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. My son, a student the University of Hawaii, has been renting a studio in Waikiki for a year for $600 per month. He never signed anything, it was all verbal. He has paid on time every month. The owner has now come to him and given him utility bills for the past year. Utilities being extra were not discussed, only the flat rate. The owner says if he does-n’t pay for them immediately he will evict him. Does my son as the tenant have any rights? Also, Is this considered a retaliatory eviction which I read about on-line?
A. These are two very good questions. The first question has its roots in human behavior and its answers in the law. Hawaii Revised Statutes Chapter 521 would be the vehicle by which this case would be addressed. Here, it appears there was an understanding that the rent would be a fixed amount and utilities were not discussed as an additional charge. Also, over the year when the specified monthly rent was paid, the landlord did not mention utilities or any additional charges. The fact that the landlord waited a year to attempt to collect payments for utilities would certainly help your son’s case if this were litigated. He could also likely convince the court that payment of a set amount over a year would constitute an agreement even if there is nothing in writing, especially if it can be made clear that no action was taken by the landlord during that time to collect additional monies. In summary, if the landlord were attempting to evict the tenant based solely on the tenant’s refusal to pay the back utilities, it is probable that the tenant would prevail in court since there seems to be sufficient evidence that, although not in writing, a “rental agreement” did exist and there is a history of uninterrupted payments to the landlord with no effort or complaint by the landlord to collect for utilities in addition.
With regard to the second question, retaliatory evictions are more often related to a landlord’s response to a tenant who may have informed a third party, such as the building department or health department, of a building violation or health concern associated with the rental property, particularly if the result is some official action against the landlord or unanticipated costs to correct a problem.
That said, it should be noted that when there is no written rental agreement in place or if a rental agreement has expired and both parties agree that the tenant will remain, the Hawaii Revised Statutes considers that the relationship is or has become a month-to-month rental agreement. In the case of your son, because no written rental agreement exists, the landlord does have the right to terminate or modify the lease or raise the rent or enact rental inclusions or changes (utilities, yard service, etc.) with a written 45 day notice despite any previous agreements or history. Conversely, a tenant has recourse when a 45 day notice to terminate a verbal agreement is not provided or is improperly provided by the landlord. That recourse is generally to advise the landlord that the landlord is required to provide a 45 day notice and that failure to do so may result in litigation. However, a tenant does not have any recourse when a 45 day notice is properly provided in writing and the landlord is in compliance with all requirements set forth in the Hawaii Revised Statutes Chapter 521.
Answers to questions in Landlord Tenant Q&A are provided by members of the Oahu Chapter of the National Association of Residential Property Managers (NARPM), an organization that supports the professional and ethical practices of rental home management through networking, education, and certification. The Oahu Chapter, founded in 2004, has become the largest in the nation with 175 registered members.