What Are the Potential Housing Remedies?
Regardless of sexual violence, farmworkers struggle to find affordable, habitable and safe housing. When farmworkers live in employercontrolled housing, federal and state law provides for the minimal requirements that an employer must abide by when providing housing; however, these laws are frequently violated. When housing is not provided by the employer, low wages and temporary work leave farmworkers with limited options. Frequently, what they can afford is in substandard conditions such as housing with leaky plumbing, lack of hot water, inoperable power, missing window screens, broken windows, and/or no locks on doors or windows. This is not only potentially unhealthy, but it is also unsafe for victims of sexual violence. As described previously, farmworkers may share living space with many others—some of whom they may not know— to either save money or simply afford housing. High density living situations put a strain on the housing and its condition, for instance, when there are 20 people in three rooms and one bathroom meant for a family of four. These cohabitation situations also increase farmworkers’ vulnerability to sexual violence.
Farmworkers are often faced with unsafe and unhealthy living conditions regardless of whether they seek public, private or employerowned housing. However, if farmworkers live in housing that is owned and controlled by the employer, there is an additional concern that the perpetrator—if a coworker or supervisor— may also have access to victims’ residences. If possible, create a safety plan that includes support from other co-workers residing at the same location.
Some farmworkers may need assistance reading and understanding a lease—if one exists—and negotiating with a landlord. It is possible that a landlord could be persuaded to assist victims by improving safety conditions or that lease provisions exist that assist victims of sexual violence, such as early termination of the lease without penalty, improved lighting, lock replacement or other physical safety measures. Some states have laws that provide housing remedies to victims of sexual assault, including early lease termination and lock replacement.
Many of the potential legal claims a tenant may have against the landlord are dependent upon the landlord having knowledge of the sexual harassment/violence. Therefore, as a practical matter, with your client’s consent, provide the landlord with a copy of the tenant’s criminal or civil protection order if one exists. It is not necessary to give the landlord any more details about the victim’s circumstances than is absolutely crucial to put the landlord on notice. A simple letter citing the statute and authorized by the victim may suffice. The following are potential claims that sexual violence victims may have against their landlord:
Discrimination: Discrimination against victims of sexual violence can be gender and/or sex discrimination. Moreover, there are tort actions that may provide additional relief. The majority of claims against landlords require some type of prior notice, so make sure that all efforts to notify landlords of problems related to victims of sexual violence are well documented.
The following are potential claims for victims living in private housing:
The Fair Housing Act, 42 USC §§ 3601 et seq., and comparable state laws: Claims for gender and/or sex discrimination can protect against evictions based on a tenant being a victim of sexual violence and also may provide an affirmative claim of discrimination.
- If the perpetrator is the landlord, building manager or owner, your client may be able to bring a claim of sex and/or gender discrimination.
- If the perpetrator is another tenant and your client can show that landlord knew or should have known about the ongoing harassment/ violence and did nothing to prevent it, your client may be able to assert a hostile environment claim under state and federal discrimination laws. This theory of recovery continues to develop.
- Affirmative claims can be filed with the U.S. Department of Housing and Urban Development, state enforcement agencies, and state or federal court.
- Both courts and government agencies have the ability to award the following: 1) order that the victim be allowed to remain in or secure housing; 2) the elimination of the unlawful practices and for owners to change certain policies; 3) award actual damages and out-of-pocket expenses; and 4) award punitive damages (civil penalties by government agencies). In addition, courts can order injunctions and/or protective orders to help secure victim safety while the matter moves forward.
State Tort Claims: Office of Violence Against Women grantees are not permitted to represent clients in tort actions. Be sure to make referrals to experienced civil attorneys for the tort remedies available to victims. For example, perpetrators can be sued on a personal injury theory. Additionally, private landlords may be liable on state tort claims if they refuse to take action to help protect victims. Possible tort claims include:
- Negligence: If a landlord is made aware of unsafe conditions in the home such as doors and windows that do not properly lock, the landlord may be liable for negligence if the victim is damaged by the landlord’s failure to provide safe housing or otherwise breaches the duty owed to his/her tenant.
- Breach of Warranty of Habitability: State laws requiring minimal safety standards in homes may have been violated by the unsafe conditions in the home. These laws require a landlord to have prior actual or constructive notice; therefore, it is vital that any safety problems be reported to the landlord as soon as they are discovered.
- Breach of Covenant of Quiet Enjoyment: When there is a substantial interference with the tenant’s right to enjoyment of the premises, there may be liability. This claim is best brought in tort rather than in contract because of the availability of emotional distress damages.
- Remedies for these claims can include money damages, and orders to repair defective conditions.
The above claims are also available to victims living in subsidized housing; however, the statute of limitations may be very different if the landlord is a state or federal agency.
There are additional protections available to victims living in public housing. Many areas may have very few or no public housing facilities utilized by farmworkers, but in some areas with long agricultural work seasons it is not uncommon for farmworkers to reside in public housing. Thus, where appropriate, the following remedies should be considered:
Preference and priority vouchers. Victims of sexual violence may be given a preference by local Public Housing Authority (PHA) administrative plans and be entitled to a priority voucher. Migrant farmworkers may have trouble securing public housing because of the migratory nature of work and experience limits on eligibility based on their immigration status. However, the above regulations and protections apply to all Rural Housing Section 515 projects.
Undocumented immigrants’ eligibility. Undocumented farmworkers may be eligible for subsidized housing if they meet the requirements for “eligible non-immigrants.” See, 42 USC § 1436a(a)(5). However, eligibility is not automatic and may affect future immigration options based on being deemed a “public charge.”
Early termination of the lease. Landlords of subsidized housing must allow early termination of the lease for domestic violence victims. Advocates should argue that the same right should be extended to sexual assault victims. Many state laws also allow sexual assault victims to terminate their leases early in private housing (e.g. Cal. Civ. Code § 1946.7).
Preventing violation of restraining order. Landlords are often willing to work with tenants on preventing violations of a protection order. With client consent, be sure to provide the landlord with a copy of the protection order. The landlord should then request a no-trespass order on the victim’s behalf. Additionally, request that the landlord change the locks; if unable to communicate with the landlord, the tenant can change the locks and then provide copy of keys to landlord.
Translated lease. Because of farmworkers’ low literacy rates and the fact that many leases are executed in English, it is probable that farmworker victims will not be aware of the terms of the lease. Many states provide mandatory translation laws requiring contracts negotiated in certain languages to be translated. (e.g. Cal. Civil Code § 1632(b)(3)). Often, failure to provide a translated lease can serve as a basis for invalidating the lease and transforming it into an oral month-to-month tenancy.
Relationship with the landlord. Since many farmworkers share housing with unrelated and/ or unfamiliar persons, they may not know who is responsible for the lease. Therefore, your client may not have much information about the lease or know where to obtain the information. Because of language and cultural barriers, landlords and tenants may have little communication or the landlord may not be willing to assist victims in seeking solutions to housing issues. However, as stated above, landlords open themselves up to potential liability if they refuse to assist victims in making their homes safe.
Fear of retaliation. Your client may be reluctant to ask the landlord to make provisions due to fear of retaliation such as eviction or reporting tenants to immigration authorities. These are valid fears. Strive to provide answers to questions about tenancies and be able to explain remedies to unlawful retaliation.
- What federal housing laws exist that protect my farmworker clients?
- What state housing laws exist that protect my farmworker clients?
- Which federal and state agencies are responsible for accepting and investigating housing complaints?
- What training can I receive to better understand public and subsidized housing?
- How can I educate service providers about housing rights so that they are able to identify violations?
- What service providers are available to assist my client in finding alternative, affordable and safe housing?