THE SENATE

S.B. NO.

1388

THIRTY-FIRST LEGISLATURE, 2021

S.D. 2

STATE OF HAWAII

H.D. 1

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO THE LANDLORD-TENANT CODE.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that, due to the coronavirus disease 2019 (COVID-19) pandemic, tens of thousands of Hawaii residents have lost their jobs and have been unable to pay their rent. The governor has issued proclamations related to the COVID-19 emergency to provide protections for tenants struggling to pay rent during this time, including an eviction moratorium that prohibits any eviction from a residential dwelling unit for failure to pay rent. The legislature finds, however, that while this moratorium has been extended at various times throughout the course of the COVID-19 pandemic, at some point, the eviction moratorium will expire. Therefore, a balanced approach is needed to encourage communications and facilitate mediation between landlords and tenants to help reduce the large number of summary possession cases that are expected to follow the expiration of certain COVID-19 emergency proclamations.

Accordingly, the purpose of this Act is to:

(1) Extend the period for a notice of a summary possession action from five business days to fifteen calendar days;

(2) Require landlords to provide specific information in the fifteen calendar day notice to tenants and require the notice to be provided to a mediation center that offers free mediation for residential landlord-tenant disputes;

(3) Require landlords to engage in mediation and delay filing a summary possession action if a tenant schedules or attempts to schedule a mediation;

(4) Restrict when a landlord may exercise remedies, depending on the number of days that have elapsed following the expiration date of the governor's final eviction moratorium and the amount of rent due;

(5) Appropriate funds for the judiciary to contract for mediation services; and

(6) Repeal the amendments made to Hawaii's residential landlord-tenant code on December 31, 2022, or one year after the expiration of the governor's final eviction moratorium, whichever is sooner.

SECTION 2. Section 521-68, Hawaii Revised Statutes, is amended to read as follows:

"521-68 Landlord's remedies for failure by tenant to pay rent. (a) A landlord or the landlord's agent [may], any time after rent is due, may demand payment thereof and notify the tenant in writing that unless payment is made within a time mentioned in the notice[,] as provided in subsection (b), not less than [five business] fifteen calendar days after receipt thereof, the rental agreement [will] shall be terminated. If the tenant cannot be served with notice as required, notice may be given to the tenant by posting the same in a conspicuous place on the dwelling unit[.], and the notice shall be deemed received on the date of posting. If the tenant remains in default, the landlord may thereafter bring a summary proceeding for possession of the dwelling unit or any other proper proceeding, action, or suit for possession[.], subject to subsections (b) through (i). The notice required by this section need not be given if the action is based on the breach of a mediated agreement or other settlement agreement.

(b) The fifteen calendar day notice shall provide, at a minimum, the following:

(1) The name of the landlord or the landlord's agent and the landlord's or landlord's agent's contact information, including, if possible, phone number, electronic mail address, and mailing address;

(2) The address of the dwelling unit subject to the rental agreement;

(3) The name and contact information of each tenant, including, if possible, phone number, electronic mail address, and mailing address;

(4) The monthly rental rate of the dwelling unit;

(5) The current amount of the rent due as of the date of the notice, after applying all rent paid from all sources;

(6) Whether the landlord or landlord's agent has applied for rental assistance or been contacted on behalf of the tenant by any agency providing rental assistance;

(7) That any rental assistance received by the landlord or landlord's agent has been credited to the tenant's amount due;

(8) That a copy of the fifteen calendar day notice being provided to the tenant is also being provided to the mediation center to be identified by the landlord and, in accordance with subsection (d), in order for the mediation center to contact the landlord and tenant to attempt to schedule a mediation regarding the nonpayment of rent;

(9) That the mediation center will provide proof to the landlord that the notice was received and provide confirmation when mediation is scheduled;

(10) That the landlord or landlord's agent may file an action for summary possession if the rent due is not paid and if mediation is not scheduled within fifteen calendar days after the tenant's receipt of the fifteen calendar day notice, regardless of whether the scheduled mediation session occurs within the fifteen calendar days;

(11) A warning in bold typeface print that:

