RICHARD VIERRA (B), RMP

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, 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 doesn’t pay them immediately he will evict him. Is this considered a retaliatory eviction which I read about on-line? Also, does my son as the tenant have any rights?

A. Here is my answer to question 1, a very good question that 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 that there is a year’s worth of payments from a tenant to a landlord for a fixed amount. These regular payments would be assumed to be for an agreed upon rental unit and the absence of any attempts by the landlord to collect any utilities over that period would certainly help the tenant’s case that utilities were not included over the last year if this were litigated. Subsequently, it is true that if this were litigated the tenant could likely convince the court that a set payment over a year would constitute an agreed upon rental agreement even if there is nothing in writing, especially if no action were taken by the landlord over the past year to collect any additional monies for utilities. 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 since there appears 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 rents for additional utilities.

However, retaliatory evictions more often concern themselves with a landlord’s attempt to evict a tenant who may have informed a third party (the building department or health department, perhaps) of a building violation or health concern which then causes the landlord to be put on notice or incur unanticipated costs to correct a problem that legitimately exists in the landlord’s rental unit. An incensed landlord might “retaliate” by evicting the tenant or increasing the tenant’s rent specifically as a result of the tenant’s actions.

That said, in defense of the landlord in this case, 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.

Here, 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 forty-five day notice and be within his legal rights to do so without justification to the tenant, generally in spite of any previous rental agreements or history.

Specific to this case, and to answer the second question, a tenant does have recourse when a forty-five 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 forty-five day notice and that failure to do so may result in litigation. Conversely, however, a tenant does not have any recourse when a forty-five day notice is properly provided in writing and the landlord is in compliance with all requirements set forth in the Hawaii Revised Statues Chapter 521.

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