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Domestic Violence and Rental Housing

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Domestic Violence and Rental Housing The Intersection of Housing, Domestic Violence, & Family Law 1 PROTIMA PANDEY , BAY AREA LEGAL AID MELIAH SCHULTZMAN, NATIONAL HOUSING LAW PROJECT 2011 FAMILY LAW CONFERENCE What we’re covering today 2 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 3 SURVIVORS HAVE PROTECTIONS UNDER LANDLORD - TENANT LAWS, FAIR HOUSING LAWS, AND THE VIOLENCE AGAINST WOMEN ACT (VAWA) CC §§ 1941.5 & 1941.6: Lock Changes 4 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 5 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 6 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 8 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 9 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) 10 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 11 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 12 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 14 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 15 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 16 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 17 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 18 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 19 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 20 • 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.) 21 21 • 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 22 • 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..) 23 • 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 24 • 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.
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