|1. My Landlord wants to "evict" me. What right does the Landlord have to do this? |
Your Rental Agreement (or Term Lease) must be formally terminated (ended) before you can be evicted (removed from the premises). For your Landlord to terminate the Rental Agreement, you must have received a Notice of Termination from the Landlord. Notice:
1. Were you given notice of violation of your Rental Agreement?
2. Is the Notice proper?
(The following applies to Rental Agreements wherein the dwelling unit is rented.
Does not apply to mobile home space rental wherein the mobile home itself is not rented)
(The following applies to Rental Agreements wherein only a mobile home space is rented,
|2. What should I do when I receive a proper Notice terminating my Rental Agreement? |
|3. How much time do I have before I am physically evicted? |
You will have 10 days to "answer" the court papers that you will, or have received. You must file your Answer to the Landlord's complaint against you, together with the required court filing fees, within this 10 day period. If you do not file an Answer within that time, the Landlord may request an entry of default, wherein the Landlord almost always automatically wins the case. Or, if you appear in court but fail to convince the judge that your Landlord is acting contrary to law, your Landlord will win the case. Either way you will be liable for the Landlords court filing fees and process service fees AND the Landlord will obtain from the court a "writ of assistance" wherein the court orders local law enforcement to assist the Landlord in physically removing you from the premises very soon after the court date. In most cases, you will be given less than one hour to gather up what possessions you can and leave the Landlords premises. You will not be allowed to return to the premises without the consent of the Landlord and only for the sole purpose of removing your remaining possessions. If you fail to make proper arrangements with the Landlord to remove your possessions within the allowed time, the Landlord may remove and store your property. You will not be allowed under law to obtain your property until you have paid for the costs of removal and storage.
|4. Under what circumstances can my Rental Agreement be terminated? |
Refer to the chart of "Common Termination Requirements" above. Generally, your Rental Agreement can be terminated:
If the Rental Agreement is terminated, the Landlord may file an action for possession (eviction) and a claim for the rent due and a claim for actual damages for any breach of the Rental Agreement. MCA 70.24.427
|5. Are Landlord lockouts legal in Montana? |
Your Landlord cannot lock you out, throw out or remove your belongings, change the locks or shut off your utilities without a Writ of Possession issued by a local court. If your Landlord short-circuits the legal process and fails to have you served with papers that give you the opportunity to appear in court, you should consult an attorney. However, if your Landlord has complied with the law and you have been evicted or you have abandoned the premises, your Landlord will lock you out, may remove your belongings and can terminate utility service. MCA 70.24.428
|6. What happens if your Rental Agreement expires, but you continue to occupy the premises and pay rent? |
If you remain upon the rental premises after the Rental Agreement expires with the Landlord's knowledge and consent and paid rent, which the Landlord accepted, you are now considered to be a month-to-month Tenant. Your Landlord must give you a written 30 day notice to terminate a month-to-month tenancy. MCA 70.24.429
|7. We do not think we did anything wrong, so can the Landlord still terminate our tenancy? |
Usually, if your Landlord alleges that you have failed to comply with the terms and conditions of the Rental Agreement, you will have a specific period of time to comply or pay, hence the names of the notices, "Comply or Quit" or "Pay or Quit". How much time you have depends on the alleged violation:
|8. What are my obligations before moving out? |
If you have a typical month-to-month tenancy, you are required by Montana Law to deliver to your Landlord a 30 Day Notice of your intent to terminate the tenancy.
1. If you have paid a security deposit to your Landlord, additional duties are imposed upon you, depending on the specific terms governing your security deposit, if you expect to have the security deposit funds returned to you without deduction. Typically, these duties include returning the keys to the premises, leaving the premises clean and free of debris and without damage, excepting normal wear and tear. You should also provide your Landlord with your forwarding address so that your security deposit refund can be mailed to you.
