Terrorist Attacks Raise Questions and Stir Fears About Housing, Safety

Robert S. Griswold | Steven R. Kellman | Ted Smith
4-November-2001 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: My husband's a Marine stationed at Camp Pendleton. We signed an apartment lease in June for a 12-month term. There is no military clause. If he is deployed to the Middle East, is there a law that allows us to terminate the lease with no further legal responsibility?

ANSWER: Smith: Landlords, as with all Americans, appreciate your husband's commitment to the protection of the country. The Soldiers' and Sailors' Civil Relief Act of 1940 is going to protect military members under these circumstances, but only to a certain extent.

If you are going to remain in the apartment while your husband is deployed, you need to continue to pay the rent. The base will be of assistance to make special allotments to keep the rent current.

If for some reason you fail to pay rent, the landlord could initiate eviction proceedings against you in court. However, the act will stop the landlord in his tracks before he attempts to initiate a default judgment while your husband is deployed.

It was designed to protect people who are in the process of protecting the country from a civil judgment of this kind. Still, the commanding officer will understand the landlord's need to have rent paid and hopefully make arrangements to satisfy the debt.

By the way, his deployment does not give you the right to terminate the lease. Your lease apparently does not contain a military clause. In the future, it's a good idea to negotiate for a military clause in your lease which would grant you the right to terminate upon a permanent change in duty station or deployment.

Kellman: The Soldiers' and Sailors' Civil Relief Act is helpful to our military service members in certain cases only. Among other protections, this act can help to break leases for tenants or temporarily suspend eviction proceedings. The lease termination protection only applies to service members and reservists who are called to active duty after they had commenced their tenancies.

The law assumes that active duty personnel would handle the possibility of being ordered to other locations for military service when negotiating their leases. A qualifying service member must follow certain notice procedures to properly break a lease.

There is also a part of this law that may freeze an eviction for up to three months. For this "eviction freeze" protection, the service member must show that his/her military duties have materially affected the ability to pay the rent and that the rent does not exceed $1,200 a month.

Therefore, if your lease was signed while your husband was on active duty, this law will probably not help you to break the lease. You can certainly negotiate with the landlord for an early termination of the lease including offering your cooperation with showing it to prospective renters.

Attack jitters

I'm a tenant under a residential lease entered into in Southern California. My apartment is in a high-profile area next to government and business buildings in the downtown area. A friend in law enforcement informs me that I am in a high-risk area for terrorist attacks.

I am severely depressed and concerned for my safety because of the World Trade Center attacks. Based on this, do I have a legal right to break my lease with no further responsibility?

Smith: The terrorist attacks have given concern to all Americans, and I respect your emotional distress and concerns. At this point, however, I'm afraid that you will not be able to walk away from your lease, claiming there is a potential for future harm. All of us are at risk.

Although you have the right to vacate, it is unlikely that the court will agree that you are released from further rental responsibilities. The landlord is obligated to find a qualified replacement resident to take over the rent, but under these circumstances you will be responsible for the rental value of the property until such time as the premises are successfully re-leased.

Kellman: The impact of the terrorist's criminal actions affects us all. We feel pain in many ways and are asked to share in the burden and costs of such horrific and unthinkable conduct. This is a very difficult situation to be faced by both landlords and tenants.

Clearly, these risks created by the terrorists are not your landlord's fault. Although you feel unsafe in your current location, the law will generally not allow you to break a lease unless the landlord breaks the contract with his/her actions or if there is an unreasonable risk of harm to you caused by the landlord.

We all share in the risks faced today and hopefully we are not paralyzed by the fear they generate. Certainly, you may move and that is your choice. If you do so without legal justification, however, the landlord may seek to hold you responsible for the rent until it is re-rented. Hopefully, you can work through your understandable feelings and perhaps choose to remain in the unit. Every time we stand up to fear and insist that we do not disrupt our lives, we would have won another battle in this most serious conflict.

Deposit division

There are three people renting an apartment and all names are on the lease. One of the three roommates (Roommate #3) decides to move out nine months into a 12-month lease. Roommate #3 gives a 30-day notice to the other roommates. Another roommate is found temporarily to help pay rent, bills, etc. until someone permanent can be found. Does roommate #3 have any rights to a portion of the deposit?

Griswold: The deposit runs with the rental unit. Whether roommate #3 receives any portion of the security deposit back right now is a function of the agreement between the original three roommates. Often the new roommate will be asked to pay a portion of the security deposit to the departing roommate.

This is legal and up to the roommates with input required from the landlord. Of course, the incoming roommate should be very careful to thoroughly inspect the premises as he becomes liable for any damage that the landlord identifies at the time of lease termination. The landlord is only required to account for and/or refund the security deposit at the termination of the lease and then by sending the accounting/refund to all three original lessees, unless the landlord agrees to substitute the new roommate on the lease. Thus, the new roommate wants to make sure that the landlord acknowledges in writing that he is a tenant of record and entitled to any return of the security deposit.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2001 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

FHEO Logo

Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com