Military Service and Evictions: Protections for Tenants who May be Serving in the Military
by: Legal Services NYC - Legal Support Unit
There are certain laws that are designed to help
protect individuals who are serving in the military, and their
dependents, from eviction. Some of these rules may affect a landlord's
ability to evict you whether or not you, or a family member, are
in the military.
Non-Military Affidavits
What is a non-military affidavit and how can it
help a tenant in an eviction case?
If a landlord brings an eviction case against a tenant
and the tenant does not answer the case or show up in court, this is
called a "default." The landlord automatically wins in this case and
can ask the Court for an Order to evict the tenant. However, before
being allowed to evict ANY tenant based on their default, the landlord
must prove to the Court that the tenant is not in the military. This
rule is to protect tenants who couldn't come to court because they are
serving in the military.
In order to prove that the tenant is not in the
military, the landlord must submit a "non-military
affidavit" to the Court.
A non-military affidavit is a sworn statement that the
landlord knows that the tenant is not in the military. For example,
the affidavit could say that the landlord spoke with the tenant or the
tenant's neighbors, looked up the tenant's military record, or
observed that the tenant is elderly (with approximate age listed) or
sick. The affidavit should contain the names and descriptions of
people interviewed and a description of the location where the
interview took place.
If the Court is satisfied with this affidavit, the
Court may allow for an eviction of the tenant. However, if the
landlord does not file a non-military affidavit with the Court, or if
the Court is not satisified with the affidavit, the judge should not
allow the landlord to evict ANY tenant, whether or not they
actually are in the military.
When is the non-military affidavit required
to be made?
A non-military affidavit must be made no more
than thirty 30 days before the landlord asks for a default judgment.
If the affidavit is made more than 30 days before the court receives
the application for the default judgment, that application must be
brought to the attention of the judge.
Other Protections for Tenants Who are in the Military
If I am on active military duty and my landlord
is trying to evict me, what kind of help can I or my family get?
A judge can appoint a lawyer to represent you in the
case. The judge can also ask the landlord to post a
bond (a certain sum of money) to protect your interest. In
addition, the judge can put off your case for up to three months if
being in the military has affected your ability to pay rent.
Can I get out of my lease if I need to?
Yes, if you are on active military duty, you are
legally permitted to cancel your lease before the end of its term. You
can also get out of your lease if you have received orders for a
change of station.
What should I bring with me
to court?
You should bring your military or military dependent ID
card and a copy of the paper calling you to active duty. If
you do not have these documents, you can contact the Fiscal Officer of
the service member's unit, or call the following numbers for
assistance:
Army Emergency Relief
(718) 630-4710
Navy and Marines Emergency Relief (718)
876-6245/6246
Air Force Family Aid (609)
724-3154
Reserve Civilian Job Rights (800)
336-4590
Where should I report to on the day of the court
proceeding?
A special Military Part has been set up for these cases.
You should be sure to let the judge, the clerk, the landlord,
and the landlord's attorney know that you are in the military or a
dependent of someone who is in the military.
What if I did not appear in Court and a default
judgment was entered against me?
You or a representative should go to court as soon as
possible to get an order to show cause and ask that the case be
reopened. Bring copies of the documents listed above to prove to the
court that you were an active member of the military or military
dependent at the time you defaulted, and copies of anything related to
defenses that you have to the case.
Is there anything else that can be done to protect my
rights as a tenant?
Housing Court can be complicated, and each
person's situation is different. For this reason, written materials
cannot take the place of direct legal assistance from an attorney.
If your landlord brings you to court, or if you need legal help or
advice, you can go to http://www.lawhelp.org/NY
for a complete referral directory of free legal services, or call the
Association of the Bar of the City of New York at (212) 626-7373. In
addition, as stated earlier, a person who is on active military duty
and that person's dependents can ask the judge to appoint a lawyer to
represent you in the case.
|
