LAURENE H. YOUNG, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers
Q. I found a rental house online and went to see it. The tenant was moving out so the house was messy, but I liked the layout and applied to rent it. The owner lives on the Mainland and approved my application, and I signed a one year lease. He asked me to pay my security deposit directly to the vacating tenant, which I did. When I went to move in, the house was filthy and there were several major items that were broken. The owner told me he didn’t have the money to make repairs now. What can I do? Do I have to move in?
A. There are many problems in this situation. First, you should never sign a lease with someone who lives off-island and has no representative on-island. Hawaii Landlord-Tenant Code Section 521-43 states that, “Any owner or landlord who resides without the State or on another island from where the rental unit is located shall designate on the written rental agreement an agent residing on the same island where the unit is located to act in the owner’s or landlord’s behalf.” Second, you should have paid the security deposit to the owner and not to the vacating tenant. It is the owner’s responsibility to make sure that the vacating tenant has cleaned the unit and not damaged the unit.
The landlord has an obligation to have the unit ready at the time of check-in. Since the unit was not in reasonable move-in condition, Section 521-61 states, “at any time during the period the tenant is so unable to enter into possession the tenant may notify the landlord that the tenant has terminated the rental agreement.” So, you can terminate the rental agreement and ask for your security deposit back from the landlord.
If, in spite of all the problems, you still want to move in, take pictures of the unit before you move in and send a copy to the owner. Talk with the owner and let him know that you will be having the unit cleaned and repairs done to make the home safe and habitable.
Section 521-64 of the Landlord-Tenant Code states the tenant may “submit to the landlord, at least five business days before having the work done, written signed estimates from each of two qualified workers and proceed to have done the necessary work by the worker who provides the lower estimate.” Get estimates and have the unit professionally cleaned by the company with the lower estimate and send a copy of the invoice to the owner. You should also note all the damages and repairs that need to be done to provide a safe and habitable condition and submit that list to the owner as soon as possible. Section 521-64 also states that “failure by a tenant to list such a condition that the tenant knew of or should have known of shall stop the tenant from requiring the landlord to correct it and from having it corrected at the landlord’s expense…for a period of six months after the initial notification to the landlord.”
You should not pay rent for those days when you are unable to move into the unit because of its condition. You can also deduct from your rent up to $500 or one month’s rent, whichever is greater, for the work done. However, the “total correction and repair work costs under this section chargeable to the landlord’s expense during each six-month period shall not exceed an amount equal to three months’ rent.” Hopefully the repairs necessary to provide a safe and habitable condition are within the constraints provided under the Landlord-Tenant Code. (Note: this duty upon the owner only applies to items that could directly affect the health and safety of the tenant.)
Maintain communication with the owner but insist that they provide you with an on-island agent who is authorized to make decisions about the property. If they refuse, you can pursue an action in civil court.