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Solving Problems
Landlords and tenants should be able to resolve problems quickly, amicably,
and at relatively little cost. Obviously, disputes will rarely
arise if both parties understand their rights and fulfill their obligations.
If a problem does arise, both parties should proceed carefully, calmly
and deliberately. This way, the chances are increased that the problem will
be resolved properly.
It is always better to make
requests for repairs or complaints in writing, rather than orally,
whether face-to-face or over the telephone. Written documents are more
likely to get an appropriate response, and if the case goes to court,
they provide evidence and show that the parties have tried normal avenues
of redress before bringing the dispute to court.
If negotiations are failing, one or both of the parties may want
to consult with someone who can provide assistance. This might be a consumer
advocate or an attorney (see Montana Resource
Directory
). A consumer advocate may be a law student, paralegal, or trained
lay person. While not able to represent you in court or give legal advice,
s/he may be experienced in tenant-landlord conflicts and can give helpful
information to you. In contrast, an attorney can provide legal advice,
and if necessary, represent you in court. Remember, there are
no attorneys allowed in Small Claims Court
unless both parties are represented
.
Ultimately, if you cannot resolve a dispute, you will be forced
or take the issue to court where a judge will make a decision in the
case. In court, written records of events are preferable, in order to
avoid having the dispute turn into one party's word against the other.
Standard Complaint Letter
Many times, the most appropriate first step towards resolving
a problem is to write a request/complaint letter. In general, it should
include the following.
1. A concise statement of the problem(s).
2. A chronology of previous attempts to resolve the problem(s)
and responses to those attempts.
3. A clear and well-defined statement requesting that the problem
be resolved. This should explain the specific course of action requested
and a specific time period within which the request must be met.
4. A clear indication as to what will be done if the request is
not met within the time specified.
Letters should also include a full name, address, phone number,
signature, and date. Always keep a photocopy for your records. When
sending out the letter, go to the post office, request a certificate
of mailing, and then staple the certificate to your copy of the letter.
This certificate proves that the letter was mailed.
In Montana, if the notice is made with a certificate of mailing
or by certified mail, service is considered to have been made three days
after the date of mailing. (
MCA 70-24-108, 1c
)
In previous editions of our Tenant/Landlord
Guide
, it has recommended sending notices by certified mail, which requires
a signature for delivery. If the recipient refuses to sign for the letter,
then there would be an official record (on file with the post office)
that s/he did not receive the letter. Therefore, a certificate of mailing,
which requires no signature, is the better of the two choices.
Sample complaint letters can be viewed in our
Sample and Model Forms page
.
Consulting an Attorney
Attorneys can give expert advice, negotiate, and represent their
client in court. To find an attorney, check to see if your university,
employer, union, or other community group provides legal assistance. You
can also check the yellow pages or the Bar Association (call the Lawyer
Referral Service at (406) 449-6577).
1. Consultation and Advice. An attorney can
provide an assessment of the legal options for action in a particular
case. Consultation involves an office visit. Some lawyers do not charge
for the first visit, but ask before setting up an appointment.
2. Negotiation. A lawyer can help you negotiate via a letter,
phone call, or meeting.
3. Litigation. If you go to court, an attorney can advise
or represent you.
Small Claims Court
Occasionally after the termination of the
rental agreement
, or during the term of the rental agreement, either the tenant or
landlord may decide that the other party owes them money. Usually, in
the case of the tenant, this money is for a wrongfully witheld
security deposit
, meaning the tenant feels that the landlord has witheld money from
the security deposit for pre-existing problems or that the landlord has
witheld an unreasonable amount for deductions that would otherwise be acceptable.
On the landlord's side, they may feel that the former tenant's security
deposit was not enough to cover the costs of cleaning the unit and making
repairs after the tenant vacated, or that the former tenant owes them for
unpaid rent or utilities beyond the amount of the security deposit. Claims
may also be filed for personal property that is being wrongfully witheld
by another party. Claims may also be filed in Small Claims Court for diminished
fair rental value or actual damages incurred due to the other parties
noncompliance with the rental agreement or Montana law.
