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[Utah Code Table of Contents]
[TITLE 57. Table of Contents]
57-1-1 Definitions.
As used in this title:
(1) "Certified copy" means a copy of a document certified by its custodian to be a true and correct copy of the document or the copy of the document maintained by the custodian, where the document or copy is maintained under the authority of the United States, the state of Utah or any of its political subdivisions, another state, a court of record, a foreign government, or an Indian tribe.
(2) "Document" means every instrument in writing, including every conveyance, affecting, purporting to affect, describing, or otherwise concerning any right, title, or interest in real property, except wills and leases for a term not exceeding one year.
(3) "Real property" or "real estate" means any right, title, estate, or interest in land, including all nonextracted minerals located in, on, or under the land, all buildings, fixtures and improvements on the land, and all water rights, rights-of-way, easements, rents, issues, profits, income, tenements, hereditaments, possessory rights, claims, including mining claims, privileges, and appurtenances belonging to, used, or enjoyed with the land or any part of the land.
(4) "Stigmatized" means:
(a) the site or suspected site of a homicide, other felony, or suicide; or
(b) the dwelling place of a person infected, or suspected
of being infected, with the Human Immunodeficiency Virus,
or any other infectious disease that the Utah Department
of Health determines cannot be transferred by occupancy of
a dwelling place.
1991
57-1-2 Words of inheritance not required to pass fee.
The term "heirs," or other technical words of inheritance
or succession, are not requisite to transfer a fee in real
estate.
1953
57-1-3 Grant of fee simple presumed.
A fee simple title is presumed to be intended to pass
by a conveyance of real estate, unless it appears from the
conveyance that a lesser estate was intended.
1953
57-1-4 Attempted conveyance of more than grantor owns - Effect.
A conveyance made by an owner of an estate for life or
years, purporting to convey a greater estate than he could
lawfully transfer, does not work a forfeiture of his estate,
but passes to the grantee all the estate which the grantor
could lawfully transfer.
1953
57-1-5 Creation of joint tenancy presumed - Tenancy in common - Severance of joint tenancy.
(1) (a) Beginning on May 5, 1997, every ownership interest in real estate granted to two persons in their own right who are designated as husband and wife in the granting documents is presumed to be a joint tenancy interest with rights of survivorship, unless severed, converted, or expressly declared in the grant to be otherwise.
(b) Every ownership interest in real estate which does not qualify for the joint tenancy presumption as provided in Subsection (1)(a) is presumed to be a tenancy in common interest unless expressly declared in the grant to be otherwise.
(2) (a) Use of words "joint tenancy" or "with rights of survivorship" or "and to the survivor of them" or words of similar import means a joint tenancy.
(b) Use of words "tenancy in common" or "with no rights of survivorship" or "undivided interest" or words of similar import shall declare a tenancy in common.
(3) A sole owner of real property shall create a joint tenancy in himself and another or others:
(a) by making a transfer to himself and another or others as joint tenants by use of the words as provided in Subsection (2)(a); or
(b) by conveying to another person or persons an interest in land in which an interest is retained by the grantor and by declaring the creation of a joint tenancy by use of the words as provided in Subsection (2)(a).
(4) In all cases, the interest of joint tenants shall be equal and undivided.
(5) A "joint tenancy" is severed and is converted into a "tenancy in common" by a joint tenant by making a bona fide conveyance of the joint tenant's interest in the property to himself or to another.
(6) The amendments to this section in Chapter 124, Laws
of Utah 1997 have no retrospective operation and shall govern
instruments executed and recorded on or after May 5, 1997.
2002
57-1-5.1 Termination of an interest in real estate - Affidavit.
(1) A document evidencing the termination of joint tenancy, tenancy by the entirety, life estate, or determinable or conditional interest in real estate may not be recorded unless it is an affidavit that meets the requirements of Subsection (2).
(2) The affidavit required by Subsection (1) shall:
(a) cite the interest which is being terminated;
(b) contain a legal description of the real property that is affected;
(c) reference the entry number and the book and page of the instrument creating the interest to be terminated; and
(d) if the termination is the result of a death, have
attached as an exhibit, a copy of the death certificate or
other document witnessing the death.
2000
57-1-10 After-acquired title passes.
If any person shall hereafter convey any real estate by
conveyance purporting to convey the same in fee simple absolute,
and shall not at the time of such conveyance have the legal
estate in such real estate, but shall afterwards acquire
the same, the legal estate subsequently acquired shall immediately
pass to the grantee, his heirs, successors or assigns, and
such conveyance shall be as valid as if such legal estate
had been in the grantor at the time of the conveyance.
1953
57-1-11 Claimant out of possession may convey.
Any person claiming title to any real estate may, notwithstanding
there may be an adverse possession thereof, sell and convey
his interest therein in the same manner and with the same
effect as if he were in the actual possession thereof.
1953
57-1-12 Form of warranty deed - Effect.
Conveyances of land may be substantially in the following form: WARRANTY DEED
____ (here insert name), grantor, of ____ (insert place of residence), hereby conveys and warrants to ____ (insert name), grantee, of ____ (insert place of residence), for the sum of ____ dollars, the following described tract ____ of land in ____ County, Utah, to wit: (here describe the premises).
Witness the hand of said grantor this __________(month\day\year).
A warranty deed when executed as required by law shall
have the effect of a conveyance in fee simple to the grantee,
his heirs and assigns, of the premises therein named, together
with all the appurtenances, rights, and privileges thereunto
belonging, with covenants from the grantor, his heirs, and
personal representatives, that he is lawfully seised of the
premises; that he has good right to convey the same; that
he guarantees the grantee, his heirs, and assigns in the
quiet possession thereof; that the premises are free from
all encumbrances; and that the grantor, his heirs, and personal
representatives will forever warrant and defend the title
thereof in the grantee, his heirs, and assigns against all
lawful claims whatsoever. Any exceptions to these covenants
may be briefly inserted in the deed following the description
of the land.
2000
57-1-13 Form of quitclaim deed - Effect.
