landlord/tenant Q&A

LAURENE H. YOUNG, (B) MPM, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers

Q. I have a tenant who asked if her son and his family can stay with her in her one bedroom apartment until they find a new home. It’s been one year and I can’t get them to leave. What can I do? Do I have a problem with overcrowding?

A. It’s the sign of the times. Rents have risen so that many people can’t afford to live on their own and are being forced to live with relatives or friends. The tenant’s son probably tried to find a rental but maybe couldn’t find anything within his price range. Also, competition for something they could afford might have made it difficult to get approved, especially if their credit is less than stellar.

The City of County of Honolulu Housing Code Section 27-4.3(b) states that “Every dwelling unit and congregate residence shall have at least one room for living purposes which shall have not less than 120 square feet of floor area. Other habitable rooms except kitchens shall have a floor area of not less than 70 square feet. Where more than two persons occupy a room used for sleeping purposes the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two.” The housing code is based on maximum allowances for health and safety reasons but, as you can see, you could still fit quite a few people in a unit.

While Hawaii public housing providers generally start with the two persons per bedroom guideline, to avoid a discrimination complaint on the basis of familial status, you should be very careful in using this standard in private housing. The size and number of bedrooms and overall size and configuration of the dwelling would be considered. A large bedroom may be able to accommodate more than 2 people and other rooms, such as a den or study, could be used as sleeping areas. The capacity of the septic, sewer or other building systems, the age of the children (if you denied renting a unit with one average sized sleeping area to 2 adults with 2 infants, you would be more likely to have a discrimination problem than if you denied that same rental to 2 adults with 2 teenagers), state and local laws and other relevant factors would also be considered.

Your occupancy policy should allow somewhere between two persons per bedroom and the maximum allowed under the housing code. In any discrimination suit, HUD will also consider any discriminatory statements or rules against families with children that discourage them from living in the unit. Using a little common sense and being reasonable and consistent will help to minimize your exposure to discrimination allegations. It is important to remember that there are no national, state or city occupancy standards and, in any discrimination complaint, the courts will decide if a violation of the Fair Housing Act occurred. If you have any questions you should contact an attorney.

At this point, you have a couple options, depending on if you are willing to let these extra tenants stay and where you are in the lease.

If you are still in the middle of a lease and want to add these tenants to the lease, you can just write an addendum adding them on. If there are any other addendums, a Lead-Based Paint Disclosure, an Inventory and Condition Report, or other forms that were signed by the mother when she moved in, I would also have the son and other adults sign those also. If you are at the end of the lease and want to add these tenants to the lease, you can also change any terms of the lease and increase the rent if you want to. After all, there is more wear and tear on the unit with the increase in the number of people. If you are paying for the utilities on the unit, you should have at least asked for an increase when the son and family first moved in, even if it was temporarily. Those 3 or more people are going to use a lot more water and you are justified in asking for them to pay that.

If you want the son and his family to leave, you might have some difficulty, especially since they were there with your permission and you didn’t say anything for a year. The judge may say that you have a verbal rental agreement with them to stay with their mom until they find a new home, and they haven’t found a new home yet. You may have to wait until the end of the lease or, if they are now on a month-to-month lease, give your tenant a 45-day notice to vacate.

Answers to questions in Landlord Tenant Q&A are provided by members of the Oahu Chapter of the National Association of Residential Property Managers (NARPM), an organization that supports the professional and ethical practices of rental home management through networking, education, and certification. The Oahu Chapter, founded in 2004, has become the largest in the nation with 237 registered members.

Disclaimer: The answers provided in this column by Realtors address individual cases and should not be construed as interpretations of the law. For specific information on Hawaii State Law, go to http://hawaii.gov/dcca/areas/ocp/landlord_tenant or contact an attorney.