If you feel that your current or former landlord or tenant owes
you money or property the first step is
always to contact the other party via a certified letter and request
that they pay you the amount you feel is owed. Standard procedure
is to give the other party 10 days to respond to the request, after which
period a claim may be filed in either Civil or Small Claims Court, depending
on the nature of the claim (see below). If the other party refuses to pay
before the 10 day period has expired, a claim may be filed immediately.
Where to File
Depending on what the damages you are seeking are for (i.e. unpaid
rent, wrongfully witheld security deposit, property damage) you will
file your claim in either the Small Claims Court (SCC) or in Civil Court.
The SCC is a division of the county Justice Court and the two will usually
be located in the same office. You may file a claim in SCC if you feel
that the other party owes you money or property belonging to you up to
an amount of $3000. Tenants seeking wrongfully witheld security deposits,
and landlords seeking unpaid rent, utilities, or cleaning fees should file
in SCC. Also, landlords or tenants who feel that the other party is in
possesion of property belonging to them worth less than $3000 should file
in SCC.
Claims for monetary reimbursement for damaged personal property
must be filed in Civil Court, regardless of the amount of compensation
owed. You should also file in Civil Court if your claim arose due to neglegence
on the part of the other party.
Another thing to keep in mind when filing a claim in either SCC
or Civil Court is in which county you will be filing.
Claims must be filed in the county where the defendant lives or where
he/she has a place of business or in the county where the events in the
dispute occurred . In any case, the defendant must be able to be served
in the county where you file your claim.
Filing in Small Claims Court
After you have sent a certified demand letter to the other party
and they have either refused to pay verbally or in writing, or have not
responded to the letter after 10 days, you may file a claim in SCC. Be
sure to bring a copy of the letter and the mailing recipt with you when
you go to the courthouse to file your claim and also to your court date,
as these are your evidence of having attempted to get the other party
to pay you voluntarily.
To file a claim in SCC you must pay a filing fee of $15. This
fee may be added to the amount of your claim if the court finds in your
favor. After paying the fee you will be asked to fill out a few forms
to initiate the SCC process.
First you must fill out the Complaint form.
You will need to know the correct and complete name and street address
of the person you are filing against, a post office box is not sufficient.
You must have this information so that the other party can be served
with an order to appear in court. Also on the Complaint form you will
need to state the reasons for filing your claim and the amount of money
or the property you want to recover. The clerk at the SCC should be able
to help you in filling out the Complaint form but they cannot give you legal
advice.
After you have filled out the Complaint form
, you must have the other party (the defendant) served with an order
to appear in SCC for the trial. The clerk or judge will set a time and
date for the trial when you file your claim. The trial date will be set
for sometime from 10 to 40 days after you file. As the Plaintiff, you are
responsible for making sure the defendant is served with the order, however,
you may not serve the defendant yourself. Most people opt to have the
county Sheriff serve the defendant, but you may decide to have a process
server or some other disinterested third party perform the service. You
should be able to find local process servers in the Yellow Pages. A disinterested
third party may serve the defendant if they are at least 18 years of age.
If you have the Sheriff serve the defendant, they will require a $30 dollar
deposit plus an additional $20 for each additional defendant. The charge
for service will vary depending on how many trips the Sheriff must make
to serve the defendant and how far away the defendant lives. After the defendant
has been served you may get some of your money back or be asked to pay more.
Fees for process servers will vary with location. However you decide to have
the defendant served, they must receive the summons at least five days prior
to the court date.
Counter-Claim and Removal
Once the defendant has been served with the order to appear, they
may decide that the plaintiff actually owes them money or property.
In this case, the defendant may file a counter-claim against the plaintiff
at the SCC. Counter-claims must arise from the same transaction as the
original claim. For example: a tenant files a claim against her ex-landlord
for wrongfully witholding her security deposit. The landlord, however,
feels that the former tenant's security deposit was not enough to cover
reasonable costs for the amount of time he spent cleaning the apartment
and so decides to file a counter-claim for cleaning charges above the amount
of the security deposit.
