Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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Law Review 1268

July 2012

Getting out of a Lease upon Deployment of Soldier

By Captain Samuel F. Wright, JAGC, USN (Ret.)

4.2—Right to Terminate a Lease or Contract upon Mobilization

Q:  I am married to an active duty Army Soldier.  He enlisted in the Regular Army in 2006 and we got married shortly thereafter.  In September 2011, he was assigned to an Army base in Kentucky, and I moved with him into an apartment near the base.  We signed a one-year lease, running through September 2012.  We thought that he would be assigned to the Kentucky base for three years, but in January 2012 he deployed to Afghanistan, likely for a year.  In early February, my husband and I notified the landlord, by certified mail, that we would be vacating the apartment by the end of April, and we enclosed a copy of my husband’s deployment orders. 

I took my young daughter and moved in with my mother, in another state, for the duration of my husband’s deployment to Afghanistan.  We paid the rent through the end of April.  I got all of our stuff out of the apartment and returned the keys to the landlord on April 30.  Although the landlord has acknowledged that there was no damage to the apartment, she refused to refund my $900 security deposit.  I sued the landlord in small claims court, seeking return of the $900.  The landlord hired a lawyer and filed a countersuit, seeking rent for the last five months remaining on the lease.

I have been unable to find a lawyer to represent me in this matter, but one of the lawyers I consulted called the landlord’s attorney and told him that something called the “Soldiers and Sailors Act” gave my husband and me the right to terminate the lease under these circumstances.  The landlord’s attorney insisted that the right to terminate a lease only applies to a member of the National Guard or Reserve who signs a lease when not on active duty and then is called to active duty.  Is the landlord’s attorney correct?

A:  No, the landlord’s attorney is wrong and should know better.  The lawyer needs to learn a lesson that I learned well in the fall of 1973, as I started law school at the University of Houston.  Professor Newell Blakely (now deceased) told me and my classmates that we should always have the text of the statute in front of us when we speak or write about what the statute provides. 

In 2011, as the Director of the Service Members Law Center, I received and responded to 5,405 inquiries about military-legal topics, and 63% of the inquiries were about the Uniformed Services Employment and Reemployment Rights Act (USERRA).  This is a law that I know very well, since I have been dealing with it for 30 years and I had a hand in drafting its present form.  Nonetheless, I keep a copy of USERRA on my desk.  Whenever I am asked a question about what USERRA provides, I always turn to the relevant section and reread it, no matter how confident I may be that I know the answer off the top of my head.  This is a good habit that I have been endeavoring to maintain for almost 40 years.

In 1917, shortly after the United States entered World War I, Congress enacted the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), to protect the legal rights of all the “doughboys” who answered the nation’s call, whether by voluntary enlistment, by draft, or by call-up from the nascent Army National Guard, Army Reserve, Navy Reserve, or Marine Corps Reserve.  In 2003, Congress substantially updated and improved the SSCRA, and the new law is called the Servicemembers Civil Relief Act (SCRA).

Yes, the SCRA applies to the situation of a Reservist or National Guard member who wants to get out of a lease because he or she has been called to active duty.  This law also applies to the individual who is already on active duty when he or she signs a lease and who later, during the term of the lease, wants to get out of the lease because of a permanent change of station (PCS) move or a deployment of 90 days or more.  Here is the pertinent SCRA language:

(a) Termination by lessee.
(1) In general. The lessee on a lease described in subsection (b) may, at the lessee's option, terminate the lease at any time after--
(A) the lessee's entry into military service; or
(B) the date of the lessee's military orders described in paragraph (1)(B) or (2)(B) of subsection (b), as the case may be.
(2) Joint leases. A lessee's termination of a lease pursuant to this subsection shall terminate any obligation a dependent of the lessee may have under the lease.

(b) Covered leases. This section applies to the following leases:
(1) Leases of premises. A lease of premises occupied, or intended to be occupied, by a servicemember or a servicemember's dependents for a residential, professional, business, agricultural, or similar purpose if--
(A) the lease is executed by or on behalf of a person who thereafter and during the term of the lease enters military service; or
(B) the servicemember, while in military service, executes the lease and thereafter receives military orders for a change of permanent 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.

Title 50, United States Code Appendix, section 535 (50 U.S.C. App. 535) (emphasis supplied).

It is clear beyond any question that the right to terminate the lease applies in your family’s situation.  You and your husband did what you were required to do to terminate the lease.  The landlord has no right to charge you for the last five months on the lease.  If you can prove that you returned the apartment undamaged, you are entitled to a refund of the entire $900 security deposit.