Lease-break rights for military personnel

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Q: I’m an active-duty Army sergeant, and my wife and I rent an apartment off-base. I just got transfer orders that require me to move out of state. Our landlord is holding us to the terms of our lease, saying that because only one of us has to move, he doesn’t have to cancel the lease. Is this correct? –Jose B.

A: Let’s give your landlord the benefit of the doubt and assume that he’s never heard of the Servicemembers’ Civil Relief Act (SCRA). That federal law dates back to the Civil War and is intended to ease the burden on service members who are called to active duty. The law gives these soldiers special considerations when it comes to financial, employment and housing issues that the rest of us don’t enjoy. Quite bluntly, when you’re off fighting a war, you deserve a break.

One of the most important provisions concerns a service member’s right to legally cancel a lease when entering military service or receiving orders for a "permanent change of station or 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." (SCRA Section 535(b)(1).) Upon receiving notice of the activation or transfer orders, the landlord must consider the lease to be terminated 30 days after the rent is next due.

For example, if your rent is due on the first of the month, and you give the landlord notice of your activation or transfer on May 10, the lease is over on July 1, which is 30 days after the rent is next due (June 1).

Congress anticipated the argument your landlord is now making. The law says that if a service member terminates for one of the above reasons, any obligation of a co-tenant who is a dependent of that service member also terminates. (SCRA Section 535(a)(2).) The term "dependent" is defined much more broadly here than it is in tax situations. Under the SCRA, a dependent includes the service member’s spouse, child, or even someone for whom the service member provided more than one-half of that person’s support for 180 days preceding the service member’s invocation of his or her rights under the SCRA. (SCRA Section 511(4).)

Point your landlord toward this law and hope that he gets the message. You might mention that the Department of Justice has gotten rather active recently when it comes to tenant rights under the SCRA.

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In January in San Diego, Calif., and in March in Nebraska, the Department of Justice announced major settlements against large apartment firms that were systematically refusing to honor the lease termination rules of the SCRA. A quick read of those settlements, highlighted on the DOJ page linked above, ought to convince even the most stubborn landlord.

If you still encounter resistance, follow the DOJ’s instructions for contacting the Armed Forces Legal Assistance Program.

Q: In our apartment complex, there are two ways to the garage: around the side of the building, or out the back. The walkway around the side is quicker, but has never been lighted, and the landlord has signs saying, "To access garage at night, use back entrance."

I used the side path one night and tripped on a raised part of the walkway, which I didn’t see. I think there should have been lights, and that the landlord should cover the cost of treating my injured knee. What do you think? –Rashen B.

A: You may have a hard time pinning the cause of your trip-and-fall on the landlord. Here’s the problem: In spite of being told to use the back entrance, you chose a path that you knew was not lighted. Lawyers might say that the risk of walking on a pathway in the dark was a risk that you willingly assumed, and that the consequences (not being able to see variations in the pavement height) were also something you knowingly took on. In legal jargon, you may have "assumed the risk" of a fall, which will defeat, if not lessen, any responsibility of the landlord for your injuries.

As with most personal injury situations, however, there’s room for argument, depending on the facts of the situation. Sometimes, no matter how many warnings a property owner may make, he cannot shield himself from liability. This is particularly true if the danger involved is a serious safety problem or a significant code violation, and certainly if tenants have little choice but to ignore the warnings.

Imagine, for example, that the garage could be accessed only from the side path, and that the "variation" in sidewalk level actually involved chunks of broken concrete. It’s unreasonable to expect tenants to avoid the garage except during the day, and the condition of the sidewalk is dangerous, even during daylight. A tenant who used the pathway and tripped over a protruding chunk would have a better shot at recovering damages from the landlord than one who chose a risky, alternate route whose imperfections were slight.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

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