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Welcome Aboard! Residential Leasing to Military Families - November 2014

November 07, 2014

by Kathryn N. Byler

There are 27 military bases in Virginia with every branch of the service having at least one base. Quantico, Fort Eustis, and Naval Air Station Oceana are some of the installations that bring people and dollars to Virginia. Military personnel coming to the Commonwealth for a limited duration provide a steady market for rental properties. Both landlords and military tenants should be aware of special legislation and procedures designed to protect servicemembers. §§ 501-597b) codifies provisions designed to help active duty personnel meet their financial and legal obligations, some of which involve real property.

Directly relating to apartment and home rentals, the SCRA addresses early termination of leases in certain cases and offers military tenants protection against evictions while on active duty. The Virginia General Assembly has enacted legislation accordingly.

Commonly referred to as the “military clause”, early termination of rental agreements by military personnel is controlled by SCRA and Virginia Code § 55-248.21:1. Both the circumstances in which a servicemember may terminate a lease early and the procedure to be followed are given. Briefly, early termination is permitted in these four cases:

1. permanent change of station orders to depart 35 miles or more from dwelling

2. temporary orders in excess of three months' duration to depart 35 miles or more from dwelling

3. discharged or released from active duty

4. ordered to report to government-supplied quarters resulting in the forfeiture of basic allowance for quarters

To terminate a rental agreement under one of the these four circumstances, the servicemember must provide the landlord with written notice of termination to be effective on a stated date not less than 30 days after the next rental payment is due. Assuming rent is due on the first of each month, notice provided any time between May 2nd and June 1st would be effective on June 30th. Similarly, notice provided any time between June 2nd and July 1st would be effective on July 30th.

Prior to the termination date, the servicemember/tenant shall give landlord a copy of the official orders or a signed letter from the tenant’s commanding officer confirming the orders. Providing official documentation of the transfer is not required to begin the 30-days notice but is merely support necessary to finalize the early termination. The termination date may not be more than 60 days prior to the departure date on the orders.

Once procedures have been followed, the landlord may not charge liquidated damages. For example, a lease provision stating that one-month’s rent is charged in case of an early termination would not apply if the move falls under the military clause. The servicemember/tenant will be released from further obligations under the terms of the lease except to turn over possession in good condition.

SCRA also offers protection for deployed personnel. If a landlord wants to be heard on a cause of action against a party who does not appear in court, the judge will require submission of a completed affidavit regarding military status of the absent defendant. The affidavit is a notarized statement declaring that the defendant is or is not in military service and the supporting facts. For a summons of unlawful detainer or a warrant in debt typical supporting facts would be information provided on the rental application. The court provided form of affidavit for a default judgment can be found on the Virginia court website.

When the landlord declares in the affidavit and provides supporting facts that the absent defendant is not in military service, the matter will be heard by the court and a default judgment may be granted. Alternately, when the landlord/plaintiff is unable to determine whether or not the defendant is in military service, the court may require the plaintiff to file a bond in an amount approved by the court before proceeding.

When the absent defendant is, in fact, believed to be a servicemember, the judge will order appointment of counsel pursuant to SCRA (50 U.S.C.A. App.§ 521) and will stay the proceedings for a minimum of 90 days (50 U.S.C. App. § 522). During this time, appointed counsel will attempt to locate the servicemember and will either appear at the next hearing or will file a report with the court. The cost of the court-appointed counsel will be initially borne by the plaintiff along with all other costs in a civil action. This cost may be added to the judgment that plaintiff seeks. The merits of a claim for reimbursement of legal expenses will be adjudicated at the hearing and considered by the court.

A servicemember may waive rights and protections under SCRA if made in connection with a written agreement. It is not uncommon for a landlord to require a waiver of the appointment of an attorney or guardian ad litem, thereby also waiving the 90-day stay (50 U.S.C.A. App. § 517). The waiver must be in writing, prominently displayed and in at least 12-point type.

Relief under SCRA is not always automatic. In some cases, the servicemember may need assistance from the Armed Forces Legal Assistance Office or private counsel. Similarly, relying on the Virginia Landlord Tenant Act alone will not keep a landlord compliant with federal and state legislation when leasing to military families.