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Hello i need to ask a question of a lawyer in honolulu about a landlord tenant issue

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state the property is in?

Hawaii

Lawyer's Assistant: Has anything been filed or reported?

No just letter sent to tenant

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I need to know the proper procedures to handle a tenant who wrongfully quits a fixed term lease and a replacement tenant is located

Submitted: 7 months ago.Category: Legal
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Answered in 5 minutes by:
1/4/2018
Lawyer: Olivia Kent, Attorney replied 7 months ago
Olivia Kent
Olivia Kent, Attorney
Category: Legal
Satisfied Customers: 4,700
Experience: Partner at Kent Law Group, LLC
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Hello and welcome to JustAnswer. My name is ***** ***** I'm an attorney. Please note this site is for general information for educational purposes only and does not constitute legal advice. Communicating with an expert on this site does not establish an attorney-client relationship. You might be offered a phone call, but you are under no obligation to accept; the phone call requests don’t come from me - they’re offered by the site - but if you do want a phone call I’d be happy to do that as well.
Give me just a moment to review what you've written.

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Customer reply replied 7 months ago
I need an answer specifically related to Honolulu, Hawaii Landlord Tenant Law. I have a deposit and some prepaid rent. Can I use this to cover beside the normal cleaning, etc. the difference between rent due under the fixed term contract and rent paid by a replacement tenant
Lawyer: Olivia Kent, Attorney replied 7 months ago

"The landlord can use the security deposit for unpaid rent, failure to return keys, cleaning costs if the tenant did not leave the unit in as clean a condition as it was at the start of the tenancy, and for accidental or intentional damages to the unit caused by the tenant. The landlord cannot make deductions from the security deposit for normal wear and tear. The landlord has the right to keep the entire security deposit when the tenant wrongfully quits the dwelling unit. Wrongfully quit is defined as a tenant who is absent from the unit for a continuous period of 20 days or more, without paying rent and without written notice to the landlord." Please let me know if I've answered your question. If I have, could you please take a moment to submit a rating so that I receive credit for working with you. If you have any follow up questions I would be *happy* to answer them. Experts only get credit for the time and effort we spend on our answers if you rate positively - 5 stars is definitely appreciated but not required! It DOES NOT cost you anything at all to submit a rating; it just allows me to get credit for helping you - otherwise I get no credit at all. You CAN still ask follow up questions after rating. There may be a lag between your question and my answer; this is because I'm either not at my computer or helping someone else but I assure you I will ALWAYS come back and answer your question.

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Customer reply replied 7 months ago
No, I know all of the above. This is about a tenant who breaks a fixed term lease. Then a replacement tenant is found. The amount of the rent to be paid by the replacement tenant is less than the former tenant would have paid for the fixed term lease. May I take the difference and take it out of the deposit?
Lawyer: Olivia Kent, Attorney replied 7 months ago

Let me know give you the citation for that since it didn't transfer over. You're required to "mitigate your damages" - which is what you did by getting a new tenant - but the old tenant is liable for anything that isn't made up from the new rental - but it can't be taken from the security deposit. You would need to sue the tenant for the difference. Sorry - please don't shoot the messenger. I can only tell you what the law is - not what I wish it was.

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Lawyer: Olivia Kent, Attorney replied 7 months ago

The gov't makes clear that only certain things can come from the security deposit. I know this is NOT good news obviously. As much as I wish it was otherwise, sometimes I have to give information that isn't "good news." I hope you don't take it out on me! I'm just the messenger. If it were up to me, I'd only give people good news!

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Customer reply replied 7 months ago
ok, if you can give me the legal citation that would be great
Lawyer: Olivia Kent, Attorney replied 7 months ago

This is the website: http://cca.hawaii.gov/blog/category/consumerdialinformation/landlord-tenant-information/

and the specific reference is: http://cca.hawaii.gov/blog/security-deposit/

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Lawyer: Olivia Kent, Attorney replied 7 months ago

It's actually one of the most comprehensive landlord/tenant gov't websites I've seen! If I have answered your question, could you please take a moment to check the box stating that I answered your question so that I receive credit for working with you. 5 stars is definitely appreciated!. It *DOES NOT* cost you anything extra and it allows me to get credit for helping you.

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Customer reply replied 7 months ago
I am not sure why this is not considered unpaid rent since the full amount of the contract should be due to me when the contract is terminated. It says that unpaid rent can be taken from the deposit
Lawyer: Olivia Kent, Attorney replied 7 months ago

Let me see if I can find anything definitive for you. Give me just a few minutes.

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Lawyer: Olivia Kent, Attorney replied 7 months ago

"Abandonment - Section 70(d). If the tenant vacates the unit wrongfully, with no intention of resuming the tenancy, the landlord is entitled to the lesser of:

A. The entire rent for the remainder of the term;

B. The daily rent for the period necessary to re-rent the dwelling, plus a reasonable commission, plus the difference between the rent agreed to in the prior rental agreement and the fair rental value."

http://tenant.net/Other_Areas/Hawaii/lantencd.html

But this would be in a suit for damages (generally small claims court) not via keeping the deposit.

I can't find anything specifically stating that you can keep the different between the amount paid and not. I'm going to opt out of your question to see if another expert has a different answer. I will keep looking and if I find anything definitive I will let you know.

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Lawyer: Olivia Kent, Attorney replied 7 months ago

Okay, I haven't been able to find anything specific to Hawaii (one way or the other) but this website: https://www.thebalance.com/keep-a-tenants-security-deposit-2124998 states that you can use the security deposit for such a purpose: "When a tenant does not fulfill their contractual obligation to pay their monthly rent, you are usually allowed to keep the portion of this security deposit necessary to cover the lost rent. This is the amount necessary to make you whole." I'm assuming you don't have an early termination clause which would also permit you to keep the difference between the rent Tenant was paying vs. New Tenant.

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Customer reply replied 7 months ago
hi, Thank you. So it seems there is contradictory information. I have a termination clause that says tenant will be liable for the full contract amount if the lease is terminated early
Lawyer: Olivia Kent, Attorney replied 7 months ago

Okay - that is actually REALLY good news b/c then you have a legitimate argument for keeping the security deposit, which under state law is permitted to cover unpaid rent. I wish I could find you something that specifically states that "you can make up the difference with the security deposit" but what I have found definitely points in that direction without specifically stating that.

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Customer reply replied 7 months ago
is there a way to connect on this service with a hawaii attorney
Lawyer: Olivia Kent, Attorney replied 7 months ago

I'm going to release your question and if we have one they will respond :)

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Customer reply replied 7 months ago
thank you.
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