Conveyances of land may also be substantially in the following form: QUITCLAIM DEED
____ (here insert name), grantor, of ____ (insert place of residence), hereby quitclaims to ____ (insert name), grantee, of ____ (here insert place of residence), for the sum of ____ dollars, the following described tract ____ of land in ____ County, Utah, to wit: (here describe the premises).
Witness the hand of said grantor this __________(month\day\year).
A quitclaim deed when executed as required by law shall
have the effect of a conveyance of all right, title, interest,
and estate of the grantor in and to the premises therein
described and all rights, privileges, and appurtenances thereunto
belonging, at the date of the conveyance.
2000
57-1-14 Form of mortgage - Effect.
A mortgage of land may be substantially in the following form: MORTGAGE
____ (here insert name), mortgagor, of ____ (insert place of residence), hereby mortgages to ____ (insert name), mortgagee, of ____ (insert place of residence), for the sum of ____ dollars, the following described tract ____ of land in ____ County, Utah, to wit: (here describe the premises).
This mortgage is given to secure the following indebtedness (here state amount and form of indebtedness, maturity, rate of interest, by and to whom payable, and where).
The mortgagor agrees to pay all taxes and assessments on said premises, and the sum of ____ dollars attorneys' fee in case of foreclosure.
Witness the hand of said mortgagor this __________(month\day\year).
A mortgage when executed as required by law shall have
the effect of a conveyance of the land therein described,
together with all the rights, privileges and appurtenances
thereunto belonging, to the mortgagee, his heirs, assigns,
and legal representatives, as security for the payment of
the indebtedness thereon set forth, with covenants from the
mortgagor of general warranty of title, and that all taxes
and assessments levied and assessed upon the land described,
during the continuance of the mortgage, will be paid previous
to the day appointed for the sale of such lands for taxes;
and may be foreclosed as provided by law upon any default
being made in any of the conditions thereof as to payment
of either principal, interest, taxes, or assessments.
2000
57-1-15 Effect of recording assignment of mortgage.
The recording of an assignment of a mortgage is not in
itself considered notice of the assignment to the mortgagor,
his heirs, or personal representatives so as to invalidate
any payment made by them or either of them to the mortgagee.
1988
57-1-19 Trust deeds - Definitions of terms.
As used in Sections 57-1-20 through 57-1-36 :
(1) "Beneficiary" means the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or his successor in interest.
(2) "Trustor" means the person conveying real property by a trust deed as security for the performance of an obligation.
(3) "Trust deed" means a deed executed in conformity with Sections 57-1-20 through 57-1-36 and conveying real property to a trustee in trust to secure the performance of an obligation of the trustor or other person named in the deed to a beneficiary.
(4) "Trustee" means a person to whom title to real property is conveyed by trust deed, or his successor in interest.
(5) "Real property" has the same meaning as set forth in Section 57-1-1 .
(6) "Trust property" means the real property conveyed
by the trust deed.
1988
57-1-20 Transfers in trust of real property - Purposes - Effect.
Transfers in trust of real property may be made to secure
the performance of an obligation of the trustor or any other
person named in the trust deed to a beneficiary. All right,
title, interest and claim in and to the trust property acquired
by the trustor, or the trustor's successors in interest,
subsequent to the execution of the trust deed, shall inure
to the trustee as security for the obligation or obligations
for which the trust property is conveyed as if acquired before
execution of the trust deed.
2001
57-1-21 Trustees of trust deeds - Qualifications.
(1) (a) The trustee of a trust deed shall be:
(i) any active member of the Utah State Bar who:
(A) resides in Utah; or
(B) maintains a bona fide office in the state;
(ii) any depository institution as defined in Section 7-1-103 , or insurance company authorized to do business and actually doing business in Utah under the laws of Utah or the United States;
(iii) any corporation authorized to conduct a trust business and actually conducting a trust business in Utah under the laws of Utah or the United States;
(iv) any title insurance company or agency that:
(A) holds a certificate of authority or license under Title 31A, Insurance Code, to conduct insurance business in the state;
(B) is actually doing business in the state; and
(C) maintains a bona fide office in the state;
(v) any agency of the United States government; or
(vi) any association or corporation that is licensed, chartered, or regulated by the Farm Credit Administration or its successor.
(b) For purposes of this Subsection (1), a person maintains a bona fide office within the state if that person maintains a physical office in the state:
(i) that is open to the public;
(ii) that is staffed during regular business hours on regular business days; and
(iii) at which a trustor of a trust deed may in person:
(A) request information regarding a trust deed; or
(B) deliver funds, including reinstatement or payoff funds.
(c) Subsection (1) is not applicable to a trustee of a trust deed existing prior to May 14, 1963, nor to any agreement that is supplemental to that trust deed.
(d) The amendments in Chapter 209, Laws of Utah 2002, to this Subsection (1) apply only to a trustee that is appointed on or after May 6, 2002.
(2) The trustee of a trust deed may not be the beneficiary of the trust deed, unless the beneficiary is qualified to be a trustee under Subsection (1)(a)(ii), (iii), (v), or (vi).
(3) The power of sale conferred by Section 57-1-23 may only be exercised by the trustee of a trust deed if the trustee is qualified under Subsection (1)(a)(i) or (iv).
(4) A trust deed with an unqualified trustee or without
a trustee shall be effective to create a lien on the trust
property, but the power of sale and other trustee powers
under the trust deed may be exercised only if the beneficiary
has appointed a qualified successor trustee under Section
57-1-22
.
2002
57-1-21.5 Trustees of trust deeds - Duties - Prohibited conduct - Penalties.
(1) Except as provided in Subsection (2), the following duties of the trustee may not be delegated:
(a) the preparation and execution of:
(i) the notice of default and election to sell;
(ii) the cancellation of notice of default and election to sell;
(iii) the notice of sale; and
(iv) the trustee's deed;
(b) the notification of foreclosure through publication, posting, and certified or registered mail;
(c) the receiving and responding to requests for reinstatement or payoff requirements; and
(d) the handling of reinstatement or payoff funds.
(2) Nothing in this section is intended to prevent:
(a) the trustee from using clerical or office staff:
(i) that is under the trustee's direct and immediate supervision; and
(ii) to assist in the duties described in Subsection (1);
(b) the trustee from using the services of others for publication, posting, marketing, or advertising the sale; or
(c) a beneficiary of a trust deed or the servicing agent of the beneficiary from directly performing the functions described in:
(i) Subsection (1)(c); or
(ii) Subsection (1)(d).
