CATHERINE M. MATTHEWS (R), GRI
Broker-In Charge, Callahan Realty, Ltd.
Past President, Oahu Chapter
National Association of Residential Property Managers
Q. For three years I’ve had a tenant in a two bedroom house on my property, a single man, who makes periodic trips to the Mainland. He’s often gone for as long as a week but has an employee who stops by to keep an eye on things and checks in with me…if rent is due while he’s away, the employee drops it off. Last week, he left without notice due to a family emergency. He didn’t contact me directly, but sent his brother to see me, a young man who recently moved here and was in between rentals. He has a job and has supplied me with social security number and bank information. He said his brother, the tenant, would probably be away for an indefinite period of time and wanted me to turn the house over to him for the interim. The young man had actually already moved in because his brother left him the key. I pointed out that there was documentation involved, so even though I allowed him to stay we still needed to make everything official. To complicate matters, he wants a friend to stay in the second bedroom to help him meet the rent obligation. So I have several questions…can a tenant with a standard lease in force simply designate another individual to take over the rental while he’s away…if I’m OK with the designated individual, what kind of documentation does he need to complete…then, if he has a friend also staying in the rental to help defray cost, does the friend share responsibility for payment of the rent? I have told the tenant’s brother that he is responsible for making the monthly payment and personally delivering it to me…I don’t want to deal with the other individual to collect rent but is it OK to include her on whatever documentation you recommend so I at least have a record of who is staying in the house.
A. This appears to be a somewhat complicated question, but my answer is rather simple. My answer also assumes you are using the Hawaii Association of Realtors Standard lease and my references to the lease reflect its terms and conditions.
You have a lease in place with the current tenant and under the lease (whether it is fixed or month to month) he is not allowed to sublet (allow someone else to take over) without your prior permission, so he is in breach of his lease. I suggest you require that the new occupants complete an application and go through the standard application process that you require of every tenant even though it is after the fact. I would then suggest that you require that the lease be re-written and have all parties over 18 years of age on the lease so that each of the 3 parties involved is 100% responsible for the rent and any damages. If there are multiple adults on a lease, each is responsible for 100% of the rent (not 1/3 each) and 100% of damages regardless who caused them. In other words, if one tenant does not pay his share, you can go after the remaining tenants for the balance of the rent. If the friend is not on the lease as a tenant, he/she is not subject to the requirements of the lease, so would not be responsible to you for any rent or damages.
If you allow the brother’s friend to move in but do not want him/her as a stated tenant on the lease for some reason, I would suggest that under special terms you indicate that they are allowed to occupy the premises, otherwise they will be in breach of Section 4 of the lease stating that no guest shall stay more than 14 days.
All of this being said, nothing is more important than confirming with your current tenant that he has given his brother and friend permission to be there. At that time you can discuss the terms you will require of him to bring him into compliance with his lease, including rewriting the lease to add the additional individuals.