Recently, the Court of Appeals issued an unpublished decision in Rosewood Estates I, LP v. Wendy Drummond that could have important consequences for those who own and operate rental properties subject to the protections of Violence Against Women’s Act (“VAWA”). No. COAA23-118, 2023 WL 5688807 (N.C. Ct. App. Sept. 5, 2023). In that decision, the court opined that the termination notice issued by the landlord was “fatally deficient under VAWA” because the landlord did not enclose the VAWA Notice of Occupancy Rights and HUD Certification Form with the termination notice. Id. at *4. Accordingly, the landlord in Rosewood could not evict the tenant because the termination notice was insufficient. Id.
Notably, the Rosewood holding appears to be at odds with the purpose of the VAWA housing statute and the regulation implementing it. The VAWA housing statute’s primary purpose is to prevent a covered housing provider from denying admission and assistance to, terminating the tenancy of, and/or evicting a tenant or applicant on the basis that the tenant or applicant has been or is a victim of domestic violence, sexual assault, or stalking. 34 U.S.C. § 12491(b)(1). Put simply, VAWA and the housing statute are designed to protect the victims of domestic violence.
To be sure, the VAWA statute directs each public housing agency or owner and manager of a covered housing program to provide a copy of the VAWA Notice of Occupancy Rights (HUD 5380) and VAWA Certification Form (HUD 5382; together with the HUD 5380, the “VAWA Forms”) to an applicant or tenant of the covered housing program at various times, including, without limitation, at the outset of a tenant’s tenancy and with any notification of eviction or notification of termination of assistance. 34 U.S.C. § 12491(d)(2). The regulation implementing and interpreting the VAWA statute repeats that requirement and adds the following: “Nothing in this section limits any available authority of a covered housing provider to evict or terminate assistance to a tenant for any violation not premised on an act of domestic violence, dating violence, sexual assault, or stalking that is in question against the tenant or an affiliated individual of the tenant.” 24 C.F.R. § 5.2005(d).
The Court in Rosewood did not account for the purpose of the VAWA housing statute or the implementing regulation’s language when rendering its decision. Again, the purpose of VAWA is to provide victims of domestic violence with protections, and the VAWA housing statute imposes those protections in the housing sphere. If an eviction is not based on the status of the tenant as present or past victim of domestic violence, dating violence, sexual assault, or stalking, then the VAWA statute provides no protection, which is a point the implementing statute makes abundantly clear. By contrast, the VAWA housing statute and implementing regulation do not say a tenant will have a defense to any eviction for any reason—for example, a simple failure to pay rent—if the covered housing provider fails to provide the VAWA Forms at the specified times.
Nevertheless, the Court in Rosewood purports to extend the umbrella of VAWA’s protections to any tenant whom a covered housing provider is evicting for any reason when that tenant does not receive a termination notice with the VAWA Forms enclosed, irrespective of whether the tenant is a victim of domestic violence or already had notice of his or her rights under VAWA. For those reasons, the Court in Rosewood appears to conflict with VAWA’s animating purpose. Regardless, in Rosewood’s wake, the question is this: what does Rosewood mean for covered housing providers in North Carolina?
First, it must be emphasized that the Rosewood opinion is an unpublished opinion and that, to date, there is no published opinion in North Carolina on this point. In North Carolina, the Court of Appeals issues published and unpublished opinions. Published opinions are binding decisions of the Court that constitute precedent for the lower courts. That means a trial court would be obliged to follow a published Court of Appeals opinion. On the other hand, unpublished opinions are not binding and do not constitute controlling legal authority. Rule 30 of the North Carolina Rules of Appellate Procedure thus states that the use of unpublished opinions in legal argument is disfavored.
Second, the holding regarding the VAWA housing statute in Rosewood is not essential to the ruling issued by the Court. The Court first ruled that the notice in the Rosewood case was defective because it omitted the grounds for termination as required by the parties’ lease agreement. The Court then added that the notice was also defective because it did not include the VAWA forms. The latter statement was not necessary for the court to find that the notice was defective, and thus the Court’s statement regarding VAWA is arguably dicta, i.e., non-binding authority.
That said, it is strongly recommended that covered housing providers who are not enclosing the VAWA Forms with their termination notices start doing so immediately and continue for the time being, unless and until a contrary precedential decision is issued on the topic. While the Court in Rosewood seemingly gave only cursory consideration to this issue, the Rosewood opinion could be invoked to exert persuasive authority over trial court judges in North Carolina. Until greater clarity is achieved through issuance of a published decision, it is simply safest for covered housing providers to include the VAWA Forms with all termination notices. Covered housing providers may also wish to include an enclosure line in their termination letters about the VAWA Forms (e.g., “Enclosure: HUD 5380 and HUD 5382”). Further, covered housing providers should retain complete copies or scans of the termination notices with the VAWA Forms to be able to prove compliance later.
As a final note, you may be wondering if you are a covered housing provider under VAWA. VAWA applies to most, if not all, affordable rental properties and programs, including public housing, properties operated pursuant to the IRS’s Low Income Housing Tax Credit program, properties operated by a public housing authority, properties operated in connection with a voucher program, Section 202 properties, Section 811 housing, Housing Trust Fund properties, and HOME fund properties.
Covered landlords (and landlords who are unsure whether they qualify as such!) should consult with experienced counsel to ensure that they don’t run afoul of the law. The experienced attorneys at Blanco Tackabery stand ready to provide such counsel.
Henry Hilston employs his experience in state and federal litigation as an asset in his representation of affordable and conventional multifamily property owners and managers. In that practice, he advises property management companies on a wide range of issues, including evictions and other landlord-tenant disputes, VAWA, the Fair Housing Act, and compliance issues under federal and state affordable housing programs, such as the Low-Income Housing Tax Credit (LIHTC) program and HUD and USDA-Rural Development rental subsidy programs. He also assists those clients with the preparation, review, and revision of management documents, including tenant selection plans, management agreements, and leases.