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.
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