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