Domestic Violence: Time For A Refresher
Since we get a lot of questions about domestic violence (DV), and haven’t written about it for quite some time, this month we answer the most common questions clients ask about DV.
Who is protected by domestic violence laws? Your tenant who is an obvious victim of DV is protected. However, because DV laws protecting tenants include both domestic abuse and domestic violence, the reach of DV laws are broader than you may think. If the parties involved in DV are related (blood or marriage), are or were involved in an intimate relationship, or cohabit (now or in the past), DV protections probably apply. DV protections can be triggered by violence against a minor occupant (child abuse), and also violence between roommates (current or past). DV protections apply whether or not the DV perpetrator is on the lease, or lives in the apartment. The DV doesn’t need to take place at apartment or at the community for protections to apply. Because DV protections apply to a wide range of situations, you should always carefully analyze a DV situation before concluding that DV legal protections do not apply.
When do DV legal protections kick in? To assert DV rights in a lease break action, a tenant must have a valid protection order (PO) against the perpetrator of DV, or have filed a police report citing domestic violence within the last sixty days. To assert DV rights as a defense in an eviction action the police report must directly relate to the reason for the eviction. Frequently, DV victims will allow the perpetrator back into the unit after a PO has been entered. For this reason, to set the stage for future lease enforcement action, you should always serve the perpetrator with a No Trespass Notice after a court has issued a PO against the perpetrator. If you have served the perpetrator with a no trespass but the victim still allows the perpetrator into the unit and there are problems, normally you can then move forward with an eviction against the DV victim if there are further disturbances. Arguably the victim no longer imminently fears harm (they let the perpetrator back), allowed the no trespass to be violated, and arguably have waived the protection of the PO and their right to use the DV law as a defense in an eviction action.
Does a temporary protection order trigger DV rights? Because this is a gray area, you should proceed with caution. Because temporary POs are issued ex parte (i.e. without the other side being present), anyone can obtain a temporary PO. Based on this, a tenant could obtain a temporary PO under false circumstances, and attempt to use a temporary PO to get out of their lease with no intention of obtaining a permanent PO. This potential abuse should be prevented when both the DV victim and the alleged perpetrator are leaseholders. The alleged perpetrator normally isn’t going to stand by and get stuck with financial liability on the lease because the other leaseholder obtained a temporary PO under fraudulent circumstances with no intent to make it permanent. Abuse of temporary POs to break leases is also limited by the fact that they are only good for fourteen days. If a tenant provides a temporary PO older than fourteen days, you should ask both the tenant and the court if the PO is being made permanent. You should always ask the court if the temporary PO is being made permanent in cases involving a single leaseholder and an alleged non-leaseholder perpetrator.
Do domestic violence protection laws apply to non-payment of rent cases? No. Tenants involved in DV are still obligated to pay their rent, subject to DV victims’ legal protection to terminate their leases. Thus, DV protection laws are not a defense to nonpayment of rent cases. DV laws do protect tenants from eviction based on non-compliance (three day demand to comply or vacate based on disturbing other tenants), repeat violation cases (notice to quit based on repeated lease violations), and substantial violation cases (notice to quit based on arrests stemming from DV episodes).
OK, it’s not a rent violation, but involves disturbances or other violations, can you evict a victim of DV? No. DV laws protect victims against eviction. You cannot evict a tenant when the tenant has documented that they are the victim of domestic violence, and the basis for the eviction is related to or connected with the domestic violence incident. For example, most leases provide that tenants can’t disturb other tenants. A domestic violence or abuse incident between a tenant and the tenant’s spouse results in a police call. The incident is extremely loud and disturbs the neighbors. Normally, you would begin lease enforcement (eviction) procedures against these tenants. If the tenant doesn’t inform you (document that they are a victim of domestic violence), you may serve appropriate eviction related notices, and proceed with eviction until the tenant asserts a DV defense. However, as soon as the tenant comes forward with a claim of DV, you must stop (take a time out), and evaluate the situation.
