Military Service Tenants; They Can Be Complicated

Caution: Working with Your Tenants Who Are in the Military Service

It is not hard to imagine, in light of recent circumstances, that a landlord should be giving consideration to cooperating with tenant residents who have their ability to make rental payments impacted by their military service.  It might also be an occasion to work with persons who are not in the military who have been victims of the horrible events of September 11, 2001 by virtue of the fact that their source of income has been adversely affected by those events.

In both instances, your Federal and State governments have anticipated the needs of these residents and have acted accordingly.  As it relates to victims of the September 11th tragedy, Federal legislation has been passed to provide for victim compensation.

As it relates to tenant residents who have their source of income impacted by military service, the State and Federal government have enacted legislation to protect members of the military (the Federal government on October 17, 1940, and the State of New Jersey, in 1979) and for the most part that legislation will guide each landlord’s relationship with these tenants.

The Soldiers and Sailors Relief Act is found at N.J.S.A. 38:23C-2.  For the most part the State legislation mirrors the Federal legislation and therefore this article will focus primarily on the State’s scheme.  “Military Service” is defined as duty by any person, male or female, in active military service of the United States and active duty in the military service of the State pursuant to an order of the governor.  Section 13 of the State Legislation specifically addresses eviction.  It authorizes the imposition of a stay during a period of military service with respect to any premises for which the agreed rent “. . .does not exceed $150.00 per month. . .”.  (The Federal Law raises the threshold to $1,200.00 per month).  The premises have to be occupied “chiefly” for dwelling purposes by a spouse or other dependents of a person in the military service.  The prohibition against eviction contains an exception and that is where the landlord secures leave of court to proceed.

If a landlord knowingly evicts a person in violation of the Law he can be fined and jailed as a disorderly person.

The Act does provide that the court shall stay the proceedings for three months, as provided in the Act, or “. . .make such other order as may be just.”  The statute references the fact that the court is allowed to consider whether or not the ability of the tenant to pay the rent is materially affected by reason of military service.

While the maximum duration of the stay is a little vague because N.J.S.A. 38:23C-11 refers to the period of the stay as three months in addition to the period of military service, the criteria alluded to in the Act clearly gives the tenancy court the discretion to limit the term of the stay based upon the effect of military service and whether or not it is an impairment to the ability of the tenant to pay the rent.

What does this all mean to a landlord who “suspects” that a tenant is in the military service.  The non-payment of rent action should be prosecuted if initial normal attempts to have it paid are unsuccessful.  If the tenant responds the rent should be paid, or a payment schedule can be negotiated as with any other tenancy. If eviction is based on other reasons it can be prosecuted.  The problems occur when the landlord secures a default (the tenants don’t appear in Court).  Under those circumstances, it is obviously dangerous for any such landlord to sign an affidavit or certification of amount due which is required to  secure a default judgment in a landlord/tenant eviction proceeding, if that certification addresses military service in such a way that the landlord represents to the court that the tenant is not in the military service.  A landlord cannot do that without violating the law.

If you suspect the tenant is in the military service, then you should make a diligent inquiry concerning the tenant’s whereabouts or the whereabouts of any spouse or other dependents residing in the affected residential rental unit.  Every attempt possible should be made to communicate with the occupants.  Once this communication is established you should either make inquiries into the status of the person suspected to be in the military service, where that person’s income is going (is it being received by the spouse?) and what other income occupants in the household are receiving (since the delay in receipt of the military person’s income may not actually impair the ability of the occupants to pay the rent).  To the extent that the occupants inform you of other available income or are not responsive, then a motion should be filed requesting that the court enter judgment and deny any additional stay based upon the information that you have available which leads you to conclude that persons are in the occupied unit and they are simply not responding to the landlord with payment or with sufficient information to satisfactorily address their actual ability to pay rent or not.  Those persons should be given notice of this application (by hand delivery if necessary), so that on the return date of any such motion the court can be persuaded that persons in occupancy are on notice of this application and are ignoring the process which you have initiated against them.  If they fail to show up a second time.

A recent case the author became involved with underscored the need to have a general policy of initiating legal proceedings quickly against all non-paying tenants.  This will avoid the possibility of getting involved in a case where a tenant might be several months behind in their rent before you can secure a court date only to find out that that court date will be adjourned for an additional period of time because the tenant might be in the military service.

While we should all be grateful to those of our fellow citizens who are participating in the military service, we should also not be naive to the fact that certain persons might take advantage of this status.  This might occur even if the resident is not paying their rent even though they are not “away” serving the military, have the ability to pay their rent but don’t, and before you can make them accountable they run up a significant outstanding balance of unpaid rent (e.g., seven to eight months’ worth) which is then susceptible to a discharge in a subsequently filed bankruptcy proceeding.  The risk posed by these cases requires your attention and expeditious enforcement of your rights to have your rent paid.

By Christopher J. Hanlon, Esq., a NJ Landlord/Tenant Attorney

Should you have the need for legal counsel in this area, please contact chanlon@hnlawfirm.com or call toll-free (855) 376-5291