Landlord Tenant – Forcible Entry and Detainer Law – Utah
Forcible Entry and Detainer
“Forcible entry” defined.
Every person is guilty of a forcible entry, who either:
(1) by breaking open doors, windows or other parts of a house, or by fraud, intimidation or stealth, or by any kind of violence or circumstances of terror, enters upon or into any real property; or,
(2) after entering peaceably upon real property, turns out by force, threats or menacing conduct the party in actual possession. Title 78, Chap. 36, §78-36-1
No Change Since 1953
“Forcible detainer” defined.
Every person is guilty of a forcible detainer who either:
(1) by force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or,
(2) in the nighttime, or during the absence of the occupants of any real property, unlawfully enters thereon, and, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who within five days preceding such unlawful entry was in the peaceable and undisturbed possession of such lands. Title 78, Chap. 36, §78-36-2.
No Change Since 1953
Unlawful detainer by tenant for term less than life.
(1) A tenant of real property, for a term less than life, is guilty of an unlawful detainer:
(a) when he continues in possession, in person or by subtenant, of the property or any part of it, after the expiration of the specified term or period for which it is let to him, which specified term or period, whether established by express or implied contract, or whether written or parol, shall be terminated without notice at the expiration of the specified term or period;
(b) when, having leased real property for an indefinite time with monthly or other periodic rent reserved:
(i) he continues in possession of it in person or by subtenant after the end of any month or period, in cases where the owner, his designated agent, or any successor in estate of the owner, 15 days or more prior to the end of that month or period, has served notice requiring him to quit the premises at the expiration of that month or period; or
(ii) in cases of tenancies at will, where he remains in possession of the premises after the expiration of a notice of not less than five days;
(c) when he continues in possession, in person or by subtenant, after default in the payment of any rent and after a notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises, has remained uncomplied with for a period of three days after service, which notice may be served at any time after the rent becomes due;
(d) when he assigns or sublets the leased premises contrary to the covenants of the lease, or commits or permits waste on the premises, or when he sets up or carries on any unlawful business on or in the premises, or when he suffers, permits, or maintains on or about the premises any nuisance, including nuisance as defined in Section 78-38-9, and remains in possession after service upon him of a three days’ notice to quit; or
(e) when he continues in possession, in person or by subtenant, after a neglect or failure to perform any condition or covenant of the lease or agreement under which the property is held, other than those previously mentioned, and after notice in writing requiring in the alternative the performance of the conditions or covenant or the surrender of the property, served upon him and upon any subtenant in actual occupation of the premises remains uncomplied with for three days after service. Within three days after the service of the notice, the tenant, any subtenant in actual occupation of the premises, any mortgagee of the term, or other person interested in its continuance may perform the condition or covenant and thereby save the lease from forfeiture, except that if the covenants and conditions of the lease violated by the lessee cannot afterwards be performed, then no notice need be given.
(2) Unlawful detainer by an owner resident of a mobile home is determined under Title 57, Chapter 16, Mobile Home Park Residency Act.
(3) The notice provisions for nuisance in Subsection 78-36-3 (1)(d) are not applicable to nuisance actions provided in Sections 78-38-9 through 78-38-16 only. Title 78, Chap. 36, §78-36-3.
Right of tenant of agricultural lands to hold over.
In all cases of tenancy upon agricultural lands, where the tenant has held over and retained possession for more than 60 days after the expiration of his term without any demand of possession or notice to quit by the owner, his designated agent, or his successor in estate, he shall be deemed to be held by permission of the owner, his designated agent, or his successor in estate, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during that year; and the holding over for the 60-day period shall be taken and construed as a consent on the part of the tenant to hold for another year. Title 78, Chap. 36, §78-36-4.
Remedies available to tenant against undertenant.
A tenant may take proceedings similar to those prescribed in this chapter to obtain possession of the premises let to an undertenant in case of his unlawful detention of the premises underlet to him. Title 78, Chap. 36 §78-36-5.
