CARL L. FRAZIER (R), PB, RMP
Owner, Principal Broker
Past President, Oahu Chapter
National Association of Residential Property Managers and National Conference Speaker
Q. I’m just really confused about this whole month-to-month tenancy thing. I had a fixed lease with my tenant that ran out last year and we have been on a month-to-month ever since. I plan to move back from the Mainland and reoccupy the house on October 1 so I gave my tenant notice on August 16. I wanted to time it so I could move right in and not miss a beat with the tenant paying rent right up to the time I move back in. Then she moved out on August 20. Not only that but she said she wasn’t paying for September and demanded ten days of pro-rated rent back! Do I need to get an attorney to force her to pay? I’m confused and don’t know what to do.
A. Well, I would never tell anyone not to get an attorney if they feel they need one. However, let’s look at what the Landlord Tenant Code has to say about month-to-month tenancy and how to terminate them. Section 521-71 (a) states the following: When the tenancy is month-to-month, the landlord may terminate the rental agreement by notifying the tenant, in writing, at least forty-five days in advance of the anticipated termination. When the landlord provides notification, the tenant may vacate at any time within the 45 days of the period between the notification and the termination date, but the tenant shall notify the landlord of the date the tenant will vacate the dwelling unit and shall pay a prorated rent for the period of occupation. So, the tenant in this case is correct. They can leave anytime within that 45 day period. Remember, vacating means the day the unit is cleaned and the keys are returned, not just that they left the premises.
Let’s say the tenant wants to terminate the lease. The tenant gives you a 28-day notice to vacate on August 16 then moves out on August 20 and demands a pro-rated amount of rent back (this actually happens quite often). Then what? Let’s see what the code says here. In Section 521-71 (b) it says the following: When the tenancy is month-to-month the tenant may terminate the rental agreement by notifying the landlord, in writing, at least twenty-eight days in advance of the anticipated termination. When the tenant provides notice of termination, the tenant shall be responsible for the payment of rent through the twenty-eighth day. So, no, the tenant should not get back a pro-rated amount of rent and they are responsible for twelve days of rent in September.
Please note both notifications are…in writing! Always do it in writing. “But you told me I could leave on the 20th…” Keep everything in writing to avoid misunderstanding and stay within the framework of the Landlord Tenant Code! And remember, regardless of who terminates the lease agreement, once the tenant moves out you have fourteen calendar days to reconcile the security deposit.
Answers to questions in Landlord Tenant Q&A are provided by members of the Oahu Chapter of the National Association of Residential Property Managers (NARPM), an organization that supports the professional and ethical practices of rental home management through networking, education, and certification. The Oahu Chapter, founded in 2004, has become the largest in the nation with 237 registered members.
Disclaimer: The answers provided in this column by Realtors address individual cases and should not be construed as interpretations of the law. For specific information on Hawaii State Law, go to http:// hawaii.gov/ dcca/areas /ocp/ landlord_tenant or contact an attorney.