How to Ensure Legal Compliance When Dealing with Domestic Violence

This month, Fair Housing Coach reviews issues related to domestic violence. It’s a prevalent public safety problem affecting millions of Americans each year—and a thorny legal issue for multifamily property owners and managers caught in the middle of their residents’ domestic problems.

Lawmakers have adopted various measures to provide housing-related assistance to domestic violence victims, but there’s no single law that applies across the board. For example, the most comprehensive law protecting victims of domestic violence—the federal Violence Against Women Act (VAWA)—applies only to public housing and communities receiving federal funding. It doesn’t apply to private conventional housing.

Though federal fair housing law applies equally to all types of housing, it doesn’t specifically cover domestic violence victims. Nevertheless, HUD says that in some cases, federal fair housing law may cover domestic violence victims under the ban on sex discrimination, since the vast majority of domestic violence victims are women. Advocates have been pursuing such claims, resulting in a couple of court cases, though most have settled out of court.

Only a few states have taken a comprehensive approach by expanding fair housing laws to ban discrimination against domestic violence victims. Many more have come up with specific provisions in landlord-tenant laws to address the most common issues affecting rental housing, such as rules allowing victims to change locks or obtain an early lease termination.

In this lesson, we’ll review the patchwork of federal, state, and local laws protecting domestic violence victims—and explain how they may affect operations at your community. Then we’ll suggest four rules on how to ensure legal compliance when responding to domestic violence issues that may arise. Finally, you can take the COACH’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability.

Though the FHA doesn’t specifically cover domestic violence victims, HUD says that domestic violence survivors may pursue federal fair housing claims in some cases. In a 2011 analysis, HUD noted that domestic violence victims often face housing discrimination because of their history or the acts of their abusers. For example, landlords may evict domestic violence victims under zero-tolerance crime policies based on the violence of a household member, guest, or other person deemed to be under the victim’s “control.” Moreover, victims are often evicted after repeated calls to police for domestic violence incidents for disturbing neighbors. In some cases, victims are evicted because of property damage caused by their abusers. Often, HUD says, these adverse housing actions punish the victims for the violence inflicted upon them, resulting in unfair—and potentially unlawful—“double victimization.” 

Based on statistics showing that women are overwhelmingly the victims of domestic violence, HUD reasoned that discrimination against domestic violence survivors is almost always discrimination against women. Consequently, domestic violence survivors who are denied housing, evicted, or deprived of assistance based on the violence in their homes may be entitled to protection under the FHA provisions banning sex discrimination, according to HUD.

There are various ways for a domestic violence victim to establish a sex discrimination claim under the FHA. She could show evidence of blatantly discriminatory policies if, for example, a property manager rejected her application and told her that he won’t accept women with a history of domestic violence “because they always go back to the men who abuse them.” Or she could show the manager’s unequal treatment if he has excluded or taken action against domestic violence victims, but not victims of other crimes.

Even in the absence of intentional discrimination, HUD said that domestic violence victims may pursue a fair housing claim based on disparate impact—that is, the discriminatory effect of a seemingly neutral policy on members of a protected class. As an example, HUD noted that disparate impact claims often arise in the context of “zero-tolerance” policies, under which the entire household is evicted for the criminal activity of one household member. The theory is that, even when consistently applied, women may be disproportionately affected by these policies because, as the overwhelming majority of domestic violence, women are often evicted as a result of the violence of their abusers.

Moreover, HUD noted that certain other protected classes experience high rates of domestic violence. The memo cited studies showing that African-American, Native American, and immigrant women face higher rates of domestic violence than white women. Consequently, HUD said that victims of domestic violence may be able to pursue a discrimination claim based on race or national origin under federal fair housing law.

TIME OUT!

Public and HUD-Assisted Communities Banned from Discriminating Against Domestic Violence Victims

While this lesson focuses on laws applicable to conventional housing communities, public and federally assisted housing communities must comply with the federal Violence Against Women Act (VAWA), which bans discrimination against victims of domestic violence, dating violence, sexual assault, or stalking. For years, the law applied to public housing and Section 8 voucher and project-based programs, but in 2013, the law was expanded to cover Low-Income Housing Tax Credit properties and other HUD programs.

