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Landlord / Tenant Q&A: LAURENE H. YOUNG, (B) MPM, RMP, REALTOR

LAURENE H. YOUNG, (B) MPM, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers

Q. I just received a notice that I have to vacate the unit I have lived in for 5 years. I asked the landlord for an explanation, but they refuse to give me one. How can I fight this? Can I claim discrimination since they did not evict everyone in the building or is this a retaliatory eviction since I asked them to make some repairs?

A. There could be many reasons why the landlord wants you to vacate the unit. And, there is no requirement to give any reason for the termination. If you are on a month-to-month lease, the landlord can ask you to leave with a written 45-day notice. If you are on a fixed term lease, the landlord can elect to not renew your lease at the end of that term. If you are given a 45-day notice, you can leave at any time within those 45 days but must let the landlord know the date you are vacating and you must pay the prorated rent until that date.

If you refuse to leave by the end of the 45-day notice, you would be considered a “hold-over tenant.” As such, you could be liable for twice the monthly rent, prorated daily for each day you remain in the unit without the landlord’s consent. The landlord must go to court to get the writ of possession within the first 60 days of the holdover. The tenant could then be held liable for the cost of the suit and reasonable attorney fees. If the landlord fails to begin proceedings for summary possession within this time, a month-to-month tenancy is again in effect at the end of those 60 days.

It is not necessarily a discrimination issue just because no one else in the building has received a notice to vacate. There should be a direct correlation to the eviction. The protected classes are race, sex, color, religion, marital status, ancestry, handicapped status, HIV infection or familial status (presence of children). If something changed in your life that is part of a protected class and the landlord is evicting you because of it, you could have a case. The landlord cannot evict someone because they just had a child and they don’t want children in the building.

Section 521-74 of the Landlord-Tenant Code defines a retaliatory eviction as a situation where the landlord asks the tenant to vacate after “(1) The tenant has complained in good faith to the department of health, landlord, building department, office of consumer protection or any other governmental agency concerned with landlord-tenant disputes of conditions in or affecting the tenant’s dwelling which constitutes a violation of a health law or regulation… (2) The department of health or other governmental agency has filed a notice or complaint of a violation of a health law or regulation… or (3) The tenant has in good faith requested repairs under section 521-63 or 521-64.” Remember that it has to be a “good faith” complaint, so you can’t just make something up and you can’t make a complaint after getting your 45-day notice to avoid being evicted.

Even if there was a complaint made, landlords can ask you to vacate if they believe you are committing waste or are a nuisance or using the dwelling unit for an illegal purpose or otherwise in violation of your lease. They may also need the unit for their use or the use of their immediate family. They may be planning to substantially remodel the unit or sell it. They can also ask you to leave if your complaints made prior to the 45-day notice to the governmental agency determined that there was no violation. But again, they are not required to give you a reason.

I’m sorry that you are being asked to vacate your home. However, if you fight this eviction with no real reasons, you could end up spending a lot of money and will likely still have to vacate the unit. As long as there is no discrimination or retaliatory motive and your lease is up, the landlord has every right to ask you to leave.

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