(3) The amendments in Chapter 209, Laws of Utah 2002, to Subsection (2) do not apply to a foreclosure if the notice of default related to the foreclosure was filed before May 6, 2002.
(4) (a) Except as provided in Subsection (4)(c), a trustee may not solicit or receive any fee for referring business to a third party.
(b) Fees prohibited under Subsection (4)(a) include:
(i) a commission;
(ii) a referral based fee, including a fee for the referral of:
(A) title work;
(B) posting services; or
(C) publishing services; or
(iii) a fee similar to a fee described in Subsection (4)(b)(i) or (ii).
(c) Subsection (4)(a) does not apply to:
(i) fees received by a trustee for the trustee acting as co-legal counsel, if the trustee is otherwise permitted by law to receive fees as co-legal counsel; or
(ii) a nonpreferred participation in net profits based upon an ownership interest or franchise relationship that is not otherwise prohibited by law.
(5) A trustee may not require the following to pay any costs that exceed the actual costs incurred by the trustee:
(a) a trustor reinstating or paying off a loan; or
(b) a beneficiary acquiring property through foreclosure.
(6) (a) A person that violates Subsection (4) or (5) is guilty of a class B misdemeanor.
(b) In addition to a person's liability under Subsection (6)(a), if a person violates Subsection (4) or (5), that person is liable to the trustor for an amount equal to the greater of:
(i) the actual damages of the trustor as a result of the violation; or
(ii) $1,000.
(c) In an action brought under Subsection (6)(b), the
party that does not prevail in the action that is brought
under Subsection (6)(b) shall pay the attorney fees of the
prevailing party.
2002
57-1-22 Successor trustees - Appointment by beneficiary - Effect - Substitution of trustee - Recording - Form.
(1) (a) The beneficiary may appoint a successor trustee at any time by filing for record in the office of the county recorder of each county in which the trust property or some part of the trust property is situated, a substitution of trustee.
(b) The new trustee shall succeed to all the power, duties, authority, and title of the trustee named in the deed of trust and of any successor trustee.
(c) The beneficiary may, by express provision in the substitution of trustee, ratify and confirm action taken on the beneficiary's behalf by the new trustee prior to the recording of the substitution of trustee.
(2) The substitution shall:
(a) identify the trust deed by stating:
(i) the names of the original parties to the trust deed;
(ii) the date of recordation; and
(iii) (A) the book and page where the trust deed is recorded; or
(B) the entry number;
(b) include the legal description of the trust property;
(c) state the name and address of the new trustee; and
(d) be executed and acknowledged by all of the beneficiaries under the trust deed or their successors in interest.
(3) (a) If not previously recorded, at the time of recording a notice of default, the successor trustee shall file for record, in the office of the county recorder of each county in which the trust property or some part of it is situated, the substitution of trustee.
(b) A copy of the substitution of trustee shall be sent in the manner provided in Subsection 57-1-26 (2) to any:
(i) person who requests a copy of any notice of default or notice of sale under Subsection 57-1-26 (1)(a); and
(ii) person who is a party to the trust deed to whom a copy of a notice of default would be required to be mailed by Subsection 57-1-26 (3).
(4) A substitution of trustee shall be in substantially the following form: Substitution of Trustee (insert name and address of new trustee)
is hereby appointed successor trustee under the trust
deed executed by ____ as trustor, in which ____ is named
beneficiary and ____ as trustee, and filed for record __________(month\day\year),
and recorded in Book ____, Page ____, Records of ____ County,
(or filed for record __________(month\day\year), with recorder's
entry No. ____, ____ County), Utah. (Insert legal description)
Signature_____________________________ (Certificate of Acknowledgment)
2002
57-1-23 Sale of trust property - Power of trustee - Foreclosure of trust deed.
The trustee who is qualified under Subsection
57-1-21
(1)(a)(i) or (iv) is given the power of sale
by which the trustee may exercise and cause the trust property
to be sold in the manner provided in Sections
57-1-24
and
57-1-27
, after a breach of an obligation for which
the trust property is conveyed as security; or, at the option
of the beneficiary, a trust deed may be foreclosed in the
manner provided by law for the foreclosure of mortgages on
real property. The power of sale may be exercised by the
trustee without express provision for it in the trust deed.
2001
57-1-24 Sale of trust property by trustee - Notice of default.
The power of sale conferred upon the trustee who is qualified under Subsection 57-1-21 (1)(a)(i) or (iv) may not be exercised until:
(1) the trustee first files for record, in the office of the recorder of each county where the trust property or some part or parcel of the trust property is situated, a notice of default, identifying the trust deed by stating the name of the trustor named in the trust deed and giving the book and page, or the recorder's entry number, where the trust deed is recorded and a legal description of the trust property, and containing a statement that a breach of an obligation for which the trust property was conveyed as security has occurred, and setting forth the nature of that breach and of the trustee's election to sell or cause to be sold the property to satisfy the obligation;
(2) not less than three months has elapsed from the time the trustee filed for record under Subsection (1); and
(3) after the lapse of at least three months the trustee
shall give notice of sale as provided in Sections
57-1-25
and
57-1-26
.
2001
57-1-25 Notice of trustee's sale - Description of property - Time and place of sale.
(1) The trustee shall give written notice of the time and place of sale particularly describing the property to be sold:
(a) by publication of the notice:
(i) at least three times;
(ii) once a week for three consecutive weeks;
(iii) the last publication to be at least ten days but not more than 30 days before the date the sale is scheduled; and
(iv) in a newspaper having a general circulation in each county in which the property to be sold, or some part of the property to be sold, is situated; and
(b) by posting the notice:
(i) at least 20 days before the date the sale is scheduled; and
(ii) (A) in some conspicuous place on the property to be sold; and
(B) at the office of the county recorder of each county in which the trust property, or some part of it, is located.
(2) (a) The sale shall be held at the time and place designated in the notice of sale.
(b) The time of sale shall be between the hours of 8 a.m. and 5 p.m.
