By Suzanne J. DeCopain, Esq., Associate at Saxon Gilmore & Carraway, P.A.
Published in FAHROgram January/February 2017
In 2013, President Barack Obama reauthorized and signed into law the Violence Against Women Reauthorization Act of 2013 (VAWA 2013). VAWA 2013 expanded housing protections to HUD programs. On Oct. 27, 2016, HUD issued its final rule implementing the VAWA 2013 requirements into HUD regulations.
Though many areas of the final rule are important, this article concentrates on the following two significant areas of HUD’s final rule.
VAWA 2013 provides that “[n]o person may deny assistance, tenancy, or occupancy rights to housing assisted under a covered housing program to a tenant solely on the basis of criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking that is engaged in by a member of the household of the tenant or any guest or other person under the control of the tenant, 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.” VAWA 2013 defines affiliated individual as: A) a spouse, parent, brother, sister or child of that individual, or an individual to whom that individual stands in loco parentis; or B) any individual, tenant or lawful occupant living in the household of that individual.
In the final rule, HUD revised the definition of affiliated individual to: A) 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 B) any individual, tenant or lawful occupant living in the household of that individual. A live-in aide or a guest could be an affiliated individual of a tenant, and if that aide or guest is a victim, the tenant with whom the affiliated individual is associated cannot be evicted or have assistance terminated on the basis that the affiliated individual was a victim.
These distinctions are noteworthy when evaluating a tenant’s rights under VAWA 2013. Under VAWA 2013 and HUD regulations, the covered housing provider must determine who the victim is and determine whether that individual falls within the definition of affiliated individual, if the victim is not the tenant.
Notice of Occupancy Rights and Certification Form
HUD’s notice of occupancy rights and accompanying certification form must be provided to all existing tenants no later than one year after the effective date of HUD’s final rule. The final rule does not require housing providers to give tenants the notice and the certification form after first providing it to tenants as described above. HUD encourages housing providers to post the notice in public areas such as community bulletin boards, where all tenants will have access to view it.
In addition to providing the notice and certification form to all existing tenants, VAWA 2013 provides that each public housing agency, owner or manager of housing assisted under a covered housing program shall provide the notice together with the certification form to an applicant or tenants of housing assisted under a covered housing program during any of three specific situations: “… A) at the time the applicant is denied residency in a dwelling unit assisted under the covered housing program; B) at the time the individual is admitted to a dwelling unit assisted under the covered housing program; [or] C) with any notification of eviction or notification of termination of assistance.”
Within the next year, covered housing providers should plan to incorporate the notice and certification form during each tenant’s annual recertification appointment or lease renewal. A preview of the notice and certification form can be found within HUD’s final rule at bit.ly/HUD-VAWA2013. HUD’s final rule is pending publication in the Federal Register. The effective date of HUD’s final rule will be determined after the rule is published in the Federal Register.
VAWA 2013, along with HUD’s final rule, will necessitate some additional language in your notices to residents and in updates to your policies and procedures and to your lease addenda. Please consult your legal counsel for recommended changes.
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