Attorney’s fee provisions are often deployed within agreements to intimidate renters into not pursuing claims. The cost/benefit analysis goes something like this: “Is it worth suing to get $150 of my deposit if I’m also risking hundreds, if not thousands in attorney’s fees to the other side? No way, I can’t even afford to get an attorney for myself.”
Under the Residential Landlord and Tenant Act of 1977, the Lease may include any provision not specifically prohibited under the Act. MCA § 70-24-201(1). So, if a term isn’t illegal under the Act, it can be included in your Lease. For instance, the Act does doesn’t’ prohibit a Lease term forbidding pets (yes it’s a double negative, and yes you understood it). However, the Act specifically contemplates attorney’s fees -- “In an action on a rental agreement or arising under this chapter, reasonable attorney’s fees, together with costs and necessary disbursements, may be awarded to the prevailing party notwithstanding an agreement to the contrary. MCA § 70-24-442(1). Translation: A judge…may award fees and costs…to the prevailing party. They key concept is “may.” Almost all leases contain “must” or “shall” language, but the law says “may,” so the law controls. The Act goes even further by specifically prohibiting Lease provisions attempting “to waive or forego rights or remedies under this chapter” or “to indemnify the other party for the liability or the costs or attorney’s fees connected therewith.” MCA § 70-24-202. Translation #2: No matter what the lease says about attorney fees, you cannot be bound to an absolute attorney’s fee obligation. It doesn’t matter that your lease says otherwise.
The takeaway here – don’t let an attorney’s fees provision in your lease stop you from pursuing your legal right to recover for violations of the Landlord and Tenant Act. The attorney’s fees provision was included in the Act for good reason – to encourage attorneys to take landlord tenant cases even when the client cannot afford to pay fees out of pocket. In this respect, the Landlord and Tenant Act operates to level the playing field; not only does it eliminate or significantly reduce the client’s fee obligations, it creates risk to landlords who might otherwise “drag things out” in an attempt to exhaust a renter’s resources before they ever see the inside of a courtroom.
So, take a sigh of relief, ignore that illegal contract provision (even curse it, go right ahead) and find yourself a lawyer who knows how this stuff works.
We are pleased to report that KJD attorneys have obtained more than $100,000 in settlements on behalf of our pro bono clients in 2016. Matters included landlord-tenant disputes, litigation over residential property contamination, and an action on behalf of elderly clients for negligence and fraud against building contractors. We're hopeful that 2016 will see us exceed the 300-plus hours of pro bono time donated by KJD attorneys in 2015.
KJD attorneys Travis Dye and Helia Jazayeri recently filed and served Galbraith v. Professional Property Management, Cause No. DV-16-928, in the Fourth Judicial District (Missoula County). The action targets “lease violation fees” imposed by property management companies with little or no notice, little or no reason, and that put renters struggling to make ends meet even further behind. The lawsuit alleges that the fees are illegal under the Montana Residential Landlord-Tenant Act and seeks class certification.
Galbraith is the subject of today’s article in the Missoula Independent, “Nickeled and Dimed: Renters take the fight to property managers over ‘lease violation fees.’”
The Servicemembers Civil Relief Act provides active-duty military personnel (and others, including some family members) with protection against civil proceedings. This includes state court civil proceedings. Here's a link to the American Bar Association's overview of the SCRA. The Act protects broadly when it applies, but it does not apply in every case involving an active duty member of our armed forces. If you're active duty and have questions you should consult with a military legal assistance attorney.