AND LEASES

-P.L.A.*

LIEUTENANT

LARRY D. SCHLUE,

JAGC, USNR**

for the military member stationed far away from his family. The initial step occurs when the member walks into the legal office seeking a power of attorney for his wife or parent, usually after having been advised by friends that this instrument is extremely necessary and may even negate the need for a will and subsequent probate of an estate. It would seem that everyone ordered overseas considers it mandatory to leave his wife in possession of an executed power of attorney.

A power of attorney may be general, special, or a combination of both. Its primary purpose is not to define the authority of the agent as between himself and his principal but to serve as evidence of the authority of the agent to third persons with whom the agent will be dealing. Although, generally, no special form is required, it should be executed with sufficient formality.

to assure genuineness and validity. A power of attorney for certain purposes, such as the sale of real property, must be recorded in most states; so, if the conveyancing of real estate is contemplated, the power should be recorded.

A general power of attorney is the type most frequently asked for and executed. It is especially important in this case to understand the scope of the powers the serviceman is conferring upon the person he is appointing as his attorney and the possible consequences that can and often do result from such a broad endowment of authority. An examination of the usual form used for a general power of attorney illustrates the enormous freedom conferred upon the appointed attorney. Among the powers conferred will be the ability to purchase or sell real or personal property, collect or incur debts, deposit money or cash checks, as well as the authorization to perform all necessary acts in the execution of these powers. In other words, in the usual situation, the wife of the absent husband will virtually be empowered to do anything she pleases short of a violation of the law or of public policy. The member seeking the power of attorney should be aware of the potential for misuse of the power. Often the problem is not that the wife capriciously or maliciously misuses the power, but frequently the wife is young, naive, inexperienced and simply not prepared to manage her own or the financial affairs of a family. It is therefore necessary, before appointing her an attorney with general power, to resolve two questions: First, is the marriage stable enough to withstand the pressures of a prolonged separation, thus presenting no significant risk of misuse? Second, is the wife mature and sensible enough to completely manage the financial affairs with little risk of possible disaster or bankruptcy? If the answer to both is an unqualified "yes," then there is probably less danger in executing the general power; but there are those examples of young men with complete trust in their wives who have discovered that their confidence was misplaced and who now, 10,000 miles from the States, are faced with a crescendo of demanding creditors.

Upon careful analysis, it becomes obvious that the situations are so rare when a general power is required that the risks usually far outweigh the benefits. A husband and wife will normally have a joint bank account, and the wife will usually receive a monthly allotment check, made payable to her so that with a little planning her

necessities will be provided. It is, of course, when an unusual situation arises that a power of attorney is necessary, such as when she desires to sell the automobile whose title is in her husband's name, sell or purchase a house, or purchase a commodity expensive enough to require commercial financing. In each case, the problem can be handled by means other than a general power. A special power of attorney can be used which limits the power of the wife to the accomplishment of a specified act or conveyance. If it is obvious before the husband leaves the area that action will be required such as the sale of a house, it is a simple matter to procure a special power of attorney for that purpose. If the need arises after the member is away from home, a special power of attorney can usually be procured either onboard ship or at a legal office found at most overseas stations. In this manner, the wife is enabled to perform actions which might be required but is not entrusted with or burdened by unlimited authority.

Once a general power of attorney has been executed and the discovery of misuse has been made, the serviceman will be confronted with the problem of revocation.

Except in certain unique situations, a power of attorney may be revoked at any time by the maker and without particular formality, except in the case where the power must be recorded, in which case the revocation must also be recorded. The problem arises when third persons deal with the agent in a bona fide transaction with no knowledge of the revocation. Generally, third persons who deal with the agent in reliance upon his authority are protected unless and until they have received notice of the revocation. Perhaps, then, the safest way to proceed is to execute a revocation, sending a copy to the agent, recording a copy in the county where the agent resides (if possible), sending copies to any known creditors or stores where the agent normally has dealings, and publishing a notice of the revocation in a newspaper of general circulation in the county of residence of the agent. Some states have held that actual notice must be given to former creditors while notice by publication is sufficient as to others.

It is obvious that it is not only difficult but may require some expense to revoke a power of attorney-not to mention the debts already incurred before the power is revoked. The apparent answer is that the client as well as the legal assistance officer should be fully aware of

the potential consequences of a general power of attorney and alternative solutions should be considered.

