WHAT IF THE TENANT DOES NOT LEAVE?

If your tenant does not leave at the end of the lease term, the tenant is “holding over.” 

If the landlord consents to the tenant holding over, then in most cases, the new lease term is month-to-month.  Either the landlord or the tenant can terminate a month-to-month lease on 30 day’s written notice to the other.

If the landlord does not consent to the tenant holding over, then the tenant is unlawfully detaining the rental and must be evicted.

If you are a landlord and your tenant does not leave the rental, contact me at www.tornowlaw.com for a free consultation.

HOW DO I EVICT THE TENANT?

            The Landlord Must File a Complaint for Possession.

The first step in an eviction is for the landlord to file a Complaint for Possession against the tenant in the Justice Court for the County where the rental is located.  The Complaint for Possession asks the Judge to give the landlord possession of the rental.  Possession includes the right to enter the rental, change the locks, remove the tenant’s personal property and otherwise control the rental. 

The landlord must prepare the Complaint for Possession.  The Justice Court may have forms the landlord can use.  The landlord should make copies of the Complaint for Possession before the landlord files the Complaint for Possession.  The Justice Court keeps the original Complaint for Possession.  For each tenant, the landlord will want a copy of the Complaint for Possession.  The landlord will also want a copy of the Complaint for Possession for the landlord’s file.  The cost of these copies is not part of the landlord’s “court costs” which are automatically added to the Judgment against the tenant if the landlord wins the case.

If you are a landlord and need a Complaint for Possession to evict your tenant, contact me at www.tornowlaw.com for a free consultation. 

            A Complaint for Possession Can Include a Claim for Damages.

A Complaint for Possession can also include a request for money damages, such as unpaid rent or utilities, damages to the rental or other money owed by the tenant.  There is no additional cost to the landlord to include a claim for damages.  However, pursuing a claim for damages can require additional steps in the eviction process.  Those steps are discussed below.  The landlord should weigh those additional steps against the likelihood of being able to collect the damages.  Most tenants don’t have sufficient assets or income from which the landlord can collect the damages.  If that is the case, then the landlord may not want to bother to include a claim for damages.

If you are a landlord and need help deciding whether to include a claim for damages in your Complaint for Possession, contact me at www.tornowlaw.com for a free consultation.

The Landlord Must Pay the Justice Court a Fee to File the Complaint for Possession.

To file the Complaint for Possession, the landlord must pay a filing fee to the Justice Court.  As of the date of this post, the filing fee is $40.  This fee is part of the landlord’s “court costs” which will automatically be added to the Judgment against the tenant if the landlord wins the case.

If you are a landlord and need help filing a Complaint for Possession to evict your tenant, contact me at www.tornowlaw.com for a free consultation.

            The Landlord Must Get a Summons for Each Tenant.

At the same time the landlord files the Complaint for Possession, the landlord should have the Clerk of the Justice Court issue a Summons for each of the tenants.  There is no charge for issuing the Summonses.

The landlord must prepare the Summonses.  The Justice Court may have forms the landlord can use.  The landlord should make copies of the Summonses before the landlord has the Clerk of Court issue the Summonses.  The Justice Court keeps a copy of the Summonses for each tenant.  For each tenant, the landlord will also want two copies of the Summons for each tenant and another copy for the landlord’s file.  The cost of these copies is not part of the landlord’s “court costs” which are automatically added to the Judgment against the tenant if the landlord wins the case.

If you are a landlord and need help getting a Summons to evict your tenant, contact me at www.tornowlaw.com for a free consultation.

The Landlord Must Have the Summons and Complaint for Possession Served on Each Tenant.

After the Complaint for Possession is filed and the Summonses are issued, the landlord is responsible for having a copy of the Complaint for Possession and the Summons served on each tenant.  That is why the landlord needs the number of copies explained above.

The landlord must pay a Sheriff’s Department or process server to serve the Complaint for Possession and Summons on the tenant.  The landlord cannot serve the Complaint for Possession and Summons him or herself.  Unless there are complications, the cost for serving the Complaint for Possession and Summons is about $50 for each tenant.  The Sheriff’s Department usually charges less than a process server, but a process server usually gets the Complaint for Possession and Summons served quicker.  The process server also has the advantage of not wearing a uniform, which makes it harder for the tenant to avoid being served.  Most Justice Courts will have a list of process servers that can serve the Complaint for Possession and Summons on the tenant.  The fee paid to the Sheriff’s Office or process server is part of the landlord’s “court costs” which are automatically added to the Judgment against the tenant if the landlord wins the case.

