My tenant has violated the terms of the lease. Can I evict? The leasee is deployed in the armed forces, and his family hasn’t paid rent. Can I evict?
These are a couple of the common scenarios you’ll typically see involving landlords across the country. Today, there are a number of concerns and misconceptions about when it is legal to evict, due to restrictions set forth under the Servicemembers Civil Relief Act.
The SCRA protects military members from debt collections, including evictions and foreclosures. However, this law isn’t black and white – it does not forbid evictions of servicemembers – and it is instead more nuanced. This means the answer to: “Can I evict?” is more, “Well, perhaps.”
Here is what you need to know to clear up any of your misconceptions and ensure you are operating within the boundaries of the SCRA.
Is the military member on the lease?
This can seem like a tricky situation for some landlords. The apartment is rented to one person, who then lets a friend (who is a service member) live there as well. In many cases, this is a violation of the lease itself, but some landlords are worried about eviction since the person is in the military.
In this specific case, the answer is determined by whether the military member is on the lease. If they aren’t, they don’t have these renter protections under the SCRA. The landlord can treat the leasee like any other renter. However, SCRA rights come into play if the scenario is slightly tweaked.
For example, if the servicemember leaves behind a spouse and child while deployed on active duty, SCRA will factor in. Consider a situation where the leasee is overseas, and his or her spouse stops making regular rent payments. Landlords have the right to evict, but due to the SCRA, they must seek a court order beforehand.
Is the service member on the lease?When can landlords evict?
Once a service member violates the terms of the lease, several criteria have to be met before eviction. The first revolves around time: When did the leasee enter active duty, and when did they sign the lease in relation to active duty?
In simpler terms, a lease signed during active duty isn’t protected under the SCRA. This is because the servicemember is reasonably expected to understand how military deployment will affect their ability to pay rent, and active duty is known – not something that may happen in the future. If the lease was signed before active duty, SCRA protections are in effect.
The second criteria is the court order mentioned above. The SCRA never prevents a landlord from evicting a tenant. It only requires that a court order be acquired beforehand, and it ensures military members have a reasonable amount of time to pay back any accrued debts. For a landlord interested in eviction, the second step is to bring the matter before a judge.
Outline when the lease was signed, when the leasee entered active duty and when the terms were violated. Then, the judge will either grant a court order for eviction – active military status had no effect on the tenant – or deny the court order – active-duty status prevented the leasee from fulfilling his or her financial obligations.
“Court orders allow landlords to move forward with eviction.”
What happens next?
Following a court order, the judge also reserves the right to stay the eviction for up to three months. This window is so the leasee can pay back any debts or resolve any other outstanding issues if they were impeded by their active duty.
If either the stay period has elapsed or the court order is immediate, the landlord may begin the eviction process like any other. One of the biggest misconceptions about the SCRA and rental agreements is that tenants can never be evicted if they are service members. This is not true. The SCRA only ensures service members have the same rights as civilians, and that they are not penalized for active duty.
Landlords who work with the courts to pursue eviction will not violate the SCRA. The key is knowing when and if the tenant is an active-duty service member, and when they signed the lease in relation to their deployment.