Authored By: Montana Legal Services Association (MLSA)
|NOTE: This information applies to all evictions, whether or not you receive any housing assistance from a governmental program. If you receive housing assistance you are entitled to more protections. You can find them here: See subsidized housing section of LawHelp.|
What does my landlord have to do to evict me?
First your landlord must terminate your rental agreement. To do this, your landlord must give you a written notice telling you that your tenancy will terminate in so many days. The number of days depends upon the violation alleged by your landlord.
How many days' advance notice is required?
If the government pays part of your rent, or if you own a mobile home, different rules may apply. If you own the mobile home that you live in and are only renting the lot, different rules apply. Click here to see information about your rights if you own a manufactured home and are renting only the lot.
Terminations for no reason:
If you have a month-to-month rental agreement, either you or your landlord can terminate the rental agreement for no reason. You or the landlord must give the other party 30 days advance written notice.
If you have a week-to-week rental agreement, either you or your landlord can terminate the rental agreement for no reason. You or the landlord must give the other party 7 days advance written notice.
|Reason for Termination of Rental||When Lease Expires|
|Non-payment of rent||If you don't pay the rent in 3 days (Montana Code Annotated 70-24-422)|
|Repeat violation recurring within 6 months, if notice of violation was given previously||5 days (70-24-422)|
|Being charged with gang activity or manufacturing drugs, which creates reasonable potential of damage to premises or injury to neighbors||3 days (70-24-422)|
|Unauthorized pet or person||If you don't get rid of the pet or person in 3 days (70-24-422)|
|Destruction of premises||3 days (70-24-422)|
|Any other noncompliance or violation not specified by law [catch-all provision]||14 days (70-24-422)|
What should I do when I receive a notice terminating my rental agreement?
- Immediately correct whatever violation your landlord has alleged. If the notice is for nonpayment of rent, pay the rent in full within the 3-day notice period. If the notice is for an unauthorized occupant or pet, get rid of the occupant or pet within the 3-day notice period. If the notice is for any other reason which is under your control (such as failing to maintain the yard, excessive noise, etc.), correct your behavior.
- Talk to your landlord. Try to resolve your differences before the landlord files an eviction lawsuit against you.
Can I just fix the problem the landlord alleges in the notice?
Usually. For nonpayment of the rent and many other violations of the rental agreement, the landlord's written notice must give you a chance to correct the problem. You must do this within the number of days given in the written notice. Only if you don't correct the problem within that number of days can the landlord terminate your rental agreement.
What happens after my landlord gives me the notice?
If you don't move out voluntarily by the date given in the notice and the landlord wants to force you out, the landlord's only option is to file an eviction lawsuit against you in court. The landlord can include in the lawsuit any claims for any rent due and for any damages caused by you, your household members, or your guests.
How do I decide whether to move as my landlord requests, or stay and risk the landlord filing an eviction lawsuit against me?
Only you can decide what is best. You have these options:
- Move out before the deadline given in the notice of termination. This insures that you can't be held responsible for landlord's court costs and attorney fees, since there won't be any. Moving out also insures that you won't be ordered to pay the landlord up to 3 times the rent or actual damages (see #2 below).
- Stay and defend yourself in court if you have a valid defense to eviction. At the hearing, the landlord has the burden to prove that you should be evicted. The landlord must prove that he or she properly terminated your tenancy before filing the eviction lawsuit. If the notice wasn't proper, the judge may throw out the lawsuit and let you stay in the rental. If you lose in eviction court, the judge may order you to pay the landlord's court costs and attorney fees. If your landlord proves in eviction court that your stay beyond the date given in the termination notice was "purposeful and not in good faith" (the language of sec. 70-24-429, MCA), then the judge may order you to pay landlord up to 3 times the rent or triple damages, whichever is more.