     Key provisions of VAWA:

• Ban providers from denying admission based on an individual’s status as a victim of domestic violence, dating violence, sexual assault, or stalking.
• Prohibit providers from evicting a resident who’s a survivor of domestic violence, sexual assault, dating violence, or stalking based solely on criminal activity related to an act of violence against her. Incidents or threats of abuse may not be considered to be serious or repeated violations of the lease or any other “good cause” to evict the victim of abuse.
• Require providers to honor abuse protection orders and other court orders (such as divorce decrees) that address access to or control of the unit.
• Allow for lease bifurcation if both the victim and the perpetrator in a domestic violence situation are parties to the lease, in order to evict the perpetrator and allow the victim to remain.
• Allow providers to request documentation that he or she is a victim of domestic violence, dating violence, sexual assault, or stalking. The law requires providers to keep such information confidential.

In December 2013, HUD announced that it was developing regulations to implement the 2013 amendments to VAWA. In the meantime, HUD said that providers shouldn’t wait to extend the basic VAWA protections—that is, no lease termination or eviction of domestic violence survivors—to residents in HUD-assisted housing [HUD notice, Violence Against Women Reauthorization Act of 2013: Overview of Applicability to HUD Programs; August 2013].

FOUR RULES FOR ENSURING LEGAL COMPLIANCE RELATED TO DOMESTIC VIOLENCE

Rule #1: Don’t Punish Victims of Domestic Violence for Acts of Abusers

Though you have an obligation to protect the safety and peaceful enjoyment of the property by all your residents, you could face a fair housing claim if you take action to evict or otherwise sanction victims of domestic violence for the actions of their abusers.

Under federal fair housing law, the primary risk is a potential sex discrimination claim. Though both men and women may be victims of domestic violence, HUD has focused attention on female victims since most domestic violence victims are women.

Example: In February 2012, HUD charged the owner of a Mississippi community with violating the FHA’s ban on sex discrimination for allegedly evicting a resident because she was a domestic violence victim. According to the charge, the resident lived in the unit for about a year before her ex-boyfriend, who didn’t live there, assaulted her. With a neighbor’s help, she said she managed to escape to another unit and call police, who took her to the hospital because of her injuries.

Allegedly, the boyfriend was arrested and later pleaded guilty to the assault. But the resident claimed that, only a few days after the incident, the community sent her a termination notice giving her six days to vacate under a lease provision allowing the landlord to require lessees or anyone else using the unit who commits a crime or domestic violence to vacate the leased unit permanently.

In issuing the charge, HUD said that termination of the domestic violence victim’s tenancy amounted to sex discrimination based on its discriminatory effect on women, pointing to statistics showing that most domestic violence victims are women [HUD v. Escatawpa Village Associates, Limited Partnership, February 2012].

Communities could also come under fire due to discriminatory admissions policies. During the application and screening process, you may learn about an applicant’s past history as a victim of domestic abuse and worry that problems from the past may follow her into your community. Nevertheless, screening out applicants based on a history as a domestic violence victim could trigger a sex discrimination claim under fair housing law.

Example: In April 2013, the Kentucky Human Rights commission approved a settlement of a case alleging sex discrimination under federal and state law. The case claimed that a landlord denied a female prospect an opportunity to apply for his rental property because he learned she had a domestic violence protection order against an individual and he said it could bring danger in his neighborhood.

After the commission issued a finding of probable cause to believe discrimination occurred, the parties agreed to settle the case. The landlord denied any violation of the law, but agreed to pay a $5,000 settlement, undergo fair housing training, and submit to compliance monitoring by the commission for three years [Jones v. Feldman, April 2013].

Rule #2: Don’t Punish Domestic Violence Victims for Seeking Emergency Assistance

Communities could face legal problems for taking action against a resident who calls police for help in dealing with domestic abuse. Advocates say that threatening to evict the victim for seeking emergency assistance for domestic abuse by their partners only promotes the cycle of violence by preventing victims from getting help. Rather than face the loss of their housing, victims may not report threats or attacks, increasing not only their risk of serious injury or death, but also increasing the potential liability against the community if it knew about the danger and did nothing to stop it.

