Amendments to the SCRA
Full Text of SCRA | SCRA FAQs| Verifying a Tenant's Military Status
Under the amendments to the SCRA, effective December 10, 2004, a service member may no longer waive the provisions of the Act unless that waiver is in a separate document (the waiver cannot be contained in the lease itself; it must be contained in a separate document.)
The U.S. Congress passed several amendments to The Service members Civil Relief Act (SCRA) in December 2004, effective December 10, 2004. The primary purpose of the amendments was to clarify certain provisions of the Act, and to expand the rights of military personnel and their families under the Act.
If a soldier does not waive the provisions of the SCRA in a separate waiver document, and if the soldier becomes delinquent in any payments that are due to the storage facility, your legal remedies against that soldier are greatly restricted by the SCRA. You could not foreclose on a storage lien without a court order in this situation. So, you would have to hire a lawyer, file a lawsuit, go to court, and have a hearing or trial. Only then would you be able to exercise your Chapter 59 rights to foreclose on the unit and recoup your unpaid rent to the extent you can. Your right to evict an active-duty military tenant who is delinquent is not restricted, because the restriction on eviction applies only to residential leases. Please see the article titled "The U.S. Service Member Civil Relief Act" in the TSSA Goldbook© for further information.
Under the amendments to the SCRA, a service member may no longer waive the provisions of the Act unless that waiver is in a separate document (the waiver cannot be contained in the lease itself; it must be contained in a separate document). The separate waiver document must also be signed (in addition to the lease being signed) by the military tenant in order for the waiver to be effective. The 2004 amendments are not retroactive, so any 2004 TSSA leases you signed with a military tenant prior to December 10, 2004 till contain an effective waiver provision.
Going forward, if you believe that it is in your facility’s best interest to obtain a waiver from military tenants, you must use a separate document to do so. TSSA legal counsel has revised the "Rental Agreement Addendum Regarding U.S. Service members Civil Relief Act" to include this waiver language. That addendum is included on the appendix CD that comes with yourGoldbook©.
The vast majority of service personnel are model citizens, have every intention of paying you, and would not hide behind the protection of the SCRA in order to shirk their legal obligations under the lease. However, inevitably there will be a select few military tenants who use a military person’s protections under the SCRA to take advantage of the landlord attempting to shirk their contractual obligations. Service members who have every intention of paying you in a timely manner should presumably have little objection to signing a waiver.
It is TSSA’s long-standing position to encourage its members to be understanding of sudden military-related changes in the tenants status (deployment overseas, change of duty station, call-ups of reservists or National Guard members) regardless of whether a waiver has been signed. That is the right, fair and patriotic thing to do. Furthermore, if self-storage owners abuse our military tenants when their status or location assignment suddenly changes, our industry may expect to see adverse legislation on this subject in the Texas legislature or national legislature in future years. It is in everyone’s best interest for the self-storage industry to maintain good relations with our military tenants, treat them fairly, and be as understanding and accommodating as is reasonably possible
Servicemembers Civil Relief Act Frequently Asked Questions)
Q: What is “active duty” when you’re referring to military service?
A: The Act is very specific, but in layman’s terms, this refers to any servicemember actively serving in a branch of the military, including reservists or National Guard members who have been called up for active service in a military action, such as deployments to Iraq or any other part of the world.
Verifying Military Status
Q: When the lease was signed, the tenant checked the military box to indicate that she was in the military. Now, several years later, she has stopped paying rent. How do I verify that she is actively serving in the military?
A: If the emergency contact and other contacts you have on file from the Tenant Information Form do not yield useable information, and if you know where the servicemember was stationed when she rented, call the base and see if they can help. If you do not have this information, you can use the Department of Defense's online lookup ervice or request a copy of the tenant’s military records from the National Archives and Records Administration (NARA) by mail or by fax. However, you will have to provide the servicemember’s Social Security number, branch of the service, and possibly birth date. Send requests to:
National Personnel Records Center
Military Personnel Records
9700 Page Avenue
St. Louis, MO 63132-5100
Web: Military Record Request Form (Standard Form 180)
Q: My tenant is in the military, on active duty. I have not received his rent this month, and it is now overdue. I know I cannot start the foreclosure proceeding without going to court, since I do not have a waiver signed by the tenant, but can I place my lock on the unit to deny access?
A: Yes, you may overlock the unit until you receive payment, or until the court grants permission for you to foreclose on the unit.
Assessing Late Fees
Q: Can I still charge late fees on a servicemember under the new act?
A: Yes, you can charge late fees (according to the terms of your lease) against the servicemember’s account. You just cannot initiate foreclosure. In the TSSA Rental Agreement, daily late fees can be charged for no more than 30 days past the original due date. (For example, if rent is due on the 1st of the month, you will stop assessing daily late fees for January after January 31st, and begin charging fees for February if the rent for that month is not received by the due date.)
What if the Servicemember Won’t Sign Waiver
Q: Do I have the right to refuse to rent to a servicemember who won't sign the SCRA waiver or a lease with the SCRA language?
A: Yes, you have the right as a business owner to refuse to rent to anyone who will not agree to the terms you are offering, as long as you are not discriminating on the basis of a protected class (race, religion, handicap, sex, etc.) For the sake of good public relations, if you are in a city with a military base, or if you tend to have a large number of military tenants, you may want to talk with someone from the housing office of that base to tell them about your requirements.
Getting Current Tenants to Sign Waiver
Q: I have several current tenants serving in the military. How do I make sure these tenants sign the SCRA waiver addendum?
A: You cannot force tenants to accept this particular change to the contract they executed with you. The TSSA Rental Agreement allows you (in most circumstances) to send notice of changes to the contract with 30 days notice. Normally, changes would automatically become effective without the signature or agreement of the tenant. For active military tenants, however, you cannot force the tenant to accept the terms of the waiver in this manner, because the waiver must be signed. So, you can ask your military tenants to sign the waiver by requesting it in writing, or by asking them when they are in your office, but you cannot demand it.
Q: If I have leased to a tenant who is active-duty military, and have not required this tenant to sign a waiver of the tenant’s rights under the Servicemember’s Civil Relief Act (SCRA), may I raise the tenant’s rent during the lease term utilizing the TSSA lease provision allowing me to do this upon 30 days notice to tenants?
A: No, the SCRA prohibits this. The SCRA provides that unless a waiver is signed, you may not modify a contract or lease (without the tenant’s written consent). This would apply to any lease modification, be it a rule change, rent increase, updating the tenant to a new TSSA lease version, etc. Quite simply, you may not make any changes at all to an active duty servicemember’s lease without the servicemember’s written consent unless the servicemember has signed a waiver that complies with the SCRA’s waiver requirements.
Any waiver must be in a separate document (it cannot be part of the language of the lease, it must be an addendum), and must contain certain language. The TSSA military waiver (form ADD-4) may be used for this purpose should TSSA members choose to request that their military tenants sign a waiver.
SCRA Protection After Discharge-Grace Period?
Q: Do the SCRA protections expire when the tenant is discharged from the military or is there a grace period?
A: The SCRA states that a person holding a lien on the property of a service member (like a self-storage facility) may not, during any period of “military service” of the service member, and for 90 days thereafter (the grace period), foreclose on a lien without a court order. “Period of military service” means the time that the person is on active duty, or in the case of a member of the National Guard, called to active service for more than 30 consecutive days. So in summary, during any period where your tenant is on active duty, and for the 90-day period following the end of his active duty status, you may not foreclose without a court order. (There is an exception if the tenant has signed a lawful waiver of his SCRA rights.) There is no exception to the grace period for dishonorable discharges—the 90 day grace period still applies.