(c) The place of sale shall be clearly identified in the notice of sale under Subsection (1) and shall be at a courthouse serving the county in which the property to be sold, or some part of the property to be sold, is located.
(3) The notice of sale shall be in substantially the following form: Notice of Trustee's Sale
The following described property will be sold at public auction to the highest bidder, payable in lawful money of the United States at the time of sale, at (insert location of sale) ________________on __________(month\day\year), at __.m. of said day, for the purpose of foreclosing a trust deed originally executed by ____ (and ____, his wife,) as trustors, in favor of ____, covering real property located at ____, and more particularly described as: (Insert legal description)
The current beneficiary of the trust deed is ______________________
and the record owners of the property as of the recording
of the notice of default are _________________ and ____________________.
Dated __________(month\day\year)._______________ Trustee
2002
57-1-26 Requests for copies of notice of default and notice of sale - Mailing by trustee or beneficiary - Publication of notice of default - Notice to parties of trust deed.
(1) (a) Any person desiring a copy of any notice of default and of any notice of sale under any trust deed shall file for record a duly acknowledged request for a copy of any notice of default and notice of sale:
(i) in the office of the county recorder of any county in which the trust property or any part of the trust property is situated; and
(ii) at any time:
(A) subsequent to the filing for record of the trust deed; and
(B) prior to the filing for record of a notice of default.
(b) Except as provided in Subsection (3), the request described in Subsection (1)(a) may not be included in any other recorded instrument.
(c) The request described in Subsection (1)(a) shall:
(i) set forth the name and address of the one or more persons requesting copies of the notice of default and the notice of sale; and
(ii) identify the trust deed by stating:
(A) the names of the original parties to the trust deed;
(B) the date of filing for record of the trust deed;
(C) (I) the book and page where the trust deed is recorded; or
(II) the recorder's entry number; and
(D) the legal description of the trust property.
(d) The request described in Subsection (1)(a) shall be in substantially the following form: REQUEST FOR NOTICE
The undersigned requests that a copy of any notice of default and a copy of notice of sale under the trust deed filed for record __________(month\day\year), and recorded in Book ____, Page ____, Records of ____ County, (or filed for record __________(month\day\year), with recorder's entry number ____, _______ County), Utah, executed by ____ and _________________ as trustors, in which ____ is named as beneficiary and ____ as trustee, be mailed to ____ (insert name) ____ at ____ (insert address) __________. (Insert legal description) Signature ____________________ (Certificate of Acknowledgement)
(e) If a request for a copy of a notice of default and notice of sale is filed for record under this section, the recorder shall index the request in:
(i) the mortgagor's index;
(ii) mortgagee's index; and
(iii) abstract record.
(f) Except as provided in Subsection (3), the trustee under any deed of trust is not required to send notice of default or notice of sale to any person not filing a request for notice as described in this Subsection (1).
(2) (a) Not later than ten days after recordation of a notice of default, the trustee or beneficiary shall mail a signed copy of the notice of default:
(i) by certified or registered mail, with postage prepaid;
(ii) with the recording date shown;
(iii) addressed to each person whose name and address are set forth in a request that has been recorded prior to the filing for record of the notice of default; and
(iv) directed to the address designated in the request.
(b) At least 20 days before the date of sale, the trustee shall mail a signed copy of the notice of the time and place of sale:
(i) by certified or registered mail, return receipt requested, with postage prepaid;
(ii) addressed to each person whose name and address are set forth in a request that has been recorded prior to the filing for record of the notice of default; and
(iii) directed to the address designated in the request.
(3) (a) Any trust deed may contain a request that a copy of any notice of default and a copy of any notice of sale under the trust deed be mailed to any person who is a party to the trust deed at the address of the person set forth in the trust deed.
(b) A copy of any notice of default and of any notice of sale shall be mailed to any person requesting the notice who is a party to the trust deed at the same time and in the same manner required in Subsection (2) as though a separate request had been filed by each person as provided in Subsection (1) except that a trustee shall include with a signed copy of a notice of default and the signed copy of a notice of sale the following information current as of the time the notice of default and the notice of sale is provided:
(i) the name of the trustee;
(ii) the mailing address of the trustee;
(iii) if the trustee maintains a bona fide office in the state meeting the requirements of Subsection 57-1-21 (1)(b), the address of a bona fide office of the trustee meeting the requirements of Subsection 57-1-21 (1)(b);
(iv) the hours during which the trustee can be contacted regarding the notice of default and notice of sale, which hours shall include the period during regular business hours in a regular business day; and
(v) a telephone number that the person may use to contact the trustee during the hours described in Subsection (3)(b)(iv).
(4) If no address of the trustor is set forth in the trust deed and if no request for notice by the trustor has been recorded as provided in this section, no later than 15 days after the filing for record of the notice of default, a copy of the notice of default shall be:
(a) mailed to the address of the property described in the notice of default; or
(b) posted on the property.
(5) The following shall not affect the title to trust property or be considered notice to any person that any person requesting copies of notice of default or of notice of sale has or claims any right, title or interest in, or lien or claim upon, the trust property:
(a) a request for a copy of any notice filed for record under Subsection (1) or (3);
(b) any statement or allegation in any request described in Subsection (5)(a); or
(c) any record of a request described in Subsection (5)(a).
2002
57-1-27 Sale of trust property by public auction - Postponement of sale.
(1) (a) On the date and at the time and place designated in the notice of sale, the trustee or the attorney for the trustee shall sell the property at public auction to the highest bidder. The trustee, or the attorney for the trustee, may conduct the sale and act as the auctioneer. The trustor, or the trustor's successor in interest, if present at the sale, may direct the order in which the trust property shall be sold, if the property consists of several known lots or parcels which can be sold separately. The trustee or attorney for the trustee shall follow these directions. Any person, including the beneficiary or trustee, may bid at the sale. The trustee may bid for the beneficiary. Each bid is considered an irrevocable offer. If the highest bidder refuses to pay the amount bid by the highest bidder for the property, the trustee, or the attorney for the trustee, shall either:
(i) renotice the sale in the same manner as notice of the original sale is required to be given; or
(ii) sell the property to the next highest bidder.
