2.7Servicemembers Civil Relief Act (SCRA)
One of the purposes of the Servicemembers Civil Relief Act (SCRA) is “to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.” 50 USC App 502(2). See also Walters v Nadell, 481 Mich 377, 386 (2008) (“Congress enacted the SCRA as a shield to protect servicemembers from having to respond to litigation while in active service”). “[The SCRA] is always to be liberally construed to protect [servicemembers.]” Boone v Lightner, 319 US 561, 575 (1943) (referring to the Soldiers’ and Sailors’ Civil Relief Act, the predecessor to the SCRA).
Title III of the SCRA, 50 USC App 531–50 USC App 538, provides protection for servicemembers and their dependents when a servicemember’s military service has a material effect on the servicemember’s or his or her dependents’ ability to meet obligations in the areas covered by the SCRA. 50 USC App 531; 50 USC App 535.
B.Evictions and Payment of Rent1
1. Eviction
Consistent with Michigan law, the SCRA protects a servicemember and his or her dependents from eviction without a court order. 50 USC App 531(a)(1)(A). This protection from eviction applies:
•during a period of the servicemember’s military service,
•when the premises are occupied or are intended to be occupied “primarily as a residence[,]” and
•when the monthly rent for the premises does not exceed $3,217.81 (as adjusted each calendar year for price inflation).2 50 USC App 531(a)(1)(A). See also 50 USC App 531(a)(2)(A).
A landlord is also prohibited from the common-law remedy of “distress” to recover rent or possession of the premises during a servicemember’s military service. 50 USC App 531(a)(1)(B). Distress is “[t]he seizure of another’s property to secure the performance of a duty, such as the payment of overdue rent[, or t]he legal remedy authorizing such a seizure[ or] the procedure by which the seizure is carried out.” Black’s Law Dictionary (9th ed). See Sears v Cottrell, 5 Mich 251 (1858).
3. Stay of Proceedings or Adjusting Lease Obligation
If a servicemember’s “ability to pay the agreed rent is materially affected by military service[,]” a court may, on its own motion, or must, if requested by or on behalf of the servicemember, issue a stay of the proceedings or “adjust the obligation under the lease to preserve the interests of all parties.” 50 USC App 531(b)(1). The standard period of time for a stay is 90 days, but the court has discretion to order a longer or shorter stay if justice and equity so require. 50 USC App 531(b)(1)(A). If the court issues a stay of the proceedings, “the court may grant to the landlord . . . such relief as equity may require.” 50 USC App 531(b)(2).
4. Rent Allotment from Servicemember’s Pay
The Secretary concerned with the servicemember’s branch of the armed services3 must allot from a servicemember’s pay an amount of money sufficient to satisfy the terms of any court order related to the premises at issue in the proceedings. 50 USC App 531(d). The allotted amount is subject to the armed services’ regulations for the maximum allotment from a servicemember’s pay. Id.
Violation of 50 USC App 531 is a Class A misdemeanor. 50 USC App 531(c). See also 18 USC 3559(a)(6); 18 USC 3581(b)(6). “Except as provided in subsection (a) [(eviction guidelines)], a person who knowingly takes part in an eviction or distress . . . , or who knowingly attempts to do so, shall be fined as provided in [18 USC 35714], or imprisoned for not more than one year, or both.” 50 USC App 531(c).
A person aggrieved by a violation of the SCRA has a private right of action against the person responsible for the violation. 50 USC App 597a(a). A person who prevails in an action under 50 USC App 597a may be awarded “any appropriate equitable or declaratory relief with respect to the violation” and “all other appropriate relief, including monetary damages.” 50 USC App 597a(a)(1)-(2). The court may also award costs and a reasonable attorney fee to the aggrieved person if he or she prevails in the action. 50 USC App 597a(b).
Under certain circumstances, the United States Attorney General may also enforce the SCRA’s provisions through civil actions against persons who violate the Act. See 50 USC App 597.
C.Lease Terminations5
1. When a Lease May Be Terminated
A servicemember-tenant may terminate a lease covered under the SCRA at any time after:
•“the [servicemember’s] entry into military service; or”
•“the date of the [servicemember’s] military orders . . . for a permanent change of station or [deployment], or as an individual in support of a military operation, for a period of not less than 90 days.” 50 USC App 535(a)(1)(A)-(B); 50 USC App 535(b)(1)(B).
A lease covered under 50 USC App 535 includes “[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[:]”
•“the lease is executed by or on behalf of a person who thereafter and during the term of the lease enters military service; or”
•“the servicemember, while in military service, executes the lease and thereafter receives military orders for a permanent change of 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.” 50 USC App 535(b)(1)(A)-(B).
A servicemember’s termination of a lease under 50 USC App 535 also terminates any obligations a servicemember’s dependents have under the lease. 50 USC App 535(a)(2).
A servicemember must provide his or her landlord with “written notice of [] termination, and a copy of the servicemember’s military orders[.]” 50 USC App 535(c)(1)(A).
The notice must be served in one of three ways:
•hand delivering the notice to the landlord,
•having the notice delivered by a private business carrier, or
•mailing the notice to the landlord, return receipt requested, in an envelope that has sufficient postage and is properly addressed to the landlord. 50 USC App 535(c)(2)(A)-(C).
