(a) If a unit owner rents or leases the unit and is in default for thirty days or more in the payment of the unit’s share of the regular assessments, the board, for as long as the default continues, may demand in writing and receive each month, or any other period of time for rental payment as provided in the lease, from any tenant occupying the unit or rental agent renting the unit, an amount sufficient to pay all sums due from the unit owner to the association, including interest, if any, but the amount shall not exceed the tenant’s rent due at the time of demand. The tenant’s payment under this section shall discharge that amount of payment from the tenant’s rent obligation, and any contractual provision to the contrary shall be void as a matter of law.

Terms Used In Hawaii Revised Statutes 421J-10.6

  • Association: means a nonprofit, incorporated, or unincorporated organization:

    (1) Upon which responsibilities are imposed and to which authority is granted in a declaration that governs a planned community;

    (2) That is a planned community association as defined under section 607-14; or

    (3) That is a homeowners' association, in which:

    (A) The voting membership is made up of ten or more parcel owners or their proxies, or a combination thereof; and

    (B) Assessments may be imposed that, if unpaid, may become a lien on the parcel. See Hawaii Revised Statutes 421J-2

  • Association documents: means the articles of incorporation or other document creating the association, if any, the bylaws of the association, the declaration or similar organizational documents and any exhibits thereto, any rules related to use of common areas, architectural control, maintenance of units, restrictions on the use of units, or payment of money as a regular assessment or otherwise in connection with the provisions, maintenance, or services for the benefit of some or all of the units, the owners, or occupants of the units or the common areas, as well as any amendments made to the foregoing documents. See Hawaii Revised Statutes 421J-2
  • board: means the executive board or other body, regardless of name, designated in the association documents to act on behalf of the association. See Hawaii Revised Statutes 421J-2
  • Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
  • Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
  • month: means a calendar month; and the word "year" a calendar year. See Hawaii Revised Statutes 1-20
  • Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
  • Mortgagee: The person to whom property is mortgaged and who has loaned the money.
  • Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
  • Person: means an individual, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof. See Hawaii Revised Statutes 421J-2
  • Quorum: The number of legislators that must be present to do business.
  • Unit: means a physical portion of the planned community designated for separate ownership or occupancy. See Hawaii Revised Statutes 421J-2
(b) Before taking any action under this section, the board shall give to the delinquent unit owner written notice of the board’s intent to collect the rent owed. The notice shall:

(1) Be sent both by first-class and certified mail;
(2) Set forth the exact amount the association claims is due and owing by the unit owner; and
(3) Indicate the intent of the board to collect such amount from the rent, along with any other amounts that become due and remain unpaid.
(c) The unit owner shall not take any retaliatory action against the tenant for payments made under this section.
(d) The payment of any portion of the unit’s share of regular assessments by the tenant pursuant to a written demand by the board is a complete defense, to the extent of the amount demanded and paid by the tenant, in an action for nonpayment of rent brought by the unit owner against a tenant.
(e) The board may not demand payment from the tenant pursuant to this section if:

(1) A commissioner or receiver has been appointed to take charge of the unit pending a mortgage foreclosure;
(2) A mortgagee is in possession of the unit pending a mortgage foreclosure; or
(3) The tenant is served with a court order directing payment to a third party.
(f) In the event of any conflict between this section and any provision of chapter 521, the conflict shall be resolved in favor of this section; provided that if the tenant is entitled to an offset of rent under chapter 521, the tenant may deduct the offset from the amount due to the association, up to the limits stated in chapter 521. Nothing herein precludes the unit owner or tenant from seeking equitable relief from a court of competent jurisdiction or seeking a judicial determination of the amount owed.
(g) Before the board may take the actions permitted under subsection (a), the board shall adopt a written policy providing for the actions and have the policy approved by a majority vote of the unit owners, as provided in the association documents, who are present in person or by proxy or as otherwise permitted by the association documents, at an annual or special meeting of the association or by the written consent of a voting interest equal to a quorum of the unit owners unless the association documents already permit the process.

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