A written Hawaii residential lease agreement is required for any lease that is for more than one year, otherwise it will be considered to be month-to-month. While an oral agreement for shorter lease terms may be convenient, you will find it difficult for a court to rule in your favor should disputes arise over which party has certain obligations or if you and your tenant mutually agreed to certain terms.
Hawaii landlords have certain implied obligations. For instance, you must provide a fit and habitable residence that includes basic services and utilities. You must obey all laws regarding discrimination in housing in which you may not deny leasing a unit to a rental applicant based on the person’s race, color, gender, sexual orientation, familial status or disability. Landlords may reject applicants who have poor credit, a history of prior evictions, no references, insufficient income or a criminal record.
Further, you may not self-evict a tenant without a proper court order or retaliate against a tenant who may have sued you, complained to authorities about the condition of the premises, about your failure to maintain the premises or do necessary repairs or for participating in a tenants’ union.
As a landlord, you are obligated to your tenants regarding the following:
- Provide and maintain safe and habitable living conditions including repairing major appliances and supplying essential facilities such as electricity, heating, air,running and hot water, proper ventilation, plumbing and sanitary systems
- Maintain common areas free of trash and in a safe condition
- Comply with building and housing codes protecting the safety and health of the tenants including locks on doorways and windows
- Provide trash receptacles and a method of removal
- Respect the privacy of the tenant and right to quiet enjoyment of the leased premises
- Provide a copy of the signed lease
Tenants have certain responsibilities as well:
- Comply with housing and building codes regarding safety and sanitary conditions
- Refrain from damaging or abusing the premises
- Advise if the tenant is to be absent from the unit for a certain time
- Allow the landlord entry upon 48-hours’ notice and at reasonable times to show the unit or to make repairs
- Pay rent on time
- Obey the law and not engage in illegal activities
- Notify the landlord of needed repairs
Contents of the Lease
Your rental lease agreement needs to have basic terms along with optional ones that address common landlord/tenant situations. Consider including the following terms in your lease agreement:
- Name of property owner and property manager; address where rent is to be paid; emergency or maintenance contact information; address and name of person to whom legal documents and notices are to be served
- Names of all the tenants and any other occupants—have all adult tenants sign the lease so that they are jointly and severally liable for the lease terms, including the rent
- Address of the premises
- Beginning and end dates—or if the tenancy is weekly or monthly
- Right of tenant to terminate the lease if the tenant cannot move in or begin possession on the first day of the lease or if basic services are not provided within the first week of the tenancy
- Amount of rent and date it is due—issue a receipt for each rental payment; state a grace period and amount of late fees—you may ask for prepaid rent to use if the tenant vacates with rent still outstanding
- Insufficient check fees—no statutory amount but should be no more than what you are charged by the bank
- Security deposit:
- no more than one month
- no interest required or that funds be in a separate or escrow account
- submit a written inventory to tenant detailing condition of the furnishings and premises with signed copies to each party
- state that that the funds are to be used for damages that exceed normal wear and tear and for any outstanding rent due upon surrender of possession
- that funds will be returned within 14-days of tenant vacating unit and sent to a forwarding address or submit a written, itemized statement with specific reasons for withholding deposit by mail with return receipt requested within this time
- recommend that you set a time and date for a mutual inspection a short time after the tenant vacates with check-out list on hand
- Landlord’s obligations as noted above—may provide house or conduct rules that apply to all tenants and are for the convenience, safety and welfare of all tenants, provides for the fair distribution of services and facilities to all and preserves the landlord’s property from damage
- Tenant’s obligations as noted above—you may require the tenant to perform specific minor repairs or maintenance if it does not diminish the obligations of the landlord to provide a fit and habitable residence and the arrangement is made in good faith
- Party responsible for certain utilities
- Major appliances being provided
- No commercial, business or illegal use of premises by tenant or conduct that constitutes a nuisance or is unlawful
- Landlord’s right to receive attorney’s fee and court costs for any court action against the tenant
- Pet clause—may limit type of pet, weight and require tenant to clean up pet waste in common areas; may charge a deposit except for service dogs but deposit and any other deposits combined may not exceed one month’s rent
- Subletting clause—whether you allow it and if you have to consent to whomever is the sublessee
- Your right of entry to make repairs, inspect and show to future tenants or purchasers—48 hours’ notice and entry at reasonable hours; indicate that you may enter immediately if it is an emergency
- Notify landlord if absence from unit is to be 7 days or longer—if 20 days without notice, the unit is considered abandoned unless the rent has been paid for this period
- 5 -day notice required for nonpayment of rent and 10-days for other material violations but you may begin immediate eviction proceedings without notice if the tenant has engaged in activity that may lead to irremediable damage to the unit
- Notice for increasing rent—45-days in advance of the rent due date in a monthly lease (may not be for a discriminatory or retaliatory purpose)
- Provide disclosure of the presence of lead-based paint on the property for all rental property built before 1978—provide the tenant with an EPA pamphlet entitled “Protect Your Family from Lead in Your Home.”
