News

Washer and Dryer Fees for Voucher Holders

Owners of properties that accept applicants who use Housing Choice Vouchers (HCV) need to carefully review the Housing Assistance Payments (HAP) Contract and Voucher Lease Addendum for language relating to who must pay the cost of "utilities and appliances." A recent court case (U. S. v. Wasatch Advantage Group, July 2017) indicated that a washer or dryer may be considered an "appliance," and unless payment for washers and dryers is specifically excluded in the HAP contract and lease addendum, owners may not be able to charge a fee for their use.   Section 8 of Part A of the HAP Contract for vouchers states that the owner shall pay for all utilities and appliances provided by the owner. Part B, 5.b states that the lease must specify what appliances are to be provided or paid by the owner or the tenant, and that the lease must be consistent with the HAP contract.   Part C, 5.e provides that the owner may not charge or accept, from the family or any other source, any payment for rent of the unit in addition to the rent to the owner. Rent to the owner includes all housing services, maintenance, utilities, and appliances to be provided and paid by the owner in accordance with the lease.   When units contain washer/dryer hookups, but not the actual appliances, many owners offer tenants the option of providing their own washer and dryer or renting from the owner. This is common in the apartment industry, and until now, the charging of a fee for rental of the washer and dryer has not been considered an issue. While this case is certainly not determinative with regard to whether an owner may charge for washers and dryers in these cases, it does indicate that owners should be cautious when it comes to offering this service to voucher holders. Certainly if the option is given to non-voucher users it should be offered to residents with vouchers. But, owners should ensure that the HAP Contract and Voucher Lease Addendum specifically state that the washer and dryer are not provided by the owner and that the tenant has the option of providing their owner washer/dryer, not having a washer/dryer, or renting one from the owner.

Understanding the VAWA Certification of Domestic Violence, Dating Violence, Sexual Assault or Stalking and Alternate Documentation, form HUD-5382

On August 1, 2017, HUD released an updated form HUD-5382, Certification of Domestic Violence, Dating Violence, Sexual Assault or Stalking and Alternate Documentation. The purpose of this form is to provide a method for victims of domestic violence, dating violence, sexual assault, or stalking to certify their victim status. Tenants and applicants may use this form to certify victim status and request VAWA protections.   Owners and Agents (O/As) should be familiar with the contents of this form in order to have a full understanding of what the form does.   Applicable Definitions   The form provides definitions of terms relating to VAWA protections, including (1) domestic violence; (2) dating violence; (3) sexual assault; and (4) stalking.   The form is optional. The form informs the applicant/tenant that the owner may give them a written notice requesting that the applicant/tenant submit documentation about the incident or incidents of domestic violence, dating violence, sexual assault, or stalking. It informs the person that they have the option of using this form or submitting one of the following types of third-party documentation to the housing provider: A document signed by the applicant/resident and an employee, agent, or volunteer of a victim service provider, an attorney, medical professional, or a mental health professional from whom they have sought assistance relating to domestic violence, dating violence, sexual assault, or stalking; A record of a Federal, State, tribal, territorial or local law enforcement agency, court, or administrative agency; or At the discretion of the housing provider, a statement or other evidence provided by the applicant or tenant.   Timeframe for Submitting Documentation   The Notice informs the person that they must submit the requested documentation to the housing provider within 14 business (not calendar) days from the date that they receive the written request from the housing provider requesting the documentation of the occurrence of domestic violence, dating violence, sexual assault, or stalking. The Notice also lets the person know that the owner may extend the deadline, but is not required to, and if the information is not provided by the deadline (including any extension), the owner may take action against them, such as denial of admission, assistance, participation, or tenancy. It also informs the person that owners must provide reasonable accommodations for disabled individuals, and that the applicant or tenant may challenge the owner s decision.     Confidentiality   The Notice informs the person that all information they provide relating to the domestic violence, dating violence, sexual assault, or stalking must remain confidential and provides details regarding the confidentiality requirements on the owner.   The key thing for owners and agents to remember with regard to requiring a certification of domestic violence, dating violence, sexual assault, or stalking, is that if the applicant or tenant chooses to use the form HUD-5382, unless there is conflicting information relative to the request for VAWA protection, no certification beyond this form may be required.

