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

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

Q. My tenant is in the military and is currently deployed. She will not be back until this October. We are on a month-to-month arrangement, and she has no family member or friend staying with her in the unit. I am in a situation that I need to put the unit on the market for sale as soon as possible.

If I close the transaction before October, then I have a problem. What if the buyer is not willing to take her as the new tenant? How am I going to enforce the move out during her absence? What kind of authorization would I need?

A. This is a tough situation and involves more than one law. You are entitled to place your unit on the market for sale. However, under the Servicemembers Civil Relief Act (SCRA) it appears to me that you are not entitled to “evict” your tenant unless you obtain a court order. In Section 301 – Evictions & Distress it states in part: (i) IN GENERALExcept by court order, a landlord (or another person with paramount title) may not–(A) evict a servicemember, or the dependents of a servicemember, during a period of military service of the servicemember, from premises–(i) that are occupied or intended to be occupied primarily as a residence; and (ii) for which the monthly rent does not exceed $2,400; (the current monthly rent amount has been increased to $2,615.16.) The SCRA does not define eviction but I have read the American Bar Association’s interpretation of the word as it pertains to this law and it defined eviction as “dispossession of a tenant by a landlord.” Although the Hawaii Landlord-Tenant Code allows 45 days notice for termination of a month-to-month lease, the Servicemembers Civil Relief Act would supersede that State statute.

The next issue you face is access to show the unit to a prospective buyer. Hawaii Revised Statues Chapter 521 (Landlord Tenant Code) addresses this situation in two sections. The first: HRS-521-70 (b) The landlord may, during any extended absence of the tenant, enter the dwelling unit as reasonably necessary for purposes of inspection, maintenance, and safe-keeping or for the purposes permitted by section 521-53(a). This section pertaining to prolonged absences does not address placing the property for sale; however, it does refer us to Section 521-53 (a) which states: The tenant shall not unreasonably withhold the tenant’s consent to the landlord to enter into the dwelling unit in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply services as agreed; or exhibit the dwelling unit to prospective purchasers, mortgagees, or tenants. This section provides for entering the unit to show to a perspective buyer.

Practically speaking, if I were in a situation in which it wasn’t possible to wait to list the property (my first choice), I would do everything it takes to get in touch with the tenant. In my experience, email addresses I had prior to deployment continue to work and many times members got cell phone messages within a week or so of leaving them. Check on your application for family/friend references. I would explain your situation and try to get a fixed lease signed through the period of deployment for the tenant’s protection (and yours.) I would include in the lease that the tenant is aware the unit will be listed for sale and state that it will be shown to prospective buyers. I would require my listing agent (or authorized representative) to be present during all showings. This may limit your initial pool of interested buyers for the first few months but you will be certain not to have contributed to illegally displacing a deployed servicemember.

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