Dealing with Domestic Violence: How to Avoid Fair Housing and Other Legal Traps
Look at your watch and count off 60 seconds. If the Centers for Disease Control (CDC) averages hold true, by the time you’re done, 20 people in the U.S. will have suffered physical abuse at the hands of an intimate partner. What people do to each other in their own homes is directly relevant to you if you’re in the business of renting housing. That’s because, of the more than 10 million cases of domestic violence reported each year, 77 percent occur in or near the victim’s home.
Implication: Sooner or later, domestic violence will touch your community. Domestic violence is a violent crime. And as a landlord, you’re obligated to take steps to ensure the safety of your tenants and community. The problem is that while they might appear to be legitimate safety measures, the things you do to prevent domestic violence at your community can get you into all kinds of legal trouble. Violations are most likely to occur when:
- You try to evict a tenant because of domestic violence issues;
- You refuse to rent to applicants because they’re victims of domestic violence;
- A tenant wants to terminate a lease early because of domestic violence; and
- Tenants want you to evict somebody to protect them from domestic violence.
This month’s lesson will help you deal with the sensitive and subtle issue of fair housing and domestic violence. First, we’ll point out the liability risks that arise when landlords, leasing agents, and building staff get caught in the middle of tenants’ domestic violence disputes. Then, we’ll set out the seven things you should do to avoid stepping on the landmines. When the lesson ends, you can take the Coach’s Quiz requiring you to apply the lessons to real-life situations so you can test and reinforce what you’ve learned.
WHAT DOES THE LAW SAY?
The federal Fair Housing Act (FHA) makes it illegal to discriminate on the basis of race, color, religion, sex, familial status, national origin, or disability. Courts and the U.S. Department of Housing and Urban Development (HUD) have long recognized that the FHA also covers domestic violence victims even though they aren’t on the list of protected classes. Thus, in 2011, the HUD Deputy Assistant Secretary for Enforcement and Programs issued guidance (the “HUD Guidance”) stating that discrimination against victims of domestic violence “because of their history or the acts of their abusers” may violate the FHA.
The reason for this is simple: Statistics show that 85 percent of all domestic violence victims are women. It’s also well documented that other protected classes experience disproportionately high rates of domestic violence. For example:
- African-American women experience intimate partner violence at a rate 35 percent higher than that of white females, and about 2.5 times the rate of women of other races;
- Native American women are victims of violent crime, including rape and sexual assault, at more than double the rate of other racial groups; and
- Women of certain national origins and immigrant women also experience domestic violence at disproportionate rates.
Result: Discriminating against domestic violence victims is a form of sex—and perhaps racial and national origin—discrimination. Federal courts have reaffirmed this principle in many cases. Examples:
- Vermont court rules that a tenant who was evicted due to the landlord’s concern that her violent ex-husband would attack her in the apartment had a valid discrimination claim, paving the way for a settlement that was favorable to the tenant [Bouley v. Young-Sabourin, 394 F. Supp. 2d 675 (D. Vt. 2005)]; and
- Pennsylvania court refuses to dismiss discrimination claims of a tenant seeking to end her lease early to get away from her ex-husband’s stalking simply because the FHA doesn’t list domestic violence victims as a protected class [Butler v. Sundo Capital, LLC, 2021 U.S. Dist. LEXIS 171736]; and
- Tenant claiming she was evicted because of the property damage inflicted by her violent ex-boyfriend has grounds to sue for FHA sex discrimination based on being a domestic violence victim, says Oregon court [Wilson v. Guardian Management, LLC, 383 F.Supp.3d 1105 (2019)].
The 3 Ways of Proving Domestic Violence-Based Discrimination
To manage liability risks, it’s important to know not just that domestic violence can be grounds for housing discrimination but what alleged victims must do to prove their case. There are three basic approaches:
1. Direct evidence. Discrimination based on domestic violence is easiest to prove when there’s direct evidence, such as when the landlord enforces policies that explicitly treat women differently from men. Such policies are often based on gender stereotypes about abused women, explains the HUD Guidance.