The Sheriff’s Office or process server will know how to serve the Complaint for Possession and Summons, but the landlord must provide the Sheriff’s Office or process server with an address where the tenant can be found.  This is usually the address of the rental or the tenant’s place of employment.  

The Sheriff’s Office or process server must hand a copy of the Complaint for Possession and Summons to each tenant.  They cannot post the Complaint for Possession and Summons; send the Complaint for Possession and Summons through the mail; or leave the Complaint for Possession and Summons with someone else to give to the tenant. 

When the Complaint for Possession and Summons are handed to the tenant, the tenant has been “served with process.”  The Sheriff’s Office or process server will provide the landlord with a “return of service” stating the date each tenant was served with process.  As explained in the next paragraph, the date the tenant is served with process is very important.

If you are a landlord and need help serving a Complaint for Possession to evict your tenant, contact me at www.tornowlaw.com for a free consultation.

            The Tenant Must File an Answer to the Complaint for Possession.

Each tenant has ten business days from the date the tenant was served with process to file a response with the Justice Court.  The first day of the ten days is the day after the tenant was served with process.  In other words, the day the tenant was served with process does not count toward the ten days.  The tenant has until the close of the Justice Court on the last of the ten days to file a response.  If the tenants were served on different days, then the ten days for each tenant will expire on different days.

If you are a landlord and your tenant is disputing your eviction, contact me at www.tornowlaw.com for a free consultation.

            If the Tenant Does Not Answer, the Landlord May Take a Default.

If a tenant does not file a response within ten business days from the date the tenant was served with process, the landlord can move the Court for a “default” against that tenant.  The landlord does this by filing a Motion for Entry of Default.  The landlord must prepare the Motion for Entry of Default.  The Justice Court may have forms the landlord can use.  The Motion for Entry of Default does not have to be served on the tenant.

The default ends the tenant’s opportunity to file an Answer to the Complaint for Possession.  Until the default is entered, the tenant will be allowed to file an Answer to the Complaint for Possession, even if it is after the ten days.  So it is important for the landlord to file The Motion for Entry of Default as soon as the ten business days expire.

If the Judge grants the landlord a default against a tenant, the Judge will issue an Order of Possession against that tenant.  That Order of Possession allows the landlord to enter and take possession of the rental as to that tenant only.  If there are other tenants who have not been defaulted, they would have a right to remain in the rental. 

If you are a landlord and need a Motion for Entry of Default to evict your tenant, contact me at www.tornowlaw.com for a free consultation.

A Hearing is Required if the Complaint for Possession Includes a Claim for Damages.

If the Complaint for Possession also asks for damages, such as unpaid rent or utilities, damages to the rental or other money owed by the tenant, the Court Clerk will schedule a hearing where the landlord must prove those damages.  The court costs described above (the filing fee and service of process fee) are not money damages and are awarded to the winning landlord against the tenant without any hearing. 

There is no cost to the landlord for the hearing, nor does the hearing delay getting possession of the rental.  However, the landlord will have to appear at the hearing and prove his or her damages.  The landlord should weigh this against the likelihood of being able to collect the damages.  Most tenants don’t have sufficient assets or income from which the landlord can collect the damages.  If that is the case, then the landlord may want to advise the Clerk of the Justice Court that the landlord “waives” the claim for damages.  If the landlord waives the claim for damages, the case is treated as if the Complaint for Possession did not include a claim for damages and no hearing is required.

If you are a landlord and need help with a heating on damages or want to waive your claim for damages against your tenant, contact me at www.tornowlaw.com for a free consultation.

LOOK FOR MY NEXT POST.

This concludes the second part of residential evictions in Montana.  In the next post, I will cover what to do if the tenant files a response to the landlord’s Complaint for Possession disputing the eviction.

Evicting Residential Tenants in Montana-Part 1

HOW TO EVICT A RESIDENTIAL TENANT IN MONTANA

Part 1

This is the first of several posts intended to give a landlord a basic understanding of how to evict a residential tenant in Montana.

WHAT KIND OF PROPERTY IS RENTED?

The process discussed in these posts is only for property rented as a residence in Montana.  It does not apply to commercial property, such as offices, storage units, or night-to-night rentals, like hotel or motels.  It also does not apply to mobile homes or mobile home lots.  Those types of rentals have their own procedure for evictions.  The process may also not apply to rentals subsidized by the government.  In return for those subsidies, the landlord often must agree to follow a special process to evict a tenant.

