Hawaii’s ban on evictions is set to expire on Friday, jeopardizing the housing security of an estimated 10,000 families who’ve fallen behind on their rent during the COVID-19 pandemic and now face the possibility of being booted from their homes.

But the federal government’s sudden decision to reinstate a 60-day nationwide eviction moratorium through Oct. 3 has injected confusion into the situation, as well as new hope for tenants who are behind on their rent at a time when the state is forging ahead with plans to reinstate landlords’ powers to remove tenants for nonpayment.

The federal decision came four days after the federal eviction moratorium had lapsed after nearly a year and a half of extensions, raising fears that families could be left homeless as the delta variant of the coronavirus fuels a surge in infections across the nation.

Kalakaua Avenue Apartments Rental units Real Estate.
A new law temporarily requires landlords and tenants to try to resolve pandemic-related disputes over unpaid rent with a mediator. Cory Lum/Civil Beat

That could force people to move in with friends or family or into homeless shelters, both of which are congregate settings that can perpetuate the virus’ spread.

The Centers for Disease Control and Prevention noted that concern when it announced a new, more limited freeze on evictions in parts of the country that are experiencing “substantial” or “high” levels of coronavirus transmission.

It’s unclear who in Hawaii might qualify for this extension, but with COVID-19 infections on the rise statewide it’s likely that the federal order will buy at least some local tenants more time to figure out how to avoid eviction.

Precisely who the order protects is expected to be a moving target since it would apply only to people living in counties that have not had 14 consecutive days without substantial or high levels of coronavirus transmission.

State leaders were not immediately certain whether any of Hawaii’s counties meet the metrics for substantial or high spread as defined in the order. The Associated Press reported that it is expected to cover areas where 90% of the U.S. population lives.

The state is still assessing the new federal order to halt evictions for another 60 days to determine what impact it might have in the islands, said Cindy McMillan, a spokeswoman for Gov. David Ige.

Effect On Hawaii Is Unclear

Meanwhile, Hawaii landlords are readying to start serving eviction notices to tenants who are four or more months behind on their rent beginning Friday.

The governor enacted Hawaii’s first-ever freeze on evictions on April 17, 2020, after stay-at-home orders prompted by the pandemic put thousands of people out of work, causing many to fall behind on their rent.

Although it has helped renters keep their housing over the last 15 months, it’s been frustrating for landlords who haven’t been able to count on rental income. 

A new state law aimed at preventing a barrage of eviction cases from overwhelming the court system when the moratorium is lifted incentivizes landlords and tenants to try to resolve disputes with a mediator first before approaching the courts. 

State lawmakers have allocated funding to mediators who could help landlords and tenants negotiate payment plans, rent reduction, rent forgiveness or additional time for a tenant to secure a new place to live. 

Mediators also will focus on matching tenants who’ve fallen behind on their rent with federally funded emergency rental assistance programs that can pay up to a year’s worth of rent directly to landlords.

Tens of millions of dollars are still available to help qualifying Hawaii renters who have been financially affected by the pandemic afford to stay in their homes.

But state leaders say eviction diversion through mediation will be difficult to achieve in situations where the tenants were already behind on their rent before the COVID-19 pandemic struck or where the tenants earn too much money to qualify for rental assistance but are still struggling to pay their rent.

“I certainly hope that (the end of the eviction moratorium) is not going to drastically increase the level of homelessness, but it’s hard to tell,” said Kauai County Housing Director Adam Roversi.

“It’s a perfect storm of some people still being financially behind on their rent and landlords seeing the prices of their homes now probably double from what they were a year and a half ago,” he said. “Landlords are probably wondering to themselves if now’s a good time to sell and make a lot of money or if now’s a good time to raise their rent significantly. The reality is we don’t know what’s going to happen.”

Another hurdle is that some landlords are resistant to accepting emergency rental assistance in lieu of payment from their tenant because they are not paying taxes on their rental income and don’t want to come onto the radar of county government, according to state Rep. Troy Hashimoto. He helped write the legislation that temporarily changes the landlord-tenant code to incentivize mediation as an alternative to eviction.

In other cases there is a lack of awareness about the availability of emergency rental assistance or confusion about how to access it, which is something mediators say they can help with. 

In Hawaii mediation has historically been a successful tool to avoid court-ordered eviction in about half of all attempts, according to Tracey S. Wiltgen, executive director of The Mediation Center of the Pacific. Submitted

“Our data shows that most people are just one month behind in rent because I think most people have been responsible and tried to get caught up,” Hashimoto said.

“And I think if you’re a landlord you’re going to have to be reasonable at some point,” he said. “If your tenant’s only one month behind in rent, when you go before a judge and the judge is going to have the final say, I don’t know if it’s necessarily going to go in your favor.”

At first only landlords whose tenants are four or more months behind on their rent can serve their tenant an eviction notice.

Landlords must wait until Sept. 6 to serve an eviction notice for tenants three months behind on their rent, and Nov. 6 for tenants two months behind on their rent. Starting Jan. 6, landlords may start the process to evict any tenant who has missed one month of rent or more.

Landlords will be required to notify a mediation center if they wish to evict a tenant. Mediation centers will proactively reach out to tenants whose landlords want to terminate their rental agreement and encourage them to schedule a free 90-minute mediation session with their landlord and a mediator. 

Mediation sessions are supposed to be scheduled within 15 days of the tenant receiving notice of eviction and completed within 30 days of the notice, a timeline that essentially buys landlords and tenants an additional month to work out an agreement.

“I don’t want to make it sound like mediation is the perfect remedy for every case,” said ​​Tracey Wiltgen, executive director of The Mediation Center of the Pacific. “But what we’ve learned is that oftentimes there is a lot of miscommunication, mistrust and misunderstanding that can be worked through.”

Wiltgen estimated that roughly 1,500 to 2,000 tenants will receive eviction notices from their landlords in the first two months after the eviction ban lapses.

Rep Troy Hashimoto on house floor during recess.
State Rep. Troy Hashimoto says new legislation requiring landlords and tenants to mediate their disputes will hopefully curb the number of evictions and prevent a backlog of court cases. Cory Lum/Civil Beat/2018

Historically, mediation resolves about half of all landlord-tenant disputes in Hawaii, with about 22% of cases resulting in the tenant being allowed to stay in their housing and the other 28% resulting in the tenants agreeing to move out instead of being forced out through the eviction process, according to ​​Wiltgen.

But Wiltgen said she expects an even higher success rate for the eviction diversion mediation services available through next August. That’s because mediation services have historically lasted only about 25 minutes at the courthouse as part of the formal eviction process, whereas the pandemic-related mediation services last up to 90 minutes and can be done remotely or in-person in a more informal setting. 

Landlords and tenants do not need to wait for the eviction moratorium to expire to begin mediation, and Wiltgen said Oahu has seen an uptick in mediation for landlord-tenant disputes over the last six months.

But on Kauai, the pandemic-related mediation program offered by the nonprofit Kauai Economic Opportunity for landlords and tenants has not had any participants yet.

“With the deadline right around the corner, it kind of baffles me except that maybe it’s just the human nature of things,” said KEO chief executive officer MaBel Fujiuchi. “Sometimes we all wait to do things until we absolutely have to do it.” 

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