Required Elements of VAWA Emergency Transfer Plan

HUD recently published a revised form HUD-5381, "Model Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault, and Stalking." The model contains only general provisions of an Emergency Transfer Plan. Adoption of the model plan without further information will not be sufficient to meet a covered housing provider s responsibility to adopt an emergency transfer plan. Owners of housing projects that are covered by the VAWA regulations were to have put an Emergency Transfer Plan into place no later than June 14, 2017. Owners who have not done so should do so immediately, using the following information to ensure that all required elements are contained in the plan. Owners who have created Emergency Transfer Plans should refer to the information in this article to ensure that all statutorily required elements are in the Plan.   Definitions The Plan should include the following definitions: Internal Emergency Transfer: refers to an emergency relocation of a tenant to another unit where the tenant would not be categorized as a new applicant; that is, the tenant may reside in the new unit without having to undergo an application process. External Emergency Transfer: refers to an emergency relocation of a tenant to another unit where the tenant would be categorized as a new applicant; that is the tenant must undergo an application process in order to reside in the new unit. Safe Unit: refers to a unit that the victim of domestic violence, dating violence, sexual assault, or stalking believes is safe.   Aside from these definitions, the Emergency Transfer Plan must include the following elements: A tenant receiving rental assistance through, or residing in a unit subsidized under, a covered housing program who is a victim of domestic violence, dating violence, sexual assault, or stalking qualifies for an emergency transfer if: The tenant expressly requests the transfer; and The tenant reasonably believes there is a threat of imminent harm from further violence if the tenant remains within the same dwelling unit that the tenant is currently occupying; or In the case of a tenant who is a victim of sexual assault, either the tenant reasonably believes there is a threat of imminent harm from further violence if the tenant remains within the same dwelling unit that the tenant is currently occupying, or the sexual assault occurred on the premises during the 90-calendar-day period preceding the date of the request for transfer. The plan must detail the measure of any priority given to tenants who qualify for an emergency transfer under VAWA in relation to other categories of tenants seeking transfers and individuals seeking placement on waiting lists. Tenant Selection Plans (TSPs) should be amended to include any VAWA preference (this does not require HUD approval). The plan must incorporate strict confidentiality measures to ensure that the housing provider does not disclose the location of the dwelling unit of the tenant to a person who committed or threatened to commit an act of domestic violence, dating violence, sexual assault, or stalking against the tenant. The plan must allow a tenant to make an internal emergency transfer under VAWA when a safe unit is immediately available. The plan should define the term "immediately available." For example, "a vacant unit, ready for move-in with a reasonable period of time." Include time frames, possible internal transfer locations, and priority status relative to other tenants seeking an internal transfer. The plan must describe policies for assisting a tenant in making an internal emergency transfer under VAWA when a safe unit is not immediately available, and these policies must ensure that requests for internal emergency transfers receive, at a minimum, any applicable additional priority that housing providers may already provide to other types of emergency transfer requests (e.g., transfers based on disability). The plan must describe reasonable efforts the housing provider will take to assist a tenant who wishes to make an external emergency transfer when a safe unit is not immediately available. The plan must include policies for assisting a tenant who is seeking an external emergency transfer under VAWA out of the housing provider s program or project, and a tenant who is seeking an external emergency transfer under VAWA into the housing provider s program or project. These policies may include: Arrangements, including memoranda of understanding, with other housing providers to facilitate moves (such documents should be attached to the plan); and Outreach activities to organizations that assist or provide resources to victims of domestic violence, dating violence, sexual assault, or stalking. Nothing may preclude a tenant from seeking an internal emergency transfer and an external emergency transfer concurrently if a safe unit is not immediately available. It is recommended that this policy be clearly stated in the plan. The plan should state that a request does not guarantee continued assistance or an external transfer to other HUD housing. Where applicable, the plan must describe policies for a tenant who has tenant-based rental assistance (e.g., voucher) and who meets the requirements of #1 above to move quickly with that assistance. Housing providers should coordinate with local providers of the tenant-based assistance (e.g., local PHA). The plan may require documentation from a tenant seeking an emergency transfer, provided that: The tenant s submission of a written request to the housing provider, where the tenant certifies that they meet the eligibility requirements to request a VAWA transfer, shall be sufficient documentation of the requirements necessary to request an emergency transfer; The housing provider may, at its discretion, ask an individual seeking an emergency transfer to document the occurrence of domestic violence, dating violence, sexual assault, or stalking, in accordance with 24 CFR 5.2007, for which the individual is seeking the emergency transfer, if the individual has not already provided documentation of that occurrence; and No other documentation is required to qualify the tenant for an emergency transfer. The housing provider must make its emergency transfer plan available upon request and, when feasible, must make the plan publicly available. Nothing in the plan may supersede any eligibility or other occupancy requirements that may apply under any other covered housing program.   With regard to #9 above, housing providers are not required to require documentation from a tenant claiming VAWA protection. Verbal requests may be accepted. However, if documentation will be required, the requirement (as outlined above) must be included in the plan. The housing provider must keep a record of all emergency transfers requested under its plan, and the outcomes of such requests, and retain these records for a period of three years, or for a time period as specified in program regulations. Requests and outcomes of such requests must be reported to HUD annually. I recommend that all elements of the Model Emergency Transfer Plan be incorporated, plus the elements outlined above.

Proposed Guidance- Form HUD-5380, Notice of Occupancy Rights Under the Violence Against Women Act To All Tenants and Applicants

