Utah Eviction Training

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1 Utah Eviction Training Presented dby Attorney Jeremy Shorts You ll be hearing PLENTY of free legal advice & war stories To start Don t rent to Rosalyn Fiedler (18 prior EVs). 1

2 Attorney Jeremy Shorts General Pointers About Lawsuits 2 Two Questions Prior to ANY Lawsuit: #1 Do we have a successful claim? AND #2 Will we be able to collect on a judgment? General Pointers About Lawsuits 3 Evictions are Unique: You should still answer Yes to #1, BUT Even if you cannot collect, an eviction will help to: (1) stop the bleeding, and (2) regain control & possession of your property. 1

3 4 General Pointers About Evictions v. Collections Eviction = T violates an eviction notice and is still living in the property. Collection = T moves out leaving a balance. If you re interested in collecting the balance owed, an eviction is usually better because of: Speed Evictions are faster, Amount Higher judgments with treble damages, & Service It s harder to serve them once T moves. 5 General Pointers About Evictions Evictions deal with two issues: 1 st Priority Possession, & 2 nd Priority Damages. Keep Them Separate. If one issue is decided (i.e. T moves out), that often does nothing to resolve the other issue (i.e. they may still owe $1,000 in rents and caused $500 in damages). 6 General Pointers About Evictions Only Two Ways To Get Them Out #1 Tenants Voluntarily Leave Includes cash for keys or if they abandon. #2 Court Process If they don t leave voluntarily, your ONLY option is to seek an eviction order through the court process. 2

4 Eviction Three Step 7 EACH eviction must follow these steps: Step #1: Eviction Notice(s) (plural) Step #2: File Eviction with Court Step #3: Eviction Hearing Hearings are usually ONLY required for disputed cases. Don t change the locks unless you ve completed all necessary steps. Step #1 Serving the Eviction Notice 8 Who can serve an eviction notice? Anyone 18 or older, including the landlord. Best practice to serve an eviction notice? Knock, Post & Picture Attempt personal service, then post & take a picture. Do NOT serve via , text, slide under door, place inside unit, put in the mailbox, etc. You can serve it via certified mail, but when does the 3 days start if they never sign for it? 9 Step #1 Types of Eviction Notices 3 Days Pay or Quit Comply or Vacate Notice to Vacate Nuisance Tenant at Will 5 Days No Cause (Lease Termination) Pop Quiz How many days for each notice? What if your lease states a longer time? ANSWER Go with your lease. Assigning/Subleasing Waste Criminal Acts Unlawful Business 15 Days If served on Tues. at 7:00 AM, when do they have to comply? ANSWER Midnight on Friday. You can file Monday. 3

5 10 Step #1 Types of Eviction Notices Pay or Quit Comply or Vacate Notice to Vacate Nuisance Assigning/Subleasing Waste Criminal Acts Unlawful lbusiness Tenant at Will No Cause (Lease Termination) Let s talk about the different types of eviction notices 11 Three Day Pay or Quit (Non-Payment of Rent) Most common type of eviction MUST be Pay OR Quit T only has 2 options to comply: Pay entire balance, or Vacate within 3 days Does your lease waive T s right to pay? It s NOT enforceable 12 Three Day Pay or Quit (Non-Payment of Rent) Rent is One Day Past Due (Check Lease) 3DPOQ OR Tenant has three calendar days to. Tenant must pay everything. Even if they Quit, the balance is still owed to LL (treated as a collection case). 4

6 13 Non-Payment Eviction What Can the 3DPOQ Include? Statute states the eviction notice must be based on rent & other amounts due. What about listing these? Security Deposits? Waste (damages)? Late Fees? Unpaid Utilities? Be sure your lease clearly states what charges the T is responsible for. What About Partial Payments? 14 If T offers payment in FULL within the 3 days, you MUST accept it. If T offers (1) a partial payment, or (2) full payment AFTER 3 days, you can: REJECT payment and the eviction continues. ACCEPT payment and the eviction is cancelled. Eviction starts over (serve new EVN with new balance). MY RULE: One month of rent is usually enough (accept the payment & issue new EVN). If it s less than that, you need to decide if it s worth it. Partial Payments in Action 15 Rent Past Due Re-Serve New 3DPOQ Stating New Balance 3DPOQ Served Landlord Accepts Partial Payment 5