(b) A bidder refusing to pay the bid price is liable for any loss occasioned by the refusal, including interest, costs, and trustee's and reasonable attorneys' fees. The trustee or the attorney for the trustee may thereafter reject any other bid of that person for the property.
(2) The person conducting the sale may, for any cause
he considers expedient, postpone the sale. The person conducting
the sale shall give notice of each postponement by public
declaration, by written notice or oral postponement, at the
time and place last appointed for the sale. No other notice
of the postponed sale is required, unless the postponement
exceeds 45 days. In that event, the sale shall be renoticed
in the same manner as the original notice of sale is required
to be given.
2001
57-1-28 Sale of trust property by trustee - Payment of bid - Trustee's deed delivered to purchaser - Recitals - Effect.
(1) (a) The purchaser at the sale shall pay the price bid as directed by the trustee.
(b) The beneficiary shall receive a credit on the beneficiary's bid in an amount not to exceed the amount representing:
(i) the unpaid principal owed;
(ii) accrued interest as of the date of the sale;
(iii) advances for the payment of:
(A) taxes;
(B) insurance; and
(C) maintenance and protection of the trust property;
(iv) the beneficiary's lien on the trust property; and
(v) costs of sale, including reasonable trustee's and attorney's fees.
(2) (a) (i) Within three business days of the day the trustee receives payment of the price bid, the trustee shall make the trustee's deed available to the purchaser.
(ii) If the trustee does not comply with this Subsection (2)(a), the trustee is liable for any loss incurred by the purchaser because of the trustee's failure to comply with this Subsection (2)(a).
(b) The trustee's deed may contain recitals of compliance with the requirements of Sections 57-1-19 through 57-1-36 relating to the exercise of the power of sale and sale of the property described in the trustee's deed, including recitals concerning:
(i) any mailing, personal delivery, and publication of the notice of default;
(ii) any mailing and the publication and posting of the notice of sale; and
(iii) the conduct of sale.
(c) The recitals described in Subsection (2)(b):
(i) constitute prima facie evidence of compliance with Sections 57-1-19 through 57-1-36 ; and
(ii) are conclusive evidence in favor of bona fide purchasers and encumbrancers for value and without notice.
(3) The trustee's deed shall operate to convey to the
purchaser, without right of redemption, the trustee's title
and all right, title, interest, and claim of the trustor
and the trustor's successors in interest and of all persons
claiming by, through, or under them, in and to the property
sold, including all right, title, interest, and claim in
and to the property acquired by the trustor or the trustor's
successors in interest subsequent to the execution of the
trust deed, which trustee's deed shall be considered effective
and relate back to the time of the sale.
2002
57-1-29 Proceeds of trustee's sale - Disposition.
(1) The trustee shall apply the proceeds of the trustee's sale, first, to the costs and expenses of exercising the power of sale and of the sale, including the payment of the trustee's and attorney's fees actually incurred not to exceed the amount which may be provided for in the trust deed, second, to payment of the obligation secured by the trust deed, and the balance, if any, to the person or persons legally entitled to the proceeds, or the trustee, in the trustee's discretion, may deposit the balance of the proceeds with the clerk of the district court of the county in which the sale took place. If the proceeds are deposited with the clerk of the district court, the trustee shall file an affidavit with the clerk setting forth the facts of the deposit and a list of all known claimants, including known addresses. Upon depositing the balance and filing the affidavit, the trustee shall be discharged from all further responsibility and the clerk shall deposit the proceeds with the state treasurer subject to the order of the district court.
(2) The clerk shall give notice of the deposited funds to all claimants listed in the trustee's affidavits within 15 days of receiving the affidavit of deposit from the trustee.
(3) Any claimant may file a petition for adjudication of priority to the funds. The petitioner requesting the funds shall give notice of the petition to all claimants listed in the trustee's affidavit and to any other claimants known to the petitioner. The petitioner's notice must specify that all claimants have 20 days to contest the petition by affidavit or counter-petition. If no affidavit or counter-petition is filed within 20 days, the court shall, without a hearing, enter an order directing the clerk of the court or the county treasurer to disburse the funds to the petitioner according to the petition.
(4) If a petition for adjudication is contested by affidavit or counter-petition, the district court shall, within 20 days, conduct a hearing to establish the priorities of the parties to the deposited funds and give notice to all known claimants of the date and time of the hearing. At the hearing, the court will establish the priorities of the parties to the deposited funds and enter an order directing the clerk of the court or county treasurer to disburse the funds according to the court's determination.
(5) All persons having or claiming to have an interest
in the disposition of funds deposited with the court under
Subsection (1) who fail to appear and assert their claims
are barred from any claim to the funds after the entry of
the court's order under Subsection (4).
2001
57-1-30 Sale of trust property by trustee - Corporate stock evidencing water rights given to secure trust deed.
Shares of corporate stock evidencing water rights used,
intended to be used, or suitable for use on the trust property
and which are hypothecated to secure an obligation secured
by a trust deed may be sold with the trust property, or any
part thereof, at the trustee's sale in the manner provided
in this act.
1961
57-1-31 Trust deeds - Default in performance of obligations secured - Reinstatement - Cancellation of recorded notice of default.
(1) Whenever all or a portion of the principal sum of any obligation secured by a trust deed has, prior to the maturity date fixed in the obligation, become due or been declared due by reason of a breach or default in the performance of any obligation secured by the trust deed, including a default in the payment of interest or of any installment of principal, or by reason of failure of the trustor to pay, in accordance with the terms of the trust deed, taxes, assessments, premiums for insurance, or advances made by the beneficiary in accordance with terms of the obligation or of the trust deed, the trustor or the trustor's successor in interest in the trust property or any part of the trust property or any other person having a subordinate lien or encumbrance of record on the trust property or any beneficiary under a subordinate trust deed, at any time within three months of the filing for record of notice of default under the trust deed, if the power of sale is to be exercised, may pay to the beneficiary or the beneficiary's successor in interest the entire amount then due under the terms of the trust deed (including costs and expenses actually incurred in enforcing the terms of the obligation, or trust deed, and the trustee's and attorney's fees actually incurred) other than that portion of the principal as would not then be due had no default occurred, and thereby cure the existing default. After the beneficiary or beneficiary's successor in interest has been paid and the default cured, the obligation and trust deed shall be reinstated as if no acceleration had occurred.