On August 1, 2017, HUD published a Notice of proposed rulemaking that revises a number of forms and requirements relative to the Violence Against Women Act (VAWA). One of the forms proposed for change is form HUD-5380, Notice of Occupancy Rights Under the Violence Against Women Act To All Tenants and Applicants. This article provides details on the proposals regarding the notice requirements under VAWA, and outlines the specific rights of VAWA victims.   Protection for Applicants   Applicants for assistance under a covered housing program may not be denied admission or assistance on the basis or as a direct result of the fact that they are or have been a victim of domestic violence, dating violence, sexual assault, or stalking, as long as they would otherwise qualify for the program.   Protection for Tenants   Tenants housed or receiving assistance under a covered program may not be denied assistance, terminated from participation in, or be evicted from the housing on the basis or as a direct result of the fact that they are or have been a victim of domestic violence, dating violence, sexual assault, or stalking.   Tenants also may not be denied assistance or residency solely on the basis of criminal activity relating to domestic violence, dating violence, sexual assault, or stalking, if: The criminal activity is engaged in by a member of the household or any guest or other person under the control of the tenant; and If the tenant or an affiliated individual of the tenant is or has been the victim of domestic violence, dating violence, sexual assault, or stalking. "Affiliated individual" means a spouse, parent, brother, sister, or child, or a person the tenant stands in the place of a parent or guardian (e.g., a person that is in the custody, care, or control of the tenant). It also refers to any individual, tenant, or lawful occupant living in the household.   Removing the Abuser or Perpetrator from the Household   When a member of the household engages in criminal activity directly related to domestic violence, dating violence, sexual assault, or stalking, the owner may remove the abuser or perpetrator from the lease (i.e., bifurcate the lease) without affecting the occupancy rights of the victim. Any bifurcation must be carried out in accordance with any requirements or procedures required by Federal, State, or local law for termination of assistance in leases and in accordance with the requirements of the applicable housing program. If the owner removes the abuser or perpetrator through bifurcation, and that person was the eligible tenant under the program, the owner must allow any remaining tenant(s), who are not already eligible, time to apply to establish eligibility under the same or another housing program covered by VAWA, or find alternative housing. Before bifurcating a lease, an owner may, but is not required to, ask the tenant for documentation or certification of the incidence of domestic violence, dating violence, sexual assault, or stalking.   Emergency Transfers   Victims of domestic violence, dating violence, sexual assault, or stalking may request emergency transfers to other units or projects. Before permitting such a transfer, owners may request that the tenant submit a written request or fill out form HUD-5383 (Certification form). In this way, the tenant will be certifying that he or she meets the criteria for an emergency transfer. The criteria are: The tenant (or member of the household) must be a victim of domestic violence, dating violence, sexual assault, or stalking; The tenant must expressly request the emergency transfer (submission of form HUD-5383 is considered a request for a transfer); and The tenant reasonably believes that he or she is threatened with imminent harm from further violence if they remain in the current unit, or he or she has been a victim of sexual assault and the assault occurred on the premises during the 90-calendar-day period before the request for transfer. Owners must keep requests for emergency transfers, and the location of any such move, in strict confidence.   Owners are not required to automatically provide copies of emergency transfer plans to applicants or tenants, but the Notice of Rights states that if requested by an applicant or tenant, a copy of the Plan must be provided.   Documentation of Status as a Victim of Domestic violence, Dating violence, Sexual Assault, or Stalking   Owners may, but are not required to, ask tenants or applicants to provide documentation to "certify" that they are or have been a victim of domestic violence, dating violence, sexual assault, or stalking. If requested, the applicant or tenant must submit the documentation within 14 business days from the date that they receive the written request from the housing provider asking for the documentation of the occurrence of domestic violence, dating violence, sexual assault, or stalking. I recommend that such requests be sent certified mail, return receipt requested, so that the beginning date of the 14 business days is undisputed. Housing providers may extend the time period to submit the documentation. If the documentation is not provided within the 14-business day timeframe, or any extension of the timeframe, owners are not limited in their ability to deny admission, assistance, participation, or tenancy. However, owners should remember that other laws or regulations may require different time periods. For example, owners may have to grant reasonable accommodations to disabled individuals in the form of additional time or assistance with responding to written requests.   If an owner requires documentation, applicants or tenants have the right to choose from one of four methods of documentation: A completed HUD-approved certification, form HUD-5382; A record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or administrative agency that documents the incident of domestic violence, dating violence, sexual assault, or stalking. Examples of such documentation include police reports, protective orders, and restraining orders; A statement signed by an employee, agent, or volunteer of a victim service provider, an attorney, a medical or mental health professional from whom the applicant or tenant sought assistance relative to the domestic violence, dating violence, sexual assault, or stalking. The applicant or tenant must also sign this statement; or Any other statement or evidence that the owner has agreed to accept.   If an owner receives conflicting evidence that an incident of domestic violence, dating violence, sexual assault, or stalking has been committed (such as receiving certification forms from two or more members of a household each claiming to be a victim and naming one or more of the other petitioning household members as the abuser or perpetrator), the owner has the right to request that third party documentation be provided within 30-calendar days to resolve the conflict. The responding applicant or tenant may satisfy this request by providing any of the documentation described above, except for the self-certification, form HUD-5382. If the applicant or tenant fails to provide such documentation when there is conflicting evidence, the owner may deny them admission, assistance, participation, or tenancy. However, owners should remember that other laws or regulations may require different time periods.   Confidentiality   Owners must keep strictly confidential any information provided concerning the incident(s) of domestic violence, dating violence, sexual assault, or stalking. Information about the incident(s) and the person s status as a survivor, such as the information provided on form HUD-5382 and HUD-5383, may only be available to the owner s employees or contractors if explicitly authorized by the owner for reasons that specifically call for those individuals to have access to the information under applicable Federal, State, or local law. Owners should ensure that third party file reviewers not have access to any information relative to requests for protection under VAWA. Information about the incident(s) and a person s status as a survivor may not be entered into any shared database or disclosed to any other entity or individual, except to the extent that the disclosure is: Consented to by the victim in writing in a time-limited release; Required for use in an eviction proceeding or hearing regarding termination of assistance; or Otherwise required by applicable law. VAWA does not limit an owner s duty to honor court orders relating to access to or control of the documentation.   Reasons a Tenant Eligible for Occupancy Rights under VAWA May Be Evicted or Assistance May Be Terminated   Serious or repeated lease violations that are not related to an act or acts of domestic violence, dating violence, sexual assault, or stalking; The owner can demonstrate that not evicting the tenant or terminating assistance will present a real physical danger that: Would occur within an immediate time frame; and Could result in death or serious bodily harm to other tenants or those who work at the property. If an owner can demonstrate this kind of danger, assistance should only be terminated or eviction undertaken if there are no other actions that could be taken to reduce or eliminate the threat.   HUD does not define "immediate," but I recommend that the threat be so serious that a dangerous situation is expected without delay and literally could occur at any moment.   Other Laws   VAWA does not replace any Federal, State, or local law that provides greater protection for victims of domestic violence, dating violence, sexual assault, or stalking, so owners should be aware of any such laws.   While the form HUD-5380, in its current form, is a draft, it is highly likely that there will be few, if any, changes to the final form. Owners should familiarize themselves with the content of the form and understand the rights of VAWA victims.    