2. If you have a term lease agreement, you will need a legally sufficient reason to terminate that agreement before the natural end of the lease. If the Landlord has failed to properly maintain the premises, you may have a sufficient reason to end a lease early, provided you have given the correct notice:
3. If the Landlord has not broken the term lease in any way, then you cannot legitimately terminate the agreement. If you choose to move out before the natural end of the lease, you may be held responsible for all the rent remaining due under the lease provisions.
|9. Can I find a new Tenant to take my place in the lease agreement? |
1. You may not sublet the premises to another Tenant without the Landlord’s written consent.
2. If the Landlord does not consent, the new Tenant you find will have no right to live on the premises.
3. Even if the Landlord does consent and accepts the new Tenant, you may still be responsible if the Tenant you found is designated a subtenant by the Landlord. If the new Tenant breaks the lease in any way at a later date, the Landlord can still hold you responsible. It would be better if the Landlord let you out of the lease completely and rented to the new person directly, not using a sublease agreement. However, the law does not require the Landlord to let you out of the lease prior to its natural ending date.
|10. How much can the Landlord raise my rent? |
While the decisions to pay the rent requested for any given premises or simply do business with another Landlord who offers you more value for your rent dollar is completely up to the Tenant, the rate of rent for your rented premises is determined at the sole discretion of the Landlord. MCA 70.24.201(2a).
|11. When can the Landlord raise my rent? |
1. Month-to-month tenancy: If you are renting month-to-month, the landlord is required to give you a 30 day advance written Notice of any rent increases.
2. Term Lease Agreement tenancy: If you have a written lease and it does not contain a provision allowing a rent increase, your rent cannot be increased during the term of the lease, unless you and the Landlord mutually agree to do so.
|12. What if I cannot afford the rent increase? |
If you cannot afford or simply do not agree with a rent increase, you should find another, less expensive place to reside and give your present Landlord a written 30 day Notice that you intend to vacate the premises.
|13. My Landlord won’t fix what he’s supposed to fix. What can I do about it? |
The Tenants options under Montana Law depend on the nature of the required repair:
1. If the maintenance not being preformed as required by the Landlord materially affects human health and safety or renders the rental premises uninhabitable per MCA 70.24.303, the Tenant may use Montana’s ‘repair and deduct’ law (MCA 70.24.406) to compel the Landlord to correct the problem within the allotted time. If the Landlord fails to correct the problem, the Tenant may terminate the Rental Agreement and vacate the premises or have the problem corrected by a qualified workman and deduct the cost (which cannot exceed one month’s rent) from the next rent payment.
2. However, if the repair results in the Landlords purposeful or negligent failure to supply essential services that the Tenant is due under the Rental Agreement, the Tenant may elect to either procure reasonable amounts of heat, hot water, running water, electricity, gas or other essential services and deduct the actual and reasonable cost from the next rent payment OR procure reasonable substitute housing during the period of the Landlords non-compliance in which case the Landlord will not be due rent from the Tenant. (MCA 70.24.408).
|14. What do I need to do to be able to ‘repair and deduct’? |
1. You must deliver to the Landlord a written Notice of the necessary repair which indicates that if the Landlord fails to complete the repair within 14 days after the Landlords receipt of the Notice (within 3 days if the neglected repair creates an emergency), that the Rental Agreement will terminate in 30 days. These conditions apply to Term Leases as well as to month-to-month tenancies. MCA 70.24.406(1a)
2. The Landlord must fail to correct the problem in the time allotted.
These ‘repair and deduct’ provisions do not apply if the damage which requires repair was caused by the act or omission of the Tenant, Tenants family members or any other persons who were on the rental premises with the consent of the Tenant. Tenants must maintain their rental premises per the requirements of MCA 70.24.321 and their Rental Agreement.
|15. What about repeated situations of the Landlord's failure to maintain the premises? |
If the same problem occurs within 6 months, you may terminate your Rental Agreement or Term Lease by delivering your Landlord a written 14 day Notice, indicating the exact date you will move out and stop paying rent (which must be at least 14 days after the date of the Notice), together with why you are terminating.
