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Article | Review of VAWA FAQs | Part 1

article fair housing hud lihtc q & a rural development vawa Mar 23, 2022

As we announced HERE, the Violence Against Women Act was reauthorized in 2022. Then, we established HERE that VAWA housing procedures continued to apply during the time that funding wasn't officially authorized. This has led to us receiving a host of VAWA questions. In this series, we will revisit some of the VAWA basics through a series of FAQs that we've received.

HUD's explanation of its VAWA regulations provides guidance for HUD programs and a safe harbor for tax credit properties. In 2016, HUD published its final Rule for HUD properties covered by the Violence Against Women Act (VAWA) as reauthorized in 2013. This also includes the HOME multi-family housing rental program. In January of 2017, via an Administrative Notice, Rural Development (RD) essentially adopted the HUD regulations with a few minor adjustments to fit RD program rules. The only program covered by VAWA 2013 for which guidance was not issued is the Low Income Housing Tax Credit program. Because of technical differences in the role of the IRS with respect to the tax credit as compared to HUD and RD for their housing programs, it is unlikely that any guidance will be forthcoming from the IRS. It appears that HUD's regulation and the explanation that HUD published in response to many comments that HUD has received provide a fairly complete framework for tax credit owner/agents to carry out VAWA for their properties. Here we will discuss a series of questions that many owner/agents of affordable housing have regarding VAWA.

NOTE: The regulation can be found HERE and is referenced in these articles starting with "VAWA 2016 Fed.Reg." and then by page numbers on the PDF from the Federal Register found at the above link. The Rural Development follow-up can be found HERE.

Question 1 | Why does the HUD guidance and new forms consistently mention all four covered forms of violence (domestic violence, dating violence, sexual assault, and stalking) every time it mentions VAWA violence?

Answer | Many victims of a specific sort of violence may not realize that the violence they have experienced is covered under VAWA. For instance, victims of stalking may not think of themselves when they hear the term "domestic violence." As an education measure and to ensure that all victims and owner/agents are aware of VAWA rights, HUD consistently lists all four forms of VAWA-covered violence in their guidance and forms. (VAWA 2016 Fed.Reg. 80735)

NOTE: We wholeheartedly agree with listing the VAWA violence separately when dealing with the general public. For purposes of brevity in addressing informed owner/agents, however, we will refer to "VAWA violence" in these articles instead of listing the four violence types individually each time.

Question 2 | The national Housing Trust Fund (HTF) is not listed in the VAWA 2013 statute as covered by VAWA. Does VAWA apply to the HTF?

Answer | Yes. This is important, as many HTF properties are now coming online each year. Update: Although the statute in 2013 did not specifically require that VAWA be applied to properties funded with the HTF, the 2022 reauthorization now does. Even before that, though, HUD had exercised its regulatory authority to apply its VAWA Rule to the HTF. (VAWA 2016 Fed.Reg. 80732)

Question 3 | Are emergency shelters subsidized by HUD covered under VAWA?

Answer | The core VAWA nondiscrimination protections apply to emergency shelters subsidized by HUD, and individuals are not to be denied shelter because they are victims of VAWA violence. In the final rule, HUD added language to make the VAWA core protections apply to emergency shelters. However, other VAWA protections apply to rental housing, which generally involves a tenant, a landlord, and a lease specifying the occupancy rights and obligations of the tenant. These do not apply to shelters. (Fed.Reg. 80734)

Question 4 | Can an owner/agent require that victims produce third-party documentation of their status as victims to prove that they qualify for VAWA protections and emergency transfer if the owner/agent suspects fraud?

Answer | No. It is easy to understand why people who work in affordable housing would ask this question. Nearly everything must be verified with knowledgeable third parties, and the term "documentation" generally does not include self-certification. However, VAWA provides a marked difference in this regard. While an owner may require documentation of a victim's status, one of the documentation options is self-certification. What is provided is at the discretion of the victim, and not the owner/agent. "HUD interprets VAWA to require that housing providers accept self-certification if that is the form that a tenant or applicant provides." The only exception is "cases involving conflicting evidence." (VAWA 2016 Fed.Reg. 80741, 80763)

Question 5 | Are poor credit or criminal backgrounds something that an owner/agent has to consider as possibly protected for victims of VAWA violence?

Answer | It should not be ruled out that bad credit and criminal backgrounds may result directly from the fact that a person has been a victim of VAWA violence. A victim may seek protection from negative housing consequences as a result of such history. HUD interprets the term “on the basis” in VAWA 2013’s prohibitions against denying or terminating admission or assistance to include factors directly resulting from the domestic violence, dating violence, sexual assault, or stalking. HUD lists as an example "if an individual has a poor rental or credit history, or a criminal record, or other adverse factors that directly result from being a victim of domestic violence, dating violence, sexual assault, or stalking, the individual cannot be denied assistance under a HUD program if the individual otherwise qualifies for the program." To clarify this they added to the regulation that protections apply against negative actions taken "on the basis or as a direct result of the fact that the applicant or tenant is or has been a victim." [underlined emphasis ours] (VAWA 2016 Fed.Reg. 80729)

Question 6 | Does the victim or owner pay the costs to transfer units when a victim of VAWA violence requests an emergency transfer? I read in the draft of the HUD regulation that the owner was responsible. That could be a very expensive burden.

Answer | Transfers create costs related to utilities, packing and moving, damage repairs, painting, cleaning, inspections, lease execution and explanation and assuring housing eligibility. Responding to information provided by commentators on the high costs and complexity of transfers, HUD removed the requirement that owners pay for transfer costs from their final regulation. HUD says "housing providers will not be required to bear moving costs that tenants and their household members generally pay, including application fees and deposits, in addition to costs to physically move households and their belongings." (VAWA 2016 Fed.Reg. 80744)

Question 7 | In question 4, it was mentioned that we cannot require third-party documentation of a victim's status unless there is conflicting evidence. I have a lot of questions about this. What constitutes conflicting evidence? Who decides how far to take getting evidence when fraud is suspected?

Answer | You are not alone in asking questions like these. It is our experience that conflicting evidence generally presents itself when two residents of a property or unit self-certify to be victims of the other when faced with eviction. Beyond that, HUD realizes that there are a lot of unanswered questions and has not addressed them completely in the new Rule. HUD appreciates that there are several questions such as the above raised by commentators to the VAWA rule and will consider them in drafting future guidance to assist housing providers who receive conflicting evidence. (VAWA 2016 Fed.Reg. 80726) However, next, we can answer one question regarding situations with conflicting evidence.

Next in the VAWA FAQ review part 2 in June: "Is the 14 days to provide documentation business or calendar days? How about the 30 days if there s conflicting information?" ...and more!

Check it out HERE! The above topic is just one of many to be discussed at this year's Compliance Summit Events.