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my friend has a tenant who is active military member. He is given PCS to move within 20 miles radius of the rental property, can he still break lease under SCRA just because he has PCS
my friend's tenant is active military person he got PCS to move just within couple of miles of previous place.. he still wants to break lease under SCRA.. isnt this unfair? infact new work place is closer than previous work place. Arent some people shameless to take advantage of law. Why law creators dont think of this when they create law and put better clauses for determination
Quote:
Originally Posted by Rabrrita
Section 535 is one of the most poorly written sections of the SCRA and is also the most amended and memorandum section.
In essence, the law was designed to ensure that military members and their families are able to terminate their existing lease with only a small financial hit. Part of the section gives a service member the ability to terminate their lease if they receive a permanent change of duty stations. The law never considered what would happen if there are multiple duty stations within the same geographical area and you are transferred from one to another. This has created a major bottleneck of lawsuits, counter lawsuits, DOD pitted against DOJ, Congress against DOD and DOJ, with the service member and landlord stuck in the middle.
Trying to change the law has proven to be more difficult because at the first mention of amending the permanent change of duty stations, you have all sorts of military and veteran groups calling for the heads of any congressperson contemplating such a change. Even though the laws original intent was to protect long distance transfers and deployments, the mere suggestion of a change riles many.
In October 2010, Congress the DOD and the DOJ reached a compromise and added a memorandum of clarification that the law still applies to any permanent change of duty station with the caveat that a service member must meet the test of “unable to occupy”. That translates to any permanent change of duty station where they are no longer in that geographical area (common known reasons) and for same geographical areas, an “unable to occupy” condition must be met.
So, in order for that service member to use the SCRA, they must show that their same geographical change of location has a restriction that prevents them from continuing to occupy the rental.
Now, I want to caution you that because it is not written in the law except as a memorandum, some local military legal advisors fail to read that memorandum and they believe any PCS local or long distance is covered. So they will attempt to use the SCRA against the landlord. The landlord will need to get DOJ involved to clarify the "unable to occupy" requirement. This only pertains to the SCRA; local state laws may have additional protection to the service member.
Someone messaged
What’s a permanent change of station?
Permanent Change of Duty Station (PCS)—In general,
movement of an Airman to a different duty location for
permanent duty, regardless of distance (with or without
concurrent change in unit of assignment) under competent
orders that do not specify the duty as temporary, do not
provide for further assignment to a new permanent duty
station, or do not direct return to the old permanent duty
station. AFI 36-2110, Assignments, Attachment 1.
Furthermore, in a recent court case, the United States sued Empirian, alleging that it failed to terminate leases and return security deposits of active duty troops at Offut Air Force Base who complied with the lease termination provisions of section 535 of the SCRA.
The case was ultimately settled, with Empirian being directed to take several remedial actions, including termination of leases and return security deposits upon receipt of tenant orders to begin active duty service, to deploy, or to execute PCS orders.
In accordance with the terms of the settlement, Empirian was also required to post certain notices, to properly train its people concerning the SCRA, and to refund an aggregate amount of $12,500 to the four service members whose SCRA rights were violated.
Last year, the Veteran’s Benefits Act amended the SCRA to close another loophole for landlords and property managers who attempted to evade the SCRA by providing “move-in incentives.”
In this scheme, the landlord provides an up-front financial incentive to new tenants, which tenants forfeit upon leaving prior to end of the lease term, for any reason, including military orders. The VBA specifically prohibits any early termination charge when terminating pursuant to the SCRA.
Service members may terminate the lease by providing the landlord with written notice to terminate and a copy of the relevant orders (or a letter from the commanding officer verifying the receipt of such orders). The effective date of termination is 30 days after the next rental payment is due. For example, if rent is due April 5 and notice is provided April 1, the effective date of termination is April 5, plus 30 days. No penalties of liquidated damages are authorized under the SCRA. Landlords who knowingly violate section 535 of the SCRA are also subject to criminal penalties, including a fine and up to a year in prison.
think the phrase "regardless of distance" in the first citation indicates that the service member can terminate the lease even if he/she is in a position to utilize the premises despite the transfer order. A footnote in an annotated statute book is not part of the statute. So the footnote writer might have been wrong and might have used a poor choice of words. Please notice they also made a grammatical error in the footnote - it says "to try and defeat..." when proper English would require the wording to be "to try to defeat..." So should not rely so heavily on this footnote for guidance.
Found two other sources that tend to indicate that the lease may be terminated in this circumstance:
The current law is found at 50 U.S.C. App. § 501 et seq. Courts have generally construed the SSCRA liberally to protect those in uniform, and the same should be true with the SCRA. The U.S. Supreme Court has said that the statute should be read "with an eye friendly to those who dropped their affairs to answer their country's call." Le Maistre v. Leffers, 333 U.S. 1, 6 (1948).
Interpreted like - to mean that in the event of ambiguity in the statute a court will err on the side of the serviceman/servicewoman rather than on the side of the landlord.
Also,
"They are not required to demonstrate that their ability to perform under the lease agreement is “materially affected” by military service." (found in the Ohio Bar Journal)
I don't know how this author came to this conclusion, but if it is true, then the serviceperson would only have to provide proof of a PCS to terminate the lease? If we tried to argue that the serviceperson's ability to perform the lease is not materially affected by the move because the have actually moved closer, the judge would rule in favor of the serviceperson?
The US Dept of Justice document was sent to you in the Direct Message. Good luck, let us know what they decided to do.
Could you please send it to me also?
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