Landlord Tenant Q&A with LURLINE R. JOHNSON (R), ABR, CRB, CRS, GRI RMP

Q. I have a long term tenant who recently let me know that they will be moving in the summer. At the same time they told me that they sublet the attached studio – that they had previously used for storage – to a sailor. They said that his lease runs until the end of the year and they promised he could stay on until then because at that time he will be getting out of the service and returning to the Mainland. What can I do? I have never rented out the studio by itself – it was always part of the main property. Can I get in trouble with the Navy if I don’t keep him on? Help.

A. Well, this is an interesting dilemma.

In my opinion, this isn’t your problem – it is actually a situation created by your tenant.

My first question would be how long has this been going on? Did you do an inspection in the last six months or year to check on your property (and possibly discover the tenant in the studio)? This is the perfect example of why doing regular inspections is so necessary.

You may have been able to deal with the sublet tenant before this.

My next question is whether or not your lease allows for subletting. The standard Hawaii Association of Realtors Rental Agreement has a paragraph which prohibits a tenant from subletting without the specific knowledge and approval of the landlord. It states: B11. No Subleasing or Additional TENANTS. No additional TENANTS, subleasing, or assignment of this Rental Agreement will be allowed without the prior written consent of LANDLORD. Guests may not stay longer than fourteen (14) days without written approval of LANDLORD.

If this is the case, then your current tenant has violated their lease and needs to deal with the situation and make sure that the studio is vacant when they vacate their rental. They will have to make whatever arrangements are necessary to ensure the sublet tenant leaves on or before their move-out date.

Since you have a contractual agreement with your tenant that prohibits subletting, then you need to put pressure on the tenant to correct the situation. He never should have sublet in the first place but signing a lease that extended beyond his contract was even more grievous. There is no contractual obligation between you, the landlord, and the sublet tenant – they would actually be considered a guest of the tenant. If the tenant doesn’t respond to your requests and the sublet tenant remains at the property after the original tenant moves out then he would be trespassing. The worst case scenario would be that you would have to go through the courts and seek eviction, but hopefully it doesn’t come to that.

Even if your lease does allow for subletting, in Hawaii, the landlord has the right to disallow the main tenant from subletting. The original tenant still has to obtain the landlord’s permission first. In this case you would have a statutory claim against your tenant. If the owner has been aware of the sublet tenant and he has been there for a period of time, then he may have the right to stay. Nevertheless, he can’t remain at the property after the original tenant moves out. Regarding getting in trouble with the Navy – I can’t see how that would happen since you don’t have a contractual agreement with the sublet tenant. It is just an unfortunate situation all the way around and does make the strong argument for inspecting properties regularly and keeping in good communication with your tenants.

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