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Ending the Rental Agreement
Termination
Either the landlord or the tenant can terminate (end)
a rental agreement. The party who wishes to terminate the agreement
must, under normal circumstances, give the other party thirty
days written notice (
MCA 70-24-441 (2)
). The party initiating the termination should sign and
date the notice and keep a photocopy for thier records. In order
to prove the notice was received, or at least sent to the appropriate
address, it should be sent by certified mail. A notice sent by certified
mail is presumed to be delivered three days after the date of mailing,
regardless of whether or not the other party has actually recieved the
notice (
MCA 70-24-108
). If the notice is delivered in person, the initiating party
should obtain a signed receipt indicating the date the notice was received.
Additionally, a neutral third party could witness the delivery of the
notice and then sign a written statement of what they witnessed.
In the case of a month-to-month agreement, the notice
can be given any time during a tenancy, i.e. it need not be given
at the beginning of the month or with payment of rent (
MCA 70-24-441 (3)
). In the case of a lease agreement, the 30 day written
notice cannot terminate the rental agreement prior to the date specified
in the lease unless either the landlord or the tenant has violated
the conditions of the lease or state law. Landlords may terminate
a lease agreement with a five day notice if the
tenant has violated the same lease provision twice within a six month
period and was informed in writing of the noncompliance and given adequate
time to remedy the situation (70-24-422 (1)(d)). If the landlord has
breached the same provision twice and a six month period and has been
notified in writing of the breach, the tenant may terminated the agreement
with fourteen days notice (
MCA 70-24-406 (1)(a)(ii)
).
Security Deposit Refund
After proper notice has been given by either the
tenant or the landlord that the rental agreement is to be terminated,
there are a series of steps that need to be taken to ensure that
the tenant relieves all the security deposit due to her/him and that
the landlord is able to withhold any necessary amount from the deposit.
1) Within 7 days of the final termination of the
agreement, preferably after all or most of the tenant's belongings
have been removed and cleaning has been performed, a final inspection
of the premises must be performed (
MCA 70-25-201 (2)
). Ideally, both the tenant and landlord will be present
for this inspection, but if this is not possible then the landlord
may perform the inspection without the tenant being present.
2) After the inspection has been completed, the landlord
must deliver a written list of additional cleaning to be completed
by the tenant to bring the unit into the same condition as when
it was rented. The landlord must
give the tenant at least 24 hours to complete the required cleaning
(
MCA 70-25-201 (3)
). If, after the final inspection, there is no further
cleaning to be completed, no damages to the property for which the
tenant is liable, no unpaid rent and the tenant can prove to the
landlord that there are no outstanding utility bills for which the
tenant is responsible, the landlord must return the full amount of
the security deposit to the tenant within 10 days
(
MCA 70-25-202 (2)
).
3) After the tenant has had the opportunity to complete
any required cleaning and has returned the keys to the landlord,
the landlord must deliver to the tenant, within 30 days, an
itemized list of deductions from the security deposit along with any
portion of the security deposit remaining (
MCA 70-25-202 (1)
). If the tenant fails to deliver their forwarding
address to the landlord, this does not forfeit the tenant's claim
to the security deposit. If the landlord does not comply with this
requirement, s/he forfeits their right to withhold anything from the
security deposit for cleaning or damages (
MCA 70-25-204
).
Ocassionally a situation will arise where the landlord
and the tenant disagree as to a reasonable amount to be withheld
from the security deposit. To avoid as many of these conflicts as
possible, landlords should be sure to present every tenant with an
initial condition
of premises report
at the beginning of tenancy. Without the initial
condition of premises report, the landlord must be able to show
by "clear and convincing evidence" that the damage caused, or cleaning
required is the tenant's fault. Additionally, landlords are not permitted
to deduct money from the tenant's security deposit for "normal wear"
(
MCA 70-25-101 (1)
) or for cleaning that is performed on a cyclical basis
(
MCA 70-25-201 (3)
). For instance, if a landlord paints the walls after
every tenancy, s/he may not charge the tenant for the painting.
If a tenant disagrees with the landlord's itemized
list of security deposit deductions, they should send the landlord
a letter detailing why they dispute the deduction (e.g. the damage
was preexisting) and requesting the landlord send them an additional
refund. Alternatively, cases may occur where the security deposit is
insufficient to cover damages caused by the tenant and unpaid rent and/or
utilities. In this case, landlords must still send the departing tenant
an itemised list of deductions, but in place of a check for the remainder
of the security deposit, a bill for the additional charges. If the
landlord and the tenant cannot come to an agreement on the amount of the
deduction from the security deposit, a
Small Claims Court
judge may ultimately have to decide (see
Solving Problems
).