|16. What is a Security Deposit? |
A Security Deposit is value given by a Tenant as part of the Rental Agreement, in money or its equivalent, to a Landlord to secure the payment of rent, utilities, late charges, penalties or payment for damage to and cleaning of the rented premises. These funds are used to protect the Landlord from unforeseen losses caused by:
|17. Can I use my Security Deposit to pay the last months rent? |
ABSOLUTELY NOT. Tenants who attempt to convert their Security Deposit to a payment of part or all of their final months rent due are liable to incur additional late charges and penalties. Accordingly, if you paid “last months rent” at the beginning of your tenancy, that sum was the payment of rent, not a sum to secure the payment of rent and therefore not a Security Deposit.
|18. What can I do when I move in to protect my security deposit? |
When you first rented the premises, your Landlord should have provided you with a signed statement of the condition of the rental unit immediately prior to your occupancy. You should review the statement carefully to make sure that everything is accurate. If, even after you have moved in, you find that there are damages to the rental premises that are not included, write them in. Take pictures of the premises to document the condition. Finally, send a copy of the corrected statement back to your Landlord and keep a copy for yourself.
|19. What happens if I move in and the Landlord does not provide the statement of condition report? |
In absence of a statement of the present condition of the premises report prepared and furnished to the Tenant at the beginning of the tenancy, the Landlord is barred from deducting any amounts for damage or cleaning from the Tenants Security Deposit after the termination of the tenancy unless the Landlord can establish by clear and convincing evidence that the damage occurred during the Tenants occupancy and was caused by the Tenant, Tenants family, licensees or invitees. MCA 70.25.206(3)
|20. Do I have to clean before I move out? |
Yes. You must leave the rental unit in the same condition as when you moved in. However, you are not responsible for the ordinary wear and tear caused by living there or for normal maintenance performed by the Landlord.
|21. Can my landlord deduct cleaning expenses from my security deposit? |
Yes. Your Landlord can charge you for any cleaning expenses necessary to return the rental unit back to the condition it was in when you first rented it. However, your Landlord cannot deduct cleaning expenses from your Security Deposit until you are provided written Notice of the cleaning that remains to be done after you have vacated. MCA 70.25.201(3)
After you receive the Notice, you have 24 hours to complete the required cleaning. If you have not finished the cleaning in 24 hours, your Landlord can deduct the remaining cleaning expenses from your Security Deposit.
Your Landlord does not have to notify you about cleaning that needs to be done if you have moved out without giving proper Notice. Additionally, if you have damaged the property, your Landlord is not required to notify you before making the necessary repairs and deducting the costs from your Security Deposit.
|22. How long does my landlord have to return my security deposit? |
In general, your Landlord has 30 days from the termination of your Rental Agreement to give you:
|23. Is there any way to get my Security Deposit back sooner than 30 days? |
Yes. Your Landlord must return your full Security Deposit within 10 days after the Landlords final inspection if there are no deductions because there were:
|24. What happens if my Landlord does not mail to me an accounting of why he kept all or part of my Security Deposit? |
If your Landlord does not give you a written explanation, within 30 days after the termination of your Rental Agreement, of deductions made because of rent due, damage or cleaning costs, the Landlord is barred from deducting any costs for damage or cleaning from your security deposit. The Landlord may, however, deduct for unpaid rent, unpaid late charges, unpaid utilities and unpaid penalties due under the Rental Agreement without sending you any accounting. MCA 70.25.203
|25. What should I do if my Landlord wrongly keeps all or part of my Security Deposit? |
If you disagree with the amount your Landlord has deducted from your Security Deposit or your Landlord has not accounted for your Security Deposit in the time allotted, you should send a letter to the Landlord explaining why you disagree with the amount and request that the Landlord promptly send you the additional money or a written denial of your claim. Keep a copy of the letter you send to your Landlord. If your Landlord fails to refund to you the additional amount, you may have to file an action in Justice Court. MCA 70.25.204
|26. What do I need to show the court to get all or part of my Security Deposit back? |
You should tell the court if you did not get a written statement of the condition of the property upon renting the unit. If you did not get such a statement, it is up to the Landlord to clearly show that any damages or cleaning charges were caused by you.
