Military Resident Rights: The Law and Your Rights
Military personnel have enjoyed special legal protections since WW I. At that time, Congress enacted the Soldiers & Sailors Civil Relief Act. After 9/11 and the resulting war on terror, Congress changed the name of the law in 2003 to “Servicemembers Civil Relief Act of 2003” or SCRA for short. The law’s expressed purpose is to provide for, strengthen, and expedite the national defense by enabling persons serving in the military service to devote their entire energy to the defense needs of the United States. The law accomplishes this by providing for the temporary suspension of judicial proceedings that may adversely affect the civil rights of servicemembers during their military service, and by allowing servicemembers to terminate certain contractual obligations.
To understand the law, you must familiarize yourself with the law’s key concepts. Traditionally, one who was in the military was in the “military service” or “armed forces”. Similarly, this law applies to “servicemembers”. A “servicemember” is a member of the uniformed services. Uniform services means “armed forces” (army, navy, air force, marines), but also includes the commissioned corps of the National Oceanic and Atmospheric Administration, and the commissioned corps of the Public Health Service.
If you are a servicemember, you must be serving. The law does not apply to non-active of the United States for the law to apply. For traditional armed forces such as Army, Navy, Air Force, and Marines, this means the servicemember must be on active duty. Active duty includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the Military Department concerned. Active duty does not include full-time National Guard duty under normal circumstances.
However, a National Guard member shall be “in the military service” of the United States for purposes of the law if such a member is serving under a call to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days for purposes of responding to a national emergency declared by the President and supported by Federal funds.
Applicability to Evictions
You cannot evict a resident in military service if the resident’s rent is less than $2465 per month without court order. The $2,465 is the 2004 figure and will be adjusted upward in the future based on the Consumer Price Index. This means for all intents and purposes, you cannot evict a residential tenant who is a servicemember without a court order. If you violate this law, you have committed a crime. Violation of the law is a misdemeanor punishable by up to one year in jail.
If you file an eviction against a servicemember, the court or the servicemember may request a stay of the eviction. Specifically, the court on its own motion (without anyone asking) may stay an eviction proceeding against a servicemember for 90 days if it finds that the servicemember’s ability to pay the rent is materially affected by his military service. The court may also, on its motion, appoint an attorney for the servicemember who could also seek a stay if they are unable to contact the servicemember or if the attorney has contacted the servicemember but the defense would require the servicemember’s appearance in court. Similarly, the court has no discretion and must enter a stay (up to 90 days) of any eviction proceeding upon request from a servicemember if the court finds that the service- member’s ability to comply with the lease is materially affected by military service. A stay means any eviction is on hold until further order of the court. A stay does not stop the rent from accruing or release anyone from responsibility for paying the rent. If a court stays any eviction against a servicemember, the rent continues to accrue during any stay, and ultimately the servicemember is liable to you for the payment of this rent.
The court may condition any stay upon any terms that in the opinion of the court, justice and equity require. The court has wide discretion to “balance the equities” between you and the resident (servicemember), and to order appropriate relief. For example, if the rent has not been paid and there are severe non-compliance issues, the court could deny the stay and allow the eviction to continue. Similarly, if the amount of unpaid rent was significant (say 3 months for example), the court could presumably order a shorter stay.
Servicemember’s Right to Terminate a Lease
A servicemember may terminate a lease under certain circumstances. If not in military service at lease execution, a person may terminate the lease if they join the military at any point after the lease was executed and prior to the end of the lease term. If in the military at the time of lease execution, a servicemember may terminate a lease upon receiving orders for a permanent change of station, or upon receiving orders to deploy for a period of not less than 90 days. A servicemembers termination of a lease under the law also terminates any obligation a dependent may have under the lease.
SCRA does not define the term “permanent change of station” with respect to residential leases. This has led to the term “permanent change of station” being the subject of dispute. Some property managers have attempted to resolve disputes by adopting the “50 mile test”. Specifically, if the servicemember moves more than 50 miles away, the servicemember has “permanently changed stations” and thus may terminate the lease. The “50 mile test” has nothing to do with SCRA but rather has been adopted from the IRS code. Under the IRS code, the IRS allows deductions for moving expenses if you have moved more then 50 miles. However, applying the 50 mile test to servicemembers is clearly wrong because under the IRS code the 50 mile test specifically does not apply to members of the armed forces. Rather, cases interpreting the tax code have held that a servicemember “permanently changes station” when the servicemember moves from one permanent post of duty to another permanent post of duty at a different duty station regardless of distance.
Termination Procedures and Issues
To terminate a lease, the servicemember must deliver written notice of termination along with a copy of applicable orders to you or your agent. The Servicemember may make delivery in person, by business courier, or by U.S. First Class Mail Return Receipt Requested. Regardless of how delivered, the termination notice is effective thirty days after the first date on which the next rental payment is due and payable after the date when such notice is delivered or mailed. For example, if the notice is served 2/15/04, the lease termination would become effective on March 31, 2004, or 30 days after the 1st date (March 1st) upon which the next monthly rent payment was due. The servicemember is always liable to pay rent through the effective termination date. If the effective termination date does not end exactly on the last day of the month, rent for any odd amount of days is pro-rated on a daily basis.
If you receive notice of termination from a servicemember, you may apply for relief with the court. A court may modify the rights of the person in military service to terminate any lease subject to such modifications or restrictions as in the opinion of the court that justice and equity may in the circumstances require. Application for a court order upon receipt of a notice of termination from a servicemember is appropriate in limited circumstances. For example, you should apply for a court order if an active duty servicemember attempts to terminate a lease but doesn’t have permanent change of station orders.
However, any opposition to termination should be weighed and evaluated carefully. If you interfere with the termination of lease by a servicemember, or withhold or use a servicemembers security deposit for rent owed after the lease termination date, you are committing a criminal misdemeanor. If a servicemember is already in the military at the time lease execution, the servicemember may waive their rights under SCRA. However, any waiver of a servicemembers’ rights under SCRA must be contained in a conspicuous waiver agreement, and such waiver agreement must be separate and apart from the servicemembers lease.
If a servicemember takes advantage of any of these rights, you may not use this against the servicemember. Specifically, if a servicemember rightfully terminates a lease under the act, you may not report this to any credit reporting agency or credit bureau as an adverse or negative event. Finally, you may not deny a servicemembers’ application to rent based upon credit worthiness if the Servicemember has exercised any right under the law in the past.
View Resource »