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

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 military tenant who is currently deployed and won’t be back until this December. We are on a month to month arrangement, and she has no family member or friend staying with her in the unit. I need to put the unit on the market for sale as soon as possible and, if I close the transaction before December, I have a problem. What if the buyer is not willing to accept the existing military tenant? How am I going to enforce the move out during the tenant’s absence? What kind of authorization would I need?

A. This is something that comes up often in Hawaii where we have a large population of military service members and families. It’s a tough situation and involves more than one law.

You are entitled to place your unit on the market for sale. However, under the Servicemembers Civil Relief Act (SCRA) it appears that you are not entitled to “evict” your tenant unless you obtain a court order. In Section 301 – Evictions & Distress it states in part: (i) In General- Except by court order, a landlord (or another person with paramount title) may not–(A) evict a service member, or the dependents of a service member, during a period of military service of the service member, from premises–(i) that are occupied or intended to be occupied primarily as a residence; and (ii) for which the monthly rent does not exceed $2,400 (the current monthly rent amount has been increased to $2,615.16).

The SCRA does not define eviction but I read the American Bar Association’s interpretation of the word as it pertains to this law and it defined eviction as “dispossession of a tenant by a landlord.” Although the Hawaii Landlord-Tenant Code allows 45 days notice for termination of a month to month lease, the Servicemembers Civil Relief Act would supersede that State statute.

The next issue you face is access to show the unit to a prospective buyer. Hawaii Revised Statues Chapter 521 (Land lord Tenant Code) addresses this situation in two sections. The first: HRS-521-70 (b) The landlord may, during any extended absence of the tenant, enter the dwelling unit as reasonably necessary for purposes of inspection, maintenance, and safe-keeping or for the purposes permitted by section 521-53(a).

This section pertaining to prolonged absences does not address placing the property for sale; however, it does refer us to Section 521-53 (a) which states: The tenant shall not unreasonably withhold the tenant’s consent to the landlord to enter into the dwelling unit in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply services as agreed; or exhibit the dwelling unit to prospective purchasers, mortgagees, or tenants. This section provides for entering the unit to show to a perspective buyer.

Practically speaking, if I were in this situation and absolutely could not wait to list the property (which would be my first choice), I would do everything possible to get in touch with the tenant. In my experience, email addresses I had prior to deployment continued to work and many times members got cell phone messages within a week or so. Check on your application for family/friend references. I would explain your situation and try to get a fixed lease signed through the period of deployment for the tenant’s protection (and yours). I would place in the lease that the tenant is aware the unit will be listed for sale and state that it will be shown to prospective buyers. I would require my listing agent (or authorized representative) to be present during all showings. This may limit your initial pool of interested buyers for the first few months but you will be certain not to be contributing to the illegal displacement of a deployed service member.

All of this being said, first and foremost, I am not an attorney and if you decide to place your unit for sale, I strongly suggest you consult with one prior to listing it and fully disclose to your listing agent and all prospective buyers. The penalty for violating the Servicemebers Civil Relief Act as it pertains to the section above includes a year of imprisonment among other penalties.

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