Should I have a Military Clause in My Lease?

Michele Allen
MilitaryByOwner staff writer

Confusion abounds regarding the Military Clause and the Servicemen’s Civil Relief Act in regard to an order of transfer of duty station.  Even our own military resources have conflicting opinions regarding the military clause requirement.

Here are just two of many .mil resources that state the SCRA does not provide release from a lease when you receive transfer orders:

From the USAFA JAG website: What happens if I get out of the Air Force or PCS before my lease end?  "You will be liable under the lease unless it contains a "military clause". This clause allows you to get out of your lease under certain conditions. Although landlords who frequently rent to military members often put this clause into their leases, you should discuss this issue with your landlord. If the clause is not right in the lease, you and the landlord can sign an addendum (sample attached to this handout). You may have to pay a "penalty" (i.e. one month's rent) in order to get out of the lease using this clause. "

From USMC 29 Palms Housing: " For service members, no lease should be signed without a military clause. A military clause provides you with a way to end a lease prematurely for reasons connected with military service.. Remember, if your lease does not have this clause, you have no statutory right to break a lease."

And then in contradiction:
From JAG Little Rock AFB:  Household leases – The prior law only allowed the termination of pre-service "dwelling, professional, business, agricultural, or similar" leases. The new provision in the SCRA allows termination of leases by active duty servicemembers who subsequently receive orders for a permanent change of station (PCS) or a deployment for a period of 90 days or more. In other words, it is no longer necessary (although still good idea) to have a military clause included in your rental agreement. If you have PCS orders or are Deploying for a period of 90 days or more, you need to give written notice to your landlord with a copy of your orders. If your orders are not available, inform the landlord of that in the letter and provide a copy as soon as possible. Additionally, you must give at least 30-days notice but the 30-days does not start to toll until the first of the month. Therefore, if you give 30-days notice on the 15th of August, you will be obligated to pay all of September’s rent. The rationale behind this is that most leases begin and end on the 1st and 30th of each month, it gives the landlord an opportunity to re-let the premises.

From Fort Dix JAG: The Service members Civil Relief Act (SCRA), 50 U.S.C. App. Section 535, provides relief to service members in the termination of real property leases. Active duty service members, who receive military orders for a permanent change of station (PCS) or deployment orders, for not less than 90 days, may terminate their real property lease. Military members entering active duty service for the first time may also lawfully terminate their real property lease. Activated Reservists and National Guardsmen (when serving in federal active duty or under certain circumstances, when serving in state active duty) are also entitled to terminate their real property lease if the lease was entered into prior to active duty. While a service member is usually concerned with the termination of a residential lease, the protection offered under the SCRA extends to other types of leases. Specifically, the SCRA applies to "a lease of premises occupied, or intended to be occupied, by a service member or a service member’s dependents for a residential, professional, business, agricultural or similar purpose".

From USMC Camp Lejeune:  Whether you can get out of the lease early depends on the reason for termination.. The Service Member Civil Relief Act (SCRA), a Federal law, allows for early termination in three instances:

1.    The service member entered the lease before active duty military service.
2.    The service member entered the lease while on active duty and then received permanent change of station orders, or
3.    The service member entered the lease while on active duty and then received orders to deploy in support of a military operation in excess of 90 days.

Why so much Contradiction and What to Do with this Information?

The primary reason for the confusion is the Revised SCRA that was enacted in 2003.  This latest version provides the additional protection for PCS orders, not just enlistment in military service.  The SCRA states:

(a) TERMINATION BY LESSEE- The lessee on a lease described in subsection (b) may, at the lessee's option, terminate the lease at any time after—
(1) the lessee's entry into military service; or
(2) the date of the lessee's military orders described in paragraph (1)(B) or (2)(B) of subsection (b), as the case may be.
(b) COVERED LEASES- This section applies to the following leases:
(1) LEASES OF PREMISES- 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:
(A) the lease is executed by or on behalf of a person who thereafter and during the term of the lease enters military service; or
(B) 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 for a period of not less than 90 days.

Although no local or state level law can contradict a federal law, you should carefully consult your housing office if you are considering signing a lease without a military clause.  As a military landlord, please consider consulting your local JAG office before proffering a lease without a military clause.  There are specific levels of liability that serviceman are protected from incurring in the event that they break their lease.   Dependent upon notice, servicemen breaking a lease can be liable for 1-3 month’s rent.
Read more about additional Benefits of the Servicemember’s Civil Relief Act.