January 27, 2005
EVICTING SERVICE MEMBERS AND STATE MARSHAL LIABILITY
By: Sandra Norman-Eady, Chief Attorney
You wanted to know the process for evicting military personnel living in private housing, especially whether a military affidavit is required to evict. You also wanted to know whether state marshals are personally liable for service of process in eviction cases.
No military affidavit is required to evict a tenant who is in the military. The process for evicting tenants is generally the same. The only difference appears to be that military personnel are afforded greater protection against the enforcement of an eviction judgment in nonpayment of rent cases.
It is unclear whether state marshals, who execute (serve) eviction judgments, can be held personally liable for negligent acts committed during the process.
EVICTING A MILITARY TENANT
Any eviction process involving military personnel must comply with the federal Servicemembers Civil Relief Act (50 App. USCA 531), which provides housing protection for members of the armed services and their dependents. “Dependents” mean a servicemember's spouse, children, and any other person he supports for at least 180 days in a calendar year by providing at least one-half of the person's income.
The act applies during periods of active duty for servicemembers enlisted in the Army, Navy, Air Force, Marine Corps, or Coast Guard. For members of National Guard and their families, the act applies when when the President or Secretary of Defense calls the servicemember to active service for more than 30 consecutive days to respond to a national emergency.
The act prohibits landlords from evicting servicemembers or their dependents, except by court order, from a residence where the monthly rent does not exceed $2,465. (The maximum rent increases annually by the consumer price index.) Since a court order is required to evict all tenants in Connecticut, the process for evicting a tenant who is in the military is generally the same as that for evicting any other tenant. It begins with the service of a notice to quit that states a statutory basis for eviction and ends with the return of the leased premises to the landlord either by the tenant's voluntary removal or his physical removal through the execution of a court-ordered eviction. Please see OLR Report 2004-0459 for a detailed summary of Connecticut's eviction process.
The only difference between the state law and federal law appears to be the minimum length of time a court may stay (delay) the execution of the eviction judgment. Under Connecticut law, judgments of eviction are automatically stayed for five days. The tenant must file any appeal within this period (CGS § 47a-35). The court may grant an additional stay of up to six months if the tenant applies for it and proves, at a hearing, that he cannot find other suitable premises in the same town or an adjacent town (CGS §§ 47a-38 and –39).
Under the Servicemembers Civil Relief Act, the court must stay an eviction judgment for up to an additional three months upon the tenant's request if the ground for eviction is nonpayment of rent and the tenant claims that his military service materially affects his ability to pay rent. The court can also reduce the rent to an amount mutually beneficial to both parties.
Connecticut housing courts have not handled many evictions where the tenants are service members, according to Suzanne Colasanto, Chief Housing Clerk. In the few cases she is aware of, the cases settle when other family members are residing in the dwelling unit. When there are no other family members involved, the court orders an attorney appointed to represent the tenant's interests. The attorney tries, usuallly with little success, to contact the tenant. If the tenant is not reached, a default judgment is entered against him.
STATE MARSHALS PERSONAL LIABILITY
In Connecticut, state marshals are responsible for serving notice of execution after an eviction judgment is entered. After the court issues the execution, it must be given to a marshal for proper service. The marshal serves the execution on the tenant, using reasonable efforts to locate and notify him of the eviction date and time (CGS § 47a-26d).
Whether state marshals are personally liable for negligent acts committed while executing an eviction judgment is unclear. There is no case law as to whether state marshals are state employees and thus subject to protection under CGS § 4-165. This statute provides immunity and indemnification for state officers and employees against most damages or injury caused in the discharge or their duties or within the scope of their employment. This protection does not apply if the officer's or employee's conduct was wanton, reckless, or malicious.
State marshals who are sued in their personal capacity should, however, be covered by liability insurance. The law requires state marshals to carry personal liability insurance for damages caused by their tortuous conduct. This applies to negligent acts, errors, or omissions that the state marshal becomes legally obligated for damages for false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation, violation of property rights. The law also covers assault and battery committed while the marshal makes or attempts to make an arrest against a person under arrest. The conduct must occur during the performance of the state marshal's official duties (CGS § 6-30a).
The insurance must cover at least $100,000 for damage to one person or his property and $300,000 for damage to more than one person or more than one person's property. Please see OLR Report 2003-0850 for a detailed discussion of state marshals' liability.