If your landlord gives you a notice of termination and you don't move out or fix the problem, your landlord can then take the next step and file an eviction lawsuit against you in court.
In this section, we’ll answer the following:
What does my landlord have to do to evict me?
This is the process that the landlord must go through to get a court order to evict you:
- Give you a written notice that says your rental agreement is terminated on a certain date. If you are a month-to-month tenant, the landlord doesn’t have to state a reason for the termination. If you are under a lease for a certain time period (like 6 months), then the landlord does have to state the reason for the termination;
- File an eviction lawsuit against you in court if you don’t move out by the date given in the termination notice;
- Have someone serve you with the lawsuit papers. You have the right to file a written answer and appear at trial;
- At trial, prove to the court that the eviction is lawful.
The landlord’s notice of termination is not an eviction; it is the first step in an eviction. 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. If you don't move out by the date given in the termination notice, then the landlord can sue to evict you.
Are there any defenses because of Coronavirus?
You may have defenses from eviction for nonpayment of rent because of Coronavirus. If any of these situations are true for you, you may want to write that into the “Other” section in your written answer form:
- Your rental is covered by the federal CARES Act. The federal CARES Act may protect you from eviction for nonpayment through July 25, 2020. Your rental is considered federally “covered” by the CARES Act if one of the following is true for you:
- If you or the landlord participate in a federal housing assistance program. For example, Section 8, tax credits, USDA, etc. If you aren’t sure whether you are in a federal housing assistance program, there are online tools you can use to look up your address to see if your rental is covered. You can find most federally covered units using this tool.
- Even if you don’t receive any government assistance with your rent, if your landlord has a mortgage on your rental building and that mortgage is backed by either Fannie Mae or Freddie Mac, then your rental is covered. You can look up the mortgage information from the National Low Income Housing Coalition. There are two other tools to look up mortgages backed by Fannie Mae or Freddie Mac on the Federal Housing Finance Agency's website.
- Note: If you live in a building with 4 or fewer units, you may need to ask your landlord if there’s a mortgage on your building and if it’s federally covered.
- You are covered by Gov. Bullock’s Directive. You are protected from eviction if you meet all the conditions in the directive:
- You have suffered a significant financial hardship as a result of the virus, and
- You remain sheltered at home, and
- And, at least one of these conditions is true for you or someone in your household:
- You are over 65,
- You have a serious health condition, including high blood pressure, chronic lung disease, diabetes, obesity, or asthma, or
- You have an immune system that is compromised, such as by chemotherapy.
- On May 19, Governor Bullock issued a directive which says that a renter who meets the above conditions is protected from eviction for nonpayment until either 30 days after the vulnerable person stops sheltering in place, or the end of the Covid-19 emergency, whichever happens first.
- If you are considered vulnerable to Coronavirus, your landlord must also give you notice of Governor Bullock’s directive before filing to evict you.
So, if you fit one or more of the situations above, you should write that in the “Other” section of the Answer form, when it asks if you are aware of any other legal reason the court should not evict you. You don’t have to try to sound like a lawyer when you state your defense. But you do want to clearly describe your situation. You only want to state the truth.
You may have another defense. Because of Gov. Bullock’s Directive, a landlord cannot charge late fees, interest, or other charges or penalties because of nonpayment of rent between March 30 and May 24. You will want to look through the eviction court papers to see if the landlord is trying to charge you any late fees between March 30 and May 24. If so, you may want to write in the “Other” section of the Answer form that the landlord’s court action is based in part on nonpayment of late fees which were prohibited under Gov. Bullock’s directive.
If you have questions about your COVID-19 legal rights, read our FAQs for Montana Renters on Coronavirus.
What are the risks of going to court?
Remember, you have the right to stay and fight the eviction lawsuit in court if you have a good defense. But, there are risks to staying. The judge could rule in the landlord's favor. You could have to pay the landlord's attorney fees. You could have to pay up to three times the rent or triple damages. You can find the law that says this at § M.C.A. 70-24-429. Only you can decide what is best.
What happens after my landlord files an eviction lawsuit against me?
1. You will be served - A sheriff's deputy or other authorized adult will personally deliver to you copies of the lawsuit papers. Those papers will be a Summons and a Complaint.