If you are a landlord and unsure what process you need to follow to evict your tenant, contact me at www.tornowlaw.com for a free consultation. 

Likewise, if you are a landlord and want to know about evictions from commercial property, mobile homes or mobile home lots, contact me at www.tornowlaw.com for a free consultation. 

IS YOUR LEASE WRITTEN OR ORAL?

A landlord or tenant often thinks they do not have a lease.  That is not correct.  If you are a landlord, you have either a written lease or an oral lease. Your lease may only be when a certain amount of rent is due, but you have a lease.  I strongly recommend that every landlord have a written lease.  If you are a landlord and want a written lease, or need your existing lease reviewed, contact me at www.tornowlaw.com for a free consultation.

HOW LONG IS YOUR LEASE FOR?

The length of your lease is called the lease term.  The lease term is when the lease begins and ends.  For a lease for more than one year to be binding, it must be in writing.  This does not mean that a month-to-month lease cannot continue for more than one year.  It only means that an unwritten agreement to rent for more than one year in the future cannot be enforced.  If your written lease does not specify a lease term, or it has expired, then the lease term is for one month, called a month-to month lease.  Unless the landlord and tenant specifically agree otherwise, most oral leases are month-to-month.  The lease term of a month–to-month lease usually begins on the first day of the calendar month and ends on the last day of the calendar month.  But again, the landlord and tenant can specifically agree for the lease term to begin and end on other days.  The day the rent is due is strong evidence of when the lease term begins.  To prevent problems, your lease term should be expressly stated in a written lease.  If you are a landlord and your lease term is not clearly stated, or you want your current lease revised, contact me at www.tornowlaw.com for a free consultation.

HAS THE LEASE TERM EXPIRED?

What happens when the lease term expires?  If your lease is month-to-month, it automatically renews for another month unless either the landlord or the tenant gives notice that they intend to terminate the lease.  This applies to both written and oral month-to-month leases. 

A written lease can provide that unless the landlord or tenant gives notice of intent to terminate the lease, the lease term automatically renews for a specific new lease term.  The length of the renewed lease term is usually the same length as the original lease term. 

If a written lease does not require notice of the intent to terminate or provide for automatic renewal, then the lease expires automatically at the end of the lease term.

If the tenant continues to occupy the residence with the landlord’s consent, then the lease automatically converts to a month-to-month lease that can be terminated on 30 days written notice.  However, all other terms of your written lease remain in effect.  For example, if your written lease is for one year and has no automatic renewal, then if the tenant stays after the year ends, the lease term becomes month-to-month that can be ended on 30 days notice.  But all other terms of the lease, like no pets, remains the same. 

It is to the landlord’s advantage to have your lease automatically renew.  Having more than 30 days’ notice that the tenant is leaving lowers the chance of the landlord’s rental being empty and gives the landlord more time to find a quality tenant.  If you are a landlord and want these provisions in your lease, contact me at www.tornowlaw.com for a free consultation.

DOES THE LANDLORD NEED A REASON TO TERMINATE OR NOT RENEW A LEASE; OR TO RAISE THE RENT?

In most cases, at the end of the lease terms, the landlord can terminate or not renew the lease, or raise the rent, for any or no reason.  However, a landlord cannot take such an action because of the tenant’s age, race, religion, handicap, or marital or family status.  Also, the landlord and tenant can agree in the lease to limit the landlord’s ability to terminate or not renew a lease or raise the rent.  An example of such a limitation is a lease that provides that the tenant has an option to renew the lease term.  If you are a landlord and want to terminate on not renew a lease or raise the rent, contact me at www.tornowlaw.com for a free consultation.

HOW DO I TERMINATE A LEASE AT THE END OF THE LEASE TERM?

Either the tenant or the landlord can terminate a lease at the end of the lease term.  Unless the written lease provides otherwise, the notice to terminate the lease must be given in writing and must be given a minimum of 30 days before the end of the lease term.  For example, if the month-to-month lease term ends on the 30th, the notice cannot be given on the 15th to be effective the 15th of the next month.  It must be given no later than the last day of the prior month to be effective on the 30th.

The written lease can also require that the notice of intent to terminate the lease must be given a certain number of days before the end of the original lease term.  For example, a one year lease might provide that it automatically renews for another year unless the landlord or tenant gives 60 days written notice.  This gives the landlord additional time to find another tenant and decreases the possibility of the rental being empty.  It also gives the tenant extra time to find another rental and decreases the risk of not having a place to live when the lease term expires.

