Unreasonable Entry by Landlord

[Truckinman]

hello,
this is taking place in Montana in an apartment i have rented since 2003. i am an otr truck driver and am often gone for several weeks at a time.
there is access to the sub-basement thru my apartment and the landlord needs access to maintain and repair the boiler and hot water heaters.
in my lease, it mentions that the landlord can access the subbasement thru my apt without a 24 hour advance notice in the case of an emergency. Montana code states the landlord can enter an apt with out 24 hour notice in the case of emergency. it also states under normal circumstace the landlord has to give a 24 hour notice to access,
but the code doesnt state they have to notify the tenant if they go in for in emergency ,say, within 24 hours?
i have read the codes and NOT found any mention that the landlord MUST notify me that my apt was entered due to an emergency. the law seems to leave that part out. Most of the time, they do not even leave me a card on the door saying they were there. Normally the way i conclude they were in there was that my boots and shoes are tossed out of the closet so as to gain access to the sub-basement. a year and half ago i verbally ask the manager to notify me that they were going into my apt for an "emergency". she said she would, but i have yet to receive a phone call that they were going in. they typically only go in to do routine "emergency" checks and incase someone calls and says there is not heat. when i have been there i have had them just come, knock on the door, and say hi, i want to check the boiler. so in their mind, they dont have to give 24 hour notice for routine checks either.
they installed a new boiler last fall, when i returned i found a dusty outline of where a workman had sat in my red leather chair. so i am now pissed and have had enough.
Unfortunately, i have not kept good records of all this. possibley i could get a restraining order against them for wrongful entry, if so, it may cause them to put an exterior entrance to the sub-basement. which would tickle me to no end. But how much proof would i need to get a restraining order against the landlord for this?
i am in the process if writing a letter to the landlord, stating my problem with them just entering my apt and not even telling me they have been there, for an emergency or otherwise. i would not say i am considering a restraint to entry in the letter, but what might be good to say in the letter. i believe the landlord thinks she is within the law, based on how it is written and the clause in the lease.



let me know, thanks.

[Mr. Knowitall]

There's no such thing as a routine "emergency" check. If it's routine, it's routine - and you should be getting proper notice.

(1) A tenant may not unreasonably withhold consent to the landlord or the landlord's agent to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations, or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.

(2) A landlord may enter the dwelling unit without consent of the tenant in the case of an emergency.

(3) A landlord may not abuse the right of access or use it to harass the tenant. Except in the case of an emergency or unless it is impracticable to do so, the landlord shall give the tenant at least 24 hours' notice of the intent to enter and may enter only at reasonable times.

(4) A landlord has no other right of access except:

(a) pursuant to court order;

(b) as permitted by 70-24-425 and 70-24-426(2); or

(c) when the tenant has abandoned or surrendered the premises.

(5) A tenant may not remove a lock or replace or add a lock not supplied by the landlord to the premises without the written permission of the landlord. If a tenant removes a lock or replaces or adds a lock not supplied by the landlord to the premises, the tenant shall provide the landlord with a key to ensure that the landlord will have the right of access as provided by this chapter.

A rental agreement may not provide that a party:

(1) agrees to waive or forego rights or remedies under this chapter;

(2) authorizes any person to confess judgment on a claim arising out of the rental agreement; or

(3) agrees to the exculpation or limitation of liability resulting from the other party's purposeful misconduct or negligence or to indemnify the other party for that liability or the costs or attorney's fees connected therewith.

How long are you typically absent?

(1) If the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of 7 days, as provided for in 70-24-322, and the tenant fails to do so, the landlord may recover actual damages from the tenant.

(2) During an absence of the tenant in excess of 7 days, the landlord may enter the dwelling unit at times reasonably necessary.

(3) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the rental agreement terminates as of the date of the tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose is a month or a week, as the case may be.

[Truckinman]

well, i really appreciate the response. and you quoted code i have already looked at. but you havent addressed the problem i am having. which is they dont leave me notice after having been in the apt to check on the boiler. and that issue is not spelled out in in the code, is it? so what do i do? as i said, i have verbally requested they let me know they have been in there with in a reasonable time, the land lady said she would do that, i gave her my cell, but she still doesnt do that. probably because legally it is not spelled out in the code! if they get a call from another tenant saying there is no heat, that is an emergency, and in they go. on the other hand i have been in there when i get a knock on the door, and it is the maintenance guy saying he needs to check the boiler, that is routine, with out a 24 hour notice. but i havent kept records. is the landlord required to keep records of all maint done to an apt, and whether a notice has or was given? do you see the dilemna, mr knowitall?

[LawResearcherMissy]

probably because legally it is not spelled out in the code!

I think you've answered your own question, here.

It's not spelled out in the code, so she's not doing it. You can ask her again to notify you that she has entered, but there's nothing you can do to force her to do so.

Have you considered moving at the end of your lease term, to someplace where you won't have to suffer such regular intrusions?

[KeyWestDan]

You will NEVER get a restraining order for that purpose against the property owner.

You can demand advice notice for anything not truly an emergency, and a written notice left in your apartment detailing any emergency entry if you are not there. I would put it in writing, certified mail, and also complain about the maintenance man or other unauthorized people making themselves "at home" in your apartment.

If entrance to the common basement is thru your apartment, it is highly likely that your apartment is NOT legal. I can't believe any code or building inspector would allow that. That would NEVER be permitted in a building plan. Any entry to a common basement would have to be thru a common area like a hallway.

If the landlord enters without notice for a routine matter or "just to check" than you can have the landlord ARRESTED for trespass. I have seen it happen and have it done, even in a situation where a landlord is renting out bedrooms in his own house.

Of course, that may or may not help your situation.

[Truckinman]

thanks for the reply.
you bet i have considered moving out "B e f o r e" the end of my lease.
i would think that in this case there would be some interpretation of the law.
if i could research the case law, then i might find some case that would help my favor.
even though it isnt spelled out, i would think if the law wants a 24 hour notice before routine entry, then they would certainly want the tenant notified if there was an emergency entry, even if it is after the fact.