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Purpose and Scope

This chapter examines Articles III and VII of the Soldiers' and Sailors' Civil Relief Act. Article III contains sections 300 through 306 (50 U.S.C. App. §§ 530-536), which relate to evictions, lease terminations, installment sales contracts, repossessions, mortgage foreclosures on real and personal property, storage lien foreclosures, and the rights of life insurance contract assignees. The benefits of Article III are the only ones the Act extends to both service members and their family members in their own right Article VII contains sections 700, 702, and 703 (50 U.S.C. App. §§ 590, 592, and 593) which relate to seeking relief from financial obligations before defaulting on the payments, professional liability protection for health care workers, and health insurance reinstatement. The last two topics will be discussed in Chapter 5, Insurance.

Extension of Benefits to Dependents

Section 306

(50 U.S.C. App. § 536)

Dependents of a person in military service shall be entitled to the benefits accorded to persons in military service under the provisions of this article upon application to a court therefor, unless in the opinion of the court the ability of such dependents to comply with the terms of the obligation, contract, lease, or bailment has not been materially impaired by reason of the military service of the person upon whom the applicants are dependent.

Under the terms of this section, dependents of military personnel may apply to a court for the benefits of all the sections under Article III. If the court finds that the dependent's ability to comply with the terms of a contract or other obligation is materially affected by the military service of the person upon whom he or she is dependent, then the court is authorized to grant the dependent at least the same degree of relief to which the service member would be entitled. What if the "dependent" entered a financial obligation before he or she married and before that spouse entered the military? He or she should be afforded Article III protection.

Congress added this section in 1942 to avoid situations in which dependents suffered as a result of the service member's period of service. It applies the situations such as the foreclosure of a mortgage on the home of a widowed mother, entirely dependent upon her soldier son, because she herself was not a "person in the military service."

Since the Act does not define "dependent," the courts have treated this as a question of fact to be determined in each individual case. The courts have determined whether the individual invoking the Act is dependent upon a service member for support and maintenance. One court held that this section does not protect a business partner.

Eviction and Distress

Section 300

(50 U.S.C. App. § 530)

(a) No eviction or distress shall be made during the period of military service in respect of any premises for which the agreed rent does not exceed $1,200 per month, occupied chiefly for dwelling purposes by the wife, children, or other dependents of a person in military service, except upon leave of court granted upon application therefor or granted in an action or proceeding affecting the right of possession.

(b) On any such application or in any such action the court may, in its discretion, on its own motion, and shall, on application, unless in the opinion of the court the ability of the tenant to pay the agreed rent is not materially affected by reason of such military service, stay the proceedings for not longer than three months, as provided in this Act, or it may make such other order as may be just. Where such stay is granted or other order is made by the court, the owner of the premises shall be entitled, upon application therefor, to relief in respect of such premises similar to that granted persons in military service in sections 301, 302, and 500 of this Act [50 U.S.C. App. §§ 531,532, and 560] to such extent and for such period as may appear to the court to be just.

(c) Any person who shall knowingly take part in any eviction or distress otherwise than as provided in subsection (a), or attempts so to do, shall be fined as provided in title 18, United States Code, or imprisoned not to exceed one year, or both.

(d) The Secretary of Defense or Secretary of Transportation, with respect to the Coast Guard when it is not operating as a service in the Navy, is empowered, subject to such regulations as he may prescribe, to order an allotment of the pay of a person in military service in reasonable proportion to discharge the rent of premises occupied for dwelling purposes by the wife, children, or other dependents of such person.

General. This section protects service members and their dependents from eviction for nonpayment of rent. It provides criminal sanctions for those who knowingly take part in the eviction or attempted eviction of the spouse, children, or other dependents of a service member from any premises occupied as a dwelling and rented for less than $1,200 per month. In these circumstances, a landlord must obtain a court order authorizing an eviction. The Act does not define the terms "eviction" and "distress," but the courts have applied their commonly accepted meanings in deciding cases arising under this section.

Application. The provisions of this section apply when the following conditions exist:

(1) A landlord attempts an eviction or distress during the period of military service, or after receipt of orders to report to duty as provided in section 106 of the Act;

(2) The premises are occupied as a dwelling by the spouse, children, or other dependents of the service member; and,

(3) The agreed rent does not exceed $1,200 per month.

Prior to the 1991 amendments, section 300 purported to apply only to those cases in which the rent did not exceed $150; however, at least one court granted relief when the amount of monthly rent exceeded $150. In Balconi v. Dvascas, the monthly rent was $340, but the court held that a service member's child and ex-wife were eligible under the Act for protection against eviction. The court concluded that the rent was actually less than $150 if adjusted for inflation occurring since 1966, when Congress raised the maximum rent from $80 to $150. This rationale may be helpful subsequent to the 1991 amendment.

Courts have required that a landlord-tenant relationship exist since this section contemplates a disturbance of that relationship. One court has, however, held this section to be applicable to a constructive eviction by the owner of a dwelling in which a service member's dependents were sub-tenants of the lessee.

Action in court; material effect. A landlord may evict a service member or his/her dependents only "upon leave of court granted upon application therefor or granted in an action or proceeding affecting the right of possession." A reasonable interpretation of this provision is that the landlord must first obtain a court order authorizing the eviction. The landlord may obtain the court order by applying to a proper court and showing that the service member's military service has no material effect upon the ability of his/her dependents to pay the rent.

Since the purpose of this section is to provide the service member protection against an eviction for nonpayment of rent, the court must determine, in addition to whether a landlord-tenant relationship exists, whether the tenant is a dependent of the service member. Additionally, the court must determine whether the tenant's ability to pay the agreed rent is materially affected by the service member's military service. Material effect is present when the service member does not earn sufficient income to permit him/her to pay the rent. It is immaterial whether the dwelling was rented before or after entry on active duty.

Nature and extent of relief for lessee. If the lessor files an application for an eviction order and the court finds that military service has materially affected the service member's ability to pay the rent, the court may on its own motion, and shall on application, either stay the eviction proceedings for not longer than three months, or "it may make such other order as may be just." In granting a three month stay, one court held that if the service member paid the fourth month's rent, he could not be evicted for failure to pay the previous rent. Also, the landlord could not evict him for not paying the rent that accrued during the period of the stay. His obligation to pay the arrears was not abated, however.

Extension of relief to lessor. Section 300 also permits the landlord to apply for certain relief when the court has granted a stay of eviction. The landlord, in the court's discretion, may obtain a court order providing protection similar to a service member's protection under sections 301, 302 and 500 of the Act [50 U.S.C. App. §§ 531, 532, and 560).

Compulsory rental deductions. Section 300(4) authorizes the Secretaries of the respective services to order allotments from the pay of a service member to defray costs of renting premises occupied by the service member's dependents. However, current Defense Finance and Accounting Service regulations make no provision for such allotments.

Criminal sanctions. Criminal sanctions include 1-year confinement and fine as provided in title 18, U.S.C. for taking part in an eviction in violation of this section.

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Above Information Courtesy of United States Army JAG Corps