One out of 17 renter households has faced eviction between the years 2000 and 2016. The COVID-19 pandemic has made the situation worse, as millions of Americans have lost their jobs and have been unable to pay rent. Although this was tempered by the eviction moratorium, this recently ended on July 31, 2021, putting over 15 million Americans in 6.5 million households at risk of getting evicted for being behind on rent.
With or without a pandemic, lawmakers can do better to address this problem, both to prevent more Americans from being homeless and also to ensure the economic stability of the rental market. Whether you’re a renter or a landlord, it’s always wise to know your rights and obligations under state eviction rules. This article provides an overview on how the eviction process works and what the eviction laws are in Montana, concluded with frequently asked questions.
Eviction is a legal process. Through eviction proceedings, a landlord may remove or force the removal of a tenant from property that they are renting from the landlord. This may happen when the tenant is unable to comply with the terms of their lease agreement, usually from failure to pay rent, unauthorized subletting, or conducting illegal activities in the property.
The eviction process in Montana, requires a court proceeding. This protects the tenants from “self-help” evictions which may violate their rights, while also protecting the rental market without having to go through lengthy and tedious litigation.
The process consists of two major phases:
The short answer is it may take a few days to a few months. The duration of the eviction process, from the day the tenant receives a notice of eviction to the issuance of a court order or writ of possession, depends on whether the tenant appears and participates in the proceedings. If the tenant fails to appear during the court proceedings despite receiving adequate tenant notice, the court may issue a writ of possession in only a few days. However, if the tenant objects to the eviction and wishes to defend his position in court, the court will need more time to render a decision. This process can take weeks or months.
According to eviction laws in Montana, the first major phase of the eviction process may be broken down into five steps:
In order for the proceedings to be valid and binding, all these steps will have to be complied with. Let’s take a closer look at these five steps.
To initiate the eviction process, the landlord must first issue a notice to the tenant that the landlord is seeking to repossess the rented or leased property. This notice called a “Notice to Quit,” must state the intention to initiate eviction, together with the reasons for eviction. The landlord must request this document from the court, and must also include the exact name and address of the tenant, as well as the exact rental unit number and floor of the tenant’s residence. It must also be signed by the landlord.
The Notice to Quit generally aims to provide tenants with a chance to rectify whatever violations they made against the lease terms. If the violation is non-payment of rent, for example, the tenant may correct this by settling their rental fees. This is an example of a Conditional Notice to Quit, as the tenant may comply with the conditions in order to avoid eviction.
In some cases, however, the landlord may issue an Unconditional Notice to Quit, especially when the violation is so serious that it endangers the economic interests and physical safety of the landlord and/or their property. In this case, the tenant is not given the opportunity to remedy the situation. They must leave the premises.
If the tenant fails to respond to the Notice to Quit or to rectify their violations of the lease agreement within a reasonable time, as stated in the notice to quit, the landlord may file an eviction claim in court.
This step is required in order to respect the tenant’s procedural due process rights. Either a sheriff or process server must personally serve these documents to the tenant or their authorized representative.
The tenant shall be given a reasonable amount of time to respond to the complaint and share their view on the issue. Failure to do so will entitle the landlord to request a writ of possession by default.
In order to arrive at a decision, the court will have to hold a hearing and trial to hear both sides, that of the landlord and the tenant. If the court finds that the landlord is justified in repossessing their property, the court will issue a writ of possession, which entitles the landlord to regain possession of their property. If the tenant refuses to leave, a law enforcement officer will escort them out of the property.
However, as mentioned earlier, if the tenant does not respond to the complaint in a timely manner, the judge may, upon request of the landlord, issue a writ of possession by default. It’s important to note that a writ of possession by default may only be issued if there was valid personal service of the summons and complaint to the tenant.
If the landlord has just and valid reasons to enforce the eviction, the only remedy for the tenant is to rectify the violation. In eviction cases caused by non-payment of rent, for instance, the tenant will have to pay rent in order to avoid eviction.
On the other hand, tenants can raise the defense of “retaliatory eviction” in cases where the landlord takes advantage of the eviction process to get back at tenants who seek to enforce their rights as tenants. For example, if the landlord committed a housing code violation or if the landlord fails to maintain the premises and the tenant complains or reports this to the appropriate authority, a landlord cannot retaliate against the tenant by commencing eviction proceedings.
Housing is a basic human right, and upholding one’s right to a decent home is important now more than ever. Although the Centers for Disease Control and Prevention (CDC) has just announced a new 60-day moratorium on evictions, especially in states that have high rates of COVID-19 transmission, many Americans still face the risk of eviction in the near future. Meanwhile, landlords all over the country are now collectively owed over $20 billion in unpaid rent.
Tenants should know their eviction rights in Montana in order to avoid any injustice, while landlords should comply with the laws so they can enforce their rental agreement without violating anyone’s rights.
In Montana and most other states, a landlord cannot evict a tenant without going through court procedures. Landlords cannot take matters into their own hands through “self-help” evictions, or by physically entering the leased property and removing the tenant through the use of a reasonable amount of force.
However, the parties may negotiate a settlement out of court, as long as it is in writing and signed by both the landlord and tenant. To ensure that the settlement is legally binding and to avoid future litigation on the matter, it is still advisable to go to court with the settlement.
Generally, no, except in cases where the eviction process was not complied with. For example, in the case of non-service or invalid service of summons on the tenant.
One exception to this is when the landlord commits constructive eviction. Constructive eviction is when the landlord’s actions interfere with the tenant’s use of the leased premises to the extent that the tenant feels they have no other choice but to vacate the property.