A second problem frequently encountered by military personnel concerns the leasing of quarters for themselves and their families upon arrival at a new duty station. Often little consideration is given to future contingencies and an apartment or house is rented with no attention to the consequences of such action. Many servicemen are under the impression that their status as a member of the military will protect them from all liabilities. They are especially prone to claim that they are immune from liability under the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, which they are positive allows them to break a lease whenever they receive orders to a new duty station. This, of course, is not the case, as the Soldiers' and Sailors' Civil Relief Act provides this type of relief only for those personnel being ordered onto active duty. The subsequent alarm, upon discovering that they are as liable as any other person who prematurely moves out of rented premises and consequently breaks his lease and subjects himself to potential liability for damages, is usually the motivating cause for their first visit to the legal officer of their station. Unfortunately, it is now too late to do anything but attempt to mitigate the damages.

Most of the statutes and the common law of our various states protect the property owner. Property in the United States has always held a particularly unique position as is evidenced when one considers that crimes against property are often much more severely punished than are crimes against the person. It is for this reason that the serviceman renting property must take certain steps to ensure that his interests are also protected by the contract between himself and his landlord. Commonly, apartment owners or real estate agencies will use standard form leases which merely require the filling in of names, addresses and dates and become binding when the parties to the agreement have affixed their signatures. Naturally, these form leases tend to protect the interests of the person proposing them and, although they may seem to give some attention to the interests of the lessee, probably will not contain many of the clauses which may be desirable in a tenant's particular situation. Once the lease is signed, it may be too late; because, in the absence of fraud or deception, one who has signed a lease is presumed to have known and understood its terms, and usu

ally it is no defense that he did not know the contents of the lease. The general rule is that any modifications to a lease must be in writing and any changes will not be presumed or implied; the person claiming such modifications has the burden of proving them by clear and convincing evidence. Obviously, it is therefore incumbent upon the lessee to make sure that any special clauses he might desire are included in writing within the body of the lease or attached as an addendum to the lease, signed by himself and the lessor.

Among the specific clauses that the lessee will have a special interest in including in his lease would be what is often termed a "military clause." As discussed above, the average military person does not receive blanket immunity from liability by virtue of the provisions of the Soldiers' and Sailors' Civil Relief Act, and he may find himself responsible for the payment of rent to two landlords, one at his new duty station and the other the landlord of the premises which he has vacated because of military orders from the area. A "military clause" will seldom, if ever, be included in a "standard" lease. Therefore, it becomes the responsibility of the military lessee to demand that such protection be included in the agreement. Normally, the clause will provide that upon the receipt of military transfer orders, a 30-day notice will be given the landlord. This notice period may be lengthened or shortened if the parties are agreeable and may result in some bargaining between the parties. The landlord may demand that before the notice period begins to run, he must be in receipt of a copy of the serviceman's orders, in which case, a shorter notice period would certainly be advantageous.

The military clause should also contain a provision for allowing a serviceman to escape his lease if he should be released from active duty. The above discussion of notice to the landlord would also apply in this situation. Along these same lines it would be wise to specifically state that retirement is included within the meaning of the phrase "released from active duty."

The landlord who is a member of the military establishment can also protect himself by the use of the above provisions. If the landlord owns a home or apartment in an area into which he has been ordered, he would certainly desire to occupy those quarters rather than being forced to rent from someone else. Consequently, in his case, a provision should be added allowing him, upon giving a specified period of notice to the

tenant, to regain use and enjoyment of his property upon being ordered back to the area where his property is located or upon release from active duty, this clause again including retirement.

An important provision of a lease, which may or may not be included in a standard lease, would provide that the landlord warrants that the tenant will receive premises which are tenantable and in good conditon. Generally, in the absence of fraud or concealment by the lessor of the condition of the property at the time of the lease, there is no implied warranty that the premises are tenantable and this is especially true when the lessee has inspected the premises or when the defects are obvious and could be easily ascertained. Consequently, if the lessee desires any repairs or improvements to be made to the premises, it is necessary that a clause requiring such action by the landlord be added to the lease. Otherwise, the lessor has no obligation to do anything to the premises or put them in any particular condition. It is important to remember, however, that if there is a stipulation in the lease that the premises are in good condition, the lessee is bound by this stipulation as to any defects, obvious or latent, which might have been discovered before signing the lease. A thorough inspection of the premises is therefore required before any lease is signed and the lessee should require that any defects be remedied or improvements made before he signs the lease, or that defects or improvements be included as specific subjects of a clause obligating the lessor to take necessary action.

