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[Utah Code Table of Contents]
[TITLE 38. Table of Contents]
38-9-1 Definitions.
As used in this chapter:
(1) "Interest holder" means a person who holds or possesses a present, lawful property interest in certain real property, including an owner, title holder, mortgagee, trustee, or beneficial owner.
(2) "Lien claimant" means a person claiming an interest in real property who offers a document for recording or filing with any county recorder in the state asserting a lien or other claim of interest in certain real property.
(3) "Owner" means a person who has a vested ownership interest in certain real property.
(4) "Record interest holder" means a person who holds or possesses a present, lawful property interest in certain real property, including an owner, titleholder, mortgagee, trustee, or beneficial owner, and whose name and interest in that real property appears in the county recorder's records for the county in which the property is located.
(5) "Record owner" means an owner whose name and ownership interest in certain real property is recorded or filed in the county recorder's records for the county in which the property is located.
(6) "Wrongful lien" means any document that purports to create a lien or encumbrance on an owner's interest in certain real property and at the time it is recorded or filed is not:
(a) expressly authorized by this chapter or another state or federal statute;
(b) authorized by or contained in an order or judgment of a court of competent jurisdiction in the state; or
(c) signed by or authorized pursuant to a document signed
by the owner of the real property.
1997
38-9-2 Scope.
(1) (a) The provisions of Sections 38-9-1 , 38-9-3 , 38-9-4 , and 38-9-6 apply to any recording or filing or any rejected recording or filing of a lien pursuant to this chapter on or after May 5, 1997.
(b) The provisions of Sections 38-9-1 and 38-9-7 apply to all liens of record regardless of the date the lien was recorded or filed.
(2) The provisions of this chapter shall not prevent a person from filing a lis pendens in accordance with Section 78-40-2 or seeking any other relief permitted by law.
(3) This chapter does not apply to a person entitled to
a lien under Section
38-1-3
who files a lien pursuant to Title 38, Chapter
1, Mechanics' Liens.
2005
38-9-3 County recorder may reject wrongful lien within scope of employment - Good faith requirement.
(1) A county recorder may reject recording of a lien if the county recorder determines the lien is a wrongful lien as defined in Section 38-9-1 . If the county recorder rejects the document, the county recorder shall immediately return the original document together with a notice that the document was rejected pursuant to this section to the person attempting to record or file the document or to the address provided on the document.
(2) A county recorder who, within the scope of the county recorder's employment, rejects or accepts a document for recording or filing in good faith under this section may not be liable for damages except as otherwise provided by law.
(3) If a rejected document is later found to be recordable pursuant to a court order, it shall have no retroactive recording priority.
(4) Nothing in this chapter shall preclude any person
from pursuing any remedy pursuant to Utah Rules of Civil
Procedure, Rule 65A, Injunctions.
1997
38-9-4 Civil liability for filing wrongful lien - Damages.
(1) A lien claimant who records or files or causes a wrongful lien as defined in Section 38-9-1 to be recorded or filed in the office of the county recorder against real property is liable to a record interest holder for any actual damages proximately caused by the wrongful lien.
(2) If the person in violation of this Subsection (1) refuses to release or correct the wrongful lien within ten days from the date of written request from a record interest holder of the real property delivered personally or mailed to the last-known address of the lien claimant, the person is liable to that record interest holder for $1,000 or for treble actual damages, whichever is greater, and for reasonable attorney fees and costs.
(3) A person is liable to the record owner of real property for $3,000 or for treble actual damages, whichever is greater, and for reasonable attorney fees and costs, who records or files or causes to be recorded or filed a wrongful lien as defined in Section 38-9-1 in the office of the county recorder against the real property, knowing or having reason to know that the document:
(a) is a wrongful lien;
(b) is groundless; or
(c) contains a material misstatement or false claim.
2006
38-9-6 Petition to file lien - Notice to record interest holders - Summary relief - Contested petition.
(1) A lien claimant whose document is rejected pursuant to Section 38-9-3 may petition the district court in the county in which the document was rejected for an expedited determination that the lien may be recorded or filed.
(2) (a) The petition shall be filed with the district court within ten days of the date notice is received of the rejection and shall state with specificity the grounds why the document should lawfully be recorded or filed.
(b) The petition shall be supported by a sworn affidavit of the lien claimant.
(c) If the court finds the petition is insufficient, it may dismiss the petition without a hearing.
(d) If the court grants a hearing, the petitioner shall serve a copy of the petition, notice of hearing, and a copy of the court's order granting an expedited hearing on all record interest holders of the property sufficiently in advance of the hearing to enable any record interest holder to attend the hearing and service shall be accomplished by certified or registered mail.
(e) Any record interest holder of the property has the right to attend and contest the petition.
(3) Following a hearing on the matter, if the court finds that the document may lawfully be recorded, it shall issue an order directing the county recorder to accept the document for recording. If the petition is contested, the court may award costs and reasonable attorney's fees to the prevailing party.
(4) A summary proceeding under this section is only to determine whether or not a contested document, on its face, shall be recorded by the county recorder. The proceeding may not determine the truth of the content of the document nor the property or legal rights of the parties beyond the necessary determination of whether or not the document shall be recorded. The court's grant or denial of the petition under this section may not restrict any other legal remedies of any party, including any right to injunctive relief pursuant to Rules of Civil Procedure, Rule 65A, Injunctions.
(5) If the petition contains a claim for damages, the
damage proceedings may not be expedited under this section.
1997
38-9-7 Petition to nullify lien - Notice to lien claimant - Summary relief - Finding of wrongful lien - Wrongful lien is void.
(1) Any record interest holder of real property against which a wrongful lien as defined in Section 38-9-1 has been recorded may petition the district court in the county in which the document was recorded for summary relief to nullify the lien.
(2) The petition shall state with specificity the claim that the lien is a wrongful lien and shall be supported by a sworn affidavit of the record interest holder.
(3) (a) If the court finds the petition insufficient, it may dismiss the petition without a hearing.
(b) If the court finds the petition is sufficient, the court shall schedule a hearing within ten days to determine whether the document is a wrongful lien.
(c) The record interest holder shall serve a copy of the petition on the lien claimant and a notice of the hearing pursuant to Rules of Civil Procedure, Rule 4, Process.
(d) The lien claimant is entitled to attend and contest the petition.
(4) A summary proceeding under this section is only to determine whether or not a document is a wrongful lien. The proceeding shall not determine any other property or legal rights of the parties nor restrict other legal remedies of any party.
(5) (a) Following a hearing on the matter, if the court determines that the document is a wrongful lien, the court shall issue an order declaring the wrongful lien void ab initio, releasing the property from the lien, and awarding costs and reasonable attorney's fees to the petitioner.
(b) (i) The record interest holder may record a certified copy of the order with the county recorder.
(ii) The order shall contain a legal description of the real property.
(c) If the court determines that the claim of lien is valid, the court shall dismiss the petition and may award costs and reasonable attorney's fees to the lien claimant. The dismissal order shall contain a legal description of the real property. The prevailing lien claimant may record a certified copy of the dismissal order.
(6) If the district court determines that the lien is a wrongful lien as defined in Section 38-9-1 , the wrongful lien is void ab initio and provides no notice of claim or interest.
(7) If the petition contains a claim for damages, the
damage proceedings may not be expedited under this section.
1997
