MILITARY RESIDENTS AND EVICTIONS
Each day it seems as if there is another spot in the world where there is conflict, or where destruction due to a natural disaster has occurred. Members of the armed forces are being deployed in large numbers to areas all around the globe. The event triggering the deployment may be obvious. For example, a war in the Middle East may be the cause of increasing the number of active duty military service-members. The event triggering the deployment can also be one that is less obvious, such as an earthquake in a foreign country where the military mission is to distribute massive relief aid. The increased military presence has also created more questions for property managers from residents who are service-members and family members of service-members who are unclear as to their lease obligations.
Background to the Service-members’ Civil Relief Act
The Service-members’ Civil Relief Act, also known as “SCRA”, is a federal law which affords service-members numerous protections in civil lawsuits. Some of these protections allow service-members or their family members, or dependents in some cases, to delay or suspend civil liabilities. The act was signed in to law by President Bush in 2003. However, the earlier version of the law was enacted during World War I and re-enacted in 1940 during World War II, and previously was known as The Soldiers’ and Sailors’ Civil Relief Act. Why were these laws created? The answer to that question is simple. Lawmakers wanted those who are serving in the military to remain focused regarding their mission to protect our country and did not want the service-members being distracted by civil lawsuits involving them. It is also the belief that service-members are at a distinct disadvantage in terms of defending themselves from a civil lawsuit while being stationed in a far away land. Judges take this law very seriously and will in many cases “give the benefit of the doubt” to the military resident, if the outcome of the case is a close call. The United States Supreme Court in a 1948 opinion stated that the law should be interpreted “with an eye friendly to those who dropped their affairs to answer their country’s call”. The property manager attempting to evict a resident on active duty in the military or a resident in the process of reporting for active duty often encounters the following two areas that the Service-members’ Civil Relief Act covers: protection against the entry of default judgments, and a stay of proceedings when the service-member has notice of the proceeding. “SCRA” covers residential evictions of service-members or their dependents during the period of military service, unless the monthly rent is unusually high (currently an amount exceeding $2900.00; this amount is adjusted each year for inflation). “Dependents” are defined under the Act as the spouse of the service-member, a child of the service-member or an individual for whom the service-member provided more than one-half of the individual's support for 180 days immediately preceding an application for relief under “SCRA”.
Does the “SCRA” Apply to the Residents That I Intend to Evict?
Your three bedroom units are in hot demand because there are so few available in your market. Charlie, Wilma and Andrew are roommates and have stopped paying the monthly $2400 rent. You know that you can relet the unit the minute that the residents are evicted. You are very anxious to take back possession of the apartment. Yesterday, Charlie was called to active duty by the Coast Guard. Wilma is Charlie’s girlfriend, and up until 7 months ago when Charlie was laid off, she was supported entirely by Charlie for the last 27 years. He had paid for all of her living expenses. Much to Wilma’s dismay, Charlie has continued to pay for Andrew’s college expenses, even though Andrew is not a relative. In fact, Charlie has provided Andrew with 55% of his living expenses over the course of the last six months. Are Charlie, Wilma and Andrew covered by “SCRA”? The rent amount is low enough to fall under the act. It is clear that as a member of the Coast Guard on active duty, “SCRA” will apply to an eviction action filed against Charlie. With regard to Wilma and Andrew, they may have coverage if they are treated as “dependents” of a service-member. Unfortunately for Wilma, she is neither the spouse of Charlie, nor has she received enough living expenses in the recent past, since the service-member must provide more than half of the support during the preceding six months. Andrew, on the other hand, is considered a “dependent”, because he received 55% of his living expenses from Charlie during the last six months.
Obtaining a Default Against the Service-member or Dependent of the Service-member.
During the normal eviction scenario, if the resident does not answer the complaint after 5 business days, the manager is entitled to a default which is entered by the clerk of the court. The judge then will sign the final judgment of eviction. In the case of a service-member or dependent of a service-member, the process to obtain a default is more complicated. The judge, not the clerk of courts, must enter the default. To obtain the default, the manager must first provide the judge with an affidavit regarding the resident’s military service or the service-member who is a father, husband or financial supporter. If the verification is inconclusive as to military status, the judge may enter a default but also require the manager to post a bond in a certain amount to protect the residents from damage, if the judgment is set aside at a later date because it turns out that one of the residents was a service-member. If the military verification shows that the resident, parent, or financial supporter is in the military, then the judge will order that an attorney be appointed to represent the resident. This attorney is called a military ad litem attorney. Extra costs are involved in this process, and courts may pass this cost on to the manager. The military ad litem attorney will attempt to locate the service-member and will review the case file to determine if there are any valid defenses that the service-member may assert. If the military ad litem attorney submits a report to the court that he does not believe that the resident has any valid legal defenses, the court then may enter a default and subsequently award possession back to the manager. Remember this: The Act calls for those who knowingly file false military verification affidavits to be fined and IMPRISONED FOR UP TO ONE YEAR. You read that right! You can end up in jail if you mislead the court here.
Potential 90 Day Stay
Cletus, one of your residents, has been called up for active duty in the Navy. Cletus did not pay the March rent. You deliver a three day notice, and subsequently file an eviction against Cletus after his continued failure to pay the owing rent. Cletus answers the complaint with an admission that he has not paid rent, but claims that there was some sort of oral agreement made with your assistant property manager, allowing him to pay late, and that he has been struggling with his bills since his deployment. Now that Cletus has responded, your attorney tells you that the military ad litem attorney is not required here, since the military resident filed an answer with the court and has therefore appeared in the action. You are happy to hear that, but your happiness is short-lived, because your attorney informs you that Cletus is likely entitled to a stay of the proceedings for at least 90 days. The Act will often entitle Cletus to a stay of at least 90 days, no matter how weak his legal defenses, if he can simply convince the judge his military service is adversely affecting his ability to timely pay the rent. The judge can stay the proceedings for a lesser period of time, but often judges will exercise their considerable discretion in favor of the service-member. The judge also has power to restructure terms of the lease, and has discretion to award a longer stay depending on the facts and circumstances.
Waiver By the Service-member
A property manager should still keep in mind that “SCRA” allows the service member to waive protections afforded under the act. Therefore, entering into a stipulation with the military resident is often a good idea. However, you should consult with your attorney to make sure the waiver wording listed on the stipulation is legally enforceable.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW