Real Property Protections for Military Families

On December 19, 2003, President Bush signed the Servicemembers’ Civil Relief Act into federal law (“Act”) which expanded legal protections for servicemembers and their families from civil court and administrative proceedings initiated during periods of active duty military service. 50 USC Title 50, Chapter 50. The protections under these laws extend to the Army, Navy, Air Force, Marine Corps, and Coast Guard, commissioned corps of the National Oceanic and Atmospheric Administration, and commissioned corps of the Public Health Service. 10 US Code Section 101(a)(5). The laws use the term “military service” to mean active duty, call to active service during state of emergency for more than 30 days for a member of the National Guard, or any period during which a servicemember is absent from duty because of sickness, wounds, leave, or other causes. 50 USC Section 3911(2). The Act only applies to civil actions and administrative proceedings brought against a servicemember or his or her family brought within the United States and US territories. The Act does not apply to criminal actions.

Given the frequency with which most military families are forced move around, it is likely that many servicemembers will either be tenants or will purchase property at some point in time. It is vital that all military families are aware of these laws, particularly as they relate to matters involving real property leases and foreclosures.

I. Evictions

One of the most important protections granted to a servicemember under the Act is the protection from eviction proceedings for non-payment of rent. If the servicemember or his or her family have difficulty paying the rent due to the servicemember’s active duty status, the landlord is prohibited from evicting the servicemember or his or her family for nonpayment of rent without a court order. This only applies to properties being rented as the primary residence of the servicemember or his or her family where the monthly rent does not exceed $3,451.20 (as of January 1, 2016). The monthly rental value is adjusted yearly based on the Consumer Price Index.

If the landlord violates this Act, and initiates eviction proceedings against the servicemember or his or her family for nonpayment of rent, the servicemember or his or her family may petition the court to delay the eviction proceedings for a period of no less than 90 days (or longer if necessary), or to adjust the rental payment obligations under the lease. The court is required to grant the servicemember’s request to delay the proceedings or adjust the rental obligations if such a request is made in order to preserve the interests of the servicemember. It is important to point out that this does not mean that the servicemember is permitted to stop paying rent all together during a period of active duty, merely that the landlord has to obtain court approval to do so. Similarly, landlords must be cautious in initiating eviction proceedings against tenants in the military to avoid any violations under the Act.

II. Residential Lease Termination

A servicemember has the right to terminate a residential lease without penalty at any time after entering the military or after the date of receiving military orders for a change in permanent station or deployment for a period of 90 days or more. 50 USC Section 3955. To properly terminate the lease, the servicemember must give the landlord written notice of termination along with a copy of the military orders, either by personal delivery, FedEx or UPS, or certified mail return receipt requested. For month to month leases, the lease termination date will be 30 days after the next rental due date. So for example, if the rent is due on September 1, and the servicemember gives notice to the landlord on September 5, the lease termination date will be October 31. For long term leases, the lease is terminated on the last day of the next month following the notice. So if notice is given on September 5, the lease will terminate on October 31. The landlord must refund any prepaid rent and any unused portion of the security deposit within 30 days of the lease termination date (ie/ November 30 in our example).

III. Property Purchase Contract

If a servicemember enters into an installment contract for the purchase of a house before going on active duty, and pays the deposit or installment before being called to active duty, and then breaches the terms of that contract for nonpayment, the contract may not be terminated or rescinded, and the property may not be repossessed without a court order.

IV. Foreclosures of Real Property

If the servicemember purchases a property with a loan secured by a deed of trust before that servicemember is called to active duty, and a foreclosure action is initiated by the lender for nonpayment of the mortgage, the court will be required to delay the foreclosure proceedings if the servicemember files a motion to request the stay. The foreclosure action must be initiated during the period of active duty or within one year after the period of active duty for these protections to apply, however court orders issued prior to the period of active duty will be enforceable. 50 USC §3953

V. Violations

Knowing violations of these laws is a misdemeanor resulting in punishment of fines or imprisonment. Recently, two military housing property management companies, Lincoln Military Property Management and San Diego Family Housing, were heavily fined for illegally evicting servicemembers and their families from rental properties in San Diego and Orange County for nonpayment of rent. The servicemembers being evicted were on active duty service and could not appear in court to defend themselves in the eviction proceedings. The management companies failed to notify the court that the tenants were on active duty status, and in fact filed an affidavit that these servicemembers were not on active duty. They also submitted documents to the court which included the birth dates and social security numbers of these servicemembers and their families in clear violation of privacy laws. Fines totaling more than a half a million dollars were imposed by both the U.S. Justice Department and the California Attorney General’s office for violations of the Act. Violations of the Act should not be taken lightly, and landlords are strongly encouraged to contact our office before initiating any eviction proceedings against a tenant who is in the military.

If any servicemember or family believe that violations of the Act have occurred in your personal situation, you are encouraged to contact your nearest military legal assistance officer who can assist you with your claim.

This article is for informational purposes only and does not constitute legal advice. For specific questions related to this article, please contact the Law Office of Ashley M. Peterson, and we would be happy to answer whatever legal questions you may have.

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