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.