H.B. 146

1

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

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

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

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1 to the plaintiff up to the amount of any judgment the plaintiff obtained against the defendant. Any
2 surplus shall be paid to the defendant, if the defendant's whereabouts are known. If the defendant's
3 whereabouts are not known, any surplus shall be disposed of in accordance with Title 67, Chapter
4 4a, Unclaimed Property Act.
5 (e) If the property belonging to a person who is not a defendant is removed and stored in
6 accordance with this section, that person may claim the property by delivering a written demand
7 for its release to the sheriff or constable. If the claimant provides proper identification and
8 evidence of ownership, the sheriff or constable shall promptly release the property at no cost to
9 the claimant.
10 (5) In the event of a dispute concerning the terms of the order of restitution or the manner
11 of its enforcement, the defendant or any person claiming to own stored personal property may file
12 a request for a hearing. The court shall set the matter for hearing within ten days from the filing
13 of the request, or as soon thereafter as practicable, and shall mail notice of the hearing to the
14 parties.
15 (6) The Judicial Council shall draft the forms necessary to implement this section.




Legislative Review Note
as of 1-27-97 10:43 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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