[PART I. GENERALLY]

 

Revision Note

 

Part heading added pursuant to 23G-15.

 

666-1 Summary possession on termination or forfeiture of lease. Whenever any lessee or tenant of any lands or tenements, or any person holding under the lessee or tenant, holds possession of lands or tenements without right, after the termination of the tenancy, either by passage of time or by reason of any forfeiture, under the conditions or covenants in a lease, or, if a tenant by parol, by a notice to quit of at least ten days, the person entitled to the premises may be restored to the possession thereof in [the] manner hereinafter provided. [CC 1859, 939; am L 1864, p 14; RL 1925, 2778; RL 1935, 4013; RL 1945, 10401; RL 1955, 240-1; HRS 666-1; am L 1972, c 90, 8(a)]

 

Cross References

 

Acceptance of rent during litigation, see 666-5.

Jurisdiction of district court, see 604-5, 666-6.

 

Rules of Court

 

Raising of dispute as to title in summary possession action, requisites, see DCRCP rule 12.1.

 

Case Notes

 

Generally.

Statutory remedy not exclusive but is cumulative with ejectment. 3 H. 127 (1869); 26 H. 661, 664 (1922).

Lessor desiring to oust tenant for nonpayment of rent must pursue proper legal procedure or run risk of liability. 5 H. 548 (1886).

Requirements for surrender of lease by operation of law. 9 H. 384 (1894).

Pendency of prior action of ejectment not ground for abatement of subsequent summary possession action between same parties. 11 H. 416 (1898).

Holdover without protest after notice of increased rent. 30 H. 29 (1927).

Forfeiture of lease--waiver of right of, estoppel to enforce; relief against. 44 H. 543, 356 P.2d 379 (1960).

Surrender of lease by written document, when effective. 45 H. 445, 370 P.2d 463 (1962).

Termination of month-to-month tenancy by the landlord and award of possession to landlord by the court do not constitute impairment of First Amendment rights of the tenant, even if landlord is motivated by landlord's disagreement with the actions and speech of tenant. 54 H. 417, 508 P.2d 1217 (1973).

Pursuant to 521-3(b) in case of conflict between chapter 521 and this section, chapter 521 will control. 63 H. 110, 621 P.2d 971 (1980).

Commercial landlord not precluded from self-help eviction for nonpayment of rent. 67 H. 252, 686 P.2d 12 (1984).

Section cannot be used by a tenant against a landlord. 72 H. 117, 809 P.2d 1130 (1991).

Where defendant licensee's license terminated on last day of licensor's interest in property, on the following day, defendant was a trespasser without right to possession; as such, defendant was not entitled to any notice to vacate from landlord. 109 H. 296, 126 P.3d 339 (2006).

See 12 H. 291 (1899); 21 H. 270 (1912); 22 H. 129 (1914).

 

Acceptance of rent.

After knowledge of prior breach of condition is waiver of right to forfeiture. 3 H. 274, 285 (1871); 5 H. 242 (1884); 10 H. 408 (1896); 25 H. 253, 263-265 (1919); 43 H. 281 (1959). But where continuing covenants and continuing breaches, it operates as waiver only up to time of such acceptance. 10 H. 408 (1896); 12 H. 291, 297-298 (1899). Right to declare forfeiture for breach of covenant against making alterations without consent and to pay taxes waived by acceptance of rent with knowledge of breach. 25 H. 253, 263-265 (1919). Waiver of forfeiture does not imply waiver of breach of covenant and vice versa. 25 H. 253, 265 (1919).

 

Conditions and covenants.

Condition against subletting not broken by joint occupancy of one room by physician as physician's office where lease was of land alone and allowed tenant to remove buildings upon termination of lease. 3 H. 127 (1869). Original covenants no part of lease for additional term, unless so stipulated. 3 H. 127, 139 (1869). Under the lease; lessor agreed to pay "the taxes levied on" and the lessees "all other charges", held sewer rates are payable by lessees. 20 H. 335 (1910). Where lessor has right to withdraw a portion from lease, refusal by lessee, after notice, to part with possession is a breach and grounds for forfeiture and landlord may proceed under this chapter. 24 H. 165 (1917). Covenant to pay taxes, water rates, and assessments includes assessments for street improvements and failure to pay same constituted breach of covenant. 25 H. 178 (1919). Covenant requiring lessee to make such repairs as are required by law, not broken unless such repairs are required by law. 25 H. 253, 256 (1919). Covenant to repair not breached where lease required tenant to repair all defects of which notice should be given, within thirty days after such notice. 25 H. 253, 258 (1919). Covenant against assignment not broken by execution of mortgage covering leasehold (where mortgagor retains possession). 26 H. 63, 64-66 (1921). Restrictions against assignments, not favored and are liberally construed in favor of lessees. 26 H. 118, 120 (1921). Words "Permitted assigns" used in habendum clause held no restriction against assignments. 26 H. 118 (1921). Assignment and sublease distinguished. 26 H. 489 (1922). Government leases--liability of lessees, under covenant to pay taxes. 30 H. 334 (1928). Covenant to deliver possession breached by sublessee's refusal to quit and renders lessee liable to all damages occasioned therefrom. 30 H. 853 (1929). For items of such damage, see 30 H. 853 (1929). "Renewal or Extension" construed. 30 H. 871 (1929). Covenant against cutting or destroying India and algaroba trees except in case of necessity, permits removal of such trees for purpose of locating a houselot, garden plots, cattle corrals, hog pens, and chicken runs. 31 H. 720 (1930). Lease prohibiting waste not breached by removal of cactus in order to grow pineapples. 31 H. 720 (1930). Covenant to repair or replace, breached. 39 H. 448 (1952).

