Comply with VAWA Before Seeking Resident's Eviction

February 1, 2009

In a court case decided in January 2009, a New York owner tried to evict a Section 8 resident, claiming that she had violated her lease by creating a nuisance. In the notice of termination, the owner claimed that the resident engaged in violent behavior during domestic disputes. The violent incident that put the owner over the edge entailed the resident allegedly stabbing her boyfriend. At that time, the boyfriend told the police that the resident had stabbed him, but she denied this allegation and claimed that she was a victim of domestic violence and not the aggressor.

In a court case decided in January 2009, a New York owner tried to evict a Section 8 resident, claiming that she had violated her lease by creating a nuisance. In the notice of termination, the owner claimed that the resident engaged in violent behavior during domestic disputes. The violent incident that put the owner over the edge entailed the resident allegedly stabbing her boyfriend. At that time, the boyfriend told the police that the resident had stabbed him, but she denied this allegation and claimed that she was a victim of domestic violence and not the aggressor.

In the lawsuit, the resident cited the federal Violence Against Women Act (VAWA) in her defense. VAWA provides that an incident of domestic violence or criminal activity relating to domestic violence will not be construed to violate a government-assisted lease, and these actions won't be used as grounds to terminate a government-assisted lease.

VAWA Basics

VAWA provides protections for victims of domestic violence, sexual assault, dating violence, and stalking, attorney Kathy Zeisel explained in a presentation to the National Conference on Ending Family Homelessness. VAWA's eviction and antidiscrimination protection does not cover private housing. It applies only to public housing and the Section 8 programs.

Under VAWA, owners and managers of government-assisted housing:

  • Cannot deny applicants rental assistance solely because they were previously evicted from a government-assisted housing site for being victims of domestic violence;

  • Cannot deny applicants government rental assistance solely for criminal activity that was directly related to domestic violence; and

  • Cannot evict residents solely because they were victims of domestic violence, in that being a victim of domestic violence does not qualify as a “serious or repeated violation of the lease” or “other good cause” for eviction. For example, if a resident/wife has filed in court for a restraining order and the domestic violence recurs, the owner may evict the resident/husband, but not the wife.

However, you may evict a resident in the following circumstances:

  • If a victim of domestic violence commits a criminal act unrelated to the domestic violence, or if the victim is an “actual or immediate threat to other residents or those employed at or providing services to the site,” eviction is warranted; and

  • If after an incident of domestic violence, a resident allows the abuser to visit the unit again as a guest and the violence recurs, the owner may evict the resident.

Residents wishing to report an incident of domestic violence must submit specific documentation as requested by the site owner or manager, and all such documentation must remain confidential, unless required by law.

Evictions Under VAWA

In the Section 8 program, an owner must have “good cause” to evict a Section 8 resident. VAWA says that an abuser's acts or threats of violence or stalking cannot be “good cause” to evict a resident. In other words, you cannot evict a Section 8 resident for violating a lease because the resident is a victim of abuse.

Typically, Section 8 residents have to comply with the federal “One-Strike Rule,” which states that any drug-related and certain other criminal activity by any household member is grounds for an eviction. However, VAWA carves out an exception to this rule for criminal activity related to domestic violence.

Examples of prohibited causes of eviction under VAWA include assault by a family member, assault by a “significant other” not living in the unit, damage to the unit during a domestic violence incident, and possible noise from a domestic violence incident.

Although owners are prevented from evicting Section 8 residents for criminal activity related to domestic violence, dating violence, or stalking, an owner could evict a Section 8 resident for serious or repeated lease violations that are unrelated to domestic abuse. Some permissible causes of eviction include criminal activity by the survivor not related to domestic violence, such as drug activity and child abuse, failure to pay rent, a failure to separate from the batterer who is a proven danger to other residents or staff, and allowing an unauthorized person to live in the unit in violation of the lease.

How Residents Prove Abuse

If you ask a resident claiming domestic violence for proof that she is a victim of abuse, the resident must submit it within 14 business days. You must accept any one of these documents as proof that a Section 8 resident is a victim of abuse:

  • A HUD-approved certification form. The housing agency must give you a copy of this form;

  • A written statement signed by the resident and a victim services provider, medical professional, or an attorney, saying that the acts in question were acts of domestic violence, dating violence, or stalking against the resident;

  • A police record that says the resident was a victim of domestic violence, dating violence, or stalking; or

  • A court record such as a restraining order, an affidavit filed in a court case, or an order from the Probate and Family Court that says the resident was a victim of domestic violence, dating violence, or stalking.

In the recent court case discussed above, to show a pattern of domestic violence, the resident showed the court that she had obtained a protective order against the ex-boyfriend before the incident and had filed complaints against him with the police department.

Even though the owner submitted testimony of the site manager that the resident had allowed the ex-boyfriend access to the building after she obtained the protective order against him, the court found that the owner's evidence that she was a threat to other residents and staff was insufficient. The owner didn't show that the resident was not a victim of domestic abuse. Therefore, VAWA applied, and the owner's eviction lawsuit was dismissed [Metro North Owners LLC v. Thorpe, January 2009].

Further Reading: “What to Do if Resident Gets Restraining Order,” Insider, August 2007, p. 1; “Ask AHMI: Informing Residents About Violence Against Women Act,” Insider, March 2007, p. 6; “Three PHAs Use New Law to Protect Domestic Violence Victims,” Insider, January 2007, p. 1.

 

Search Our Web Site by Key Words: eviction; domestic violence; Violence Against Women Act

Topics