(2) If the default is cured and the trust deed reinstated in the manner provided in Subsection (1), and a reasonable fee is paid for cancellation, including the cost of recording the cancellation of notice of default, the trustee shall execute, acknowledge, and deliver a cancellation of the recorded notice of default under the trust deed; and any trustee who refuses to execute and record this cancellation within 30 days is liable to the person curing the default for all actual damages resulting from this refusal. A reconveyance given by the trustee or the execution of a trustee's deed constitutes a cancellation of a notice of default. Otherwise, a cancellation of a recorded notice of default under a trust deed is, when acknowledged, entitled to be recorded and is sufficient if made and executed by the trustee in substantially the following form: Cancellation of Notice of Default
The undersigned hereby cancels the notice of default filed
for record __________(month\day\year), and recorded in Book
____, Page ____, Records of ____ County, (or filed of record
__________(month\day\year), with recorder's entry No. ____,
____ County), Utah, which notice of default refers to the
trust deed executed by ____ and ___________ as trustors,
in which ____ is named as beneficiary and ____ as trustee,
and filed for record __________(month\day\year), and recorded
in Book ____, Page ____, Records of ____ County, (or filed
of record __________(month\day\year), with recorder's entry
No. ____, ____ County), Utah. (legal description) Signature
of Trustee ______________________________________________________
2001
57-1-31.5 Accounting of costs and fees paid - Disclosure.
(1) For purposes of this section, "compensation" means anything of economic value that is paid, loaned, granted, given, donated, or transferred to a trustee for or in consideration of:
(a) services;
(b) personal or real property; or
(c) other thing of value.
(2) If a trustee receives a request from the trustor for a statement as to the amount required to be paid to reinstate or payoff a loan, the trustee shall include with that statement:
(a) a detailed listing of any of the following that the trustor would be required to pay to reinstate or payoff the loan:
(i) attorney's fees;
(ii) trustee fees; or
(iii) any costs including:
(A) title fees;
(B) publication fees; or
(C) posting fees; and
(b) subject to Subsection (3), a disclosure of:
(i) any relationship that the trustee has with a third party that provides services related to the foreclosure of the loan; and
(ii) whether the relationship described in Subsection (2)(b)(i) is created by:
(A) an ownership interest in the third party; or
(B) contract or other agreement.
(3) Subsection (2)(b) does not require a trustee to provide a trustor:
(i) a copy of any contract or agreement described in Subsection (2)(b);
(ii) specific detail as to the nature of the ownership interest described in Subsection (2)(b); or
(iii) the amount of compensation the trustee receives
related to the foreclosure of the loan under a relationship
described in Subsection (2)(b).
2002
57-1-32 Sale of trust property by trustee - Action to recover balance due upon obligation for which trust deed was given as security - Collection of costs and attorney's fees.
At any time within three months after any sale of property
under a trust deed as provided in Sections
57-1-23
,
57-1-24
, and
57-1-27
, an action may be commenced to recover the
balance due upon the obligation for which the trust deed
was given as security, and in that action the complaint shall
set forth the entire amount of the indebtedness that was
secured by the trust deed, the amount for which the property
was sold, and the fair market value of the property at the
date of sale. Before rendering judgment, the court shall
find the fair market value of the property at the date of
sale. The court may not render judgment for more than the
amount by which the amount of the indebtedness with interest,
costs, and expenses of sale, including trustee's and attorney's
fees, exceeds the fair market value of the property as of
the date of the sale. In any action brought under this section,
the prevailing party shall be entitled to collect its costs
and reasonable attorney fees incurred.
2001
57-1-33.1 Reconveyance of a trust deed - Erroneous reconveyance.
(1) (a) When an obligation secured by a trust deed has been satisfied, the trustee shall, upon written request by the beneficiary, reconvey the trust property.
(b) At the time the beneficiary requests a reconveyance under Subsection (1)(a), the beneficiary shall deliver to the trustee or the trustee's successor in interest the trust deed and the note or other evidence that the obligation securing the trust deed has been satisfied.
(2) The reconveyance under Subsection (1) may designate the grantee as "the person or persons entitled thereto."
(3) If a reconveyance is erroneously recorded by a beneficiary,
the effect of the reconveyance may be nullified and the trust
deed reinstated by the recording of a corrective affidavit
executed by the then current beneficiary describing the trust
deed and setting forth the fact of the erroneous reconveyance.
Upon the recording of a corrective affidavit or similar instrument,
the trust deed has the same priority as it did prior to the
erroneous reconveyance. However, any lien or interest that
was recorded or attached to the trust deed property between
the time of the recording of the erroneous reconveyance and
the recording of the corrective affidavit or similar instrument
has priority over the reinstated trust deed, unless the lien
or interest was recorded or attached with actual knowledge
that the trust deed had been reconveyed erroneously.
2001
57-1-34 Sale of trust property by trustee - Foreclosure of trust deed - Limitation of actions.
The trustee's sale of property under a trust deed shall
be made, or an action to foreclose a trust deed as provided
by law for the foreclosure of mortgages on real property
shall be commenced, within the period prescribed by law for
the commencement of an action on the obligation secured by
the trust deed.
1961
57-1-35 Trust deeds - Transfer of secured debts as transfer of security.
The transfer of any debt secured by a trust deed shall
operate as a transfer of the security therefor.
1961
57-1-36 Trust deeds - Instruments entitled to be recorded - Assignment of a beneficial interest.
Any trust deed, substitution of trustee, assignment of
a beneficial interest under a trust deed, notice of default,
trustee's deed, reconveyance of the trust property, and any
instrument by which any trust deed is subordinated or waived
as to priority, if acknowledged as provided by law, is entitled
to be recorded. The recording of an assignment of a beneficial
interest in the trust deed does not in itself impart notice
of the assignment to the trustor, his heirs or personal representatives,
so as to invalidate any payment made by any of them to the
person holding the note, bond, or other instrument evidencing
the obligation by the trust deed.