If you are a landlord and want to terminate your tenant’s lease, contact me at www.tornowlaw.com for a free consultation.

HAS THE TENANT BREACHED THE LEASE?

If the lease is still in effect, either because the lease term has not ended or neither the tenant nor the landlord has given notice and it has converted to a month-to-month lease, then the landlord cannot evict the tenant unless the tenant breaches the lease.

The most common breach of a lease by a tenant is when the tenant fails to pay the landlord rent.  However, this is not the only possible breach.  Any failure by the tenant to follow the provisions of the landlord’s lease is a breach of the lease.  Other common breaches are the tenant having unauthorized pets, the tenant failing to pay utilities, the tenant not having renter's insurance, the tenant allowing unauthorized persons to live in the rental, the tenant having unauthorized vehicles on the property, or the tenant using or manufacturing illegal drugs.

If the tenant breaches the landlord’s lease, the landlord must give the tenant written notice of the breach.  The length of the notice to the tenant depends on the type of breach.  If the tenant’s breach is failing to pay the landlord rent, the landlord must give the tenant a minimum of three business days written notice.  This is commonly called a Notice to Quit or Pay Rent.  Likewise, a tenant’s breach by having an unauthorized pet or unauthorized persons residing in the rental, damaging or creating a reasonable potential of damage to the rental, or creating a reasonable potential that neighboring tenants may be injured all require the landlord to give the tenant a minimum of three business days written notice of the breach.  For most other breaches by the tenant, such as failing to pay utilities, the landlord must give the tenant a minimum of 14 calendar days written notice.

If you are a landlord and your tenant has breached your lease, contact me at www.tornowlaw.com for a free consultation.

HOW DO I GIVE NOTICE OF THE BREACH?

Notice from the landlord of a breach of the lease by the tenant must be written and delivered to the tenant.  The notice must specifically describe the tenant’s breach.  The notice can be delivered personally by handing the notice to one of the tenants.  It can also be delivered by mailing the notice to the tenants by certified mail or with a certificate of mailing.  If it is mailed, you must add another three business days from the date of mailing to the required notice.  For example, if the landlord mails a three day notice to quit or pay rent to the tenant, then the tenant has six business days to pay the rent or vacate the premises.  Notice is also considered delivered if the tenant acknowledges receipt of the notice.  An example of acknowledging receipt is a tenant emailing the landlord saying that the tenant received the notice.  Posting the notice on the door is not legal delivery unless the tenant acknowledges receiving the notice.

Not correctly giving the tenant notice of breach is one of the most common mistakes by landlords.  If you are a landlord and want to give your tenant proper notice of a breach of the lease, contact me at www.tornowlaw.com for a free consultation.

CAN A TENANT REMEDY THE BREACH?

Under most circumstances, a tenant is permitted to remedy the breach before the expiration of the notice period.  For example, if a tenant pays the past due rent, plus any late fees or other penalties, during the three business days, then the tenant has "cured" the breach and the lease terms continues as if the breach had not occurred.  However, there are some breaches that a tenant is not permitted to cure, such as use or manufacture of illegal drugs.

If a tenant commits substantially the same breach again within six months, the landlord does not have to allow the tenant to remedy the breach.  The landlord may terminate the lease on five business days written notice to the tenant.  This is to prevent the tenant from regularly committing and curing the same or similar type of breach.  However, the landlord must have given the tenant written notice of the prior breach.  For example, if the landlord gives the tenant written notice of an unauthorized pet and the tenant removes the pet, and then has another unauthorized pet within six months, the landlord may terminate the lease on five business day’s written notice and the tenant has no right to cure.  It does not have to be the same pet.  It only has to be the same or similar type of breach.  But if the landlord did not give written notice of the prior pet, then the subsequent pet is treated as a first breach of the lease by the tenant.

If the tenant does not cure the breach within the permitted time, or if no cure is allowed (e.g. illegal drugs or a second breach within six months), then the landlord may terminate the lease.

If you are a landlord and not sure whether your tenant has cured, or whether you have to allow your tenant to cure, a breach of the lease, contact me at www.tornowlaw.com for a free consultation. 

LOOK FOR MY NEXT POST.

This concludes the first part of residential evictions in Montana.  In the next post, I will cover what to do if the tenant does not leave after the lease has expired or been terminated or after notice of breach has been given and the time to cure has expired.