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New Housing Laws Provide Assistance for Domestic Violence Survivors

December 1, 2007

Author: Amy Schwartz

A Brief Examination of Housing Challenges Faced by NY’s Domestic Violence Survivors

Domestic violence survivors face tremendous economic and housing-related hurdles when they attempt to break free of an abuser.  Often the choices are poor—remain with an abuser or become homeless.  Sadly, studies conducted both across the country and in New York confirm these concerns by demonstrating that domestic violence is a leading cause of homelessness for women.  A December 2007 study conducted by the U.S. Conference of Mayors found that of the U.S. cities surveyed, 39% reported that domestic violence was a primary cause of homelessness in households with children.1  In New York City, a 2002 study indicated that almost half of all parents had experienced domestic violence and 25% of all homeless parents were rendered homeless as a direct result of the abuse.2      

For many families forced to flee their houses and their apartments, domestic violence programs and homeless shelters provide a crucial safe haven.  However, these services are limited and traditionally crisis-oriented so they provide families with few longer-term solutions to their housing needs.  A dearth of affordable private housing stock, public housing or Housing Choice vouchers (Section 8) in many communities poses other challenges for those transitioning from shelters or those in need of permanent housing.

To compound this problem, housing discrimination by landlords and agents is a widespread issue for women who are abused.  Despite the fact that they may be innocent tenants, domestic violence survivors regularly face evictions based upon the violent and criminal acts perpetrated upon them by their abusers simply because the landlord became aware of the abuse or the survivor called the police or sought the assistance of the courts.  In the community of East Rochester, NY, a so-called nuisance ordinance requires landlords lose their rental unit permits and evict the unit’s tenant where the police are called to a tenant’s home more than three (3) times in a 12-month period or if domestic violence occurred in the unit.3  This ordinance provided no exceptions for domestic violence survivors who were the targets of the abuse or legitimately called law enforcement for help.   Some survivors transitioning from residential domestic violence shelters into the larger community report being denied housing when current or potential landlords or sellers learn of their history and their situation.  In one similar case in New York, a landlord conditioned rental of an apartment on the requirement that a woman divorce her husband who had a criminal history and whose release from jail was imminent.4  The underlying facts of that case served as the basis for a 1985 NYS Attorney General Opinion which stated that such conduct may be unlawful marital status discrimination and, further, discrimination against domestic violence victims in housing accommodations may be unlawful gender discrimination.5  In effect, practices such as these blame and punish the victim for the violent acts of her abuser against whom she wields no control.  Doubtless, such discriminatory actions have an overall chilling effect on women who reasonably fear that calling the police for help or taking other measures to protect themselves and their children will result in an eviction or an inability to secure appropriate housing for the family.

Alarmed by consistent reports of housing discrimination against domestic violence survivors, in February 2003 the American Bar Association issued a Report to the House of Delegates heralding its support of federal, state, territorial and local legislation that would prohibit such forms of housing discrimination.6  Congress also responded by included strong provisions specifically prohibiting public housing authorities and Section 8 Voucher programs from discriminating against victims of domestic violence, dating violence and stalking in its 2005 reauthorization of the federal Violence Against Women Act (VAWA 2005).7  Among other VAWA 2005 provisions, the federal law also prohibits evictions or terminations from housing based upon acts of violence perpetrated upon the victim, and allows for Voucher portability, lease bifurcation, and victim-friendly transfer policies.  However, while this law provides crucial protection to those survivors in certain federally-assisted housing programs, it offers no help to survivors and their children accessing housing stock in the much larger private market. 

Alternatively, domestic violence survivors who had rental housing but needed to terminate their leases early and relocate to a safer place also faced challenges.  Despite awareness of the resident’s safety concerns, landlords were often unwilling to terminate the survivor’s lease early without the tenant incurring significant financial penalty such as balloon clauses that made all rents due and payable until the end of the lease term.  As a result, survivors were generally forced remain in the unit or break their leases and face money judgments together with a poor landlord reference that would only serve to increase their “undesirable” status as a tenant.            