An area where a great deal of disagreement often arises concerns repairs that may become necessary during the term of the lease. Many states have by statute or by custom determined that the tenant will be responsible for minor repairs and the landlord accountable for major repairs. Where the line is drawn between what is major and what is minor is not clear and some states go so far as to hold the tenant responsible for all necessary repairs. Therefore, it is advisable to reach an agreement and specifically spell out in the lease the respective areas of responsibility of the landlord and tenant. In the absence of such agreement, assuming the tenant has gone ahead and made necessary repairs, generally the landlord will not be required to reimburse the tenant for such expenditures.

Some states do not require a landlord to mitigate damages when the lease has been broken by the tenant. Therefore, a clause should be added to the lease which requires the landlord to rerent to a suitable tenant thus reducing the liability of the first tenant to the net loss to the landlord.

A problem which also must be anticipated by the tenant as well as the landlord is the possible total or partial destruction of the premises by fire, lightning or other causes. It is important to spell out in the lease the responsibilities of the parties should such an event occur. The agreement should state whether the rental liability of the tenant continues until the premises are restored or is abated until such restoration is completed. It may be desirable to phrase the clause such that the lease is cancelled without obligation to either party.

The question of who is to restore the premises should also be resolved by the lease. Usually this will be the responsibility of the landlord and he may wish to retain the option whether or not to restore or rebuild. If the rent is only suspended until the premises are restored, a clause requiring that such work be started and completed within a certain period of time should be inserted to protect the interests of the tenant. If the work is not initiated within the specified time, the lease is cancelled and the tenant is released from any future liability.

Generally, the tenant will be responsible for the repair or rebuilding if the premises are destroyed because of his negligence. Therefore, the tenant should make sure that he covers such a contingency by purchasing liability insurance covering both the cost of reconstruction and any rent due during this period. Usually the landlord will also have an insurance policy covering his property, and it may be possible for it to encompass even that situation where the damage is caused by the negligence of the tenant. In this latter instance a clause should be inserted in the lease whereby the landlord waives all claims against the tenant for loss resulting from the negligence of the tenant. It should be noted, however, that some insurance policies are invalidated by such a waiver and the burden is on the tenant to discover if such clause exists in the landlord's policy and, if it does, to pay any additional premiums which may be required to add a clause which allows waiver of subrogation rights. If this is not possible, the tenant will have to purchase his own policy in order to protect himself.

The foregoing discussion gives some idea of the complexities involved in renting real estate. It is clear, therefore, that the signing of a lease should be preceded by a visit to the legal assistance officer during which each and every clause of the lease in question can be examined and competent advice secured.

INTRODUCTION

INCE LONG BEFORE Nathan Hale's unfor

ST

gettable words, "I only regret that I have but one life to lose for my country," many men have unselfishly and heroically given their lives in the service of their country. With only one life to so give, however, the loss to the deceased's loved ones is immeasurable. Moreover, this tragic experience is greatly compounded where families with two or more sons lose all but one in the military service. In such situations, humane or sympathetic considerations have prompted the question whether such families should be compelled to send off that last surviving son also to face the hazards of the service.

*Colonel Culver is currently Head, Civilian Employee Affairs Branch, Administrative Law Division, Office of the Judge Advocate General, with additional duties as Administrative Law Attorney in the Military Law Branch of that Division. He received his pre-law undergraduate education at the University of Houston and Southwestern Louisiana Institute, and received his Bachelor of Laws Degree in 1949 from the South Texas College of Law. Colonel Culver is a member of the Bar of the State of Texas and is admitted to practice before the U.S. Court of Military Appeals.

Undoubtedly, compassion for the bereaved parent who has already suffered the loss of all but one son in the Armed Forces provided the impetus for the adoption of the benign policy relating to sole surviving sons which exists. today.

HISTORICAL BACKGROUND

The United States Army originated the "sole surviving son" policy which was subsequently adopted by the other services.1 In this regard, the earliest mention of this policy is found in a War Department memorandum 2 dated 23 October 1944, which reads in part:

A policy of returning the sole surviving son in cases where two or more have been lost has been approved, except where the surviving brother is engaged in nonhazardous duty or is not subjected to personal danger. All cases will be judged on their merits. Several men are now on their way back home from overseas as a result of the adoption of this policy.

The approval of the sole surviving son policy

1. H.R. Rep. No. 1881, 80th Cong., 2d Sess. 11 (1948).

2. Memo to the Executive Office, G-1 (WDGS) of 23 Oct 1944.