HB 282 Factsheet
HB 282 – speeding up the timeline for evictions, making it mandatory for the court to award treble (triple) damages to landlord in some cases
HB 282 would negatively impact renters in Montana.
In summary, this bill, if passed, would speed up the court process of eviction, and would make it easier for landlords to recover treble (triple) damages against tenants who stay past the deadline to vacate given in the landlord’s notice/letter of termination of the rental agreement.
HB 282 would make these changes:
I. Speeding up the timeline for eviction lawsuits (court actions for possession):
Tenant must file a written answer with the court within 5 days after the tenant is served with the landlord’s court complaint for possession (currently, it’s 10 days). [bill p. 5, line 27, and p. 9, line 22]
The court must hold a hearing on the lawsuit within 5 days after the tenant files an answer (currently, it’s 14 days). [bill p. 4, line 22 and p. 8, line 22]
If the court action is appealed from justice court to district court, the district court must be held within 5 days after the case is transmitted to the district court (currently, it’s 14 days). [bill p. 4, line 26 and p. 8, line 25]
Allows the landlord to include a claim for actual damages for breach of the rental agreement in the same lawsuit as the eviction. [bill p. 4, line 19 and p. 8, p. 19]
The court must enter its ruling on the lawsuit at the hearing (currently, it’s within 5 days after hearing) [bill p. 5, line 6 and p. 9, line 6]. If the lawsuit includes a claim by landlord for tenant’s breach of the rental agreement, that hearing must be held within 45 days after the hearing on possession (currently, there is no deadline for that) [bill p. 5, line 1 and p. 9, line 1].
II. Landlord’s holdover remedies (when tenant stays past the deadline given in the landlord’s notice of termination, before suit is filed):
If the tenant is month-to-month and the landlord has given tenant a lawful 30-day notice and the tenant doesn’t move out, then it’s mandatory for the court to order the tenant to pay the landlord 3 times the rent or 3 times the landlord’s actual damages, whichever is greater (currently, the law treats month-to-month renters and renters with a term lease the same in this section, and does not make mandatory any monetary award to the landlord). [bill p. 5, line 23]
For month-to-month mobile home lot rentals, HB 282 could be read to allow a landlord to terminate that rental agreement without cause. If the lot-renter remains on the lot after receiving a lawful 30-day notice from the landlord, then the court must order tenant to pay landlord not more than 3 months’ rent or 3 times the landlord’s actual damages, whichever is greater. (Currently, Montana law does not allow a landlord to terminate a mobile home lot rental agreement without cause, and doesn’t make mandatory any monetary award to the landlord.) [bill p. 9, line 17]
III. Landlord’s access to the rental (when the tenant refuses to allow the landlord lawful access to the premises, such as after the landlord gives tenant a 24-hour advance notice of entry, or when the tenant adds a lock without giving landlord a key)
After tenant’s refusal of access, the landlord may give the tenant a 24-hour notice to correct or file suit to obtain an immediate injunction to compel access. If the tenant doesn’t allow access after receiving the 24-hour notice to correct, the landlord may give tenant a 3-day notice of termination of the rental agreement. (Currently, the law doesn’t provide for the landlord’s 24-hour notice to correct, and doesn’t use the word “immediate” in regards to an injunction.) [bill p. 4, lines 4-15 and p. 8, lines 4-15]
More details about the three items listed above:
I. Speeding up the timeline for eviction lawsuits (court actions for possession):
A. Tenant’s answer due in 5 days instead of 10 days
Current law requires the landlord to go through the following process to evict a tenant from a rental: First, the landlord gives the tenant a written notice to vacate in so many days (the number of days depends on the reason for termination). Then, if the tenant doesn't vacate by the deadline given, the landlord must file a court action for possession of the rental premises (this is the eviction lawsuit also called a court action for possession). The landlord must get the tenant personally served with the lawsuit papers. After getting served, the tenant currently has 10 business days to file a written answer with the court. Then, within 14 days after the tenant's answer is filed, the court must hold a hearing on the eviction. If the tenant doesn’t file a written answer within the 10 days allotted for the answer, then the landlord can get a default judgment of eviction against the tenant.