Example: A landlord tells a female domestic violence victim that he doesn’t accept women with a history of domestic violence as tenants because they “always go back to the men who abuse them.” This statement is direct evidence of discrimination based on sex and gender stereotypes about abused women.
2. Unequal treatment. In most cases, there’s no smoking gun and alleged discrimination victims must prove their case via indirect evidence. One way to do this is to show unequal treatment. In the context of domestic violence, this may occur when a landlord treats victims of domestic violence differently and less favorably than it does victims of other crimes. Another form of unequal treatment is to establish a policy that’s gender-neutral but enforce it selectively. Example: A landlord enforces its policy of evicting households for criminal activity only against women who’ve been abused by their partners and not against men who engage in domestic violence.
3. Disparate impact. The third and most common approach taken by alleged domestic violence victims is what’s called “disparate impact”—that is, policies and practices that appear neutral on their face but have the effect of discriminating against members of a protected class. Thus, for example, a blanket policy of refusing to rent to anybody who’s ever engaged in or been the victim of domestic violence seems neutral but has the effect of excluding women and other protected classes that statistics show experience domestic violence at disproportionate rates, as compared to white males.
Other Relevant Laws
The FHA is only one of the laws that landlords must navigate in dealing with domestic violence.
Violence Against Women Act (VAWA). In 1994, the federal government adopted the VAWA, banning discrimination against victims of domestic violence, dating violence, sexual assault, or stalking. Originally, the VAWA applied only to public housing and Section 8 voucher and project-based programs. But in 2013, Congress expanded it to cover Low Income Housing Tax Credit properties and other HUD programs. Important caveat: The VAWA applies only to federally assisted and not private conventional housing.
Key Provisions of the VAWA
If you do provide federally assisted housing, you are subject to the VAWA and need to be aware of its key provider requirements. Highlights:
- Bans denying admission based on an individual’s status as a victim of domestic violence, dating violence, sexual assault, or stalking;
- Bans 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;
- Bans treating incidents or threats of abuse as serious or repeated lease violations or any other “good cause” to evict;
- Requires honoring of abuse protection orders and other court orders (such as divorce decrees) that address access to or control of the unit;
- Allows for lease bifurcation if both the victim and perpetrator in a domestic violence situation are parties to the lease, so as to evict the perpetrator and allow the victim to remain;
- Allows for requesting documentation that the alleged victim is a victim of domestic violence, dating violence, sexual assault, or stalking; and
- Requires keeping the above information confidential.
State and local fair housing laws. Remember that landlords are subject not just to the FHA but also to state and local fair housing laws. At least four states (Illinois, Rhode Island, Vermont, and Wisconsin) and the District of Columbia expressly list victims of domestic violence as a protected class. At least five other states—Arkansas, Indiana, North Carolina, Oregon, and Washington—include language banning housing discrimination against domestic violence victims in their landlord-tenant laws.
In addition, as we’ll discuss under Rule #4 below, many states have specific rules that landlords must follow when dealing with tenants who are victims of domestic violence that are akin to the VAWA rules covering federally assisted housing.
Crime-free rental housing and nuisance property ordinances: The other laws that come into play when handling domestic violence situations are local nuisance ordinances requiring landlords to keep their properties “crime-free” to ease the burden on local police. These laws may actually exert pressure on landlords to exclude and evict people involved in domestic violence, just what the FHA prohibits. And, as we’ll see, following local nuisance ordinances in no way insulates landlords against fair housing liability.
7 RULES FOR COMPLYING WITH
DOMESTIC VIOLENCE PROTECTION LAWS
Now let’s turn to how these rules play out in actual situations likely to arise at your leasing offices and community. There are seven rules to follow to ensure compliance when dealing with these and other situations exposing you to liability under domestic violence protection laws.
Rule #1: Don’t Treat Domestic Violence Victims and Perpetrators the Same Way
The starting point is to ensure that your leasing agents and staff recognize that domestic violence victims aren’t radioactive and that denying them housing because of their involvement in domestic violence is tantamount to discrimination on the basis of sex and perhaps race and national origin as well. Yes, domestic violence is a form of criminal activity and you have an obligation to ensure the safety of your community. But you can’t treat the victims the same way you treat the victimizers. Period.
