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militaryfamilieslearningnetwork/event/22048

This material is based upon work supported by the National Institute of Food and Agriculture, U.S. Department of Agriculture, and the Office of Military Family Readiness Policy, U.S. Department of Defense under Award Number 2015-48770-24368.

Landlord-Tenant Protections for Military Members

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Mary M. Benzinger, Senior Attorney for the U.S. Army at the Pentagon Army and Air Force Legal Assistance Office.

Ms. Benzinger is a frequent lecturer on many legal issues of concern to Service members including Landlord/Tenant issues.

Today’s Presenter

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DisclaimerThe opinions expressed are those of the presenter and are not those

of the Department of the Army or the Department of Defense.

This presentation is not intended to be a substitute for legal or tax advice. Rather, it is designed to create an awareness of the need for planning and to help individuals become better acquainted with real

estate leasing terminology and documents. State laws vary - be sure to check your state laws

Renting Fundamentals

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Merio/Pixabay.com, CC0

NEW!Army releases draft joint “Tenant Bill of Rights” for military members in private housing:

1. Safe and Healthy Homes and Communities

2. Advocate for Housing

3. Professional Property Management Services

4. Responsive Communications

5. Prompt Repairs

6. Dispute Resolution, Mediation, and Arbitration

7. Withholding of BAH

8. Move-in and Move-out Procedures

9. Privacy

10.Predictable Rent

11.Fees

12.No Reprisal

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Landlord/Tenant Act

• Some leases will state whether the state Landlord/Tenant Act applies to the tenancy.

• Not every tenancy is covered by the Landlord and Tenant Act – Varies by state– The Landlord and Tenant Act set out duties of

Landlord’s and Tenant’s and other issues like repairs, mold, security deposits, etc.

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Selecting a Property

Do NOT rent sight-unseen– Even a video tour of property may not reveal

major defects and deficiencies

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Read the Lease!!

• Read before you sign!!• If you don’t 100% understand, take it to

legal assistance.• Don’t be pressured into signing (“this deal

is only for today!”)

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Promises, promises…

• Almost every lease has an “integration clause.”

• No side deals, no handshake deals are enforceable unless made a part of the written lease.

• If the salesperson/agent promises you something, make sure it’s written into the lease itself, or on an addendum.

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Premises

• Identifies the property being rented. • Be sure the address and apartment

number (if any) are correct.

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Lease Term

• States how long the lease is for (1 year, 2 years, etc.).

• May also state how much notice must be given at the end of the lease term so that the lease doesn’t automatically renew.

• May also state how much notice must be given after an extension to terminate the lease.

• Do not assume 30 days notice – many leases now say 60.

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Rent

• How much rent is to be paid?• Where paid?• Due date?• Acceptable forms of payment (check,

cash, direct deposit, money order)• May address proration for partial month

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Late payment and returned checks

• “Grace period” – Make sure your direct deposit arrives on time! If your bank is sending a check to the landlord make sure there’s enough lead time to get it there by due date

• Amount of late fee• Amount of returned check fee

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Failure to pay rent

• May require landlord to give notice (e.g. “5-day”)

• If tenant doesn’t pay, landlord may terminate lease

• Tenant may be responsible for rent for each month the place is vacant (in some states landlord must attempt to re-rent)

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Truthful ApplicationIf landlord finds out tenant lied on the application, can terminate the lease, seek damages, attorney’s fees, etc.

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Uses

• Examples:– only as a single family residence– only for the occupants identified in the lease– no subletting– no guests for more than two weeks– no noise, nuisances or illegal activity– no smoking, pets– landlord has right to terminate for violations

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Pets

• Tell the landlord if you intend to keep pets• Some complexes restrict the type, breed

and number• May be a pet deposit/fee• Lease should say whether the pet deposit

is refundable• A service animal is not a pet! (no deposit

required, etc.)18

Homeowner’s/Condo Associations

• Lease usually says whether there are any HOA/Condo Rules.

• Landlord should provide tenant a copy of the rules

• Read them! • Beware of:

– Parking restrictions, need for permit/sticker– Need to reserve elevator for move in, fee– Use restrictions (placement of firewood, swing sets, RV parking)

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Utilities

• May be tenant’s responsibility to get them put in tenant’s name immediately

• Which ones are covered by the rent?

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Kamboompics/Pixabay.com, CC0

Landlord Maintenance

• Typically states obligation to keep the premises in “good repair.”

• May require tenant to absorb first $50, etc.• BEWARE! May require tenant to do all

repairs.

