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[Utah Code Table of Contents]
[TITLE 78. Table of Contents]

78-38-.5 Legislative intent.

(1) The Legislature finds:

(a) the federal Environmental Protection Agency (EPA) has determined that environmental tobacco smoke is a Group A carcinogen, in the same category as other cancer-causing chemicals such as asbestos;

(b) the EPA has determined that there is no acceptable level of exposure to Class A carcinogens; and

(c) the EPA has determined that exposure to environmental tobacco smoke also causes an increase in respiratory diseases and disorders among exposed persons.

(2) The Legislature finds that environmental tobacco smoke generated in a rental or condominium unit may drift into other units, exposing the occupants of those units to tobacco smoke, and that standard construction practices are not effective in preventing this drift of tobacco smoke.

(3) The Legislature further finds that persons who desire to not be exposed to drifting environmental tobacco smoke should be able to determine in advance of entering into a rental, lease, or purchase agreement whether the subject unit may be exposed to environmental tobacco smoke.
    1997

78-38-1 Nuisance defined - Right of action for - Judgment.

(1) A nuisance is 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. A nuisance may be the subject of an action.

(2) A nuisance may include the following:

(a) drug houses and drug dealing as provided in Section 78-38-9 ;

(b) gambling as provided in Title 76, Chapter 10, Part 11;

(c) criminal activity committed in concert with two or more persons as provided in Section 76-3-203.1 ;

(d) party houses which frequently create conditions defined in Subsection (1); and

(e) prostitution as provided in Title 76, Chapter 10, Part 13.

(3) A nuisance under this section includes tobacco smoke that drifts into any residential unit a person rents, leases, or owns, from another residential or commercial unit and this smoke:

(a) drifts in more than once in each of two or more consecutive seven-day periods; and

(b) creates any of the conditions under Subsection (1).

(4) Subsection (3) does not apply to:

(a) residential rental units available for temporary rental, such as for vacations, or available for only 30 or fewer days at a time; or

(b) hotel or motel rooms.

(5) Subsection (3) does not apply to any unit that is part of a timeshare project, as defined in Section 57-19-2 , or subject to a timeshare interest as defined in Section 57-19-2 .

(6) An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance.

(7) Upon judgment, the nuisance may be enjoined or abated, and damages may be recovered.

(8) There is no cause of action for a nuisance under Subsection (3) if the rental, lease, restrictive covenant, or purchase agreement for the unit states in writing that:

(a) smoking is allowed in other units, either residential or commercial, and that tobacco smoke from those units may drift into the unit that is subject of the agreement; and

(b) by his signature the renter, lessee, or buyer acknowledges he has been informed that tobacco smoke may drift into the unit he is renting, leasing, or purchasing, and he waives any right to a cause of action for a nuisance under Subsection (3).

(9) A cause of action for a nuisance under Subsection (3) may be brought against:

(a) the individual generating the tobacco smoke;

(b) the renter or lessee who permits or fails to control the generation of tobacco smoke, in violation of the terms of his rental or lease agreement, on the premises he rents or leases; or

(c) the landlord, but only if:

(i) the terms of the renter's or lessee's contract provide the unit will not be subject to the nuisance of drifting tobacco smoke;

(ii) the complaining renter or lessee has provided to the landlord a statement in writing indicating that tobacco smoke is creating a nuisance in the renter's or lessee's unit; and

(iii) the landlord knowingly allows the continuation of a nuisance under Subsection (3) after receipt of written notice under Subsection (c)(ii), and in violation of the terms of the rental or lease agreement under Subsection (c)(i).
    1997

78-38-2 Right of action for waste - Damages.

If a guardian, tenant for life or years, joint tenant or tenant in common, of real property commits waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be a judgment for treble damages.
    1953

78-38-3 Right of action for injuries to trees - Damage.

Any person who cuts down or carries off any wood or underwood, tree or timber, or girdles or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person's house, town or city lot, or cultivated grounds, or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor in a civil action.
    1953

78-38-4 Limited damages in certain cases.

Nothing in Section 78-38-3 authorizes the recovery of more than the just value of the timber taken from uncultivated woodland for the repair of a public highway or bridge upon the land, or adjoining it.
    1995

78-38-4.5 Proof of ownership required to harvest or transport forest products or native vegetation - Definitions - Requirements for proof of ownership.

(1) It is unlawful for any person, firm, company, partnership, corporation, or business to harvest or transport timber, forest products, or other native vegetation without proof of ownership. For purposes of this chapter:

(a) "Forest products" means any tree or portion thereof before it is manufactured into dimensional lumber, timbers, and ties, or mill peeled and made into power poles or house logs, including but not limited to coniferous and deciduous trees, Christmas trees, sawlogs, poles, posts, pulp logs, and fuelwood; and

(b) "Native vegetation" means all other forest, desert, or rangeland vegetation including but not limited to shrubs, flora, roots, bulbs, and seed.

