Spouses and Leases

March 06, 2010 | Kate Horrell

Most of you have probably heard of the “military clause,” a generic term used to describe any parts of a lease that deals with the military and being transferred or deployed. Under the terms of the Servicemember’s Civil Relief Act (SCRA), a servicemember may terminate a lease earlier than the date named in the lease, if the servicemember gives proper notice and is terminating the lease due to a PCS move or a deployment.  It is important for military families to understand how the SCRA works, and how it does not apply to spouses, so that they can be fully protected by its provision.

First, for purposes of protection under the SCRA, the lease must be signed by the servicemember, or on behalf of the servicemember (by the use of a power of attorney.)  If a spouse enters into a lease on their own name, without the servicemember, the SCRA does not apply.  This is a really important distinction.  Let’s say Sergeant Jones is deployed, and while he is gone, the lovely Mrs. Jones moves apartments.  If she chooses to put the lease in her name alone, which is often a lot easier, they then lose all the protections in the SCRA.  But taking the extra effort of getting a Power of Attorney and using it to put Sergeant Jones on the lease, the family is now protected if they receive PCS orders.

Second, what is proper notice?  Proper notice must be written, and it must be in advance of the termination of the lease.  The Military.com SCRA Lease Termination Page explains the timeline like this:

* For month to month rentals, the termination becomes effective 30 days after the first date on which the next rental payment is due subsequent to the date when the notice of termination is delivered. For example, if the rent is due on the first day of each month, and notice is mailed on August 1, then the next rental payment is due and payable on September 1. Thirty days after that date would be October 1, the effective date of termination.

* For all other leases, termination becomes effective on the last day of the month following the month in which proper notice is delivered. For example, if the lease requires a yearly rental and proper notice of termination is given on July 20, the effective date of termination would be August 31.

Second, what defines a PCS or deployment?

A PCS is easy – you’re PCSing.  While it isn’t specified in the SCRA (that I could find), the IRS uses a distance of 50 miles further from your home than your previous job.  For deployments, the SCRA states that it has to be in excess of 90 days.  It seems reasonable to expect that a landlord might want to see copies of the servicemembers PCS or deployment orders.

In reality, there are lots of landlords who are willing to be even more flexible than the SCRA requires them to be.  However, there are also landlords that will try to squeeze every last penny out of a servicemember or their family, even when the servicemember is protected by the SCRA.  If you understand the law, and make sure to follow the details, you will have the legal standing to challenge landlords who aren’t treating you right.

I have noticed a lot of questions regarding this topic, and so I wanted to make sure that we all understood.  Similar protections apply to lots of other transactions as well.  More information can be found in the full Servicemembers Civil Relief Act.

Comments

  1. Military Lawyer says:

    Good post. Just wanted to remind servicemembers and their spouses to please contact your legal assistance office with questions if you are terminating your lease under the SCRA. It is a great tool for our military families but it is often misunderstood by landlords and families alike. Even if you don't think the Act can help you, come check with us please!

    • Liyah says:

      My husband just recently got back from Afghanistan. While there I got an apartment in another state in his name (I have POA) now he is back at Fort Lewis and wants us out there because we cannot afford 2 rents and a newborn. I have my landlord a copy of his orders in Washington but she stated that she needs “dates” but because this was already his duty station it doesn’t state any. We are scheduled to transfer bases in January but that is too long away. Can we break the lease with him still being in Washington or am I stuck until January? PLEASE HELP!!!

      • KateKashman says:

        Liyah, I am not a lawyer, but I would tend to agree with your landlord. The purpose of the SCRA is to protect servicemembers from being stuck in a lease when they have PCS or deployment orders. In your case, your husband isn't trying to break this lease due to PCS orders or deployment orders. I would recommend that you talk very nicely with your landlord and see what you can work out in the way of a compromise. Good luck to you.

    • chad says:

      does the SCRA protect a service member against a lease in default, before the deadline to terminate?

      • KateKashman says:

        Chad, I'm afraid I don't understand the question. Can you provide more details? Thanks.

