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EspañolUnder what circumstances can landlords evict tenants who are survivors?
Public housing authorities (PHAs) and owners can still evict tenants who are survivors if they can demonstrate that there is an “actual and imminent threat” to other tenants or employees at the property if the survivor is not evicted.1 The VAWA statute currently does not define “actual and imminent threat,” but, importantly, the U.S. Department of Housing and Urban Development (HUD) defines the term in regulations. HUD regulations define “actual and imminent threat” as referring to a physical danger that is real, would occur within an immediate timeframe, and could result in death or serious bodily harm. Factors considered include:
- the length of time of the risk;
- the nature of the potential harm and how severe it is;
- the likelihood that the harm will happen; and
- the length of time before the harm would happen.2
The regulations further state that evictions should only occur if there is no other action to be taken that would reduce or eliminate the threat. Examples of other actions include transferring the survivor to another property or barring the person causing harm from the premises.3 It is recommended that you speak with a lawyer immediately for advice if you are sued for eviction, as there may be additional federal, state, and local protections that may also apply in your case.
The U.S. Department of Agriculture (USDA) has also adopted the “actual and imminent threat” standard for evictions in Rural Development housing programs covered by VAWA.4
1 34 USC § 12491(b)(3)(C)(iii); 24 CFR § 5.2005(d)(3)
2 24 CFR § 5.2003
3 24 CFR § 5.2005(d)(4)
4 See U.S. Department of Agriculture, 3/15/21 memo
If the abuser and I are both on the lease, can the abuser be evicted from public housing or Section 8 housing?
If you and the abuser are both on the lease, the abuser can be evicted from public housing or Section 8 housing while you remain. A public housing authority (PHA) or landlord can divide up a lease, known as “bifurcating” a lease, to evict the perpetrator and allow the survivor to stay. VAWA also offers protection for tenants remaining in housing after lease bifurcation. If the individual who is evicted is the sole tenant eligible to receive the housing assistance, the PHA or landlord must provide the remaining tenant an opportunity to establish eligibility, or a reasonable time to move or establish eligibility for another covered housing program.1
1 34 USC § 12491(b)(3)(A)-(C)
Will my Section 8 voucher be terminated if the abuser is evicted from the home we share?
Under VAWA, generally survivors cannot be terminated from a covered federal housing program, including the Section 8 Housing Choice Voucher program, for the violence committed against them, if they otherwise qualify for the housing. VAWA states that a housing authority can terminate Section 8 Housing Choice Voucher assistance to the abuser while preserving assistance to survivor. This is called a family breakup. In the Section 8 Housing Choice Voucher program, if a family breakup results from violence or abuse, the public housing authority (PHA) must ensure that the victim keeps the housing assistance.1
Many housing authorities prohibit Section 8 voucher tenants from moving during the first year of their lease, or from moving more than once during a 12-month period. However, VAWA provides an exception for victims of domestic violence, dating violence, sexual assault, or stalking.2
1 24 CFR § 982.315
2 24 CFR § 982.354(c)(2)(iii)
If my landlord tries to evict me because of a lease violation, such as a nuisance, what should I do?
If you are sued for eviction, contact your local legal services office immediately. Getting a lawyer to represent you provides the best chance of being able to access any legal protections that apply to you. Importantly, VAWA does not prevent you from being evicted for lease violations that are unrelated to the abuse; however, the landlord cannot treat you worse than other tenants because you are a survivor.
If the violation of the lease is related to domestic violence, dating violence, sexual assault, or stalking that was committed against you, VAWA applies. This includes lease violations that do not specifically refer to domestic violence, dating violence, sexual assault, or stalking but are still related to the abuse, such as being evicted for “criminal activity,” when such criminal activity is the violence itself, or being evicted for a “nuisance” or “disturbance” for calling the police because of the abuser’s actions.
To claim VAWA protections, you should first inform the landlord that the violation is related to domestic violence, dating violence, sexual assault, or stalking. It’s best to inform the landlord in writing, such as via email, so that you have proof for your own records. The landlord is free to take you on your word or ask for proof (“documentation”). Any request for proof by the landlord must be in writing, and you must provide proof within 14 business days from the requested date. (When calculating “business days,” do not count weekends and holidays.) If you need additional time, you can request an extension.
Options for documentation include any of the following:
- the HUD VAWA self-certification form, Form HUD-5382;
- police, court, or administrative records, such as a protection order; or
- a statement from a third party, such as a victim service provider, medical professional, mental health professional or attorney, signed by both the third party and the victim under penalty of perjury.1
You can pick any of the above types of documentation to give the landlord – it’s your choice. Generally, the landlord cannot require that you provide more than one type of documentation.
However, if the abuser also produces similar proof, the landlord can, in this limited instance, refuse to accept the HUD VAWA self-certification form (option 1 above) and require additional documentation. For example, if you and the abuser both provide VAWA self-certification forms, the landlord can tell both of you that in order to claim VAWA protections, someone needs to provide an additional form of proof from either option 2 or 3 listed above and then you would get to choose which type of proof to provide. Importantly, the landlord cannot ever require that you get a protective order or call the police in order to be protected by VAWA.
The landlord can also accept any other form of documentation not on this list if the landlord is willing to do so.
1 34 USC § 12491(c)(1)-(3)
