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 have a tenant who is behind in his rent. I have tried to work with him but now need to just get rid of him. What are the steps I need to take for an eviction?
A. Since Hawaii state law limits the maximum amount of a security deposit to one month’s rent, it is always best to try to get a tenant out within the month they are delinquent to keep your loss to a minimum. After one month the owner is at risk of not collecting the rent. A typical lease specifies the date that rent is due. It should also include the date that a late fee will be assessed if the monthly rent is not paid on time, and interest on any unpaid balance. Keep in mind that the state usury law limits this amount to 12% a year or 1% per month.
As soon as a tenant is delinquent you should inform them that you have not received their rental payment. Written notice must be issued to the tenant indicating the delinquent amount due, which should include the outstanding balance, any late fees, and any interest. State law requires that they be given five business days notice to pay the full amount due. After five days you may begin the legal process to regain possession of the property.
This may be done by going to the courthouse and filing the necessary paperwork yourself. But this will require you to be available for any court appearance, timely service to the tenants, timely court filings and to have some knowledge of the law and legal process relating to landlord tenant issues.
I recommend that you obtain legal representation when doing an eviction. It ensures that things will be done properly and it is money well spent. The following should be provided to the attorney: copy of the demand letter, copy of rental agreement, copy of any addenda, copy of tenant’s payment ledger, copy of rental applications and all pertinent information you have in your files.
Once the attorney has received the documentation, a complaint for summary possession will be filed with the court. Once the court approves the order, the attorney will contact a process server to serve the order on the tenant. The tenant will then be required to appear in court on the date that is stated on the order to answer the complaint.
If tenant fails to appear in court, the court will in most cases grant judgment for possession by default and grant the writ of summary possession to be issued forthwith. Once that is received from the court, the process to legally take possession can continue. The process server will inform the tenant that they are required to vacate the property immediately, or landlord and tenant can mutually agree on another date to vacate the property.
After the tenant has vacated the property, landlord can then make arrangement to change locks. If personal items are left behind, the process server will make a determination if there is anything left of value. If items of value are left behind, the landlord is required to store the items as required by law. If the items are not things of value, landlord may make arrangements to remove them.
Once you get to this stage, you have legally gained possession of your property.
If the tenant appears in court and challenges the complaint, they must provide the judge with proof and evidence why they feel they do not owe the monies due. The judge will then rule based on the facts presented. You should be available to confer with the attorney on any decisions that will need to be made at this point.
The estimated time frame for an eviction can range from a few weeks to a few months, depending on the situation. It is important to remember to communicate with both your tenants and your attorney should you need to pursue an eviction.