Most often, discrimination claims arise when communities enforce zero-tolerance policies against criminal activity or disturbances at the community. Some private housing communities have adopted policies to mirror the so-called “one-strike” rules, which require the eviction of residents for criminal activity by their household members or guests at public and federally assisted housing communities. Though VAWA prevents those communities from applying the one-strike policy to evict domestic violence victims for the violent acts of their partners, VAWA doesn’t prevent it from happening in private housing communities—leading advocates to challenge the practice under federal and state fair housing law.

Example: In December 2013, the American Civil Liberties Union (ACLU) of Michigan and the Fair Housing Center of Southeastern Michigan called on the Inkster Housing Commission to halt the eviction proceedings of a pregnant woman facing eviction because she reported incidents of domestic violence to police.

According to the ACLU, the resident had been attacked in her unit several times by the father of her child, who forced his way into her unit and assaulted her. After calling the police each time, she said that the housing commission’s police officer warned that she risked eviction if she made similar calls in the future.

Again, the man allegedly forced his way into the unit and brutalized the resident by pulling her by the hair up the stairs and punching and kicking her repeatedly. Worried about being evicted, the resident didn’t call the police, but when she saw the man outside a few days later, she said she feared for her life and called the police.

After this last incident, the ACLU said that the housing commission informed the resident that she was being evicted because she couldn’t control her guests and claimed that people like her were ruining the neighborhood and didn’t deserve to live there. Although she obtained personal protection orders against the man in 2009 and in 2013 and he had been convicted of domestic violence against her, the ACLU said that the housing commission considered him her “guest” and was therefore evicting her for the “disturbance of the peace” and property damage he caused while assaulting her.

In its letter, the ACLU of Michigan and Fair Housing Commission urged the housing commission to halt the eviction proceedings and amend its policies or risk violating federal and state laws including the federal Violence Against Women Act, the Fair Housing Act, and Michigan’s Civil Rights Act.

TIME OUT!

Crime-Free Rental Housing and Nuisance Property Ordinances

In some jurisdictions, communities may be subject to local laws aimed at reducing criminal activities in rental housing communities. Last year, the New York Times reported on the growing number of cities and towns that have adopted nuisance property or “crime-free” ordinances to prevent crime and reduce the burden on local police.

But the measures have been challenged for posing public safety problems by silencing crime victims and others who seek emergency assistance or report crimes. Moreover, advocates argue that enforcing the ordinances against a victim of domestic violence amounts to sex discrimination under federal fair housing law.

Example: In April 2013, the American Civil Liberties Union (ACLU) filed a federal lawsuit to challenge a municipal ordinance on behalf of a domestic violence victim who faced eviction from her home after requesting police protection from an abusive ex-boyfriend. The complaint alleged that the Norristown, Pa., ordinance penalized landlords and encouraged them to evict residents when the police are called to a property three times in four months for “disorderly behavior,” including responding to incidents of domestic violence.

According to the complaint, the resident was threatened with eviction under this policy after she called the police for protection from her abusive ex-boyfriend. Allegedly, she became reluctant to call police for future incidents, including one in which her ex-boyfriend attacked her with a brick. When neighbors called the police after a final attack that resulted in her being airlifted to the hospital, the city threatened her with forcible removal from her home.

Cities across the country have similar ordinances on the books, according to the ACLU, which violate tenants’ First Amendments rights. The ACLU argues that the ordinances also violate VAWA, which protects many domestic violence victims from eviction based on the crimes committed against them, and the FHA, which prohibits discrimination based on sex.

Rule #3: Comply with State and Local Laws Protecting Victims of Domestic Violence

Get to know any applicable state or local laws protecting victims of domestic violence. Not all states have adopted such provisions, but in some states, the law offers broad protections to domestic violence survivors. In others, the laws narrowly address particular issues related to domestic violence under state landlord-tenant laws. Here are a few of the most common provisions:

Nondiscrimination provisions: In a handful of jurisdictions, lawmakers have expanded fair housing laws to include victims of domestic violence as a protected class. The laws in Illinois, Rhode Island, Wisconsin, and the District of Columbia specifically ban housing discrimination against domestic abuse victims or those covered under protective orders.

