RIGHTS OF MILITARY TENANTS TO BREAK LEASE:s.sdcpm.com/Militarylease

Kimball, Tirey & St. John LLP

Military Lease Terminations
September, 2011


The Federal Servicemembers’ Civil Relief Act allows servicemembers to terminate leases
under certain situations. If a tenant becomes a service member after entering into a fixed term
lease, the service member can terminate the lease by serving a notice on the landlord. If the
tenant is in the military when the lease is signed and then after the lease is signed the tenant
receives “military orders” for a permanent change of station or, if he or she receives “military
orders” to deploy for at least 90 days, the tenant can also terminate the lease before its
expiration date. The notice of termination can be personally delivered or mailed. Any landlord
who interferes with the termination of the lease or uses the security deposit for rent owed after
the lease termination date is committing a misdemeanor.

A written waiver of these rights is possible, but only from a tenant who is already in the military
service. The waiver must be in an agreement that is separate from the lease. The waiver must
specifically reference the lease. The waiver must be in at least 12 point font. The waiver will not
be valid after a member enters into military service, if the waiver was signed before the tenant
entered into military service.

If a service member takes advantage of any of these rights, this fact cannot be used against the
service member to deny an application to rent based upon creditworthiness and cannot even
be mentioned in any credit report or applicant screening report.

These laws protect the dependents of military service members as well. Some military
advocates argue that the laws protect non-dependant roommates, particularly because the
SCRA is to be “liberally construed” in favor of the military. However, no statute explicitly
protects non-dependant roommates.
Under the Federal law, a “service member” is:
· a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard on active duty;
or· a member of the National Guard under a call to active service authorized by the
President or the Secretary of Defense for a period of more than 30 consecutive days
under section 502(f) of title 32, United States Code, to respond to a national emergency
declared by the President and supported by Federal funds; or
· a member of the commissioned corps of the Public Health Service on active service; or
· commissioned members of the National Oceanic and Atmospheric Administration on
active service;

The Federal Servicemembers’ Civil Relief Act applies to any service member:
· who is on active duty or active service; or during any period when the service member is absent from duty because of sickness,
wounds, leave, or other lawful cause.


“Military orders” are “ . . . any official military orders, or any notification, certification, or
verification from the service member’s commanding officer, with respect to the service
member’s current or future military duty status.” This means a letter from the commanding
officer regarding a deployment or permanent change of station is an “order”.
It applies to any “dwelling, professional, business, agricultural, or similar” lease executed by or
for the service member and occupied for those purposes by the service member or his
dependents.


A certificate signed by an authorized officer of the military may be used as proof of the service
member’s military service and dates of service, the time and place where the person entered
military service, the service member’s residence, rank, branch and unit, the service member’s
monthly pay, the time and place where the service member died or was discharged from the
service.

Some landlords include lease language about military members’ rights to terminate the lease,
but it is not required to include language in the lease.


The following provision complies with the Federal Servicemembers’ Civil Relief Act:
“Military personnel on active duty may terminate this lease under Federal law if:
(i) Resident becomes a member of the Armed Forces of the United States after
Resident enters into the lease; or
(ii) Resident is or becomes a member of the Armed Forces of the United States and
receives:
a. Orders for a permanent change of station; or
b. Orders to deploy for a period of at least 90 days.
Resident must provide written notice of termination, and the new termination date must
be at least 30 days after the first date on which the next rental payment is due and
payable. (For example, if Resident served the notice on September 15th, Resident’s
tenancy would terminate on October 31.) Resident must furnish Owner with proof to
establish that Resident qualifies for this limited exception. Proof may consist of any
official military orders, or any notification, certification, or verification from the service
member’s commanding officer, regarding the service member’s current or future military
duty status. Military permission for base housing does not constitute a permanent
change-of-station order.”
Before inserting this suggested language into a lease, the terminology should be made
consistent with the terminology used in the lease.

A tenant receiving an honorable discharge from the military is entitled to terminate a lease. It is
questionable whether a tenant receiving a dishonorable discharge from the military is entitled to
terminate a lease.

California has its own version of the Civil Service member’s Relief Act at Military & Veterans
Code §400 et seq. “Service members” under the California law are National Guard officers and
enlisted members called or ordered into active state service by the Governor or into active
federal service by the President of the United States pursuant to Title 10 or 32 of the United
States Code, or United States Military Reserve reservists who are called to full-time active duty.
Full time active duty for a reservist is more than seven days in any 14-day period. For service
members called to active service or duty since September 11, 2001, to engage in homeland
defense against terrorism, the reservist’s days of service before June 21, 2002 will be credited
toward the seven day period.

If the property is occupied primarily for dwelling purposes by the service member, or the service
member’s spouse, children, or other dependants, California Military & Veterans Code §406
prohibits evictions during active military service periods and until 30 days after the service
member is released from active service or duty unless the court grants leave of court after an
application by the landlord.

Military & Veterans Code §409 applies to leases used for dwelling, professional, business, or
agricultural purposes when the lease was executed by a person who later entered into active
military service. It allows the active military member to terminate a lease by giving written notice
of termination to the landlord. If rent is due monthly, the termination will be effective on (1) the
last day of the month following the notice, or (2) no more than 45 days after the notice is
provided to the landlord, whichever is first. If rent is payable other than monthly, the termination
will be effective on the last day of the month following the month in which the notice is given. If
rent has not been paid for a period before the termination, the rent will be prorated. If rent has
been paid for a period after the termination date, the landlord must refund the overpaid amount.


The following provision may (but is not required to) be added to a lease to describe the
California law:
“Additionally, National Guard officers and enlisted members called or ordered into active
state or federal service, or United States Military Reserve reservists who are called to
full-time active duty, may terminate this rental agreement under California law if they are
called into duty after entering into this Lease.

 If termination occurs under California law,
the termination will be effective on (1) the last day of the month following the notice, or
(2) no more than 45 days after the notice is provided to the landlord, whichever is first. If
rent is payable other than monthly, the termination will be effective on the last day of the
month following the month in which the notice is given.”
Landlords may, but are not required to, grant military members rights in addition to those
specified under applicable law.

 Examples are provisions allowing a military member to
terminate a lease with less notice than that required by law, when a military member becomes
eligible for base housing, or in situations other than those specified by law. Additional rights
granted to military members may increase the chances that local military housing assistance
offices will recommend a community. Landlords who choose to grant additional rights may want
to advise the local military housing assistance offices that the community is “military friendly”
and ask that the community be added to the military housing assistance office’s referral list.
Violation of the SCRA can expose a landlord to criminal and civil liability and prosecution by the
Attorney General is authorized. A damaged military member can also bring a private cause of
action for violation of the SCRA. Liability can include consequential damages, punitive
damages, attorney’s fees and costs.