Federal Violence Against Women Act May Prevent Tenant's Eviction

The Section 8 program is a federal program that helps people with low income pay rent to a private apartment owner. While a Section 8 tenant may have a lease with you, the tenant will also have a contract with a housing agency that pays part of your rent and “administers” the voucher. If you have some tenants who participate in the Section 8 voucher program, there is a federal law that may inhibit your ability to evict them. The federal law is the Violence Against Women Act (VAWA), which added important housing provisions in 2005 that may affect you.

Recently, the issue of eviction and VAWA came up when a New York owner tried to evict a Section 8 tenant, claiming that she had violated her lease by creating a nuisance. According to the notice of termination sent to her by the owner, the tenant engaged in violent behavior during domestic disputes. The violent incident that put the owner over the edge entailed the tenant allegedly stabbing her boyfriend. At that time, the boyfriend told the police that the tenant 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 tenant cited VAWA, which 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. However, it does apply to everyone with respect to confidentiality.

Specifically, VAWA affords the following legal protections:

• Applicants can't be denied rental assistance solely because they were previously evicted from a government-assisted housing site for being victims of domestic violence;
• Applicants can't be denied government rental assistance solely for criminal activity that was directly related to domestic violence;
• Residents can't be evicted 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, eviction may occur 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 tenants 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 apartment 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 owner or apartment management, 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 tenant. VAWA says that an abuser's acts or threats of violence or stalking cannot be “good cause” to evict a tenant. In other words, you cannot evict a Section 8 tenant for violating a lease because the tenant is a victim of abuse.

Typically, Section 8 tenants 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 family member, assault by a “significant other” not living in the apartment, damage to the apartment during a domestic violence incident, and possible noise from a domestic violence incident.

Although owners are prevented from evicting Section 8 tenants for criminal activity related to domestic violence, dating violence, or stalking, an owner could evict a Section 8 tenant 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 tenants or staff, and allowing an unauthorized person to live in the apartment in violation of the lease.

How Tenants Prove Abuse

If you ask a tenant claiming domestic violence for proof that she is a victim of abuse, the tenant must submit it within 14 business days. An owner must accept any one of these documents as proof that a Section 8 tenant 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 tenant 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 tenant;
• A police record that says the tenant 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 tenant was a victim of domestic violence, dating violence, or stalking.

In the recent court ruling discussed above, to show a pattern of domestic violence, the tenant 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 property manager that the tenant had allowed the ex-boyfriend access to the apartment building after she obtained the protective order against him, the court found that the owner's evidence that she was a threat to other tenants and staff was insufficient. The owner didn't show that the tenant was not a victim of domestic abuse. Therefore, VAWA applied, and owner's eviction lawsuit was dismissed [Metro North Owners LLC v. Thorpe, January 2009].

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