Counter-claims must be filed and served on the plaintiff at least
72 hours prior to the date of the trial. Counter-claims may not exceed
$2500. There is a $10 fee for filing a counter-claim but a defendant
who files a counter claim will not be required to pay the $10 apperance
fee.
The defendant may also choose to have the case removed from the
SCC to the Justice Court. In Justice Court both parties may choose to
be represented by attorneys and the defendant may request a jury trial.
If the defendant chooses to have the case removed to Justice Court,
they must first pay the SCC a $10 removal fee and then pay the Justice
Court a $30 filing fee. These costs may be recovered by the prevailing
party, as well as attorney's fees. If the defendant does not have the
case removed to the Justice Court they give up their right to be represented
by an attorney and their right to a jury trial.
At the Trial
Before you go to your own trial at the SCC, you may want to sit
in on another trial so that you can get a feeling for the procedure and
know what to expect at your own trial. All SCC procedings are open to
the public unless one of the parties has requested otherwise.
It is important to show up to your SCC trial whether you are the
plaintiff or the defendant. Failure to appear by either party could result
in a default ruling for the other party. If you will not be able to make
it on the time and date of your trial, you may notify the SCC clerk and
request that the date be moved.
Before the trial, the defendant, if they have not filed a counter-claim,
must pay the SCC a $10 appearance fee. At the trial, the Judge will first
swear in the plaintiff and ask him/her to give the facts of their case.
Facts should be presented in the order in which they occurred. The plaintiff
may give testimony, provide any relevant material evidence and call witnesses
to make her/his case. Then the defendant is sworn in and gives his/her
testimony, provides evidence and calls all of her/his witnesses. Both
parties have the opportunity to cross-examine the other party and his/her
witnesses and ask questions about any evidence presented.
The burden of evidence is on the plaintiff
to prove that the defendant owes him/her the money or property claimed.
However, the defendant should be prepared to show that they do not owe the
plaintiff the money or property. If the defendant has filed a counter-claim
against the plaintiff, they should be prepared to show that the plaintiff
owes them that amount of money or property.
Attorneys are not allowed in SCC unless both sides are being represented
by attorneys . You may wish to seek legal counsel before the trial
but as a rule, no lawyer may represent you during the trial itself (see the
Montana Resource Directory
for information on finding a lawyer). If there is a witness whose
testimony is essential to your case but who you do not think will come
to the trial, you may have the Judge subpeona them. To have a witness
subpoenaed you must pay witness and subpoena fees.
Judgement
Within five days of the conclusion of your case, the judge will
issue a written decision or judgement. The prevailing party is entitled
to collect the amount of money or specific items of personal property
set forth in the judgement plus all court costs. However, it is the responsibility
of the prevailing party to collect the payment from the other party. If
the losing party refuses to pay, the prevailing party may go back to the
SCC and request a writ of execution. This is an order to the Sheriff, directing
him/her to take money or specific personal property from the losing party
to pay the judgement.
Appeal
If either party is not satisfied with the judgement in the case
they may appeal the case to the District Court.
Appeals must be filed at the SCC within 10 days of the judgement.
Within 30 days of the filing of the appeal, the record of the trial
and any evidence presented will be sent from the SCC to the District Court.
The party appealing will be notified when this happens but it is their
responsibility to make sure that the records are transmitted.
Appeals may only be filed in matters of law, meaning you can only
file an appeal if you believe the judge applied the law in your case
incorrectly. The case will not be retried at the District Court, the
judge at the District Court will only review the case and rule as to
whether or not the law was correctly applied in the original ruling. Fees
for filing an appeal are the same as for removing a case to Justice Court
(see above).
Fees for Small Claims Court
Filing Fee: $15
Service Fee: $30+$20 for ea. Additional Defendant
Counter-Claim/Appearance Fee: $10
Appeal/Removal Fee: $10 + $30 filing fee in
Dist. Court
Civil Court
If your claim is for damage to personal property or has arisen
due to neglegence on the part of the other party or your claim is for
more than $3000 but less than $7000, you must file your claim in Civil
Court. Procedures for filing a claim in Civil Court are similar to filing
in SCC with a few exceptions.