Is the perpetrator protected? No. Documented DV by a victim is a complete bar to evicting the victim even if DV is first raised in an answer to an eviction court complaint. The law does not prevent you from evicting any tenant that perpetrated violence or abuse, but legally it is difficult to evict only one tenant. Even if the court enters a judgment for possession against the perpetrator, the sheriff’s office may not perform the physical move against only one tenant. Depending on the facts and your lease documents, eviction may not be viable and other solutions than evicting the perpetuator may exist. If the victim wants out, eviction works. If you evict the perpetrator or the perpetrator leaves, the perpetrator remains financially responsible. The most complicated scenarios are when the victim wants to stay, and the perpetrator won’t go away. If this is your scenario you should contact us for advice so we can evaluate your options.
If a domestic violence victim has a valid protection order (PO) against another lease-holder (spouse or otherwise) can you lock the other lease-holder (the perpetrator) out? Whether you have the right or not, we highly recommend that you do. The DV perpetrator probably has bigger issues to deal with than to make legal trouble for you. Better to face a lawsuit for wrongfully locking out a DV perpetrator (this case can be legally defended), versus a wrongful death case if you fail to change locks, lock out, or give the DV perpetrator a key, and the perpetrator comes back to the apartment and kills the DV victim. You can easily solve the lock out problem (dilemma) with appropriate lease language, such as “Owner may deny any tenant access to the premises, including by changing the locks, if any court or legal order restrains or bars a tenant from the premises.”
Can a DV victim terminate their lease? Yes. DV victims can terminate their leases by notifying you in writing that they are moving because they fear imminent danger for themselves or their children. Again, if the documentation is a police report, the police must have issued the report within sixty days of the request for termination. This time limitation prevents a resident from tucking a police report away for later use. The sixty-day limitation does not explicitly apply to valid protection orders. Arguably the same sixty-day limitation applies, but the lack of specific language is problematic. Tenants with POs frequently allow violations, or waive POs when they reconcile with the abuser. The legal notification requiring the victim to fear imminent danger as grounds for moving is a solid argument that tenants should not be able to tuck away or otherwise sit on POs, and the sixty day requirement applies. However, because stale PO scenarios can be complicated, you should always consult us.
What does the DV victim owe upon lease termination? The short and general answer is one month’s rent, payable within ninety days after vacating. However, many factors can bear upon and complicate a DV victim’s Security Deposit Disposition (“SODA”). Specifically, a landlord must actually incur and be able to document damages or losses, as a result of an early termination due to DV, for the victim to be liable for one month’s rent. Thus, if the victim moves out, but the perpetrator stays and continues to pay rent, no money is owed. Further, DV laws override lease-break provisions. Specifically, if both the DV victim and perpetrator break, but you re-rent the unit the next day, arguably no money would be owed, at least by the DV victim. You are not obligated to refund the security deposit until the DV victim pays the one month’s rent. Because preparing DV related SODAs can be complicated, your onsite teams and your SODA hand-ling departments need to know that SODAs involving DV units need special handling. Specifically, you need to prepare SODAs in compliance with the facts of the situation and the law, realize that two SODAs may be necessary (one for the DV victim and one for the perpetrator), andbe absolutely certain that the law has been followed before turning DV victim balances over to collection.
Do lease qualification policies apply to DV situations? No, unless subject to governmental regulations. If both the victim and the perpetrator are leaseholders, and the victim moves out, you can let the perpetrator stay or not. Similarly, if the perpetrator moves out, you can let the victim stay, as long as the victim is paying the rent. Whether somebody stays should be based on their paying the rent. The DV situation should be treated similar to a job loss, and you shouldn’t try to re-impose qualification criteria until renewal, and only if requalification is part of your renewal policies. If the victim terminated the lease and you let the perpetrator stay, and the perpetrator is paying the rent, do not try to collect a month’s rent from the victim. To sort out DV situations, you need to decide if you are going to let the perpetrator stay, and then find out from the parties their intentions. Regardless of DV, sometimes, if somebody does stay, and pays the rent, DV situations sort themselves out.View Resource »