First Substitute H.B. 143

1

UNLAWFUL DETAINER AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: John E. Swallow
5 AN ACT RELATING TO JUDICIAL CODE; AMENDING PROVISIONS ON FORCIBLE
6 ENTRY AND DETAINER; PROVIDING DEFINITIONS; PERMITTING SERVICE OF
7 NOTICE TO QUIT OR THE COURT'S ORDER TO BE MAILED AT THE COMMERCIAL
8 TENANT'S USUAL PLACE OF BUSINESS; ELIMINATING THE DEFENDANT'S RIGHT
9 TO A HEARING TO CONTEST THE TERMS OF THE RESTITUTION ORDER; MAKING
10 TECHNICAL CHANGES; AND PROVIDING A COORDINATION CLAUSE.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 78-36-6, as last amended by Chapter 141, Laws of Utah 1992
14 78-36-10.5, as last amended by Chapter 79, Laws of Utah 1996
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 78-36-6 is amended to read:
17 78-36-6. Definitions -- Notice to quit -- How served.
18 (1) For purposes of this section:
19 (a) "Commercial tenant" means any tenant who may be a body politic and corporate,
20 partnership, association, or company.
21 (b) "Tenant" means any natural person and any individual other than a commercial tenant.
22 (2) The notices required by [the preceding sections] Title 78, Chapter 36, Forcible Entry
23 and Detainer, may be served:
24 [(1)] (a) by delivering a copy to the tenant personally or, if the tenant is a commercial
25 tenant, by delivering a copy to the commercial tenant's usual place of business by leaving a copy
26 of the notice with a person of suitable age and discretion;
27 [(2)] (b) by sending a copy through registered or certified mail addressed to the tenant at

1 his place of residence or, if the tenant is a commercial tenant, by sending a copy through registered
2 or certified mail addressed to the commercial tenant's usual place of business;
3 [(3)] (c) if he is absent from his place of residence or from his usual place of business, by
4 leaving a copy with a person of suitable age and discretion at either place and mailing a copy to
5 the tenant at the address of his place of residence or place of business;
6 [(4)] (d) if a person of suitable age or discretion cannot be found at the place of residence,
7 then by affixing a copy in a conspicuous place on the leased property; or
8 [(5)] (e) if an order of abatement by eviction of the nuisance is issued by the court as
9 provided in Section 78-38-11, when issued, the parties present shall be on notice that the
10 abatement by eviction order is issued and immediately effective or as to any absent party, notice
11 shall be given as provided in Subsections [(1)] (2)(a) through [(4)] (e).
12 [(6)] (3) Service upon a subtenant may be made in the same manner as provided in
13 Subsection (2).
14 Section 2. Section 78-36-10.5 is amended to read:
15 78-36-10.5. Order of restitution -- Service -- Enforcement -- Disposition of personal
16 property -- Hearing.
17 (1) Each order of restitution shall:
18 (a) direct the defendant to vacate the premises, remove his personal property, and restore
19 possession of the premises to the plaintiff, or be forcibly removed by a sheriff or constable;
20 (b) advise the defendant of the time limit set by the court for the defendant to vacate the
21 premises, which shall be three business days following service of the order, unless the court
22 determines that a longer or shorter period is appropriate under the circumstances; and
23 (c) advise the defendant of his right to a hearing to contest [the terms of the order of
24 restitution or] the manner of its enforcement.
25 (2) (a) A copy of the order of restitution and a form for the defendant to request a hearing
26 shall be served personally upon the defendant in accordance with Rule 4, Utah Rules of Civil
27 Procedure, by a person authorized to serve process pursuant to Section 78-27-58. If personal
28 service is impossible or impracticable, service may be made by:
29 (i) mailing a copy of the order and the form to the defendant's last-known address and
30 posting a copy of the order and the form at a conspicuous place on the premises; or
31 (ii) mailing a copy of the order and the form to the commercial tenant defendant's