Eviction Procedures
If a landlord wishes to remove a tenant from a rental
unit, the steps s/he can take are limited to terminating the rental
agreement, asking the tenant to leave, and finally, taking the tenant
to court to get an eviction order. In no instance
can the landlord physically remove either the tenant or her/his possessions
from the dwelling, nor may s/he change the locks or turn off the tenant's
power or other services in order to force the tenant out. Doing
so entitiles the tenant, whether in the rental unit wrongfully or not,
to collect three month's rent from the landlord.
Before the landlord can bring an "
action for possession" (
a legal claim for the tenant's removal from the rental unit
), s/he must first terminate the rental agreement. The landlord
can terminate the rental agreement in the following ways (
MCA 70-24-422
):
1. On Three (3) days, after
notifying the tenant in writing if:
- rent is unpaid when due.
If the rent is paid within the three days then the notice is void.
The three day time is increased to fifteen days for situations requiring
the tenant to move a mobile home from rented space (
MCA 70-24-422, 2 (a) and (b)
).
- the tenant has physically
destroyed, defaced, damaged, impaired or removed any part of the premises.
The landlord does not have to give the tenant the opportunity to remedy
the situation in cases of property damage (
MCA 70-24-422 (3)
).
- the tenant is keeping
an "unathorized pet", (one not allowed by the rental agreement) on
the premises. The rental agreement terminates if the pet is not removed
from the premises within those three days. If the pet is removed then
the notice is void (
MCA 70-24-422, 1 (b)
). If this breach of the rental agreement occurs again within
six months, the landlord may terminate on five (5) days written
notice , with no opportunity for the tenant to correct the situation
(
MCA 70-24-422, 1(d))*
).
- there are unauthorized
people (people other than are on the contract, or that the landlord
has not authorized) residing in the rental. The rental agreement terminates
if the unathorized person is not removed within those three days.
If the unathorized person does leave within three days, the notice is
void (
MCA 70-24-422, 1 (c)
). If this breach of the rental agreement occurs again within
six months, the landlord may terminate on five (5) days written
notice with no opportunity for the tenant to remedy the situation
(
MCA 70-24-422, 1(d)
)*.
* These conditions do not apply to rental agreements
where a tenant rents space in a mobile home park but owns the mobile
home.
2. On Fourteen (14) days
after notifying the tenant in writing if:
· there has been a non-compliance with the terms
of the rental agreement. If the tenant does whatever is necessary
to remedy the non-compliance within the 14 day period, the notice
is void (
MCA 70-24-422, 1 (a)
). This can happen in just five days if the same act of non-compliance
occurred within the previous six months (
MCA 70-24-422, 1(d)
). Non-compliance involving unauthorized pets or
persons in the rental, as mentioned in section 1, only require a three
(3) day notice.
3. On Thirty (30) days
(in the case of a month-to-month agreement) after notifying the
tenant in writing that s/he wishes to terminate the agreement. The
landlord is not required to provide the tenant with a reason for the
termination if they give the tenant 30 days notice of the termination.
There is no law in Montana barring eviction during the winter. However,
termination of the rental agreement is not allowed, regardless of the
amount of notice given, if the termination is retaliatory or discriminatory
(see sections on
Retaliatory Conduct by Landlord
and
Discrimination
).
Termination on notice of less than thirty days, as mentioned
above, is allowed only for some non-compliance on the part of the
tenant. Landlords may recover actual damages for any non-compliance
bythe tenant. (
MCA 70-24-422, 4
) This means that if a landlord was forced to terminate the
rental agreement because of noncompliance by the tenant, the landlord
could recover, in court, actual losses which the landlord incurred.
For example, the landlord could charge the tenant for rent until the
unit was re-rented, assuming the landlord made a reasonable effort
to re-rent the property. Situations involving destruction of property,
wastage, and second offenses within six months do not require that
the tenant be given any "second chances" to remedy the situation.
If the tenant remains on the premises following
termination of the agreement, the landlord can take them to court
to get an eviction order. If the tenant doesn't move out upon legal
termination of the rental agreement, the landlord can sue the tenant
for her/his court costs, attorney's fees, and three times the amount
of rent due during the time the tenant occupied the rental unit after
the rental agreement was terminated.
If a tenant feels they're being unlawfully evicted
(see Retaliatory Conduct by Landlord
and Discrimination
), they may dispute the eviction by filing a counterclaim against
the landlord within 10 days of being served with the action for possession.
In the counter suit, the tenant is entitled to sue to retain possesion
of the premises and for up to three month's rent or treble damages,
whichever is greater.
As a tenant, if your landlord is preparing to file
an action for possession (eviction) against you, consider your
circumstances carefully before proceeding. If you are considering
contesting the eviction, you might want to consult with an attorney
before taking any action. If the conditions under which the landlord
terminated the rental agreement are legal and proper, move out. If not,
try to pursue your concern with the landlord. Document your attempts
to resolve the issue. If no agreement is possible and further negotiations
are useless, and if you feel the landlord is trying to evict you wrongfully,
pursue the problem in court.
