Landlord Tenant Q&A with RICHARD VIERRA (B)

RICHARD VIERRA (B), RMP
Principal Broker & Director of Property Management
Hawaii Reserves, Inc.
National Association of Residential Property Managers
Regional Vice President / Past President, Oahu Chapter

Q. I am a landlord whose tenant recently had a mouse problem. The mouse was motivated by food left out in the kitchen area. Damages were done to a screen, walls and some kitchen appliances where it found it entertaining to chew on some wires and plastic housing. The mouse was eventually caught but the tenant wants me to assure him that no other rodents are still living in the house and wants the remaining mice population to be eradicated by me. I disagree with this request and also I don’t think I am responsible in fixing the damaged areas. I also looked over the landlord /tenant housing information and it was a very fine line on who is responsible. It states that the landlord has to make the property clean, safe and livable.

What are your thoughts?

A. What a great question from one of our readers…and one that describes a situation that happens quite often. In this case there appear to be three issues: 1. Are the mice entering the unit only because the tenant is leaving food out; 2. Who is responsible for the eradication of any other mice; 3. Who is responsible for the damages caused by the mice. There are no easy answers for these questions but given this as a starting point and the Landlord Tenant Code (Hawaii Revised Statutes Chapter 521) and the Revised Ordinances of Honolulu (ROH Section 27), we can attempt to address them as best as possible.

To address the first issue, relative to the “very fine line” of responsibility, it is important to consider the word “reasonable.”

As described in the Landlord/Tenant Code, which requires both parties to maintain the premises in good, safe and “reasonable” condition, the term “reasonable” is critical. In the reader’s question, one area to consider here is what is a “reasonable amount” of food left out in the kitchen and if a “reasonable” person would do so. Other factors would be how often food is left out, what kind of food is left out and how does the landlord know this. Often, landlords believe that their investment property must be spotless, and sometimes forget that things left out may be a “reasonable” action by the tenant. Another area to consider is where the house is located. Often, homes in densely populated or rural areas, next to thick overgrowth or those that have lush gardens and foliage may be more attractive to rodents in general and may be more susceptible to infestation no matter the level of cleanliness of the tenant. Since the landlord does not occupy or visit the dwelling every day, it is difficult to blame the infestation entirely on the tenant because the tenant “left food out,” as many other factors should be considered. Generally this area leans to the advantage of the tenant.

To address the second issue relative to the eradication of rodents, it is important to consider the source. As noted above, because it is difficult to transfer all the responsibility to the tenant, and understanding that the ROH 27-9.1 (b) describes “inadequate sanitation as the infestation of insects, vermin or rodents, as determined by a health officer,” the condition described in the reader’s question could get precarious for the landlord. Should the tenant ask for the Department of Health to intervene and should the Department of Health determine that there is an infestation, HRS 521-42 (a) (1) would apply as the “Landlord shall at all times during tenancy comply with all applicable building and housing laws materially affecting health and safety.” Generally with the HRS and ROH invoked and assuming there is a defined infestation, this area leans to the advantage of the tenant.

To address the third issue relative to the responsibility associated with the damages caused by the mice, it would seem clear. There are many variables to consider but ultimately, should this be litigated, it would appear that the landlord would bear the burden of proof that the damages caused by the mice were primarily the responsibility of the tenant. And given the number of possibilities in which the infestation could occur, it would be difficult to expect the tenant to bear the burden of the cost of the repairs. Although anything could occur in a courtroom, considering the way the HRS and ROH are written to protect the consumer, this area would likely lean to the advantage of the tenant.

Considering the “fine line” associated with the reader’s question and perhaps the lack of more specific details, it would be best that the landlord address the rodent infestation and repairs. Generally, other factors to consider are the rental history of the tenant, whether the tenant is overall a good tenant, and whether there are other infestation complaints in the neighborhood. In some ways, absorbing the cost of rodent eradication and repairs may be offset by an otherwise good tenant continuing tenancy resulting in continuing rental revenue for the landlord. In other words, a short-term expense may preserve and enhance a long-term income stream.

We have recently had several questions concerning rodents and will address this topic again in two weeks with emphasis on what to do in areas that are known for having rodent problems.

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