Tenant & Landlord Issues

Whether you are a servicemember who is a landlord because you are renting out your residence, or a servicemember who is a tenant, certain legal rights and responsibilities apply to both the landlord and tenant. The following are frequent issues that may arise whether you are a landlord or a tenant.

Legal Issues Related to Early Termination of a Lease.

A lease is a contract between the landlord and the tenant and it is in effect for the time period specified in the lease. If either party breaches (breaks) the lease, they are still liable to the other party for what was agreed to under the terms of the lease. For example, if the tenant moves out early, he is still liable for the rent for the remainder of the lease. However, the landlord has a duty to “mitigate” his damages by using reasonable efforts to rent to another tenant. If the tenant stops paying rent, the lease will often allow the landlord to terminate the lease and often allows him to keep any advance rents and/or security deposits.

How to Deal with Potential Early Termination of Lease Issues.

If a tenant is having problems with their residence (unsanitary conditions, noisy neighbors, hazardous conditions, etc.), the tenant must document these problems in writing and send a copy of the documentation certified mail/return receipt requested to the landlord. Likewise, the landlord should respond to the tenant’s concerns in writing. If the lease is terminated early by one of the parties, then the written documentation will be invaluable if the case ends up in court. The more evidence the tenant has that the landlord was informed about the problems and that the landlord failed to correct them, the stronger the tenant’s case will be. On the other hand, the more documentation the landlord has showing that the tenant’s concerns were dealt with in an appropriate and timely manner, the stronger the landlord’s case will be.

Legal Issues Regarding the Early Termination of a Lease Due to Orders.

Any lease entered by a servicemember should contain a “military clause.” A military clause allows a servicemember to get out of a lease under certain conditions. If a lease to a servicemember does not have a “military clause” then both parties should ensure an addendum to the lease is signed which incorporates a military clause. It should be noted by both the landlord and the tenant that just because there is a “military clause” in the lease, that does not mean the servicemember can terminate the lease without being responsible for payment of a penalty that may equal one month’s rent.

However, the parties are free to agree in writing that the landlord will agree to waive that penalty. Below is a sample “military clause”:

“It is expressly agreed that if the lessee herein should receive official PCS orders from the current duty station, discharge orders from the military, or assignment to military quarters, the lessee may terminate this lease upon written notice and a copy of those orders or assignment. Termination of the lease shall become effective thirty (30) days after the date of the service of the notice upon the lessor and if the date of such termination shall fall between the days on which rent is due, the rent will be prorated accordingly.”

Legal Issues Regarding Terminating Leases Prior to Active Duty Status.

The Servicemembers Civil Relief Act (SCRA)allows a servicemember or dependent to lawfully terminate a pre-active duty lease under certain circumstances. If your lease contains a clause charging damages for such a termination, you may have to pay this amount. The leased premises must be used for dwelling, professional, business, agricultural or similar purposes by the member or the member and his dependents. The lease must be entered into prior to entry into military service and the member must currently be in military service. The lease must be executed by or on behalf of the servicemember or dependent.

Written notice must be delivered to the landlord (preferably by certified mail/return receipt or personal delivery) after the servicemember’s entry onto active duty or receipt of orders, and the notice must request immediate termination of the lease.

If rent has been paid in advance, the landlord must refund the unearned portion. If a security deposit was required, it must be refunded upon termination.

Legal Issues Regarding Evictions.

If a tenant fails to pay rent, the landlord can bring an eviction action against the tenant. The landlord must give the tenant proper written notice. The landlord can serve notice of the eviction lawsuit on the tenant by posting a summons and complaint on the premises and mailing the tenant a copy.
The SCRA has a provision to prevent eviction of a servicemember or dependents for nonpayment of rent without a court order. This protection is available to dependents in their own right. To be eligible for the protection, the premises must be occupied as a dwelling by the servicemember or by the dependents of a servicemember. To invoke this protection, the servicemember or dependents should ask the court to delay the eviction action for up to three months. The court is required to grant the stay if requested and can require the tenant to prove that their ability to pay was materially affected by military service.

Legal Issues Regarding Security Deposits.

Whether the lease ends by early termination or at the end of the lease period, the landlord has a set period of time to return the security deposit in full. No portion of the security deposit can be retained to cover “normal wear and tear” of the leased property. In some jurisdictions, the landlord may be able to keep the deposit for nonpayment of rent. However, normally the security deposit is used to cover unpaid utility charges, repairs to the property, or cleaning of the premises.

If the landlord has a valid reason to keep part of the deposit, the landlord must give the tenant a detailed written statement listing the exact reasons and costs for the use of the security deposit. This statement and the remainder of the security deposit should be delivered to the tenant at the last known address of the tenant within a certain period of time. If the landlord fails to provide the statement within the required period of time, the landlord forfeits the right to retain any of the security deposit and the tenant is entitled to the return of the entire security deposit.

If the landlord unlawfully keeps the security deposit, then the tenant can file a lawsuit for the return of the lawsuit and in some jurisdictions may be entitled to damages in the amount of three times the amount of the security deposit. If the tenant wins the lawsuit, the tenant may also recover reasonable attorneys’ fees and costs.

To avoid potential legal issues regarding the return of security deposits, it is important for the landlord and tenant to do a walkthrough of the rental property and note on an inspection sheet any damage with the property. Pictures or videos during the walk through should also be taken of the property so that any damages or defects can be properly noted. A walkthrough of the premises should be conducted right after the lease is signed and again immediately at the end of the lease.