The Intersection of Housing, Domestic Violence, & Family Law
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PROTIMA PANDEY , BAY AREA LEGAL AID MELIAH SCHULTZMAN, NATIONAL HOUSING LAW PROJECT
2011 FAMILY LAW CONFERENCE What we’re covering today
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Brief overview of applicable family & housing law: Civil Code §§ 1941.5 & 1941.6: Lock changes Code of Civil Procedure § 1161.3: Eviction defense Civil Code § 1946.7: Early lease termination Fair housing protections for domestic violence survivors Violence Against Women Act (VAWA) housing protections Fam. Code § 2045-ex parte reliefs DVPA: Fam. Code, § 6321 and § 6340 Advocacy strategies
Applicable Housing Law
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SURVIVORS HAVE PROTECTIONS UNDER LANDLORD - TENANT LAWS, FAIR HOUSING LAWS, AND THE VIOLENCE AGAINST WOMEN ACT (VAWA) CC §§ 1941.5 & 1941.6: Lock Changes
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Lock change protections became effective 1/1/11: Landlord must change locks upon written request of the tenant within 24 hrs after the tenant provides documentation of domestic violence, sexual assault, or stalking. If landlord fails to change the locks, tenant may change the locks w/o landlord’s permission, notwithstanding any provision in the lease to the contrary Tenant must use similar or better locks, notify the landlord within 24 hrs, and provide landlord with a key Provisions apply only to leases executed on or after 1/1/11.
Lock Changes, cont’d
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2 separate sections on lock changes: Civil Code § 1941.5 applies if the victim does NOT live with the perpetrator Under this section, victim can use either police report or restraining order to document the violence. Civil Code § 1941.6 applies if victim & perpetrator live together Under this section, victim must have a restraining order excluding the perpetrator from the premises before requesting lock change.
CCP § 1161.3: Eviction Defense
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Code of Civ. Proc. § 1161.3: Became effective 1/1/11 Landlord cannot evict a tenant based upon an act of DV, sexual assault, or stalking committed against the tenant, BUT: Applies only if the tenant does NOT live with the perpetrator, AND Tenant must have either a restraining order or police report issued in the last 180 days Judicial Council is revising the unlawful detainer form answer so it can be used by a party to assert § 1161.3 as an affirmative defense. Judicial Council will also release jury instructions.
Revised Unlawful Detainer Answer
7 CCP § 1161.3: Exception
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If tenant already has used the § 1161.3 eviction defense, landlord can still evict if: Either of the following apply: Tenant allows the perpetrator to visit the property, OR Landlord reasonably believes that the perpetrator poses a physical threat to other tenants or to the right to quiet possession Landlord must give at least 3 days’ notice to the tenant to correct a violation of the above. Civil Code § 1946.7: Breaking the Lease
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The law applies to all landlords The law permits survivors of domestic violence, sexual assault, and stalking to terminate their leases upon 30 days’ written notice to the landlord Survivor may move anytime after providing notice. If unit is re-rented within the 30-day notice period, the survivor’s rent must be prorated Survivor has to pay rent for the 30-day period following the notice.
Civil Code § 1946.7 (cont’d)
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Along with written notice, survivor must provide the landlord with either a police report or restraining order issued in the past 60 days* *Under new law, will be 180 days as of 1/1/12 Existing law governing security deposits still applies—landlord is required to return the deposit within 21 days after survivor leaves If survivor does not have the required documentation, ask the landlord for an agreement to end the lease.
Civil Code § 1946.7: Practice Tips
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Most landlords are clueless, so be prepared with a copy of the law. Must act somewhat quickly—restraining order or police report must meet time restrictions. Can be difficult to recover deposit in cases where survivor has a roommate. Client has to pay rent for 30 days from notice. Many tenants don’t know their rights and are fleeing without providing notice. Fair Housing & DV: New HUD Guidance
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A recent memo from HUD’s Office of Fair Housing and Equal Opportunity sets forth the theories HUD will use to analyze discrimination against DV survivors when it receives administrative complaints. ―HUD is committed to using the Fair Housing Act to protect victims of abuse from unlawful denial of access to decent, affordable housing.‖ – Asst. Secretary John Trasviña.
