Monday, February 24, 2014

Utah Landlord’s Guide to Evict a Tenant by Paul Dodd

If you own a rental property, chances are you have or one day will need to evict a tenant.  Utah’s eviction law, called the Unlawful Detainer Statute Utah Code §78B-6-801-816, allows for an expedited process to evict a tenant from your property. Though this process is not extremely complicated, it does require you to be exact in following the law or you could place yourself in a very precarious situation and possibly open yourself up to a lawsuit from the tenant for an unlawful eviction. It is important that you know and follow all the steps in the eviction process to protect yourself and to expedite the process so you can have the problem tenant out and get your property rented again. This is why an experienced eviction attorney should be consulted. 

One of the most important things you need to be aware of is that you absolutely cannot take any steps to try and remove the tenant yourself. This is called a “self-help” eviction and it is illegal. Examples of this are changing locks, removing doors, turning off utilities, removing tenant’s property from the residence, etc. If you do any of these things, the tenant can sue you for damages and you may have to pay the tenant’s attorneys fees as well. If you have a tenant that you need to evict, you are required to start the legal eviction process. 

There are basically three steps to an eviction in Utah. I will discuss those steps below:

1. FIRST STEP, NOTICE.  The first step to the eviction process is to terminate the tenancy by properly serving on the tenant the appropriate notice.  The notice must be served either personally to the tenant, or by registered or certified mail, leaving a copy with someone of suitable age at the residence and mailing a copy to the address, or lastly by posting a copy on the property. Normally, the easiest way to properly serve the notice is to tape the notice to the front door of the property. There are fundamentally five types of eviction notices in Utah.  These notices are:
·         Three Day Notice to Pay or Quit: This is the most common notice given to tenants.  This is the notice you must use if your tenant is behind on payment of rent. In this notice you must inform the tenant how much rent (including late fees etc.) is due and allow the tenant three days to pay the amount owed or in the alternative to vacate the premises within the three day period. If the tenant fails to do either of these, then they are considered to be in unlawful detainer and you can move to the next step of filing an eviction law suit.
·         Three Day Notice to Vacate:  This is the type of notice you must give if your tenant is selling drugs at the property, damaging property, illegally subletting, causing substantial disturbance to neighbors, violating health codes, etc. This type of notice does not have to give the tenant an option to remedy the problem. If the tenant does not vacate within three days after receiving this notice, they are in unlawful detainer. 
·         Three Day Notice to Comply or Quit:  This is the type of notice the landlord must use if the tenant has violated any portion of the rental agreement other than causing a significant nuisance, illegally subletting, damaging property, or being involved with drugs. This notice must give the tenant the option to remedy the situation by complying with the provisions of the lease agreement or in the alternative to vacate the premises within three days. If the tenant does neither of these things then they are in unlawful detainer and you can proceed to the next step.
·         Fifteen Day Notice to Terminate “No Cause”:  This is the type of notice that the landlord must use if the landlord wants the tenant to move out for no cause. A landlord can only use this type of notice if the tenant is in a “month to month” tenancy and the notice must be given at least 15 days prior to the end of the month.  If the tenant fails to move out by the end of the month then they are in unlawful detainer and you can proceed to the next step.
·         Five Day Notice to Terminate “At Will Tenant”:  This notice can only be used if the landlord has no agreement with the tenant to live in the residence.  Examples of this are, a prior tenant allowed the person to live with them without agreement of the landlord or you purchased the property in a foreclosure and the prior owner still resided in the premises after the foreclosure. (If you purchase a foreclosure property and a previous tenant lives in the premises, they probably won’t be an at will tenant and you may have to honor any prior lease the tenant had with the previous owner).  If the individual fails to vacate after five days they are in unlawful detainer and you can proceed to the next step.

2. SECOND STEP, LAW SUIT.  The second step to the eviction process is to file a summons and complaint with the appropriate court. These are legal documents that must be filed with the court and served personally on the tenant by a sheriff or constable (posting this document on the door is not sufficient). A filing fee must be paid to the court to file the eviction complaint. After the tenant is served, the tenant has the right to file an Answer within three days. If the tenant fails to timely respond to the complaint, a default judgment and writ of restitution (an order allowing the landlord to retake possession of the premises with the help of the constable or sheriff) may be granted by the court. 

If the tenant timely files an Answer then either party has the right to request a hearing with the court. This hearing must be scheduled within 10 days and at this hearing the court may decide the merits of the case and determine who has the to occupy the premises. Normally, this hearing is an evidentiary hearing and is like a small trial to determine the case. However, in some circumstances an actual trial will be needed and scheduled by the court. If a trial is scheduled then the landlord may want to file a possession bond to gain possession of the premises while the parties await trial. 

