A Montana eviction process can differ from county to county, but they all more or less follow the same order or process:
Every eviction process is different and dependent on the information in the lease/rental agreement signed by the tenant and the landlord. It is always best to exercise meticulous file-keeping to avoid errors that the tenant could exploit.
Filing an eviction action takes time and patience. Going to court is a long and tedious experience for a landlord who handles multiple properties.
It can also cost a landlord more money than it's worth. Most landlords are advised to try to work things out with a tenant outside court. It is only in extreme cases when a landlord resorts to file for an official eviction action.
This article details a summary for landlords to refer to when evicting a tenant. Confirm procedures and information with your justice court to ensure the entire process goes as smoothly as possible.
Alternatively, a landlord can also ask for legal advice from an attorney for more information on the rules for a legal eviction. The best legal advice will come from an attorney who is well-versed in Montana legal law.
The first step all evictions must take is providing a notice. This notice comes in many names such as Notice to Pay, Notice to Comply, Notice to Vacate, Notice to Move, Notice to Quit. The latter three mean the same thing.
The notice must notify the tenant that they are in danger of eviction by providing the reason for eviction and how long a tenant has before the process can begin. A landlord cannot evict any tenants without this notice except in certain circumstances found in each individual state eviction.
A landlord is required to provide an appropriate notice before filing for eviction in order for an eviction to be valid. More information on notice periods is found below:
1. Failure to pay rent or nonpayment of rent
The most common reason for eviction is nonpayment of rent. A landlord can evict a tenant for failing to pay the rent on time.
Rent is considered late in Montana a day past its due. For example, if the lease says a tenant has rent due on the 25th and the tenant has not been able to pay the rent by the 26th, then rent is considered late, and the landlord may give an eviction notice.
A grace period to extend the rent payment may be available if written in the lease/rental agreement by the landlord and the tenant.
Before starting an eviction process in New Mexico, the landlord must give the tenant a written 3-Day Notice to Pay. The notice must state that a tenant has 3 days to pay rent.
However, the landlord may offer a written notice of 30 days to month-to-month tenants. This means month-to-month tenants have 30 days to pay rent.
If tenants who are being evicted for not paying rent on time manage to pay all past due rent in full to the landlord before their notice period ends, the entire eviction process stops, and they can continue staying in their rental unit.
If they cannot pay rent by the end of their notice period, the landlord may proceed with the eviction process.
2. Violation of the/rental agreement
A lease/rental agreement may vary from tenant to tenant. It contains the responsibilities of each party during the entire duration of the tenant's stay.
A tenant may face eviction for a lease violation. Landlords and tenants are required to uphold the terms of the lease agreement at all times.
A tenant may face eviction for a lease violation. Before a landlord can start filing for an eviction action, a landlord must give the tenant a 3-Day Notice to Comply, which gives the tenant 3 days to fix the issue, or else they may be evicted.
This only applies if the lease violations are about damage to the rental unit, housing an unauthorized pet in a pet-free rental unit, or housing "unauthorized" pet or people within the rental premises.
Should the tenant commit any lease violations not mentioned above, the landlord must give the tenant a written notice called a 14-Day Notice to Comply. Then, the tenant has to fix the issue within 14 days or else they will be evicted.
Once again, the landlord may offer a written notice of 30 days to month-to-month tenants, but they are not required to give one. This means they have 30 days to fix their violation.
The landlord may continue to file for an eviction process if the tenant fails to fix their violation on time and they still remain inside the rental unit.
3. Material health or safety violation
New Mexico law takes into account the health, building, safety, and housing codes. If a tenant violates any of these codes, the landlord must provide a written notice called a 14-Day Notice to Comply. The tenant has to fix their violation within 14 days, or else they may be evicted.
However, the landlord may offer a written notice of thirty days to month-to-month tenants, but they are not required to give one. This means month-to-month tenants have thirty days to fix their code violations.
A material health/safety code violation affects the well-being of the entire rental property and may cause some health issues. It includes, but is not limited to the following:
- Not throwing out trash for long periods of time, inviting bugs and/or rodents.
- Damaging the electrical wiring of a unit
- Ruining the plumbing fixtures of a unit
The landlord may continue to file for an eviction process if the tenant fails to fix their violation on time and they still remain inside the property the landlord owns.
4. Conducting illegal activity
In the state of New Mexico, a tenant who has engaged in illegal activity within the property must be given 3 days' notice to move. Tenants usually have no choice but to leave the property, or else they will have to deal with an eviction lawsuit.
The eviction laws of Montana consider the following illegal activities (but are not limited to these):
- Activities related to gangs
- Possession of an illegal firearm, explosive, or a hazardous toxic substance
- Involvement in the creation, distribution, or consumption of a dangerous controlled substance
- See MT Code § 70-24-321 (2019) for more information.
The landlord may offer a written notice of thirty days to month-to-month tenants. This means month-to-month tenants have thirty days to fix their violations.
