2016 Zeffert & Associates All Rights Reserved

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1 Sponsored By: Presented by: 2016 Zeffert & Associates All Rights Reserved

2 Where We Get Direction A key to references used in this manual VAWA Statute: Title IV, sec of the Violent VAWA (year, as applicable) Crime Control & Enforcement Act with 2000, 2005 and 2103 revisions HUD Formal guidance: HUD Handbook (paragraph/page#) "Occupancy Requirements of Subsidized Multifamily Housing Programs" HUD Notices Notice H (year/#) HUD RHIIP Listserv RHIIP Listserv (Posting #) HOME Formal guidance: HOME Fires Newsletter HOMEfires (Vol, #) RD Formal guidance: Administrative notice RD AN (#) LIHTC 1. Legal Authority 1. Section 42, Internal Revenue Code (IRC). 42 Additional Formal IRS Guidance: 2. Treasury Regulations IRS1.42 ( -1 to -17) 2. Additional interpretive resources: 8823 Guide 8823 Guide (chapter-page #) Additional minor revisions Now available online at _ Zeffert & Associates

3 Introduction The Goal of this Session The purpose of this training is to provide information for interested personnel to successfully provide safe affordable housing that respects the rights of victims of violence. VAWA History The Violence Against Women Act of 1994 (VAWA) is a United States federal law (Title IV, sec of the Violent Crime Control and Law Enforcement Act of 1994) signed by President Bill Clinton on September 13, The original Act provided $1.6 billion toward investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress in cases prosecutors chose to leave un-prosecuted. The Act also establishes the Office on Violence Against Women within the Department of Justice. VAWA was drafted by the office of Senator Joe Biden, with support from a broad coalition of advocacy groups. The Act passed through Congress with bipartisan support in In 2000, the Supreme Court of the United States held part of VAWA unconstitutional in United States v. Morrison on federalism grounds. A sharply divided Court struck down the VAWA provision allowing women the right to sue their attackers in federal court as an intrusion on state s rights. The provisions providing program funding were unaffected. VAWA housing provisions are found in Title VI, titled Safe Homes for Victims of Domestic Violence, Dating Violence, Sexual Assault and Stalking. Reauthorization VAWA was reauthorized in 2000, 2005 and The 2005 version first introduced provisions that applied to housing. Specifically affected were Section 8 programs and public housing. The 2013 reauthorization expanded the housing programs covered by the Act greatly. According to HUD, VAWA 2013, among other things, enhances judicial and law enforcement tools to combat violence against women; improves services for victims; enhances services, protection, and justice for young victims of violence; strengthens the health care system s response to violence against women; and expands protections for Native American women and immigrants. Fair Housing and VAWA HUD 2011 FHEO Notice on Domestic Violence According the HUD Office of Fair Housing Equal Opportunity, statistics show that women are overwhelmingly the victims of domestic violence. An estimated 1.3 million women are the victims of assault by an intimate partner each year, and about 1 in 4 women will experience intimate partner violence in their lifetimes. The U. S. Bureau of Justice Statistics found that 85% of victims of violence are women. In 2009, women were about five times as likely as men to experience domestic violence. These statistics show that discrimination against victims of domestic violence is almost always discrimination against women. Thus, domestic violence survivors who are denied housing, evicted, or deprived of assistance based on the violence in their homes may have a cause of action for sex discrimination under the Fair Housing Act. In addition, certain other protected classes experience disproportionately high rates for domestic violence this means that victims of domestic violence may also have a cause for action for race or national origin discrimination under the Fair Housing Act. The FHEO Notice listed 10 example cases where victims of domestic violence filed suit under Fair Housing Sex discrimination. Some of these cases also involved VAWA protections. Zeffert & Associates Page 1

4 Housing Covered by VAWA by Version of the Act Project-Based Section 8 - Project-Based Section 8 - Housing Choice Vouchers - Housing Choice Vouchers - Supportive Housing for the Homeless - Supportive Housing for the Homeless - Section 6 Public Housing - Section 6 Public Housing - Section 202 Programs (except Direct Loan and 202/162) - Section 811 Programs - HOPWA - Section 236 Programs - Section 221(d)(3) BMIR Programs - HOME NA - LIHTC NA - RHS Housing programs Zeffert & Associates Page 2