The combination of these factors—discrimination, risk of eviction, lack of early lease termination protections, emergency shelter shortages, lengthy waiting lists for public housing and limited vouchers for housing subsidies--conspired to make it increasingly difficult for victims within New York State to secure and maintain safe and permanent housing, thus placing abused women and their children at serious risk of long-term or periodic homelessness.  With few viable options, survivors were often forced to return to their abusers.

A recent state law in New York and a local law in Monroe County both seek to assist domestic violence survivors with some of these challenges.            

Early Lease Termination for Domestic Violence Survivors

This 2007 amendment to Real Property Law § 227-c, as well as the Criminal Procedure Law §§530.12, 530.13, Domestic Relations Law §240, and Family Court Act §§446, 656, 842 and 1056(5) provides that a civil or criminal court which issued a domestic violence survivor’s temporary or permanent order of protection also has the authority to issue an order terminating her written or oral residential lease early.  Upon receiving this order, the tenant-survivor is released from any further liability for the rental agreement and may vacate the premises without financial penalty.  Notably, only survivors with orders of protection may qualify for this relief and they must make application for this relief in the same court that issued their order of protection, rather than in the housing courts. While the order of protection is in effect, she may initiate a proceeding to terminate her lease even where the underlying proceeding has been completed.  Survivors with orders of protection from foreign jurisdictions may also access this relief.  It is a public policy violation for landlords and tenants to waive or modify this right to early lease termination.  This law became effective on October 1, 2007 and is indeed complex and not suitable for use by all survivors in all situations.  Prior to initiating a proceeding, advocates will want to study these statutes and discuss with the client the many challenges associated with accessing it.   

Before commencing a court action for lease termination, the survivor must have attempted to negotiate a termination with the landlord to no avail and so state this in her petition.  In filing her petition for relief, the survivor-tenant must provide 10 days notice of the proceeding to the landlord, as well as to any joint tenants, even if that joint tenant is the abuser.  All of these parties have the right to be heard by the court.  As a result, she will be bringing her landlord and any co-tenants into non-traditional housing venues such as Family Court, Supreme Court, or Criminal Court.  If the abuser is not a co-tenant, s/he should not be given notice of the proceeding or an opportunity to be heard. 

The survivor-tenant must also demonstrate that, despite the existence of the order of protection, a continuing, substantial risk of physical or emotional harm exists to her or her child, that relocation will substantially reduce the risk.  For those survivors where the order of protection seems to be working, demonstrating this actual risk of harm may be difficult or impossible, despite her fear and belief that the current housing unit is unsafe.  Where the termination order is granted, the survivor must insure that all sums or arrears due under the lease are timely paid and she must return the property free of occupants (unless the occupant is the abuser or a co-tenant who is continuing his/her tenancy).  If she owes any arrears or prospective rental payments, she may be hard-pressed to come up with the sums due.  The law also empowers the court to sever joint tenancies the survivor may have entered into with other co-tenants rather than terminate tenancy in its entirety. 

Further, the law outlines procedures for adjustments in rent and for the setting the termination date.  For many, the law provides no quick fix as the court has discretion to set the lease termination date many months after the survivor-tenant’s request for relief--no earlier than 30 days and no later than 150 (approximately five months) after the due date of the next rental payment after notice is served on the landlord. Given the 10 day notice period combined with the termination date, it could be as little as 40 days and as many as 160 before the lease actually ends.  For that reason alone, this law may not be useful for many victims who need it and advocates should safety plan with the survivor around this issue.  Additionally, current NY state law does not yet provide anti-discrimination protections for domestic violence survivors in housing.  Therefore, if she discloses the abuse to the landlord in attempting to obtain this relief, she may risk eviction or other discriminatory acts by the landlord.8       

As of December 2007, the NYS Office of Court Administration issued the forms for the petition and order for lease termination cases pending in Family Court only.9  Nothing has yet been promulgated for Criminal or Supreme Court cases, but they are forthcoming.        