HUD Publishes Draft VAWA Notices, August 1, 2017

HUD published a "60-Day Notice of Proposed Information Collection: Implementation of the Violence Against Women Reauthorization Act of 2013," in the August 1, 2017 Federal Register.   This notice provides four draft documents associated with VAWA, (1) form HUD 5380, Notice of Occupancy Rights Under the Violence Against Women Act to All Tenants and Applicants; (2) form HUD- 5381, Model Emergency Transfer Plan Under VAWA; (3) form HUD-5382, Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking and Alternate Documentation; and (4) form HUD-5383, Emergency Transfer Request for Certain Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking. HUD is seeking public comment on these draft forms, and comments are due no later the October 2, 2017.   The first three forms (5380, 5381, and 5382) are forms that the VAWA 2013 law requires HUD to develop and provide. The final form (5383) is one that HUD has chosen to develop and provide.   Owners and managers should obtain copies of the draft notices and carefully review them. Comments should be sent to HUD with suggestions for improvements to the forms.   A summary of the proposed changes from the earlier editions of the forms follows:   Form 5380: clarifies the "Tenant Protections" and "Removing the Abuser or Perpetrator from the Household" sections to align with the regulations and provide more information about bifurcation of the lease; Renamed "Moving to Another Unit" to "Emergency Transfer;" Includes more emergency transfer language Adds language in the "Documenting That You Are or Have Been a Victim" section about reasonable accommodations and updates the language to be consistent with the regulation; and Updates the "Confidentiality" section to more closely follow the regulation and put individuals on notice of confidentiality protections. Form 5381: Adds a note to covered housing providers that the use of the model form without adding program specific and housing provider specific policies will not be sufficient to meet the emergency transfer plan requirements. In other words, a property s emergency transfer plan will have to be specific to both the property and the applicable program at the property; Adds a definition section; Renames the section titled "Emergency Transfer Timing and Availability" to "Emergency Transfer Procedures" and adds two new sections, "Emergency Transfer Policies" section, which clarifies that the provider must specify their individual policies for different categories of transfers (i.e., internal or external transfers) where applicable; and a "Priority for Transfers" section, which requires providers to provide any type of priority being provided to a victim consistent with federal regulations. Updates the "Confidentiality" section to more closely follow the regulation and put individuals on notice of confidentiality protections; and Add a "Making Plan Available" section to describe how the plan will be made publicly available, where possible. Form 5382: Updates the "Submission of Documentation" section to include information about reasonable accommodations. Adds a warning for making false submissions to ensure users of the form are aware of the legal nature of submitting false information to an entity when seeking access to Federal funds. Form 5383: Updates the "Confidentiality" section to more closely follow the regulation and put individuals on notice of confidentiality protections; Reframes question #11 as a "Yes" or "No" question; and Adds a warning for making false submissions to ensure that users of the form are aware of the legal nature of submitting false information to an entity when seeking access to Federal funds. Drafts of the revised forms are being published along with the new HUD notice so that the public will have chance to review the proposed changes.

Recommendation: Verify Changes in Household Composition Before Completing an Interim Certification

A recent court case provides a lesson in why it is a good idea for Owners/Agents (O/As) to have a policy requiring confirmation of the move-out of a household member prior to performing an interim recertification for a change in household composition. In the case of Greene v. HUD, June 2017, a New York district court ruled that HUD may have violated a residents due process rights when upholding her removal from the household composition of a unit.   Background The daughter of a resident had lived most of her life at a Section 8 site. In or prior to 2007, without the daughter s knowledge, her mother removed her from the household composition forms. The daughter actually never left the unit. When the mother moved out, the daughter attempted to take over the lease, but was denied because she was no longer a party to the lease. The mother had verbally notified management in or before 2007 that the daughter no longer lived in the unit. There was no written request for the daughter s removal and management did not require any evidence that the daughter had moved out. The mother admitted that she had been a drug addict at the time and could not remember what had actually happened. Recertification forms submitted by the mother from 2007 to 2011 did not list the daughter as a member of the household composition, yet the daughter lived in the unit the entire time. During that time, the daughter was employed and none of her income was counted, increasing the subsidy paid by HUD. The mother indicated that for three years after removing her daughter, she tried to add her back to the household, but management refused. The owner told the mother that once a person was removed from a household, they could not be added later. The daughter was never added back to household composition. The daughter sued HUD and the owner to challenge the denial of her Section 8 subsidy, alleging violations of the due process clause, and the constitutional safeguard against arbitrary denial of property by the government. HUD asked the court for a judgment without trial. The court ruled in favor of the daughter, stating that the daughter s removal from the housing composition deprived her of her entitlement to the continued receipt of the subsidy. HUD s position had been that, under 3-16 of HUD Handbook 4350.3, removal of the daughter from the household composition made her ineligible for consideration as a remaining family member, and thus, ineligible for continuing Section 8 subsidy. However, the court took the position that removal of the daughter, and refusal to add her back to household composition, deprived her of her property interest. The court noted that HUD regulations, the HUD handbook, and the site s policy all require independent verifications when an individual is removed from household composition. HUD regulations require an owner to conduct annual reexaminations of family income and composition and to conduct interim recertifications upon a family s request. HUD Handbook 4350.3, 3-27, indicates that owners may want to verify a family member s departure from a unit. It was the property s policy to require a notarized letter from the head of household, a notarized letter from the person moving out, and proof that the individual moved out, such as a new lease or phone bill. None of these steps were taken in this case. For this reason, the court ruled that the daughter was denied continued receipt of the Section 8 subsidy without her knowledge or consent and without notice or due process, in violation of the Constitution and applicable regulations.   Conclusion This case indicates the importance of following company policies and procedures with regard to handling household recertifications. It also makes clear that properties may have policies requiring verification of a move-out prior to removing a person from household composition. While such a policy is not a requirement, it is permitted by HUD regulation, and is one that I recommend.