5 VAWA Provisions Prohibited Basis for Denial or Termination of Assistance or Eviction VAWA Title VI Sec (b) An applicant for or tenant of housing assisted under a covered housing program may not be denied admission to, denied assistance under, terminated from participation in, or evicted from the housing on the basis 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 admission, assistance, participation, or occupancy. For the victim, incidents of violence are not serious or repeated violations of a lease or good cause for termination of assistance or tenancy. This is true for the victim, even if the perpetrator also live in the unit. Lease Bifurcation VAWA requires that leases be bifurcated, allowing eviction or termination of assistance for the perpetrator while retaining the victim. Definition: Remaining members are given a chance to qualify for the housing they reside in. If they do not qualify without the perpetrator, then they must be given a reasonable time (as defined by the appropriate agency) to find other housing or to establish eligibility under another covered housing program. bi fur cate verb 1. Divide into two branches or forks. "Just below Cairo the river bifurcates" A victim is not protected from eviction or termination based on their own lease violations or good cause unrelated to the violence of which they were a victim. Workshop: Remaining Members Zeffert & Associates Page 3

6 Documentation VAWA Title VI Sec (c) When a person represents themselves as a victim to an owner/agent (O/A) or Public Housing Agency (PHA), the O/A or PHA may request, in writing, that the person submit documentation establishing their victim status. The person has 14 business days, after receipt of the written notice, to provide the requested documentation. If they do not within that time frame, the O/A can proceed with denial or termination of occupancy or assistance. An O/A or PHA can allow more time, at their discretion. The O/A or PHA is not required to request documentation. Confidentiality Documentation must be maintained in confidence and may not be entered into any shared database or disclosed to any other entity. Exceptions are applicable if 1) the victim requests or consents to disclosure 2) the documentation is required in the bifurcation eviction proceedings or 3) otherwise required by applicable law. Acceptable Documentation Options The applicable federal agency can approve a certification form that: States that the person is a victim of covered violence That the incident of violence is covered under VAWA Includes the name of the perpetrator if known and safe to provide A document signed by the victim and a qualified 3 rd -party: Victim service provider Attorney Medical professional treating the victim because of the violence That states under penalty of perjury that they believe the person to be a victim covered under VAWA A record of a law enforcement agency, court or administrative agency A statement or other evidence provided by an applicant or tenant (accepted at O/A PHA discretion) Zeffert & Associates Page 4

7 Conflicting Certifications If the first option above results in conflicting certifications, one of the 3 rd -party options can be required. Notification VAWA Title VI Sec (d) HUD is required to develop a Notice of the rights of individuals under this section, including the right to and limits of confidentiality. This Notice, along with the Certification Form that is first on the list of acceptable documentation options above, must be provided: When an applicant is denied residency When an applicant is admitted to the property When notification is given of eviction or termination of assistance The notifications must be given in multiple languages, as appropriate, in accordance with HUD Limited English Proficiency (LEP) policy. Emergency Transfer VAWA Title VI Sec (e) Each appropriate agency (HUD, RD and the IRS) shall adopt a model emergency transfer plan for housing that they monitor. The plan allows victims to transfer to another available and safe unit assisted under a covered program. The tenant must expressly request the transfer, and reasonable confidentiality measures must be incorporated to prevent the perpetrator from discovering the location of the new unit. Situations where transfer would be allowed are: Where the tenant reasonably believes that they are threatened with imminent harm of further violence if they remain or A sexual assault occurred on the premises within 90 days prior to the request for transfer. Emergency Transfer Vouchers HUD LEP Guidance HUD Notice FR-4878-N-02 An owner must determine the language makeup of the area where the property is located and address the needs of those in the area who speak limited or no English. This requires the translation of key documents into languages common to the area and as necessary for other languages. VAWA Title VI Sec (f) Section 8(o) of the United States Housing Act of 1937 HUD will establish policies and procedures under which a victim requesting an emergency transfer may receive, section 8(o) tenant protection vouchers, subject to the availability of these vouchers. Workshop: Threat to Others Zeffert & Associates Page 5

