Can a Commercial Landlord Take a Tenant's Property for Not Paying Rent?
The general rule is yes, but there are exceptions, and you have to follow the rules. Under Utah law, a landlord has a lien for rent due upon all nonexempt property of the tenant brought or kept upon the leased premises so long as the tenant shall occupy the premises for at least 30 days. In other words, if a tenant is not paying rent, both commercial and residential landlords can take the tenant's possessions which the tenant keeps at the rented premises as long as the possessions are not exempt from being taken. A partial list of categories of exempt property can be found here.
Here are the things a landlord needs to do to seize a tenant's property. These tasks must be undertaken while the tenant is occupying the premises or within 30 days after leaving.
Complaint. The landlord, or the landlord's attorney, must file a complaint with the court. The complaint will ask that the court issue a writ of attachment. (See Utah Code 38-3-3 and 38-3-4.) A writ is like an order. An attachment is a seizure or a taking. A writ of attachment is the document that gives law enforcement the right to go take the property. Taking the property sometimes entails physically taking the property away from the premises. Sometimes, if it is impractical to take the property away (e.g. big commercial equipment) law enforcement will simply show up with the writ of attachment and notify the tenant that the property is now frozen and cannot be moved or sold.
Affidavit. Along with the complaint, the landlord must prepare and file an affidavit (or declaration). (See Utah Code 38-3-4.) The affidavit must set forth (a) the amount of rent due over and above all offsets and counterclaims, (b) a brief description of the leased premises, and (c) a statement that such writ of attachment is not sued out for the purpose of vexing or harassing the tenant.
Bond. The landlord must execute and file a bond with the court, as in other cases of attachment.
There will be a hearing before the writ is issued, and the tenant must be properly served with a summons and with notice of the hearing. Once the writ of attachment is issued, the landlord can contact a constable or law enforcement officer to serve the writ upon the tenant and attach the property.
It is important to remember that the court will only issue a writ of attachment for a landlord's lien if the tenant has not paid rent or if the tenant is about to remove property from the leased premises. The landlord does not have a statutory lien on the tenant's property on the basis that the tenant has, for example, caused property damage, or has violated the lease in some way other than for failure to pay rent. It is also important to remember that none of this applies to a "written lease for a term of years in which, as part of the consideration thereof, the tenant shall erect a building or improvements upon the leased premises." (See Utah Code 38-3-8.) Also, if the tenant abandons his or her property, a different set of rules applies. Lastly, the above rules are for a statutory lien only. Landlords and tenants can contractually agree to security interests and liens.
This Article provides general information only and should not be considered legal advice. Please consult a professional regarding your specific situation.