(A) If mediation is not scheduled within fifteen calendar days, after receipt of the fifteen calendar day notice, regardless of whether the scheduled mediation session occurs within the fifteen calendar day period, then the landlord may file an action for summary possession after the expiration of the fifteen calendar day period;

(B) If mediation is scheduled before the expiration of the fifteen calendar day period, regardless of whether the scheduled mediation session occurs within the fifteen calendar day period, then the landlord cannot file an action for summary possession until thirty calendar days after receipt of the fifteen calendar day notice; and

(C) If the fifteen calendar day notice is mailed, receipt of notice shall be deemed to be two days after the date of the postmark;

(12) Notice that the eviction may be subject to additional requirements and protections under state or federal law and that the tenant is encouraged to seek the tenant's own legal advice regarding the tenant's rights and responsibilities; and

(13) That the landlord or landlord's agent shall engage in mediation if mediation is scheduled.

If the fifteen calendar day notice is mailed, receipt of the notice shall be deemed to be two days after the date of the postmark.

(c) The fifteen calendar day notice required under this section may be substantially in the following form:

"I, ____________________, am the landlord or landlord's agent for the property at ____________________ and the contact information of the landlord or landlord's agent is: ____________________.

The tenant(s) are: ____________________ and the contact information of the tenant(s) is: ____________________.

Under the terms of the lease for the property, you are obligated to pay rent of $____________________ per ____________________.

The current amount of rent due as of the date of this notice is $____________________.

I applied to, or was notified that you applied to, ____________________ (names of programs or agencies) for rental assistance with respect to rent. Any rental assistance received has already been included in calculating the amount stated in the preceding sentence.

As required under section 521-68, Hawaii Revised Statutes, this notice is also being sent to ____________________ (appropriate mediation center) and they will contact you to schedule mediation regarding the nonpayment of rent. You may also contact this mediation center to schedule mediation and the contact information of the mediation center is: ____________________.

IF MEDIATION IS NOT SCHEDULED WITHIN FIFTEEN (15) CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE, REGARDLESS OF WHETHER THE SCHEDULED MEDIATION SESSION OCCURS WITHIN THE FIFTEEN (15) CALENDAR DAY PERIOD, THEN THE LANDLORD MAY FILE AN ACTION FOR SUMMARY POSSESSION AFTER THE EXPIRATION OF THE FIFTEEN (15) CALENDAR DAY PERIOD. HOWEVER, IF YOU DO SCHEDULE MEDIATION BEFORE THE EXPIRATION OF THE FIFTEEN (15) CALENDAR DAY PERIOD, REGARDLESS OF WHETHER THE SCHEDULED MEDIATION SESSION OCCURS WITHIN THE FIFTEEN (15) CALENDAR DAY PERIOD, THEN THE LANDLORD MAY NOT FILE AN ACTION FOR SUMMARY POSSESSION UNTIL THE EXPIRATION OF THIRTY (30) CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE. IF THIS FIFTEEN (15) CALENDAR DAY NOTICE IS MAILED, THE RECEIPT OF THE NOTICE IS DEEMED TO HAVE OCCURRED TWO DAYS AFTER THE DATE OF THE POSTMARK. IF THIS NOTICE WAS POSTED ON YOUR PREMISES, RECEIPT IS DEEMED TO HAVE OCCURRED ON THE DATE OF POSTING.

If we reach an agreement before the filing of an action for summary possession, whether through mediation or otherwise, then I will not bring an action for summary possession against you, except as provided in any agreement we may reach. I will be required to note the status of our mediation or settlement effort and proof of my sending this notice to the mediation center in the action for summary possession.

PLEASE BE AWARE THAT WE MAY BOTH BE SUBJECT TO ADDITIONAL STATE OR FEDERAL REQUIREMENTS OR PROGRAMS REGARDING EVICTION AT THE TIME OF THIS NOTICE. YOU ARE ENCOURAGED TO SEEK YOUR OWN LEGAL ADVICE AS TO YOUR RIGHTS AND RESPONSIBILITIES.

As landlord, I must engage in mediation with you, if you choose to schedule mediation.

