Survivors of domestic violence, sexual violence, dating violence, and stalking face many challenges in finding and maintaining safe and affordable rental housing. Landlords, either consciously or inadvertently, often evict or deny admission to survivors of domestic violence or sexual assault due to activity—such as police involvement, property damage, or disturbance to neighbors—related to the violence or even because of a tenant’s status as a victim.
Regional Housing Legal Services, a nonprofit law firm with expertise in affordable and sustainable housing and its related components, and Community Legal Services, Philadelphia’s largest nonprofit law firm devoted to free civil legal advocacy for Philadelphia’s low-income residents, published an advocacy story, “How a Decade of Persistent Advocacy Changed Housing Policies in Philadelphia and Pennsylvania,” in the March–April 2013 Clearinghouse Review: Journal of Poverty Law and Policy. The piece detailed how the sustained efforts of Regional Housing Legal Services and Community Legal Services led to two major local victories for survivors of domestic violence and sexual assault: (1) amendments to two Philadelphia ordinances in 2011 to add classes of protections for victims of domestic violence and sexual assault, prohibit eviction from all rental housing due to incidents of domestic violence or sexual assault, and establish a procedure for victims to terminate their leases early; and (2) the Pennsylvania Housing Finance Agency’s inclusion of a provision in its 2013 Qualified Allocation Plan for its Low-Income Housing Tax Credit Program stating that “[e]xperience as a victim of domestic violence alone may not constitute good cause for eviction.”
These victories occurred against the backdrop of an increasing national consensus on the need for housing protections for survivors of domestic violence and sexual assault. Congress reauthorized the Violence Against Women Act (VAWA) in 2005 and included provisions stating that tenants in some federally subsidized housing could not be evicted on the basis of domestic violence, dating violence, and stalking alone (that is, domestic violence, dating violence, and stalking cannot constitute “good cause” for eviction).
The changes in the housing policies of Philadelphia and Pennsylvania occurred just before Congress reauthorized VAWA again in 2013. VAWA 2013 expanded the 2005 protections to cover survivors of sexual assault in addition to survivors of domestic violence, dating violence, and stalking. VAWA 2013 expanded its coverage to applicants for and tenants of a broader range of federally subsidized housing, including units financed by low-income housing tax credits. Therefore tenants in developments financed under the Low-Income Housing Tax Credit Program cannot be evicted solely because they are victims of domestic violence, sexual violence, dating violence, or stalking—those reasons do not constitute “good cause” for eviction.
VAWA 2013 is a significant step toward ensuring that more federally subsidized housing applicants and tenants benefit from its expanded protections. But VAWA 2013’s implementation and effectiveness as they relate to the Low-Income Housing Tax Credit Program require unique advocacy. VAWA merely prohibits discrimination; it does not include any enforcement mechanisms to ensure that these protections are put in place. VAWA 2013’s provisions are not self-implementing, and the extent to which they are in effect prior to further notice from the U.S. Department of Housing and Urban Development (HUD) is debatable. Landlords of developments financed with low-income housing tax credits have not yet received any official guidance on how VAWA 2013 applies to them. And they have not yet received the notices that they must give applicants and tenants or the domestic-violence certification forms.
Here we explain how advocates can use education, litigation, and policy advocacy to protect their survivor-clients’ housing by using VAWA 2013 under the Low-Income Housing Tax Credit Program.
The Low-Income Housing Tax Credit Program
Created in 1986, the Low-Income Housing Tax Credit Program gives tax credits to investors developing rental housing. State allocating agencies (“housing finance agencies” in most jurisdictions) have two roles in administering the Low-Income Housing Tax Credit Program: (1) to establish criteria by which they award tax credits to affordable housing developers to attract investors to finance the construction of the developments; and (2) to monitor the developments during the period of affordability to ensure that the occupied development complies with fair housing laws and other federal requirements, such as the amended VAWA. The Low-Income Housing Tax Credit Program is administered by the Internal Revenue Service (IRS).
