When a PCS is in the works, finding a home is probably the most important part of the relocation process. For many military families, rental properties often fit their needs.
However, renters and landlords must consider a few things beyond searching online photos and ordering background checks. Both parties should know their legal obligations in the current lease and any potential lease in the future. The legal and monetary ramifications could be devastating if everyone isn't completely informed.
Before 2003, when the Servicemembers Civil Relief Act (SCRA) was created, a military clause was the most common term service members inserted into a housing lease. The tenant typically added a military clause in the rental agreement to exempt the service member from their signed lease if a PCS move was pending. Now, the SCRA covers most of those relocations, and a military clause can be added to a lease to simplify or further describe unique housing circumstances.
Whether you're a landlord or renter, the following information is everything you need to know about the military clause and its often confused cousin, the SCRA.
What is the Servicemembers Civil Relief Act?
The SCRA is a federal law enacted to provide legal protections to active-duty service members. Regarding housing contracts, a clause in the SCRA guarantees military members, including certain groups of activated National Guard and Reserve components, the right to early lease termination if conditions are met.
The SCRA allows early termination if:
- The member entered into military service during the lease.
- The member started a lease during military service and receives orders to deploy for at least 90 days.
- The member received Permanent Change of Station orders.
AND - The tenant provides written notice of intention to move.
- The tenant delivers the landlord a copy of official military orders.
- The tenant satisfies rent payments for both the month the notice is given and the following month.
When these qualifications are met, the tenant’s lease is terminated 30 days after the first date of the next monthly payment due.
Military members should also know the complete SCRA legislation covers more than real estate concerns. Protections and benefits are provided for in the following areas: interest rates, contracts, insurance, and tax rights, as well as during judicial proceedings. Military members often find significant savings by contacting their financial institutions and invoking their SCRA benefits, especially concerning credit card fees and APRs.
What is a Military Clause?
A military clause is not part of the SCRA; it is a customized agreement inserted into a lease. The tenant and the landlord formulate and uphold it. A military clause often enhances the SCRA but does not replace it.
A typical example of a military clause might be similar to the following:
This lease is executed with the express understanding by Landlord that Tenant is on active duty with United States Armed Forces. The lease may be terminated thirty (30) days after Tenant has notified the Landlord, in writing, that the Tenant has received notice from the Housing Office that government quarters are available under either of the following conditions: (1) Tenant has been ordered by their command to reside in government quarters; or (2) tenant informed Landlord prior to commencement of the lease that Tenant has requested government housing and is awaiting government quarters.
Tenant and Landlord Rights
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What Renters Need to Know
Because relocation is inherently stressful, understanding the terms of the SCRA and a potential military clause is a proactive technique to alleviate undue angst about leaving a rental lease early.
Important points to note:
- Confusion regarding the SCRA, military clause, and tenants' rights can be investigated by scheduling an appointment with the closest U.S. Armed Forces Legal Assistance.
- If you need an SCRA lease termination letter, seek military legal assistance. However, you can review this example letter created by the Marine Corps.
- Maintaining an honest and open relationship with your landlord regarding pending or potential PCS moves alleviates many of the concerns associated with moving. Remember, federal law enforces the SCRA.
- Although including a military clause is recommended to stipulate any exceptional details that would end a lease early, the SCRA conditions are valid regardless of the insertion of a military clause.
- Regardless of what the lease dictates, including the military clause, the SCRA prevents the renter from paying out the remainder of the lease or a termination fee if the lease has to be broken within SCRA protections.
- Renters often misunderstand their rental property lease obligations. It's important to know that the lease is only terminated 30 days after the first day of the following month’s payment. For example, if orders arrive on October 10, then full payment is due November 1. The lease then legally ends on November 30.
- If the service member’s name is not on the lease (only the spouse’s signature), it’s likely the service member is covered anyway, but each state determines if the SCRA extends to the service member if the housing was for their use. The service member must have their name on the lease to have a clear way out of the lease via the SCRA. If not possible, a specific housing-related power of attorney is required for a spouse to submit written notice without the signature or presence of the service member.
- Tenants may waive their SCRA rights. Although there are not many situations where this benefits the service member, it is legal provided the landlord and tenant agree, and it’s written in the lease. This option is sometimes used by tenants when rental markets are tight, and the tenant needs to occupy the home quickly.
What Landlords Need to Know About the SCRA and Military Clause
Honoring the request for a military clause may seem like a burden, especially if the landlord worries about an unnecessary vacancy. A tenant and landlord create a military clause to explain how and why it should be invoked.
The classic example of a military clause refers to any military region with multiple military installations nearby, but heavy traffic and intense commute times are daunting. Although the orders state the change in installation, the distance may not be far enough to warrant a true PCS, and the SCRA could not be activated. A military clause allowing termination due to a change in installation, regardless of PCS orders, is an option if both landlord and tenant agree.
Another popular military clause concerns an on-base housing waitlist. Tenants can include a military clause exempting them from the lease’s terms if a home on base becomes available. Landlords need to be aware that there are circumstances when each branch dictates that certain service members are mandated to live on post when housing becomes available.
State laws sometimes come into play regarding this issue. The state may interject that the service member needs only to provide the landlord with the documentation from housing stating a home is available to be removed from their lease.
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Other important points for landlords:
- Tenants cannot be penalized for utilizing the SCRA in appropriate situations.
- Although managing an early lease break can be inconvenient, landlords must, by law, return a full security deposit minus the previously agreed-on damage assessments found in the lease, typically “normal wear and tear.”
- Renters sometimes have the luxury of a couple of months’ notice of transfer. If the tenant submits the written notice before the required 30 days, the landlord cannot evict the tenant early.
- If the tenant has prepaid any monthly rent fees, the landlord must refund the rent until the termination date.
- The SCRA isn’t restricted to service members only. It also covers the family, meaning the spouse is not responsible for the lease—even if their name is on the document.
3 Common SCRA and Military Clause Misconceptions
Misconception #1: The SCRA and a military clause are the same.
No. The SCRA is a federal law that protects service members from adverse actions resulting from exiting a lease early. It must be adhered to.
A military clause is a clause mutually agreed upon in the lease that describes a circumstance for termination, such as the desire to live on base when a house becomes available.
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Misconception #2: Every state has the same landlord/tenant laws pertaining to the military clause.
No. Individual state laws may override a military clause. For example, this military clause explanation document prepared by the Navy Legal Assistance Department in San Diego, California, describes the state’s laws regarding the enforcement of a military clause:
“In California, military clauses providing protection beyond the SCRA are NOT statutory (i.e. automatic). They must be negotiated by you (the lessee) and the landlord (the lessor), preferably in writing. The landlord has the right not to agree to a military clause.”
Misconception #3: A military clause is a tenant’s tool for automatically nullifying a lease.
No. The SCRA is the only law that allows service members to end a housing lease early if the tenant meets the correct conditions: military service starts during the lease, orders to deploy for at least 90 days are received, or PCS orders are written. The tenant also must provide written notice and a copy of the orders.
When it comes to rental agreements and a military clause, remember these two disclaimers:
- Each state has different laws that affect a military clause.
- Each tenant/landlord rental agreement is unique.
Knowing your specific rights as the landlord or renter is crucial to achieving a successful lease term, whether completed in its entirety or shortened by military duty.
To start in the right legal direction, consider using the services offered by MilitaryByOwner partner, U.S. Legal Forms. The company has 85,000 state-specific legal documents and forms covering many categories, including a Landlord-Tenant package.
Note: This article is not intended as legal advice but is for informational purposes only. Check your state's laws and consult with an attorney if you have specific questions.
