Warranty of Habitability:  The three words every landlord fears.

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Landlords are so afraid of those three words, “warranty of habitability,” that collectively they make sure those words do not even exist in the

Handbook for the Hawaii Residential Landlord-Tenant Code,

published online by the Office of Consumer Protection, a division of the State Department of Commerce and Consumer Affairs.  Although the Hawaii Office of Consumer Protection claims to have published this book to help all consumers, it is clear this allegedly all-inclusive rendition of the landlord-tenant laws of Hawaii utterly fails to make tenants aware of the fact that they have a right to a warranty of habitability from the landlord, even if the contract is an oral one from month to month.  The Hawaii Office of Consumer Protection gaslights you with the following statement:

“[This handbook] is designed to be a useful guide for all Hawaii residents and attempts to address the questions and concerns most frequently expressed by landlords and tenants.”

No it’s not designed to be a useful guide for Hawaii tenants.  It’s a publication clearly skewed to make it look like all rights concerning the property belong to the property owner alone and the tenant has very limited remedies only concerning maintenance issues, only concerning health issues, and only concerning safety issues connected to maintenance or health issues resulting from failure to maintain the physical property properly.

The official Hawaii handbook intentionally misleads all consumers into believing that the only right a tenant has is with regard to maintenance problems and related health issues.  It utterly fails to notify tenants that they have legal rights when their landlord fails and refuses to protect them from harm by third parties on the premises.

This inalienable right of every tenant, regardless of how poor they are, was addressed for the first time by the Hawaii Supreme Court in Lemle v. Breeden[1]Basically, the people rented an expensive place that was supposed to have “little-grass-shack” effects but the renters were never told this included rats.  The landlord treated the premises for rats but the rats remained.  Because those rats remained, the landlord had damaged the renters.  Those renters had a right to rent property that came with a “warranty of habitability.”  Even if it was an oral contract, that warranty exists regardless of whatever other claims the landlord may make insofar as his rights that may exist under landlord-tenant law.

No one has the right to rent you uninhabitable property,
Regardless of whatever makes it uninhabitable.
You are entitled to refund of all rent paid during the period of uninhabitability.
You are entitled to punitive damages when gross negligence is proven.

That’s the lie through omission that is clearly reflected in the Hawaii Office of Consumer Protection’s handbook; that the only rights to safety a tenant has is with regard to maintenance and health.  Nowhere in that handbook is a tenant made aware that he has an inalienable right, protected by the 9th Amendment to the U.S. Constitution, to enjoy premises that are habitable, regardless of any of the other terms of the contract, whether written or oral.

What constitutes “habitable” must be determined on a case-by-case basis.
This is why the tenant must sue both at law and in equity.
Make sure your complaint says so.

I shall provide my current circumstance as an example of what can constitute uninhabitable:

My current apartment was totally satisfactory for three and a half years, until it suddenly became uninhabitable because my landlord has no problem with allowing an ICE dealer (meth amphetamine dealer) to move in next door.  My landlord was utterly unconcerned that this criminal tried to sell his meth amphetamine to me in exchange for sex.  My landlord was totally unconcerned with the drug dealer’s attempted burglary and attempted rape that I managed to stop using a self-defense technique.  And my landlord had no idea why both my rear tires were slashed.

According to the Handbook for the Hawaii Residential Landlord-Tenant Code, I have no legal recourse from the landlord constructively abusing me through use of a third party.  If he failed to provide me with a new refrigerator or fix the broken water faucet, I would have legal recourse.  If he maintained piles of feces on the premises violating health codes, then I would have legal recourse.  However, this intentionally misleading handbook makes no mention whatsoever of warranty of habitability.

Once I informed the landlord there is an ICE amphetamine dealer living on the premises and once the landlord refused to fulfill his legal obligation to ensure my safety from harm that could be done to me by that drug dealer,

I SUDDENLY HAD A SECURITY INTEREST IN HIS PROPERTY.

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The moment my landlord breached his warranty of habitability by subjecting me to the dangerous situation I have and continue to suffer at the hands of this dangerous drug dealer who continues to dwell in this house, he constructively evicted me.  The term “constructive eviction” essentially is a legal fiction that describes the fact that, from the moment I was first terrorized by the drug dealer on August 12, I wanted to flee the premises.  However, when you live on an island and you are an honest person, no one else will rent to a person fleeing imminent crime.  That’s because most people are cowards.

