Comply with Military Service Law Covering Residents on Active Duty
With tens of thousands of military personnel overseas in 2003 and 2004, Congress rewrote a World War II-era law that provides certain financial protections to members of the military and their families. Today, the conflicts abroad are continuing to require the service of thousands of men and women in uniform. On the home front, it is the responsibility of housing providers to comply with the law and thus relieve some of the burden of service on military families.
The Servicemembers Civil Relief Act (SCRA) provides a number of financial protections to servicemembers, “to enable such persons to devote their entire energy to the defense needs of the Nation.” Congress intended SCRA, like the 1940 law it replaced, to protect service personnel from negative financial consequences arising from their relocation for military service—in pocketbook areas like taxes, consumer loans, mortgages, and lease agreements.
Site owners and managers must be aware of the following protections that SCRA gives residents who are active-duty servicemembers: lease termination rights, protection from eviction, right to a stay (that is, a delay) of legal actions against them, and a limit to the interest that can be charged on housing-related fees.
Lease Termination Right
SCRA gives a servicemember who receives permanent change-of-station orders, who is deployed to a new location for at least 90 days, or who is called to active-duty service for at least 90 days the right to terminate a lease or rental agreement without penalty. SCRA requires servicemembers to provide a copy of their orders, along with a written notice of termination of the lease, to the site owner. (An oral notice is not sufficient under the law.) The termination also ends any obligation of the servicemember's dependents who also signed the lease.
For month-to-month rentals, the termination becomes effective 30 days after the first date on which the next rental payment is due after the resident delivers the termination notice. Thus, if the lease specifies that rent is due on the first of each month and the site office receives the servicemember's SCRA termination notice on June 5, then the next rent payment would be due on July 1. Thirty days following that date is July 31, which would be the effective date of termination under the law.
For all other rental agreements, the effective date of termination is the last day of the month after the month in which the servicemember delivers proper written notice to the site owner or manager. In a standard one-year lease, if the date of the receipt of the notice is June 5, the effective date of termination would be July 31.
In both situations, the law requires the servicemember to pay the rent only until the effective date of lease termination. (In both examples above, the resident would owe rent through July.) If the resident has paid rent in advance, you must prorate and refund the unused portion. If the lease required a security deposit, you must return it to the servicemember within 30 days of the date of termination of the lease. SCRA makes it a misdemeanor for an owner to seize, hold, or detain the security deposit or personal property of a servicemember or dependent when there is a lawful lease termination under the act, or to knowingly interfere with the removal of this property because of a claim for rent after the termination date.
EDITOR'S NOTE: An attorney acting on the servicemember's behalf, or a person with power of attorney, may deliver the resident's lease termination notice and assert other rights under SCRA.
Protection from Eviction
SCRA protects servicemembers and their families from eviction for nonpayment of rent while the servicemember is on active duty, if the rent is $2,800 per month or less (in 2008; this number is adjusted annually for inflation).
Owners must seek court orders before bringing eviction lawsuits against active military members. While some states require a court order for an owner to evict an occupant in any case, SCRA makes it a requirement in all states and territories that owners obtain a court order to evict a military member or the member's dependents during the period of the member's active-duty service.
If the servicemember shows in court that his or her ability to pay rent is materially affected by military service, he or she, or a dependent, may request a temporary stay of an eviction action, and the court would be bound by the law to grant the request. In addition, the court has authority to “adjust the obligation under the lease to preserve the interests of all parties,” and, if it grants a stay, it “may grant to the landlord (or other person with paramount title) such relief as equity may require.”
Right to Stay of Legal Proceedings
Because of their duty assignments, service personnel are often unable to appear in court. Under SCRA, a servicemember can request to postpone actions in court (not just evictions) as well as pending actions by administrative agencies like HUD. This protection applies to federal, state, and local courts (though not to criminal courts) as well as administrative venues.
A servicemember may also ask a court to reconsider a previous matter if the court entered a default judgment against the servicemember during his or her active-duty period, or within 60 days after his or her release from active military duty. The member must show that the active service materially affected the member's ability to defend against the action, and show that he or she has a sound defense.
