Hawaii Supreme Court Upholds Right of Condominium Association to Vacate Residents for Maintenance

Most people involved with condominium associations understand that sometimes it is necessary to undertake repairs and maintenance of the common elements which might displace residents. For some reason, there have been a few recent instances where residents have challenged the right of an association to force the owners to vacate their units for this purpose. These cases have been complicated by the fact that very few condominium declarations and bylaws have provisions expressly authorizing the Board to force residents to vacate their apartments.

The Hawaii Supreme Court in Association Of Apartment Owners Of Ahuimanu Gardens v. Flint, just issued a decision that confirms the right of a condominium association to require owners to vacate the unit for termite fumigation of the common elements. John A. Morris of our office wrote the brief on behalf of the association. The Hawaii Supreme Court said:

Despite its lack of express authority in the Bylaws, the Board's broad authority to do all things necessary for the operation of the Association includes the authority to require Flint to temporarily vacate her unit so that termite infestation in the common elements may be treated by tent fumigation of the building in which she owns and occupies a unit.

Unfortunately, the The Hawaii Supreme Court decision is unpublished, which means it cannot be cited in other cases [Haw. Rules of App. Proc. 35(c)]. Even if it cannot be cited in other proceedings, the decision does provide some information about how the Court would rule in similar situations.

Recodification Available Online

As we have been mentioning for the last few years, the Recodification of the Condominium Property Act will be effective on July 1, 2006. The new Chapter of the Hawaii Revised Statutes will be designated Chapter 514B. The Hawaii State Legislature has updated its website to include the Recodification. This is important because this version contains some minor revisions made by the Revisor of Statutes. For instance, where the statute says the "effective date of the act", the Revisor of Statutes has replaced it with July 1, 2006.