VAWA Reauthorization Act of 2013 - Updated HUD Guidance - Notice H 2017-05

On June 30, 2017, HUD issued Notice H 2017-05, Violence Against Women Act (VAWA) Reauthorization Act of 2013 - Additional Guidance for Multifamily Owners and Management Agents. This notice provides guidance to owners and management agents (O/As) of HUD multifamily assisted housing on the requirements of VAWA 2013. The notice supersedes Housing Notices H 2010-23 and H 2009-15. The notice is applicable to the operation of the following programs: Project-based Section 8 programs under the United States Housing Act of 1937; New Construction State agency financed Substantial rehabilitation Section 202/8 Rural Housing Services (RHS) Section 515/8 Loan Management Set-Aside (LMSA) Property Disposition Set-Aside (PDSA) Section 202/162 Project Assistance Contract (PAC); Section 202 Project Rental Assistance Contract (PRAC); Section 202 Senior Preservation Rental Assistance Contracts (SPRAC); Section 811 PRAC; Section 811 Project Rental Assistance (PRA) Section 236 (including RAP); and Section 221(d)(3)/(d)(5) Below Market Interest Rate (BMIR) Background On November 16, 2016, HUD published its VAWA Final Rule implementing the requirements of VAWA 2013. This notice expands on and clarifies the HUD Final Rule. Major changes for HUD Multifamily Housing programs include: Specifies "sexual assault" as a crime covered by VAWA in HUD-covered programs; Establishes new definitions (e.g., affiliated individual and sexual assault, and others) and revises previously defined terminology (e.g., bifurcate and stalking); Establishes new requirements for notification of occupancy rights under VAWA, and transmits a Notice of Occupancy Rights under VAWA, form HUD-5380; Establishes the requirements for creating an emergency transfer plan and for related record keeping and reporting, and provides both a model "Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking," form HUD-5381, and an "Emergency Transfer Request for certain victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, form HUD-5383; Revises requirements for documenting the occurrence of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and provides a new "Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and Alternate Documentation," form HUD-5382; Where the O/A exercises the right to bifurcate a lease and the evicted or terminated tenant was the recipient of assistance at the time of bifurcation, establishes a new requirement for reasonable time periods during which a tenant who is a victim of domestic violence, dating Violence, sexual Assault, or stalking may remain in the unit while establishing eligibility under the current housing program or under another covered housing program, or seeking alternate housing; and Clarifies that O/As may establish a preference for victims of domestic violence, dating Violence, sexual assault, or stalking, but are not required to do so. Determining Who May Receive VAWA Protections VAWA protections cover applicants, tenants and assisted families (both women and men), as defined under program regulations for the covered housing. Guests, unassisted members, and live-in aides of a household are ineligible for VAWA protections that are available only to tenants. As a reasonable accommodation, a tenant can request VAWA protections based on the grounds that a live-in aide is a victim of domestic violence, dating violence, sexual Assault, or stalking. If qualified, the tenant may request an emergency transfer for the entire household, including the live-in aide. In cases where a guest or unassisted member is a victim, a tenant cannot be evicted or have assistance terminated based on the domestic violence, dating violence, sexual assault, or stalking of the guest or unassisted member. Determining Eligibility for VAWA Protections O/As may have to determine whether an adverse factor is a "direct result" of domestic violence, dating violence, sexual assault, or stalking. The law prohibits O/As from denying admission to, denying assistance under, terminating participation in, or evicting a tenant based on a adverse factor, if the adverse factor is determined to be a direct result of the fact that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking. An adverse factor refers to any factor that can be used as a basis for denying admission or assistance, terminating assistance or participation in a program, or evicting a tenant. If a denial or termination is required by a federal statute, based on a particular adverse factor, the O/A must comply with that statute, even if the adverse factor is a direct result of domestic violence, dating violence, sexual assault, or stalking. For example, if an applicant is subject to a lifetime registration requirement as a sex offender, the O/A must deny the applicant admission, even if the sex offense(s) was (or were) a direct result of the fact that the applicant was a victim of domestic violence, dating violence, sexual assault, or stalking. The presence of an adverse factor may be due to an underlying experience of domestic violence, dating violence, sexual assault, or stalking. An adverse factor may be present during much of an abusive relationship, or it may present itself only when a victim is attempting to leave, or has left, the abusive relationship. Examples of when adverse factors might be a direct result of domestic violence, dating violence, sexual assault, or stalking include: Poor credit history - for example: Forcing a victim to obtain credit, including credit cards for the perpetrator s use; Using a victim s credit or debit card without permission; Selling the victim s personally identifiable information; Running up debt on joint accounts; Obtaining loans/mortgages in a victim s name; Preventing a victim from obtaining and/or maintaining employment; Sabotaging work or employment opportunities, or causing a victim to lose his or her job by physically battering the victim prior to important meetings or interviews; Placing utilities or other bills in a victim s name and then refusing to pay; Forcing a victim to work without pay in a family business, or forcing him or her to turn earnings over to an abuser; Job loss or employment discrimination due to status as a victim; Job loss or lost wages due to missed work to attend court hearings, seek counseling or medical care; and Hospitalization and medical bills the victim cannot pay or cannot pay along with other bills. Poor rental history - for example: Property damage; Noise complaints; Harassment; Trespassing; Threats; Criminal activity; Missed or late rental or utility payments; Writing bad checks to the landlord; and Early lease termination. Criminal Record - for example: Forcing a victim to write bad checks; Property damage; Theft; Disorderly conduct; Threats; Trespassing; Noise complaints; Family disturbance/trouble; 911 abuse; Public drunkenness; Drug activity (drug use of the selling of drugs); Crimes related to sex work; Failure to protect a child from a batterer s violence; Crimes committed by a victim in self-defense; and Human trafficking. Failure to pay rent - for example: The victim s injury or temporary incapacitation; The arrest of the only wage earning member of the household; Preventing the victim from obtaining and/or maintaining employment; Sabotaging work or employment opportunities; and Causing the victim to lose the victim s job. Determining When Adverse Factors Are a Direct Result of Domestic Violence, Dating Violence, Sexual Assault, or Stalking To trigger the direct result analysis, it is the responsibility of the applicant or tenant to: Inform the O/A that he or she is a victim of domestic violence, dating violence, sexual assault, or stalking, and Provide enough information for the O/A to make a determination regarding the adverse factor and that the adverse factor was the result of domestic violence, dating violence, sexual assault, or stalking. The O/A should consider the individual s statement and any supporting documentation in determining if an adverse factor was a direct result of domestic violence, dating violence, sexual assault, or stalking. If further information is necessary for this determination, the O/A may request additional supporting documentation. However, any request for additional documentation must: Be in accordance with the O/As policies or practices; Not require evidence of domestic violence (other than as permitted by the VAWA statute); and Comply with the VAWA confidentiality requirements. The O/A must make an objectively reasonable determination, based on all the circumstances, whether the adverse factor is a direct result of the fact that the applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking. Certification & Documentation of Victim Status The "Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and Alternative Documentation," form HUD-5382 may be used to document instances of domestic violence, dating violence, sexual assault, or stalking. This form supersedes the Multifamily Housing VAWA Certification form, JUD-91066, which is now obsolete. The HUD-5382 must be made available by the O/A in multiple languages, consistent with HUD s LEP guidance. The notice provides additional guidance on the type of documentation that may be required to demonstrate victim status. Acceptance of verbal statement - O/As are not required to ask for documentation when an individual presents a claim for VAWA protections. The O/A may choose to provide protection