    • Rebecca says:

      Have a tenant IN CO – military member and spouse both signed lease through 7/15/14. He produced deployment orders and gave 30 days notice siting SCRA. We conceded, although their military clause said they had to be PCS orders and I attempted to mail their security deposit to the address they gave us in VA. The spouse had to sign for it and didn’t. Today I told her I needed the address on her checking account because we had agreed I would electronically deposit the money. Her new address is 5 miles from our home in Colorado- she never moved from the area. Are they protected under the SCRA to just break our lease and re-lease a more expensive house up the road? We are military members/landlords. Where is our protection? Seems like fraudulent use of the clause to me! Please tell me – who is right?

      • Kate says:

        It is unfortunate that your previous tenants aren't using the SCRA as it was intended, but it doesn't sound fraudulent. The SCRA requires landlords to let military members out of leases if they have PCS or deployment orders. He had deployment orders, so they can break the lease under SCRA. I'm sorry that you got stuck like this!

  2. FRANK MCCUTCHEON says:

    I am a retired military member and I am also a landlord. I want to make sure that I do what ie right when it comes to National Guard and Reserve members.

    The PCS portion of a "Military Clause" is a no brainer, but the deployment part is an issue. Many members of the Guard and Reserve are now getting deployed for longer than 90 days. What do I need to do to protect myself from someone abusing the "Military Caluse" and using it to get out of their lease?

    I have a potential tenant whos husband is being deployed for up to 12 months this coming September. She wants to move in 1 August. i need to have her husband sign the lease because her income alone will not qualify her for the apartment. I am requesting a letter from his command stating that he will in fact be placed on AD for an extended period, because he does not have a job otherwise. His AD income will be more than enough to cover rental expenses.

  3. sailor/marine wife says:

    I myself am active duty Navy and i just received pcs orders to va. Im currently having issues with my landlord i was not given 30 days notice before i have to report. my landlord wants me to pay for next months rent and i will only be here for one week out of the month do i have to pay for a full month? its not stated in my lease! he asked me to have my husband call him who is active duty marine corps because "he doesn't want to deal with me" I've been very respectful but dont want to pay for that if i dont have to. also he has stated he's keeping my security deposit whether or not its clean or if there are damages, and he wants to show my apartment b4 i move out… can he legaly do any of this

    • KateKashman says:

      Sailor, if there is no specific military clause in your lease, then you are covered by the protections of the SCRA. Under the SCRA, you may terminate your lease, with written notification, 30 days after the next rent due date. Depending on what day of the month your rent is due, that could be as much as one day short of two entire months.

      Your landlord may not keep your security deposit without cause. You must do a move-out walk through with the landlord and have him give you written proof of the damages that he claims. Do not just leave, as you will have no proof if these damages are accurate. If you suspect there is going to be a problem, I would bring and camera and/or video camera with you to the walk through.

      Most apartment leases contain a clause that allows the owner to show the property to prospective new tenants. Please read your lease to learn more about this. Also, if he rerents it quickly, he is more likely to be flexible with you regarding your own rent payments.

      It sounds like you have a lot of concerns and might benefit from a meeting with your legal office to make sure you understand your rights.

      Good luck!

      • Whut? says:

        Iam military and this SCRA ACT is an abusive act that NO landlord should have to tolerate. Federal Government should not interfere with civil affairs

    • Jackie says:

      When I deployed, my landlord prorated my rent for the time I was there. Maybe the landlord would negotiate something with you. Then if not, and he/she wants to be difficult report them to BBB, there is a military component too.
      Jackie

  4. malika says:

    can i talk to my husband when he is at basic
    training or A.I.T

  5. Taylor says:

    I got my first months rent free, but was told that if i broke contract early, then i would have to pay back that first month. since i have orders to deploy, i was thinking that it would void out ALL charges, and i was hoping that first months rent would be included, anyone have any experience with this that can help me out?