7 16 Common Defenses to the 3DPOQ Notice for Wrong Amount EVN Served Improperly T offered rent and LL declined (Tender & Waiver) Tender is an unconditional offer to pay where the T actually produces the full amount due. Tenant is withholding rent because Landlord has failed to make repairs NOT ACCEPTABLE unless Tenant has complied with the Utah Fit Premises Act (probably not). 17 No Cause Notice to Vacate (Lease Termination) Provides notice that the lease will not be renewed LL doesn t need a specific reason for termination, but LL cannot terminate for a discriminatory reason Utah law requires the notice to be served a minimum of 15 days prior to the end of the period If your lease requires more time, you must use that Termination date is at the end of the month (If 30 day notice served on June 9 th, termination date is July 31 st ). 18 Paper Eviction v. Opinion Eviction Focus on what EVIDENCE the judge will use to decide... Paper Evictions Opinion Evictions What I say to the Judge: Your What I say to the Judge: Your Honor, Honor, look at these papers. They listen to my client and ignore the T. show we re entitled to an eviction. Don t require opinions n or major testimony to prove our case. Types of Paper Evictions: 3PODQ No Cause (Lease Termination) We must rely on witnesses for opinions Judge to LL I hear what you re saying. I just don t believe you. Types of Opinion Evictions: Everything else Good LLs can turn an Opinion Eviction into a Paper Eviction Take Pictures Bring a witness for inspections Keep a log of violations Avoid verbal communication Get witness statements Send written letters/notices 6

8 19 Opinion Evictions AKA Evictions for Cause Not nearly as common as evictions for non-payment Landlord bears the burden of proof Must rely on witnesses Can be difficult to prove (witnesses might be reluctant to testify). 20 Types of Nuisances Definition: anything which is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. Utah Code Ann. 78B (1) Criminal Nuisance Non-Criminal Nuisance Felonies Disturbing other tenants/neighbors in Criminal act affecting health/safety a way that interferes with any Criminal act causing property neighbor's quiet enjoyment. damage Smoking that drifts into Drug or gang related criminal act another rental unit (but Threatening violence against others only if LL prohibits Other criminal acts that directly smoking in all units). impact the peaceful enjoyment of the premises by tenants/neighbors You should clearly identify: (1) The type of nuisance claimed, and (2) the facts supporting the claim. 21 Tenant at Will Tenant at Will Someone who does not have ANY agreement or right to occupy the property. Examples of a Tenant at Will: Your T moved a friend in without your permission A guest establishes residency and refuses to leave Your lease expired and does not automatically renew Owner/Investor purchased the home at foreclosure Beware of the Protecting Tenants at Foreclosure Act (December 31, 2014 will be a good day) Questions to Ask: When did they move in & when did you find out? Have they paid you any rent? 7

9 22 Tenant at Will Pop Quiz What if an investor purchases a home through the regular process (NOT a foreclosure sale) and wants to have the home vacant? Does the sale make them TAW? Answer: NO. It is the foreclosure sale that makes them TAW. In a voluntary sale, the purchaser normally takes the property subject to the lease (and must let the lease expire). What if there s no written lease, nothing is in writing? Are they a TAW? Answer: Probably not. It often doesn t matter if it s oral. Under Utah law, an oral lease is just as enforceable as a written lease. But it s much harder to prove the terms of an oral lease. 23 Opinion Evictions Eviction Event 3-Day Notices In this situation: Nuisance Comply or Vacate When can you eliminate their right to cure and just force them to vacate? 24 Tenant s Right To Cure YES T can cure Basic Lease Violations Tenant at Will NO T can t cure Assigning or Subleasing Waste Unlawful Business PROBLEM If the T can cure, Nuisance the LL may have to prove two Criminal Act on Premises separate violations: Lease violations which cannot be One to justify the EVN brought into compliance One to justify filing the eviction Tip Use your lease to define what they cannot cure. My (free) lease states that pets & smoking are violations of the lease that cannot be brought into compliance and subject T to a three day notice to vacate. 8

