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6 LONG TITLE
7 General Description:
8 This bill modifies provisions of the Judicial Code governing pending actions involving
9 real property.
10 Highlighted Provisions:
11 This bill:
12 . allows a notice of the pendency of an action involving real property to be expunged
13 under certain circumstances; and
14 . allows, under certain circumstances, a person with an interest in real property that is
15 the subject of a notice of the pendency of an action to recover damages, costs, and
16 attorney fees.
17 Monies Appropriated in this Bill:
19 Other Special Clauses:
21 Utah Code Sections Affected:
23 78-40-2.5, Utah Code Annotated 1953
25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 78-40-2.5 is enacted to read:
27 78-40-2.5. Motions related to a notice of the pendency of an action.
28 (1) As used in this section:
29 (a) "Claimant" means a person who files a notice.
30 (b) "Guarantee" means an agreement by a claimant to pay an amount of damages:
31 (i) specified by the court;
32 (ii) suffered as a result of the maintenance of a notice;
33 (iii) to a person with an interest in the real property that is the subject of the notice; and
34 (iv) if the requirements of Subsection (6) are met.
35 (c) "Notice" means a notice of the pendency of an action filed under Section 78-40-2 .
36 (2) Any time after a notice has been recorded pursuant to Section 78-40-2 , any of the
37 following may make a motion to the court in which the action is pending to expunge the notice:
38 (a) a party to the action; or
39 (b) a person with an interest in the real property affected by the notice.
40 (3) A court shall order a notice expunged if:
41 (a) the court receives a motion to expunge under Subsection (2); and
42 (b) the court finds that the claimant has not established by a preponderance of the
43 evidence the probable validity of the real property claim that is the subject of the notice.
44 (4) If a court expunges a notice, the claimant may not record another notice with
45 respect to the same property without approval of the court in which the action is pending.
46 (5) Upon a motion by any person with an interest in the real property that is the subject
47 of a notice, a court may require the claimant to give the moving party a guarantee as a
48 condition of maintaining the notice:
49 (a) any time after a notice has been recorded; and
50 (b) regardless of whether the court has received an application to expunge under
51 Subsection (2).
52 (6) A person who receives a guarantee under Subsection (5) may recover an amount
53 not to exceed the amount of the guarantee upon a showing that:
54 (a) the claimant did not prevail on the real property claim; and
55 (b) the person seeking the guarantee suffered damages as a result of the maintenance of
56 the notice.
57 (7) A court shall award costs and attorney fees to a prevailing party on any motion
58 under this section unless the court finds that:
59 (a) the nonprevailing party acted with substantial justification; or
60 (b) other circumstances make the imposition of attorney fees and costs unjust.
Legislative Review Note
as of 2-5-04 10:39 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
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