Dangers and Difficulties when Evicting Service members

by Brian P. Wolk, Attorney at Law
 

Turn on the television, or open up a newspaper, and you are virtually guaranteed to see many areas around the world filled with fighting and civil unrest. In addition, there is usually some type of natural catastrophe in which major damage has occurred. The brave men and women of the United States Armed Forces who protect our country are often deployed in large numbers in many countries all around the globe, and for many different reasons. For instance, the United States could be involved in a conflict in a far-off region. The event causing the deployment can also be one that is primarily a humanitarian effort, such as a typhoon in Asia, where in the aftermath our servicemembers hand out much needed essentials and deliver other aid. The additional presence of servicemembers who are deployed has also created uncertainty for property managers who have residents on active military duty and family members of servicemembers. The property manager in many cases has no idea how to go about evicting such a resident or the servicemember’s family members. Making matters worse, property managers rarely understand how much potential liability there is when improperly evicting a servicemember.

History of the Service members’ Civil Relief Act

The Servicemembers’ Civil Relief Act, also known as “SCRA”, is a federal law which gives service members many protections with regard to civil lawsuits. Those protections enable service members and the service member’s family members, or dependents in some cases, to delay or suspend civil liabilities. The Act was signed into law in 2003. However, an earlier version of the law was enacted during World War I and re-enacted in 1940 during World War II, which law was previously was known as The Soldiers’ and Sailors’ Civil Relief Act. These laws serve the same general purpose. The acting Congress and President at the time intended for those who are serving in the armed forces to not be distracted with respect to their main focus, which is to protect the United States, and did not want the servicemembers being worried about civil lawsuits filed against them. There is also a well grounded assumption that servicemembers are at not on a level playing field in terms of defending themselves from a civil lawsuit while being located a great distance away from the United States. Judges view this law very seriously, and military residents are likely to prevail in court unless a judge is absolutely sure that the protections do not apply. Property managers should not expect to receive the “benefit of the doubt” in a close case. The United States Supreme Court in a 1948 opinion made clear that the law should be viewed “with an eye friendly to those who dropped their affairs to answer their country’s call”.

Eviction Protection under the SCRA

The property manager intending to evict a resident on active duty in the military or a resident in the process of reporting for active duty often must deal with two areas that the Servicemembers’ Civil Relief Act covers, which is protection against the entry of default judgments, and a stay of proceedings when the servicemember has notice of the proceeding. “SCRA” covers residential evictions of servicemembers or their dependents during the period of military service, unless the monthly rent is unusually high. “Dependents” are defined under the Act as the spouse of the servicemember, a child of the servicemember, or an individual for whom the servicemember provided more than one-half of the individual’s support for 180 days immediately preceding an application for relief under “SCRA. As you can see, the definition of a dependent is much broader than just an immediate family member.

 

Entry of a Default against a Servicemember

When evicting most residents, if the resident does not answer the complaint after 5 business days, the property manager is entitled to a default which is entered by the clerk of the court. The judge then will enter the final judgment of eviction. Not so in the eviction of a servicemember or dependent of a servicemember: the process to obtain a default is drawn out and complicated. The judge, not the clerk of the court, must enter the default. To obtain the default, the property manager must first provide the judge with an affidavit regarding the resident’s military status. If the verification is not clear as to military status, the judge may enter a default, but also require the landlord to post a bond in a certain amount to protect the resident from damage. If the judgment is set aside at a later date because it turns out that one of the residents was a servicemember, the bond may be used to satisfy the servicemember’s losses, and the bond will not be dissolved until the time to file all state and federal law appeals has been exhausted. If the military verification shows that the resident is on active duty in the military, then the judge will order that an attorney be appointed to represent the servicemember, if no appearance is made on behalf of the servicemember. Many counties require certain military verification reports to be run when submitting default paperwork, and it is vital that property managers obtain social security numbers and birth dates of all residents who sign the lease, as that information is needed in order to generate those reports.

Military Ad Litem Attorney

This attorney that is appointed by the judge to represent the servicemember is referred to as the military ad litem attorney. Substantial additional charges and fees are involved in this process, and courts will often expect the property owner to pay, since this area of the law is unclear as to who has the burden to pay for the ad litem attorney. The military ad litem attorney vigorously tries to find the servicemember and will review the eviction filing to see if there are any valid defenses that the servicemember may have. If the military ad litem attorney submits a report to the court indicating the resident does not have any valid legal defenses, the court then may enter a default and then give possession of the unit back to the property manager. A property manager should never file a false military verification unless the property manager is seeking to do jail time. The law imposes heavy punishment on those who knowingly file false military verification affidavits, as violators can be imprisoned for up to one year, in addition to being fined.

The Judge may Delay the Eviction

The Act authorizes the judge to grant a stay on the eviction for a period of at least 90 days, no matter how feeble the servicemember’s legal defenses are, as long as the servicemember demonstrates to the judge that military service is adversely affecting the servicemember’s ability to timely pay the rent. The judge can stay the eviction action for a lesser period of time, but often judges will grant as much time as the servicemember needs. The judge also has authority to change terms of the lease, and has discretion to increase the stay to a period of longer than ninety days if the facts support such a ruling.

Servicemember Stipulations

A property manager should always remember that the SCRA allows the servicemember to waive protections afforded under the act. Thus, entering into a stipulation with the military resident under eviction is usually a good idea. However, the property manager’s eviction attorney should draft the waiver wording listed on the stipulation so that it is legally enforceable. If the servicemember fails to abide by the properly worded stipulation, an eviction judgment based on the stipulation noncompliance can usually be obtained without the necessity of an attorney ad litem appointment.

Final Words of Advice

Property managers should attempt to evict residents who are on active duty in the military only as a last resort. The reason is simple: the eviction of a servicemember can take many months. These cases are usually significantly more expensive, as the property manager often must end up paying for the resident’s military ad litem attorney. Therefore, before trying to evict the military resident, the property manager should work overtime to see if an agreement to vacate can be signed. In many cases it is worthwhile for the property manager to agree to waive collection rights, if this will give the servicemember or the servicemember’s dependent an incentive to turn in keys and deliver possession back to the property manager without the need for an eviction.

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