If a tenant doesn't leave with a termination notice, a landlord will have to go to court.
If you own rental property in Montana, the answer to the question, "Can you evict a tenant?" would be a lot different than it would if you owned property in, say, New York or San Francisco. Rules governing evictions are contained in state and local law and vary greatly. The general answer to this question is a qualified yes, but is very important to fully understand the qualifications before you start the eviction process.
Commercial or Residential
All tenants are not created equal when it comes to eviction. The major distinction is whether they are commercial or residential tenants. Commercial tenants are generally regulated more by the lease they sign than by tenant-landlord law. Landlords in all states have wide latitude in writing commercial leases. Fundamentally, the terms of a lease will prevail in an eviction lawsuit. On the other hand, state and local laws generally provide a host of protections to tenants, especially with regard to eviction, regardless of what is written in a lease.
Understanding Just Cause
In most states and some cities, there are different rules for residential evictions that are and are not due to "just cause." Just cause evictions are usually related to the lease, such as nonpayment of rent. In some cities and states, just cause is defined in the applicable legislation. For instance, San Francisco's Residential Rent Stabilization and Arbitration Ordinance contains a list of 15 reasons justifying an eviction. Any reason not on the list is considered an eviction without just cause.
Without Just Cause
In most places, an eviction lacking a just cause requires the landlord to send the tenant a 30- or 60-day notice terminating the tenancy. A landlord can only terminate a tenancy without cause after a lease has expired, when there is a month to month lease, or when there is no lease. In some places, like San Francisco and many rent-controlled cities, as well as for many properties in New Jersey and New Hampshire, evictions without just cause are prohibited.
Notice with Just Cause
Virtually everywhere, landlords are permitted to evict tenants with just cause beginning with either a three-day or five-day notice terminating the tenancy. The type of notice that is used varies based on state and local law as well as on the reason for the eviction. Most often, for failure to pay rent, a "pay rent or quit" notice is sent, which allows the tenant the opportunity to pay before tenancy is terminated. A similar notice, referred to as a "cure or quit," is sent to a tenant who is violating a lease provision unrelated to rent. He, too, is given an opportunity to stop, or cure, the violation before the lease is terminated. In egregious situations, such as the tenant's repeatedly not paying rent or engaging in illegal activity, the landlord sends an "unconditional quit" notice that terminates the lease without opportunity to stay.
After the Termination
If the tenant does not leave when his lease is terminated, state law in every state requires the landlord to file an eviction action, usually called an illegal detainer, in court. Tenants have the right to put up a defense, the standards for which vary by state and, sometimes, city. If the court grants the eviction, the landlord receives a writ or judgment for possession that he can then hand over to the county sheriff to forcibly remove the tenant from the premises.