Fair Housing and Domestic Violence: Theories
13 DV survivors aren’t a protected class under the FHA or most state fair housing laws, so advocates have used sex discrimination theories. Disparate impact: Has been used to challenge neutral policies that have the effect of treating DV survivors more harshly. Ex: Failing to make an exception to a ―zero tolerance for violence‖ policy for a DV survivor Disparate treatment: Has been used to challenge actions that were taken against a tenant because of sex-based stereotypes regarding DV. Ex: ―I never rent to abused women because they always go back to the men who beat them.‖ It may strengthen the survivor’s case to raise both theories in tandem.
Disparate Impact Analysis
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In its memo, HUD states there are 4 steps to a disparate impact analysis: Discriminatory policy, practice, or procedure Was the policy, practice, or procedure consistently applied? Does the policy, practice, or procedure have a disproportionate impact on women who are victims of domestic violence? Is there a substantial business justification with no less discriminatory alternative? Recent fair housing-DV advocacy
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Examples of recent fair housing-DV advocacy: Cleaves-Milan v. AIMCO: Shriver Center successfully settled fair housing lawsuit against nation’s largest property manager. Settlement is confidential, but could be influential if you have a case involving an AIMCO property. In Arizona, a PHA reinstated a DV survivor’s voucher after being the subject of a HUD complaint filed by Community Legal Services. Violence Against Women Act (VAWA): Coverage
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Housing programs that are People who are covered by covered by VAWA: VAWA’s housing provisions: Public Housing Victims of domestic violence Section 8 vouchers Victims of dating violence Project-based Section 8 Victims of stalking Section 202 Supportive Housing for the Elderly*
Section 811 Supportive Housing for People with Disabilities*
*Covered by HUD’s VAWA regulations, not by statute. VAWA’s Housing Protections: In a Nutshell
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Quick review of VAWA’s housing protections: The fact that an applicant has been a victim of DV is not an appropriate basis for denying the applicant housing. DV does not constitute a serious lease violation by the victim or good cause for terminating the victim’s tenancy/subsidy. But note ―actual and imminent threat‖ exception Even if moving would otherwise violate the lease, a Section 8 voucher family may move to protect a DV victim’s safety. Protections could be expanded as VAWA 2011.
VAWA Implementation: Updates
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Highlights of HUD’s 2010 VAWA regulations: Published at 75 Fed. Reg. 66,246 (Oct. 27, 2010). Clarifies when the ―actual and imminent threat‖ exception applies. Clarifies how much documentation of DV can be requested. Addresses cases in which both parties claim to be the victim. Clarifies portability for DV victims. Has some language regarding family breakup. Applies VAWA to Section 202 and Section 811 housing. Applicable Family Law
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THE CALIFORNIA FAMILY CODE § 2 0 4 5 ; DOMESTIC VIOLENCE PREVENTION ACT - CALIFORNIA FAMILY CODES § 6 3 2 1 A N D 6340; OTHER APPLICABLE FAMILY AND CIVIL CODE SECTIONS. Family Code § 2045
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• In a family law dissolution, paternity or custody support hearing parties can seek ex parte protective orders • These orders can be for, among other things, matters relating to real property, whether community, quasi- community or separate • If parties do not have DV issues and a family law proceeding is pending, ex parte relief may be sought for, among other things, exclusion from dwelling. Family Code § 2045 (contd.)
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• Standards that courts will apply are: • ex parte standards (like imminent, irreparable harm and balance of hardship); and • §6321 factors (enumerated in the next slide) • At the noticed hearing, courts may issue a permanent orders on the application • In an unpublished CA case the court ruled that husband should stay in the dwelling, despite temporary orders of possession to wife, because it was his separate property and part of the pre-nup.