It is important to note that Montana law states that
acceptance of rent by the landlord is a waiver
of a claimed breach only when the claimed breach is the nonpayment
of rent. In the past, the acceptance of rent by a landlord invalidated
any pending action for possession, but now, it only invalidates the
eviction procedure if the complaint against the tenant is for non-payment
of rent. The acceptance of partial payment of rent due does not constitute
a waiver of any right (
MCA 70-24-423
).
Reasons for Eviction (
MCA 70-24-436
)
Unlike rentals involving a landlord-owned
dwelling, rental agreements for spaces in mobile home parks may
only be terminated for good cause. Below is a list of reasons for
which a mobile home space rental agreements may be terminated. The
type of termination notice required for each reason appears in parenthases(
).
1. Nonpayment of rent, late charges or
common area maintenance fees as established in the rental agreement
( 15 day notice , pay or quit).
2. Late payment of rent, late charges or common area
maintenance fees three or more times in a 12-month period if the
landlord gave written notice after each non-payment incident (
30 day notice )
3. Violation of a mobile home park rule that creates
an immediate threat to the health and safety of any resident of the
park if the violation has not been remedied 24 hours after the violator
is given written notice of the violation (30 day notice ).
4. Two or more violations within a 12-month period of
any combination of one or more mobile home park rules, the violation
of which would have a significant adverse impact on the mobile home
park or its residents and which are so designated (30 day notice
).
5. Two or more violations within a 12-month period of
the same rule ( 30 day notice).
6. Two or more violations within a 12-month period of
MCA 70-24-321 (1)
or any violation of
MCA 70-24-321
(30 days).
7. Disorderly conduct that results in disruption of
the rights of others to the peaceful enjoyment and use of the premises
(30 day notice ).
8. Endangering other residents or park personnel, causes
substantial damage to the park premises.
9. Conviction of the mobile home owner or tenant of
the mobile home owner of violation of a federal, state, or local
ordinance when the violation is detrimental to the health, safety,
or welfare of other residents or the landlord of the mobile home park
or the landlord's documentation of a drug violation.
10. Changes in the use of the mobile home park land
( 6 month notice ).
11. A legitimate business reason (90 day notice
).
The Eviction Process. (
MCA 70-24-427
)
Under no circumstances can the landlord personally remove
the tenant. Additionally, the landlord cannot change the locks
on the rental or cause the interuption of essential services in an
attempt to oust the tenant.
The eviction process is as follows:
1. The landlord delivers a written
termination notice to the tenant.
2. The tenant refuses to obey the notice and remains
in the rental unit after the termination date.
3. The landlord files an action for possession with
the county justice court.
4. The sheriff's department delivers a summons and a
copy of the complaint to the tenant.
5. The tenant has ten days to respond to the complaint.
The tenant files her/his response with the court.
If the tenant fails to file a counter-claim within 10
days, the landlord can obtain a default judgment in his/her favor
and obtain a writ of assistance from the justice court to have the
tenant removed. The landlord takes the writ of assistance to the
sheriff's department to have the tenant physically removed. The landlord
can store any of the tenant's property and charge for reasonable moving
and storage costs.
6. If the tenant responds to
the complaint, the judge sets a trial date within twenty days.
7. After hearing testimony and arguments, the judge,
within five days, decides whether or not the eviction notice is legal.
If the judge decides in favor of the tenant, the tenant
can of course continue to stay at the rental unit and may collect
any damages awarded by the court.
If the judge decides in favor of the landlord, the tenant
must move out and pay the landlord any damages awarded by the court.
Retaliatory Conduct By Landlord
(
MCA 70-24-431
)
A landlord may not terminate the rental agreement, bring
or threaten to bring an action for possession, raise the rent, or
decrease services because the tenant:
1. Submitted a written complaint
to the landlord about damages affecting the habitability, health, or
safety of the rental unit, or
2. Submitted a written complaint to federal or state
authorities about damages affecting the habitability, health, or
safety of the rental unit, or
3. Joined a tenants' union or similar organization.
If the tenant provides evidence of having complained
or joined a tenants union within six months of the alleged retaliatory
conduct (eviction, raising the rent), then it creates a "rebuttable
presumption" that the landlord's conduct was in retaliation. This
means that unless the landlord can prove otherwise with clear and
convincing evidence, the court will assume that the action is in retaliation
and therefore illegal. This is why it is so important for tenants to communicate
with their landlord in writing. Oral requests for repairs are not enough
to prove retaliatory conduct.
The rebuttable presumption will not hold,
however, in the following cases:
1. The action requested by the
tenant involves remodeling or alterations required to bring the unit
into compliance with appropriate building or housing codes that would
require the tenant to move out of the unit.
2. The damages complained about by the tenant were caused
by the tenant.