    • Sara says:

      If you received a rental "concession" or discount they are generally giving you that amount in agreement that you are staying the full lease term. Example: First month free on a 12 month lease or $100 off each month for 12 months means that even if you default the rental agreement with the military clause you still did not fulfill the agreement in order to receive the discount and you can be held responsible for that free month (or any other discounts)
      You also are responsible for any damages to the property. Hope that helps

  6. The landlord says:

    My husband is retired military so I am very familiar how frustrating it can be when orders are not issued until the last minute. I am also a landlord. My frustration is that I have had a number of military members move in recently, sign the lease and start receiving BAH. I have had these members reside in the apartment for about 6 weeks and then tell me their ship is deploying and give me their notice to move. My question is this: Does their BAH continue even though they no longer live in the apartment and do not have the need for BAH? I have a feeling that some of these member are doing this to receive the BAH even though they are deployed. A 6 week rental is not worth my time or expense (cost painting, cleaning, carpets cleaned) in getting the apartment ready.

  7. TjT says:

    Does the 90 days of deployment have to all fall with in the lease time or say if I have a month and a half left and get deployed for at least 90 days can I still leave the lease early? Thanks

  8. Al Cockerel says:

    I have a question fro the other side….. what protection is there for the landlord that the service member will not sign a year lease knowing they will get orders in three months? Please email a resonse if you know the answer to this question.

  9. Charles says:

    I am a military member and also a landlord. I have tenants that bought a house while they still have 9 months left on their lease with me. Now are trying to abuse the SCRA to break their lease by showing me temporary deployment orders for the husband. Based on your original guidance, I have no recourse? Seems odd that the spouse, who is employed locally and is obviously not in need of moving due to military orders, could use the SCRA as a shield to defraud and default.

  10. AMA says:

    My husband and I signed a lease in September and it included a military clause he got orders for a PCS overseas in late October. Can we get out of our year lease if I show my landlord his pcs orders because he went over last month?

    • KateKashman says:

      Yes, AMA, you can. You will be subject to the notification restrictions listed in this article. Good luck on your time apart!

  11. Nichole says:

    My husband and I are pcsing and did not receive his orders until a few weeks before his report date. According to my landlord, we have to pay all of the next months rent even though we will not be here as of the 1st. Based on the date we received his orders and his report date, we didn’t have the “proper” 30 days. Can they still charge us for that entire month even with having his orders? We had a years lease but are now going on a month by month basis. Please help!

    • KateKashman says:

      Nichole, you are bound by the terms of your lease, or the SCRA, whichever is more generous towards the servicemember. Read your lease carefully, and see how it’s military clause compares with the SCRA regs. Depending on what day you gave your notice to the landlord, it is entirely possible that you may have to pay for March’s rent. While the SCRA protects servicemembers from unreasonable landlords, it also protects the landlords from servicemembers who have to move unexpectedly and it does have notification requirements. Does that answer your question?

      • guest says:

        We have been in several situations where we have had to pay for a months rent when we weren't living there…it stinks but it is usually in the lease

      • Nichole says:

        This move wasn't anything unexpected. I have been keeping them updated since December when we knew we'd be pcsing, just not where or an exact date. I told them several times it would be in mid Feb. We still paid for that full month, but we didn't get his orders until about 2 weeks before his report date. The day after we got his orders, I brought them into the office exactly as I was told. His Secretary told me as long as I gave them his orders, everything would be taken care of. The landlord never got back to me about doing a walk through after the 10 plus times I called. Not to mention he is now refusing to give us our security deposit back.

  12. Darcy says:

    We have a husband and wife who both signed the lease. The lease ends in 6 monhts. The wife is in the military and is being deployed overseas without her husband. He is stating that he is moving to California to be by family. Should he be able to be released from the lease if he's not moving due to Orders?

    • KateKashman says:

      Yes, Darcy. The lease is being broken due to her orders. That is the way the law is written, and that is the way most military clauses are written. What he chooses to do is irrelevant to the question.

  13. Stacy says:

    My husband and I pcsed to Fort Benning back in Sept.2012 and signed a year long lease. He is going to Ranger school soon (April 21st) and we're having trouble paying for things now so I was wondering if we could use the same orders we had to come to Fort Benning to get out of the lease?