For the most part, the allocating agencies have wide discretion in administering the program and in setting implementation policies, so long as the Qualified Allocation Plan “provides a procedure that the agency (or an agent or other private contractor of such agency) will follow in monitoring for noncompliance with the provisions of this section and in notifying the Internal Revenue Service of such noncompliance which such agency becomes aware of and in monitoring for noncompliance with habitability standards through regular site visits.” Allocating agencies require annual certification of continuing program compliance that covers a broad range of IRS requirements.
Protecting Tenants’ Rights in Developments Financed with Low-Income Housing Tax Credits
Under the Low-Income Housing Tax Credit Program, a landlord cannot evict or terminate a lease without good cause. The requirement for good cause for tenancy termination is well established, and mandatory compliance with it was not changed, enhanced, or diminished by VAWA 2013.
VAWA 2013 explicitly states that violations of VAWA 2013 are not themselves a basis for the loss of tax credits. However, VAWA 2013 informs the Low-Income Housing Tax Credit Program by stating that incidents of domestic violence or sexual assault do not constitute good cause for eviction, and VAWA 2013 specifically applies this standard to housing units in developments funded by low-income housing tax credits. Taken together with the requirements of the Low-Income Housing Tax Credit Program, VAWA 2013 should be helpful for the language defining good cause: “An incident or incidents of actual or threatened domestic violence, dating violence, or stalking will not be construed as a serious or repeated violation of the lease by the victim or threatened victim of that violence and shall not be good cause for terminating the assistance, tenancy, or occupancy rights of the victim of such violence.” Thus an owner or manager of a development financed by low-income housing tax credits may place its tax credits at risk when the owner or manager evicts a tenant based on incidents of domestic violence or sexual assault in violation of VAWA. Its tax credits would be at risk, not for violating VAWA but for violating the long-standing and well-established good-cause requirement of the Low-Income Housing Tax Credit Program.
Monitoring and Compliance. The specter of the loss of tax credits is certain to grab the attention of any owner of a development financed with low-income housing tax credits. To use this powerful argument, advocates must understand the monitoring and compliance mechanisms of the Low-Income Housing Tax Credit Program and how to marshal these mechanisms to secure tenants’ rights.
All allocating agencies are required to monitor developments financed by low-income housing tax credits for noncompliance. This monitoring includes site inspections of every such development—at least 20 percent of the units in the development—at least once every three years. Owners of these developments must certify annually that they have complied with the Low-Income Housing Tax Credit Program requirements. In Pennsylvania, compliance includes the specific requirement that no tenants have been evicted or tenancy terminated without good cause. The IRS guidance makes clear that failure to submit the annual certification, or submitting incomplete or inaccurate certifications, constitutes noncompliance. If the owner discloses noncompliance, the allocating agency is required to report such noncompliance to the IRS. The IRS handbook on monitoring compliance contemplates the submission of compliance information from third parties as well, and the allocating agency must consider it.
Once the allocating agency becomes aware of noncompliance—whether through the site visit, the annual certification, or third-party information—it must notify the IRS by filing a Form 8823. The Form 8823 notice must be filed within 45 days of the owner’s compliance-correction period, which is not to last longer than 90 days. Advocates should be sure to follow up after alerting the allocating agency of noncompliance to ensure that these procedures are followed. In the absence of uncured serious and persistent incidents of eviction premised on domestic violence or sexual assault, recapture of tax credits in these situations is unlikely. However, the regulations require filing Form 8823 for any issue of noncompliance, even if such noncompliance is cured. Even if tax credits are not recaptured, having a Form 8823 filed against the project is significant because it could jeopardize the owner’s securing of tax credits henceforth. Filing a Form 8823 might not result in the eventual recapture of tax credits, but it will serve as a deterrent for owners. Filing Form 8823 will also put other owners of developments financed by low-income housing tax credits on notice that they must take the protections afforded by VAWA 2013 seriously.
These compliance-monitoring requirements are well established, and the allocating agency’s ability to allocate tax credits hinges on meeting these requirements. Advocates can use these requirements to encourage compliance enforcement, even when dealing with reluctant allocating agencies.
