As the military community gears up for the busy moving season, it is important that both property owners and tenants are aware of the special provisions made for military families. AHRN.com asked military wife and lawyer Elizabeth A. Tomlin, J.D to share her insight into issues commonly experienced in the military community with the Service Members Civil Relief Act.
For service members and military families, receiving orders for a permanent change of station (PCS) or deployment is a fact of life. We expect to move every two to four years. In fact, after two years in a duty station, my gypsy instinct kicks in because I feel like it’s time to move on. We all know how the first trip to a new duty station begins. It’s usually preceded by massive Googling of school districts, and real estate. Upon hitting the ground, we begin our first day with a call to the local military housing office, followed by an immediate call to a local realtor.
Our nomadic military life-styles make it almost certain that most service members will act as either landlords, or tenants during their careers. While the geographical flux has many benefits – adventure, the chance to live in diverse settings (from the tundra of Alaska to the desert of Ft. Irwin), and opportunities meet new people, it creates challenges for landlords who lease to service members and for tenants serving in the military.
In 1940 during World War II, the US government recognized some of the challenges facing landlords and tenants and enacted the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) to protect service members – particularly with regard to rental agreements. From 1940 until 2003, the SSCRA was largely unchanged. However, at the beginning of Operation Iraqi Freedom, the US government recognized that the more than sixty year-old law was too outdated to help service members in the fiscal climate of 2003.
Enter the Service Members Civil Relief Act!
On December 19, 2003, President Bush signed the Service members Civil Relief Act (SCRA) into law which replaced the SSCRA and expanded the protections afforded to military members as they enter active duty. Now, under the SCRA, service members and reservists receive information about their rights as soon as they begin active duty. Though this article focuses mainly of landlord-tenant law, the SCRA protects service members in a broad variety of legal issues including: rental agreements, mortgage foreclosure, evictions, security deposits, prepaid rent, credit card interest rates, mortgage interest rates, automobile leases, life insurance, health insurance, payment of income taxes, and more.
While the SCRA applies to more issues than the SSCRA, it applies within the United States and its territories only. If, for example, a service member has a lease for an apartment in Japan, the SCRA would not apply to that lease. In contrast, the SCRA would apply to a residential lease in Guam because Guam is a US territory. Service members need to be particularly vigilant when entering into contracts abroad. When in doubt, have a lawyer review your contract before signing the bottom line.
It’s the law – Landlords cannot evict a service member without a court order.
One key protection provided to service members in the SCRA is protection from eviction during active duty service. Landlords cannot evict service members or their dependents living a residence with a monthly rent of $2400 or less, or take the tenant’s personal property to satisfy a debt, without first obtaining a court order. The SCRA even provides criminal penalties such as jail time to any person who knowingly evicts a service member without a court order. At first glance, this may seem like the SCRA gives a service member permission to stop paying rent without penalty, but this is not the case. The SCRA merely requires the landlord to obtain permission from the court before evicting a service member. The SCRA provides many rights to landlords who have obtained a court order to evict a tenant.
Can’t a service member’s commander just order payment to the landlord? – No.
A formal eviction process also protects the landlord. Oftentimes when I hear of a landlord-tenant dispute, someone will remark, “Call the commander and have the soldier’s wages garnished!” Contrary to popular myth and barracks lawyer wisdom, a commander cannot order a service member to pay a landlord simply because the landlord says there An order of eviction is a court’s formal way of giving a landlord permission to remove a tenant from a property. The process for obtaining an order of eviction varies from state to state, but in broad terms, a landlord has to give notice to the tenant and the court that he is seeking to remove the tenant from the property and provide the reason. Judges do not hand out eviction orders on whims. The landlord would have to demonstrate to the judge that the service member is in violation of a lease and that the proper solution is eviction. For example, if the landlord wants to evict a service member for failing to pay rent, the landlord would have to demonstrate to a judge that there is, in fact, a debt, and that eviction is the right solution.
A formal eviction process protects the tenant. Through the eviction process, the tenant receives written notice of the problem from the landlord and is given chance to explain his side of the story to a judge. In some cases, this notice may be the first time the tenant learns that there is a problem. For example, if the service member is deployed and relying on someone else to mail the rent check, he may not know that the rent has not been paid until receiving notice from the landlord. Also, if the landlord has no good reason to evict the service member, the formal proceeding gives the service member the chance to show a judge why an eviction would be wrong.
is a debt. However, if the landlord has obtained a court order showing a debt, the SCRA allows a landlord to seek allotments from a service member’s pay to satisfy the debt.
Service members must be responsible – whether acting as the landlord or the tenant.
Landlords should be vigilant when leasing property. They should conduct a credit check on the tenant and obtain references from prior landlords before renting to anyone. Likewise, tenants should be careful when selecting a landlord to be sure that the landlord is an honest business person. The tenant should also take measures to comply with the lease, such as arranging for payment through electronic check and always keeping the landlord apprised of accurate contact information. Working with a realtor can often help both the landlord and tenant to enter equitable contracts and maintain great working relationships. AHRN.com has some helpful tips for renting property.
With several million people serving in the US military, many have rented property. Many real estate attorneys near military installations are familiar with the SCRA and can offer assistance to service members if a conflict arises with a rental agreement. Also, the service members or dependents can always contact or visit the local military legal assistance office to seek assistance and see if the SCRA applies. While renting property can seem daunting, the SCRA offers service members important protections so that we can enjoy the benefits of our military lifestyles and minimize the challenges.
Meet Your Contributor:
Elizabeth is a lawyer, army wife, and mother of three. She has spent her professional career working for the US Department of Justice and the US Army. She volunteers regularly to help military families and is the president of the Military Council of Catholic Women, Inc., a non-profit subsidiary of the Archdiocese for the Military Services.