1988
57-1-37 Failure to disclose not a basis for liability.
(1) The failure of an owner of real property to disclose that the property being offered for sale is stigmatized is not a material fact that must be disclosed in the transaction of real property.
(2) Neither an owner nor his agent is liable for failing
to disclose that the property is stigmatized.
1991
57-1-38 Release of security interest.
(1) As used in this section:
(a) "Secured lender" means:
(i) a mortgagee on a mortgage;
(ii) a beneficiary on a trust deed;
(iii) a person that holds or retains legal title to real property as security for financing the purchase of the real property under a real estate sales contract; and
(iv) any other person that holds or retains a security interest in real property to secure the repayment of a secured loan.
(b) (i) "Secured loan" means a loan or extension of credit, the repayment of which is secured by a mortgage, a trust deed, the holding or retention of legal title under a real estate sales contract, or other security interest in real property, whether or not the security interest is perfected.
(ii) A judgment award secured by a judgment lien is not of itself a secured loan. A subsequent written agreement between a judgment creditor and a judgment debtor concerning payment of the judgment is a secured loan if it otherwise qualifies under the definition in Subsection (1)(b)(i).
(c) "Security interest" means an interest in real property that secures payment or performance of an obligation. Security interest includes a lien or encumbrance.
(d) "Servicer" means a person that services and receives loan payments on behalf of a secured lender with respect to a secured loan.
(2) This section may not be interpreted to validate, invalidate, alter, or otherwise affect the foreclosure of a mortgage, the exercise of a trustee's power of sale, the exercise of a seller's right of reentry under a real estate sales contract, or the exercise of any other power or remedy of a secured lender to enforce the repayment of a secured loan.
(3) A secured lender or servicer who fails to release the security interest on a secured loan within 90 days after receipt of the final payment of the loan is liable to another secured lender on the real property or the owner or titleholder of the real property for:
(a) the greater of $1,000 or treble actual damages incurred because of the failure to release the security interest, including all expenses incurred in completing a quiet title action; and
(b) reasonable attorneys' fees and court costs.
(4) A secured lender or servicer is not liable under Subsection (3) if the secured lender or servicer:
(a) has established a reasonable procedure to release the security interest on a secured loan in a timely manner after the final payment on the loan;
(b) has complied with this procedure in good faith; and
(c) is unable to release the security interest within
90 days after receipt of the final payment because of the
action or inaction of an agency or other person beyond its
direct control.
1995
57-1-39 Definitions.
As used in Sections 57-1-40 and 57-1-44 :
(1) "Beneficiary" means the record owner of the beneficiary's interest under a trust deed, including successors in interest.
(2) "Deliver" or "delivered" means:
(a) by overnight delivery by a reputable carrier; or
(b) by United States certified mail or express mail.
(3) "Mortgage" is as described in Section 57-1-14 .
(4) "Mortgagee" means the record owner of the mortgagee's interest under a mortgage, including a successor in interest.
(5) "Satisfactory evidence of the full payment of the obligation secured by a trust deed or mortgage" means written information adequate, in the opinion of a title insurer or title agent, to establish that the obligation secured by the trust deed or mortgage has been paid in full.
(6) "Servicer" means a person or entity that collects loan payments on behalf of a beneficiary or mortgagee.
(7) "Title agent" means a title insurance producer licensed as an organization under Title 31A, Chapter 23a, Part 2, Producers and Consultants.
(8) "Title insurer" means a title insurer authorized to conduct business in the state under Title 31A, Chapter 23a, Part 2, Producers and Consultants.
(9) "Trust deed" is as defined in Subsection
57-1-19
(3).
2003
57-1-40 Reconveyance of trust deed or release of mortgage - Procedures - Forms.
(1) A title insurer or title agent may reconvey a trust deed or release a mortgage in accordance with the provisions of Subsections (2) through (6) if:
(a) the obligation secured by the trust deed or mortgage has been fully paid by the title insurer or title agent; or
(b) the title insurer or title agent possesses satisfactory evidence of the full payment of the obligation secured by a trust deed or mortgage.
(2) A title insurer or title agent may reconvey a trust deed or release a mortgage under Subsection (1) regardless of whether the title insurer or title agent is named as a trustee under a trust deed or has the authority to release a mortgage.
(3) At the time the obligation secured by the trust deed or mortgage is paid in full, or at any time thereafter, the title insurer or title agent shall deliver a notice of intent to release or reconvey and a copy of the release or reconveyance to be recorded, as described in Subsection (4), to the beneficiary, mortgagee, or servicer at:
(a) the address specified in the trust deed or mortgage;
(b) any address for the beneficiary or mortgagee specified in the last recorded assignment of the trust deed or mortgage;
(c) any address for the beneficiary, mortgagee, or servicer specified in a request for notice recorded under Section 57-1-26 ; or
(d) the address shown on any payoff statement received by the title insurer or agent from the beneficiary, mortgagee, or servicer.
(4) The notice of intent to release or reconvey shall contain the name of the beneficiary or mortgagee and the servicer if loan payments on the trust deed or mortgage are collected by a servicer, the name of the title insurer or title agent, the date, and be substantially in the following form: NOTICE OF INTENT TO RELEASE OR RECONVEY
Notice is hereby given to you as follows:
1. This notice concerns the (trust deed or mortgage) described as follows:
(Trustor or Mortgagor):____________________________________________
(Beneficiary or Mortgagee):________________________________________
Recording information:____________________________________________
Entry Number:___________________________________________________
Book Number:_______________________________________________
Page Number:_______________________________________________
2. The undersigned claims to have paid in full or possesses satisfactory evidence of the full payment of the obligation secured by the trust deed or mortgage described above.
3. The undersigned will fully release the mortgage or reconvey the trust deed described in this notice unless, within 60 days from the date stated on this notice, the undersigned has received by certified mail a notice stating that the obligation secured by the trust deed or mortgage has not been paid in full or that you otherwise object to the release of the mortgage or the reconveyance of the trust deed. Notice shall be mailed to the address stated on this form.
