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Landlord rented tenant a single family house on an oral month to month lease for $1000 a month.  Some months later, tenant’s boyfriend moved in and paid $500 of the rent.  Tenant direct deposited both portions of the rent into landlord’s bank account.  A couple of years later tenant notified the boyfriend to move out,  which he disregarded.  The landlord and tenant then terminated the rental agreement effective the end of the following month.  The tenant moved out, but the boyfriend stayed.  Tenant terminated the utility service and landlord instructed the utility companies not to restore service.  Landlord then sued the tenant for trespass and tenant counterclaimed for unlawful eviction for the termination of utilities.

The trial court ruled that there was no privity between landlord and the boyfriend and that once the lease with the tenant terminated any sublease or license between the boyfriend and the tenant also terminated.

The case was appealed to the state supreme court which ruled that the boyfriend was a licensee of the tenant, and that his license was terminated when the tenancy was terminated. At common law, a roommate is not considered a sublessee.  In contrast to a lease, a license in the law of real property conveys no estate in land, is not assignable, and is revocable at the will of the licensor.  this court listed several factors that a court should consider in determining whether an agreement is a lease or a license: (1) Most importantly, does the grantee have the right to occupy a distinct and separate part of the premises? (2) Is the grantee’s right to possession assignable? (3) Is the agreement for a fixed term?

A license is revocable at the will of the licensor. Second, a license cannot continue to exist after the licensor’s own interest in the land has been extinguished.  Therefore the boyfriend became a trespasser when tenant revoked lis license to stay there, and certainly when she terminated her lease.  As a trespasser, the boyfriend was not entitled to any notice to vacate from the landlord under the landlord tenant law.

KIEHM v. ADAMS, 126 P.3d 339 (2005) 109 Hawai’i 296.  Supreme Court of Hawai’i.  December 30, 2005.

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