Utah Eviction Training
P t d b
Presented by
Attorney Jeremy Shorts
www.utahevictionlaw.com [email protected] [email protected]
801-610-9879
You’ll be hearing PLENTY of free legal advice & war stories…
To start – Don’t rent to Rosalyn Fiedler (18 prior EVs).
Attorney Jeremy Shorts
www.utahevictionlaw.com [email protected]
801-610-9879
General Pointers About…
Lawsuits
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Two Questions Prior to ANY Lawsuit:
#1 – Do we have a successful claim? AND
#2 – Will we be able to collect on a judgment?
#2 Will we be able to collect on a judgment?
General Pointers About…
Lawsuits
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Evictions are Unique:
You should still answer “Yes” to #1, BUT
Even if you cannot collect, an eviction will help to:
(1) stop the bleedin nd
(1) stop the bleeding, and
(2) regain control & possession of your property.
General Pointers About…
Evictions v. Collections
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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.
General Pointers About…
Evictions
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Evictions deal with two issues:
1
stPriority – Possession, &
2
ndPriority – Damages. y g
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).
Only Two Ways To Get Them Out
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#1 – Tenants Voluntarily Leave
Includes “cash for keys” or if they abandon.
General Pointers About…
Evictions
y y
#2 – Court Process
If they don’t leave voluntarily, your
ONLY option is to seek an eviction
order through the court process.
Eviction Three Step
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EACH eviction must follow these steps:
Step #1: Eviction Notice(s) (plural) Step #2: File Eviction with Court Step #3: Eviction Hearing
Hearings areusually ONLYrequired for disputed cases.
Don’t change the locks unless you’ve completed all necessary steps.
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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.
Step #1
Serving the Eviction Notice
Do NOT serve via email, 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?
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• Pay or Quit
• Comply or Vacate
• Notice to Vacate
• Nuisance
• Assigning/Subleasing
• Waste
• Criminal Acts
• Unlawful Business
3 Days
Step #1
Types of Eviction Notices
Nuisance Unlawful Business
• Tenant at Will
• 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.
•
If served on Tues. at 7:00 AM, when do they have to comply?
•
ANSWER – Midnight on Friday. You can file Monday.
5 Days
15 Days
Step #1
Types of Eviction Notices
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• Pay or Quit
• Comply or Vacate
• Notice to Vacate
• N i
• Assigning/Subleasing
• Waste
• Criminal Acts U l f l B i
• Nuisance • Unlawful Business
• Tenant at Will
• No Cause (Lease Termination)
Let’s talk about the different types of eviction notices…
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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
Three Day Pay or Quit (Non-Payment of Rent)
Pay entire balance, or Vacate within 3 days
Does your lease waive T’s right to pay? It’s NOT enforceable
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Three Day Pay or Quit (Non-Payment of Rent)
Rent is One Day
3DPOQ One Day
Past Due
(Check Lease)
Tenant has three calendar days to….
OR…
•Tenant must pay everything.
•Even if they Quit, the balance is still owed to LL (treated as a collection case).
Non-Payment Eviction What Can the 3DPOQ Include?
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What about listing these?
Security Deposits?
Statute states the eviction notice must be based on “rent & other amounts due.”
Security Deposits?
Waste (damages)?
Late Fees?
Unpaid Utilities?
Be sure your lease clearly states what charges the T is responsible for.
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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:
What About Partial Payments?
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.
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Partial Payments in Action
Re-Serve New 3DPOQ Stating New Rent
Past
Due 3DPOQ Served
Landlord Accepts
Partial Payment
Balance
Common Defenses to the 3DPOQ
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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).
No Cause Notice to Vacate (Lease Termination)
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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 q 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).
Paper Eviction v. Opinion Eviction
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Paper Evictions
• What I say to the Judge: “Your Honor, look at these papers. They show we’re entitled to an eviction.”
• D n’t r q ir pini n r m j r
Opinion Evictions
• What I say to the Judge: “Your Honor, listen to my client and ignore the T.”
• We must rely on witnesses for opinions
•J d t LL “I h r h t ’r
Focus on what EVIDENCE the judge will use to decide...
• Don’t require opinions or major testimony to prove our case.
• Types of Paper Evictions:
•3PODQ
•No Cause (Lease Termination)
•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
• Keep a log of violations
• Get witness statements
• Bring a witness for inspections
• Avoid verbal communication
• Send written letters/notices
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AKA “Evictions for Cause”
Not nearly as common as evictions for non-payment
Opinion Evictions
Landlord bears the burden of proof
Must rely on witnesses
Can be difficult to prove (witnesses might be reluctant to testify).
Types of Nuisances
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Criminal Nuisance
• Felonies
Non-Criminal Nuisance
• Disturbing other tenants/neighbors in 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-6-1101(1)
Felonies
• Criminal act affecting health/safety
• Criminal act causing property damage
• Drug or gang related criminal act
• Threatening violence against others
• Other criminal acts that directly impact the peaceful enjoyment of the premises by tenants/neighbors
Disturbing other tenants/neighbors in a way that interferes with any neighbor's quiet enjoyment.
• Smoking that drifts into another rental unit (but only if LL prohibits smoking in all units).
You should clearly identify: (1) The type of nuisance claimed, and (2) the facts supporting the claim.
Tenant at Will
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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?
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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
Tenant at Will – Pop Quiz
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.
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Opinion Evictions
3 D N ti Eviction
When can you eliminate their right to cure and just force them to vacate?
3-Day Notices Event
In this situation:
•Nuisance
•Comply or Vacate
Tenant’s Right To Cure
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YES – T can cure
• Basic Lease Violations
• Tenant at Will
PROBLEM If the T can cure
NO – T can’t cure
• Assigning or Subleasing
• Waste
• Unlawful Business PROBLEM – If the T can cure,
the LL may have to prove two separate violations:
•One to justify the EVN
•One to justify filing the eviction
• Nuisance
• Criminal Act on Premises
• Lease violations which “cannot be brought into compliance”
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.”
Abandonment
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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
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What does a botched abandonment case look like?
Treble Damages
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Treble Damages Defined (Utah Code Ann. 78B-6-811)
The judgment shallbe 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. g
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.
Step #3 – Eviction Hearings
(and how to get an expedited eviction)
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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.
H d di d i i ?
How do you get an expedited eviction?
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.
Possession Bonds
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What is it?
Deposit paid by LL to the COURT.
Used to speed up the eviction.
Similar to a security deposit.
f f d d
If LL wins, it’s refunded.
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).
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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
Possession Bonds
(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.
Let’s Try This Out...
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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 h d hi i lf i d (M h M h H d) had his girlfriend (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.
www.utahevictionlaw.com 801-610-9879
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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.
Mi k Id i (“I’ Bl k I’ A B b”)
Thanks for coming,
Stick around for questions or War Stories…
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 4thday after the EVN.
The $100k lawsuit against the landlord.
5,000 sq. ft. house in Alpine cleared out in 2 hours.
www.utahevictionlaw.com [email protected]
801-610-9879