No Change Since 1953
Definitions — Notice to quit — How served.
(1) For purposes of this section:
(a) “Commercial tenant” means any tenant who may be a body politic and corporate, partnership, association, or company.
(b) “Tenant” means any natural person and any individual other than a commercial tenant.
(2) The notices required by Title 78, Chapter 36, Forcible Entry and Detainer, may be served:
(a) by delivering a copy to the tenant personally or, if the tenant is a commercial tenant, by delivering a copy to the commercial tenant’s usual place of business by leaving a copy of the notice with a person of suitable age and discretion;
(b) by sending a copy through registered or certified mail addressed to the tenant at his place of residence or, if the tenant is a commercial tenant, by sending a copy through registered or certified mail addressed to the commercial tenant’s usual place of business;
(c) if he is absent from his place of residence or from his usual place of business, by leaving a copy with a person of suitable age and discretion at either place and mailing a copy to the tenant at the address of his place of residence or place of business;
(d) if a person of suitable age or discretion cannot be found at the place of residence, then by affixing a copy in a conspicuous place on the leased property; or
(e) if an order of abatement by eviction of the nuisance is issued by the court as provided in Section 78-38-11, when issued, the parties present shall be on notice that the abatement by eviction order is issued and immediately effective or as to any absent party, notice shall be given as provided in Subsections (2)(a) through (e).
(3) Service upon a subtenant may be made in the same manner as provided in Subsection (2). Title 78, Chap. 36, §78-36-6.
Necessary parties defendant.
(1) No person other than the tenant of the premises, and subtenant if there is one in the actual occupation of the premises when the action is commenced, shall be made a party defendant in the proceeding, except as provided in Section 78-38-13, nor shall any proceeding abate, nor the plaintiff be nonsuited, for the nonjoinder of any person who might have been made a party defendant; but when it appears that any of the parties served with process or appearing in the proceedings are guilty, judgment shall be rendered against those parties.
(2) If a person has become subtenant of the premises in controversy after the service of any notice as provided in this chapter, the fact that such notice was not served on the subtenant is not a defense to the action. All persons who enter under the tenant after the commencement of the action shall be bound by the judgment the same as if they had been made parties to the action.
(3) A landlord, owner, or designated agent is a necessary party defendant only in an abatement by eviction action for an unlawful drug house as provided in Section 78-38-13. Title 78, Chap. 36, §78-36-7.
Allegations permitted in complaint — Time for appearance — Service of summons.
The plaintiff in his complaint, in addition to setting forth the facts on which he seeks to recover, may set forth any circumstances of fraud, force, or violence which may have accompanied the alleged forcible entry, or forcible or unlawful detainer, and claim damages therefor or compensation for the occupation of the premises, or both. If the unlawful detainer charged is after default in the payment of rent, the complaint shall state the amount of rent due. The court shall indorse on the summons the number of days within which the defendant is required to appear and defend the action, which shall not be less than three or more than 20 days from the date of service. The court may authorize service by publication or mail for cause shown. Service by publication is complete one week after publication. Service by mail is complete three days after mailing. The summons shall be changed in form to conform to the time of service as ordered, and shall be served as in other cases. Title 78, Chap. 36, §78-36-8.
Possession bond of plaintiff — Alternative remedies.
(1) At any time between the filing of his complaint and the entry of final judgment, the plaintiff may execute and file a possession bond. The bond may be in the form of a corporate bond, a cash bond, certified funds, or a property bond executed by two persons who own real property in the state and who are not parties to the action. The court shall approve the bond in an amount that is the probable amount of costs of suit and damages which may result to the defendant if the suit has been improperly instituted. The bond shall be payable to the clerk of the court for the benefit of the defendant for all costs and damages actually adjudged against the plaintiff. The plaintiff shall notify the defendant that he has filed a possession bond. This notice shall be served in the same manner as service of summons and shall inform the defendant of all of the alternative remedies and procedures under Subsection (2).
