Breaking a Lease in Hawaii

Find out when a tenant can legally break a lease in Hawaii, when they can’t, what options they have if they don’t have a proper cause, and what the consequences are of walking out on a lease agreement. Learn how landlords can break a lease, when they can break one without cause, and how much notice they have to give.

Importance of Fixed Periods in Lease Agreements

Without a fixed period, a landlord generally has the same rights as the tenant to terminate tenancy (with proper notice). In the same way that a landlord lacks long-term security on a month-to-month (or shorter period) lease if a tenant decides to leave, tenants lack the same security if the landlord decides to change the terms (i.e. raise the rent) or end the lease altogether. 

That’s why fixed periods are an important protection for both parties. They’re not just there to act as a restriction to tenants. 

As a result, there are real legal consequences for violating the agreement without proper cause on either side. It’s important to understand when a tenant can get out a lease with a fixed period that hasn’t ended, and when a tenant can’t.

Lease Termination Notice Requirements in Hawaii

In Hawaii, a tenant is not required to provide notice for fixed end date leases, the lease expires on the last day of the lease. Tenants are required to provide notice for the following lease terms:

    • Notice to terminate a week-to-week lease. 10 days (§521-71(d)).
    • Notice to terminate a month-to-month lease. 28 days’ notice in writing (§521-71(b)).

Conditions for Legally Breaking a Lease in Hawaii

There are a handful of scenarios where a tenant can legally break a lease in Hawaii without penalty. We’ll go through each of them below.

1. Early Termination Clause

Some modern lease agreements may provide specific terms that would allow a tenant to terminate a lease early in exchange for a penalty fee. Read over the lease and look for language that outlines agreed-upon terms for ending the lease before the end of the fixed period, such as the amount of the fee (i.e. equal to 2 month’s rent) and the amount of notice required (i.e. 30 days).

If a lease agreement contains an early termination clause, before executing it and paying the penalty fee, read further to learn about other conditions that, if met, would not require a penalty fee to be paid.

2. Active Military Duty

The Servicemembers Civil Relief Act (SCRA) helps protect active service members who are relocated due to deployment or permanent change of station. The protection begins on the date of entering duty and ends between 30-90 days after the date of discharge.

To break a lease in accordance with the relief act, a tenant must:

    • Prove the lease was signed before entering active duty 
    • Prove they will remain on active duty for at least the next 90 days
    • Deliver a written notice to the landlord (example, page 2), accompanied by a copy of the orders to deploy / PCS or a letter from their commanding officer stating their pending deployment.

With that said, the lease does not terminate immediately. Once the notice is delivered, span class=”underline”>the earliest the lease can terminate is 30 days after the beginning of the next rent period. So for example, if the notice was delivered on the 23rd of March, and the rent is due on the 1st of each month, the earliest the lease can terminate is May 1st (meaning, rent is still due for the month of April).

NOTE

In Hawaii, the term “servicemember” means a member of the armed forces, commissioned corps of the National Oceanic and Atmospheric Administration (NOAA), commissioned corps of the Public Health Service, and the activated National Guard.

3. Unit is Uninhabitable

Every state has specific health and safety codes that provide minimum standards for rental units, and Hawaii is no different. 

If those standards are not met, proper notice is given by the tenant and the repairs/fixes are still not made within the allowable time period, a tenant would be considered “constructively evicted”. As a result, the obligations of the tenant under the lease are no longer required, given that the landlord has not met their own responsibilities under the Hawaii landlord-tenant law. 

Landlords must maintain the premises to protect a tenant’s safety and health. Landlords must comply with city and county ordinances and state laws regarding housing conditions. Hawaii landlord duties to provide habitable premises include the following examples (§521-42):

    • Compliance. With all applicable building and housing laws materially affecting health and safety
    • Repairs. Make all repairs and arrangements necessary to put and keep the premises in a habitable condition
    • Common Areas. Keep common areas of multi-dwelling unit premises in a clean and safe condition
    • Maintenance. Maintain all electrical, plumbing, and other facilities and appliances supplied by the landlord in good working order and condition, subject to reasonable wear and tear
    • Trash. Except for single-family homes, provide and maintain appropriate receptacles and conveniences for the removal of normal amounts of garbage, and arrange for their frequent removal
    • Water. Except for single-family homes, or where the building is not required by law to be equipped for the purpose, provide for the supplying of running water as reasonably required by the tenant

4. Landlord Harassment or Privacy Violation

If the action is serious enough, harassment by a landlord or their violation of a tenant’s privacy may be enough justification for relieving a tenant of their obligations of the lease.

