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Landlord / Tenant Q&A: DARLENE HIGA (RA), MPM, RMP

Property Manager,
Property Profi les, Inc.
Past President, Oahu Chapter
National Association of Residential Property Managers

Q. I just found out that there is another person residing in my rental unit along with the tenant. Seems my tenant found a roommate and made his own agreement with that person on how much rent he is paying and didn’t tell me. What are my rights as a landlord? Should I sign a new lease with them both or tell the roommate to leave?

A. This unfortunately happens quite often thus it’s important for landlords to understand this part of the business. In sharing situations, you must first look towards the rental agreement and see what provisions are spelled out, if any, about sharing or subleasing, and the length of term of your agreement. The Hawaii Association of Realtors lease has a provision in Standard Terms, Section B (11), which states, “No Subleasing or Additional Tenants. No additional TENANTS, subleasing or assignment of this Rental Agreement will be allowed without the prior written consent of LANDLORD. Guests may not stay longer than fourteen (14) days without written approval of LANDLORD.” There may also be requirements spelled out in condominium house rules or building rules that may also apply so it would be prudent to read those documents prior to deciding on how to proceed. If you are using the HAR Rental Agreement, the tenant cannot arbitrarily add another tenant or sublease without prior written consent. If you are not using this Rental Agreement, you must check your lease to see if you have language restricting the tenant from doing this. If there is no provision in the rental agreement that requires the Landlord’s permission, then the Landlord’s permission is not necessary. If there is a provision and the tenant failed to obtain permission, the Landlord may notify the tenant that sharing is not allowed and require the tenant to correct the problem. The Landlord-should give the tenant written notice to remedy the breach within 10 days. If the breach continues or recurs after notice, the tenancy can be considered terminated and the Landlord can bring summary proceedings to regain possession of the dwelling unit.

Now let’s assume you are okay with the new roommate, what should you do? First you should require the roommate to fill out an application form and screen the tenant like any other tenant. If the tenant checks out and you are okay with him as a tenant, you then have to decide on how you are going to add himas a tenant. You could honor the sublease, but if you do that, you should realize that the subtenant answers to your tenant and not to you, thus having control over the subtenant would only be through your original tenant. This is not a good position to be in and I would suggest you don’t go that route. Another alternative is to separate the rental agreements and have each tenant under separate leases that specify the extent of their responsibility for one another.

I tend not to use this alternative but that is a choice you can make. The third alternative and the one I would recommend is to add him on to the current lease if your tenant is okay with modifying the existing lease. This would require that you either amend the existing lease under the same terms and conditions, or just draft a new lease with both your original tenant and the roommate as tenants. Be sure to have the roommate sign the same property condition form that the original tenant signed and make them both aware that by adding the roommate on, both are obligated to the Landlord and Landlord may recover all sums that are due from one tenant irrespective of fault. It is also advisable to sit down with the roommate and go through the lease terms so that he also understands what the provisions are and what is expected of him. You do not want to assume that your original tenant conveyed any of this to the roommate when he brought him into the unit.

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