Metro Apartment Manager, January 2005

Q: We have a couple who have been late with rent for most of the past year. They always pay after we give them a 72-hour notice and have paid most of the late fees. But I’m tired of the constant lateness and I’d like to give them a no cause notice. But he recently got called up by the Guard and is on his way to Afghanistan. Of course, I can just serve the notice on her, but is there some special way I should serve them with him in the military?

A: The type of service required for notices in Oregon is called “abode service.” In landlord-tenant issues, you only need to serve the abode — the residence — and not individual tenants. That’s why process serving for tenancy issues is relatively cheap. The process server only has to stick the notice on the door, not chase people around to serve them personally. That also makes it simple for landlords: you can just mail a notice or, if you deliver by hand, give it to any one of your tenants. They don’t each need to be served separately. So in your case you can mail them a no cause notice, or post and mail, if your rental agreement allows for that, or hand the notice to her.

But were it so simple. The last legislature added protections for service members and there’s federal law to consider as well. Two sections — ORS 90.475 adopted in 1999 and ORS 90.472 adopted in 2003 — give the right to terminate a lease without penalty to any tenant who enlists in the Armed Forces, or who is called up to active service outside the area, or who is leaving active service, or who is called to duty by the Governor. That doesn’t particularly affect you, but another section adopted by the last legislature does. ORS 105.111 provides that a “state service member” (a member of the organized militia who is called to active service by the Governor) can get a stay of any eviction action for up to 90 days. If your tenant falls under this definition, you can serve a no-cause notice, and if the tenants don’t move you can file an FED and have the sheriff evict. But if the tenant can show (a) the monthly rent is not more than $1,200, (b) the apartment is occupied by the family of a service member, and (c) the tenant’s ability to pay rent is impaired by being called to active service, the tenants can receive a stay of 90 days. The tenant will owe you rent for that period, but collecting it might not be easy, since you have no leverage.

Think that’s bad? It gets worse.

In 1940, in the run-up to World War II, Congress passed what was called the Soldiers’ and Sailors’ Civil Relief Act. I first ran into this law in the 1970s, when I was a commercial banker, because the law capped the rate of interest on loans at 6%. If you remember the late 1970s, the prime rate was over 16%, and car loans were running at 20% or so, making it a huge benefit. The law also affected landlords, by requiring court action before a soldier’s family could be evicted — that’s the law in Oregon nowadays anyway, but it sure wasn’t in 1940 — and providing a stay if military service materially affected the soldier’s ability to protect his interest — the rough equivalent is Oregon’s 90-day stay statute.

Just over a year ago, President Bush signed an update of this law, and it’s now called the Servicemembers Civil Relief Act. One provision expands the protections for service members who have having trouble paying rent. The rent ceiling was raised from $1,200 to $2,400 and is now indexed so it increases automatically (for 2004 it was $2,465). It also makes it easier for the service member to show negative financial impact. Finally, the terms of the stay the court can provide has been broadened. The purpose of these expanded rights, the military says somewhat disingenuously, “is not intended to allow military members to avoid paying rent, but rather to protect families when they cannot pay the rent because military service has affected their ability to do so.”

The law also provides protections for service members who can’t appear in court. Section 201 provides that the court on it’s own motion may, or if requested by the service member must, provide for a stay of at least 90 days — or more if “military duty requirements materially affect the servicemember’s ability to appear.” And it’s hard to weasel around that. The law also says plaintiffs (that’s you in an eviction action) must sign an affidavit saying the defendant (that’s your tenant) is not in the military. Some counties automatically do that; I sign an affidavit with every eviction filing saying “to the best of my knowledge” the tenant isn’t “a member of the Armed Forces of the United States or any of its allies.”

It’s probably possible to get around the appearance problem, but still the law allows the judge to provide the 90-day stay unless “in the opinion of the court, justice and equity require a longer or shorter period of time.” The judge can also “adjust the obligation under the lease to preserve the interests of all parties.” Taken to one extreme, the stay can be for a year, and the rent reduced to $10 a month. So can you evict that tenant? Not unless a judge agrees, and getting that agreement may not be easy.

If you’re looking for highlights of the law, they are available on the military.com website. Or you can read the entire 32-page Congressional Act.

Finally, even if you could evict your tenant despite all this law, should you? When I think of evicting someone, I ask myself, how would this sound in front of a judge if I had to explain the reason? You might do the same. You might also ask yourself, how would this look on the front page of the local newspaper? In your case, I suggest, you will not only give yourself huge publicity nightmare, but you will be giving the whole industry a black eye we don’t need.

Remember, you could be where you are and collecting no rent. In your case, it’s merely a few days late. Think of yourself as lucky.

My usual reminder: each circumstance is unique, so your case will be different. Before you act, be certain about what you do. Don’t rely solely on this general advice; read the law and consult others as appropriate.

This entry was posted on Monday, January 31st, 2005 at 2:03 pm and is filed under eviction, military. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.