Q: My tenants, John and Alice, an unmarried couple, have just informed me that they are breaking their lease. John joined the military and has been transferred to Texas, and Alice intends to go with him. I know that the law requires me to terminate the lease with respect to John and any dependents, but is Alice a dependent? As I understand it, a dependent has to be a child or relative. –Mark S.
A: You’ve started out right, by recognizing that federal law (The Servicemembers’ Civil Relief Act) enables tenants to break their leases when they enter active duty in the armed forces, commissioned corps of the National Oceanic and Atmospheric Administration, commissioned corps of the Public Health Service, and the activated National Guard. Once the tenant mails notice of his or her activation, a lease or rental agreement will terminate 30 days after the date rent is next due.
For example, if rent is paid on Jan. 1 and the tenant mails the notice anytime in January, the tenancy will terminate on March 1. The termination is effective for the activated tenant and any dependents.
It’s understandable that you would question your tenant’s live-in partner as a dependent. If John were filing a tax return and wanted to claim Alice as a dependent, he could not, because she is not a child or relative (see Internal Revenue Service Publication 501, Exemptions, Standard Deduction and Filing Information, Table 5).
But the Servicemembers’ Act defines "dependent" much more broadly than the IRS. According to the Act, a dependent is a child, spouse, or anyone whom the servicemember has supported within the preceding 180 days, by paying for more than half that person’s living expenses. (The Servicemembers’ Civil Relief Act, 50 App. U.S.C.A. Section 511(4).)
So the relevant question for you is whether John has provided more than half of Alice’s support for the last six months or so. You could raise this with your tenants and ask for documentation.
If Alice has been living with John and unemployed for six months, even if she receives unemployment, she might meet the test right there. But if she’s got a job, and certainly if she has supplemental income, she might not qualify as a dependent.
Before you ask the questions and do the calculations, consider the bigger picture. John has voluntarily joined the military, and will represent our country so that you don’t have to. Perhaps we civilians should go beyond the letter of the law in recognition.
Keeping Alice bound to the lease will mean, in most states, that unless you can rent the place out again right away, this couple will continue to be responsible for the rent until the end of the lease.
If vacancies are high in your area and you cannot re-rent quickly, this could prove to be a real financial hardship to them. Considering what may be ahead for John and Alice, are you sure you want to stick them with this obligation?
Q: We just rented a house that we thought was on a major bus route into town. When we visited the property, we asked about transportation, and the owner told us that the express line ran downtown on the hour. But after moving in, we discovered that the entire route will be eliminated, making it impossible for us to get to work. We’ll have to buy a car! …CONTINUED
We’ve learned that the issue of transportation cutbacks was all over the local news and newspapers (which we never saw, because we moved from out of state). Is this misrepresentation enough to get us out of our lease? We cannot afford the rent and a new car. –Beth L.
A: Let’s assume that your landlord didn’t deliberately mislead you into thinking that the bus route was there to stay. Chances are, he either misunderstood the importance of the bus to your decision, or he understood it, but didn’t bother to make sure that his information was correct.
If you made your needs clear — that the bus line was key to your decision to take the rental — the question is this: What’s the legal effect of the landlord’s failure to inform you about the bus line’s imminent disappearance?
When a person carelessly supplies false information in the course of a contract or lease negotiation, the consequence isn’t always to undo the deal. The impact of the misinformation depends on whether the speaker used reasonable care in obtaining or communicating that information, and whether the other side reasonably relied on this erroneous information.
Given these standards, we’ll need to know a little more about the situation before hazarding a guess at an answer. As to the first issue — whether the landlord used reasonable care before speaking — we need to know how reasonable it was for the landlord to assume the bus route would not be changed.
Had this owner been exposed to the news reports you speak of (perhaps he, like you, lived elsewhere)? Was the issue of transportation important enough to previous tenants that the landlord would (or should) have known that taking the bus to town was an important part of his description and marketing of the rental? Did you make it clear that transportation was a deal-breaker for you, thereby alerting the landlord to the need to double-check his assumptions?
These are the kinds of questions a judge would ask if you ended up in court, suing to get your deposit back after you broke the lease and the owner kept it to cover any unpaid rental months until he was able to rent the property to someone else.
Second, how reasonable was it for you to rely on the landlord’s answers? Ironically, the more important the bus route was to your decision, the more a court would expect you to check the accuracy of the landlord’s statement.
There are some things that are almost impossible for a potential tenant to check independently, such as whether there’s asbestos in the floor tile or mold behind the drywall. But you could have easily double-checked what the landlord told you with just a little legwork, such as calling the local transit authority for news on any planned route changes. Because the information you sought was readily available to you, a judge might be disinclined to lay complete responsibility on the landlord.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@sandbox.inman.com.
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