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Hines v. Topher Realty, LLC

Supreme Court of Montana

March 13, 2018

ELIZABETH JANE HINES, Plaintiff and Appellant,
v.
TOPHER REALTY, LLC., Defendant and Appellee.

          Submitted on Briefs: January 10, 2018

         APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2016-468 Honorable Mike Menahan, Presiding Judge

          For Appellant: Teal Mittelstadt, Attorney at Law, Helena, Montana

          For Appellee: Gregory A. Van Horssen, Van Horssen Law & Government, PLLC, Helena, Montana

          OPINION

          Mike McGrath, Chief Justice

         ¶1 Elizabeth Jane Hines (Hines) appeals from the First Judicial District Court's order reversing the Justice Court's order which found Topher Realty LLC (Topher) failed to comply with § 70-25-201, MCA, and therefore, Hines was entitled to a return of her security deposit. We affirm.

         ¶2 We restate the issue on appeal as follows:

         Whether the landlord complied with the requirements of the Montana Residential Tenants' Security Deposits Act, Title 70, chapter 24, MCA, prior to deducting costs of cleaning from a vacating tenant's security deposit.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On November 5, 2015, Hines provided Topher with a written thirty-day notice of her intent to vacate her rental property. The last day of her tenancy was December 5. In her letter, Hines requested Topher deduct the cost of carpet cleaning from her deposit, as she would not be cleaning the carpets. The next day, Topher sent Hines a parcel, which included a letter acknowledging the thirty-day notice and informing Hines that the property is to be cleaned and ready to re-rent on or before her move-out date of December 5. The letter informed Hines a move out inspection was scheduled for December 2.

         ¶4 The parcel included three other documents: "tips for cleaning, " "move out appointment paperwork, " and "move out cleaning checklist." The documents gave tips for cleaning, a generalized list of what needed to be cleaned prior to vacating the premises, and what cleaning products work best in each area of the home. The move-out cleaning checklist stated that after the inspection Hines would be provided twenty-four hours or until her move out date to complete any cleaning still necessary. Two out of the three documents stated that the property must be cleaned and returned in the same or better condition than Hines received it; if cleaning was not done or was unsatisfactory, a cleaning service would be hired at $45 per hour, and that the cost would be treated as damages and deducted from the deposit.

         ¶5 On December 2, Topher's agent, Cindy Austin (Austin) arrived at Hines's rental to conduct the inspection. Austin gave Hines another copy of the generic "move out cleaning checklist, " which again provided her with the information that she would have twenty-four hours from the inspection date to complete the cleaning, and if items on the checklist were not completed, Topher would hire a company to clean, and that expense would be taken out of the tenant's deposit. As Austin assessed the apartment, she filled out a preprinted written cleaning checklist, indicating which items had been cleaned with a mark. The only items checked off the list were the windows and sills. Hines and Austin both signed the paperwork; Hines was provided a copy. Later, Hines testified that she received the cleaning checklist filled out by Austin, but that she had not completed cleaning prior to the December 2 meeting. On December 5, Hines dropped the keys to her rental property into Topher's drop box.

         ¶6 On December 14, Austin went to the rental property and discovered the property had not been cleaned in accordance with the checklist. Austin hired a company to do the cleaning. On January 4, 2016, Topher mailed Hines a statement of deductions from the security deposit. The statement showed that Hines had a $1, 075 security deposit, that $85 was deducted for repair of a window, $150 was deducted for carpet cleaning, and $314.02 was deducted for general cleaning. Topher refunded Hines $525.98.

         ¶7 Hines filed an action in Justice Court asserting Topher improperly withheld the security deposit in violation of § 70-25-201(3), MCA. The Justice Court found Topher had violated the statute. Topher appealed and the District Court ...


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