(2) Proof of ownership requires possession of:

(a) a contract, permit, or other writing issued by the landowner or proper state or federal agency;

(b) a bill of sale, or other sales receipt;

(c) a bill of lading or product load receipt;

(d) a ticket issued by the seller authorizing harvesting or removal; or

(e) any other legal instrument.

(3) The document required in Subsection (2) shall be issued by the landowner or proper state or federal agency and shall provide the following information:

(a) date of execution;

(b) name and address of person authorized to harvest or transport the products, if different from the purchaser;

(c) a legal or other sufficient description of the property from which the products are harvested or removed;

(d) the estimated amount or volume, species, and other pertinent information regarding the products harvested or transported;

(e) the delivery or scaling point;

(f) the name and address of the purchaser of the products;

(g) the name and address of the landowner, agency, or vendor; and

(h) an expiration date.
    1987

78-38-4.6 Enforcement.

Any law enforcement officer specified in Section 53-13-103 , or ranger, or special agent of the United States Forest Service or the United States Bureau of Land Management may:

(1) stop any vehicle or means of conveyance, including common carriers, containing timber, forest products, or native vegetation upon any road or highway of this state for the purpose of making an inspection and investigation but may not unduly detain a driver of such vehicle or means of conveyance;

(2) inspect the timber, forest product, or native vegetation in any vehicle, or other means of conveyance, including common carrier, to determine whether the provisions of this chapter have been complied with;

(3) seize and hold any timber, forest product, or native vegetation harvested, removed, or transported in violation of this chapter; and

(4) sell or dispose of the timber, forest product, or native vegetation as provided by rule by the appropriate agency.
    1998

78-38-4.7 Transportation of forest products or native vegetation into or through the state.

Timber, forest products, or native vegetation transported into or through the state must be accompanied by a shipping permit or proof of ownership.
    1987

78-38-4.8 Exemptions.

The provisions of this chapter do not apply to the transportation of:

(1) wood chips, sawdust, and bark;

(2) products transported by the owner of the property or his agent from which the products were removed; or

(3) products for personal consumption incidental to camping and picnicking which is limited to the amount:

(a) needed for the duration of the picnic or campout; and

(b) used at the campsite.
    1987

78-38-4.9 Violation as misdemeanor.

Violation of Sections 78-38-4.5 through 78-38-4.7 is a class B misdemeanor.
    1992

78-38-5 Manufacturing facility in operation over three years - Limited application of nuisance provisions.

(1) Notwithstanding Sections 78-38-1 and 76-10-803 , no manufacturing facility or the operation thereof shall be or become a nuisance, private or public, by virtue of any changed conditions in and about the locality thereof after the same has been in operation for more than three years when such manufacturing facility or the operation thereof was not a nuisance at the time the operation thereof began; provided, the manufacturing facility does not increase the condition asserted to be a nuisance and that the provisions of this subsection shall not apply whenever a nuisance results from the negligent or improper operation of any such manufacturing facility.

(2) The provisions of Subsection (1) of this section shall not affect or defeat the right of any person to recover damages for any injuries or damage sustained on account of any pollution of, or change in the condition of, the waters of any stream or on account of any overflow of the lands of any person.

(3) Any and all ordinances now or hereafter adopted by any county or municipal corporation in which such manufacturing facility is located, which makes the operation thereof a nuisance or providing for an abatement thereof as a nuisance in the circumstances set forth in this section are null and void; provided, however, that the provisions of this subsection shall not apply whenever a nuisance results from the negligent or improper operation of any such manufacturing facility.
    1981

78-38-6 "Manufacturing facility" defined.

As used in this act, "manufacturing facility" means any factory, plant, or other facility including its appurtenances, where the form of raw materials, processed materials, commodities, or other physical objects is converted or otherwise changed into other materials, commodities, or physical objects or where such materials, commodities, or physical objects are combined to form a new material, commodity, or physical object.
    1981

78-38-7 Agricultural operations - Nuisance liability.

(1) Agricultural operations that are consistent with sound agricultural practices are presumed to be reasonable and do not constitute a nuisance unless the agricultural operation has a substantial adverse effect on the public health and safety.

(2) Agricultural operations undertaken in conformity with federal, state, and local laws and regulations, including zoning ordinances, are presumed to be operating within sound agricultural practices.
    1995

78-38-8 "Agricultural operation" defined.

As used in this act, "agricultural operation" means any facility for the production for commercial purposes of crops, livestock, poultry, livestock products, or poultry products.
    1981

78-38-9 Nuisance - Right of action to abate nuisances - Drug houses and drug dealing - Gambling - Group criminal activity - Prostitution - Weapons.

(1) Every building or place is a nuisance where:

(a) the unlawful sale, manufacture, service, storage, distribution, dispensing, or acquisition occurs of any controlled substance, precursor, or analog specified in Title 58, Chapter 37, Controlled Substances;

(b) gambling is permitted to be played, conducted, or dealt upon as prohibited in Title 76, Chapter 10, Part 11, Gambling, which creates the conditions of a nuisance as defined in Subsection 78-38-1 (1);

(c) criminal activity is committed in concert with two or more persons as provided in Section 76-3-203.1 ;

(d) parties occur frequently which create the conditions of a nuisance as defined in Subsection 78-38-1 (1);

(e) prostitution or promotion of prostitution is regularly carried on by one or more persons as provided in Title 76, Chapter 10, Part 13, Prostitution; and

(f) a violation of Title 76, Chapter 10, Part 5, Weapons, occurs on the premises.

