(Editor’s note: Travois wants to keep our clients in the know about upcoming changes in low income housing programs like the Low Income Housing Tax Credit program and NAHASDA. We asked one of our friends, Elizabeth Moreland, for her take on the recently reauthorized Violence Against Women Act (VAWA). We will be discussing this topic further at our annual conference.
An industry leader, Elizabeth L. Moreland, NCP-E, SCS, HCCP, SHCM, FHC, is president of Elizabeth Moreland Consulting, where she has trained thousands of housing professionals on LIHTC compliance and management rules. She has more than 20 years of experience in the industry and offers an array of courses and certification exams through her Housing Credit Online Training Center and Exam Room.)
On June 25 through June 27, I was privileged to attend and speak at the National Council for State Housing Agencies (NCSHA) Housing Credit Connect conference where I heard the latest industry news, discussed hot compliance and development/allocation issues, and networked with industry experts and Housing Finance Agencies (HFAs) from all across the country.
During the conference, the Violence Against Women Act (VAWA) was discussed specifically in relation to its effect on LIHTC properties. Originally enacted in 1994, VAWA has since been reauthorized numerous times. The 2005 reauthorization first included provisions that applied to housing, specifically the Section 8 and public housing programs, by conforming the laws governing these programs. At the time, the U.S. Department of Housing and Urban Development (HUD) determined the provisions contained in VAWA 2005 were self-implementing, which meant owners were not to wait for regulatory guidance to implement the provisions of the law. Since that time, VAWA 2005 has been established through HUD Notices and incorporated into Change 4 of the HUD Handbook 4350.3.
In 2013, when VAWA was again reauthorized by President Obama, it expanded its list of covered programs to include the LIHTC and HOME programs as well as numerous other programs administered by HUD and USDA Rural Development. However, despite the fact the Housing Credit Program was included as a covered program, VAWA 2013 did not specifically conform Section 42, and therefore, it is not self-implementing, which means regulatory guidance will need to be given for LIHTC owners to accurately apply parts of the law.
However, because of how VAWA is written, specifically placing its responsibility upon those providing housing, IRS officials are reluctant to provide specific guidance as they feel it exceeds their authority since their role is to enforce tax law, and Section 42 was not changed to specifically implement VAWA 2013’s provisions. The same goes with the HFAs as their role is to allocate and monitor the credits putting them in a mostly passive position of notifying the IRS if they believe a violation has occurred.
At Housing Credit Connect, it was reported that at this point, most HFAs are only educating owners and not yet monitoring for violations as they await more guidance from HUD. A few indicated they are considering adding it as a question on their Annual Owner’s Certification (AOC).
This places the responsibility of living up to VAWA’s requirements on the owner and their management teams. Without clear direction from HUD, the IRS or HFAs, the best course of action is to implement a victim certification form similar to the HUD 91066 and educate your staff on the VAWA requirements in regards to denying entrance or implementing evictions where violence may be a factor.
At this point in time, it might also behoove you to assign such cases to a specific staff member or department to handle these situations as they arise. And finally, you may want to consider updating your housing credit leases with legal counsel input and use the model language contained on HUD Form 91067 as a template.
Beyond these guidance issues, implications of VAWA violations were discussed specifically indicating that such violations are not grounds for credit loss per se, but there is some concern that it could be considered a violation of fair housing, which is considered general public use noncompliance. This is because of HUD 2011 Fair Housing and Equal Opportunity (FHEO) Notice on Domestic Violence that states:
“… statistics show that women are overwhelmingly the victims of domestic violence. An estimated 1.3 million women are the victims of assault by an intimate partner each year, and about 1 in 4 women will experience intimate partner violence in their lifetimes. The U. S. Bureau of Justice Statistics found that 85% of victims of violence are women. In 2009, women were about five times as likely as men to experience domestic violence. These statistics show that discrimination against victims of domestic violence is almost always discrimination against women. Thus, domestic violence survivors who are denied housing, evicted, or deprived of assistance based on the violence in their homes may have a cause of action for sex discrimination under the Fair Housing Act.
In addition, certain other protected classes experience disproportionately high rates for domestic violence…this means that victims of domestic violence may also have a cause for action for race or national origin discrimination under the Fair Housing Act.”
The FHEO Notice listed 10 example cases where victims of domestic violence filed suit under Fair Housing sex discrimination. Some of these cases also involved VAWA protections.
Obviously the housing credit industry is awaiting more guidance from HUD and possibly the IRS and the HFAs. A proactive approach until that guidance is available is also prudent.
Of course, as I hear more, I will share!
(Elizabeth can be reached at 1-800-644-0390 or by email at Elizabeth.Moreland@housingcredits.com or visit her website at www.taxcredit.com.)