    • Landlord entry.Hawaii requires landlords to provide a two-day notice, and entry is allowed only at reasonable times (§521-53(b)). If your landlord repeatedly violates your rights to privacy or does removes windows or doors, turns off your utilities, or changes the locks, you would be considered “constructively evicted,” as described above.
    • Changing the locks. In Hawaii, a landlord cannot lock out a tenant and is punishable by two month’s rent or free occupancy (§521-63(c)).

5. Violation of Lease Agreement

If a landlord violates the terms of the lease agreement, it may be enough justification to break the lease and relieve the tenant from their own obligations (i.e. illegally raising the rent during the fixed period). Because each lease agreement is different, carefully read over the duties and requirements for both parties to understand if a violation has been made, and whether or not there is language describing how certain violations are to be handled. 

6. Illegal Contract

In some scenarios, a lease agreement may be deemed illegal in the state of Hawaii, and as a result, are generally not enforceable. 

    • Over 1-year lease without a description of the property. For a written lease agreement with a fixed period of greater than 1 year to be valid in Hawaii, it needs to have a clear description of the leased property.
    • Illegal units. The definition of what constitutes an illegal rental unit can vary by location and isn’t always entirely clear. On the state level, Hawaii does not appear to have clear information on what defines a legal rental unit. 

7. Domestic Violence

Many states protect tenants who are victims of domestic violence. If you are confronting a domestic violence situation (this can also be stalking), and want to move, check with local law enforcement regarding special state laws that may apply in domestic violence situations. 

NOTE

In Hawaii, there are no landlord statutes governing victims of domestic violence.

8. Mandatory Disclosures in Hawaii

Many state and local laws require landlords to disclose documentation, policies, or specific unit information to tenants prior to moving in. Since these laws vary from state to state (and sometimes by city or county) it is important to have your agreement looked over by a landlord-tenant attorney in your state to guarantee the correct disclosures are included in your lease. 

Some disclosure laws impose heavy fines or legal ramifications to landlords if they are not followed. Others contain penalty provisions and may allow you to break your lease. If your landlord fails to provide you with a mandatory state or local disclosure speak with a Hawaii landlord-tenant attorney to determine what can be done.

Hawaii requires that landlords provide the following disclosures to tenants, normally in writing and at the start of the lease:

    • Tenant’s Right to Disclosure of Agent. Landlord or landlord’s agent must disclose the name and address of anyone authorized to manage the premises as well as the name and address of each owner or person authorized to act on behalf of the owner for purposes of service of process and for receiving rent, notices and demands (§521-43(a)(b)). 
    • Copy of the Lease. Landlord shall furnish a copy of the lease or rental agreement to the tenant (§521-43(d)).  
NOTE

The only federally required landlord disclosure pertains to lead-based. Known as Title X, this disclosure is designed to protect families from exposure to lead from paint, dust, and soil. Section 1018 of this law requires the disclosure of known information on lead-based paint and lead-based paint hazards before the sale or lease of housing built before 1978.

9. You or a Co-Tenant Face a Health Crisis

If you, a dependent living with you, or your co-tenant, face a serious physical or mental health issue you may qualify for early lease termination without obligation to pay the entire balance of rent due. Some states offer permitted, health-related lease-breaking arrangements that are age-restricted. Most states require a note from a locally licensed physician and at least 30 days’ notice. Since not all states allow this statute, be sure to check the Hawaii Landlord and Tenant Handbook for further information. 

Note About Illegal Retaliation in Hawaii

In July of 2019, House Bill 346 (which became § 44-7-24) went into effect providing tenants with protection against landlords that retaliate to actions such as giving the notice to make repairs or reporting to governmental entities about violations in building or housing codes. The bill does not state that these types of illegal retaliation are enough justification for lease termination, but the bill does allow for a sizable penalty against the landlord if they’re found in violation (1 month’s rent + legal fees + $500), which could help offset the costs of penalty fees associated with early termination. 