based solely on an individual s verbal statement. Requesting documentation - if the O/A chooses to require that an applicant document status as a victim of domestic violence, dating violence, sexual assault, or stalking, the O/A must make such request in writing. Simply providing the victim the certification form HUD-5382 does not constitute a written request for documentation. Time to Submit Documentation The O/A may require submission of documentation within 14 business days after the date that the request for documentation is made. Once a victim provides documentation, the O/A is "encouraged" to acknowledge receipt of the documentation in a timely manner. (Note - HUD will clarify this issue when next updating HUD Handbook 4350.3). Requests for Third Party Documentation of Victim Status The VAWA final rule prohibits an O/A from requiring the victim to provide third party documentation of victim status, unless: More than one applicant or tenant provides documentation to show he or she is a victim of domestic violence, dating violence, sexual assault, or stalking, and the information in one person s documentation conflicts with the information in another person s documentation, or Submitted documentation contains information that conflicts with existing information already available to the O/A. In the case of (a) or (b) above, applicants or tenants may submit any of the following to meet the third party documentation request: A document: Signed by an employee, agent, or volunteer of a victim service provider, an attorney, or medical or mental health professional from whom the victim has sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of abuse; Signed by the applicant or tenant; and That specifies, under penalty of perjury, that the professional believes in the occurrence of the incident of domestic violence, dating violence, sexual assault, or stalking that is the ground for protection and remedies under the VAWA final rule, and that the incident meets the applicable definition of domestic violence, dating violence, sexual assault, or stalking under federal law; or A record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or administrative agency that documents the incident. At the discretion of the O/A, a statement or other evidence provided by the applicant or tenant. Timeframe to Respond Applicants or tenants must be given 30 calendar days from the date of the request to provide such documentation. If an applicant does not submit any third party documentation within the required time or submits documentation that does not meet the criteria in 1a, 1b, or 1c, above, the O/A may, but is not required to, accept that applicant or tenant s assertion (form HUD-5382 or verbal statement) of victim status for the VAWA protections. Denying VAWA Protections If the O/A requests, but does not receive, third party documentation, the O/A has the option to deny VAWA protections and must notify the applicant or tenant. If this results in one of the tenants being terminated from assistance, the O/A must hold a separate hearing for that tenant. Alternatively, the O/A may develop or follow an existing family break-up policy that may provide assistance to both persons seeking VAWA protections. VAWA Lease Addendum The Office of Multifamily Housing will soon issue an updated form HUD-91067, "VAWA Lease Addendum," which will include the additional provisions required in the final rule. The updated lease provisions will include updates regarding: Definitions; VAWA Protections; Documenting the occurrence of domestic violence, dating violence, sexual assault, or stalking; and Remedies available to victims. O/As must provide a new VAWA lease addendum (when issued) to all current households. This may be done at each household s next Annual Recertification (AR) or at another timely opportunity. All subsequent new move-ins must also receive the updated VAWA lease addendum. Notice of Occupancy Rights, form HUD-5380 O/As must issue the VAWA Notice of Occupancy Rights without changes to the core protections and confidentiality rights in the Notice. O/As must customize the Notice to reflect the specific program and specify the program operations that may pertain to or affect the VAWA Notice of Occupancy Rights. This may include additional language, so long as the language does not make changes to the core protections and confidentiality rights. Any added language cannot include additional requirements to receive VAWA protection. The VAWA Notice of Occupancy Rights, along with the certification form HUD-5382, must be provided to existing households, applicants, and new move-ins/initial certifications no later than each of the following times: For applicants - At the time the household is provided assistance or admission, and At the time the applicant is denied assistance or admission. For existing households - Through December 15, 2017, at each household s annual recertification (AR), and With any notification of eviction or termination of assistance, (but not with subsequent eviction or termination notices sent for the same infraction). If households have already had their AR for 2017 and they were not provided with the forms, the O/A must provide the forms to those households through other means no later than 12/15/17. A note or documentation must be made in the files of those tenants indicating when the forms were provided to the household. Note - while the VAWA Final Rule does not require an applicant/household to sign acknowledgement of receipt of the forms, it is strongly recommended that O/As document each tenant file in a way that demonstrates when the required documentation was provided. It is recommended that the files be documented each time the documents are provided. HUD also encourages O/As to post the VAWA Notice of Occupancy Rights and certification form on their websites and in public areas such as waiting rooms, community bulletin boards, and lobbies, where all tenants may view them. HUD assumes that by December 15, 2017, all current households will have received the required forms and O/As are not required to provide the notice and certification form at future ARs. Victim Confidentiality Any information submitted to an O/A, including the fact that an applicant or tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, must be maintained in confidence by the O/A. Employees of the O/A (or those who administer assistance on their behalf, e.g., contractors) must not have access to the information unless explicitly authorized by the O/A for reasons that specifically call for these individuals to have access to such information under Federal, State, or local law, and the O/A must not enter this information into any shared database, or disclose this information to any other entity or individual, except to the extent that disclosure is: Requested or consented to in writing by the victim in a time-limited release; Required for use in an eviction proceeding or hearing regarding termination of assistance; or Otherwise required by applicable law. The prohibition against entering this information into any shared database does not preclude the O/A from entering this information into a databases system used by the O/A that meets all requirements for securing sensitive personally identifiable information (PII). Communicating with the Victim Unless given permission by the victim to do so, the O/A must not leave messages that contain confidential information or refer to VAWA (e.g., asking the victim to come to the management office to pick up form HUD-5382) on the victim s voicemail system or with other individuals, including members of the victim s household. Leaving a voicemail requesting that the victim contact the O/A without reference VAWA is permissible. O/As should not send mail regarding the incident of domestic violence, dating violence, sexual assault, or stalking to the victim s address, if the perpetrator may have access to the victim s mail. O/As may determine the procedures for requesting documentation in writing on a case-by-case basis. For example, policies should state whether the applicant or tenant requesting VAWA protections is required to come to an office or other space that may be safe for the individual to receive the written request and that reasonable accommodations will be made as necessary. If the victim gives the O/A permission to contact him or her about the incident of domestic violence via mail, voicemail system, electronic mail, or other method approved by the victim, it is strongly recommended that this permission be obtained in writing. When discussing these matters directly with the victim, take reasonable precautions to ensure than no one can overhear the conversation. O/As may suggest - but cannot require - that the victim designate an attorney, advocate, or other secure contact for communications regarding the request for VAWA protections. Best Practices to Collect Information & Avoid Unintentional Disclosure Conduct the intake session in a private room, where the individual and staff person can talk without the risk of other staff or clients overhearing; Explain the O/As information sharing policies; Communicate to the individual which property management staff person is responsible for handling questions or complaints about confidentiality; Provide adequate time for the individual to review and sign forms; Post confidentiality notices in the management office and around the property; Ensure that relevant staff understand