Q. My tenant told me that he will be moving out by the middle of next month. He is on a month-to-month contract and said that he will use his right to pay the last partial rent due out of his security deposit. Is that his right? What about if there are cleaning or damages that need to be handled? What should I do?
A. Contrary to your tenant’s understanding of the law, he doesn’t have the right to pay his last month’s rent – partial or not – out of his security deposit. The law actually reads “the security deposit shall not be construed as payment of the last month’s rent by the tenant, unless mutually agreed upon, in writing, by the landlord and tenant if the tenant gives
45 days’ notice of vacating the premises; in entering such agreement, the landlord shall not be deemed to have waived the right to pursue legal remedies against the tenant for any damages the tenant causes. (Haw. Rev. Stat. 521-44 (3)(b).
Since he is on a month-to-month contract his obligation is to give you a 28 days’ notice. So let’s say that he gives you notice on the 14th day of a month with 31 days – he would owe you 10 days rent for the following month.
He would then have to pay you his prorated rent by the first of the month (assuming his rent is due on the first). Pro-rated rent is based on a 30 day calculation so he will take his full month’s rent, divide by 30 and then multiply by the number of days he has left. So for example: $1,500 divided by 30 = $50 x 10 days = $500. By requiring that the tenant pay their pro-rated rent it will make the full security deposit available to the landlord to cover specific items left deficient by the tenant.
In this last Legislative session a bill was introduced to address additional items that could be charged to a tenant’s security. Security deposits, as defined in the residential landlord-tenant code under Chapter 521 of the Hawaii Revised Statues can only be used for accidental or intentional damages, cleaning the unit, or compensating for damages caused by a tenant who wrongfully quits the unit.
It was suggested to the legislature that landlords who rent their property to tenants who then take on obligations, such as sewer, water and electricity expenses, could substantially affect the property and the owner if the bills are not paid in full by the tenant when they vacate the unit.
After signifi-cant amounts of testimony and information being provided to the legislature (much of which was supplied by the Hawaii Association of Realtors and the NARPM Legislative Committee), SB 14 SD1 HD2 was enacted to amend the landlord-tenant code to additionally allow the security deposit to be used for specific unpaid charges when a tenant moves out, including: replacing keys, key fobs, parking cards, garage door openers, and mail box keys, as well as paying for utility service provided by the landlord under the rental agreement but not included in the rent. “Utility service” means service for electricity, water, sewer, and natural gas. This new law will go into effect on November 1, 2015.