You also should inform the court if you did not get a written explanation of why your deposit was not returned. Your Landlord cannot keep any part of your Security Deposit for damage or cleaning if the Landlord fails to give you a written explanation within 30 days of the end of your Rental Agreement.
If you received the required Notices but disagree with your Landlord’s deductions, you should be prepared to show that your Landlord is wrong by getting written statements or testimony from current or former tenants and anyone else with knowledge of the rental unit’s conditions when you moved in or moved out. You may also want to show pictures of the unit from before you moved in and/or after you moved out. The burden of proof is on the Landlord to show that you caused any damages to the unit.
|27. Can I get attorney fees if I win my case? |
Yes. The judge may award you attorney fees if you win. However, the judge may also award attorney fees to the Landlord if the Landlord wins.
|28. What should I do if I cannot pay my rent when it is due? |
COMMUNICATE WITH YOUR LANDLORD. Let your Landlord know that you will be late and make arrangements to pay on a specific date. You may be asked to include a late fee if your Rental Agreement requires it. Most Landlords will understand a temporary problem and work with you to overcome it. The most common error tenants commit is failing to communicate with their Landlord. Without an explanation from the tenant, the Landlord can only assume that you do not take your financial obligations seriously. After all, you did not even bother to make a phone call! However, they are not required to assist you. Even if you are able and willing to pay after the due date and grace period, if any, the Landlord is not required to accept your late payment. Worse yet, if you have been in violation of your Rental Agreement regarding other non-rent related matters, whether you received a legal notice or not, non-payment of rent is the easiest way for the Landlord to terminate your Rental Agreement and replace you with a tenant who will keep their Rental Agreement promises.
|29. Now I have received a ‘Pay or Quit’ Notice, so how long do I have to save my tenancy? |
COMMUNICATE WITH YOUR LANDLORD. Attempt to make arrangements wherein the Landlord agrees to accept your late rent payment on or before a specific date. The notice will require you to pay the rent due, in full, on or before a specified date. Sometimes this actual date can be ignored by you without consequence. The law requires you to pay in full three days after you have received or are presumed to have received the notice (if you rent the dwelling unit you live in) or seven days later (if you rent a mobile home space but not the mobile home itself). All Tenants are presumed by law to have received a notice three days after it was mailed or when you actually became aware of the notice, whichever comes first. Begin counting the three or seven day period the day after whichever date applies to your specific situation. Often, weekends and national holidays will not count in this determination. If you have failed to make alternative arrangements with your Landlord, but are able to pay in full prior to the final day, you can continue your tenancy without fear of termination.
|30. My Landlord sent me a ‘5 Day Notice of Termination’ (applies to dwelling unit rentals) OR a ’30 Day Notice of Termination’ (applies to mobile home space rentals) because I have paid rent late often in the past. What can I do to save my tenancy? |
If the Notice was proper per MCA 70.24.422(1e) for 5 Day Notice or MCA 70.33.433(1d) for 30 Day Notice, there is ABSOLUTLY NOTHING YOU CAN DO to continue as a Tenant of the Landlord. In Montana, as well as many other states, the law makes it clear that a Landlord does not have to tolerate Tenants who cannot meet their financial obligations in a timely fashion as stipulated in the Rental Agreement.