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1 last-known place of business and posting a copy of the order and the form at a conspicuous place
2 on the business premises.
3 (b) The date of service, the name, title, signature, and telephone number of the person
4 serving the order and the form shall be legibly endorsed on the copy of the order and the form
5 served on the defendant.
6 (c) Within ten days of service, the person serving the order and the form shall file proof
7 of service in accordance with Rule 4(h), Utah Rules of Civil Procedure.
8 (3) (a) If the defendant fails to comply with the order within the time prescribed by the
9 court, a sheriff or constable at the plaintiff's direction may enter the premises by force using the
10 least destructive means possible to remove the defendant.
11 (b) Any personal property of the defendant may be removed from the premises by the
12 sheriff or constable and transported to a suitable location for safe storage. The sheriff or constable,
13 with the plaintiff's consent, may delegate responsibility for storage to the plaintiff, who must store
14 the personal property in a suitable place and in a reasonable manner.
15 (c) The personal property removed and stored shall be inventoried by the sheriff or
16 constable who shall keep the original inventory and personally deliver or mail the defendant a copy
17 of the inventory immediately after the personal property is removed.
18 (4) (a) After demand made by the defendant within 30 days of removal of personal
19 property from the premises, the sheriff or constable shall promptly return all of the defendant's
20 personal property upon payment of the reasonable costs incurred for its removal and storage.
21 (b) The person storing the personal property may sell the property remaining in storage
22 at a public sale if:
23 (i) the defendant does not request a hearing or demand return of the personal property
24 within 30 days of its removal from the premises; or
25 (ii) the defendant fails to pay the reasonable costs incurred for the removal and storage of
26 the personal property.
27 (c) In advance of the sale, the person storing the personal property shall mail to the
28 defendant's last-known address a written notice of the time and place of the sale.
29 (d) If the defendant is present at the sale, he may specify the order in which the personal
30 property shall be sold, and only so much personal property shall be sold as to satisfy the costs of
31 removal, storage, advertising, and conducting the sale. The remainder of the personal property,

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1 if any, shall be released to the defendant. If the defendant is not present at the sale, the proceeds,
2 after deduction of the costs of removal, storage, advertising, and conducting the sale shall be paid
3 to the plaintiff up to the amount of any judgment the plaintiff obtained against the defendant. Any
4 surplus shall be paid to the defendant, if the defendant's whereabouts are known. If the defendant's
5 whereabouts are not known, any surplus shall be disposed of in accordance with Title 67, Chapter
6 4a, Unclaimed Property Act.
7 (e) If the property belonging to a person who is not a defendant is removed and stored in
8 accordance with this section, that person may claim the property by delivering a written demand
9 for its release to the sheriff or constable. If the claimant provides proper identification and
10 evidence of ownership, the sheriff or constable shall promptly release the property at no cost to
11 the claimant.
12 (5) In the event of a dispute concerning [the terms of the order of restitution or] the manner
13 of [its] the order's enforcement, the defendant or any person claiming to own stored personal
14 property may file a request for a hearing. The court shall set the matter for hearing within ten days
15 from the filing of the request, or as soon thereafter as practicable, and shall mail notice of the
16 hearing to the parties.
17 (6) The Judicial Council shall draft the forms necessary to implement this section.
18 Section 3. Coordination clause.
19 If this bill and S.B. 71, Landlord-Tenant Amendments, both pass, it is the intent of the
20 Legislature that the following amendments shall govern:
21 (1) The amendments to Subsection 78-36-10.5(2)(a) shall read:
22 "(2) (a) A copy of the order of restitution and a form for the defendant to request a hearing
23 as listed on the form shall be served [personally upon the defendant] in accordance with [Rule 4,
24 Utah Rules of Civil Procedure,] Section 78-36-6 by a person authorized to serve process pursuant
25 to Section 78-27-58. If personal service is impossible or impracticable, service may be made by:
26 (i) mailing a copy of the order and the form to the defendant's last known address and
27 posting a copy of the order and the form at a conspicuous place on the premises; or
28 (ii) mailing a copy of the order and the form to the commercial tenant defendant's
29 last-known place of business and posting a copy of the order and the form at a conspicuous place
30 on the business premises."
31 (2) The amendments to Subsection 78-36-10.5(2)(b) of S.B. 71 shall govern and read:

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1 "(c) A request for hearing by the defendant may not stay enforcement of the restitution
2 order unless:
3 (i) the defendant furnishes a corporate bond, cash bond, certified funds, or a property bond
4 to the clerk of the court in an amount approved by the court S ACCORDING TO THE FORMULA SET
4a FORTH IN SUBSECTION 78-36-8.5(2)(b) s ; and
5 (ii) the court orders that the restitution order be stayed."
6 (3) Renumber the remaining subsections accordingly.
7 (4) The amendments to Subsection 78-36-10.5 (5) shall read:
8 "(5) In the event of a dispute concerning the [terms of the order of restitution or the]
9 manner of [its] enforcement of the restitution order, the defendant or any person claiming to own
10 stored personal property may file a request for a hearing. The court shall set the matter for hearing
11 with ten days from the filing of the request, or as soon thereafter as practicable, and shall mail
12 notice of the hearing to the parties."

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Amend on 3_goldenrod March 5, 1997