•
The waiver must be in writing;
•
It must be on a document separate from the lease;
•
The waiver must be signed by the service
member;
•
The waiver must specify the legal instrument
(e.g., the lease) to which it applies; and
•
It must be in at least a 12-point font.
If a landlord asks you to waive SCRA rights as
a condition of renting the premises, you should go
elsewhere for rental quarters and then report the
matter to the nearest legal assistance office and the base
housing and housing referral office.
Q: What should I do if I am a service member,
but none of the scenarios above gives me the
right to terminate my lease early?
A: When you need to terminate your lease and neither
of the lease termination statutes applies, you should
review the lease to see if it gives you any other special
lease termination rights or seek legal assistance. If you
leave the premises early in breach of the contract, the
landlord may be entitled to damages you caused as a
result of the breach. These damages can include the
loss of rent during the remaining lease term and costs
of re-renting the property. Again, the landlord must take
reasonable steps to “mitigate” damages, that is, to re-rent
the premises, but the landlord may apply your security
deposit to satisfy these damages and may also sue you for
any additional damages in excess of the security deposit.
Q: I am a member of the Armed Services and
booked a vacation rental but can no longer go
because I received orders; can I terminate my
vacation rental agreement?
A: North Carolina General Statute § 42A-37 allows
members of the United States Armed Forces to seek
termination of a vacation rental agreement in the
following cases:
North Carolina Human Relations Commission Web site
at www.doa.nc.gov/hrc or call 919-807-4420, or contact
your local fair housing agency. In addition, if you are in
the military, you may wish to consult your Judge Advocate
General (JAG).
If you are in the military and have questions about
a lease, please call our special toll-free hotline at 1-855-
806-0232.
Scan the code below to access the
Commission Website from your mobile devices.
THE NORTH CAROLINA
REAL ESTATE COMMISSION
P.O. Box 17100
•
Raleigh, NC 27619-7100
Phone: 919/875-3700
•
Website: www.ncrec.gov
7,500 copies of this public document were printed at a cost of $0.00 per copy.
REC 3.62
•
9/1/19
But remember that under N.C.G.S. § 42-45,
even if you have been in the lease for less than
nine months, the landlord may only retain rent or
liquidated damages if he or she has suffered an
actual loss.
Q: My landlord also required my spouse’s
signature on the residential lease; does either
law release my spouse from the lease as well?
A: Under the SCRA, yes. The SCRA is clear that
termination by a service member terminates the
obligations of a spouse and any other military
dependent that may have signed the lease as well.
N.C.G.S. § 42-45, however, does not address that issue.
If a spouse signs a lease on behalf of the service
member, such as by using a power of attorney,
then the lease is covered to the same extent as if
the service member signed the lease. However, if
the civilian spouse signed a lease in his or her own
capacity and the service member did not, there is no
protection under either statute.
Q: Can I waive my rights under either law
in my lease contract?
A: The termination provisions in N.C.G.S. § 42-45
cannot be waived or modified under any circumstanc-
es. However, the SCRA lease termination rights may
be waived, but to be legally effective, a waiver must
comply with requirements, including, but not limited
to, the following:
•
The service member receives permanent change
of station orders requiring the member to relocate on a
date prior to the beginning of the lease term; or
•
The service member tenant is deployed for a
period that will overlap with the rental period.
In order to terminate the vacation rental agreement,
you or your spouse must provide the landlord written
notice of termination within 10 calendar days of receipt
of the orders, along with a copy of your military orders
or a letter from your Commanding Officer verifying the
reason for the need to terminate the lease. Termination
will be effective immediately upon receipt of the notice
by the landlord. The landlord must refund any money
you have paid in connection with the vacation rental
agreement, with the exception of nonrefundable fees
paid to third parties as described in North Carolina
G.S. § 42-16(a), within 30 days of termination of the
agreement.
Additional Resources:
For information on tenant security deposits, renting
residential real estate, discrimination in rental housing
and other consumer housing issues, visit the North
Carolina Real Estate Commission Web site at www.ncrec.
gov or call us at 919-875-3700 to request a free copy of
a “Questions and Answers” brochure on any of these
topics.
Other written materials are available from the
Consumer Protection Section of the Attorney General’s
Office’s Web site at www.ncdoj.gov or by calling 919-716-
6000. For fair housing (discrimination) issues, visit the
Questions and Answers on:
N.C. MILITARY
PERSONNEL
RESIDENTIAL
LEASE
TERMINATION
Questions and Answers on:
N.C. MILITARY
PERSONNEL
RESIDENTIAL
LEASE
TERMINATION
A publication of the North Carolina Real Estate Commission
Questions and Answers on:
N O R T H C A R O L I N A
M I L I T A R Y P E R S O N N E L
R E S I D E N T I A L L E A S E
T E R M I N A T I O N
This pamphlet focuses on questions regarding
the rights of members of the Army, Navy, Air Force,
National Guard, Marine Corps, and Coast Guard
to terminate a lease contract under North Carolina
and Federal law. While it is written primarily from
the viewpoint of those individuals, it is equally
informative for owners and landlords of rental
properties occupied by members of the Armed
Forces.
Q: I am a military technician and I signed
a 1-year lease for quarters in North Carolina.
May I terminate my residential lease early?