  14. Megan says:

    Today my boyfriend, an Army Ranger stationed in Georgia asked me to marry him. I said yes, but he wants me to move there of course, and I have a 12 month lease in Ohio from Aug 2013- Aug 2014 they wont allow me to simply pay a fee to get out of it unless I find a new tenant and pay a 200$ fee they wont allow me to break contract. I want to move with my husband when we get married but my rent here is $619 and I can't afford that and a rent there. Is there any protection in this case? Please help.

  15. kelley says:

    my husband and I are leaving for kodiak and she just sent the bill of 960 which we both split down the middle however since we are leacing may 15 and not June 1 we are only paying half of the rent its only fair since we are not going to be there the entire month we gave her written notice may 29 in writing and with the militaty clause as everyone puts it which she allowed us to break our lease. However with the move to kodiak and all of its expenses we do not want to pay the full rent does she have the right to charge us the entire month of may if we arent going to be living there past the 13 techinically??? or can we ask them to take the reamining out of the security deposit thanks so much?>

    • KateKashman says:

      Kelley, what does your lease say? The military clause in your lease should be very clear about how much notice you need to give and how much rent your are required to pay. If the military clause in your lease uses the same language as the Servicemembers Civil Relief Act, then the earliest that you can break a lease is 30 days after the rental payment due after you give your official written notice that includes copies of your orders. Under these terms, if your least is due on the 1st of each month, then your least terminates on the 30th of the month AFTER you provide the notice of your intent to terminate your lease. Without knowing the due date of your rental payment, and because I've finding your comment a little confusing, I can not tell you exactly how long you are obligated within your lease.

      Please write back with more clarification if you would like a specific answer.

  16. newlywed says:

    My Fiance and I just were recently married, I live in Colorado as she did before she went to basic. She is now stationed in Virginia and we finally made it official recently once we were able to acctually see eachother. Now the problem is i am in a lease at my apartment till next year and i am sorta confused about the sscra and military clause and if i am able to terminate the lease and move to her new duty station?

  17. Shawna says:

    My husband is deployed till Nov. our lease is up in Aug. our landlord asked if planned to renew our lease told him we planned on going month to month the lease stated until after he got back from deployment. He has since left a new lease with a letter stating that I needed to sign it or plan to move out and them rent the townhouse. Is there any protection with my husband being the one who signed the lease and him being deployed until he comes home?

    • Sarah S. says:

      Shawna, You may want to refer to your base housing office. They would be the best ones to ask this question to.

  18. commissioner12 says:

    I have a renter not married to a military person.who lived together. Both signed the lease. He has been transfered and I have let him out of the lease. His girl friend does not want to live in apartment since he is not there. Moved in with a girl friend, and plans to move home at some point. I told her I would not refund her deposit because she did not give 30 day notice and broke her lease. Am I in the wrong?. Am I to give her back deposit (be out 2 months rent or more) even tho she is not spouse of military personnel. I will do what is right. Thank you

    • KateKashman says:

      I think that it would depend on how your lease is written. Some leases are written so that either party can be held liable for the full lease, some are written so that once one person breaks the lease the entire lease becomes invalid. At this point, I'd say you have a few options. You could talk to her and come to some compromise, such as refunding half her deposit, or you could just refund all her deposit, or you could figure exactly what your lease says and whether she is actually owed the deposit. Good luck to you!

  19. lucky2011 says:

    my husband has been in Japan and while over there for 2 years I have been renting a house and its in my name but now we have orders and leaving I resigned the lease thinking we could get out of it due to the military clause but now since I am the only on lease we have to move and still pay on house until its re-rented! also not getting our deposit back not to happy about it, I have been a good tenant fixed everything broken never called to have things fixed did all yard work and paid rent on time just kind of rude how they treat people all because his name isn't on lease and orders aren't for me. :( I had a power of attorney but it is out of date so now that's no good what to do????

  20. Chris says:
  21. delema says:

    Hello, I am a Landlord and have a military tenant that wants to moveout. He wants to break the lease say's he has orders but can't present them. I grew up military and my whole family has been in the military they always received orders in writing before making any moves. I requested to email or mail me a copy, he still states he doesn't have them in hand. Any advice??