(2) The following are alternative remedies and procedures applicable to an action if the plaintiff files a possession bond under Subsection (1):
(a) With respect to an unlawful detainer action based solely upon nonpayment of rent or utilities, the existing contract shall remain in force and the complaint shall be dismissed if the defendant, within three days of the service of the notice of the possession bond, pays accrued rent, utility charges, any late fee, and other costs, including attorney’s fees, as provided in the rental agreement.
(b) The defendant may remain in possession if he executes and files a counter bond in the form of a corporate bond, a cash bond, certified funds, or a property bond executed by two persons who own real property in the state and who are not parties to the action. The form of the bond is at the defendant’s option. The bond shall be payable to the clerk of the court. The defendant shall file the bond prior to the expiration of three days from the date he is served with notice of the filing of plaintiff’s possession bond. The court shall approve the bond in an amount that is the probable amount of costs of suit and actual damages that may result to the plaintiff if the defendant has improperly withheld possession. The court shall consider prepaid rent to the owner as a portion of the defendant’s total bond.
(c) The defendant, upon demand, shall be granted a hearing to be held prior to the expiration of three days from the date the defendant is served with notice of the filing of plaintiff’s possession bond.
(3) If the defendant does not elect and comply with a remedy under Subsection (2) within the required time, the plaintiff, upon ex parte motion, shall be granted an order of restitution. The constable of the precinct or the sheriff of the county where the property is situated shall return possession of the property to the plaintiff promptly.
(4) If the defendant demands a hearing under Subsection (2) (c), and if the court rules after the hearing that the plaintiff is entitled to possession of the property, the constable or sheriff shall promptly return possession of the property to the plaintiff. If at the hearing the court allows the defendant to remain in possession and further issues remain to be adjudicated between the parties, the court shall require the defendant to post a bond as required in Subsection (2) (b). If at the hearing the court rules that all issues between the parties can be adjudicated without further court proceedings, the court shall, upon adjudicating those issues, enter judgment on the merits. Title 78, Chap. 36, §78-36-8.5.
Proof required of plaintiff — Defense.
On the trial of any proceeding for any forcible entry or forcible detainer the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer. The defendant may show in his defense that he or his ancestors, or those whose interest in such premises he claims, had been in the quiet possession thereof for the space of one whole year continuously next before the commencement of the proceedings, and that his interest therein is not then ended or determined; and such showing is a bar to the proceedings. Title 78, Chap. 36, §78-36-9.
Judgment for restitution, damages, and rent — Immediate enforcement — Treble damages.
(1) A judgment may be entered upon the merits or upon default. A judgment entered in favor of the plaintiff shall include an order for the restitution of the premises as provided in Section 78-36-10.5. If the proceeding is for unlawful detainer after neglect or failure to perform any condition or covenant of the lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of the lease or agreement.
(2) The jury or the court, if the proceeding is tried without a jury or upon the defendant’s default, shall also assess the damages resulting to the plaintiff from any of the following:
(a) forcible entry;
(b) forcible or unlawful detainer;
(c) waste of the premises during the defendant’s tenancy, if waste is alleged in the complaint and proved at trial;
(d) the amount of rent due, if the alleged unlawful detainer is after default in the payment of rent; and
(e) the abatement of the nuisance by eviction as provided in Sections 78-38-9 through 78-38-16.
(3) The judgment shall be entered against the defendant for the rent, for three times the amount of the damages assessed under Subsections (2) (a) through (2) (c), and for reasonable attorneys’ fees, if they are provided for in the lease or agreement.
(4) If the proceeding is for unlawful detainer after default in the payment of the rent, execution upon the judgment shall be issued immediately after the entry of the judgment. In all cases, the judgment may be issued and enforced immediately. Title 78, Chap. 36, §78-36-10.