  • My security interest in the property came into existence when landlord breached his warranty of habitability.

 

  • My security interest in the property exists in the final judgment of the court that can be abstracted in the county deed records against the property so that it must be satisfied before the property can ever be sold again.

 

  • My security interest in the property now prevents the landlord from evicting me or harassing me for any reason whatsoever until a final judgment of the court because he had already constructively evicted me, even though I remain present paying the rent.

 

  • Despite my security interest, I must continue paying rent until a final judgment of the court.

 

In the meantime, because the law is the law, I must keep paying my rent.  This cannot be avoided.  So I notified the landlord that because I was unable to pay the rent during the month his negligence caused my tires to be slashed and therefore needed to be replaced, my deposit shall pay my rent for that month until a final judgment in my lawsuit is rendered.  I also notified landlord that I shall continue paying my rent month to month until a judgment is rendered by the court.

  • THE LANDLORD NO LONGER HAS A RIGHT TO EVICT ME.

 

  • HIS BREACH OF HIS WARRANTY OF HABITABILITY GAVE ME AN AUTOMATIC SECURITY INTEREST IN HIS PROPERTY.

 

  • I’M SAFE UNTIL I PROVE IN A COURT OF LAW THAT HE DID HARM ME.

 

All I need to do is gather the evidence, which I immediately started documenting right after the drug dealer attacked me.  First impressions right after the crime occurred are what the court calls “excited utterances” and they are admissible as evidence in a court of law, defeating the hearsay rule.

I have some experience with pro se litigation (being your own lawyer), but in most states today, you will find the courts are becoming pro-se friendly and will actually provide you with a form of complaint to file.  This is true in federal courts too.  All you need to do is get the forms from the court clerk, including the form whereby you prove to the court you don’t have money for filing fees and service of process.  Take them home and attach pages or re-type the whole documents and you take it back to the court and you get a file-marked copy for your own file.  You look up the court rules through online searching.

You are not a lawyer, so you don’t have to worry about losing your license to practice billing.  If you made a mistake, you find out what mistake you made, and you go home and correct it and then go back to court and move forward.

Even poor people have rights.  But we don’t have those rights if we do not assert them.  You don’t have to know everything a lawyer knows.  All you have to do is make sure you document everything you can about your case, take note of who can be called as a witness, subpoena those witnesses, plan questions that reveal what these witnesses know about the situation, and present your case in court as best as you can.

It’s only the land of the free for those who have the courage to defend themselves from abuse.  When landlord destroys your life because he is not fulfilling his legal obligation to keep you safe on his premises, you must fight back.  If you don’t fight back, then you help landlords abuse other tenants.

THE BEST WAY TO STOP LANDLORD ABUSE
IS TO DEMAND YOUR WARRANTY OF HABITABILITY.
YOU HAVE A RIGHT TO BE SAFE FROM ABUSIVE THIRD PARTIES ON THE PREMISES.
ESPECIALLY WHEN THEY ARE DANGEROUS DRUG DEALERS.

That particular set of circumstances, of course, may require you to sue the police department as well.  I called the police department, I wrote to the police department, and only after I filed a complaint against the police department with the police commission did a police detective even visit me to matter of factly tell me that unless I provide conclusive evidence of drug dealing, they are going to assume I’m a liar and I was told they must protect the drug dealers rights instead.  The detective’s sidekick told me they gotta follow the rules cause it’s the Constitution, you know.  You would think I was visited by a couple of thugs instead of police officers.  Oh, and I was also told serve and protect is not in the county’s budget.  And yes, the police detective confirmed that if I bought a bag of ICE in order to provide him with proof that there is drug dealing on the premises, he would arrest me for possessing the illegal drug.  Yes, the police department must be sued.

But believe me, by the time you haul the landlord’s ass into court and go at it with him, then you will catch the attention of some lawyer with the hefty punitive damages that the county will provide to you because the police department failed and refused to protect and serve you.

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That’s how justice is done.  Don’t get mad.  Get even.  And until you can get a lawyer, just do the best you can.  Practice makes perfect.  It beats the hell out of being thrown into the street on your ass when you did nothing wrong.

Your rights are superior to the rights of any drug dealer.
Don’t let any crooked cop tell you otherwise.

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[1] 462 P.2d 470 (1969), affirmed, rehearing denied December 17, 1969.

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