Landlord Tenant Q&A

CATHERINE M. MATTHEWS (R), GRI
Broker-In Charge, Callahan Realty, Ltd.
Past President, Oahu Chapter
National Association of Residential Property Managers

Q. I have a tenant who is behind in his rent. I have tried to work with him but now need to cut my losses and get him out. What are the steps I need to take for an eviction?

A. One of the most important things we strive to achieve is to address a tenant’s delinquency within the same month. Hawaii state law limits the maximum amount of a security deposit to one month’s rent. After one month the owner is at risk of not collecting the rent. A typical lease specifies the date that rent is due. It should also include the date that a late fee will be assessed if the monthly rent is not paid on time, and interest on any unpaid balance. Keep in mind that the state usury law limits this amount to 12% a year or 1% per month.

Therefore as soon as a tenant is delinquent you should inform them that you have not received their rental payment. Written notice must be issued to the tenant indicating the delinquent amount due, which should include the outstanding balance, any late fees, and any interest. State law then requires that they be given 5 business days notice to pay the full amount due. After 5 days you may commence the legal process to regain possession of the property.

This may be done by going to the courthouse and filing the necessary paperwork yourself. But this will require you to be available for any court appearance, timely service to the tenants, timely court filings, and some knowledge of the law and legal process relating to landlord tenant issues.

We highly recommend that you obtain legal representation when doing an eviction. The following should be provided to the attorney: copy of the demand letter, copy of rental agreement, copy of any addenda, copy of tenant’s payment ledger, copy of rental applications, and all pertinent information you have in your files.

Once the attorney has received the above noted, a complaint for summary of possession will be filed with the court. Once the court approves the order, the attorney will contact a process server to serve the order on the tenant. The tenant will then be required to appear in court on the date that is stated on the order to answer the complaint.

If tenant fails to appear in court, the court will in most cases grant judgment for possession by default and grant the writ and summary of possession to be issued forthwith. Once that is received from the court, the process to legally take possession can commence. The process server will inform the tenant that they are required to vacate the property immediately or landlord and tenant can mutually agree on another date to vacate the property.

After the tenant has vacated the property, landlord can then make arrangements to change locks. If personal items are left behind, the process server will make a determination if there is anything left of value. If there are things of value left behind, landlord is required to store the items as required by law. If the items are not things of value, landlord may make arrangements to remove the items.

Once you get to the above stage, you have now legally gained possession of your property.

If the tenant appears in court and challenges the complaint, they must provide the judge with proof and evidence as to why they believe they do not owe the monies due. The judge will then rule based on the facts presented, and you should be available to confer with the attorney on any decisions that will need to be made at this point.

The estimated time frame for an eviction can span from a few weeks to a few months, depending on the nature of the case. It is important to remember to communicate with your tenants and your attorney should you need to pursue an eviction.

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.

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