confidentiality policies; Post notices about the importance of maintaining confidentiality throughout the office; Direct staff to respond to third-party inquiries only after verifying that written client consent has been obtained; Clarify information sharing policies with referring/referral agencies and other service and business partners; Maintain distinct phone lines for certain purposes; Avoid using language referencing domestic violence in agency names, program name, organization names, and staff titles; Use a post office (PO) box to receive written correspondence; Serve individuals off-site as needed or when appropriate; Provide interpretation and/or documents translated into the appropriate language when necessary; and Provide accessible documents or assistance filling out forms for individuals with disabilities. It should be noted that these are best practice recommendations, and some may not be feasible for all O/As. Emergency Transfers - Note: this Notice contains requirements that are not specifically contained in the Model Emergency Transfer Plan provided by HUD Emergency Transfer Plan The VAWA Final Rule requires O/As to adopt an Emergency Transfer Plan, based on HUD s Model Emergency Transfer Plan (form HUD-5381). O/As must have adopted an Emergency Transfer Plan no later than June 14, 2017. For Management & Occupancy Reviews (MORs) conducted after June 30, 2017, but before December 14, 2017, reviewers will issue a Recommendation, rather than a finding, for non-compliance relating to the Emergency Transfer Plan. For MORs conducted after December 14, 2017, a Finding will be issued for non-compliance relating to the Emergency Transfer Plan. I recommend that all O/As carefully review the Emergency Transfer Plan requirements of this notice and revise Emergency Transfer Plans to ensure the Plans contain all elements required by the notice. Internal Transfers (moving to a unit in the same project) The Emergency Transfer Plan must allow tenants who are victims of domestic violence, dating violence, sexual assault, or stalking to make an internal emergency transfer with a safe unit is immediately available. A victim determines whether a unit is safe. A best practice is to define "immediately available" as a vacant unit, ready for move-in within a reasonable period of time. It is up to the O/A to define "reasonable period of time." The Plan must describe policies for assisting a tenant in making an internal emergency transfer when a safe unit is not immediately available, and describe reasonable efforts the O/A will take to assist a tenant who wishes to make an external emergency transfer when a unit that meets the victim s safety standard is not available. O/As are encouraged to review their transfer waiting list policies in their Tenant Selection Plans in order to facilitate emergency transfers. The emergency transfer requirements do not supersede any eligibility or occupancy requirements that may apply under a covered housing program. External Emergency Transfers (moving away from the project to another project) O/As are required to make reasonable efforts to assist a tenant who requests to make an external emergency transfer when a safe unit at the current property is not immediately available. O/As are not required to research available units and/or arrange for the move, but they can if they choose. Efforts should include providing contact information for relevant local service providers, government agencies, and other affordable housing developments in the area. Emergency Transfer Plans must include the following: A description of the reasonable efforts the O/A will take to assist a victim who wished to move to alternative housing, if a safe unit is not immediately available; A statement that a tenant must be allowed to seek an internal and external emergency transfer concurrently if an internal safe unit is not immediately available; and Policies for both assisting a tenant/applicant who is seeking an external emergency transfer under VAWA out of the property and an applicant who is seeking an external emergency transfer under VAWA into the property from another property. Record Keeping & Reporting Requirements The VAWA Final Rule requires that requests and outcomes of VAWA requests be reported to HUD annually. HUD plans to add these data elements to a future release of the Tenant Rental Assistance Certification System (TRACS). The following items should now be tracked to assist in reporting when the TRACS system is updated: Number of emergency transfer requests received; Number of requests resolved; Number still pending; Outcomes of requests - Number of internal unit transfers (within same project); Number relocated to other HUD-funded housing sites (e.g., other multifamily assisted, public housing/housing vouchers/ or HOME); Number of other move-outs; and Number of tenants who chose to remain in unit. The requirement to report this information in not in effect until TRACS has been updated. HUD will communicate additional details at a later date. Tips When Bifurcating a Lease VAWA permits owners (when otherwise allowed by State or local laws) to "bifurcate" a lease in order to remove a perpetrator from a unit while permitting the victim to remain in the unit. While it may be a necessary step to protect victims of domestic violence, dating violence, sexual assault, or stalking, bifurcation may also result in family break-up. The HUD notice provides extensive guidance relating to family break-ups, and based on that guidance, I offer the following tips. If a victim informs the O/A that a family member is committing domestic violence against him or her and he or she wishes to remain in the unit, the following steps are recommended: The O/A should already have provided the household members with their VAWA rights, but if not, this should be done immediately. Even if the victim was previously informed of his or her rights under VAWA, the O/A is again encouraged to provide the victim with the VAWA Notice of Occupancy Rights and certification form; Accept the victim s statement or request permitted documentation; Ensure the victim knows of the upcoming notification of eviction of the perpetrator, including the exact date the notification will take place. At the same time, provide the victim with contact information for local victim service providers (the victim may need to leave the unit temporarily and stay in a domestic violence shelter until the eviction takes place); Begin the eviction process. If the victim wants to move out of the unit for his or her safety, follow the requirements of the Emergency Transfer Plan. If the victim wants to stay in the unit, the O/A should bifurcate the lease by evicting the perpetrator and allowing the victim to remain on the lease. An Interim Recertification (IR) should be conducted to determine the new rent (this is required due to the change in family composition); If the perpetrator requests a hearing, the O/A is encouraged to conduct an expedited hearing within no more than ten days following the effective date of the notice. The perpetrator has a right to examine the O/As documentation relevant to the eviction. This means the perpetrator has a right to examine the relevant documentation the victim provided when claiming VAWA protections. This is an exception to the victim s confidentiality rights). To protect the victim s safety, any information that would reveal the location of the victim, or the location of any services that the victim is receiving must be maintained confidentially (i.e., redacted from the shared documentation), unless it meets the exceptions noted in the law. O/As are encouraged to consult with local domestic violence experts or victim service providers (that have not worked with either the victim or perpetrator) to serve on the grievance hearing panel; If it is determined that the perpetrator did indeed commit the acts, the case will then be moved to eviction court; and If the eviction is upheld, the O/A processes the IR to remove the household member and completes the bifurcation of the lease agreement. Remember, VAWA protections, including bifurcation, do not apply to guests or unreported members of a household or anyone else living in a unit who is not a tenant. Eviction, removal, termination of occupancy rights, or termination of assistance must be done in accordance with the procedures prescribed by federal, state, or local law. Some jurisdictions may prohibit partial or single tenant evictions. Once a lease is bifurcated, it becomes null and void once the O/A regains possession of the unit. The O/A should then execute a new lease with the victim. Note - as a result of lease bifurcation, it may be necessary to transfer the existing household to an appropriate size unit in accordance with the lease. Establishing Waiting List Preferences O/As may establish an admission preference for victims of domestic violence, dating violence, sexual assault, or stalking. HUD approval is not required to adopt such a preference, but O/As must modify their Tenant Selection Plan to include the owner-adopted preference. This synopsis provides a summary of some of the major elements of the new HUD notice. The notice itself is very comprehensive and all O/As of covered properties should obtain and review the notice in detail. In order to avoid potential non-compliance with VAWA requirements, all O/As should have VAWA procedures in place and fully understood no later than December 14, 2017.