2. You must file a written Answer with the Court - The summons will tell you that you have 10 days to file a written answer with the Clerk of Court where the landlord filed the lawsuit. You start counting the day after you are served. 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 form within the same 10-day period that you file your answer. You can find the form to file your answer on this website.
After you complete and sign the answer and have the certificate of service notarized, you must:
- Make 2 copies of it;
- Hand-deliver or mail the original to the Clerk of Court where the landlord filed the eviction lawsuit, by the 10th business day after you were served;
- Mail a copy to your landlord, or if your landlord has an attorney, mail it to the landlord’s attorney;
- Keep a copy of your answer for yourself.
IMPORTANT: If you do not file a written answer with the court within 10 business days of when you were served, you will lose the right to defend yourself in court, and you will be evicted.
3. Hearing - The judge will set a hearing, usually within 14 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.
4. A note about mediation - Some courts require mediation of landlord/tenant disputes before scheduling a hearing. If the court sends you 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 come to an agreement. The mediator will help you and your landlord find 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.
5. Judge's Decision - The judge will issue a written decision within 5 business days after the hearing. The decision will say whether you have to move out of the rental. If you must move out the judge’s order will give you a deadline for moving. The law does not specify how much time a judge must give you to move.
What if I fight the eviction in court and lose?
If you lose in eviction court, the judge may order you to pay the landlord's court costs and attorney fees. The court may also order you to pay “holdover damages” if it finds that your stay past the date given in the notice was “purposeful and not in good faith.” Holdover damages may be:
- Up to 3 times the rent, or
- 3 times the amount the landlord suffered by you staying past the date in the notice, whichever is greater. You can find this law at Montana Code Annotated § 70-24-429.
The law doesn't say what it means by "purposeful and not in good faith." But, if you stay in the rental after receiving the termination notice and you don't have a solid defense to raise in court, the judge could order you to pay the holdover damages.
Be aware: If you have a Housing Choice Voucher (the same as a "Section 8 voucher") or receive any other housing assistance and the landlord wins an eviction lawsuit against you, you may lose your assistance as a result of the court's decision to evict you. You may not be eligible for housing assistance again for several years.
May I sue the landlord in the same eviction lawsuit?
Yes, you can file a counterclaim with your answer. If you want to bring claims against your landlord in the lawsuit that your landlord filed against you, you can file a counterclaim in that same lawsuit. For example, you may want to file a counterclaim if:
- Your landlord has failed to make repairs,
- Your landlord is trying to evict you in retaliation for your request for repairs,
- Your landlord shut off your utilities, locked you out, or threw out your stuff to try to force you to move.
You may have other counterclaims against the landlord. If so, it is a good idea to talk to a lawyer.
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 they properly terminated your tenancy before filing the eviction lawsuit.
Be prepared to explain to the judge why you should not be evicted. The judge may limit the testimony to the issues the landlord raised in the complaint, and to the issues you raised in your answer (and counterclaim, if any).
Examples of issues you may want to address at the hearing:
- Tell the judge if the landlord's notice of termination did not meet the requirements in the law.
- If photos would help you prove your defenses, take those photos to the hearing. For example, if your landlord claims that you damaged the fence, take a photo of the undamaged fence.
- Take other people to testify, if they can support your defense. 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. You will need to take three copies of each document - one copy for the judge, one copy for your landlord, and one copy for yourself.
- Bring a copy of the notice of termination your landlord gave you, the complaint they served you with, and the answer you filed with the court.
- Double check the date, time, and courtroom of the hearing.
- Make plans to get to the courthouse at least 15 minutes early.
- Put together a list of what you want to say at the hearing, and what documents you want to use.
- Make 3 copies of each document that you plan to use as evidence. For example, if you are using pictures, print out 3 copies of those pictures.
Plan for witnessess:
- If there are persons who have direct knowledge of information that can support your defense, contact each of them and ask if they can come to the hearing. Make sure they each have the hearing location, date, and time.
- If the person needs a subpoena to come to court, contact the Clerk of Court to ask for a subpoena. A subpoena is a court order saying that a person must appear at a court hearing. You can find a subpoena form at https://courts.mt.gov/.
- Practice what you will say to the judge, to explain why you should not be evicted.