Montana Blocks New HOA Rental Bans on Existing Owners (§ 70-17-901)

Section 70-17-901 was enacted by Chapter 339, Laws of 2019 and applies to actions and omissions occurring on or after May 9, 2019. Subsection (1)(a) is the operative rule: an association may not enter into, amend, or enforce a covenant, condition, or restriction "in such a way that imposes more onerous restrictions on the types of use of a member's real property than those restrictions that existed when the member acquired the member's interest in the real property." The single escape hatch is written consent from the specific owner affected, given at the time the covenant or amendment is adopted. A majority vote of the membership does not substitute for that consent, and neither does a notice-and-objection procedure in the bylaws.

What makes this a rental statute rather than a general covenant statute is the definition in subsection (6)(e). "Types of use" is defined to mean three lawful uses: use for residential, agricultural, or commercial purposes; the ability to develop the property under applicable law; and, at (6)(e)(ii), "the ability to rent the real property, including the land and structures on the real property, for any amount of time." The phrase "for any amount of time" is what reaches short-term rentals. If nightly and weekly rental of your Montana lot was lawful and unrestricted under the recorded documents on the day you took title, a later amendment imposing a 30-day floor, an annual-lease requirement, a guest cap, or an outright prohibition cannot be enforced against you without your signature.

The protection is not automatic in the county records, and Montana puts the paperwork burden on the owner. Under subsection (1)(b), a member claiming the benefit of subsection (1) must ask the association to record, or to allow recording of, the exception applicable to that member with the clerk and recorder of the county where the property sits. The member has to give the association the date the property was conveyed to them and has to pay the recording fees. Recording the exception is what puts a future title examiner, buyer, or lender on notice that the newer covenant does not bind that parcel.

The benefit is personal to the owner who held title before the change, and Montana cuts it off cleanly at resale. Subsection (2) provides that a successor-in-interest may not claim the benefit of subsection (1) as to any covenant the association entered into, amended, or enforced before the successor bought, even if that covenant was unenforceable against the previous owner. Two exceptions survive: a successor that is owned by or shares ownership with the previous member, and a lender that acquired the property through foreclosure. Practically, that means a Montana short-term rental exception dies at closing. A buyer purchasing into a subdivision that adopted a rental ban in 2022 takes subject to the ban even if the seller was exempt from it.

Two classes of covenant sit outside the section entirely. Subsection (3) excludes a covenant that is not subject to enforcement by a homeowners' association and a covenant "required in order to comply with applicable federal, state, and local laws, ordinances, and regulations." So where a city such as Whitefish or Bozeman regulates short-term rentals by zoning and the covenant simply mirrors that ordinance, section 70-17-901 does not shield the owner from the underlying local rule. Subsection (4) confirms the other side of the line: a use restriction that already applied to the parcel when the member acquired their interest remains fully enforceable.

Condominiums are covered. The definition of "homeowners' association" in subsection (6)(a) reaches both an association of all owners in a bounded geographic area that is governed by a declaration or bylaws and "an association of unit owners as defined by 70-23-102 subject to the Unit Ownership Act." Montana reinforced that with section 70-23-507, added by the same 2019 act, which says in a single sentence that an association of unit owners shall abide by 70-17-901. A condominium board in Missoula or Big Sky is therefore under the same purchase-date rule as a subdivision association.

What Montana does not have is as important as what it has. There is no statutory cap on the percentage of units an association may require to be owner-occupied, no statutory minimum lease term, no supermajority vote threshold specified for adopting a rental amendment, no grandfather period measured in months or years, and no state agency that reviews association rental rules. Montana has no comprehensive planned community act at all: Title 70 runs from Chapter 15 through Chapter 33 without one, and association authority otherwise comes from the recorded declaration and from the Montana Nonprofit Corporation Act at Title 35, chapter 2. Everything an owner gets on rentals comes from the single section above.

Nothing in section 70-17-901 creates a fine, a penalty, or an administrative complaint route, and Montana has no state regulator for homeowners' associations. Enforcement runs through the district court in the county where the property lies. Section 70-17-210(1) identifies who may start a covenant action: a party to the agreement containing the covenant or that party's successors in interest, the owner of an interest in real property burdened or benefited by the covenant, and the association or other governing body itself. An owner faced with a newly adopted rental ban therefore has two routes: raise 70-17-901 as a defense when the association sues to enforce, or file first for a declaration that the amendment is unenforceable against that parcel. Subsection (5) of 70-17-901 says the section creates no private right of action for actions or omissions occurring before May 9, 2019, which implies the right of action for conduct after that date.

An owner has a second, independent defense under section 70-17-210. Subsection (2) allows an owner to assert that a covenant has been abandoned by showing that no enforcement action was undertaken for the period prescribed in 27-2-202, and subsection (4) defines "enforcement action" narrowly: the covenant must have been "equally and consistently enforced under whatever method an association uses to enforce covenants on all properties subject to the covenant over at least a 2-year period." An association that has looked the other way while several neighbors rented nightly has a real problem proving consistent enforcement. Subsection (3)(a), as amended twice in the 2025 session, adds that an association or governing body that has not met for 15 years is barred from taking an enforcement action against an owner whose use is substantially similar to the use of other properties in the development, subject to carve-outs in (3)(b) for covenants needed to comply with law, for easements and rights-of-way, for infrastructure maintenance, for court orders, for utilities, and to abate a nuisance. Once a covenant is abandoned by court order or by a recorded notice of abandonment, 70-17-210(2) precludes everyone from enforcing it differently against a similarly situated owner.

The owner-side step to take before any dispute is the recording in 70-17-901(1)(b). Ask the board in writing to record the exception, supply the deed date, and pay the recorder's fee. If the board refuses, the statute lets the member or a designee record it.