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. My tenants have 7 months left on their lease. Now, the female tenant wants to leave, claiming domestic abuse. The male tenant also wants to leave though he might be able to afford the unit on his own. I checked the unit and there are a couple dents in the walls and the unit is dirty. Do I have to let them both out of the lease and who do I make the security deposit out to?

A. If one of your tenants, or an immediate family member living with of one of your tenants, is a victim of domestic abuse, they have certain rights. Per the Landlord-Tenant Code, Section 521-80, the tenant can terminate a rental agreement with a term of one year or less without penalty or fees.

The most recent act of domestic violence must have occurred within 90 days prior to the notification and the tenant must give notice at least 14 days prior to the desired move out date. So, the move out date cannot be more than 104 days after the most recent abuse occurred. The tenant must provide either (1) a copy of a valid order of protection issued by a court of any state, (2) a copy of a police report filed in any state related to the domestic violence or (3) a copy of the domestic violence conviction of the perpetrator. If the person who committed the domestic violence does not live in the same unit, the tenant must also provide a written statement to the landlord stating that she believes the perpetrator knows the address of the victim. The Landlord is prohibited from disclosing any of this information provided to him unless the tenant agrees in writing, the information is required by law or the information is needed in a judicial action.

If the victim is the sole tenant on the lease, the lease is terminated on the early termination date and the tenant is only liable for rent for those days that she remains in the unit and is not liable for any other future rent. Any outstanding amounts due to the landlord need to be paid prior to the early termination date. The victim may also opt to stay in the unit and require that the landlord change the locks at the tenant’s expense. The landlord has 3 days from receipt of the written request to do so. If it is not done within 3 days, the tenant can change the locks herself and provide a key to the landlord. If the person who committed the domestic violence also lives in the unit, there must be a court order requiring that person to vacate the unit before you can change the locks. If the court orders the person who committed the domestic violence to vacate the unit, the landlord or victim has no duty to allow that person access to the unit without a police officer present nor do they have to provide that person any keys to the unit. His tenancy has been terminated.

If there are other people living in the same unit, the landlord has other options. The landlord should determine if the remaining tenants are able to pay the rent. If those people do not pass your criteria, you can send a termination notice that is at least 14 days prior to the early termination date. You cannot charge any penalties or fees for early termination. If the offender lives in the same unit, the landlord can either allow him to stay, if he passes their criteria, or send him a 5 day notice of termination. The landlord can go to court to recover actual damages from the person who committed the domestic violence against the victim. The offender cannot go after the landlord for damages provided the landlord complies with this law in good faith. Since your other tenant wants to also vacate the unit even though he can afford to stay, it is up to you what you want to do. But, if you think this tenant is violent and may cause more damage to your unit or could be a danger to you, it’s prudent to let him out of his lease.

Usually the landlord does not need to return the security deposit until all the tenants have vacated the unit. With an early termination, the court may determine the percentage to be returned to the parties. If there is no such determination, the landlord is permitted to return the deposit in equal shares to each departing tenant on the rental agreement, after allowable deductions including any outstanding rents, cleaning or any damage caused. If you allow any of the other tenants to remain in the unit, they need to pay an additional amount to replenish the security deposit.

If the tenant knowingly submits a false report in an attempt to be released from the lease, the landlord can recover an amount equal to three months periodic rent or three times actual damage, whichever is greater, plus court costs and reasonable attorney fees. If you have any questions, contact your attorney.