8 VAWA 2005 to 2013 Changes VAWA 2013 VAWA 2013 explicitly added sexual assault to the list of violent crimes covered. Immediate family member from VAWA 2005 was replaced with affiliated individual and broadens the scope. VAWA Definition: Affiliated Individual The opportunity to qualify for the housing for remaining household members and to be given a reasonable time to find new housing after bifurcation of a lease was added in When completing the victim Certification Form, the person claiming victim status is not required to provide the perpetrator s name if it is unknown or unsafe to do so. HUD, as opposed to each O/A PHA, is now required to develop a Notice of VAWA rights and responsibilities to applicants and tenants. Self-Executing? HUD Notice VAWA 2005 was determined by HUD to be self-implementing. In other words, owners were not to wait for regulatory guidance to implement provisions of the law, as the actual Section 8 and 6 laws were amended by VAWA to conform. VAWA 2013, however, did not make conforming changes to the other program laws, and is not self-executing. Regulatory guidance will need to be given for owner to accurately apply parts of the law. Until HUD issues its model transfer plan, for HUD housing, PHAs, owners, or managers may continue to implement any transfer plan at that property/program as described in an agency s admissions and occupancy plan or administrative plan. Zeffert & Associates Page 6

9 HUD VAWA Model: Section Change 4 Chapters Affected: 4, 6 and Glossary Original Sources: VAWA Final Rule Issued HUD Notice It is the 2005 version of the law that Change 4 deals with. Important Note: We will need to wait for further guidance for the application of the 2013 law to the recently-covered HUD programs. For now, the HUD handbook VAWA instructions should only be applied to Section 8 projects. VAWA and Tenant Selection Plan Basics 4-4 A, B, E &F / 4-3 & 10 Owners MUST develop a public written tenant selection policy. It is not required that HUD approve this policy. The plan should be reviewed annually and the plan should be available to the public. The REQUIRED topics that we will discuss next involve topics from all over the handbook that we discuss in other sections. Numbers 3 and 7 relate to the waiting list and are detailed in chapter 4. We will focus on these later in this chapter. Required Contents of the Tenant Selection Plan 4-4 / 4-3 to 4-10 Figure 4-2 A / 4-5 Where discussed in Project Eligibility Requirements (Chap. 3) 1. Project Specific Requirements (Example: Elderly or disabled designation) 2. Citizenship Requirements 3. SSN Requirements 2. Income Limits for Your Project (Chap. 3) 3. Waiting List/Admission Procedures (Chap. 4) 1. Taking Applications 2. Preferences That You Use 3. Screening Criteria (including Existing Tenant Search) 4. Rejecting Applicants 4. Occupancy Standards (Chap. 3) 5. Unit Transfer Policies (Chap. 7) 6. Fair Housing Act & 504 Compliance (Chap. 2) 7. Procedures for Opening /Closing Wait List (Chap. 4) 8. Eligibility of students (Chap. 3) 9. Policies for applying VAWA protections (Chap. 4 & 6) Zeffert & Associates Page 7

10 Required Tenant Selection Policy Topic # 9 VAWA Policies for applying VAWA protections 4-4 C 9/4-8 to 10 The Violence Against Women Act (VAWA) requires that the Tenant Selection Plan and House Rules must include policies to support or assist victims of domestic violence, dating violence or stalking and protect victims and their families from being denied housing or from losing HUD assisted housing as a consequence of domestic violence, dating violence or stalking. Tenants must be informed of their rights and obligations under VAWA. They must also be given the option of completing form HUD-91066, Certification of Domestic Violence, Dating Violence or Stalking. Opportunity to complete must be provided at: The time of admission to the property At the start of eviction proceedings, with a 14-day deadline to supply the form. An owner may extend the deadline at their discretion. Other paperwork may replace the form (police reports, letters from victim service providers, attorneys, medical professionals, etc.) Owners are not required to demand proof. At their discretion, they may provide assistance based on self-statement. Care should be taken to evaluate abuse claims mad to avoid eviction. The form should not be mailed if doing so puts the victim at further risk. Discuss alternatives. Confidentiality should be maintained, per the limits listed on the form. The form should be maintained in a secure file separate from the other tenant files. Preferences and Protections 4-6 C 4 / 4-17 & 4-9 A/4-26 Owner-adopted occupancy preferences may be established for victims of violence. Applicants and tenants must not have admission or assistance denied solely because of an incidence of violence of which they or members of their immediate family were a victim. Leasing Documents to Accompany the Lease Figure 6-9 / 6-47 Documents Chapter 6 References (if applicable) Lease, with the or HUD A Move-in inspection form 6-29 / 6-42 to 44 Consent forms Lead-Based Paint Disclosure Form (if applicable) 6-8 / 6-14 to 17 Lead Hazard Information Pamphlet (if applicable) 6-8 / 6-14 to 17 House Rules (if developed) 6-9 / 6-17 to 20 Pet Rules (if applicable) 6-10 / 6-20 to 25 Police/Security Addendum (if applicable) Live-in Aide addendum (if applicable) HUD/VAWA Lease Addendum 6-4 C / 6-5 EIV & You brochure 6-27 B 1 j / 6-43 Resident Rights and Responsibilities brochure 6-27 B 1 i / 6-43 How Your Rent is Determined fact sheet Zeffert & Associates Page 8