Owner and Agent Responsibilities When Using Consumer Reports

Owner and Agent Responsibilities When Using Consumer Reports Property owners who use background checks to screen potential residents must comply with the Fair Credit Reporting Act (FCRA) and the Federal Trade Commissions (FTC) Disposal Rule. Any report that contains information about a person s credit, rental history, or criminal history is considered a consumer report. These reports are generally prepared by a credit-reporting agency (CRA). Examples of such reports include: A credit report from a credit bureau, such as Trans Union, Experian, and Equifax; A report from a tenant screening service; A report from a reference checking service; and A report from a background check company about the criminal history of an applicant or resident. Owners may obtain consumer reports on persons who apply to rent housing or renew a lease. In order to request such reports, the owner must have written permission from the subject of the report, and the report may only be used for legitimate business purposes. Anytime an "adverse action" is taken against a person due to a consumer report, certain steps must be taken. An adverse action is any action by an owner that is unfavorable to the interests of a rental applicant or tenant. Examples include: Application denial; Requiring a lease co-signer; Requiring a higher than normal security deposit; and Charging higher rent than that charged for other residents. When an adverse action is taken due to information on a consumer report, the person must be given notice of the action either orally, in writing, or electronically. This notice must include: The name, address, and phone number of the consumer reporting company that supplied the report; A statement that the company that supplied the report did not make the adverse decision and cannot give specific reasons for the decision; and A notice of the person s right to dispute the accuracy or completeness of any information in the consumer report, and their right to obtain a free report from the company if requested within 60 days. The adverse action notice is required even if information in the consumer report was not the primary reason for the adverse decision. As mentioned above, oral notices are allowed. However, I strongly recommend that written notices be provided, since this will provide proof of FCRA compliance. Some owners obtain "investigative reports," which are reports based on personal interviews concerning a person s character, reputation, personal characteristics, and lifestyle. If such reports are obtained, there are additional requirements. These include (1) giving written notice that you may request or have requested an investigative consumer report; and (2) provide a statement that the person has a right to request additional disclosures and a summary of the scope and substance of the report. These requirements are covered under 15 U.S.C. 1681d(a) and (b) and are very strict. Landlords rarely use reports of this type and they are not generally recommended.   Disposal of Consumer Reports The FTC Disposal Rule ("Disposal Rule" of the Fair and Accurate Credit Transactions Act of 2003, known as the FACT Act, 69 Fed. Reg. Reg. 68690) requires that when you are done using a consumer report, the report, and any information obtained from it, must be securely disposed of. Any business or individual who uses a consumer report for a business purpose is subject to the requirements of the Disposal Rule. Under federal law, landlords must take special care that consumer reports are stored in a secure place where only those who "need to know" have access. In addition, landlords must carefully dispose of consumer reports when they are done with them. Disposal can include burning, shredding or pulverizing paper reports and destroying or erasing electronic files. This portion of the FACT Act was passed in order to deal with increasing identity theft. It applies to every landlord who obtains a consumer report, no matter how small the rental operation may be. Recommendations for Handling Consumer Reports Maintain applicant, tenant, and employee files in a locked cabinet. Only employees who need to know the information should have access to the files. Develop a policy regarding the point at which a consumer report is no longer needed. The Act requires that the reports, and any information obtained from them, be disposed of when they are no longer needed. Many landlords are unaware of this requirement. The question for landlords is "When is the report no longer needed?" Such reports may be essential in refuting a fair housing claim, and under federal law, such claims must be filed within two years of the claimed discrimination, but some states set longer periods. I recommend that the credit reports be retained for at least two years after a resident moves in, but check with your attorney before actual disposing of the records. Establish a system for destroying old consumer reports. Establish a purge date for every applicant for whom a consumer report is pulled and set up a tickler system to remember the deadline. Choose an effective disposal system. The Disposal Rule requires you to choose a level of document destruction that is reasonable in the context of your business. For example, a landlord with a few rentals is probably fine with an inexpensive shredder, but a multi-property operation may want to contract with a disposal service. Decide how to deal with computer files. Reports stored on your computer, BlackBerry, IPhone, or other device, or information derived from them, must also be kept secure and deleted when no longer needed. There are utility programs that can completely remove, or "wipe" the data; such programs remove not only the directory, but the text as well. The Disposal Rule has significant penalties for landlords who willfully disregard the law - i.e., those who know the law but refuse to follow it. Landlords may be liable for a tenant s actual damages (e.g., the cost of covering a portion of a credit card s unauthorized use), or damages per violation of $100 to $1,000, plus attorney s fees and costs of suit, plus punitive damages. The FTC and state consumer agencies can also enforce the Act and impose fines. The key for landlords is to develop a company-wide disposal plan and make sure all properties are aware of how it should be implemented. While enforcement actions in this area of law are rare, it is still a good practice to ensure the security of applicant/tenant information.