Montana Landlords' Rights and Duties Handbook: What a Landlord Must Do

This is Part Two of Montana Landlords' Rights & Duties Handbook, and only has information about the duties of a landlord in Montana. To learn more about what rights a landlord has, check out Part One of the Montana Landlords' Rights & Duties Handbook: Rights of a Landlord.

The Montana Legal Services Association developed this handbook to help residential landlords understand and exercise their rights and responsibilities under the Montana Residential Landlord and Tenant Act. This handbook is intended to provide general guidance only.  It is not a substitute for the advice of an attorney.

If you are a residential landlord who leases or rents a house, apartment, or mobile home to someone else, this handbook was designed for you.

Note: If your tenant owns a mobile home and only rents the lot from you, different laws apply and this handbook is not right for you. This handbook also does not cover:

• Commercial rentals (including renting space for a business);
• Rent-to-own agreements;
• Fraternity or sorority houses;
• Temporary stays at hotels or motels;
• Condominium owners or holders of a proprietary lease in a cooperative;
• Commercial or agricultural rental agreements;
• Halfway houses or other residences related to detention;
• Housing that is provided as part of a job;
• Public or private residences that provide tenants with services including medical, geriatric, counseling, religious, educational, or other similar service (including all housing provided by the Montana university system and other postsecondary institutions);
• Members of a social or fraternal organization who rent part of a building that is operated for the benefit of the organization; or
• Rental agreements giving hunting, fishing, or agricultural privileges with the rental (for example, hunting lodges).

This handbook does not cover all the rights and remedies available to landlords who participate in government assistance programs, such as public housing or Section 8 voucher programs. Montana law still applies to these types of tenancies, but those landlords and tenants also have extra protections under federal law that are not addressed in this handbook. 

Where Can I Get More Information?

The laws of Montana are called the Montana Code Annotated or “MCA.” This handbook is based on the Residential Landlord and Tenant Act of 1977, which you can find in Title 70, Chapter 24 of the Montana Code Annotated. An easier way to write this law is § 70-24-101, MCA.  The symbol "§" means section. You can also write a law as Section 70-24-101, MCA. You can find the MCA at your local library or on the Montana State Law Library website at https://courts.mt.gov/Library.

Warning:

This handbook is not designed to cover all possible situations where a landlord might need legal advice about a rental. The handbook is merely a guide to the general rights and responsibilities of a landlord. Please read the “Who Can Use This Handbook?” section of this handbook carefully to make sure this handbook applies to your situation. Please consult an attorney to ensure all the legal requirements have been met if you plan to:

• Terminate the rental agreement early;
• Sue your tenant; or
• Take other serious action based on what you have read in the Montana Code Annotated or this handbook.

It is a good idea to talk to a lawyer if you have any questions. If you end up in court and win, you may be able to get the tenant to pay your attorney’s fees. However, if you end up in court and lose, the court may make you pay for the tenant’s attorney’s fees. This may be true even if your rental agreement says something different. See Section 70-24-442, MCA.

WARNING: If you are filing a lawsuit against your tenant, you may be required to hire an attorney.  Rule 2(a) of the Montana Justice and City Court Civil Rules allows a “person” to file a lawsuit without an attorney, but requires an agent or a business entity (such as a corporation or LLC) to file a lawsuit through an attorney.

Where Can I Get Legal Help?

These organizations may be able to help you:

• Montana Legal Services Association (MLSA) gives free legal help to low-income people. To find out if you qualify for MLSA, call the MLSA HelpLine at 1-800-666-6899 or apply online. 
• The State Bar Lawyer Referral and Information Service (LRIS) refers people to Montana lawyers who might be able to help. Call LRIS at 1-406- 449-6577.
• The State Law Library can help you find and use legal resources such as books, forms, and websites. You can visit the Law Library website at https://courts.mt.gov/Library.

Note: There may be forms available to help you with rental concerns. You can find form letters and housing pleading forms that can help you with security deposit issues, eviction, and other topics. Visit https://courts.mt.gov/ and click on the “Forms” option near the top of the page to find forms that can help you write letters or court documents. You may also find forms and more information on this website. 

Section 70-24-301, MCA

You must give the tenant the name and address of the manager of the rental property and the name and address of the owner of the rental property (or the person the owner has designated to accept notices and demands from tenants). You must give this information in writing before or when the tenant starts renting the rental property. You must also update this information in writing when the information changes.

