Feature
by Ted Kimbal
The Servicemembers Civil Relief Act was recently approved by Congress and signed into law by President Bush. This federal law dramatically changes the rights and obligations of military service personnel and their dependents in regard to residential rental housing. All residential property owners and managers should become aware of two separate changes: the first regards evictions and the second regards lease terminations.
Evictions
The new law applies to any residential rental unlawful detainer action where the rent does not exceed $2,400 per month. The service member and dependents could request a stay (stoppage) of proceedings for 90 days or more if he or she can show the ability to pay the rent is “materially” affected by his or her military service. However, if a stay is granted, the court could grant the landlord “such relief as equity may require.” This would allow the court to “balance the equities” of the landlord and the residents and order appropriate relief. For instance, if the rent has not been paid and there are also behavior issues or illegal activity, the court could presumably allow the eviction to continue.
The eviction process must allow for a court-appointed attorney. This attorney could also seek a stay, if contact cannot be established with the service member, or if contact has been made with the defendant but the defense requires the service member’s appearance in court. Note that the violation of these provisions is a misdemeanor punishable by up to one year in jail. In the event the landlord prevails, the new law also specifies that there can be a rent allotment made from the pay of the service member directly to the landlord.
Lease Termination
Under the new law, a service member will be able to terminate a fixed-term lease by serving a notice on the landlord if he or she becomes a member of the armed services after entering into the lease. In addition, the lease can also be terminated before its expiration date if (1) the service member is already in the military when she or he enters into the lease and then receives orders for a permanent change of station or (2) if the service member receives orders to deploy for a period of not less than 90 days. The notice of termination can be personally delivered or mailed, but the termination date is not effective until 30 days after the first date on which the next rental payment is due and payable. For instance, if the notice were served January 15, 2004, the lease would terminate on March 1, 2004, and the service member would owe rent up to that date. A landlord may apply for relief with the court from these provisions “as justice and equity require.” Any landlord who interferes with the termination of the lease or withholds or uses the tenant’s security deposit for rent owed after the lease termination date is committing a misdemeanor.
A written waiver of these rights is possible from a tenant who is already in military service, if it is in a separate waiver agreement apart from the lease. These rules also apply to those who are ordered to report for military service and to any persons ordered to report for induction into the service.
If a service member takes advantage of any of these rights, this fact cannot be used against them to deny an application for rent based on credit worthiness; and it cannot even be mentioned in any credit report or applicant screening report.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. This article is for general information purposes only. Before acting, make sure to receive legal advice from an attorney with expertise in this area of law. Ted Kimball is a partner with Kimball, Tirey & St. John. He can be reached at 800-338-6039. For other related topics, consult their resource library at www.kts-law.com. Copyright © 2004.