Right to Interest Limit
SCRA requires that a debt incurred by a servicemember, or servicemember and spouse jointly, prior to entering military service will not bear interest at a rate above 6 percent per year during the period of military service. If the servicemember's entering active military service has affected his or her ability to meet obligations, the creditor must forgive (not defer) interest in excess of 6 percent that would otherwise be incurred. The term “interest” encompasses service charges, renewal charges, fees, and any other charges with respect to an obligation or liability.
Therefore, a servicemember may ask you for forgiveness of interest above 6 percent on accruing fees incurred under his lease. He must make a written request that clearly specifies the fees involved and that establishes that his military service affects his ability to meet the obligations.
Who Is Covered?
The provisions of SCRA apply to Army, Navy, Air Force, Marine, and Coast Guard servicemembers, including members of Reserves on active duty, and to commissioned officers of the Public Health Service or the National Oceanic and Atmospheric Administration, when they are on active duty. The law also applies to National Guard members who are called to active federal service for more than 30 consecutive days.
As noted above, spouses and dependents of service personnel also have some protections under the law. However, retired military personnel, civilian employees of the Armed Services, and all personnel not on active duty are not covered under the act.
In most cases, the law applies only if the protected party formally asserts the right of protection—for instance, in providing written notice in order to break a lease. A servicemember may also choose to waive any SCRA right, though SCRA does not permit a waiver to be included as part of a standard lease agreement.
Because application of the law in the housing field is not always straightforward, owners and managers should consult a knowledgeable housing attorney with specific compliance questions. Compliance requirements vary significantly by state. Many states have crafted their own servicemember protection laws to complement, or sometimes exceed, the federal law. For instance, not only did the State of New York pass its own Soldiers' and Sailors' Civil Relief Act in the 1950s [New York Military Law §300 et seq.], it also made discrimination based on military status unlawful [Governor's Executive Order 125, March 24, 2003].
Verify that SCRA Applies
If a resident gives you a written request to exercise his rights under SCRA, or if you want to check whether a resident might be protected under SCRA before you take legal action against him, you can verify his eligibility under the act. The Defense Manpower Data Center (DMDC) maintains a free public Web site to handle SCRA inquiries. You can determine if someone is a servicemember by visiting: http://www.dmdc.osd.mil/scra/owa/home.
At this site, you must provide at least a Social Security number (SSN) and a last name. Other data fields (first name, middle name, birth year, and birth month) are optional.
If the holder of that SSN is currently on active duty, the DMDC site will provide a certification with the individual's branch of military service and the beginning date of active-duty status. You should print this report and keep it in your tenant files.
DMDC will also respond to written SCRA requests for service verification. Send your requests to:
Defense Manpower Data Center
Attn: Military Verification
1600 Wilson Blvd., Ste. 400
Arlington, VA 22209-2593
Fax: (703) 696-4156
- The Servicemembers Civil Relief Act of 2003 (SCRA): P.L. No. 108-189; 50 USC App. §§501-596.
Owner Jailed, Fined for Violating SCRA
In the fall of 2004, a soldier in the U.S. Army was deployed on training and forced to leave his pregnant wife and their two children in a rental property in Michigan. After the wife went into preterm labor, she was unable to make the December rent payment on time. Twelve days after the rent was due, the property owner, without obtaining a court order, went into the unit, removed all of the property he found, changed the locks, and placed a No-Trespassing sign on the door.
Over the next several months, the soldier tried to resolve the matter by contacting the owner directly, reporting the eviction and seizure of property to the local sheriff, and then asking Army Legal Aid for help. When these efforts failed, an Army Legal Aid attorney called the local U.S. Attorney for help.
The U.S. Department of Justice (DOJ) may intervene in cases to enforce SCRA, and the U.S. Attorney decided to prosecute the owner here. The owner admitted the crime in its entirety, though he claimed that he took custody of the unit and property because he thought it was abandoned. The owner entered a plea of guilty to the misdemeanor SCRA charge in May 2007. The plea agreement specified that the defendant would make “full restitution to the victims of his crime for the losses that he caused.” A U.S. Magistrate sentenced the owner to six months imprisonment and ordered him to pay $15,300 in restitution.
In a comment on the case, the U.S. Attorney advised his DOJ colleagues, “We hope this case will send a strong message that will discourage unscrupulous creditors and landlords from violating the rights of servicemembers and their families” (from case note in United States Attorneys' Bulletin 56:5, September 2008, pp. 6-8) [United States v. McLeod, January 2008].
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