In lease of dwellings, there is implied warranty of habitability and fitness for use intended. 51 H. 426, 462 P.2d 470 (1969). Implied warranty of habitability applies to unfurnished as well as furnished dwellings. 51 H. 473, 462 P.2d 482 (1969).

Subleases and assignments; rights and liabilities of parties for payment of rent. 51 H. 493, 464 P.2d 285 (1970).

 

Damages.

Measure of damages recoverable by owner for prospective lessee's breach is excess of rent over fair market value. 56 H. 507, 542 P.2d 1265 (1975).

 

Defenses.

Equitable defenses. 19 H. 190, 191 (1908); 26 H. 642, 644-647 (1922).

Tenant may show that subsequent to commencement of tenancy landlord's title passed to another upon foreclosure of mortgage. 27 H. 631 (1923).

Retaliatory eviction. 59 H. 104, 577 P.2d 326 (1978).

Tenant may assert breach of implied warranty of habitability as defense, when. 61 H. 144, 598 P.2d 161 (1979).

 

Demand.

For payment of taxes is not prerequisite to the right to declare a forfeiture for their nonpayment. 15 H. 632 (1904); 21 H. 123, 127 (1912); 25 H. 253, 262 (1919). Demand for rent before claiming a forfeiture may be waived in the lease. 15 H. 632 (1904).

 

Forfeiture.

Forfeiture clause strictly construed. 3 H. 127 (1869); 25 H. 253 (1919). Breach of condition subsequent in a deed does not work a forfeiture but gives the grantor the right to declare a forfeiture. 11 H. 330 (1898). Acceptance of a lease from a stranger for a part or the whole of the demised premises is ground for a forfeiture of the prior lease. 13 H. 637 (1901). Breach of covenant does not work a forfeiture unless lease contains provision for forfeiture and re-entry. 26 H. 279 (1922).

 

Issues and proof.

Plaintiff must prove that relation of landlord and tenant exists or has existed and that plaintiff is entitled to immediate possession. 21 H. 270, 273 (1912); 22 H. 739 (1915).

Primary question is restoration of possession. 22 H. 129 (1914).

 

Jurisdiction.

Only where relation of landlord and tenant confessedly existed. 3 H. 768, 775-776 (1877); 4 H. 154, 157 (1879); 6 H. 407 (1883); 22 H. 129, 130 (1914); 24 H. 176 (1918); 24 H. 546, 555 (1918). Denial of tenancy and setting up title hostile to plaintiff's title oust jurisdiction of district magistrates. 4 H. 154, 157-158 (1879); 22 H. 129 (1914); 24 H. 176 (1918); 24 H. 546, 555 (1918). In action to recover rent tenant may in certain cases challenge landlord's title to land. 10 H. 289 (1896). Defendant may show relation of landlord and tenant has ceased to exist, and that landlord's title has terminated; but, instant title comes into question, jurisdiction of district court ceases. 21 H. 270, 273 (1912). See 9 H. 225 (1893). Sufficiency of affidavit required by Sup. Ct. rule 14 to support plea that title to real property is involved. 18 H. 640 (1908); 23 H. 65 (1915); 29 H. 336 (1926); 30 H. 160 (1927).

 

Notice.

If forfeiture is to be enforced tenant is entitled to notice. 13 H. 637 (1901). Notice to quit essential if lease voidable at landlord's option. 3 H. 127 (1869); 3 H. 274 (1871). After ten days' written notice to quit, tenant at will has no further right to possession. 26 H. 661 (1922).

 

Parties.

Lessor's grantee may maintain action for summary possession upon a forfeiture for breach of condition. 3 H. 274 (1871); 10 H. 408 (1896); 20 H. 712 (1911). Vendee at foreclosure sale may bring summary proceedings where lease made subject to mortgage and to be annulled upon foreclosure sale. 5 H. 98 (1884). Mortgagee of lessee properly joined as codefendant when in possession. 12 H. 291 (1899). Government may bring summary proceedings to recover possession of crown land upon breach of covenant to pay rent. 18 H. 640 (1908). Summary proceedings cannot be maintained by owner of undivided interest without alleging lessee is not owner of other interest. 19 H. 65 (1908). See also 22 H. 174 (1914).

 

Recoupment.

30 H. 434 (1928).

 

Relief against forfeiture.

Equity will relieve against forfeitures for nonpayment of rent. 1 H. 102 (1853); 6 H. 435 (1883); 10 H. 408, 411 (1896); 21 H. 123, 126 (1912). Other grounds for relief. 25 H. 494, 502-503 (1920). In absence of fraud, accident, mistake or surprise equity will not relieve for breach of covenant to repair. 27 H. 812 (1924).

 

Cited: 13 H. 385, 386 (1901); 37 H. 14, 15 (1944); 41 H. 124, 135 (1955).

 

 

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