11 VAWA HUD Form C / 6-5 Figure 6-3 This lease addendum is designed to apply VAWA The addendum must be completed and attached to each Section 8 lease. VAWA Protections 6-5 G / 6-12 to 13 The VAWA addendum enforces legal protections under VAWA including that a tenant may not be evicted for incidences of violence where they were the victim, even if the perpetrator is also a household member. Victims are not protected from their own criminal acts by virtue of their victim status. If an owner can prove that an imminent threat to other tenants exists if the victim is not evicted, there may still be grounds for legal eviction. A lease may be bifurcated in order to remove an offending household member from the unit without removing the victim(s). The owner is to honor court-orders regarding the distribution of property as a result of the eviction. Zeffert & Associates Page 9

12 HUD Section 8 Where We Stand VAWA Final Rule Issued Chapters 5,6 and Glossary VAWA 2005 provisions for Section 8 properties have been established through HUD Notice and have been incorporated into HUD handbook (see HUD Model section above). Other HUD Programs HUD Notice Published Federal Register / Vol. 80, No. 62 / Wednesday, April 1, 2015 / Proposed Rules HUD solicited comments on the application of VAWA 2013 to newly covered HUD programs. A draft was published on April 1, 2015, but the final rule has not been issued. It is anticipated that the policies and procedures set up for the Section 8 program in the will be applied without a lot of modification. Pending Issues Areas that HUD made specific requests for comment: 1. What period would be reasonable to find new housing or establish eligibility under another HUD covered housing program? 2. How can form can be adapted for the newly covered HUD programs? 3. What content should be included in the notice of tenant s rights? 4. What content should be included in the model emergency transfer plan? RD RD AN 4747 On February 10, 2014, RD published an administrative notice with a Model Emergency Transfer Plan as Attachment B to the AN (see supplemental information at the end of this Handout for the Model Plan). RD clarified that no changes need to be made to Tenant Leases, Occupancy Rules or the Management Plans at this time (AN 4747 page 2). However, later in the AN, it is suggested that Occupancy Rules should be revised, as necessary, (d) Leases may be bifurcated, per VAWA. Victims who stay in the unit are to be addressed per current rules for Remaining Members. HB D / 6-41 RD Rules for Remaining Members Members of a household residing in a multi-family housing project may continue to occupy the unit after the departure of the original tenant, regardless of age, provided that: They are eligible with respect to income They were either a cotenant or member of the household, have the legal capacity to sign the lease, and are U.S. citizens or qualified aliens They occupied the unit with the original tenant at the time the original tenant departed They sign a new tenant certification establishing their own tenancy, and They have the legal ability to sign a lease for the rental unit, except where a legal guardian may sign when the tenant or member is otherwise eligible Remaining household members that are over housed must move to a suitably sized rental unit within 30 days of its availability. If a suitably sized unit does not exist at the property, the tenant will be required to vacate the property in accordance with Paragraph 6.32 A. Zeffert & Associates Page 10

