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Landlord / Tenant Q&A: CATHERINE M. MATTHEWS (R), GRI

Q. I rented a two bedroom unit with my friend. We are both on active duty military status based in Pearl Harbor. My roommate just got orders to move to Washington and the Landlord told him to send a copy of the orders with the exact date of his move out. I expected to move too because the rent is more than I can afford alone. The Landlord said that I am still responsible for the full rent until the lease is up. Is this right?

A. The standard rental agreement with the Hawaii Association of REALTORS® states: “K. TENANTS JOINTLY AND SEVERALLY RESPONSIBLE: BY SIGNING THIS RENTAL AGREEMENT EACH TENANT SHALL BE JOINTLY AND SEVERALLY (COLLECTIVELY AND INDIVIDUALLY) RESPONSIBLE FOR COMPLIANCE WITH ALL ITS TERMS AND CONDITIONS, INCLUDING THE PAYMENT OF RENT IN FULL. EACH TENANT IS RESPONSIBLE FOR THE OTHER OCCUPANTS AND GUESTS AND SHALL COMPLY WITH THE TERMS AND CONDITIONS OF THIS RENTAL AGREEMENT.”

This means that the landlord can choose to hold you, and only you, responsible for the rent and also damages not paid by your roommates. If your roommate leaves town after spilling a bottle of red wine on the carpet, the landlord can hold you responsible for replacement/damage cost of that carpet. If the roommate breaks a glass and it falls into the community pool and the association charges your unit for cleaning of the pool, that will fall to you should your roommate be gone or refuse to pay. You could pay and then try to collect or sue to collect from your roommate if you can locate him.

Being military members, you have rights to break a fixed lease that civilians do not have. This is guaranteed to you by the Service Members Civil Relief Act, a Federal Law. The Hawaii Association of Realtors lease mirrors that law. “If a Tenant receives military orders after execution of this rental agreement that requires (I) Tenant to deploy with a permanent station (PCS) from a location on an island within Hawaii to any location off-island or outside Hawaii, or (II) Tenants to deploy with a military unit or as an individual in support of a military operation for a period of not less than (90) ninety days, Tenant may end Tenant’s obligations under this Rental Agreement.”

To summarize the rest of the clause, the tenant must deliver IN WRITING, the orders to the Landlord and the tenant is responsible for the rent through the following month in which the notice, (along with a copy of the orders), was given. This right also extends to the service members family, but not a roommate.

I would suggest that you work with the Landlord to allow you to find a new roommate to take his place. This would be the simplest solution. As a Landlord I always allow a military roommate to be replaced, whether both are military or just one person. It is not my intent to cause someone financial hardship because they share expenses with a soldier that serves our country. Your Landlord would be within their right and their responsibility to be ensure a new roommate is fully qualified to rent and not just take someone because you want them. Knowing the person you choose as a roommate is qualified should also give you some piece of mind. There may be a fee to draw up a new lease to replace a roommate. This should be spelled out in your current lease terms.

The other issue you should address is the security deposit. The Rental Agreement views you and your roommate as one entity. Since the lease is still current and you are not moving from the property – the security deposit will remain with the landlord until you actually move out. At the time the security deposit is returned, it may be returned to both you and your former roommate, unless written instructions are given from the two of you to do otherwise. So you will want to be sure to handle that in case you and your roommate lose touch or at the end of your lease you may find yourself holding a check made jointly payable to you and someone you cannot locate.

This situation is not always easy, but knowing what you are getting into up front will help you plan for possible scenarios. Ask your Landlord questions and follow up with a friendly email to keep a written record of the discussion. As always, communication is the key!

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