Once the case is decided, the court will decide if damages are awarded. A landlord has the right to seek treble damages in eviction case. Treble damages are the damages actually owed multiplied by three. Further, most evictions will include an award of attorney’s fees to the prevailing party. As you can see, the judgment on a simple eviction can result in a very large judgment for the landlord, now collecting on that judgment from the tenant is a different matter. 

3.  STEP THREE, ORDER OF RESTITUTION.  The third step in the eviction process is actually removing the tenant from the property. The court will sign an order that requires the tenant to leave the property, this is called an Order of Restitution. The court will determine how long the tenant has to move their belongings from the property; normally the court will give the tenant three days. The Order of Restitution has to be personally served on the tenant, so it is best to have one ready at the first court hearing so the tenant can be served there in Court. If the Tenant fails to vacate the premises in the time prescribed in the Order of Restitution, the Constable or Sheriff can enter the premises and remove the tenant and their possessions from the property and change the locks. If this happens, you are required to make an inventory of the personal property in the premises and to store the tenants belongings for at least 15 days. However, the tenant cannot access the property until they have paid costs for the removal and storage of the property and the landlord is required to give the tenant clothing, identification cards or financial paperwork and other documents and medical equipment.   

This is a very condensed guide of the eviction process and does not cover every possible scenario. This information is provided for general information purposes only and is not intended for legal advice. The laws change frequently, and being general in nature, this information may not apply to your specific case. If you have questions about an eviction or a landlord tenant issue, you should contact an attorney about the specific facts of your case.  

Thursday, February 13, 2014

March CLE Luncheon: Common Tax Mistakes Lawyers Make

Fillmore Spencer's newest associate Mary K. Black-Whitby, will present at our March CLE Brown Bag Luncheon on March 28, 2014 at noon.  The topic of her presentation is "Common Tax Mistakes Lawyers Make." Mary will discuss how taxes affect different practices of law such as, divorce, personal injury matters, business formation, litigation matters and estate planning.  Come learn how you may be inadvertently making a tax mistake in your practice of law.  Please RSVP to (801) 426-8200.

Photo courtesy of Flickr by kenteegardin

Monday, February 10, 2014

Paternity Case Presentation by Scott Card

Scott Card gave a presentation to a group of over 100 students from Payson High School about the legal consequences of out-of-wedlock pregnancy and child birth, better known as a paternity case. The main point he wanted to convey to the high school students was the significant legal issues and costs that arise with the birth of a child to an unwed mother.

In his presentation, he focused on the law as it relates to the unwed mother, the alleged father, and the child. This discussion included how a father is identified, the amount of child support, medical expenses, birth expenses, insurance costs and other legal obligations that both parents have to their child. Scott also pointed out the power of the government in collecting support obligations from parents for the benefit of their children.  Also in the presentation, Scott outlined the rights of the parents as it relates to their child, including parent-time visitation. To conclude the discussion, Scott identified several statistics that relate to the illegitimate child’s future and the child’s general lack of opportunities. The general feedback from the students is that they had no idea of the costs of having an illegitimate child, the legal hassle, and the disadvantage that they would cause the child to face in his or her life. 

Scott has been presenting this information to high school students for 17 years and has presented to classes and assemblies in schools in the Alpine, Provo, Nebo and Juab School Districts. This important topic needs to be addressed as the number of illegitimate children is approaching 45% of all births. Scott is happy to speak to any group of youth or adults about this important topic. 

Tuesday, February 4, 2014

January Brown Bag Recap: Construction Defect Claims and Defenses in Utah

At our January CLE luncheon, attorney Daniel Day presented on construction defect claims. He discussed when a defect claim can legally be made and who would be potentially liable in various cases. 

Mr. Day’s presentation focused on analyzing who would be potentially liable for defects under various scenarios. For instance, among the factors that would be critical to analyze would be whether there was personal injury or damage to the property other than the construction itself. Absent such injury, one would not be able to pursue a negligence action against the contractor because the economic loss rule would be a valid defense.

If there was not personal injury or other damage, a valid case might be pursued under a theory of breach of contract, breach of fiduciary duties, intentional tort (such as fraud), or strict products liability, depending on specific circumstances.

It is important for both builders and owners to understand their rights and obligations before constructing a building so both parties know what to expect. If you have been disappointed with the results of construction or are having construction defect claims brought against you, seeking legal advice and representation is the best step to ensure your rights are protected.