Section 70-24-302 and -405, MCA

You have the duty to provide possession of the rental to the tenant as soon as the rental agreement starts.  It is your responsibility to make the rental physically available to the tenant at that time. If someone else remains in possession of the rental when the new rental agreement is supposed to start, it is your responsibility to have that person move or bring a lawsuit against that person for wrongful possession.

A tenant does not have to start paying you rent until the tenant actually gets possession of the rental. Whenever you accept rent or deposit from someone who intends to occupy the rental, you have established a landlord-tenant relationship under the law, even if you did not consider yourself that person’s landlord.

If you do not make sure that the tenant can take possession of the rental, the tenant has two options:

1. Give you five days’ written notice that the tenant is ending the rental agreement. Then you must return all prepaid rent and security deposits that the tenant paid;

2.  Demand that you make sure that the tenant can take possession of the rental. The tenant can also file a lawsuit against you or the person that is wrongfully in possession of the rental. If the tenant wins the lawsuit, the court can award the tenant money for any actual damage that the tenant suffered by not having possession of the rental.  If the court finds that your actions were on purpose or not in good faith, the court may make you pay up to three months' rent or three times the actual damages the tenant suffered because the tenant could not take possession of the rental as promised, whichever amount is larger.

Section 70-24-303, MCA

The law requires you to maintain the rental property. Specifically, you must:

• Make sure the rental property meets all the applicable building and housing codes that affect health and safety that were in effect at the time the housing was built. This is only for housing completed after July 1, 1977;
• Not allow any tenant or other person to act on the rental property in a way that creates a reasonable chance that the rental property may be damaged or destroyed or that neighboring tenants may be injured by any of these crimes:
  • Criminal production or manufacture of dangerous drugs;
  • Operation of an unlawful clandestine laboratory; or
  • Gang-related activities.
• Make repairs and do whatever is necessary to put and keep the rental property in a fit and habitable condition;
• Maintain all common areas in a clean and safe condition;
• Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances. This includes elevators that are supplied or required to be supplied by you;
• Provide and maintain appropriate containers and conveniences for the removal of ashes, garbage, rubbish, and other household waste and arrange for their removal, unless otherwise provided in the rental agreement;
  • The landlord and tenant of a one-, two-, or three-family rental may agree in writing that the tenant perform this duty.
• Supply running water and reasonable amounts of hot water at all times;
  • The landlord and tenant of a one-, two-, or three-family rental may agree in writing that the tenant perform this duty.
• Supply reasonable heat between October 1 and May 1; and
  • The landlord and tenant of a one-, two-, or three-family rental may agree in writing that the tenant perform this duty.
• Install an approved carbon monoxide detector and approved smoke detector in each rental under your control.
  • At the start of the rental agreement, you must make sure that the carbon monoxide detector and smoke detector in the rental are in good working order.
  • An approved carbon monoxide detector is a device that detects the presences of carbon monoxide and emits an alarm at elevated levels of carbon monoxide.
  • An approved smoke detector is a device that detects visible or invisible particles or combustion.
  • The carbon monoxide detector and smoke detector must also have a label or other identification issued by an approved testing agency having a service for inspection of materials and workmanship at the factory during fabrication and assembly.
  • You are not liable for damages caused by the failure of the carbon monoxide detector or smoke detector.

Can I require the tenant to make repairs?

The general rule is that you cannot require a tenant to make repairs. The law allows you and the tenant to agree that the tenant will make certain repairs, or do certain maintenance tasks or remodeling only if:

• The rental is part of a one-, two-, or three-family rental property;
• The agreement is:
  • In writing;
  • Signed by you and the tenant;
  • A  separate document from the rental agreement; and, specifically states the tasks for which the tenant is responsible;
• The agreement is supported by adequate consideration, which means that both parties must receive some benefit from the agreement.
  • For example, if the tenant agrees to fix the leaky roof, then the agreement would specify what benefit the tenant will receive for doing that task which would normally be the landlord’s responsibility.
• The law also requires that:
  • The agreement be entered into in good faith with honest intentions and not just because you are trying to avoid your responsibilities under the law;
  • The rental already be in compliance with the building and housing codes that affect health and safety, where construction of the rental was completed after July 1, 1977; and
  • The agreement does not diminish your obligation to other tenants in the rental premises.