5. Non-renewal of lease after the end of the rental period
A Montana eviction process does not allow a landlord to evict a tenant without good cause. As long as the tenant does not violate any rules, they can stay until their rental period ends.
However, if a tenant overstays their lease term without applying for a renewal, they can be evicted. But first, the landlord must provide the correct notice depending on their tenancy, which could be either a 7-Day Notice to Move or a 30-Day Notice to Move
See MT Code § 70-24-441 for more information.
Filing a Complaint
The next step is filing a legal complaint in the correct justice court. Filing fees in Missoula County cost about $50.
A landlord must file a complaint only after the notice period has passed. Successful evictions rely on correct filings, so the landlord must file all the forms correctly.
1. Steps in filing
- Proceed to the justice court the rental unit belongs to
- Fill out the forms
- Pay the filing costs
It takes 3 days to 30 days, depending on the reason for the eviction before a landlord can file a complaint to begin the eviction process.
Serving the Tenant
The next step in an eviction process is serving the Summons and Complaint to the tenant. The landlord must not serve the documents by themselves.
The Summons and its supporting documents must contain information such as the day and time of the court trial. It is a court order that informs the tenant about the scheduled eviction hearing.
Montana allows sheriffs, deputies, constables, or individuals who are uninvolved in the case and are at least 18 years old to serve these documents. They must be delivered within five days before they are due for their return date.
1. How to serve documents to a tenant
The Summons and its corresponding documents must be served through one of the following methods:
- Personal Service: The Summons and Complaint is served to the tenant in person
- Mailing Service: A copy of the documents is served to the tenant through first-class mail and must come with an acknowledgment.
2. After serving the Summons and Complaint
If 20 days have passed since the Summons and Complaint have been served to the tenant via mail and neither the server nor the landlord has received an acknowledgment of mailing, another service method authorized by Montana law has to be chosen by the landlord.
Once the tenant receives the Summons, the tenant must file an answer to the court if they want to defend themselves during the hearing. In their answer, they must explain why the eviction should not be happening.
This written answer must be filed within 10 days from the day they receive the Summons. Should the tenant fail to file a written answer by the end of the 10 days, the landlord will receive a default judgment from the court.
The Summons and its corresponding documents must be served to the tenant 5 days before the return date.
The tenant must file a written answer within 10 days from the date they receive the Summons and Complaint.
Asking for Possession
1. Filing a Motion to Obtain Judgment and get a Judgment for Possession
To win and accomplish this step, a landlord must provide a strong argument backed up by solid evidence against their tenants. Should the tenants fail to show up to the hearing, the landlord could win by default.
2. Next procedure if the tenant disagreed and filed an answer
Should the tenant be unable to attend the hearing, the judge may issue a default judgment in favor of the landlord. This means the tenant must move out of the rental property.
The court trial must continue and come to order whether or not the tenant filed an answer.
However, if both parties are present, the landlord must support their claim with evidence and show it to the judge. This includes, but is not limited to the following:
- Copy of the deed and the lease/rental agreement
- Rent receipts
- Rent ledgers
- Bank statements
- Witness statements
- Photo and video documentation of the violations committed by the tenant
The officer in charge of judiciary matters must make a ruling within 5 days after the hearing.
The tenant can still appeal this ruling, and should the tenant choose to do so, an appeal hearing is held within 5 days from the date the appeals court receives the transfer. This applies to evictions involving illegal activity.
But for other evictions, an appeal hearing is held no longer than 14 days from the transfer to the appeals court.
A hearing for an eviction action is scheduled within 5-14 days depending on the reason for the eviction.
The judicial officer must make a final ruling within 5 days after the initial hearing.
An appeal hearing is scheduled within 5-14 days, depending on the reason for the eviction.
1. After the landlord wins the case and gets a Writ of Possession
Once the landlord wins the case and provided the tenant does not file for an appeal or reconsideration, the court will issue a Writ of Possession a few hours to a few days after the court rules in the landlord's favor. Montana law does not specify a certain time.
The Writ of Possession is a court order that informs the tenant that the tenant must move out of their housing on the property or else law enforcement officers will forcibly remove them from the property. If the tenant fails to move out of their own accord, they will be forcibly evicted.
It can also be called a Writ of Assistance.
2. Move out process
This final step in the Montana eviction process is to move the tenant out of their housing on the property. Montana eviction laws do not dictate a specific amount of time before a tenant has to leave once the Writ of Possession/Assistance is issued.
The judicial officer may include a date for them to move out by in the Writ or once they issue the final ruling.
Only the appropriate authorities are allowed to move the tenant out of the property by force. Even if the landlord wins the case, they cannot engage in illegal methods of eviction to move the tenant out themselves.
Sometimes a tenant can leave behind personal property after a forced eviction. The tenant's personal property cannot be touched or moved by the landlord for at least 48 hours.
After this period, they can move the property to a safe location. A landlord has to give the tenant a written notice informing the tenant that they have 10 days to reclaim the property. Otherwise, the landlord will dispose of it.