Eviction Defense. Advocates should remember that, whenever possible, failure to prove good cause as required by VAWA 2013 and the Low-Income Housing Tax Credit Program should be raised as a defense to a lease-termination notice or eviction complaint. Before ever getting to court, advocates should inform both the owner (or its legal counsel if represented) and the property manager (who may be handling the eviction) that (1) eviction due to incidents of domestic violence or sexual assault violates VAWA 2013, and (2) an owner’s tax credits could be at risk if the tenant’s lease is terminated without good cause (as in, among others, eviction based on incidents of domestic violence or sexual assault protected by VAWA 2013). The owner of the development is unlikely to want to risk loss of tax credits, and simply making the owner aware of this risk may be enough to resolve the dispute favorably for the tenant.
Besides contacting the owner and its legal counsel, advocates should contact the allocating agency to see whether its staff is willing to alert the owner about the potential risks to the tax credits if the owner proceeds with the lease termination. A call from the allocating agency will undoubtedly get the owner’s attention.
If the eviction or lease termination has already occurred and the tenant can pursue no further action in landlord-tenant court, an advocate should notify the allocating agency about noncompliance with the Low-Income Housing Tax Credit Program and alert it to facts that would raise concerns about the veracity of the owner’s annual certification to the allocating agency. Before contacting the allocating agency, advocates should review their jurisdiction’s Qualified Allocation Plan to determine what procedures for compliance monitoring are in place. The Qualified Allocation Plan may not contain procedures for advocates to notify the allocating agency of a project owner’s noncompliance. However, advocates should not be deterred. In the absence of a defined procedure for notifying the allocating agency of noncompliance issues, advocates should write memoranda with supporting documentation and send them to their allocating agency’s senior compliance officer. Identifying the senior compliance officer at any allocating agency should not be difficult.
The memoranda may have to draw a road map to encourage a recalcitrant allocating agency to undertake its legal responsibility to monitor for compliance between site visits. Advocates should explain that the allocating agency has a legal obligation to monitor developments financed with low-income housing tax credits and that this obligation includes reviewing information from third parties. The advocate should use specific facts to assert that the owner’s annual compliance certification may not be correct. The advocate may want to mention that the allocating agency is obligated to monitor compliance for this development every year and take appropriate enforcement action, such as filing Form 8823, whenever the agency finds noncompliance. If the allocating agency is particularly reluctant, an advocate may remind the agency that if it does not monitor for compliance as required by the Low-Income Housing Tax Credit Program, the agency could lose its authority to allocate tax credits.
As described in our prior advocacy story, Pennsylvania housing advocates have been successful in working collaboratively with the Pennsylvania Housing Finance Agency, which is Pennsylvania’s allocating agency. We have found that establishing relationships with the allocating agency staff and board members is key to effecting policy changes. We have commented on proposed Qualified Allocation Plans, participated in working groups on low-income housing tax credits, and trained managers of developments financed with low-income housing tax credits. When we raise an issue that is discretionary, we are able to use our good working relationships to effectuate change, even when the allocating agency has no obligation to do so.
For example, in the spring of 2014, we emailed the Pennsylvania Housing Finance Agency to alert its staff to the problem that tenants often did not know that they were living in a development financed with low-income housing tax credits and that some leases were silent on the requirement that there be good cause for eviction or lease termination. As a result of that email, the agency assessed lease compliance by requesting and then reviewing over 1,000 leases of developments financed by low-income housing tax credits. The agency looked to see whether the lease identified the particular property as part of the Low-Income Housing Tax Credit Program and whether it contained language explaining the good-cause-for-eviction requirement. The review uncovered disparities in many leases; some incorrectly summarized the good-cause requirement, and others made no mention of it at all. To fix this problem, the Pennsylvania Housing Finance Agency developed and distributed a one-page “lease addendum” that must now be attached to each lease for a unit financed by low-income housing tax credits. The addendum is a separate document that must be signed and dated by the tenant. Though not yet posted on the agency’s website because it is a work in progress, the addendum is useful in that it is mandatory and standardizes the language used to explain the good-cause requirement. Thus the addendum ensures that tenants and their advocates are aware of their Low-Income Housing Tax Credit Program rights and their VAWA 2013 protections. The Pennsylvania Housing Finance Agency will check for signed lease addendums as part of its ongoing general compliance monitoring.