3. Effective Date of Termination
For leases under which the rent is paid monthly, a termination “is effective 30 days after the first date on which the next rental payment is due and payable after the date on which the notice . . . is delivered.” 50 USC App 535(d)(1). For all other covered leases, a termination “is effective on the last day of the month following the month in which the notice is delivered.” Id.
1.Unpaid Rent
Unpaid rent due on a lease that was terminated due to a servicemember’s entry into military service, an ordered change in permanent station, or a deployment for 90 days or more, must be paid on a prorated basis. 50 USC App 535(e)(1). No early termination charge may be imposed. Id. However, the servicemember is obligated to pay any of his or her other outstanding obligations under the lease, “including reasonable charges . . . for excess wear[.]” Id.
The landlord must within 30 days of the termination’s effective date refund to the servicemember any amount of rent paid for a period of time after that date. 50 USC App 535(f).
If the landlord requests relief before the termination date in the written notice of termination and if justice and equity require it, the court may modify the relief granted to a servicemember under 50 USC App 535. 50 USC App 535(g).
A person who knowingly holds or attempts to hold the property or security deposit “of a servicemember or servicemember’s dependent who lawfully terminates a lease covered by [50 USC App 535]” or who knowingly interferes with removal of property from the premises, for the purpose of subjecting the property or the security deposit to a claim for rent accruing after the date of a lawful termination of a lease, commits a Class A misdemeanor and “shall be fined as provided in [18 USC 35716], or imprisoned for not more than one year, or both.” 50 USC App 535(h).
1. Protection
The SCRA provides a servicemember with some protection from default judgments when the servicemember’s failure to appear in court is related to his or her military service. 50 USC App 521(a).
Before the court may enter a default judgment against a servicemember-tenant who failed to appear in a civil action or proceeding, the landlord must file an affidavit with the court. 50 USC App 521(b)(1). The affidavit must state whether the servicemember is in military service, and the affidavit must show facts sufficient to support the affidavit’s assertion. 50 USC App 521(b)(1)(A). If the landlord is unable to determine whether the servicemember is in military service, the affidavit must state that information. 50 USC App 521(b)(1)(B).
If the court concludes that the servicemember is in military service, the court must appoint an attorney to represent the servicemember’s interests before the court may enter a judgment. 50 USC App 521(b)(2). If the attorney cannot locate the servicemember, the attorney’s actions on behalf of the servicemember do not waive any defenses the servicemember may have and do not otherwise bind him or her. Id.
If the court is unable to determine whether the servicemember is in military service, the court may require the landlord to post a bond “to indemnify the [servicemember] against any loss or damage [he or she] may suffer by reason of any judgment for the [landlord] against the [servicemember], should [he or she be found to be in military service and should the] judgment be set aside in whole or in part.” 50 USC App 521(b)(3).
If the servicemember is in military service and does not appear in court, the court must stay the proceedings for at least 90 days, on the court’s own motion or upon the application of a party, if the court determines that
•“there may be a defense to the action and a defense cannot be presented without the presence of the [servicemember]; or”
•“after due diligence, counsel has been unable to contact the [servicemember] or otherwise determine if a meritorious defense exists.” 50 USC App 521(d)(1)-(2).
A servicemember who receives actual notice of the proceedings at which he or she failed to appear because of military service may request a stay of the proceedings under 50 USC App 522. 50 USC App 521(f). However, “[a] stay of proceedings under [50 USC App 521(d)] shall not be controlled by procedures or requirements under [50 USC App 522].” 50 USC 521(e).
2. Setting Aside Default Judgments
If a default judgment was entered against a servicemember during his or her military service or within 60 days of his or her release from such service, the court, on request of the servicemember or on his or her behalf, must reopen the judgment and allow the servicemember to defend the action if:
•“the servicemember was materially affected by reason of that military service in making a defense to the action; and”
•“the servicemember has a meritorious or legal defense to the action or some part of it.” 50 USC App 521(g)(1)(A)-(B).
“An application [to set aside a default judgment] must be filed not later than 90 days after the date of the termination of or release from military service.” 50 USC App 521(g)(2).
1 Effective August 3, 2021, the U.S. Centers for Disease Control and Prevention issued an order temporarily halting residential evictions in counties with substantial or high transmission of COVID-19 to prevent the further spread of COVID-19, which was to remain in effect through October 3, 2021. See 86 Fed Reg 43244 (August 6, 2021). However, on August 26, 2021, the United States Supreme Court held that the CDC exceeded its authority in issuing the order and noted that “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” Alabama Ass’n of Realtors v Dep’t of Health and Human Servs, 594 US ___, ___ (2021). For more information, please see the SCAO Memorandum, Eviction Moratorium, and Michigan Legal Help.
2 Effective January 1, 2014. See 50 USC App 531(a)(3); Publication of Housing Price Inflation Adjustments Under United States Code, 79 Fed Reg 115 (January 2, 2014).
3 See 10 USC 101(a)(9); 50 USC App 511(7)(A).
4 Not more than $100,000. 18 USC 3571(b)(5).
5 A lease, as described in 50 USC App 535, means either certain leases of premises or certain leases of motor vehicles. 50 USC App 535(b). Any reference to a lease in this subsection of the benchbook is a reference to a lease of premises.
6 Not more than $100,000. 18 USC 3571(b)(5).