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Fixtures and Appliances

• States which ones will be furnished by the Landlord

• Often says, “As-is”

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Security Deposit• How much?• What to be used for?• Interest bearing?• Time for landlord to notify of damages after

move-out.• Time for deposit to be refunded after move out.• Use of deposit during lease term for damages.

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Move-in inspection

• Landlord to provide move-in report of things wrong with premises.

• Tenant has time period to respond in writing or presumed correct.

• Keep copies!!!• If no formal move-in inspection, write down

all visible defects immediately and send list to Landlord.

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Tenant’s Obligations

• Laundry list of responsibilities:– Keep clean– Replace light bulbs and fuses– Maintain tub caulking, fix screen/glass– Furnace and A/C filters– Maintain lawn, shrubs, gutters, shovel snow/ice– Pest control– No signs on premises– Pay for any damages that are tenant’s fault

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Landlord permission

Tenant may need permission to:

– Make alterations (decorating, painting, etc.)

– Installing satellite dishes, wood stoves, etc.

– Driving nails, installing ceiling plant hooks

– Re-keying locks– Waterbeds, safes,

aquariums26

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Insurance

• Increasingly common requirement of tenants

• “Premises liability” coverage for the general public– Usually names the landlord as an insured

• “Renter’s insurance” for personal effects

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Enforcement

Shifts the costs and attorney’s fees of landlord to the tenant in event of a need to enforce the lease terms (sue for breach, etc.)

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Access to PremisesThe landlord may enter onto the premises (usually upon reasonable notice and coordination with tenant in a non-emergency):• Inspect and make repairs, improvements• Supply services• Put up “For Sale” and “For Rent” signs, lock

box, within a certain amount of time before end of lease (90 days for example)

• Permit prospective purchasers/renters within a certain amount of time before end of lease (60 days for example)

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Transfer of Landlord• Optional provision for out-of-town landlords who may be

transferred back here (military, foreign service, overseas contractor)

• Absent a clause, no “automatic” right to return to premises for landlords

• Gives landlord right to terminate lease upon the occurrence provided notice is given (90 days for example)

• Usually no provisions for payment of tenant’s moving costs

• TMO/HHG will not pay to move SM tenant!!!

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SCRA “Military Clause”• Under Servicemembers Civil Relief Act of 2003,

military members may terminate leases on PCS orders even if there’s no provision in the lease

• PCS orders or orders to deploy with a military unit or as an individual in support of a military operation for a period of not less than 90 days (may include retirement, separation per the JTR)

• May not charge tenant a penalty• The service member must follow special rules

for termination set out in the SCRA31

SCRA Notice• Termination is made

– By service member delivering written notice of termination, and a copy of military orders (or letter from commander), to the landlord; and

• Delivery of notice may be accomplished– by hand delivery; by private business carrier; or by

placing the written notice in an envelope with sufficient postage and with return receipt requested, and addressed as designated by the landlord, and depositing the written notice in the United States mails

• See Legal in advance so it’s done right!!32

Non-SCRA Terminations

• Lease may contain a non-SCRA early termination clause

• May require payment of penalty (2 months rent, for example)

• Not all leases have this

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“Military Discounts”

• Some commercial landlords offer reduced rental rate for Servicemembers (“rebates”)

• On early termination, may have to refund rebates

• Landlord cannot demand repayment of rebates if proper SCRA termination

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Other Military Clauses

• Some states have their own mandatory military termination statutes

• May vary from SCRA• Lease may have different provisions• Contact legal for help

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Civilian Tenant Clause

• Many leases permit civilian tenant to terminate lease if employers move them out of the area

• Requires notice• May involve a termination penalty

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Notice• Lease often provides manner of effective notice:

– in writing (usually no oral notice)– certified return receipt– first-class mail– hand-delivery, commercial courier – “presumed” receipt (e.g. upon mailing or after three

business days)Rarely email, texting (though becoming more common)

– State statute may have notice provisions

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Move-out Inspection• Usually done shortly after move-out• Determines whether security deposit will be returned• May require tenant to properly clean premises, return

keys, garage openers, replace filters, professionallyclean gutters, carpets, eliminate pests, and clean chimneys

• Keep copies of all receipts• Try to get walkthrough items in writing and signed by the

landlord/agent

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Sale of Premises

• Landlord may sell premises during the lease term

• Usually new buyer takes subject to the lease

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Tax Issues for Landlords• Schedule E to report income, expenses and

declare depreciation• Even if don’t declare depreciation on your taxes,

IRS will treat you in the end as if you have!• Have a tax professional figure out your liability

before you spend all the proceeds!– Upon sale beware of depreciation “recapture” – Capital gains if don’t meet the residence test

(See IRS Pub 3)

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Jeralt/Pixabay.com, CC0

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