Monroe County’s Local Law Protecting the Right to Shelter for Victims of Domestic or Dating Violence

In September 200710, a local law was introduced by Legislator Carla M. Palumbo to prohibit discrimination against victims of domestic or dating violence in Monroe County.  The law unanimously passed the County Legislature on December 11, 2007.  While limited to Monroe County residents, this law provides key assistance to victims and may serve as a model for other municipalities until the New York State Legislature is willing to pass similar state-wide protection.   

Under Monroe County law it is now an unlawful discriminatory act for the owner, lessor, lessee, sub-lessee, assignee, or managing agent or other person having the right to sell, lease, rent, or approve the sale, rental or lease of housing accommodations to refuse to sell, rent or lease or to refuse to continue to rent or lease a housing accommodation because of a person or group’s actual or perceived status as victims of domestic or dating violence.  The law also prohibits the altering of the terms, conditions, or privileges of the sale, rental, or lease of housing accommodations because of the person or group’s actual or perceived status as victims of domestic or dating violence.  Further, it is unlawful to alter the furnishing of facilities or services in connection with housing accommodation because of the person or group’s actual or perceived status as victims of domestic or dating violence. 

The definition of “victims of domestic violence or dating violence” is broad and includes any person subjected to an act or series of acts that are or would be violations, misdemeanors, or felonies under state or federal law and the acts were committed by current or former spouses, domestic partners, current or former co-habitants, or dating partners.  The acts of abuse must have resulted in physical or emotional injury or have created the risk of physical or emotional harm, whether or not the conduct resulted in criminal charges, prosecution, or conviction.  As with similar domestic violence anti-discrimination laws11, this law also requires persons certify their status as a domestic violence victim with documentation such as police reports, domestic violence incident reports, valid order of protection, proof from an attorney, district attorney, domestic violence or victim advocate, medical professional or health care provider, clergy, or counselor.


Endnotes

1.  U.S. Conference of Mayers & Sodehxo, Inc., Hunger and Homelessness Survey: A Status Report on Hunger and Homelessness in America’s Cities—A 23 City Survey  (December 2007).  Available online at:  http://usmayors.org/HHSurvey2007/hhsurvey07.pdf (last visited December 18, 2007)

2.  Institute for Children and Poverty, The Hidden Migration: Why New York City Shelters are Overflowing with Families (2002).

3.  See Code of the Town/Village of East Rochester §144-13.  Note: a federal lawsuit against the municipality was commenced by Empire Justice Center and Monroe County Legal Assistance Corporation in February 2007 regarding, among other claims, the discriminatory impact this ordinance has on victims of domestic violence.  

4Cox v. The Related Companies et al., (Monroe Co. Sup. Ct. 1986) (unpublished decision on file with the author)

5.  New York State Attorney General Formal Opinion No. 85-F15 (November 22, 1985).

6.  American Bar Association, Young Lawyers Division and Commission on Domestic Violence, Report to the House of Delegates, February 2003.  Available on-line at: http://www.abanet.org/domviol/ABA_Policies/128_1_1.PDF (last visited December 18, 2007). 
 
7.  The various public housing and Section 8 Housing Choice Voucher provisions from of the 2005 Violence Against Women Act are codified at: 42 USC 1437d(c)(3); 42 USC 1437d(l)(5) &(6); and  42 USC 1437f(d)(1)(B)(i) & (ii); 1437f(f)(8),(9) & (10).

8.  Note, if she is in Section 8 or public housing, VAWA 2005 outlaws such discriminatory conduct--see endnote vii. 

9.  Available on-line at: http://www.courts.state.ny.us/forms/familycourt/pdfs/gf-38.pdf and http://www.courts.state.ny.us/forms/familycourt/pdfs/gf-39.pdf (last visited December 18, 2007).

10.  Monroe County Administrative Code & Charter, not yet codified.  The law will likely be in effect before or by March 2008.  For more information about the new law contact Jamie Romeo from the Monroe County Legislature at :  (585) 753-1930. 

 





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