|31. What happens to personal property left behind when you move? |
If you leave your belongings behind in your apartment or house or on your mobile home space after you have moved away and at least 5 days have passed since you vacated and the Landlord reasonably believes that you have abandoned your belongings, the Landlord may remove your possessions from the rented premises and store them somewhere else. The Landlord has no obligation to inform you where your possessions are stored. Your Landlord may reasonably reach the conclusion that you have moved out and do not intend to return and therefore have abandoned your possessions for any one or more of the following reasons: if you have returned your door keys, if you have had the power turned off to the rental unit, if you have stopped paying your rent, if you no longer appear to be residing on the rented premises or if you have made no effort to contact the Landlord and explain your situation. The Landlord should make a list of your abandoned belongings and is obligated to take reasonable care of them. You will not be able to regain possession of your property until you have paid the costs of removal and reasonable storage charges. The Landlord is under no obligation by law to attempt to inform you of the removal and storage of your property by any given date. Accordingly, storage costs charged daily may become considerable. By law, once the property is in storage the Landlord shall:
|32. Can the Landlord throw away my personal property? |
If the Landlord has completed the tasks required by law and listed above, the Landlord is allowed to dispose of the property by one or more of the following methods:
|33. What if my property has considerable value? |
The Landlord may pay for the cost of removal, storage, Notice and sale with the money made from the sale of your property. The sale proceeds can also be used to pay for any rent or money damages you owe the Landlord. The Landlord must give you the rest of the proceeds from the sale, if any, together with a statement of what was sold and for how much. If the Landlord cannot locate you and you fail to contact the Landlord, the remaining proceeds shall be deposited with the local county treasurer. If this money is not claimed within 3 years, it shall become an asset of the general fund of the county and the Tenant shall have no further claim to the proceeds.
|34. What should I do if I receive Notice from my Landlord that he has removed and stored my property? |
You should respond immediately and in writing, prior to the 15 day deadline specified in the Notice. If you do not remove the property within 7 days after your response, the law conclusively presumes that you have abandoned your property and your right to regain possession of your property is terminated.
If you go to retrieve your belongings from the Landlord within the time specified, you must pay a reasonable daily storage fee or the actual cost of storage together with the cost of removal before you will be allowed to regain possession of the property.
The Landlord is not responsible for any loss to you resulting from the removal or the storage of your possessions unless the landlord intentionally or negligently damages the property.
|35. Can the Landlord take my personal property for past due rent? |
The Landlord cannot keep your personal property in exchange for rent owed without your permission. However, if the property is sold at a private or public sale in accordance with Montana Law, the Landlord may keep that portion of the proceeds of the sale necessary to pay past due rent or damages owed to the Landlord.
|36. Does my Landlord have the right to enter my rented dwelling unit? |
YES. MCA 70.24.312. Your Landlord has the right to enter the premises in order to:
|37. Does my Landlord have to give me Notice before entering my rented dwelling unit? |
YES. MCA 70.24.312(3) Except in the case of emergency, your Landlord must notify you 24 hours before the Landlord intends to enter your dwelling unit. The Notice can be either written or verbal.
|38. As long as my Landlord gives me proper Notice, can the Landlord enter my dwelling unit at anytime? |
NO. Your Landlord may only enter at reasonable times.
Additionally, your Landlord cannot abuse the right to enter your dwelling unit in a way that harasses you.
|39. What if there is an emergency? |
In the case of an emergency, the Landlord can enter your dwelling unit without giving you 24 hours Notice.
|40. Can I refuse my Landlord’s request to enter my dwelling unit? |
NO. You cannot unreasonably refuse to allow your Landlord to enter your dwelling unit. If you do refuse a reasonable request, your Landlord may:
|41. Can I change or add a lock without my Landlord’s permission? |
NO. MCA 70.24.312(5). You cannot change or add a lock to your rented premises without written permission from your Landlord.
MCA 70.24.424(2) If you do change or add a lock without your Landlord’s permission, your Landlord may:
|42. What can I do if my Landlord enters unlawfully, makes unreasonable requests or harasses me with repeated requests for entry? |
Your Landlord cannot enter your rental unit unlawfully, make unreasonable requests to enter or use right to enter in a way that harasses you. MCA 70.24.410
If your landlord does any of these things, you may:
Information directly from The Montana Landlords Association mlaonline.org