NOTE

In Hawaii, landlord retaliation is ruled under §521-74.

Examples of Insufficient Justification for Lease Breaking

The below reasons are generally not enough justification (on their own) to release a tenant from the obligation of their lease term, and as a result, provide no legal protection against penalties for not honoring the lease.

    • They bought a house
    • They are relocating for a new job or school
    • They are upgrading or downgrading
    • They are moving in with a partner
    • They are moving to be closer to family

Breaking a lease for any of the above reasons or in any conditions not previously outlined can have tangible consequences for tenants.

Tenant’s Options if Legal Justification is Not Met

If the previously stated legal conditions are not met, there are still a few options that a tenant has that could allow for them to not be obligated to pay rent until the end of the fixed period.

Talk with the landlord

Some landlords may be understanding and willing to negotiate with a tenant. Every situation is different, and every landlord is different. A tenant’s best chance at getting a landlord to work with them is, to be honest about the reasons for leaving, to provide as much notice as possible, and to span class=”underline”>propose possible resolutions that could be mutually beneficial (i.e. by paying 2 month’s rent).

Aid in finding a new tenant

If the tenant moves out before the end of the fixed period, they are still required to pay rent until the end of the period until a new tenant is found. During that remainder period, span class=”underline”>the landlord is required to make reasonable effort to find a new tenant (if they don’t, the previous tenant is not responsible for future rent).

Therefore, the previous tenant may choose to be proactive and help to find a new tenant on their own, instead of waiting for the landlord to find one. The landlord does not have to accept the newly found tenant if they have reasonable justification (i.e. they have bad credit or rental history), but helping to find a new tenant can only help increase a tenant’s chances of being relieved of future rent.

NOTE

In Hawaii (§521-70(d)) your landlord must make reasonable efforts to re-rent the unit instead of charging you for the total remaining rent due under the lease. If your landlord rerents the property quickly, all you’ll be responsible for is the amount of time the unit was vacant. The tenant is liable to the landlord for the lesser of the following amounts: the entire rent due for the remainder of the term or all rent accrued during the period reasonably necessary to re-rent the dwelling unit at the fair rental, plus the difference between such fair rent and the rent agreed to in the prior rental agreement and a reasonable commission for the renting of the dwelling unit.

Sublet

If your lease does not prohibit subletting, then you are in the clear to do so. However, your lease might contain a clause requiring you to obtain your landlord’s approval prior to subletting. To get landlord approval you will want to send them a letter through certified mail, with a return receipt requested, outlining the terms of the sublet lease agreement. Certified mail is the only proof of delivery that most courts will accept in case you need to prove that you notified your landlord. 

NOTE

In Hawaii, subletting is allowed, unless otherwise agreed to in the lease. A lease may also provide that the tenant’s right to sublet is subject to the consent of the landlord. (§521-37)

Consequences of Illegal Lease Breaking

If a tenant breaks a lease without mutual agreement from the landlord or without the proper legal justification and does not pay the rent due for the remainder of the fixed period, the tenant faces the following consequences.

  • Loss of security deposit. Usually, at a minimum, a landlord may choose to withhold the security deposit. 
  • Lawsuit. A landlord may sue the tenant for unpaid rent during the fixed period, which if won, could result in the tenant facing a money judgment. That judgment, if not paid on the spot or if terms are not set for a long-term payment plan, could result in the garnishment of the tenant’s wages or bank account.
  • Impact on credit score. While a money judgment won’t show up on a tenant’s credit report (thanks to the National Consumer Assistance Plan), if the landlord chooses to go an alternative route to collecting on unpaid rent by using a debt collection agency, the tenant’s credit score could be severely impacted.
  • Difficulty in finding future housing. Whether or not a tenant provides the landlord’s name & contact information themselves when looking to buy or rent in the future, a background check will most likely provide the future landlord or mortgage lender with that information. That previous landlord could provide a very negative reference.

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