A: North Carolina General Statute § 42-45 allows
military technicians to seek early lease termination in
the following cases:
•
The service member receives permanent
change of station orders to depart 50 miles or more
from the location of their current residence;
•
The service member is “prematurely or
involuntarily released or discharged from active duty
with the United States Armed Forces;” or
•
The service member is deployed for 90 days
or more.
Q: Under North Carolina law, how do I exercise
my right to terminate and when will my lease
end?
A: You must give your landlord written notice of your
intent to terminate, along with a copy of your military
orders or a letter from your Commanding Officer
verifying the reason for the need to terminate the lease.
If you receive permanent change of station orders
to relocate at least 50 miles away, are prematurely or
involuntarily discharged, or are released from active
duty, your lease will terminate 30 days after the landlord
receives your written notice.
If you are being deployed for 90 days or more, after
you landlord receives the written notice, your lease will
terminate 30 days after the next rental payment is due, or
45 days after the landlord received the notice, whichever
is shorter. For example, if rent is due on the 1st of the
month, and you provide written notice to terminate on
January 5th, the lease can terminate as early as 30 days
after February 1st, or 45 days after January 5th, whichever
comes first. In this case, 45 days after January 5th is
shorter.
Q: What will I have to pay under North Carolina
law if I terminate my residential lease early?
A: Under N.C.G.S. § 42-45, you are responsible for paying
rent through the effective date of termination of the lease.
And if you terminate within the first nine months of your
lease term, you may be required to pay an additional
amount, called liquidated damages.
The liquidated damages amount will depend on
how much of the lease you have completed. If you have
completed fewer than six months of the tenancy, the
maximum liquidated damages can be up to one full
month’s rent. If you have completed more than six
months, but fewer than nine months, the maximum
amount of liquidated damages will be up to one-half of a
month’s rent.
Q: Will I always have to pay liquidated damages
if I terminate my lease within the first nine
months?
A: No, a landlord is not entitled to liquidated damages
unless there are actual damages due to loss of the
tenancy. Actual damages occur when, despite reasonable
efforts to mitigate or limit damages, the landlord is
unable to find a new tenant for the premises. For
example, if the landlord rents the residence two days
after you terminate your lease, the liquidated damages
may not exceed two days’ rent and other actual damages.
Q: Under North Carolina law, what are my
family’s options for my residential lease if I die
while on active duty?
A: An immediate family member or lawful
representative may terminate the lease with written
notice. Termination will be effective 30 days after the
first date on which the next rental payment is due, or
45 days after the landlord’s receipt, whichever is shorter.
The notice to the landlord must include a copy of the
death certificate, military casualty report, or letter from a
commanding officer.
Co-tenants who are immediate family members
are also no longer obligated under the lease. However,
co-tenants who are not immediate family members will
remain obligated under the lease.
Q: What if N.C.G.S. § 42-45 doesn’t apply to my
situation?
A: The Service members Civil Relief Act (SCRA),
a federal and state law, provides a wide range of
protections for service members. (50 U.S.C. App.
§ 501-597b. and N.C.G.S. § 127B25-36.) The SCRA allows
service members and their dependents to terminate
residential leases in three instances:
•
The service member entered the lease before
active duty military service;
•
The service member entered the lease while on
active duty and then received permanent change of
station orders; or
•
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.
Q: Under the SCRA, how do I exercise my right
to terminate and when will my lease end?
A: The notice requirements under both the SCRA and
N.C.G.S. § 42-45 are similar. You must give your landlord
written notice of your intent to terminate, along with
a copy of your military orders or a letter from your
Commanding Officer verifying the reason for the need
to terminate the lease. Under the SCRA, you must give
notice by hand delivery, private business carrier, or by
U.S. Mail with return receipt requested.
Lease termination will be effective 30 days after
the next rental payment is due following your landlord’s
receipt of proper notice of intent to terminate. For
example, if the monthly rent is due on the 1st day of the
month and you deliver proper notice of termination to
your landlord on January 25th, the earliest effective date
the lease and your obligation to pay rent terminate, will
be 30 days after February 1st.
Q: What will I have to pay under the SCRA if
I terminate my residential lease early?
A: If you terminate your lease under the SCRA, you
must pay rent through the effective termination date
of the lease, but your landlord cannot require you to
pay any liquidated damages.
Q: Should I use N.C.G.S. § 42-45 or the SCRA to
terminate my North Carolina lease?
A: In some cases, only one of the laws will apply. In
cases where both laws apply, you should utilize the law
that is most advantageous given the facts at hand.
Q: Which law is going to cost me less to
terminate my lease — N.C.G.S. § 42-45 or the
SCRA?
A: It will typically less expensive to terminate under
N.C.G.S. § 42-45 if you have been in your lease for nine
months or more and you deliver notice to terminate
more than fifteen days before the next monthly rental
payment is due. For example, suppose you have been
in your lease over nine months and the next rental
payment is due April 5th. On March 6th, you deliver
notice of intent to terminate. Under the SCRA, the
effective date of termination is 30 days after April
5th, meaning you will pay two months’ rent. Under
N.C.G.S. § 42-45, the termination date would be 45
days after delivery of the notice. Since you have been
in the lease for at least nine months, there are no
liquidated damages. However, if you have been in the
lease for less than nine months, the SCRA may be more
economically favorable, because, as discussed above,
the SCRA does not permit liquidated damages under
any circumstances.
Continued
