Few readers will be assiduous followers of legal developments in access to justice within the US state of Montana. So the chances are that most missed a recent story. On 7 July, Montana Legal Services tweeted about assistance for former tenants needing help in get return of their security deposit. This included a link to an interactive deposit demand letter drafted by lawhelpinteractive.org. Self-drafted document assembly is something of a US specialism. There are, by contrast, very few examples in the UK. Out of staters might find it instructive, therefore, to take a further look at Montana’s draft and any wider lessons that it might have.
Problems with the return of tenants’ deposits at the end of a tenancy are pretty common around the world. Landlords are often reluctant to shell out the cash that they have previously taken. So acute has the problem become in England and Wales that the area is subject to a trail of regulating legislation – most recently the Tenant Fees Act 2019. This amends legislation in 2004 that requires tenant deposits to be registered and protected. It places a statutory limit on the amount of a deposit.
Outsiders’ knowledge of Montana, by contrary, is probably more limited. For those similarly ignorant to the writer, the state is nicknamed ‘Big Sky Country’ (I only knew that from a crossword clue a couple of months ago). More prosaically, the state motto is ‘gold and silver’ (in Spanish). The capital is Helena and the largest city Billings. The now defunct Billings Outlaws were a professional indoor football team (they play American football indoors?), the zip code for whose onetime base allows handy appropriation for anyone wishing to subject the interactive letter drafting to a practical test.
Cross-jurisdictional writings are full of potential bear traps – from cultural references to legal differences. Let me begin with a resonant quote from onetime British hit group, The Animals, (whose rendering of ‘The House of the Rising Sun’ surely merits continuing international fame):
‘I’m just a soul whose intentions are good. Please don’t let me be misunderstood’.
Google reveals that this might be a subconscious echo of Abraham Lincoln on the potential longevity of slavery. But the point here is that no negative criticism of Montana’s letter is intended. Quite the contrary. It is head and shoulders above anything available in the UK. But, perhaps because of that, a number of interesting points arise if you look at in some detail.
To get to the form, you begin at the relevant Montana Law Help page. The letter is contextualised. There is information on general issues relating to security deposits. There is another piece on asking your landlord to return your security deposit which gives a form letter which you can complete. And there is some helpful practical assistance: ‘It may be better to wait more than 30 days after you move to send your letter to the landlord. The law says your landlord must send you a list of deductions no more than 30 days after you move out. If your landlord waits more than 30 days to send you the list, the law does not allow the landlord to keep any of your security deposit for cleaning or damage. So, if you send your letter before the 30 days is up, your landlord could send you a list within 30 days that deducts for cleaning or damage. A landlord who makes deductions after 30 days cannot legally deduct for cleaning or damage.’
The form letter now allows for automated completion via a link to the LawHelp Interactive site. The process is in seven easy stages in which you input the important information (relevant addresses, dates, amounts). You get a printable letter. The programme even exceeds its own express limitations. Despite dire warnings for Word non-users, in fact the draft downloaded to my Mac programme unproblematically.
The resulting letter seems technically fine to me, as an English solicitor with no knowledge whatsoever of Montanan law. It recites the facts and asks for the deposit back, ending ‘Please respond to this letter within 14 days. If you do not respond, I may file a lawsuit against you.’ It is, however, an obvious form letter. If you do not make a fair copy, then it is clear where the individual details have been added: they are underlined. There is some awkwardness in the drafting eg it begins ‘I moved out of the residence I rented from you at … I moved out on … It has been 30 days or more since I moved out …’
The drafters are, of course, subject to Montana law themselves. Hence, to get into the programme a user needs to assent to four statements of understanding: the interview is not legal advice; they are not clients of its drafter; they won’t have ‘a lawyer or any individual help’; and they understand that ‘this interview does not take the place of advice from a lawyer’. Well, that is the local legal profession protected as well as it can be from the unauthorised practice of law. And it may explain the unfairness of any reflection that the draft is a bit bare bones.
The letter is technically fine but I would send any trainee who proudly presented it as a draft back to a reworking with a flea in their ear. The idea of a letter like this is informational but it also merits a hint of intimidation. The tenant is saying that they know their rights and they are going to enforce them: less hassle for you, the landlord, if you shell out now rather than do what is probably your instinct – procrastination.
My hapless trainee would get a string of instructions: ‘take out the repetition (you ‘moved out’ or ‘in’ four times in the four opening sentences); give more detail if you can about the tenancy (eg from x to x I was a tenant of your property at y’; be more precise (ie not ‘please send me what you owe on my security deposit’); and don’t end with vagueness (even if you don’t want to say that you ‘will sue’ rather than ‘might’, it is often helpful to ask the landlord for his lawyers’ details for service – if you can do that in Montana); make this sound more like an individualised letter.’ Overall, the letter needs to feel as if it is the product of an informed human brain not a mindless automat.
Finally, I would also send the flailing trainee off to research the concept of legal design and to summarise the entire works of Margaret Hagan by tomorrow. Get some visuals.
At this point, critique has the admitted potential to become completely unfair. Because I would also say that we have reached a stage where assistance with unbundling legal services needs to progress beyond help with one-off letters. We need to develop the idea – manifest from the Rechtwijzer onward – that unrepresented litigants need assistance with the whole process that they face and not just one element of it. For that, jurisdictions need to free themselves of the regulatory shackles imposed by the interests of the legal profession. For Heaven’s sake, there is enough work to go round. The sky has not fallen in jurisdictions, like my own, where anyone can give legal advice subject to the general rules of negligence. For jurisdictions where it can be done, that would mean integrating a draft like this within the overall goal of getting the deposit back for the user – prompting action at certain points etc.
So, finally, I would really encourage readers to filch three Montana zip codes (the system does not store your answers unless you ask it to) and test the letter for themselves. You end up with something which knocks the ball out of the park when compared with what you can get in my jurisdiction. But, once you start to pull it apart, opens up the possibility of being so much better. And, it is this process of comparative analysis (whether you agree with the specific arguments above or not) which it would be so good to encourage. Any legal services body feel confident enough in itself to volunteer to put up a document or two and invite international (or even national) deconstruction and analysis?