    • Naamommy says:

      He may not have them in hand. I've been married to a soldier for 11 years, and this has happened to us before.

  22. Rob says:

    Question, my tenant is retiring and he wants to get out of the lease using the Under the terms of the Servicemember’s Civil Relief Act (SCRA), I assume it covers service members that are voluntarily retiring and not being forced out or PCSing?
    Next question, I had a male tenant, the service member, and a female, non-service member sign the lease. 6 months later they are married. They now both want out of the lease but the lease was signed and agreed to be the responsibility of 2 separate parties, now what? She is the spouse and can now get out of her obligations? Nice trick if this is the case???

  23. MKS says:

    What about if a dependent enters an auto lease without the service member cosigning and the service member gets orders to PCS out of the CONUS? Can the dependent break the lease under the SCRA? The SCRA says 'Servicemembers may terminate motor vehicle leases when: lease should be for the servicemember or the member's dependents for personal or
    business transportation." Just wondering if the dependent could break the auto lease since their name would be on the PCS orders. Thanks!

    • KateKashman says:

      MKS, the SCRA does not extend the same protections to military dependents. However, you may find that the leasing company is willing to work with you, if you ask and present your documentation. If that doesn't work, there are sites that broker subleases on vehicles. Good luck to you!

      • MKS says:

        Thanks Kate. Transferring the lease to the service member may also be an option if the leasing company is up for that. Since orders have not yet been provided, it may be a possibility.

  24. Bristina says:

    Report date was 7/2013…. now he wants out of the lease that he signed for his daughter (now 11/2013)… acceptable?

    • KateKashman says:

      I'd say that it falls under the SCRA. You could chose to go to court and fight it, but I think it would cost you more than it is worth.

  25. Amanda T says:

    Hi, I signed a lease awhile back when my husband PCSed to Okinawa. Unfortunately he had an unknown judgement against him so I couldn't put him on the lease at that time. I had power of attorney. If I put him on the lease now will I be covered by the SCRA for the future. Because it looks like his orders may change so that we may be PCSing over there in the future.

  26. Unknown says:

    I have a friend who owns property that she rents out. Her tenant is a military spouse, who recently gave a 30 days notice using his spouses military orders. She believes some of the information has been changed on the orders by the tenant. What can she do if anything?

  27. Mika says:

    I just recently got married to a wonderful lady, she already renting and I moved in without giving notice to owners ? would that be a breach to the contract and give them the right to evacuate me ?? thanks

    • Kate says:

      Mika, that depends on the terms of the lease. Most leases require landlord approval to add permanent tenants to the lease, but it usually isn't a problem. Congratulations on your marriage.

  28. Marine wife says:

    Question, my husband and I signed a lease and be has deployed. While he’s deployed, u want to move home. Am I covered under SCRA to terminate our lease? I have his orders and POA?

    • Kate says:

      Marine wife, you should be covered. However, be prepared for your landlord to balk if your husband has been gone some time and you are just deciding to move. The intent of SCRA was to allow servicemembers to break their lease directly because of the deployment. Please approach your landlord politely and helpfully, in hopes that they will be cooperative.

  29. Megan Gantt says:

    Hi, my husband got tdy orders to Pensacola Florida for four months and we have been stationed in Ft Bragg which is where we rent from. We have been in the rental fir six months now and our lease isnt up until October. Can we break lease with tdy orders since he will be gone so long?

    • Kate says:

      Megan, you fall into a grey area and you are going to be somewhat at the mercy of your landlord. The SCRA covers deployments of more than 90 days. However, if your spouse's orders are TDY orders, they aren't technically covered by the SCRA. I would check the wording of the military clause in your lease, and then talk to your landlord nicely. Keep in mind, you still want to provide adequate notice and even if your landlord is cooperative, you'll probably be required to stick to the "30 days after the first rent due after notice is give."

