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The Servicemembers Civil Relief Act
When a Resident is Called Into Active Military Service
As the war in Iraq continues, some apartment managers are facing special
issues when residents are called into active military duty. Under what is now
called the “Servicemembers Relief Act”, these residents or their dependents have
rights that may require special handling. This law was originally enacted during
the Civil War to provide a moratorium on civil actions brought against Federal
soldiers and sailors. It was rewritten as the Soldiers’ and Sailors’ Civil
Relief Act of 1918. It was rewritten again in 1940, and again in 2003, this time
as the Servicemembers Civil Relief Act.
The Act applies to all “servicemembers,” that is, to all members of the
“uniformed services.” This includes not only members of the armed forces, but
also members of the commissioned corps of the National Oceanic and Atmospheric
Administration and the commissioned corps of the Public Health Service.
The Act permits a servicemember to terminate a residential lease (as well as
most other types of leases) when he enters military service or when he receives
orders for a permanent change of station or orders to deploy for 90 days or
more. The Act also prohibits the eviction of a servicemember from residential
property during a period of military service except by court order. This
provision is of little importance in Tennessee where the ability to evict
residential tenants by non-court means is already so limited as to be almost
non-existent.
But more importantly, the Act requires any plaintiff in an action against a
servicemember (including landlord plaintiffs) to file an affidavit stating
whether or not the defendant is in military service. If the affidavit discloses
that the defendant is in military service, and the servicemember does not make
an appearance, the court is required to appoint an attorney to represent the
defendant. The court is then required to grant a stay of the proceedings, that
is, a delay, for at least 90 days, if the court determines first, that there may
be a defense to the action and that the defense cannot be presented without the
presence of the defendant, or second, that the attorney, after due diligence,
was not able to contact the defendant or otherwise determine if a meritorious
defense exists.
The Act also empowers the court to grant a stay of up to 90 days where the
servicemember’s ability to pay rent is “materially affected” by his military
service. This would presumably cover the situation where a reservist was earning
more in his private life than he is in military service. The Act also empowers
the court in this circumstance to “adjust the obligation under the lease to
preserve the interests of all parties.” This could be anything from adjusting
the servicemember’s rent or date of payment to making arrangements for alternate
housing or storage of the servicemember’s belongings. It may be that any such
action by a court would constitute a “taking” of the landlord’s property under
the Fifth Amendment, and that consequently, the landlord would be entitled by
just compensation by the Federal government.
The Act also gives the servicemember defendant the right to seek a stay of any
action if his military duty requirements materially affect his ability to
appear.
The protection of the Act extends to dependents of the servicemember if the
dependent’s ability to comply with the lease is “materially affected” by reason
of the servicemember’s military service. However, the protection of the Act does
not extend to other co-defendants, such as roommates who are not in the military
and who are not dependents of the servicemember.
The Act affirmatively permits the servicemember to waive the protections of the
Act. This provision has the beneficial effect of permitting servicemembers to
settle cases privately, for instance, by making a settlement agreement.
As you can see, the Act presents special problems for an apartment complex where
a servicemember-resident who is called to duty may be behind in rent or who may
thereafter fall behind. In these cases, the usual detainer process may include
the appointment of an attorney for the servicemember, and a stay of 90 days or
more during which time presumably there will be no payment of rent. And it may
call for the “adjustment” of the obligation to pay rent. When this situation
occurs it is advisable to be prepared to demonstrate to the court and to the
appointed attorney that there is no legitimate defense to your action and no
grounds for contest. And hopefully, the court will find a resolution that will
indeed preserve the interests of all parties.
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