Apply to LIHTC Housing

VAWA offers housing protections for survivors of domestic violence, dating violence, sexual assault, and stalking. The current version of VAWA came about in 2013 when Congress expanded the scope of its housing protections and extended coverage to certain housing programs, including the LIHTC program. Despite the name of the law, VAWA protections apply to survivors regardless of gender.

The following VAWA protections remain in effect during the COVID-19 pandemic. VAWA’s housing protections include:

• A prohibition on being evicted from or denied participation in a federal housing program for being a domestic violence survivor.
• Allowing housing providers 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 for housing providers, such as prohibiting placing information about a survivor’s domestic violence, dating violence, sexual assault, or stalking in a shared database;
• The ability to request an emergency transfer to another safe and available federal housing program unit; and
• Requiring receipt of a written notice of rights under VAWA upon admission, denial of housing, or notice of eviction/subsidy termination–including notification in non-English languages.

When VAWA was enacted, it required each responsible agency to fulfill a number of obligations outlined by the statute, including, for example, creating a model emergency transfer plan to be used by owners and managers of LIHTC units; developing a self-certification form; and defining what is a “reasonable time” for tenants who remain after lease bifurcations to find new housing or establish eligibility for another housing program. HUD has issued VAWA regulations and guidance for its programs, but the Treasury Department or the IRS hasn’t issued any formal guidance.

The Treasury Department and the IRS have informally indicated that the reason they aren’t acting is that noncompliance with VAWA isn’t considered to be noncompliance under the statute that created the LIHTC program. Nevertheless, LIHTC owners are still subject to VAWA’s mandates.

Be sure to check with your state housing agency for VAWA guidance, as many state housing agencies have been proactive with their own VAWA guidance. Some have included VAWA rights and procedures in their compliance manuals. But without explicit Treasury, IRS, or state agency guidance, the responsibility of living up to VAWA’s requirements is on owners and managers.

It’s important to note that the failure to adhere to VAWA can lead to liability for LIHTC owners. Without federal agency guidance, a report of noncompliance with Form 8823 probably won’t be issued against a site for not following VAWA. But while VAWA violations, on their face, can’t be grounds for tax credit loss until the IRS issues guidance, VAWA violations could be considered a violation of fair housing law, which may be considered general public use noncompliance on Form 8823.

Self-Certification Option

VAWA permits owners and managers to request that an individual certify that he or she is a victim of domestic violence, dating violence, sexual assault, or stalking via a form. The use of a form is optional. But the option of completing a self-certification form to assert VAWA housing protections is important during stay-at-home orders in place across the country, because it means that the survivor can assert VAWA protections in a streamlined fashion without obtaining a police report or restraining order.

Since neither the Treasury Department nor the IRS has issued an agency-approved VAWA self-certification form, you can adapt and use our Model Form: Use Form to Certify Victim Status, Assert VAWA Protections, which is based HUD’s VAWA self-certification form. Your form, like ours, form must: (1) state that an applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking; (2) state that the incident that’s the ground for protection meets the requirements under the statute; and (3) include the name of perpetrator, if the name is known and safe to provide.

Also, under the current law, 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.

If the survivor chooses to submit the self-certification form, no certification beyond this form may be required unless there’s conflicting information. For example, if you receive proof from the abuser claiming that he is the victim, then you may require submission of additional proof to show that the survivor is the victim.

With any assertion of VAWA rights, owners need to be mindful of confidentiality requirements. You can share the information provided in the form only under limited circumstances. Generally, you can’t give the information provided about the abuse to others. The information may be shared only if the survivor agrees in writing, if it’s needed to evict the abuser from the housing, or if the disclosure is required by law.

Along with VAWA protections, you may need to comply with protections imposed by your state or city. VAWA is a federal law, but it doesn’t impact state or local laws that provide more protections for victims of abuse. Additional protection may include lock change laws for survivors or liability on the abuser for damages to the unit or other housing costs related to the violence. Consult your site attorney to understand how these protections may apply in a particular situation.