What happens if I do not make the repairs that are necessary?

Section 70-24-406, MCA

If the maintenance problem affects the tenant’s health and safety, the tenant can choose between the following two remedies:

1. End the Rental Agreement If You Do Not Fix the Problem. 

The tenant can deliver a written notice to you of the problem. The written notice must include:

• A statement telling you what repairs or maintenance you are required to perform but are not performing; and,

• A statement that if you do not have the problem fixed within 14 days, the rental will end on a date at least 30 days after the tenant gives you the notice. If the problem has created an emergency, then the tenant only has to give you 3 working days to fix the problem. For emergency conditions, the tenant may tell you in the notice that the tenant will end the rental agreement immediately if the problem is not fixed in 3 days.

If the tenant has given you a written notice of the same problem within the last six months, the tenant does not have to give you another chance to fix the problem. The tenant can end the rental agreement by giving written notice that states that the tenant has provided written notice on this same problem within the last six months and that the tenant is ending the rental agreement at the end of 14 days.

Important: If the tenant, a member of the tenant’s family, or any other person on the rental with the tenant’s consent caused the maintenance problem, the tenant may not end the rental agreement because of that problem.

2. Repair and Deduct.

First, the tenant must give you written notice of the problem and give you a reasonable amount of time to repair the problem. Then, if you do not make the repair and the cost of repairs for the problem is less than what the tenant pays for one month’s rent, the tenant can make the repairs and subtract the cost of the repairs from the rent that the tenant pays you in the next month. The law does not specifically say how much time is “reasonable” to make a repair.  It would depend upon the kind of repair needed. If the problem has created an emergency and you have not made the repairs within a reasonable time, the tenant can have the emergency repairs done as long as they do not cost more than one month’s rent. The tenant must have the emergency repairs done by someone qualified to make the repairs. For example, if the rental’s heater breaks in the winter and you do not fix it quickly, the tenant can have a qualified repairman fix it as long as the repair will not cost more than one month’s rent. Then, the tenant can deduct the cost of the repair from the tenant’s next month’s rent.

Can the tenant end the rental agreement AND repair and deduct?

The tenant must decide to either end the rental agreement OR repair and deduct the amount of the repair from the rent. The tenant cannot do both. Regardless of which option the tenant chooses, the tenant can also file a lawsuit asking the court to award the tenant any actual damages the tenant suffered and to force you to make the repairs.

Can the tenant go to court to force me to make repairs?

Yes. This may be a good option for the tenant if the tenant wants to stay in the rental but the costs of repairs are more than one month’s rent. Even if the repairs cost less than one month’s rent, the tenant may choose to take you to court to force you to make you make the repairs, rather than choosing to make the repairs himself or herself.

Section 70-24-408, MCA

The tenant has the right to have heat, running water, hot water, electric, gas and other essential services in the rental. You are required to make sure that the tenant has access these essential services in the rental.

If you fail to provide an essential service to the rental, the tenant can provide you with written notice that the tenant no longer has access to a specific essential service. After giving you written notice, the tenant must allow you a reasonable amount of time to fix the problem that is keeping the tenant from having essential services in the rental.  The law does not specify what amount of time is “reasonable.” If you do not fix the problem within a reasonable amount of time, the tenant has several remedies to choose from:

1. Repair and Deduct.

If obtaining the essential service costs less than one month’s rent, the tenant can buy reasonable amounts of heat, hot water, running water, electricity, gas, or other essential service for the time that you do not fix the problem. The tenant can then deduct the amount the tenant spent getting the essential service from the tenant’s next month’s rent before paying you;

2. Alternate Housing. 

The tenant can decide to live somewhere else until you fix the problem. If the tenant moves somewhere else while you fix the problem, the tenant will not have to pay the rent during the time that the tenant does not live in the rental.

           OR

3. Diminution in Value. 

The tenant can continue to live in the rental without the essential services and file a lawsuit against you. In the lawsuit, the tenant can ask the court to determine what the value of the rental is without whatever essential service is missing from the rental. The value determined by the court will be the value that the tenant will be expected to pay for the rental for the time that the rental did not have the essential service and you knew that the rental did not have the essential service.

Note: If the tenant, a member of the tenant’s family, or any other person on the rental with the tenant’s consent caused the lack of essential services the tenant does not have the right to any of these remedies for loss of essential services.

