If The Disclosures Don’t Fit, You Can’t Evict: – February 2017
Terry Jessop & Bitner Newsletter
Issue 40, February 2017
Have you ever evicted a tenant? If so, did you feel like the process was quick and inexpensive? On the flip side, have you ever been evicted? Did you perceive the process as fair? In response to complaints that the eviction process sometimes allows unscrupulous landlords to frivolously evict tenants, the Utah Supreme Court recently changed the rules for residential evictions. Landlords must now document and provide a clear factual basis for the eviction. This means that landlords must beef up their complaints and give advance disclosures to tenants. The disclosures are broken into three parts, each of which is discussed below.
One for the Rent Money
The first set of disclosures must be included with the complaint. Specifically, the landlord must provide: (i) a copy of the written lease agreement; (ii) a copy of the eviction notice that was served on the tenants; (iii) an itemized calculation of past due rent, damages, costs, and attorney’s fees at the time of filing; (iv) an explanation of the factual basis for eviction; and (v) notice to the tenants of their obligation to serve disclosures for any occupancy hearing. The disclosures can either be attached to the complaint as exhibits, e.g., a copy of the lease, or they can be folded into the allegations of the complaint.
Two for the Occupancy Show
The second set of disclosures are for the occupancy hearing. If a tenant files an answer to an eviction complaint, then either party can request a hearing on who is entitled to possession of the premises. In the past, the landlord and tenant showed up and presented their cases ambush-style. With the rule change, the parties must disclose information beforehand. Now, the parties must provide the name, address, telephone number, and a summary of the expected testimony of all fact witnesses. The parties must also disclose any documents not previously provided which they intend to use at the hearing. The disclosures must be served on the other party in the manner most likely to be promptly received.
The timing for the disclosures depends on who requests the hearing. For example, if a landlord requests the hearing, she must serve her disclosures with the request. The party who receives the request for hearing (the tenant, in our example) must also provide disclosures to the other side at least two days prior to the hearing. The penalty for failing to disclose is that witnesses may be barred and documents may be excluded.
The third set of disclosures are for the trial. While possession of the premises is determined at the occupancy hearing, damages are usually reserved for trial, which is supposed to happen 60 days after the filing of the complaint. Two weeks before trial, the parties must state the names and addresses of witnesses, unless those have already been provided. If deposition testimony will be used, the party must name the witness and give a copy of the transcript to the other side. The parties must also disclose copies of each exhibit that they intend to use at trial. A party who fails to make these disclosures is not entitled to judgment.
Four to Know
Navigating these disclosures is a fairly complex process. If done improperly it can hurt your case. If you have questions concerning this process call us. We can help.
© Terry Jessop & Bitner February 2017