LAURENE H. YOUNG, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers
Q. One of my tenants gave a 28-day notice to vacate a unit and I began showing the unit to prospective tenants. I found a tenant who signed a new lease. However, the previous tenant then decided the they are not vacating for another month. What recourse do I have and what obligation do I have to the new tenant?
A. In a perfect world, the old tenant moves out, has done an extremely good job cleaning the unit and there are no repairs needed, and the new tenant moves in an hour later. The tenants are happy, the owner is happy, and I am ecstatic. Unfortunately, it rarely happens.
Even if the current tenant has given you a firm check out date, delays are common. Allow yourself enough time between tenants or write as a condition in the new lease that the check in date may change by a few days, depending on when the old tenant vacates. It is a good idea to check on the status of the old tenant’s attempts to move to make sure they are actually moving. A tenant who decides to stay another month had probably not started packing. Do not sign a new lease unless you are sure the tenant has made major progress in his move. Owners may not want their unit to be vacant for even a few days, but leaving a week between tenants will help to prevent this sort of problem from occurring.
If the current tenant remains in the unit after the termination date without the landlord’s consent, they are considered a “holdover tenant.” As a holdover tenant, the tenant may be liable to the landlord for not more than twice the monthly rent under the previous agreement. However, in order to get twice the monthly rent or to evict the tenant, you must get a judgment in court. Of course this process will take time and you may lose the new tenant. If the landlord sues to evict the holdover tenant, they must do so during the first 60 days of the holdover. If they do not sue within the first 60 days, a month-to-month tenancy is then created.
Because you failed to have the unit ready for occupancy at the beginning of the agreed term, the new tenant may terminate the rental agreement at any time during the period that the tenant is unable to move in. They may recover reasonable damages from you by filing a lawsuit. They may also choose to secure alternative housing for a short time and deduct the difference between the cost of the alternate housing and the agreed rent. The landlord would be responsible for those payments to the tenant after receipts are presented. If the tenant decides to go to court against the landlord, the court may award the tenant substitute housing costs, reasonable court costs and attorney’s fees, so it is in the landlord’s best interest to try to resolve the situation before then.
We have found that most tenants are understanding and will not cause problems with a few days delay in the move in date. Of course not all tenants are that understanding, and most tenants would not agree to wait an additional month. Communication is the key. Talk with the new tenants and explain the situation. If they decide to look for something else, you will lose that tenant. Hopefully you can find an equally good tenant when the old tenant finally does move out. If they decide they still want the unit and you are looking at paying them damages, you may want to go ahead with attempting to evict the holdover tenant and/or recovering double rent in court. Next time, do not sign a new lease unless you know for sure that the current tenant is moving.