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, after legislators had failed to come to an agreement over 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 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 was amended to apply to the LIHTC program when it was reauthorized in 2013. From the beginning, VAWA required each responsible agency to fulfill a number of obligations outlined by the statute. Accordingly, HUD has issued VAWA regulations and guidance for its programs. However, the Treasury Department or the IRS hasn’t issued any formal guidance. Nevertheless, LIHTC owners are still subject to VAWA’s mandates.

Since VAWA’s passage, many state housing agencies have assumed the role of appropriate agency by issuing their own guidance for implementing VAWA protections for LIHTC sites within their state. They’ve 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. Here are the 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, an owner can still evict a resident if you can show there is an actual and imminent (immediate) threat to other tenants or staff if the resident isn’t 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’re 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 mandates 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 their rights under VAWA upon admission, denial of housing, or notice of eviction/subsidy termination—including notification in non-English languages. You should check with your state housing agency with regard to specific notice requirements to comply with VAWA.

For example, the California Tax Credit Allocation Committee (CTCAC), the office that administers the federal LIHTC program in California, has adopted HUD’s Notice of Occupancy Rights under the Violence Against Women Act (HUD-5380). CTCAC requires owners to provide this form to all tenants when admitted to the property and with any notification of eviction or notification of termination of assistance. Additionally, CTCAC requires the use of HUD VAWA Lease Rider (HUD-91067).

Newest VAWA Housing Provisions

The VAWA Reauthorization Act of 2022 adds to existing VAWA requirements. The latest reauthorization act includes the following additions:

• 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;
• Require 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 must 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.”