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S.B. 71 Enrolled

    

LANDLORD - TENANT AMENDMENTS

    
1997 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: Robert F. Montgomery

    AN ACT RELATING TO JUDICIAL CODE; FORCIBLE ENTRY AND DETAINER;
    AMENDING PROVISIONS ON TIME TO VACATE; PROVIDING FOR SERVICE BY
    MAIL OR POSTING IF NECESSARY; STAYING A RESTITUTION ORDER UPON
    BOND PAYMENT AND COURT ORDER; PERMITTING DONATION OF TENANT'S
    PERSONAL PROPERTY; MAKING TECHNICAL CHANGES; AND PROVIDING A
    COORDINATION CLAUSE.
    This act affects sections of Utah Code Annotated 1953 as follows:
    AMENDS:
         78-36-10.5, as last amended by Chapter 79, Laws of Utah 1996
         78-36-12.6, as last amended by Chapter 198, Laws of Utah 1995
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 78-36-10.5 is amended to read:
         78-36-10.5. 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; and
        (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 his right to a hearing to contest the terms of the order of
    restitution or the manner of its enforcement.]
        (2) (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 [personally upon the defendant] in accordance with [Rule 4,
    Utah Rules of Civil Procedure,] 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
    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.]
        (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.
        [(b)] (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.
        [(c)] (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.
        (3) (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[, with
    the plaintiff's consent,] may delegate responsibility for storage to the plaintiff, who [must] 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.
        (4) (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

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    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.
        [(e)] (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 [terms of the order of restitution or the] manner

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    of [its] 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.
        Section 2. Section 78-36-12.6 is amended to read:
         78-36-12.6. 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.
        (2) (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.
        (b) (i) The owner shall make reasonable efforts to notify the tenant of the location of the
    personal property[; however, if].
        (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.

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        (d) Nothing contained in this act shall be in derogation of or alter the owner's rights under
    Title 38, Chapter 3, Lessors' Liens.
        Section 3. Coordination clause.
        If this bill and H.B. 143, Unlawful Detainer of Tenant, both pass, it is the intent of the
    Legislature that the following amendments shall govern:
        1. The amendments to Subsection 78-36-10.5(2)(a) shall read:
        (2) (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 [personally upon the defendant] in accordance with [Rule 4,
    Utah Rules of Civil Procedure,] 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.
        2. The amendments to Subsection 78-36-10.5(2)(b) of S.B.71 shall read:
        (c) 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.
        3. Renumber the remaining sections.
        4. The amendments to Subsection 78-36-10.5 (5) of S.B. 71 shall supersede and shall read:
        (5) In the event of a dispute concerning the [terms of the order of restitution or the] manner
    of [its] 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

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    the hearing to the parties.

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