  30. SD123 says:

    My boyfriend needs to move in with me until he (we) PCS in July across the country, his orders were sent in March and he PCS' in July. Are we covered if he signs the lease as a permanent tenant having already received his orders? We will likely break the lease and provide 45day advance notification. I ask because it states "sign lease AND THEN receive orders".

  31. NewMarineSpouse says:

    Does time on stationed afloat (on a MEU) qualify as a deployment for breaking a lease under the SCRA? No formal orders are generally given but the time away is 8 months +/-

    • Kate says:

      Marines? Can you chime in?

      NewSpouse, I'd think that it would count, but I'm not sure how you would document it without orders.

      My husband is Navy, and he gets some sort of orders every time he goes anywhere. I am surprised that the Marine Corps does not do the same thing. How do they account for changes to pay and other financial issues?

  32. My $.02 says:

    I work for a property management company and I have a question. We want to be fair to those who serve our country, but also fair to the owners whose property we manage.
    Recently a service member gave proper notice to vacate based on the date their orders were issued: Orders issued July 17, Notice to Vacate given August one to move out August 31st.
    However – the date they needed to report is November 6th as they are taking 75 days of leave.
    My thinking is they could have lived at the apartment at least another month; their lease didn't expire for another 6 months. Is there any type of time frame for move-out vs. report date?
    Thank you!

    • Kate says:

      The law does not address either the detach date or the report date; rather, it says that servicemembers must be permitted to terminate leases due to PCS orders. Given the vagueries of military moves, I'd be very reluctant to tie a move-out to a detach or a report date. These things can (and will) change all the time. And it's not the way the law was written.

      Assuming a 1st of the month monthly rental payment, the service member has given adequate notice under the law.

      If you're trying to find a way to feel more charitable toward's this military member, please keep in mind that if this service member has 75 days of accumulated leave, he or she is probably required to take a good chunk of that leave during the PCS move because of the limits on leave carry-over. Also consider the fact that servicemembers who have 75 days of leave to use have probably not seen their families in quite some time; that's an impressive accumulation of leave and usually only occurs during times of extremely high operational tempo or long deployments. This person has earned this leave and should not be prevented from using it.

  33. Wendy says:

    We own a house in Illinois; it's managed by a management company. The tenants both signed the year-long lease. We knew the husband was deploying right away. Now that he's returned, he has PCS orders to Virginia. The orders clearly state that his current duty station is in OK. So, he was never stationed in IL; the wife only used the home to stay temporarily during her husband's deployment. Does the SCRA apply in a case like this? (To summarize, he received orders to PCS from OK to VA, but the property they leased is in IL, and only the wife and their son lived there.)

    • Kate says:

      Wendy, if you are strictly reading the law, as most judges would, it does not seem to make any distinction about where the servicemember *was* stationed, but rather where the servicemember *will be* stationed. As long as the servicemember's new duty station is not near the property that the servicemember leased, then they can use the SCRA to break their lease.

      In my opinion, this is a valid use of the SCRA, but I'm not a judge.

      Similar situations occur when a servicemember is in training and not authorized to move their family to the training location, or when a unit's location is moved, or when a servicemember serves an unaccompanied tour at a location that doesn't permit families.

  34. Sarah says:

    Your question isn't completely clear but I will try to answer, I am a property manager over a few muti-family properties near a military base, as well as an army spouse. 1. The anwer is no. If you are stationed at Benning and live near Benning you can not use orders to Benning to break a lease. You have to be moving at least 90 miles away (in most cases) to break the lease with orders. 2. Landlords do not have to honor the military clause if the orders are dated AFTER a service member signs a lease. For example, SGT Smith gets orders to deploy on 1 DEC 13 that are dated 1 OCT 13. SGT Smith signs a year long lease on 2 OCT 13. Landlord does not have to honor the military clause, since SGT Smith signed the lease after he got orders knowing he was leaving. Hope this helps, not sure what exactly your question is.

  35. KateKashman says:

    I'm afraid SCRA will not help you, Eljay. The service member needs to be a signer on the lease, and they must have PCS or deployment orders. Your best bet is to talk with your landlord and see if you can try to find someone to take your apartment.