These days, Whitefish-based attorney Paul Leisher says that his pro bono work is done primarily through the Montana Innocence Project, where he sits on the board of directors. But earlier in his career he accrued experience representing people in tenant’s rights cases in which renters found themselves in disputes with their landlords.
Leisher’s perspective is informed not only by his legal background, but by his own experience as a renter until the age of 37. Now in his early 40s, Leisher is a homeowner, and a landlord. About 20 people came out to Soroptomist Park last Thursday night to hear Leisher speak at an educational event put on by the Whitefish nonprofit Shelter WF, which describes itself as fighting for an equitable housing future in Whitefish. Handouts were available at the meeting featuring information pulled from the Montana Legal Services Association website.
Shelter WF President Nathan Dugan said that the meeting was among their best attended since the nonprofit formed in 2022, and he indicated that the group would look for more opportunities to host similar events in the future.
Shortly after Leisher announced that he’s currently a landlord, a member of the crowd interjected to ask if he has any apartments available for rent. The question was met with laughter from others in attendance, but it hinted at the desperate state of housing in Whitefish where options are scarce and in many cases unaffordable for residents. Before the end of the event, Leisher had fielded a mixture of questions and comments, including what options a renter has when they suspected there are environmental contaminants in their unit like methamphetamine or mold, and how to address a situation in which insufficient insulation, including gaps in window frames, could lead to a renter taking on soaring utilities costs come winter.
Disputes between tenants and landlords can be wide ranging, and Leisher said that there aren’t always easy answers, but he focused his presentation on the three issues that he has most frequently fielded questions about.
“There are a few spots where things really clearly fall on one side of a line or the other, but reality is messy. It’s complicated, and law exists in language, which can be interpreted in multiple ways. That’s the big joke of law, you ask an attorney ‘How does this work? How does that work? What happens in this situation?’ The answer is always ‘It depends.’”
Generally speaking, he said that if people don’t have an attorney and decide to take legal action over a dispute of less than $10,000 they will want to do so in Flathead County Justice Court. Technically, one could file a civil claim in municipal court, but Leisher said that in his experience municipal courts in Montana aren’t experienced or equipped to handle civil cases, which can create an additional barrier to achieving a timely resolution.
Landlords commonly don’t know what they’re allowed to hold from a security deposit, or what requirements they have to meet in order to do so, Leisher said.
“We have a Montana Residential Security Deposit Act, which was passed in the 70s,” Leisher said, adding that it’s relatively tenant friendly compared to a lot of other states.
“When it comes to security deposits, the key pieces that I feel every tenant should know — and every landlord — are, first of all, the landlord can’t withhold anything for wear-and-tear,” Leisher said.
He presented the example of a landlord withholding money to repaint. “Unless the tenant destroyed the paint, the landlord can’t do that. So any kind of ordinary wear-and-tear, or it’s just time to update things — the carpet’s worn out — they can only keep money for damages that the tenant caused. The law’s ultra clear on that one.”
If there are damages a landlord believes a tenant has caused, they can’t simply deduct the expense from a security deposit, Leisher explained.
“They have to send you an itemized list within 30 days. If they don’t send you that list within 30 days, you get your full security deposit back, they cannot withhold any of it. They don’t know that, they will fight you tooth-and-nail on that, you may have to get an attorney and go sue them,” Leisher told attendees.
Additionally, landlords are required to give a tenant a condition report which documents the condition of the unit when it is rented. In some cases they will ask the renter to fill out the report themselves. But the tenant does not have to fill out the report, and the law places the obligation on the landlord to create the condition report. If they don’t do it, then no record exists. In the absence of a condition report the landlord must prove any damages caused by the tenant by clear and convincing evidence. Landlords, Leisher said, do have a right to retain a security deposit for unpaid rent, or any fees, such as late fees.
Security deposit money can be withheld for cleaning, but Leisher pointed out a notable caveat, which is that a detailed list has to be provided in writing, and the tenant has to be given 24 hours to clean the items on the list.
Leisher described withholding rent to try and pressure a landlord to make a repair that they are dragging their feet on as an option that’s not recognized by the law as an acceptable remedy. As he explained, the law is actually somewhat vague on the issue, because it stipulates that repairs need to be done in a “reasonable amount of time,” which means that ultimately if a situation reached court, a judge would have to decide what that means on a case-by-case basis. What renters can do, Leisher said, is pay for the repair themselves and deduct it from their next rental payment, so long as that amount does not exceed one month’s rent. If a renter finds themselves in that situation, Leisher encouraged them to keep their receipt, and send paperwork to their landlord.
If a landlord fails to take action on a repair that’s deemed an essential service, like hot water, electricity or heat, after being given a reasonable amount of time and a renter stays somewhere else, a renter can’t deduct the cost of their stay elsewhere from rent, but they don’t have to pay rent for the period where they are staying elsewhere, Leisher said. Renters can also recoup a portion of their rent if part of the property, like a bedroom, is unusable for a period of time due to repairs that haven’t been performed. A tenant would essentially make the argument in small claims court that part of the house was unusable, and so they are due part of their rent back over the period in which the repairs weren’t completed.
Evictions and Leases
On a month-to-month lease, a landlord only has to give one month’s notice for a tenant to vacate the rental. If there’s no written lease, the default is month-to-month, which means that one month’s notice is all that’s required. If a tenant has a more lengthy lease than month-to-month, Leisher said a landlord can’t make a tenant move out unless there’s a breach of the lease.
Leisher characterized forcing an eviction process as a last resort to consider if the alternative is something like being without a home during the wintertime. An eviction lawsuit would ultimately be recorded in public records, meaning someone could have trouble renting in the future if a future landlord finds documentation of the eviction in a public records search on a potential tenant. Leisher said he assisted a client once in trying to slow down an eviction process because she was on a fixed income, with nowhere else to go, and needed more time before she could move in with family. Leisher said that it’s not necessarily difficult for a landlord to evict a tenant, but that the process can be time consuming, and involves law enforcement carrying out the eviction. In order to evict a tenant, a landlord must file an eviction lawsuit against a tenant, and can’t force a tenant out, or change the locks on them, until that lawsuit is resolved.
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