4. A copy of the (release of mortgage or reconveyance of trust deed) is enclosed with this notice. (Signature of title insurer or title agent) (Address of title insurer or title agent)
(5) (a) If, within 60 days from the day on which the title insurer or title agent delivered the notice of intent to release or reconvey in accordance with Subsections (3) and (4), a reconveyance of trust deed or release of mortgage is not recorded, and the beneficiary, mortgagee, or servicer does not send by certified mail to the title insurer or title agent a notice that the obligation secured by the trust deed or mortgage has not been paid in full or that the beneficiary, mortgagee, or servicer objects to the release of the mortgage or reconveyance of the trust deed, the title insurer or title agent may execute, acknowledge, and record a reconveyance of a trust deed or release of a mortgage.
(b) A reconveyance of a trust deed under Subsection (5)(a) shall be in substantially the following form: RECONVEYANCE OF TRUST DEED
(Name of title insurer or title agent), a (title insurer or title agent) authorized to conduct business in the state does hereby reconvey, without warranty, the following trust property located in (name of county) County, state of Utah, that is covered by a trust deed naming (name of trustor) as trustor, and (name of beneficiary) as beneficiary and was recorded on (date) in Book ________ at Page _________ as Entry Number _________: (insert a description of the trust property.)
The undersigned title insurer or title agent certifies as follows:
1. The undersigned title insurer or title agent has fully paid the obligation secured by the trust deed or possesses satisfactory evidence of the full payment of the obligation secured by the trust deed.
2. In accordance with the requirements of Utah Code Annotated Subsections 57-1-40 (3) and (4), the title insurer or title agent delivered to the beneficiary or servicer, a notice of intent to release or reconvey and a copy of the reconveyance.
3. The trust deed has not been reconveyed and the title insurer or title agent did not receive, within 60 days from the day on which the title insurer or title agent delivered the notice of intent to release or reconvey, a notice from the beneficiary or servicer sent by certified mail that the obligation secured by the trust deed has not been paid in full or that the beneficiary or servicer objects to the reconveyance of the trust deed. ___________________________________
___________________________________ (Notarization)(Signature of title insurer or title agent)
(c) A release of a mortgage under Subsection (5)(a) shall be in substantially the following form: RELEASE OF MORTGAGE
(Name of title insurer or title agent), a (title insurer or title agent) authorized to conduct business in the state does hereby release the mortgage on the following property located in (name of county) County, state of Utah, that is covered by a mortgage naming (name of mortgagor) as mortgagor, and (name of mortgagee) as mortgagee and was recorded on (date) in Book ________ at Page _________ as Entry Number _________: (insert a description of the trust property.)
The undersigned title insurer or title agent certifies as follows:
1. The undersigned title insurer or title agent has fully paid the obligation secured by the mortgage or possesses satisfactory evidence of the full payment of the obligation secured by the mortgage.
2. In accordance with the requirements of Utah Code Annotated Subsections 57-1-40 (3) and (4), the title insurer or title agent delivered to the mortgagee or servicer a notice of intent to release or reconvey and a copy of the release.
3. The mortgage has not been released and the title insurer or title agent did not receive, within 60 days from the day on which the title insurer or title agent delivered the notice of intent to release or reconvey, a notice from the mortgagee or servicer sent by certified mail that the obligation secured by the mortgage has not been paid in full or that the mortgagee or servicer objects to the release of the mortgage. ___________________________________
___________________________________ (Notarization)(Signature of title insurer or title agent)
(d) (i) A release of mortgage or reconveyance of trust deed that is executed and notarized in accordance with Subsection (5)(b) or (c) is entitled to recordation.
(ii) (A) Except as provided in Subsection (5)(d)(ii)(B), a reconveyance of a trust deed or release of a mortgage that is recorded under Subsection (5)(d)(i) is valid regardless of any deficiency in the release or reconveyance procedure not disclosed in the release of mortgage or reconveyance of trust deed.
(B) If the title insurer's or title agent's signature on a release of mortgage or reconveyance of trust deed recorded under Subsection (5)(d)(ii)(A) is forged, the release of mortgage or reconveyance of trust deed is void.
(6) A release of mortgage or reconveyance of trust deed
under this section does not, by itself, discharge any promissory
note or other obligation that was secured by the trust deed
or mortgage at the time the trust deed was reconveyed or
the mortgage was released.
2002
57-1-41 Objections to reconveyance or release.
A title insurer or title agent may not record a reconveyance
of trust deed or release of mortgage if, within 60 days from
the day on which the title insurer or title agent delivered
or mailed the notice of intent to release or reconvey in
accordance with Subsections
57-1-40
(3) and (4), the beneficiary, mortgagee, or
servicer sends a notice that the obligation secured by the
trust deed or mortgage has not been paid in full or objects
to the release of the mortgage or reconveyance of the trust
deed under Subsection (5)(a).
1995
57-1-42 Liability of title insurer or title agent.
A title insurer or title agent purporting to act under the provisions of Section 57-1-40 who reconveys a trust deed or releases a mortgage is liable to the beneficiary or mortgagee for the damages suffered as a result of the reconveyance if:
(1) the obligation secured by the trust deed or mortgage has not been fully paid; and
(2) (a) the title insurer or title agent failed to comply with the provisions of Sections 57-1-40 and 57-1-41 ; or
(b) the title insurer or title agent acted with gross
negligence or in bad faith in reconveying the trust deed.
1995
57-1-43 Application of provisions.
The provisions of Sections
57-1-39
through
57-1-42
apply to any obligation secured by a trust
deed or mortgage that was paid prior to, on, or after May
1, 1995.
1995
57-1-44 Other sections not affected.
Sections
57-1-39
through
57-1-43
do not excuse a beneficiary, mortgagee, trustee,
secured lender, or servicer from complying with the provisions
of Section
57-1-38
.
1995
57-1-45 Boundary line agreements.
(1) If properly executed and acknowledged as required under this chapter, an agreement between property owners designating the boundary line between their properties, when recorded in the office of the recorder of the county in which the property is located, shall act as a quitclaim deed and convey all of each party's right, title, interest, and estate in property outside the agreed boundary line that had been the subject of the boundary dispute that led to the boundary line agreement.
(2) Each boundary line agreement under Subsection (1)
shall contain a description of the land conveyed and the
address of each grantee.
2001
