Lease-break hurdles for military spouses

Rent it Right

Q: I’m an active-duty Army sergeant. My wife, who lived in Maryland, and I married last month, and now she’d like to join me at my current duty station. But her landlord says that because I wasn’t on her lease, he doesn’t have to let her out of the lease, and he’s claiming that she needs to give 60 days’ notice plus pay two months’ rent. Don’t we qualify for treatment under the Servicemembers’ Civil Relief Act (SCRA)? –Sgt. Rowland

A: The SCRA allows service members who are called to active duty to terminate a lease (after the service member gives notice to the landlord, it expires 30 days after the date rent is next due). If your wife had entered into the lease, then joined the Army (or been called to active duty), she could have invoked this rule. But she’s not the one being called to duty; she’s trying to get out of a lease in order to join her active-duty new husband. I don’t think she can take advantage of the SCRA in this situation.

However, her landlord is not right when it comes to the consequences of breaking a lease in Maryland. Maryland landlords must take reasonably prompt steps to rerent a unit once a lease-breaking tenant leaves; after that, the responsibility for rent for the balance of the lease ends. This means that a landlord can’t just say, "You will owe me for X number of months." The tenant’s obligation will depend on how soon a replacement takes over (or how soon a replacement could have taken over, had the landlord taken reasonable steps to find a suitable one). This rule is contained in Maryland Real Property Section 8-207.

Incidentally, the law specifies that these rights cannot be waived by the tenant, even if a lease contains a clause purporting to waive them. If the landlord’s policy is contained in the lease, it’s invalid.

Your wife should have a talk with the landlord, armed with a copy of this law. Once she moves out, management has a duty to list and show her unit, though it doesn’t have an obligation to rent it in advance of other units. If the unit remains vacant for a month or so, that’s all the rent you owe; but if the market is soft and even reasonable efforts on the part of the landlord fail to land a new tenant, you could end up responsible for more months’ rent.

If the landlord sticks to his guns, refuses to rerent, and attempts to arbitrarily stick you with 60 days’ notice plus two months’ rent (that’s four months’ rent!), expect that he will keep your security deposit at a minimum (and possibly sue for the rest in small claims court, but when the tenant is out of state, practically speaking this is unlikely). Unfortunately, you’ll need to sue in small claims to get the deposit back, which will be inconvenient if you’re at a distance. Hopefully, your wife can convince the landlord to follow the law.

Q: We have a midsize apartment building near the campus of a large university. We prefer renting to students, because it’s a common culture and everybody seems to get along. In the past when we’ve rented to nonstudents, we got complaints from them about noise and traffic. Can we adopt a policy of "students only"? –Kyle and Martha

A: Usually, the question is posed from the other side — from landlords who don’t want to rent to students because they tend to be, shall we say, very active residents with lots of visitors, odd hours, a marginal grasp of the duty to take reasonable care of rental property, and slim understanding of their neighbors’ rights to peace and quiet.

Landlords who want to exclude tenants can sometimes succeed. Federal fair housing law — which applies everywhere — protects people on the basis of ethnicity, religion, familial status, sex, disability and national origin. But states can extend the list of protected classes, and some have. For example, many states forbid discrimination on the basis of marital status, which is missing from the federal list. And cities can add yet more categories.

Students do get some protections in a few parts of the country. In Washington, D.C., "matriculation" is a protected class (DC ST § 2-1402.21); Madison, Wis., and Austin, Texas, have also passed ordinances forbidding housing discrimination against students. (Madison Ordinance Ch.39.03; Austin City Code § 5-1-1). And students in California might receive some protections at the hands of a trial judge: The fair housing law in California forbids "arbitrary discrimination," which arguably would cover a no-students policy.

But I digress — you want to know if you can exclude others while seeking students only. The answer is pretty simple: It depends on applicable law, and whom you turn away. If you reject a family, that’s familial discrimination, illegal everywhere.

This lesson was driven home recently when a housing provider in Evanston, Ill., tried to enforce a "students only" policy at its property. Nonstudent families were turned away, and complained to the Department of Housing and Urban Development that they had suffered familial discrimination. The property owner settled the case.

The same result might not happen if the disappointed applicant were not part of a protected class. Suppose, for example, that a single nonstudent asks to live at your property, and you turn him down. Unless his state or locality has added "marital status" to its roster of protected classes, and further defines it as protective of single persons and not just married persons, your single applicant won’t have a class to fit into. He might not be able to bring a case.

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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