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.