A common example is to reject applicants after learning they’ve been repeatedly assaulted by an intimate partner, because you’re afraid the perpetrator will follow the victim to your own community.
Example: A landlord allegedly wouldn’t let a female prospect apply for a rental upon finding out that she had a domestic violence protection order against an individual. The Kentucky Human Rights Commission found probable cause to believe the landlord committed sex discrimination. Rather than risk an administrative trial, the landlord agreed to pay $5,000 and, more significantly, submit to three years of compliance monitoring to settle the case [Jones v. Feldman, April 2013].
Rule #2: Beware of “Zero Tolerance” Policies
Many landlords have adopted “zero tolerance” policies providing for automatic and immediate eviction of tenants who commit or allow others under their control to commit violent crimes in their apartments. On the surface, zero tolerance policies seem to be defensible as both a statement of moral principle and a practical strategy for complying with the crime-free and local nuisance laws we discussed earlier. But in the context of fair housing, they’re highly problematic. As the HUD Guidance notes, “zero tolerance policies, under which the entire household is evicted for the criminal activity of one household member” raise red flags of housing discrimination because of their disparate impact on women and other protected classes disproportionately impacted by domestic violence.
Example: Just 72 hours after having to flee her apartment to escape the assault of her ex-boyfriend, a Mississippi tenant was socked with another cruel blow, this time from her landlord in the form of a notice citing the “zero tolerance” provision of the lease and giving her six days to clear out. HUD investigated and determined that the zero tolerance policy amounted to disparate impact sex discrimination and charged the landlord with an FHA violation, forcing the landlord to make a difficult choice between paying money to settle the case and risking a trial [HUD v. Escatawpa Village Associates, L.P., February 2012].
Coach’s Tip: Zero tolerance policies at private housing communities mirror the so-called “one-strike” rules allowing for the eviction of tenants for criminal activity by their household members or guests at public and federally assisted housing communities. As noted above, VAWA bans those communities from applying the one-strike policy to evict domestic violence victims for the violent acts of their partners. But since VAWA doesn’t apply to private housing, domestic violence victims must instead rely on the FHA or state and local fair housing laws for protection against zero tolerance evictions.
Rule #3: Don’t Punish Domestic Violence Victims for Reporting Abuse
Another variation on the don’t-punish-the-victim theme is to take action against tenants for calling the police or seeking protection during a domestic abuse emergency. According to domestic violence victim advocacy groups, women faced with serious and even life-threatening violence may be reluctant to call the cops because they don’t want to risk losing their lease.
Example: The father of a Michigan tenant’s child busted into the tenant’s apartment and attacked her on repeated occasions. Each time, the tenant called the police. According to the American Civil Liberties Union (ACLU), the landlord, the Inkster Housing Commission, warned that she’d be evicted if she called the cops again. But when the abuser returned, the tenant feared for her life and called the police. Sure enough, the landlord made good on its threat, cynically characterizing the abuser as the victim’s “guest” and seeking to evict her for allowing a guest to engage in violent activity in the unit and disturbing the peace. The ACLU sued under the VAWA, FHA, and Michigan fair housing law to stop the eviction and force the landlord to change its policy.
Rule #4: Honor Victims’ Rights Under State Domestic Violence Protection Laws
It’s critically important to determine whether your state and city have adopted any laws affording special housing protections to victims of domestic violence. These laws largely mirror the protections for victims of domestic violence that VAWA provides for tenants of federally assisted housing, and it’s highly advisable to consult an attorney to help you navigate a compliant course. State and local protections typically include:
Protection from eviction. Some states have adopted laws protecting victims of domestic violence (and in some cases, sexual assault, stalking, and other forms of abuse) against evictions or nonrenewal of leases due to the criminal acts or lease violations committed by their abusers. To use this protection, tenants generally must provide documentation such as a protective order or police report verifying that they’re the victim of abuse.
