It is a difficult choice for a victim of domestic violence to leave an abuser, and when living in rental housing, obligations under the lease can make the decision even more difficult. The impact of domestic violence extends well beyond physical and emotional harm to the victim. The Federal Violence Against Women Act (VAWA) and state statutes facilitate the victim’s escape from a violent home.
PROBLEMS FACED BY VICTIMS OF ABUSE
Moving takes the victim out of the dangerous environment, but may result in a struggle to maintain basic human needs. Moving out of rented housing often involves the victim breaking a lease. Traditionally, even if the victim vacates the property, there remains a contractual obligation to pay rent. Failure to pay rent may result in the landlord filing an eviction or other action to recover the unpaid rent. Joint liability under the lease may mean that the victim will have to face the abuser in court.
Aside from rent obligations, domestic violence can affect the victim’s compliance with other terms in the lease. Victims who stay with an abuser run the risk of being evicted for the criminal activity and repeated police calls that can be associated with domestic abuse. Violent struggles in the home can also result in damage to the premises for which the landlord may hold the victim liable. The victim’s problems can even extend beyond the current tenancy. If the landlord files an eviction or other action against the victim, the resulting court record may make it difficult for the victim to find safe, affordable housing.
As discussed below, victims of domestic abuse are afforded protections under state and federal laws. However, victims do not always identify themselves as victims. It is important for the housing attorney to spot signs of domestic abuse in order to invoke these protections.
Practice Tip: Ask questions and fully investigate the grounds of a landlord’s case to determine whether domestic violence is an underlying factor, manifesting as a complaint against the tenant of
- criminal activity
- police visits
- property damage
- unauthorized occupants, or
- nonpayment of rent.
At both the state and federal level, there is some relief available to help victims of domestic violence escape dangerous rental housing. VAWA, as amended, applies only to housing involving federal funding, including public housing, the housing choice voucher program, and project-based Section 8, among others. People living in private housing must rely on state laws or negotiate with their landlords.
VAWA’s scope aims to ensure that victims of domestic violence and their families can maintain housing. VAWA protects victims of domestic violence, dating violence, or stalking, who live in federally funded housing or who are applying for federally-funded housing. The act’s protections extend to immediate family members of the victims as well.
Landlords cannot evict a victim for incidents of actual or threatened domestic violence, dating violence, or stalking unless the landlord can show that allowing the victim to remain would pose an actual and imminent threat to the safety of others. Also, the landlord cannot evict the victim for criminal activity directly related to such violence. The landlord can still evict the victim for unrelated criminal activity or lease violations, but cannot hold the victim to a higher standard than others because of the domestic violence. The victim can raise VAWA’s protections as a defense to an eviction action, but, to avoid the court case altogether, it may be prudent to invoke the protections as soon as the victim has notice of the landlord’s intent to file an eviction action. The victim can write an explanation to the landlord that addresses the landlord’s grounds for eviction and ties them to the domestic abuse.
Practice Tip: When your client is a victim or an immediate family member of a victim, search for connections between the domestic violence and the grounds for eviction. For example, the client may have been arrested and charged with an assault, but upon further investigation, she had been acting in self-defense against the abuser. Establishing this connection could save the client from eviction.
VAWA gives the victim some options with regard to modifying or terminating the lease.
- Bifurcating the Lease: One option is for the landlord to bifurcate the lease and evict the abuser, keeping the victim in the premises. The victim and remaining family members can attempt to renegotiate the terms of their lease with the landlord in order to stay in the home. The victim will have to provide proof of the violence to the landlord. This can be as simple as offering the victim’s certification of the situation, but can also include providing copies of police or court records, restraining orders, or other proof. The landlord is required to keep such information confidential. Since the abuser is losing a federal interest, due process requirements will apply.
- Terminating the Lease: In a tenancy under the Section 8 voucher program, the victim may be able to terminate the lease, retain the voucher, and transfer to a different location. Section 8 rules limit the ability for tenants to move, with rules against mid-lease moving and limiting the portability of a voucher. VAWA provides an avenue around these rules, allowing the victim to leave and find safer housing in a location unknown to the abuser.
Practice Tip: While VAWA offers protections for victims of domestic violence, it also offers legal methods for landlords to evict abusers. Keep this in mind when advising landlords.
APPLYING FOR FEDERALLY FUNDED HOUSING
In addition to protecting victims living in federally funded housing, VAWA protects victims who are applying for federally funded housing. A federally funded landlord cannot reject an applicant because he or she is a victim of domestic violence, dating violence, or stalking. To assert this protection, the victim must know the grounds for denial and be able to connect them to the status as a victim. The victim can provide written notice to the prospective landlord that the denial is because of the incidents of domestic violence. Again, any proof or explanation about the violence is confidential, and the landlord cannot release the information without the victim’s consent.
Practice Tip: The connection between the domestic violence and the reason for denial of the application may not be apparent. Prior evictions, criminal activity, or landlord claims of unpaid rent could be grounds for denial, but they may be the result of prior instances of domestic violence. Search for a connection and assert it to the landlord.
Minnesota allows a victim of domestic abuse to terminate the lease and leave the premises, subject to some important qualifications. Minn. Stat. § 518B.01 Subdiv. 2 (a) defines domestic abuse as when a household member does the following against a family member or household member:
- causes physical harm, bodily injury or assault;
- inflicts fear of imminent physical harm, bodily injury, or assault; or
- commits terroristic threats, criminal sexual conduct, or interference with an emergency call (offenses defined by specific statutes).
This solution under state law is available to victims in all forms of rental housing. It has strict requirements so, unless the victim has complied, it is not a viable defense to an eviction action or a landlord’s claim of rent.
Under Minn. Stat. § 504B.206, a tenant who is a victim of domestic abuse who fears imminent domestic abuse to the tenant or to the tenant’s minor children may terminate a lease after providing advance written notice to the landlord.
The written notice must state that:
- the tenant fears imminent domestic abuse from a person named in an order for protection or no contact order;
- the tenant needs to terminate the tenancy; and
- the specific date the tenancy will terminate.
The victim must deliver the notice by mail, fax, or in person prior to the termination date, along with a copy of the order for protection or no contact order. Note that under state law the victim must have an order for protection or no contact order; without one, this statute will not excuse obligations under the lease. The disclosure is confidential, but the landlord may be able to use it in an eviction action or a claim for unpaid rent or damages. In addition to providing notice, the victim must pay the full rent for the month encompassing the termination date and one additional month’s rent prior to the termination date. When fully compliant with the statute, the victim is relieved of obligations under the lease. Any remaining tenants are still liable under the lease.
Practice Tip: While exact compliance is required to claim statutory protection, you may be able to negotiate with the landlord, using similar terms that are more attainable for the client. Be sure to address co-tenant liability, if applicable.
- Law Help MN – Factsheets H-22 “Subsidized Housing Rights for Victims of Domestic Violence” and H-23 “Victims of Domestic Violence: Your Rights in Breaking Your Lease”.
- ProJusticeMN – CLE materials for “Using VAWA to Get and Keep Subsidized Housing CLE” presented by Christy Snow-Kaster from Central Minnesota Legal Services and Dorinda Wider from Legal Aid Society of Minneapolis.
- Legal Momentum – “Housing Rights for Survivors of Domestic Violence Living in Public Housing or Using Vouchers”.