13 Suggested Actions RD AN 474, page3 Owners and managers of housing affected by the VAWA Act should update their Tenant Selection Policy and Occupancy Rules, if applicable, to incorporate the tenant s rights and protections, to ensure uniformity in spreading awareness of the VAWA Act, and to avoid improper evictions. RD with Section 8 Assistance Owners and managers of housing covered by this AN, and that receive Section 8 assistance, should comply with any HUD requirements. HUD currently utilizes Lease Addendum, Form HUD 91067, which includes certain rights and provisions of the VAWA Act. Housing Preservation Grants The ownership agreement between the HPG grantee and rental property owner or co-op should include a clause that the owner(s) agrees and certifies that the assistance being made available is subject to the VAWA Act. The Grant Agreement should be amended using as a model Exhibit B of subpart N of 7 C.F.R. part 1944, to state that the HPG grantee shall comply with the VAWA Act and should include a clause in the ownership agreement that the assistance being made available is subject to the VAWA Act. Any amendments will require Rural Development s approval. Pending Issues Per page 3 of AN 4747, we are waiting on two agencies to fully implement VAWA for RD: HUD: once HUD publishes the Individual Rights under VAWA notice, RD will implement it and amend AN RD: RD has not developed their version of the Certification for use by victims. Once this form is developed, RD will amend AN HOME HOMEfires Vol. 11 #1 HUD Notice Published The above-mentioned HUD Notice published also applies to the HOME program. HUDs rulemaking process and final regulations will apparently cover HOME along with HUDs Multi- Family and Public Housing programs. HUD 2011 FHEO Memo on Domestic Violence The HOMEfire does contain the following reminder. If a housing provider refuses to rent, evicts, or otherwise treats someone differently because of that person s status as a victim of domestic violence, dating violence, sexual assault, or stalking, HUD or the courts may find a violation under the Fair Housing Act due to direct discrimination, unequal treatment, or disparate impact. LIHTC VAWA Non-Compliance and Section 42 VAWA Sec (b) CONFORMING AMENDMENTS (C)(3) 42 (g)(9) IRS Reg (a) 8823 Guide Chapter 13 HUD 2011 FHEO Notice on Domestic Violence Lack of compliance with VAWA is not grounds for loss of the Low Income Tax Credit. However, if HUD, a substantially equivalent agency or the Department of Justice find that violations of victims rights led to discrimination under the Fair Housing Act, Tax Credits may be at risk under the Section 42 General Public Use regulation. Note: an actual finding of discrimination results in the loss of credits. However, if HUD or DOJ starts an investigation, they will inform the state HFA, who will report it to the IRS on form 8823, (see the Memorandum Of Understanding between the IRS, HUD and DOJ reproduced in the 8823 Guide as Exhibit 13-2). Zeffert & Associates Page 11

14 IRS Responsibility It is of note that VAWA did not change the actual Section 42 statute with conforming language, as it did the Section 8 and 6 programs. As a federal agency, the IRS primary purpose is, not to provide housing, but rather to enforce tax law. Because of the unique structure of the LIHTC system, it is not clear that the IRS is an Appropriate Agency that carries out the housing under the meaning of VAWA Title VI Sect (a)(2). For these reasons, the IRS examining branch has verbally expressed reluctance to propose specific VAWA provisions and possibly exceed their authority. The primary guidance lacking for LIHTC housing will be the Certification Form from VAWA Title VI Sec (c) and the model emergency transfer plan (e). State HFA Responsibility For the same reasons that it is unclear what the IRS required involvement in VAWA is, the role of the state Housing Finance Agencies that work with the IRS to allocate and monitor compliance with Section 42. As agents tasked with reporting noncompliance with Section 42, the VAWA may well be beyond their mandate. There is some advocacy pressure on HFAs to use their authority and influence to further the cause of VAWA. Suggested actions for HFAs to take include: Allocation Ensuring that policies are in place that define special needs populations to include victims of violence, to avoid any general public use issues under Section 42. Qualified Allocation Plan points awarded for creating housing with preferences or restrictions to victims of violence covered under VAWA. Establishing and enforcing requirements that developers applying for credits will attest that they will apply VAWA laws. Monitoring Providing notices to owners regarding their responsibilities under VAWA. Adding VAWA questions to the Owners Certification of Continuing Compliance or other required certification. Requiring lease addenda or tenant selection plans provisions. Providing victim Certification Forms and model emergency transfer plans until such time as the IRS does so. Owner Responsibility Faced with a lack of direction from HUD and the IRS, many owners are choosing to: Implement a victim Certification Form similar to the HUD Educate staff on VAWA requirements. Especially in cases of denying entrance or evictions where violence may be a factor, an owner may consider having a specialist person or persons to handle the situation. As the statute clearly makes it HUDs responsibility, owners are not generally obligated to provide a Notice of VAWA rights and responsibilities. Providing Form similar form fills this function to some degree. As Section 42 allows the owner to develop leases, with only minimal nontransience and Fair Housing Act requirements, they may choose to implement VAWA language, with legal counsel or state HFA input. Again, the HUD Form provides a template for model language. However, note that RD did not see it necessary to implement lease adjustments at this time, despite the availability of the HUD form. The statute clearly makes an agency responsible to develop a model transfer plan. Until such time as one is provided for the LIHTC, simple adjustment to current transfer policies may be in order. Zeffert & Associates Page 12

15 A Few Words of Encouragement We Do this Job Well Violence is a major concern for housing providers, as is compliance with applicable laws. As such a large portion of the American population are victims of violence, there is a good chance that you or your loved ones will be a victim as some point. Hopefully the application of the letter and spirit of VAWA will make your community safer and help protect everyone s rights, including your own. Zeffert & Associates Page 13

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