This bill would require a tenant to file their written answer with the court within five days of being served, rather than within ten days. This shortened deadline would make it much harder for tenants to get their answers filed with the court on time. Most tenants are not familiar with court processes and don’t realize the importance of filing the answer. They don’t know what to say in an answer. They don’t know that if they don’t file an answer by the deadline, then they will lose their opportunity to show up in court to tell the judge their side of the story. Shortening the deadline to 5 days does not give the tenant enough time to figure out how to respond to the landlord’s complaint. Five days does not give the tenant enough time to investigate any available court forms, to consult with a self-help law center, or to consult an attorney.
B. Requiring court hearing within 5 days of a tenant’s answer, instead of 14 days
This shortened deadline would burden an already overwhelmed court system. Most evictions are heard in justice courts, which have concurrent jurisdiction over evictions with district courts. All Montana judges, whether justice court or district court, already have calendars full of criminal cases and other legal matters, and requiring the court to hold a trial for a newly filed eviction case at the last minute will burden the courts. Criminal defendants have constitutional rights to speedy trial, and judges cannot postpone criminal court appearances to accommodate a civil eviction trial.
Shortening the deadline for an eviction trial to 5 days also means that there’s a risk that neither the landlord nor the tenant will timely receive the court’s written notice of the date of the trial. The courts send the written order setting the hearing date by first-class mail to the landlord and the tenant, and it is not unusual for a letter in Montana to take 2 or 3 days for delivery, even when mailed in the same town. So, an unintended consequence of this bill would be that more tenants might not even receive notice of the trial date in time to appear in court, which would violate the tenants’ constitutional rights of due process of law.
Tenants need time to research their options and to consult an attorney after they get served with the court papers. Already, with the current 14-day trial requirement, some tenants are unable to timely access legal counsel. By shortening that requirement to 5 days after the tenant files an answer, more tenants will end up being ill-prepared for trial and/or having to represent themselves at trial.
C. Requiring a judge to rule from the bench immediately after the eviction trial, instead of within 5 days
Currently, judges are not required to rule on eviction cases immediately after trial. An eviction hearing may involve many witnesses and dozens of documents. Thus, after a long trial, a judge may want to take some time to review the evidence presented at trial, and the applicable laws. Requiring a judge to rule from the bench takes away the option for the judge to make a well-considered ruling under the law.
D. Allowing landlord to include in the eviction lawsuit a claim for damages for breach of lease
Currently, § 70-24-427 allows the landlord to file a court action for possession and for rent, and to file a “separate claim for actual damages for any breach of the rental agreement.” HB 282 proposes to remove the words “separate claim,” presumably so that a landlord can file all of its claims against a tenant in one lawsuit.
A claim for damages should be separate from the possession lawsuit. Because the claims for possession and rent must be held within such a short timeframe (currently 14 days; if HB 282 is passed, it would be 5 days), there is no time to hold a hearing on any breach of lease claims. HB 282 proposes to require a hearing within 45 days on the breach of lease, but that causes problems in the case of appeal. Consider this: Let’s say the landlord loses at the possession hearing and wants to appeal that decision to district court. If the landlord’s lawsuit also includes breach of lease claims, the landlord would have to wait to appeal the possession judgment until after the breach of lease claims are tried, because the claims are all part of the same lawsuit. The general rule of appeals is that you can only appeal a final judgment that adjudicates every claim raised in the lawsuit, so the landlord would have to wait to appeal the possession judgment until after final judgment is entered.