(Date of notice and signature)"

(d) Landlords or their agents shall provide the fifteen calendar day notice to mediation centers that offer free mediation for residential landlord-tenant matters. The mediation center shall contact the landlord or landlord's agent and the tenant to schedule the mediation. If a tenant schedules mediation within the fifteen calendar day period, regardless of whether the scheduled mediation session occurs within the fifteen days, the landlord shall not file a summary proceeding for possession until the expiration of thirty days from the date of receipt of the notice. If the tenant schedules mediation, the landlord shall participate.

(e) The summary possession complaint for nonpayment of rent shall include:

(1) A document or documents from the mediation center that show proof that the landlord provided a copy of the required fifteen calendar day notice to the mediation center;

(2) A representation as to whether the landlord or landlord's agent and tenant participated in, or will participate in, any scheduled mediation; and

(3) If mediation is pending, the date on which the mediation is scheduled.

(f) If the mediation has not occurred or been scheduled for a future date, as of the return hearing date on the summary possession complaint, the court may, in its discretion, and based on a finding of good cause, order a separate mediation.

(g) If there is any defect in the fifteen calendar day notice required in subsection (b) provided by the landlord, and the court determines the defect was unintentional and immaterial, the court may allow the landlord to cure the defect without dismissing the action for summary possession.

(h) No landlord may bring a summary proceeding for possession for a tenant's failure to pay rent except pursuant to this section and as follows:

(1) Beginning on the first day after the expiration date of the final eviction moratorium through the thirtieth day after the expiration date of the final eviction moratorium, the rent due is equal to or greater than four months' rent;

(2) Beginning on the thirty-first day after the expiration date of the final eviction moratorium through the ninety-first day after the expiration date of the final eviction mortarium, the rent due is equal to or greater than three months' rent;

(3) Beginning on the ninety-second day after the expiration date of the final eviction moratorium through the one hundred fifty-second day after the expiration date of the final eviction mortarium, the rent due is equal to or greater than two months' rent; and

(4) Beginning on the one hundred fifty-third day after the expiration date of the final eviction moratorium through the three hundred sixty-fifth day after the expiration day of the final eviction moratorium, the rent due is equal to or greater than one month's rent.

For purposes of this section, "final eviction moratorium" means an emergency proclamation or supplementary proclamation, or any extension thereof, issued by the governor related to the coronavirus disease 2019 pandemic that prohibits any eviction from a residential dwelling for a failure to pay rent.

[(b)] (i) A landlord or the landlord's agent may bring an action for rent alone at any time after the landlord has demanded payment of past due rent and notified the tenant of the landlord's intention to bring [such an] the action."

SECTION 3. There is appropriated out of the            of the State of Hawaii the sum of $           or so much thereof as may be necessary for fiscal year 2022-2023 for the judiciary to contract for mediation services required by this Act.

The sum appropriated shall be expended by the judiciary for the purposes of this Act.

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date; provided that any contract in effect prior to the effective date of this Act that is subsequently renewed or extended on or after the effective date of this Act shall comply with the requirements of this Act.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on May 6, 2137; provided this Act shall be repealed on December 31, 2022, or one year after the expiration date of the final eviction moratorium identified in section 2 of this Act, whichever is sooner; and section 521-68, Hawaii Revised Statutes, shall be reenacted in the form in which it read on the day prior to the effective date of this Act.



 

Report Title:

Housing; Landlord-tenant Code; Remedies; Notice; Failure to Pay Rent; Mediation; Judiciary; Appropriation

 

Description:

Extends the required period for a notice of summary possession from five business days to fifteen calendar days. Requires landlords to provide notice with specified terms to a tenant and enter into mediation with the tenant. Delays when a landlord may seek possession of a dwelling unit if the tenant schedules or attempts to schedule mediation. Requires landlords to provide the notice to mediation centers that offer free mediation for residential landlord-tenant disputes. Restricts when a landlord may exercise these remedies depending on the number of days that have elapsed following the expiration date of the governor's final eviction moratorium and the amount of rent due. Appropriates funds for the judiciary to contract for mediation services. Repeals 12/31/2022, or one year after expiration of the governor's final eviction moratorium emergency supplementary proclamation related to the coronavirus disease 2019 pandemic, whichever is sooner. Effective 5/6/2137. (HD1)

 

 

 

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