Order of restitution — Service — Enforcement — Disposition of personal property — Hearing.
(1) Each order of restitution shall:
(a) direct the defendant to vacate the premises, remove his personal property, and restore possession of the premises to the plaintiff, or be forcibly removed by a sheriff or constable;
(b) advise the defendant of the time limit set by the court for the defendant to vacate the premises, which shall be three business days following service of the order, unless the court determines that a longer or shorter period is appropriate under the circumstances; and
(c) advise the defendant of the defendant’s right to a hearing to contest the manner of its enforcement.
(a) A copy of the order of restitution and a form for the defendant to request a hearing as listed on the form shall be served in accordance with Section 78-36-6 by a person authorized to serve process pursuant to Section 78-27-58. If personal service is impossible or impracticable, service may be made by:
(i) mailing a copy of the order and the form to the defendant’s last-known address and posting a copy of the order and the form at a conspicuous place on the premises; or
(ii) mailing a copy of the order and the form to the commercial tenant defendant’s last-known place of business and posting a copy of the order and the form at a conspicuous place on the business premises.
(b) A request for hearing by the defendant may not stay enforcement of the restitution order unless:
(i) the defendant furnishes a corporate bond, cash bond, certified funds, or a property bond to the clerk of the court in an amount approved by the court according to the formula set forth in Subsection 78-36-8.5(2)(b); and
(ii) the court orders that the restitution order be stayed.
(c) The date of service, the name, title, signature, and telephone number of the person serving the order and the form shall be legibly endorsed on the copy of the order and the form served on the defendant.
(d) Within ten days of service, the person serving the order and the form shall file proof of service in accordance with Rule 4(h), Utah Rules of Civil Procedure.
(a) If the defendant fails to comply with the order within the time prescribed by the court, a sheriff or constable at the plaintiff’s direction may enter the premises by force using the least destructive means possible to remove the defendant.
(b) Any personal property of the defendant may be removed from the premises by the sheriff or constable and transported to a suitable location for safe storage. The sheriff or constable may delegate responsibility for storage to the plaintiff, who shall store the personal property in a suitable place and in a reasonable manner.
(c) The personal property removed and stored shall be inventoried by the sheriff or constable or the plaintiff who shall keep the original inventory and personally deliver or mail the defendant a copy of the inventory immediately after the personal property is removed.
(a) After demand made by the defendant within 30 days of removal of personal property from the premises, the sheriff or constable or the plaintiff shall promptly return all of the defendant’s personal property upon payment of the reasonable costs incurred for its removal and storage.
(b) The person storing the personal property may sell the property remaining in storage at a public sale if:
(i) the defendant does not request a hearing or demand return of the personal property within 30 days of its removal from the premises; or
(ii) the defendant fails to pay the reasonable costs incurred for the removal and storage of the personal property.
(c) In advance of the sale, the person storing the personal property shall mail to the defendant’s last-known address a written notice of the time and place of the sale.
(d) If the defendant is present at the sale, he may specify the order in which the personal property shall be sold, and only so much personal property shall be sold as to satisfy the costs of removal, storage, advertising, and conducting the sale. The remainder of the personal property, if any, shall be released to the defendant. If the defendant is not present at the sale, the proceeds, after deduction of the costs of removal, storage, advertising, and conducting the sale shall be paid to the plaintiff up to the amount of any judgment the plaintiff obtained against the defendant. Any surplus shall be paid to the defendant, if the defendant’s whereabouts are known. If the defendant’s whereabouts are not known, any surplus shall be disposed of in accordance with Title 67, Chapter 4a, Unclaimed Property Act.
(e) The plaintiff may donate the property to charity if:
(i) the defendant does not request a hearing or demand return of the personal property within 30 days of its removal from the premises; or
(ii) the defendant fails to pay the reasonable costs incurred for the removal and storage of the personal property; and
(iii) donation is a commercially reasonable alternative.
