Landlord Tenant Q&A with CATHERINE M. MATTHEWS (R)

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

Q. I recently moved out of my rental after giving my 28 day notice and paying rent for those 28 days. Due to a trip I had planned for work, I moved out three weeks early and went to my new unit. I got my security deposit back about a week after I left. I just happened to drive by the old unit and saw new tenants moving in – there is still a week left to my contract. Should I expect the landlord to reimburse me for that week that the new tenants are there or does he get to keep the rent I paid as well as the rent from the new tenants?

A. I’m assuming you were on a month-to-month lease and gave your 28 day notice. In that scenario, you would be entitled to a rent reimbursement. If, however, you had broken a fixed lease, the landlord would probably charge you a fee to re-rent the unit. In that case, you might not get any refund.

The Hawaii Revised Statutes (HRS), Chapter 521-70, Section (d) states, “If the tenant wrongfully quits the dwelling unit and unequivocally indicates by words or deeds the tenant’s intention not to resume the tenancy, the tenant shall be liable to the landlord for the lesser of the following amounts for such abandonment: (1) The entire rent due for the remainder of the term; or (2) All rent accrued during the period reasonably necessary to re-rent the dwelling unit at the fair rental, plus the difference between such fair rent and the rent agreed to in the prior rental agreement and a reasonable commission for the renting of the dwelling unit.”

Landlords have a duty to be fair and reasonable to tenants. The landlord should use his best efforts to re-rent the unit as soon as possible. If you have given proper notice, vacated early and a new tenant moved in during the period of time that you paid the rent it is only fair you are refunded. If you broke your lease, then you are fortunate that the landlord was able to get the unit re-rented so quickly. However, in either instance, if the fair market rent now is lower than what you paid, you may not get back as much as you expected as you will get the pro-rated amount of the lesser rent.

You can call or write the landlord, but give the landlord a few days to get that rent back to you. Landlords typically will wait until the new tenant signs a new rental contract, pays the rent and moves in before they will reimburse the past tenant. Sometimes the prospective tenant changes the dates of move-in or decides not to move in after all. It’s probably a good idea to document the date that you saw the new tenants move in and have an independent witness (possibly a neighbor) who can also verify the date.

Tenants sometimes wonder why they can’t use their security deposit as the last month’s rent. HRS Chapter 521-44 (b) states that “the security deposit shall not be construed as payment of the last month’s rent by the tenant, unless mutually agreed upon, in writing, by the landlord and tenant if the tenant gives forty-five days notice of vacating the premises.” You were obligated to pay rent in advance for those 28 days. You received your security deposit refund because there were no damages beyond normal wear-and-tear and you will likely receive a rent refund.

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