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 have a tenant on a month to month lease renting a room in my rental house. The contract of $700 started on October 21, 2016. The first rent was prorated from October 21, 2016 to October 31, 2016. The second monthly advance rent of $700 started November 1, 2016 to November 30, 2016 and every succeeding month thereafter. On July 1, 2017, the tenant sent me an e-mail that he was leaving on July 15, 2017. The tenant did not pay the monthly advance rent for the month of July 2017. I responded as follows: On a month-to-month lease, the tenant is obligated to pay the advance rent for the whole month of July 2017 regardless of the number of days you stay within the month.

As such, since you left in the middle of the month, you are still obligated to pay the whole month of July 2017.

In addition, because you did not give the owner twenty eight days notice before vacating the premises as required in the contract, you violated the contract item #7, and therefore you cannot get back your Security Deposit of $700. Did I do the right thing?

A. You are correct in most of what you wrote. I haven’t seen your contract but I will assume that your month-to-month lease had provisions that spelled out that: (1) the security deposit cannot be used as the last month’s rent, (2) that the tenant must give 28 days notice before they vacate.

The tenant on a month-to-month lease is obligated to pay for the 28 days from the date of his notice. So, if he gave you notice on June 15th, he would have to pay a prorated rent for July until July 12th. He does not have to pay for entire month of July. Since he gave you notice on July 1st, he would have to pay you until July 28th. You would base the amount on a 30 day month, so divide the rent by 30 and multiply it by the number of days the tenant is in the unit. It would not matter if the month had 28, 29, 30 or 31 days; always use a 30 day month. You can charge the tenant for the full 28 days provided you do not rent the room out sooner. You have a duty to mitigate your damages and try to rent it out as soon as possible. You cannot automatically keep the entire security deposit just because the tenant didn’t give you proper notice.

The security deposit can only be used for specific purposes. It can be used to repair accidental or intentional damages caused by the tenant, their guests or their pets beyond normal wear and tear, for failure to pay rent, for failure to return all keys (including garage door openers, parking cards and fobs), to clean the unit to be in the same condition as when the tenant moved in, to pay for utilities not included in the rent that are the responsibility of the tenant, or to compensate for damages caused by a tenant who wrongfully quits (does not give you ample notice).

If the tenant does not pay rent on the first of the month, send them a 5 day demand notice. If your contract allows for it, you can charge a late fee. Remember that from November 1, 2017, late fees on all new fixed leases and all month-to-month leases cannot exceed 8% of the monthly rent. In this case, it may not be worth your while or your money to file eviction proceedings if the tenant does not pay after the 5 day notice is up. But hopefully, the tenant will pay the rent he owes you. Here are examples of what might happen, depending on whether or not the tenant pays you:

Scenario #1: The tenant pays the prorated rent from July 1-28th on time, leaves the unit on July 15th and the unit was in good condition when they left. In this case, you have a duty to try to mitigate your damages and attempt to rent the unit out as soon as possible. If you were lucky enough to rent the unit out on July 16th, you would have to return not only the entire security deposit, but the prorated rent from July 16-28th that the vacating tenant paid to you. In other words, you cannot collect rent twice for the same period of time.

Scenario #2: The tenant does not pay the rent and leaves on July 15th and the unit was in good condition when they left. In this case, you can deduct from the security deposit the prorated rent until July 28th, plus any late fees. If there are damages to the unit, there may not be enough left in the security deposit to cover those damages. You would have to send the tenant a bill for the balance and hope they pay, or go to small claims court to sue for the balance.

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