Some states—including Arkansas, Indiana, North Carolina, Oregon, and Washington—prohibit housing discrimination against victims of domestic violence under landlord-tenant laws.

Eviction: Many states have adopted specific provisions to protect domestic violence victims from evictions or lease non-renewals due to the criminal acts or lease violations committed by their abusers. Typically, the laws offer a defense to eviction actions against victims of domestic violence—and in some states, sexual assault, stalking, and other forms of abuse—with documentation such as a protective order or police report. 

Early lease termination: These laws grant domestic violence victims the right to early lease termination to escape an abusive relationship. With the required documentation, the laws permit domestic abuse victims to end their lease obligations without penalty upon notice within a certain period of time after a domestic violence incident.

Right to call police: These laws prevent landlords from penalizing victims of domestic abuse for calling police for help. In general, the laws prohibit landlords from restricting the right to seek emergency assistance, or imposing extra fees on residents who do so, in response to an incident of domestic violence.

Lock changes: These laws require landlords to change the locks—or to allow victims to change them—to protect residents from domestic abuse. Generally, the laws require action within a short time after receiving notice with documentation, such as a protective order, and absolve the landlord from liability for denying keys to perpetrators when both parties are on the lease. 

Lease bifurcation: These provisions apply when both the victim and perpetrator of domestic violence are parties to the lease so that the landlord can evict the perpetrator but allow the victim to remain in the unit. 

Ask your attorney about whether your state or local law offers one or more of these protections to domestic violence victims. Ask for information about what they cover, including deadlines, notice provisions, and other details.

And ask for frequent updates—state and local lawmakers have been actively considering measures to adopt—or enhance—housing protections for victims of domestic abuse. Last year, for example, Massachusetts adopted new laws to prevent evictions and allow early lease terminations for victims of domestic violence, rape, sexual assault, and stalking. And in Washington, which already has sweeping protections for domestic violence victims on the books, lawmakers added new provisions to increase access to housing and fair tenant screening for survivors of domestic violence, sexual assault, and stalking.

COACH’s Tip: More information on state laws affecting the housing rights of the victims of domestic violence is available from the National Housing Law Project and Legal Momentum. Each offers a listing of state laws, but you should check with your attorney for the most recent version of the law in your state.

Rule #4: Keep Good Records

Good record keeping is important when dealing with domestic violence issues. You’ll need good records to demonstrate that your community has complied with all applicable federal, state, and local laws protecting victims of domestic violence.

To defend against potential discrimination claims, it’s best to have written policies and procedures governing the application process, resident relations, community rules, lease renewals, and evictions—as well as all documents relating to individual applicants and residents. These documents show that your community has established legitimate, nondiscriminatory policies and procedures, and that it has applied them consistently to all prospects and applicants.

Fully document any incidents that may be related to domestic abuse, including calls for emergency services, complaints from neighbors, and requests for assistance by the victims of domestic violence. Make sure your records fully and accurately reflect what happened—and what you did about it—to show that your community acted appropriately and in compliance with applicable laws.

Pay particular attention to any legal restrictions aimed at protecting the confidentiality of domestic violence victims. In general, it’s a good idea to take steps to safeguard residents’ privacy by granting access only on a need-to-know basis—for example, by making managers and security personnel aware of any protective orders issued against residents and others accused of domestic abuse.

• Fair Housing Act: 42 USC §3601 et seq.

COACH Sources

Nadeen W. Green, Esq.: Senior Counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

D. J. Ryan: Fair Housing Specialist, Director of Client Education, Kimball, Tirey & St. John LLP, 7676 Hazard Center Drive, #450, San Diego, CA 92108; (619) 234-1690; DJ.Ryan@KTS-LAW.com.

Kathelene Williams, Esq.: The Law Firm of Williams & Edelstein, P.C., 7742 Spalding Drive, Ste. 478, Norcross, GA 30092; (770) 840-8483; kathi@fairhouse.net.

Carl York, CPM® Emeritus, CAM, CAPS: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.