666-21 Rent trust fund. (a) At the request of either the tenant or the landlord in any court proceeding in which the payment or nonpayment of rent is in dispute, the court shall order the tenant to deposit any disputed rent as it becomes due into the court as provided under subsection (c), and in the case of a proceeding in which a rent increase is in issue, the amount of the rent prior to the increase; provided that the tenant shall not be required to deposit any rent where the tenant can show to the court's satisfaction that the rent has already been paid to the landlord; provided further that if the parties had executed a written instrument agreeing that the rent could be withheld or deducted, the court shall not require the tenant to deposit rent into the fund. No deposit of rent into the fund ordered under this section shall affect the tenant's rights to assert either that payment of rent was made or that any grounds for nonpayment of rent exist under this chapter.

(b) [Repeal and reenactment of subsection on June 30, 2020. L 2015, c 101, 4.] If the tenant is unable to comply with the court's order under subsection (a) in paying the required amount of rent to the court, the landlord shall have judgment for possession and execution shall issue accordingly. The writ of possession shall issue to the sheriff, deputy sheriff, police officer, or independent civil process server from the department of public safety's list under section 353C-10, ordering the sheriff, deputy sheriff, police officer, or independent civil process server to remove all persons and possessions from the premises, and to put the landlord, or the landlord's agent, into full possession of the premises.

(c) The court in which the dispute is being heard shall accept and hold in trust any rent deposited under this section and shall make payments out of money collected as provided in this section. The court shall order payment of the money collected or portion thereof to the landlord if the court finds that the rent is due and has not been paid to the landlord and that the tenant did not have any basis to withhold, deduct, or otherwise set off the rent not paid. The court shall order payment of the money collected or portion thereof to the tenant if the court finds that the rent is not due or has been paid, or that the tenant had a basis to withhold, deduct, or otherwise set off the rent not paid.

(d) The court, upon finding that either the landlord or the tenant raised the issue of payment or nonpayment of rent in bad faith, shall order that person to pay the other party reasonable interest on the rent deposited into the trust. [L 1984, c 211, 1; am L 1989, c 211, 10; am L 1990, c 281, 11; am L 2012, c 142, 11; am L 2013, c 116, 19, 25(18)]

 

Case Notes

 

Assuming that possession of leased premises and rent to be paid into the trust fund are property interests protected under the due process clause, this section does not offend due process as tenants are afforded an opportunity to challenge summary possession and motions for the establishment of a rent trust fund. 107 H. 73, 110 P.3d 397 (2005).

As the imposition of a rent trust fund--requiring tenants to pay rent in exchange for possession for the duration of the dispute--appears rationally related to achieving the purpose of providing landlords with an expeditious alternative to eviction proceedings and tenants with an opportunity to maintain possession so long as rent is paid when properly due, this section does not violate the equal protection clauses of the U.S. and Hawaii Constitutions. 107 H. 73, 110 P.3d 397 (2005).

Before ordering that a rent trust fund pursuant to this section be established, the trial court should have held a hearing on the claim of defendant, as tenant of outdoor spaces rented to tenant by plaintiff, that defendant was not allowed to take possession of the spaces. 107 H. 73, 110 P.3d 397 (2005).

 

 

Previous Vol13_Ch0601-0676 Next