by Julia Devanthery, Dan Daley, and Lisabeth Jorgensen
Boston Housing Authority v. Y.A., 482 Mass. 240 (2019), is the most recent guidance from the Supreme Judicial Court concerning the application of the federal Violence Against Women Act (VAWA), 34 U.S.C. §§ 12291 et seq., to summary process (eviction) cases. Among other safeguards provided under VAWA, the statute protects victims of domestic violence from eviction from federally subsidized housing so long as the basis for the eviction is a direct result of domestic violence. Boston Hous. Auth. v. Y.A., 482 Mass. 240, 245 (2019); 34 U.S.C. § 12491(b)(1) (2018); 24 C.F.R. § 5.2005(b).
Summary of Case & Applicable Law
In BHA v. Y.A., the housing authority brought a motion to issue execution against one of its tenants who failed to adhere to the payment schedule in a court approved agreement for judgment (the “Agreement”) the tenant had signed. At the hearing, the tenant testified that it was because she was in an abusive relationship. The trial court granted the housing authority’s motion, finding that the tenant’s failure to pay her rent was a substantial violation of a material term of the Agreement under M. G. L. c. 239, § 10. However, the judge did not take into account the tenant’s testimony about domestic violence. On appeal, the tenant—represented by counsel for the first time—argued that the judge failed to consider whether the tenant’s alleged breach of the Agreement was related to domestic violence or whether she was protected from eviction by VAWA.
The application of the VAWA defense to tenants of public housing facing eviction for non-payment of rent after having signed an agreement for judgment was a matter of first impression for the SJC. See BHA v. Y.A., 482 Mass. at 247. In BHA v. Y.A., the SJC held that the trial court should have determined whether the tenant was entitled to VAWA protection from eviction, reversed the housing court’s decision allowing the housing authority to evict the tenant and remanded it “for further inquiry and findings whether domestic violence contributed to Y.A.’s failure to make agreed-upon payments.” Id. at 248.
BHA v. Y.A. will have far-reaching implications for victims of domestic violence across Massachusetts and, perhaps, nationally. The holding affirms many core principles that will protect victims and their families from eviction and homelessness.
First, the SJC’s holding that a tenant may raise a VAWA defense to eviction at any time during an eviction proceeding, even after multiple years of nonpayment and signing multiple agreements for payment plans, will help ensure that victims can raise the defense whenever it is safe to do so, or when they learn of their right to do so. See BHA v. Y.A., 482 Mass. at 248. The SJC’s decision confirmed that a tenant in federally financed housing can raise a VAWA defense for the first time in response to a landlord’s claim of a violation of an agreement for judgment. Id. at 246-247.
Y.A. had never raised the issue of domestic violence before appearing in court for the hearing on the housing authority’s motion for issuance of execution. See BHA v. Y.A., 482 Mass. at 247. The SJC held “that Y.A.’s statement at the hearing that she was in an abusive relationship and that her partner “would take everything” from her was not untimely.” Id. In fact, the SJC held that Y.A. was permitted to raise her VAWA defense on the enforcement of the fifth court agreement between the parties. Id. at 248. So long as the nonpayment is a direct result of domestic violence, the VAWA defense can be raised even in instances of chronic non-payment of rent. Id. at 249. According to BHA v. Y.A., in which Y.A. did not refer to VAWA at all, a tenant is only required to give the judge “reason to believe that domestic violence … might be relevant to a landlord’s basis for eviction.” Id. at 247. This more flexible approach to raising a VAWA defense is consistent with the fact that most tenants go unrepresented in summary process cases and is very similar to the standards used in cases involving disabled tenants and reasonable accommodations.
Finally, the Court gave significant guidance to both covered housing providers and judges when presented with evidence of domestic violence. The Court held that covered housing providers are not only barred from evicting tenants for reasons directly related to domestic violence, but are also required to relocate a tenant to a safe unit, upon request, where there is a reasonable belief that there is a threat of imminent harm from staying in the same unit. Id. at 244-45. Additionally, it held that judges, upon hearing evidence of domestic violence, are obligated to inquire further in order to fully evaluate the applicability of VAWA and write findings before issuing a decision. Id. at 247.
Providing notice to a landlord prior to action for eviction
It is clear from the principles set forth in BHA v. Y.A. that, in a federal housing eviction case, a tenant has the right to raise a VAWA defense to an allegation of a breach of a lease agreement without having sought any VAWA protection from the landlord beforehand. However, as a practical matter, practitioners should advise clients to notify their landlords that domestic violence has affected the tenant’s ability to pay rent or has otherwise caused the tenant to violate the terms of the lease as soon as it is safe to do so. When landlords are informed about domestic violence issues affecting a tenancy, VAWA expressly encourages housing providers to “undertake whatever actions permissible and feasible under their respective programs” to assist domestic violence victims living in their housing units to remain in their housing. See 24 C.F.R. § 5.2009(c). For example, under VAWA, and upon request, a covered landlord is required to relocate a tenant to a safe unit (or may remove a household member from a lease) in order to mitigate the threat of imminent harm from further violence.
The VAWA defense in a court proceeding
In Massachusetts, a defendant normally raises defenses to possession through an answer to the complaint. See Uniform Summary Process Rule 3 and Uniform Summary Process Rule 10(a). However, as explained above, the VAWA defense may now be raised at any time during an eviction from federally subsidized housing.
Conclusion & Tips for Effective Counseling
Certain safety repercussions need to be considered in counseling a client with a potential VAWA defense. As explained above, the defense can be raised directly with the housing provider pre-eviction, in an answer or in subsequent pleadings, during a hearing, trial, or post-judgment. To qualify for the defense, a practitioner should seek to admit one of the VAWA-approved forms of verification but should also carefully consider whether the client’s testimony is necessary. Advocates should also evaluate the client’s options to impound the file, identifying information, or other specific documents that contain sensitive information about domestic violence. Finally, tenant advocates should counsel the client to seek safety-planning support from a domestic violence service provider before deciding whether to raise the defense, and throughout the case.
Julia Devanthéry is a staff attorney at the ACLU in Southern California in the Dignity for All Project. Julia is the founder of the Housing Justice for Survivors Project at the Legal Services Center of Harvard Law School, where she served as a Lecturer of Law and co-taught and supervised the Housing Law Clinic. Ms. Devanthéry represented the tenant in BHA v. Y.A.
Daniel Daley is a staff attorney at MetroWest Legal Services (MWLS) where he has specialized in housing and eviction cases for the last twenty years. MWLS, based in Framingham, has been providing free civil legal aid to low-income people and victims of crime for over forty (40) years.
Lisabeth Jorgensen is the Civil Legal Aid for Victims of Crime (CLAVC) staff attorney at MWLS, a position funded by the Massachusetts Office for Victim’s Assistance (MOVA). She represents victims of crime in their related civil matters across many sectors, including housing.
*Photo credit to Stan Rowin (https://www.stanstudio.com/) for Daniel Daley’s and Lisabeth Jorgensen’s headshots.