By Jill Raznov Wedgwood
Landlord-Tenant (L-T) law in Hawaii includes both residential and commercial leases. The focus here will be residential leases of dwelling units in the State, which are governed by the Hawaii Residential Landlord-Tenant Code, Hawaii Revised Statutes (HRS), Chapter 521 (L-T Code). A residential lease is a contract by an owner or possessor of real property for another’s use and occupancy in exchange for rent or some other consideration (such as services). In Hawaii, both oral and written leases are recognized. However, verbal leases are construed as being month-to-month only and shall not be for a period longer than one year. HRS §521-22 and §666-4. Verbal leases also tend to be more susceptible to ambiguity, which may hasten a dispute or hinder its resolution. Residential agreements are usually between strangers, Landlords and Tenants who meet perhaps once in an interview and then contract for an extended term, which necessarily entails a type of working relationship where Landlords entrust valuable real property to another, and Tenants expect quiet enjoyment and security of safe and fit habitation. Having a basic understanding of residential leases and the obligations, rights, and remedies provided in the L-T Code for both Landlords and Tenants will foster more successful agreements and assist in resolving or preventing disputes.
When contemplating renting a residence, it is helpful to first answer some basic questions. Landlords might consider general background checks of potential renters to ascertain rental history, income requirements (to afford the rent), and other relevant criteria, using a standard application, following up with references and holding interviews. Keep in mind that Hawaii law prohibits housing discrimination based on: race, color, national origin, religion, familial/family status (make up of the family, including size, number of children, and pregnant women), disability/handicap, sex/gender, age, gender identity or expression, sexual orientation or preference, marital status, and HIV infection. Discrimination includes refusing to rent entirely or requiring different or special conditions or terms. In addition, people with disabilities are specially protected in requesting reasonable modifications or accommodations. Tenants might consider their ability to pay the rental amount, size and location of unit, proximity to school or work, and any particular terms which could pose a foreseeable problem. Always review a written lease, including any attached rules or exhibits, carefully and fully, clarifying ambiguous or incorrect terms or provisions. A standard lease form is available at the Hawaii Association of Realtors website: http://www1.honolulu.gov/forms_all/harresidentialrentalagreement.pdf, which may be amended to fit a particular situation. Remember that, in Hawaii, “a tenant or landlord may not waive or agree to forego rights or remedies” under the L-T Code. HRS §521-31.
Understanding the following issues may prevent some common disputes: (I) Security Deposits. A Landlord may require, as a lease condition, a security deposit (to remedy any Tenant damages), which may not exceed one month’s rent, including for keys, pets, or anything else, but may not collect any additional amounts other than first month’s rent. HRS §521-44(a) and (b). No later than 14 days after the lease termination, a Landlord must return the Tenant’s deposit, or notify the Tenant in writing if any portion is to be retained, including: grounds for the retention, itemized costs, and copies of receipts or estimates. In case of dispute, either party may bring an action in small claims court. HRS §521-44(g). The L-T Code requires Landlords to inventory the unit’s condition in detail, prior to occupancy, and provide a copy to each Tenant, which shall be signed by all parties. If a Landlord fails to do this, the unit’s condition will be presumed to be the same at the time of termination as at the start of occupancy, unless rebutted. HRS §521-42. (II) Self Help. A Landlord is prohibited from increasing rent or evicting a Tenant in retaliation for a good faith complaint to a governmental agency concerned with L-T disputes or a condition of the unit that violates the L-T Code. HRS §521-74. A Landlord is prohibited from constructive eviction (willfully turning off, interrupting or diminishing essential services). HRS §521-74.5. A Landlord may not remove or exclude the Tenant from the unit (changing the locks) without cause or a court order. HRS §521-63. A Landlord may access the unit, at reasonable hours, with at least two days notice; and the Tenant may not unreasonably deny access. HRS §521-53; and (III) Termination and Summary Possession. A Landlord must strictly adhere to the L-T Code and HRS, Chapter 666 to terminate a lease and recover possession, if necessary or desirable. A 45-day written notice is required to terminate a month-to-month lease. HRS §521-71. For failure to pay rent, the Landlord must make written demand for payment, no less than five business days from the Tenant’s receipt of same, before he may terminate the lease. HRS §521-68. If a Tenant is in material non-compliance with his duty to maintain the unit (HRS §521-51), a Landlord must send written notice to cure or remedy the default, with no less than 10 days from receipt of same to do so, before he may terminate the lease. HRS §521-69. If the Tenant fails to vacate the unit, upon a legal lease termination, the Landlord can only recover possession (evict) in a summary possession action in District Court.
This list does not exhaust all issues that may, and often do, arise in the residential L-T context. Thus, where there may be financial and other consequences, including, in some cases, damage awards authorized in the L-T Code, current and prospective Landlords and Tenants would be wise to review the L-T Code, as well as other informative resources. The full text of the residential L-T Code may be accessed on the Hawaii State Legislature website at: http://www.capitol.hawaii.gov and at Hawaii public and law libraries. The entire text of the L-T Code is also available on the Department of Commerce and Consumer Affairs (DCCA) website at http://cca.hawaii.gov/ocp/landlord_tenant/, which also includes links to: the Hawaii Residential L-T Hotline (974-4000, ext. 62634-toll free), the Residential L-T Handbook, and a frequently-asked questions section. The L-T Handbook is also available by written request (for $2.00, payable to DCCA) to: DCCA Cashier’s Office, P.O. Box 541, Honolulu, 96809. Landlords and Tenants may also seek assistance with Volunteer Legal Services of Hawai‘i (800-839-5200) and the Legal Aid Society of Hawai‘i (800-499-4302), which also maintains a fair housing web page at: http://www.legalaidhawaii.org/fair_housing_law.htm. The Legal Aid Society also offers an affordable lawyers program and several exceptions in L-T cases to its normal income and asset eligibility limits.
You might also attempt to settle a dispute, without going to court, at the Ku‘ikahi Mediation Center, 101 Aupuni Street, Ste. 1014B2, Hilo, (808) 935-7844, www.hawaiimediation.org or at the West Hawai‘i Mediation Center, P.O. Box 7020, Kamuela, 96743, (808) 885-5525, www.whmediation.org. Good luck and tread carefully.
Jill D. Raznov, Esq. is a 2003 graduate of the University of Hawaii’s William S. Richardson School of Law and has practiced in the areas of family, commercial, landlord-tenant and real property. She is Of-Counsel with the Law Offices of Yeh & Moore, Hilo, Hawaii, (808) 961-0055, email@example.com.