In our day to day practice as family law practitioners, we help clients negotiate their way through the maze that is divorce. Besides experiencing the usual parenting and financial issues, some clients experience abuse at the hands of their spouse; a significant other; or another household member. If this happens, the victim can obtain a Protective Order. However, as is too often seen in the newspapers, the Protective Order is merely a piece of paper and does not guarantee safety. According to the National Coalition Against Domestic Violence “an estimated 1.3 million women are victims of physical assault by an intimate partner each year.” The Coalition goes on to report that “there are 16,800 homicides and 2.2 million (medically treated) injuries due to intimate partner violence annually, which cost $37 billion.” Not only that, due to their injuries, these victims lose time from work and lose the pay they would have earned. Because most incidents of violence occur at home or near the home, the home becomes no longer a safe place to live. Also, for financial reasons, many of the victims feel trapped and are forced to reside with an abuser since they may be the one who is “on the lease.”
What happens when a Protective Order is granted, but the victim cannot leave the home because of financial reasons? Answer – the abuser is removed from the home, but there is a real possibility he or she will return. The Protective Order is not a guarantee of safety. If possible, the victim should leave the home.
Although domestic violence affects individuals at every economic level, the financially disadvantaged more frequently face barriers to finding another place to live. Many of those victims are thus financially trapped and have no choice but to stay with their abuser instead of becoming homeless.
What happens when the victim’s home is no longer a safe place? What happens when the victim is the lessee of an apartment? Should a victim of domestic abuse be allowed to get out of a lease early without penalty? Who should bear the financial burden, the victim or the landlord? These are public policy choices and are increasingly being addressed by the state legislatures.
Under traditional landlord-tenant law, a tenant cannot escape liability for rent if he or she leaves the premises prior to the expiration of the lease. To complicate the issue, “[i]f the tenant is the only signatory to the lease, the tenant’s conduct in vacating the premises would constitute an abandonment of the lease.” William B. Stoebuck & Dale A. Whitman, The Law of Property Sec. 6.82 at 402-403 (3ed. West 2000). So, even if an abused tenant leaves the apartment vacant and keeps paying the rent, he or she could still be in default of the lease depending on what the lease says. In some states, the landlord has no duty to re-rent the apartment and the tenant would be liable for the rent until the lease’s end. In other states, the landlord has a duty to try to rent the apartment, but the tenant still has financial exposure for the period of vacancy and for any drop in rental prices.
Traditional landlord-tenant laws leave many financially disadvantaged victims no choice but to remain at the scene of the abuse or remain with the abuser. Fortunately for these victims, many state legislatures have recognized the harshness of traditional landlord-tenant law and have enacted statutes giving tenants the right to terminate their lease early if facing physical abuse. Many state legislatures have weighed the financial interest of landlords against the safety of victims of abuse, and as a public policy issue, have determined that there was a need for remedial legislation to assist such victims by mitigating the financial consequences of leaving their abuser and thus putting an end to violence.
Thus far, fifteen states (Arizona, California, Colorado, Delaware, District of Columbia, Indiana, Maryland, Minnesota, North Carolina, North Dakota, New Jersey, New York, Oregon, Texas, and Washington) give victims of domestic abuse the right to get out of a lease and avoid liability for future rent. In addition, at the time of writing, Hawaii, Michigan, Ohio, Rhode Island, Tennessee, and Utah are contemplating similar legislation.
While all of the statutes allow for early termination of leases by victims of domestic violence, each state’s statute is worded differently. Thus, it is necessary to look at your state’s specific statute, in effect at the time in question. New York, for example, requires that the tenant first obtain an Order of Protection. Some statutes include “sexual assault,” “stalking,” or “unlawful harassment” as the basis for a victim to exercise her or his rights. Under some statutes, a tenant may end a lease early even if she or he is not the victim, but another member of the household or the tenant’s child is the victim. New Jersey, the author’s home state, requires “an imminent threat of serious physical harm from another named person if the tenant remains on the leased premises.” N.J.S.A. 46:8-9.
Almost all the statutes require written notification by the victim to the landlord of the victim’s intention to prematurely terminate the lease, many require the notice to be accompanied by some proof of the violence such as an Order of Protection and in some states, a police report. New Jersey’s statute allows documentation from a licensed social worker.
Some states offer extended protection. For example, Connecticut law requires the state to provide a special needs benefit for emergency housing through a temporary family assistance program or by way of a state supplementation program for those who relocate due to domestic violence. Rhode Island law prohibits landlords and mortgage lenders from terminating a lease or discriminating against a tenant or applicant because the person is a victim of domestic violence.
Some of the statutes require time limits on giving the notification of termination to make certain that the victim is facing an imminent violent situation. The statutes vary as to those time limits. For example, California requires notice be sent within 60 days after the date that a violence report was entered or a Protective Order was obtained. Arizona and Indiana require that the incident must have occurred within 30 days prior to the notice and other states require notice within 90 days of the incident.
Also, statutes differ as to a victim’s liability for rent between the date of the notice and the date of termination. Some of the statutes provide that the tenant’s obligation will be pro-rated, and other statutes provide that the tenant remains liable for the full month of the termination.
The devil is in the details, even though the principles embodied in each state’s law are fundamentally the same. As practitioners, we should be aware of our own state’s statute (or lack thereof) and advise our clients accordingly. Further, relief may be on the way because the Uniform Law Commission is evaluating a proposal to draft a Uniform Law to protect the interest of both victims and landlords. That would make it easy for many states to adopt such a law and thereby extend this protection to victims of domestic violence.
Unique to family law is the need to deal with the complexities of people’s lives. A client comes to us with a solution in mind and that is to achieve a divorce. When we delve into the matter, we come to discover that there are a myriad of related issues to resolve. One such issue can be domestic abuse. While we are quick to advise our client to get a Protective Order, we may miss the practical solutions which are so very important.
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