strategies for protecting survivors’ housing rights
TRANSCRIPT
Strategies for Protecting Survivors’ Housing
Rights
Community Legal Aid
Community Legal Aid: Who We Are
Single provider of legal aid services in central and western Massachusetts
Serves residents of Berkshire, Franklin, Hampden, Hampshire, and Worcester counties
Eligibility: income up to 200% federal poverty guidelines or age 60 and older
Housing services:
Eviction defense
Foreclosure defense
Termination from Section 8 program
Elder housing
EA shelter cases
Eviction: The Basics
Only judge can evict
Landlord cannot use any “self-help” to evict
Without a court order, it is illegal for a landlord to:
Move belongings out of an apartment
Change locks
Shut off utilities
Interfere with the use of the apartment
Eviction: General Requirements
● Landlord must properly terminate the tenancy
○ Notice to quit
○ Tenant does not have to move when the notice to quit expires
● Landlord must get permission from judge to take possession
○ Summary process (eviction) lawsuit
○ Timeline: Notice → Summons and Complaint → Answer and Discovery
● Tenant can raise defenses and counterclaims
Types of Subsidized Housing
What is a rent subsidy?
Types of subsidies:
Mobile Section 8
Mobile MRVP
Project-based Section 8
Public Housing - state and federal
Landlord needs “good cause” to evict
If evicted from project-based or public, lose subsidy
If evicted and use mobile voucher, eviction can be grounds for subsidy termination
Federal Housing Law
Fair Housing Act
Violence Against Women Act (VAWA)
HUD regulations
Fair Housing Act
Prohibits discrimination in sale or rental of housing on the basis of race, color, religion, sex, handicap, familial status, or national origin
Applies to most dwellings, including private housing
Does not expressly prohibit discrimination on the basis of domestic violence (domestic violence survivors not a protected class)
Three theories of application to survivors:
Disparate treatment
Disparate impact
Mental disability/reasonable accommodation
Fair Housing Act:
Disparate Treatment and Disparate Impact
Disparate treatment: female tenants treated differently than similarly-situated male tenants
Actions based on stereotypes about survivors
Harassment, refusal to rent, stated preference
Disparate impact: gender-neutral policy that has a harsher impact on women
Need statistics
FHA: Reasonable Accommodation
Person with disabilities: 1) has a physical or mental impairment that substantially limits one or more major life activity; 2) has a record of such impairment; or 3) is regarded as having such an impairment
Reasonable accommodation: change in policy, practice, or service that may be necessary to allow person with a disability the equal opportunity to use and enjoy a dwelling
Request accommodation to begin interactive process
Accommodation cannot cause undue burden or fundamentally alter the nature of the program
FHA: Reasonable Accommodation
Assistance or emotional support animal
Live-in aide
Transfer units or move
Stop termination of subsidy
Stay or stop eviction proceedings
RA can be requested at any time
Violence Against Women Act (VAWA)
Explicit protections to survivors of domestic violence, dating violence, sexual assault, or stalking
Applies to “affiliated individual” of the victim
Prohibitions on denying admission to voucher program or terminating assistance or evicting
On the basis of domestic violence
Applies to public housing authorities, private landlords accepting Section 8 vouchers or providing project-based Section 8 housing, and all others operating federally-subsidized housing programs
VAWA: Evictions
Public housing authority or landlord providing Section 8 subsidized housing may not evict because tenant is a victim of domestic violence
Examples
VAWA: Evictions
Public housing authority or landlord providing Section 8 subsidized housing may evict domestic violence survivor for unrelated reasons
Examples
VAWA: Protections in Section 8
Portability
Tenants with Section 8 vouchers can use their rental assistance anywhere in the country there is a public housing authority that administers vouchers
Policies restricting time or frequency of portability do not apply if a family must relocate due to domestic violence
VAWA: Protections in Public Housing
VAWA 2013: HUD must adopt emergency model transfer plan for housing authorities
Transfers to safe and available unit
1) requested by tenant, and
2) (a) tenant reasonably believes threatened with imminent harm if stays, or
(b) tenant is the victim of sexual assault that occurred in premises within the prior 90 days
VAWA: Housing Protections
Bifurcation: evict or terminate Section 8 assistance to abuser while allowing the survivor to remain
If removed tenant was the sole tenant eligible to receive assistance
opportunity to establish eligibility
If remaining tenant not eligible
reasonable time to find new housing or to establish eligibility under another covered housing
VAWA: Documentation
Landlord or housing authority can request proof
14 business days to provide proof
HUD-approved certification form
Written statement by a victim services provider, medical professional, or an attorney
Police or court record
VAWA: Confidentiality
Information kept confidential unless
Landlord or housing authority is given permission;
Landlord needs to disclose in eviction proceeding; or
A court orders disclosure
VAWA: Notice of Rights
Public housing authorities, owners, and managers must give notice of VAWA rights to applicants and tenants:
Time of denial of admission,
Time of admission, and
With any notice of termination or eviction
VAWA: Limitations
Does not apply to private dwellings
Private landlords can deny application or evict
Does not address program violations with indirect link to abuse
Abuser refuses to pay rent
Massachusetts Law: Protections
A landlord may not refuse to rent to a survivor because she terminated a prior lease (left her apartment) because of domestic violence
A housing subsidy provider may not deny assistance because a tenant terminated a lease (left her apartment) because domestic violence
Massachusetts Law: Changing the Locks
Landlord must change locks at the request of the survivor
May ask for proof of domestic violence
Landlord may charge the tenant
If the threat is made by a tenant, the landlord can deny this tenant a key
If there is protective order or a court record indicating a threat
If the landlord does not change the locks within 2 business days, the tenant may change the locks without permission
Massachusetts Law: Lease Termination
Tenant may terminate lease or tenancy (move out) upon written notification to the landlord of domestic violence
Notification must be within 3 months of the assault or if there is an imminent fear of violence
Landlord has the right to ask for proof
If the tenant fails to leave the premises within 3 months, notice is void
Notice must be kept confidential
Massachusetts: Priority
Waitlists for subsidized housing
What is a priority?
Housing programs funded by the state (state public housing and MRVP) give priority to applicants facing domestic violence or abuse
Proof of domestic violence and proof of threat to safety
Priority does not mean immediate
Must be eligible
Massachusetts: Priority
Call the housing authorities and ask about priorities
Other priorities may apply
Appeal wrongful denial
Be prepared to show link
Example
After admission, continue working with housing authority
Can be evicted for good cause
Example
Hypothetical
Resources
Mass Legal Help: www.MassLegalHelp.com
National Housing Law Project: https://www.nhlp.org
Maintaining Safe and Stable Housing for Domestic Violence Survivors
Mass Legal Services: http://www.masslegalservices.org
Legal Tactics: Tenants' Rights in Massachusetts