(2) It is a defense to nuisance under Subsection (1)(a) if the defendant can prove that the defendant is lawfully entitled to possession of a controlled substance.

(3) Sections 78-38-10 through 78-38-16 govern only an abatement by eviction of the nuisance as defined in Subsection (1).
    1999

78-38-10 Nuisance - Abatement by eviction.

(1) Whenever there is reason to believe that a nuisance under Sections 78-38-9 through 78-38-16 is kept, maintained, or exists in any county, the county attorney of the county, the city attorney of any incorporated city, any citizen or citizens of the state residing in the county, or any corporation, partnership or business doing business in the county, in his or their own names, may maintain an action in a court of competent jurisdiction to abate the nuisance and obtain an order for the automatic eviction of the tenant.

(2) The court may designate a spokesperson of any group of citizens who would otherwise have the right to maintain an action in their individual names against the defendant under this section.
    1992

78-38-11 Abatement by eviction order - Grounds.

An order of abatement by eviction may issue only upon a showing by the applicant by a preponderance of the evidence that:

(1) the applicant will suffer irreparable harm unless the order of abatement by eviction issues;

(2) the threatened injury to the applicant outweighs whatever damage the proposed order of abatement by eviction may cause the party so ordered;

(3) the order of abatement by eviction, if issued, would not be adverse to the public interest; and

(4) there is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation.
    1992

78-38-12 Prior acts of threats of violence - Protection of witnesses.

At the time of application for abatement of the nuisance by eviction pursuant to Sections 78-38-10 and 78-38-11 , if proof of the existence of the nuisance depends, in whole or in part, upon the affidavits of witnesses who are not peace officers, upon a showing of prior threats of violence or acts of violence by any defendant or other person, the court may issue orders to protect those witnesses, including, nondisclosure of the name, address, or any other information which may identify those witnesses.
    1992

78-38-13 Landlord, owner, or designated agent - Necessary party - Automatic eviction.

(1) A landlord, owner, or designated agent is a necessary party defendant in a nuisance action under Sections 78-38-9 through 78-38-16 for entry of an order to abate the nuisance by eviction where the acts complained of are those of third parties upon the premises of the landlord, owner, or designated agent.

(2) In the presence of the applicant, the tenant and the landlord, owner, or designated agent at the court's hearing on the action to abate the nuisance by eviction, the court shall notify the necessary parties of its finding that:

(a) a nuisance exists as defined in Section 78-38-9 ; and

(b) as a result, the court is issuing an order to evict the tenant subject to compliance with the security requirement in Section 78-38-14 .

(3) In all cases, including default judgments, the order of abatement by eviction may be issued and enforced immediately.
    1992

78-38-14 Security requirement - Amount not a limitation - Jurisdiction over surety.

(1) The court shall condition issuance of the order of abatement by eviction on the giving of security by the applicant, in such sum and form as the court determines proper, unless it appears that none of the parties will incur or suffer costs, attorney fees, or damage as the result of any wrongful order of abatement by eviction, or unless there exists some other substantial reason for dispensing with the requirement of security. No such security shall be required of the United States, the State of Utah, or of an officer, agency, or subdivision of either; nor shall it be required when it is prohibited by law.

(2) The amount of security shall not establish or limit the amount of costs, including reasonable attorney fees incurred in connection with the order of abatement by eviction, or damages that may be awarded to a party who is found to have been wrongfully evicted.

(3) A surety upon a bond or undertaking under this section submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall immediately mail copies to the persons giving the security if their addresses are known.

(4) The plaintiff, upon demand, shall be granted a hearing to be held prior to the expiration of three days from the date the defendant is served with notice of the plaintiff's giving of security as provided in Subsection 78-38-14 (1).
    1992

78-38-15 Evidence of nuisance.

In any action for abatement by eviction instituted pursuant to Sections 78-38-9 through 78-38-16 , all evidence otherwise authorized by law, including evidence of reputation in a community, is admissible to prove the existence of a nuisance by a preponderance of the evidence.
    1992

78-38-16 Award of costs and attorneys' fees.

(1) The court may award costs, including the costs of investigation and discovery, and reasonable attorneys' fees, which are not compensated for pursuant to some other provision of law, to the prevailing party in any case in which a governmental agency, private citizen or citizens, corporation, partnership, or business seeks to abate the nuisance by eviction in or upon any building or place where the nuisance occurs as provided in Section 78-38-9 .

(2) The court may award costs, including the costs of investigation and discovery, and reasonable attorneys' fees against a defendant landlord, owner, or designated agent only when the court finds that the defendant landlord, owner, or designated agent had actual notice of the nuisance action and willfully failed to take reasonable action within a reasonable time to abate the nuisance.
    1996

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