Educating Judges, Landlords, and Tenants
Advocates may want to pursue other forms of advocacy to protect the housing of survivors of domestic violence or sexual assault. Two crucial steps in putting landlords, tenants, and judges on notice that VAWA 2013 applies in all eviction cases involving units financed with low-income housing tax credits are (1) making sure all leases for units financed by low-income housing tax credits are easily identifiable as such and (2) making sure all leases for units financed by low-income housing tax credits have the required good-cause and VAWA 2013 language.
We first recommend working with the allocating agency to include the necessary good-cause and VAWA 2013 language in all leases in developments financed with low-income housing tax credits, as we have successfully done in Pennsylvania. If the allocating agency is not receptive to lease changes, advocates who need documentation of the good-cause requirement in evictions from a development financed with low-income housing tax credits can present the development’s restrictive covenant, called the Land Use Restriction Agreement, which is required to be recorded with the county recorder’s office. The Land Use Restriction Agreement either explicitly or by general reference incorporates the Low-Income Housing Tax Credit Program, its good-cause lease-termination requirements, and other statutory requirements.
We also recommend judicial training and educational materials with applicable law and allocating-agency requirements to help judges. Such training and materials enable judges to understand VAWA 2013 eviction and lease-termination protections for tenants in developments financed by low-income housing tax credits. Judges also can come to understand how violations of VAWA 2013 fail the good-cause requirements of the Low-Income Housing Tax Credit Program.
Advocates can similarly educate landlords—both owners of developments financed with low-income housing tax credits and their management agents. We have found that when landlords understand the law and the problems experienced by their tenants who are survivors of domestic violence or sexual assault, many are sympathetic. Most become willing to work with the tenant instead of pursuing an eviction. An advocate working with a landlord who is aware of VAWA 2013 protections and the risk to the investor’s tax credits is more likely to be able to protect a victim from eviction. Those landlords who ignore VAWA 2013’s protections could be the best targets for enforcement action.
Some tenants, of course, are not fully aware of their rights, even with the inclusion of a lease addendum. Tenants with lower literacy levels may be confused by the language or may not understand entirely what “good cause” entails. Advocates can overcome this confusion through tenant outreach. Such outreach differs throughout communities, but one good strategy is to seek out community events with access to many possible tenants. There advocates can use accessible language and materials to explain the good-cause requirement and how it protects survivors of domestic violence and sexual assault and others from unfair evictions. Advocates who live outside Pennsylvania and thus have no specific lease requirements on domestic violence or VAWA compliance should, of course, be especially zealous in their tenant outreach. Better-informed tenants are better able to assert their rights under the Low-Income Housing Tax Credit Program and may even be able to help explain them to judges and to landlords.
We have made enormous strides nationally and locally in changing policy to protect survivors of domestic violence and sexual assault from eviction. Our previous advocacy strategies succeeded in ensuring that victims in Pennsylvania and Philadelphia are as safe as possible from eviction. We continue to work toward protecting the housing rights of domestic-violence and sexual-assault survivors by ensuring that allocating agencies monitor and hold accountable developers of affordable housing financed by low-income housing tax credits. We ask advocates interested in housing rights and the rights of domestic-violence and sexual-assault survivors to join us as we pursue policy advocacy, enforcement implementation, litigation strategies, and other forms of advocacy. Whether changes to protect domestic-violence and sexual-assault survivors and others from eviction result from a decadelong slog or from a simple email to an allocating agency, persistent advocacy can make a difference in housing policy and the lives of survivors.
Mark S. Schwartz is a member of the board of the Pennsylvania Housing Finance Agency. The views expressed here are his personal opinions.
We would like to thank Brian A. Hudson, senior executive director and chief executive officer; Rebecca Peace, chief counsel; Holly Glauser, director of development; and the staff of the Pennsylvania Housing Finance Agency for their willingness to respond in a positive manner to the issues presented here and their dedication to creating and sustaining affordable housing for low-income residents in Pennsylvania.