Family Code §6321-DVPA
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• DVRO applicants can seek ―temporary exclusive use of common dwelling of parties‖-- can be ordered ex parte in the TRO • Applicants to show ALL of the following: • possession under color of law; • assault or threats of assault against applicant or minor children; and • physical or emotional harm to the applicant or the minor children. Family Code §6321 (contd..)
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• Practice tips: • List facts relevant to the law in the declaration • § 6322 allows courts to make any ex parte orders to effectuate orders under §6320 or §6321 • In Part 21 of DV-100 ―Request for Orders‖ form ask for ―Civil Standby to have respondent removed from common dwelling‖- because remember these orders are not enforceable unless served • Orders to have respondent sign an agreement to removed from lease Family Code §6340-DVPA
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• After notice and a hearing court could order, among other things, excluding a person from a dwelling. • The standard that the court uses – ―if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care and control of the other party, or to a minor child of the parties or of the other party. • Practice Tip: In re Marriage of Parker, 118 Cal. App.3d 291 (1981) prohibits the grant of family dwelling only for custody purposes so ensure that assaults or threats thereof are stated clearly in the declaration. Advocacy Approaches
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ATTORNEYS HAVE USED A VARIETY OF TOOLS IN ADVOCATING ON BEHALF OF CLIENTS IN THESE CASES. Housing law tools used in these cases
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Informal advocacy, i.e., letters and calls to the landlord or housing authority Helping clients get together documents and witnesses for administrative & judicial proceedings Using media to ―embarrass‖ housing providers Filing administrative complaints with HUD or state agencies (or threatening to) Working with housing providers to improve their policies regarding domestic & sexual violence Filing affirmative litigation
Family law tools used in these cases
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DV-100 Part 8-Move out order-inform clients about the pros and cons DV-100 Part 14-Debt Payment-useful for unmarried intimate partners sharing living expenses like rent, utilities, etc. DV-100 Part 17-Payments for Costs and Services- property damage, costs of temporary housing, lost security deposit because check was sent to abuser. Family law tools (cont’d)
28 DV-100 Part 21-Other Orders-think ―what was abuser controlling‖-housing voucher in abuser’s name? Who will remove abuser from the house if TRO on residence exclusion is granted? Is client on the lease with the abuser? Does he/she need abuser to sign agreement to be removed from lease? If no DVRO pending-explore possible motions to be filed in the DVRO or other pending family law proceedings between the party. Educate clients about ex parte reliefs-help before they are homeless due to domestic violence.
Luz: Group 1 case discussion
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Facts: Luz lived by herself in a private unit. One night her ex- boyfriend, whom she previously had an RO against, came onto the premises without being invited. He broke a window at her unit and vandalized her door. The landlord told Luz that if she signs a repayment agreement to pay for the damages, he will not file an eviction. Luz doesn’t want to sign the agreement because she can’t afford the payments. She is considering breaking the lease & moving. What protections might Luz have, and what steps would you take to help her?
Laura: Group 2 case discussion
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Facts: Laura lived in a public housing unit. She separated from her husband, Jake, and obtained a RO temporarily excluding him from the unit after he fired a gun in the home. Jake stopped paying rent on the public housing unit. Laura asked the housing authority to adjust her rent due to the change in her family income/composition. She also asked the housing authority to change the locks for her safety. The housing authority did not act on Laura’s requests and filed an eviction action against her for nonpayment of rent and criminal activity, based on Jake’s firing of the gun at the unit. What protections might Laura have, and how could you help? Mirna: Group 3 case discussion
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Facts: Mirna had obtained an RO against her ex-boyfriend, Amir and gotten orders for temporary exclusive use of common dwelling. Amir is listed in the deed of the home and the two are not married, although they chose the home together, Mirna renovated it and paid half the mortgage since they moved in. Amir files an eviction action to remove Mirna from dwelling, even though he has been excluded from home through the DVRO orders. What protections might Mirna have, and how would you help her? Luz: Advocacy approaches