Should the tenant respond to this notice, they are given another 7 days to remove it from the storage facility used by the landlord. The tenant may be charged with storage costs, and the landlord can stop them from claiming their property until storage costs are paid in full.
If the tenant does not respond to the first notice, or is unable to claim their property on time, then the landlord can continue disposing of the property.
There is no specific date and time given to a tenant once the court issues the Writ of Possession. This information may be found on the Writ or could have been issued by the judicial officer when they made their ruling.
Any personal property left behind by the tenant must be kept safe by the landlord for at least 19 days.
Montana Eviction Timeline
On average, it would take anywhere between 3 weeks to 8 weeks for a complete Montana eviction process.
Eviction hearings are scheduled in court depending on the reason for eviction.
Evictions related to the illegal activity are held earlier, within 5 days from the date the tenant should have filed their answer. Meanwhile, all other types of evictions (such as failure to pay rent) must be held within 14 days from the date the tenant should have filed their answer.
1. How to keep good records
If the tenant disagrees with the request to begin an eviction process and they reply to the court, it’s important that you keep extremely good records of everything so you can provide proof to the judge and win your case. This part is essential for winning the court case and evicting the tenant.
You can stay organized by:
- Keeping a physical paper trail - This gets VERY hard to search through, takes up a lot of storage space, and could get lost, damaged, stolen, or burnt in a fire.
- Scanning documents - Scan every document into your computer. A great scanner is the Brother ADS-1700W for under $200 or the Fujitsu ScanSnap iX1500 for $400.
- Backups - Store and backup every file using Dropbox, Google Drive, OneDrive, or any other option that is easily searchable.
- PMS - Use a property management software to save everything from lease agreements, signed documents, violations, emails, notes, invoices, payments, reminders, maintenance requests, pictures, videos, and anything you can imagine. This is used best when you also scan every document into your software.
2. Evidence to show for not paying rent
If the tenant doesn’t pay rent, and they dispute that claim, it’s important that you show the judge the following:
- Your lease agreement - Showing the terms of the agreement, when rent is due, and any penalties for late payment.
- All payments - Showing all previous payments, how they were normally made (check, credit card, ACH, etc…), and what date they were normally paid on.
- Any payment returns - If their check bounced, their bank account had insufficient funds, or they did a chargeback dispute on their credit card, show this to the Judge. Also show any fees your bank may have charged you, and any penalties you are owed according to your lease agreement.
- All messages - If you sent your tenant automated or manual payment reminders by text, email, a letter, or mail, it’s important to show this. Even though it is usually not necessary, it can be helpful to include this in the case. This is why it’s always best to have everything in writing instead of any phone calls or face-to-face meetings.
3. Evidence to show for lease violations
If you are evicting the tenant for lease violations, for example, noise complaints, unauthorized pets, or property damages, it’s important to show proof from any of the following methods:
- Security Cameras - If you have a surveillance system that can show them committing the crime or lease violation, it’s safe to say you will normally win this dispute.
- Video - If you didn’t catch them in the act, the next best thing is to record a video with your phone of any damages or the lease violation.
- Pictures - They say a picture is worth a thousand words. In this case, a picture could be worth thousands of dollars! Even if you take a video, it’s important to show the Judge any pictures too as it’s usually easier to see by email or printed.
- Lease Terms - Once again, show the court which term they violated in their lease agreement. Don’t worry if you don’t have every single term spelled out in your rental agreement. In the case where the violation is very severe, it may not have had to be specifically written in the agreement. As a good practice though, start adding all of the potential reasons to evict a tenant into your agreement.
Does an eviction go away after 7 years in Montana?
Yes. Tenant rights state that an eviction remains in the records of a tenant's rental history for 7 years before they can get a clean slate. Landlords are advised to refer to their rental history before leasing a property to a tenant.
Can you kick someone out without an eviction notice in Montana?
No. A landlord could be sued for forceful eviction of a tenant if they skip the proper eviction processes.
It is against Montana eviction law to not provide a tenant with the appropriate written notice before proceeding with an eviction action.
In the state of Minnesota, tenants can sue their landlords for three months' rent or three times the actual damages, whichever is greater, along with all security deposits and prepaid rent recoverable.
What is a self-help eviction in Montana?
Examples of illegal “self-help” evictions include changing the locks, taking the tenant’s belongings, removing the front door, or turning off the heat or electricity. Several states also specify how much money a tenant can sue for if the landlord attempts a self-help eviction. Some state laws also provide for tenant's court costs and attorneys' fees (if the tenant successfully sues the landlord) and/or give the tenant the right to stay in the rental unit.
What are the potential penalties for a self-help eviction in Montana?
According to Montana Civil Code, you may be liable for Tenant’s Court Costs & Attorneys’ Fees. The statute also gives the tenant the right to stay.
A tenant can sue you for actual damages plus violations. Tenants may ask for an injunction prohibiting any further violation during the court action.