10 25 Abandonment Abandonment is PRESUMED (not guaranteed) when: 1 T hasn t notified the LL they will be absent from the premises, AND 2 No reasonable evidence that the T is occupying the premises, AND 3 Pay attention to whether the T s possessions are still in the property: Possessions removed abandoned when rent is 1 day past due, or Possessions remain abandoned when rent is 15 days past due. What notice is required? NONE. But please still do it. Police will often side with the T if it s not clear (or even when it is). Please be careful An EVICTION is when the JUDGE says you can change the locks. An ABANDONMENT is when YOU decide to change the locks. A judge can later decide the property was NOT abandoned. Be Careful with Abandonment 26 What does a botched abandonment case look like? 27 Treble Damages Treble Damages Defined (Utah Code Ann. 78B-6-811) The judgment shall be entered against the Def. for the rent, for three times the amount of the damages assessed and for reasonable attorney fees. The winner is entitled to Treble Damages. If the LL wins LL gets Treble Damages If the T wins T gets Treble Damages Example LL wasn t paid so they moved all of T s personal items to the lawn. It rained later that day. The T got an attorney, claimed $30,000 in damages and $90,000 in treble damages. 9

11 Step #3 Eviction Hearings (and how to get an expedited eviction) 28 Under Utah law, an eviction trial must be held within 60 days of service of the Summons & Complaint. Our goal is to handle our evictions in 2-3 weeks from case filing until Sheriff s lockout. How do you get an expedited deviction? i Four Options for an Expedited Eviction: #1 Non-payment of rent (3DPOQ) 10 day hearing, #2 Criminal nuisance 10 day hearing, #3 Post-foreclosure eviction 10 day hearing, #4 LL pays a possession bond (available in ALL other cases). A hearing with a bond should be held in 3 days. 29 Possession Bonds What is it? Deposit paid by LL to the COURT. Used to speed up the eviction. Similar to a security deposit. If LL wins, it s refunded. d If LL loses, T can collect a judgment from the bond. What is the usual amount of the bond? Normally 2 months of rent (trial has to be held within 60 days). When should you consider a possession bond? When you re outside the three emergency eviction cases, or Commercial evictions (no automatic expedited evictions). 30 Possession Bonds What are T s options? Within 3 days of being served with the notice of bond, the T must: (1) Vacate the Property, or (2) Request a hearing, or (3) File a counter bond, or (4) Pay ENTIRE amount owed Payment is NOT available if the eviction is for something other than nonpayment. 10

12 Let s Try This Out Druggy Dan signed a year long lease 15 months ago and has been a problem ever since (neighbors complain constantly about Dan using drugs and you found a police report showing Dan was arrested for meth). Dan also hdhi had his girlfriend ilfi d(martha Meth-Head) move in with him without receiving your permission. What eviction notice(s) should you give? Dan No cause, nuisance, assigning or subleasing, criminal act, lease violations. Martha Assigning or subleasing, tenant at will. If you end up having to file for eviction, who are the defendants? BOTH Dan and Martha (make sure they have their own eviction notices). Change the scenario Dan is 6 months into his 12 month lease, what do you do? Build your case, do what you can to turn it into a paper eviction Thanks for coming, Stick around for questions or War Stories Names are normally changed to protect the innocent. Since they re not innocent, we ll use their real names. Evicting an Attorney who helped write the Utah Renter s Handbook. Fastest Eviction v. Six Month Eviction. Our possession bond was $500, their bond was $8,000. We still evicted after T filed BK, attorney threatened sanctions. Mistaken Identity ( I m not Blake. I m A Bob ). Defecation of character. Please rent to Rosalyn Fiedler (18 prior evictions). Abandonment = Theft/Criminal Trespassing. T removed cats 6 AM on the 4 th day after the EVN. The $100k lawsuit against the landlord. 5,000 sq. ft. house in Alpine cleared out in 2 hours

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