3. The tenant is in default on the rent.
If the landlord takes retaliatory action against the
tenant, the tenant is entitled to sue for triple damages or three
months rent, which ever is greater, (also see the section on
suing in small claims court
).
Abandonment (
MCA 70-24-426
and
70-24-430
)
Occasionally a tenant will abandon a rental property,
leaving some of their personal possesions in the unit. If a landlord
has reason to believe that the property has been abandoned they must
follow the steps listed below. Failure to follow
the letter of the law when dealing with abandoned property may result
in a charge of illegal property seizure or theft by the tenant.
1. The landlord must reasonably believe
the tenant's property has been abandoned. Before taking action,
the landlord must wait at least five days from the time of the occurrences
which led her/him to believe the property had been abandoned.
3. The landlord must create an itemized list of the
property that has been abandoned.
4. The landlord may move and store the property in a
place of safekeeping. S/he must treat the property with reasonable
care.
5. Upon moving and/or storing the property, the landlord
must make a reasonable attempt to notify the tenant in writing that
the landlord is now in possession of the property and that it must
be removed. The landlord should send a notice by certified mail to the
tenant's last-known address and must state that at a specified time,
not less than fifteen days after mailing the notice, the property will
be disposed of if not removed.
6. The landlord must deliver a list of items the s/he
is holding to the local law enforcement office .
7. The landlord must make a reasonable effort to determine
if the property is secured or otherwise encumbered.
8. If the tenant retrieves the property, the landlord
is entitled to reasonable storage and labor charges if the property
is stored by the landlord, plus the cost of removal of the property
to the place of storage (
MCA 70-24-430
). If the tenant contacts the landlord within the fifteen days
specified in #5 above, and declares their intention to remove the
property but fails to do so after seven days, the property is considered
abandoned and the landlord may procede with the sale/disposal of the
property. The landlord is not responsible for loss or damage unless
it occurred as a result of her/his intentional or negligent actions.
If this is the case, the landlord is liable for actual damages. The
landlord does not have to release the property until any storage costs
owed to the landlord have been payed by the tenant.
9. If the tenant does not retrieve the property, the
landlord can either sell the property, or if the cost of storage
or sale exceeds the value of the property, destroy it. If the landlord
sells the property, s/he can deduct reasonable costs for moving, storing,
labor, and selling the property (as well as for rent owed or damages),
but must give any remaining proceeds to the tenant. If the tenant
cannot be found, the remaining money should be given to the county treasurer.
If the landlord chooses to attempt to sell the property, they need
follow specific guidelines for the sale. (
MCA 30-9-503, 3
)
Once a landlord has removed and stored abandoned property,
this creates two separate debts that the tenant owes to the landlord:
1)Any back rent, damages, or cleaning costs unpaid and 2) the cost
of removing and storing the tenant's property. If the tenant pays
the removal and storage costs to the landlord, the landlord must return
the tenant's property from storage. Under no circumstances can the landlord
withhold the return of the stored property in order to force the tenant
to pay any additional debts.
Abandoned Mobile Homes
(
MCA 70-24-432
)
The 2001 Legislature added this section to cover mobile
homes that have been abandoned on a rented lot. For the most part,
the procedure is the same as that for abandoned property in a rental
units, with the excption of a longer waiting period in which the owner
may claim the mobile home. In step #8 above, if the owner notifies the
landlord of their intent to remove the mobile home and fails to do so
after 20 days, the mobile home is considered to be abandoned and the landlord
may procede with the sale/disposal of the mobile home. All other procedures
are the same as specified above.
Section 8 Terminations and
Evictions
All Housing Assistance Payments contracts are for an
initial period of six months. During this time, both the landlord
and the tenant are barred from terminating the rental contract unless
the other party has repeatedly and severely violated the terms of the
lease or Montana law. Landlords may also terminate the rental agreement
during the initial six month period for other good cause, as long as
that cause is something the tenant did or failed to do. Landlords may
not terminate the agreement during the first year because they want to
use the unit for some other purpose or becuase the tenant won't agree
to a revision of the lease. The landlord may not terminate the rental agreement
for non-payment of MDOC's share of the rent.
After the first six months, a tenant or landlord may
terminate the rental agreement for any reason by delivering to the
landlord or tenant and MDOC a written notice of termination. The
notice must be delivered at least 30 days prior to the termination
but not more than 60 days. If a tenant moves out of the rental unit
before the end of the month, the landlord is entitled to keep the entire
month's rent portion from MDOC but must return a prorated amount of rent
to the tenant if the unit is re-rented before the end of the month.
If at any time the landlord sells the property to a
new owner, they must immediately notify MDOC of the sale. MDOC cannot
issue rent checks to the new owner until they have filled out the
required paperwork for the Section 8 program.
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Termination
Montana Residential Landlord Tenant Act