The filing fee for Civil Court is $30 and you may file a claim
without first having sent a certified demand letter, although this is
still suggested. There is no charge for a counter-claim in Civil Court
but there is a $15 answer fee which you must pay regardless of whether
or not you have a counter-claim. There is also a $10 judgement fee levied
on the prevailing party. However, both the answer fee and judgement fee
may be recovered from the losing party. As stated above, the money value
limit for Civil Court is $7000. Any claim for more than $7000 must be
filed in District Court.
Discrimination
Unless a landlord is renting a room in her/his own house, the
landlord is forbidden from discriminating against a potential tenant
on the basis of the individual's race, color, creed, religion, sex, age,
marital status, familial status, national origin, or mental or physical
handicap.
If you feel you are being discriminated against, or if you have
questions about discrimination, call the
Montana Human Rights Commission
at 1-800-542-0807.
Montana Fair Housing
can also assist you in filing a discrimination complaint. Montana
Fair Housing can be reached at (406)542-2611in Missoula, (406)245-6083
in Billings, or 1-800-929-2611 statewide.
The prohibitions against discrimination based on age or familial
status mean that it is illegal to discriminate against tenants with children.
Thus, a landlord cannot refuse to rent to you because you have children.
There are two exceptions to this law: 1) if the apartment
in question is a room in the landlord's own house of residence, or 2)
if the rental unit in question is part of a truly "all-adult" community,
such as a nursing home.
Federal law also establishes rights to accessible housing for
disabled persons. If a rental unit can be made accessible, a landlord
must allow the tenant to make reasonable changes and/or additions (at
the tenant's cost). Additional information on disabled persons' housing
rights can be obtained by calling agencies listed in the referrals section
of this guide, most notably Montana Fair
Housing
.
A landlord might try to discourage prospective tenants s/he considers
"undesirable" in a variety of ways. The landlord might sharply raise
the rent or security deposit above the advertised cost. Upon seeing the
tenant in person, the landlord might announce that the unit "was just
rented."
If you feel that a landlord is discriminating against
you, there are several actions you can take:
1. Report your case to the
Montana Human Rights Commission
or contact Montana Fair Housing
(see above). MHRC can conduct an investigation into the matter,
and may order the landlord to correct the situation. They can award money
damages, and can also refer you to other agencies who may be able to give
assistance or advice.
2. Persuade or pressure the landlord to refrain from discrimination.
You may want to confront the landlord with evidence of her/his discriminatory
actions, and inform her/him that such actions are illegal. If you are
willing to take additional steps to protect your rights, tell the landlord.
You may also want the help of an attorney to pursue the issue further.
3. Take legal action. If your attempts to persuade or pressure
the landlord fail, you can take the landlord to court. This will involve
more time, energy, and money, but you may be able to collect damages.
If you plan to take action against a discriminatory
landlord, proceed carefully and deliberately. Call the
Montana Human Rights Commission
or Montana Fair Housing
or an attorney for advice on how to pursue your problem. They
may advise you to test your suspicions of discrimination. You can do this
in a couple of ways. Have a friend call to see if the rental unit is still
available. Check to see if other tenants pay rent comparable to what you
have been offered. Arrange for a friend who would not normally be discriminated
against to apply for the same place, using personal background information
similar to your own, and see how the landlord responds. Montana Fair Housing
can also assist you in testing a landlord for discrimination.
If you are convinced the landlord is discriminating, consider
what actions you are willing to take. Again, consult with the Human
Rights Commission or an attorney in order to develop the most effective
plan to deal with the discriminatory landlord. You will need evidence of
discrimination in order to succeed in your complaint. Collect necessary
written documents, write down a history of events, and keep a written record
of relevant events. Finally, contact witnesses for supporting evidence.
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Standard Complaint Letter
Montana Residential Landlord Tenant Act