NOTE: If you have a Housing Choice Voucher (the same as a "Section 8 voucher") and the landlord wins an eviction lawsuit against you, you will likely lose your voucher as a result of the court's decision to evict you. You will not be eligible for housing assistance again for several years.
What happens after my landlord files an eviction lawsuit against me?
- Service on You -- A sheriff's deputy or other authorized adult will personally deliver to you copies of the lawsuit - the summons and the complaint.
Your Answer -- The summons will tell you that you have 10 days to file a written answer with the clerk of court where the lawsuit is filed. In counting that 10-day period, do not include Saturdays, Sundays or holidays. In your written answer, you must admit or deny each statement made by your landlord in the complaint filed by the landlord. The court clerk will charge you a fee for filing your answer. If you can't afford the filing fee, ask the clerk of court for the form to fill out to ask the judge to waive the fee. You must complete the fee-waiver affidavit within the same 10-day period that you file your answer. Click here for a form you can use to file your answer.
After you sign this answer and have the certificate of service notarized, you must:
1. Make 2 copies of it;
2. Hand-deliver or mail the original to the Clerk of Court
where the eviction lawsuit is filed, by the 10th day after
you were served;
3. Mail a copy to your landloard or the attorney for your
- Hearing - The judge will set a hearing, usually within 20 days of the date you filed your answer. The clerk of court will mail you written notice of the date, time, and place for the hearing. [A note about mediation - Some courts require mediation of landlord/tenant disputes before a hearing is held. If you receive from the court a notice of mediation, you must attend the mediation. At the mediation, you and your landlord will sit down with a professional (not the judge) who is trained to help people resolve their disputes. The mediator will help you and your landlord explore ways to settle your dispute without having the judge decide. If you and your landlord reach a settlement, you will not have to go to court. If you do not reach a settlement, you must appear in court on the date of the hearing. Everything that happens in mediation is confidential - neither you nor your landlord can tell the judge anything about what was said or done in mediation. There is usually no charge for mediation.]
- Judge's Decision - The judge will issue a written decision within 5 working days after the hearing. The decision will say whether or not you have to move out of the rental, and will give you a deadline for moving. The law does not specify how much time a judge must give you to move, after the date of the decision.
What do I do at the hearing?
At the hearing, the landlord has the burden to prove that you should be evicted. The landlord must prove that he or she properly terminated your tenancy before filing the eviction lawsuit.
Be prepared to testify to the judge why you should not be evicted. Tell the judge if the landlord did something wrong in the notice of termination. Take photos to show the judge, if appropriate (for example, if your landlord claims that you damaged the fence, take a photo of the undamaged fence). Take other people to testify, if appropriate (for example, if your landlord claims that your household makes too much noise, take a neighbor who will testify that you're not too noisy). If there are documents that you want to show the judge, make copies of those documents and take them with you to the hearing.
Can my landlord legally change my locks or shut off my utilities if I don't move by the date given in the termination notice?
No. A landlord can only evict a tenant through court action. Even if you are behind on the rent or the utilities, the landlord cannot legally shut off your utilities or change your locks in an attempt to force you out. The landlord also cannot send a deputy over to forcibly remove you from the rental, until after the judge in eviction court signs a written order for that. All a landlord can do to legally remove a tenant is to file an eviction lawsuit. If landlord uses any "self-help" eviction measures, a tenant can sue landlord for wrongful eviction, and recover up to 3 times the amount of rent or actual damages.
Your landlord cannot lock you out, throw out or take your belongings, change the locks or shut off your utilities without first filing an eviction lawsuit against you and getting a judge's order to do so. The landlord can't get the judge's order until after you are served with the court papers and given the opportunity to respond. If this happens, see an attorney immediately.
My written rental agreement has expired, but I'm still living here and paying rent. What rights do I have?
You have all the rights of a month-to-month tenant. Generally your landlord must give you 30 days' notice to terminate your rental agreement, unless the landlord alleges some violation that allows for shorter notice (such as nonpayment of rent, which is a 3-day notice).