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Housing tools: Luz’s attorney reminded the landlord that her lease stated that she could be held responsible only for damages caused by guests or household members. Assoc. Estates Corp. v. Bartell, 492 N.E.2d 841 (Ohio Ct. App. 1985) Branish v. NHP Prop. Mgmt. Inc., 694 A.2d 1106 (Pa. Super. Ct. 1997) Luz’s attorney told the landlord that he would file a fair housing complaint if he tried to evict Luz (HUD memo). Luz’s attorney explained that Luz was protected from eviction under CCP § 1161.3 Luz considered using CC § 1946.7 to end the lease. Luz: Advocacy approaches (cont’d)
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Luz could use the once in a lifetime ―Special Needs‖ Homelessness grant which can be used to pay for rent plus utility deposits to move to another unit. She can reapply for a DVRO-use debt payment, costs and services If DVRO is still good, file a motion for reimbursements- CAUTION-motions are taking 8-10 weeks to be heard, will he pay if court orders? File a small claims action to claim reimbursement Laura: Advocacy approaches
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Housing tools: Laura’s attorney argued that Laura could not be evicted because federal regulations and her lease required the housing authority to adjust the rent. 24 C.F.R. § 960.257(b). Hous. Auth. of St. Louis County v. Boone, 747 S.W.2d 311 (Mo. App. Ct. 1988). Laura’s attorney raised VAWA and fair housing laws as defenses to the eviction. What about CCP § 1161.3 as a defense to the eviction? Laura could request a lock change under CC § 1941.6.
Laura: Advocacy approaches (cont’d) 35
DV-100 Part 14-Debt payment. If the DVRO has already been granted, file an ex parte motion and attach the 3-day notice as well as the Unlawful Detainer to show irreparable harm if the matter is not heard soon. If a disso pending, similar relief-again ensure that you seek these ex parte because time is of the essence here. Unlawful detainers are summary in nature and move very fast. Mirna: Advocacy approaches
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Mirna’s attorney used a retaliation defense in her eviction hearing to have the court dismiss the action. Wood v. Wood, 672 N.E.2d 385 (Ill. App. Ct. 1996) Mirna’s attorney also successfully argued that her payments of mortgage and their past relationship does not establish a landlord-tenant relationship. In her DVRO request, Mirna asked for temporary exclusive use of common dwelling showing that she has possession under color of law-DV-100 Part 8.
Mirna: Advocacy approaches (cont.) 37
Mirna also used the DVRO to ask for court to order Amir to continue paying his share of mortgage-this may not be granted ex parte. Mirna filed a quiet title action in civil court based on the fact that the parties invested together in the property. If Amir files for temporary control to end, Mirna could use the quiet title action to stall family court order-no precedent, different procedural and substantive standards in civil and family courts.
Housing remedies: Takeaway points
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Evictions are summary proceedings—time is of the essence! Seeking help from gov’t agencies can be time consuming. Act quickly to get survivors help before they’re removed on a procedural technicality. An eviction stays on credit history for 7 years. Advocates must choose cleverly to prevent least amount of damage to survivor. Advocates working with survivors should seek training on basic housing issues. Family law remedies: Takeaway points
39 DVRO is a great tool to get comprehensive, summary assistance on a variety of issues, including housing- issue spot thoroughly. Clients who have ongoing dissolution/EPR/support & custody matters can use ex parte relief to prevent them from being homeless. If client has already obtained a permanent DVRO and it has not expired, file a motion, preferably ex parte for reliefs like Sec. 8 voucher division, rent payment, damages that have to be paid immediately, etc. Outreach and Education
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Work with local Bar Associations to educate them about laws such as CC § 1946.7 to end lease. Organize cross trainings at Bar Associations to open up the meetings to more than one section- family law, housing, civil litigation. Educate shelter and agencies working with survivors about options for survivors. Use DVRO to more aggressively advocate for housing rights of survivors and families. Contact Us
41 Protima Pandey STAFF ATTORNEY, BAY AREA LEGAL AID SAN MATEO COUNTY REGIONAL OFFICE [email protected] 650-358-0745 x. 6375
Meliah Schultzman STAFF ATTORNEY, NATIONAL HOUSING LAW PROJECT SAN FRANCISCO [email protected] 415-546-7000 x. 3116