Numerous people contact me about tenancy arrangements where there is no written lease.
Whether you are a landlord or a tenant, it is important to realize that even if there is no written lease, Hawaii law considers an oral agreement, or de facto agreement, to create a month-to-month lease. A month to month lease guarantees the tenant certain rights in living on the property – the rights defined in the Lanlord-Tenant Code. Most importantly, the tenant cannot be evicted without proper 45 day notice, or a five day notice for nonpayment of rent, or a ten day notice for other serious breaches.
However, sometimes oral arrangements do not amount to a lease. If a person is only allowed to use a room in a house, the court would probably find that person is not a tenant, but just a roommate. A roommate does not have any rights to the property. A roommate has only a personal license to use the property.
In Kiehm v. Adams, 126 P.3d 339 (HI, 2006), the Hawaii supreme court defined certain factors used to decide if a person is a roommate or a tenant.
- Does the tenant have the right to occupy a distinct and separate part of the parcel? If yes – they are a tenant; if not – probably a roommate.
- Does the tenant have the right to give up their lease, and allow another person to live on the property, or do they only have a personal privilege to live there? If the right is a personal privilege, they are probably a roommate only.
- Does the agreement allow the person to occupy the property for a clear period of time? If yes, the person is a tenant – with all the rights of the Landlord Tenant Code, but if not – they are a roommate only.
Applying these distinctions in practice can become complicated. But the difference can be very important to any dispute and outcome, because a roommate may have no rights in court, and may sometimes be evicted immediately without notice.