(f) If the property belonging to a person who is not a defendant is removed and stored in accordance with this section, that person may claim the property by delivering a written demand for its release to the sheriff or constable or the plaintiff. If the claimant provides proper identification and evidence of ownership, the sheriff or constable or the plaintiff shall promptly release the property at no cost to the claimant.
(5) In the event of a dispute concerning the manner of enforcement of the restitution order, the defendant or any person claiming to own stored personal property may file a request for a hearing. The court shall set the matter for hearing within ten days from the filing of the request, or as soon thereafter as practicable, and shall mail notice of the hearing to the parties.
(6) The Judicial Council shall draft the forms necessary to implement this section. Title 78, Chap. 36, §78-36-10.5.
Time for appeal.
(1) Except as provided in Subsection (2), either party may, within ten days, appeal from the judgment rendered.
(2) In a nuisance action under Sections 78-38-9 through 78-38-16, any party may appeal from the judgment rendered within three days. Title 78, Chap. 36, §78-36-11.
Amended by Chapter 141, 1992 General Session
Exclusion of tenant without judicial process prohibited — Abandoned premises excepted.
It is unlawful for an owner to willfully exclude a tenant from the tenant’s premises in any manner except by judicial process, provided, an owner or his agent shall not be prevented from removing the contents of the leased premises under Subsection 78-36-12.6(2) and retaking the premises and attempting to rent them at a fair rental value when the tenant has abandoned the premises. Title 78, Chap. 36, §78-36-12.
(1) “Willful exclusion” means preventing the tenant from entering into the premises with intent to deprive the tenant of such entry.
(2) “Owner” means the actual owner of the premises and shall also have the same meaning as landlord under common law and the statutes of this state.
(3) “Abandonment” is presumed in either of the following situations:
(a) The tenant has not notified the owner that he or she will be absent from the premises, and the tenant fails to pay rent within 15 days after the due date, and there is no reasonable evidence other than the presence of the tenant’s personal property that the tenant is occupying the premises; or
(b) The tenant has not notified the owner that he or she will be absent from the premises, and the tenant fails to pay rent when due and the tenant’s personal property has been removed from the dwelling unit and there is no reasonable evidence that the tenant is occupying the premises. Title 78, Chap. 36, §78-36-12.3.
Enacted by Chapter 160, 1981 General Session
Abandoned premises — Retaking and rerenting by owner — Liability of tenant — Personal property of tenant left on premises.
(1) In the event of abandonment, the owner may retake the premises and attempt to rent them at a fair rental value and the tenant who abandoned the premises shall be liable:
(a) for the entire rent due for the remainder of the term; or
(b) for rent accrued during the period necessary to rerent the premises at a fair rental value, plus the difference between the fair rental value and the rent agreed to in the prior rental agreement, plus a reasonable commission for the renting of the premises and the costs, if any, necessary to restore the rental unit to its condition when rented by the tenant less normal wear and tear. This subsection applies, if less than Subsection (a), notwithstanding that the owner did not rerent the premises.
(a) If the tenant has abandoned the premises and has left personal property on the premises, the owner is entitled to remove the property from the dwelling, store it for the tenant, and recover actual moving and storage costs from the tenant.
(i) The owner shall make reasonable efforts to notify the tenant of the location of the personal property.
(ii) If the property has been in storage for over 30 days and the tenant has made no reasonable effort to recover it, the owner may:
(A) sell the property and apply the proceeds toward any amount the tenant owes; or
(B) donate the property to charity if the donation is a commercially reasonable alternative.
(c) Any money left over from the sale of the property shall be handled as specified in Title 67, Chapter 4a, Part 2, Standards for Determining When Property is Abandoned or Unclaimed.
(d) Nothing contained in this act shall be in derogation of or alter the owner’s rights under Title 38, Chapter 3, Lessors’ Liens. Title 78, Chap. 36, §78-36-12.6.