Bifurcated eviction. Although you can’t evict the victim, you may have to evict the abuser, assuming he’s currently living in the same unit. When both are parties to the lease, state and local domestic violence may allow you to “bifurcate” (a fancy word for splitting into two) the lease, so that you can evict the perpetrator while allowing the victim to stay. Bifurcation may also be an option when the perpetrator is a household member whose name isn’t on the lease.
Change the locks. Changing a tenant’s locks without permission is normally considered a form of illegal self-help. But state laws may actually not only allow but require you to do so (or allow the tenant to change the locks herself) to protect tenants from domestic abuse. You generally have to act within a short time after receiving notice and documentation from the tenant.
Coach’s Tip: Another thing you can do to protect a tenant and keep a perpetrator of domestic violence off your property is to go to the courthouse and get your own restraining order against him. This would give you the right to call the police and have the perpetrator arrested for violating the restraining order if he shows up on the property. Landlords are often able to get restraining orders against tenants they evict for engaging in domestic violence, but you should consult your attorney about the filing rules in your jurisdiction.
Let victim out of lease. Like VAWA does for federally assisted tenants, state and local laws require landlords to allow tenants to end their lease early without penalty to escape a violently abusive relationship. Tenants must notify the landlord they they’ve suffered domestic violence, and provide documentation, within a specific period of time after an incident occurs.
Example: A domestic violence victim told her landlord that she was being stalked by her ex-husband and wanted to end her lease early. The landlord said no. And when she abandoned the apartment anyway, he sued her for accelerated rent. So, the tenant sued and the Pennsylvania federal court ruled that she had a legally valid claim for discrimination and should get the opportunity to prove it at trial. There was evidence that the lease clause requiring tenants to pay accelerated rent if they terminate early had a disparate impact on women, the court reasoned [Butler v. Sundo Capital, LLC, 2021 U.S. Dist. LEXIS 171736].
Rule #5: You Can Require Documentation of Domestic Violence
Recognize that the special protections that we discussed in Rule #4 apply only if tenants provide some kind of proof that they’ve actually been the victim of domestic violence (assuming, of course, that you don’t already know this from previous incidents or other indications). Although rules vary, landlords can generally ask tenants seeking domestic violence protection for:
- A domestic abuse/sexual assault/stalking restraining order against the abuser;
- Evidence of a criminal charge against the abuser for domestic abuse/sexual assault/stalking for the tenant, their child, or a household member;
- A condition of release ordering the abuser not to contact the tenant, their child, or household member because of domestic abuse/sexual assault/stalking; and/or
- A protective order or letter from a “qualified third party,” such as a law enforcement officer, court employee, physician, nurse or other health care provider, counselor, clergy member, or crime victim advocate.
Coach’s Tip: Note that under VAWA, federally assisted properties can request documentation, but are not allowed to require “proof”—that is, third-party verification—of abuse, except in limited circumstances. For more information see, “Q&A: Requesting Documentation of Domestic Abuse Under VAWA.”
Rule #6: Maintain Victim’s Confidentiality
It should go without saying that the information that domestic violence victims provide you about their situation is highly sensitive and protected under the federal Health Insurance Portability and Accountability Act (HIPAA) and other privacy laws. That means you must limit access to a need-to-know basis and can’t disclose the information to staff, neighbors, tenants, and other third parties without the victim’s express written consent. That includes information about the victim’s current whereabouts. Exception: Disclosure without consent is allowed for certain narrow purposes, like where a law enforcement officer or court orders you to do so. Consult your attorney before disclosing confidential domestic violence information without consent.
Rule #7: Keep Good Records
Thorough and consistent documentation and record keeping is particularly important when dealing with domestic violence victims. You need good records to demonstrate compliance with all applicable federal, state, and local laws protecting victims of domestic violence. To guard against potential discrimination claims, establish and implement written policies and procedures governing the application process, tenant relations, community rules, lease renewals, and evictions. Also keep records documenting how you actually apply your rules, policies, and procedures to individual rental applicants and tenants.
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 document that your community acted appropriately and in compliance with applicable laws.
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|November 2021 Coach's Quiz