It’s preferable to leave the breach of lease claims as separate from the claims of possession and rent due. That allows the claims for possession and rent to be tried under their accelerated timelines. It is not burdensome to require the landlord to raise any breach of lease claims separately. Many cases will not involve any breach of lease claims. If they do arise, they are usually related to damage or cleaning costs left after a tenant moves out. A landlord shouldn’t be allowed to include in an eviction lawsuit claims related to a tenant’s move-out – since the tenant is still living there at the time the eviction action is filed, it’s impossible for a landlord to know whether there will even be any damages after the tenant moves.
II. Landlord's Holdover Remedies
Currently, under § 70-24-429, a tenant may be ordered to pay “holdover” damages to the landlord when the tenant stays past the deadline given in the landlord’s notice of termination, before suit is filed. Whether to order a tenant to pay holdover damages, and the amount of those damages (if any) is left to the discretion of the judge. The amount to be awarded is “not more than 3 months’ periodic rent or treble damages, whichever is greater.” [70-24-429 (2)] “Treble damages” means 3 times the amount of the actual out-of-pocket costs the landlord suffered because of the tenant’s holding over in the rental.
It’s important to note that these “holdover” damages do not have to be related to any actual out-of-pocket costs incurred by a landlord. Holdover damages are kind of like a penalty, to be assessed against a tenant who stays past the deadline to vacate, if the tenant’s holdover is found to be “purposeful and not in good faith.” These “holdover” damages are totally separate from any rent claim or other claims for the landlord’s actual, out-of-pocket costs related to a tenant’s breach of the lease. Holdover damages are additional damages, on top of any actual damages awarded to a landlord.
HB 282 would make it mandatory for a judge to order holdover damages in the maximum amount if the tenant is month-to-month and the landlord has given tenant a lawful 30-day notice and the tenant doesn’t move out. This change is significant because it ties the hand of the judge, and requires a treble damages award against the tenant, even if the judge doesn’t think such a penalty is warranted. For instance, if a mobile home owner/lot-renter receives a 30-day notice to vacate and cannot find anywhere to move their mobile home, should the judge be required to order the tenant to pay the landlord treble damages for that failure to move? Or, consider the tenant who is a mother of a child with disabilities who needs certain accessible features in the rental and who has been a good tenant in this rental for 7 years. After she receives the landlord’s notice to vacate in 30 days for no reason, she can’t find a suitable place to move. HB 282 would require the judge to order that mother to pay the landlord the greater of 3 times the rent or treble damages for her failure to move out in 30 days.
Any money judgment entered against a tenant has a significant impact on that tenant’s ability to find rentals in the future. Many landlords will choose not to rent to persons who have prior evictions on their records, and/or who have money judgments against them that have not been paid. In Montana’s tight rental markets, it’s best for tenants not to have any money judgments against them from landlords. Montana law should not make mandatory the award of treble damages against tenants for unlawful holdover, especially when there just aren’t enough rentals available.
Another concern with the amendments proposed to § 70-33-429(3), is that HB 282 could be interpreted to allow a landlord to terminate a month-to-month mobile home lot rental agreement without cause. If the homeowner/lot-renter remains on the lot after receiving a lawful 30-day notice from the landlord, then the court must order tenant to pay landlord not more than 3 months’ rent or 3 times the landlord’s actual damages, whichever is greater. Currently, there is no provision in Montana law that allows a landlord to terminate a mobile home lot rental agreement without cause. If HB 282 passes and its changes are made to -429(3), then a landlord could argue that the law now allows no-cause terminations, because terminations without cause are now referenced in -429(3). That would mean that a mobile homeowner with a month-to-month lease who just spent $7,000-10,000 to move their home onto the rented lot, could be evicted anytime, even the very next month, on just a 30-day notice to vacate for no reason. That violates Montana’s longstanding public policy that mobile homeowners cannot be evicted for no cause, because of the costs related to moving the home, the lack of availability of spaces to rent for the home, and the risk that a no-cause eviction could cause the homeowner to lose their home for no reason if they can’t move the home as requested within 30 days.
III. Landlord’s access to the rental
HB 282’s changes to §70-24-424 don’t substantially alter current law.