Prohibited Lease Terms
There are certain terms and provisions that you may not include in your rental lease agreement:
- waiver of liability or limits to landlord’s liability
- agreement to confession of judgment on behalf of tenant
- recovery of attorney’s fees and costs beyond that authorized by statute
- allowing entry by landlord without notice
- unfair or uneven enforcement of tenants’ rules
- requiring more than one months’ rent for any deposit and combination thereof
- Allowing retention of security deposit beyond 14-days for no reason
You may charge no more than one month’s rent as a security deposit, but if you want to charge a deposit for keys or a pet, the combined deposits may not exceed one month’s rent.
When accepting the deposit, you must provide to the tenant a written inventory of the furnishings and condition of the unit for review and signature. A copy is to be given to the tenant. The deposit need not be placed in an interest-bearing account. When the tenant vacates, you should schedule a mutual inspection of the premises to review the damages, if any. Security deposits are used for damage that exceeds ordinary wear and tear but you cannot use it for rent that remains outstanding once the tenant vacates unless you indicate it in the lease.
Within 14-days of the tenant vacating the premises, you must return the deposit or submit an itemized damages statement and cost of repairs.
Termination of the Lease
Fixed term leases simply expire on the last day of the agreement. You cannot terminate these leases unless it is for nonpayment of rent or some other material lease violation. If you want the tenants to remain in the unit, it is recommended you ask the tenants in advance of their intentions.
To terminate a monthly lease without cause, you must serve a notice 45-days in advance. The notice is increased to 120-days if the unit is being converted to a condominium or transient vacation rental. A tenant may terminate the monthly lease 28-days before the end of the rental period. For weekly tenancies, the notice is 10-days for either party.
For nonpayment of rent, give a 5-days’ notice to vacate or else pay the total rent owed. For other lease violations, you serve a 10-day notice to vacate or else remedy the violation within this time. You have the option of remedying the problem yourself after the 10-days has expired and billing the tenant.
If you wish to evict the tenant, you must begin the court action within 30-days. If the tenant violated a state or county law regarding health or safety, or there was extensive damage to the unit caused by the tenant or someone under the tenant’s control, or a house rule is broken that threatens the safety of another tenant or threatens to cause injury, then no notice is required and you may begin eviction proceedings immediately
If you take steps to unilaterally evict the tenant without a valid court order, or even if you lockout the tenant for one night, the tenant is entitled to terminate the lease without further obligations to you or recover possession. In any case, the tenant may sue you for 2-month’s rent, or choose to live rent-free for 2-months and recover the cost of the court action.
Under the Servicemembers Relief Act, a tenant who is a member of the Armed Forces including any of the uniformed services may terminate a fixed term lease if the tenant receives deployment orders to move more than 35 miles from the premises for more than 90 days or must live in a barracks or other residence supplied by the government. The tenant must provide a copy of the orders or at least a written statement from the commanding officer. The tenant must give 30-days’ and has no further obligations under the lease so long as the rent owed for the final rental term is paid.
Hawaii has no provisions regarding tenants who are victims of domestic violence and their right to terminate a lease early without incurring penalties.
Withhold and Repair/Deduct and Repair
For conditions that render the unit unfit such as the lack of heat or ventilation or because an essential appliance or system like the plumbing no longer functions, the tenant may give you a 3-day notice to repair. If the repairs are not done, you should notify the tenant and advise why they are not done and that you will do them by a tentative date.
For more serious violations that affect the tenant’s health and safety, you should do the repairs immediately. If you do not, the tenant can ask the Department of Health to conduct an inspection. If verified and upon your being notified of the violation, you must perform the repairs within 5 days or state a reason why you cannot and give a tentative date by which they will be done.
If you still do not do the repairs by the date stated, the tenant may elect to do the repairs or hire a professional to do them. Up to $500 may be deducted from the rent for the cost of repairs. If the tenant provides two estimates by qualified professionals within the 5 days, you may have a substitute do the repairs or, if you do not, the tenant may choose the one with the lowest estimate and deduct either $500 or one month’s rent, whichever is higher.
For less serious repairs or conditions, the tenant can notify you that you have 12-days to make the repairs or you may give a reason why they cannot be done in that time but schedule a completion date. If still not done, the tenant has the option of hiring a professional and deducting the higher of $500 or one month’s rent.
If you have any questions about your Hawaii residential lease agreement or concerns about your rights and responsibilities, contact an experienced Hawaii landlord/tenant lawyer.