Note: The tenant must choose between the remedies offered for loss of essential services and the remedies for your failure to provide maintenance of the rental property. The tenant cannot use both.

Section 70-24-314, MCA

The tenant has the right to become a member of a resident association. A resident association has the right to elect officers of the association at a meeting where a majority of the members are present.  All residents have a right to attend association meetings.

Section 70-24-409, MCA

The tenant has the right to live in a rental that has no serious fire or casualty damage.  If the rental or the rental property is seriously damaged or destroyed by fire or casualty to an extent that the tenant’s enjoyment of the rental is substantially impaired, the tenant can either:

1. Immediately move out of the rental and give you written notice within 14 days that the tenant moved out and is ending the rental agreement. If the tenant chooses this option, the rental agreement will have ended on the date the tenant moved out of the rental. You must return the tenant’s security deposits minus any lawful deductions and any unused rent that the tenant has paid;
 

2. Continue living in the rental but move out of the parts of the rental that can no longer be used because of the damage. This is only an option if it is still lawful to live in the rental with the damage. If the tenant chooses this option, you must reduce the tenant’s rent to reflect the lower value of the rental.

Note: The tenant cannot use these options if the fire or casualty damage is caused by the tenant, the tenant’s family or the tenant’s guests.

Section 70-24-410, MCA

You have the right to go onto the rental property when you have a good reason, as described above in Right #2. You cannot:

• Unlawfully enter the rental; or
• Lawfully enter (or make demands to enter) the rental:
  • In an unreasonable way; or
  • Repeatedly, unreasonably harassing the tenant.

If you abuse your right of entry, the tenant can either:

• File a lawsuit against you in court and ask the court to stop you from continuing this behavior; or
• End the rental agreement.

Regardless of which remedy the tenant chooses, the tenant can also ask the court for any damages the tenant suffered because of your actions.

Section 70-24-411 and -428, MCA

You cannot:

• Unlawfully remove or exclude the tenant from the rental; or
• Keep the heat, running water, hot water, electricity, gas or other essential service from the rental.

Even if the tenant is behind on the rent, you cannot lawfully change the tenant’s locks or otherwise bar the tenant’s entry or shut off the tenant’s utilities. If you do so, the tenant can file a lawsuit against you. If the tenant wins the lawsuit, the court can order you to pay the tenant up to three months’ rent or three times the amount of the actual damages the tenant suffered, whichever is larger.

If you want to force a tenant to vacate, you must follow the usual steps for an eviction, including:

• Sending tenant a written notice to vacate in the number of days specified in the law; or,
• If the tenant doesn’t vacate by the end of the notice period, filing a lawsuit for possession in court.

Section 70-24-431, MCA

The law makes it illegal for you to retaliate against a tenant in any way for requesting repairs or for joining a tenant’s union. You cannot punish or retaliate against the tenant for:

• Complaining of a health or safety violation to a government agency that enforces the codes;
• Complaining in writing to you about your failure to maintain the rental or to make necessary repairs; or
• Becoming a member of or organizing a tenant’s union or similar organization.

If the tenant takes one of the above actions, you cannot retaliate against the tenant by increasing the rent, decreasing services to the rental, or filing or threatening to file a lawsuit against the tenant in court for eviction. If you do any of these actions within six months after the tenant has done one of the three things listed above, the court will assume that you are retaliating against the tenant.  The court will allow you the opportunity to prove that there was no retaliation.

• If you violate the anti-retaliation law, the tenant can choose whether to end the rental agreement and move out, or to continue living in the rental despite your retaliation.  In either case, the tenant can file a lawsuit against you and ask the court to make you pay the tenant up to three times the monthly rent or three times the tenant’s actual damages because of your retaliation.

The tenant can also raise retaliation as a defense in any eviction lawsuit you may file a lawsuit against the tenant, claiming that you cannot evict the tenant because you are only seeking the tenant’s eviction because of the tenant’s protected actions as described above.

The tenant cannot use these anti-retaliation remedies if:

• The tenant or the tenant’s family or guests caused the violation of the building or housing code;
• The tenant is behind in rent; or
• To comply with the building and housing codes, you must alter, remodel or demolish the rental in a way that would not allow the tenant to live there, so you have no choice but to ask the tenant to move.