Are Your Tenants Members of the Military?
If you rent to military service members, then you should be aware of the Service Members Civil Relief Act, Public Law 108-189, 50 U.S.C. App. §§501-596, as amended by Public Law 108-454.
The purpose of the act in part is to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of service members during their military service.
Importantly, §521 provides for protection of service members from default judgments, and states specifically, “[t]his section applies to any civil action or proceeding in which the defendant does not make an appearance.” Traditionally speaking, if you serve a lawsuit on a tenant, and the tenant fails to respond to the lawsuit, then you may petition the court to enter a default judgment. However, it is not that simple if the tenant is a member of the service and fails to respond. Rather, the landlord must prepare and file an affidavit, stating under oath:
a) whether the tenant is a service member, or
b) if you do not know whether the tenant is a service member.
If the tenant is not a service member, then the protections of this federal law do not apply.
If the tenant is a service member, then the protections of the law do apply. If you do not know whether the tenant is a service member, then the court may appoint an attorney to locate and represent the potential service member.
In an action in which the defendant is in military service, the court shall grant a stay of proceedings for a minimum period of 90 days upon application of counsel or the court’s own motion if the court finds 1) there may be a defense and the defense cannot be presented without the defendant, or 2) after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.
The impact of a 90-day stay on a landlord could be very significant.
Under §523, any late payment penalties may not be enforceable. Under §524, if a court decides that the service member is materially affected by reason of military service in complying with a court judgment or order, then the court may on its own motion and shall on application by the service member (1) stay the execution of any judgment or order entered against the service member; and (2) vacate or stay an attachment or garnishment of property, money, or debts in the possession of the service member or a third party, whether before or after judgment.
Evictions are dealt with under §531. Importantly, a person who knowingly attempts to evict a service member without complying with §531, is committing a criminal act punishable by a fine and up to one year in jail. As an aside, this is one place where it is important to point out that Arkansas has a criminal Notice to Vacate procedure, which is technically not an eviction. Nonetheless, the criminal Notice to Vacate procedure serves much of the same purposes, and the Service Members Civil Relief Act does not apply to criminal actions, pursuant to §512(3)(b).
How can landlords protect themselves while renting to members of the service? Under §517, “[a] service member may waive any of the rights and protections provided by this Act.” To waive any rights under the act with regard to a lease, the waiver must be in writing, and the language must be in at least 12-point font. Therefore, I suggest that my clients include the following in their leases:
“I hereby waive any rights I may have under the Service Members Civil Relief Act, Public Law 108-189, 50 U.S.C. App. §§501-596, as amended by Public Law 108-454, or as subsequently amended.”
Should you ever have any questions concerning a landlord-tenant issue, please do not hesitate to contact me at 501-952-8114 or via email at Jason@jasonbolden.com.<