AMERICAN HOLDING COMPANY v. Hanson

464 P.2d 592, 23 Utah 2d 432, 1970 Utah LEXIS 705

• Court: Utah Supreme Court
• Decided: January 21, 1970
• Docket: 11743
• Status: Published

Opinions

TUCKETT, Justice:

The plaintiff commenced these proceedings seeking termination of a certain lease and to recover the leased premises.

On April 10, 1961, B & E Securities, Inc., a corporation, as lessor, entered into a written lease with the defendants and the defendants went into possession of the property in St. George, Utah. After the execution of the lease, B & E Securities, Inc., assigned all of its rights in the lease and conveyed its ownership in the property to the plaintiff.

The terms of the lease provided that the defendants were to make monthly payments of rent; to pay utility bills chargeable to the premises; and to pay the personal property tax assessed upon the property of the defendants.

The defendants made the rental payments as called for by the lease until March, 196S, when they failed to make the payment for that month. Thereafter the defendants were delinquent in the payment of rent for various periods of time and the plaintiff from time to time notified the defendants of those delinquencies. During the year 1968 the defendants had failed to pay the rental for a period of several months and the plaintiff served written notice upon the defendants of its intention to terminate the lease and requested the defendants to surrender possession of the premises.

The defendants failed to deliver possession of the premises to the plaintiff and these proceedings were commenced. The plaintiff and the defendants filed separate motions for a summary judgment. On June 28, 1969, the trial court made and entered an order granting the defendants’ motion and from that order the plaintiff has appealed to this court.

The notice of termination and to quit served upon the defendants by the plaintiff declared that the defendants had failed to make the payments of rent due under the lease and that they had also failed to pay the utility bills. The notice further provided that the defendants were to quit the-premises and to deliver possession of the same to the plaintiff within 15 days.

It is quite obvious that the notice-failed to comply with Section 78-36-3,, U.C.A.1953. Prior decisions of this court are to the effect that Chapter 36, Title 78, U.C.A.1953, is the exclusive remedy for the recovery of premises held by a tenant for a term of less than life. The case of King v. Firm¹ had this to say: “A landlord who is entitled to possession must, on the refusal of the tenant to surrender the-premises, resort to the remedy given bylaw to secure it.”

The statute requires that a notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises shall have remained uncomplied with for a period of three days after the service of the notice. The landlord is not entitled to maintain an action for the restitution of the premises without first having complied with the statute in giving a proper notice which complies with the terms of the statute. The trial court was correct in granting a summary judgment. The judgment of the court below is affirmed. Defendants are entitled to •costs.

CROCKETT, C. J., and HENRIOD, J., •concur.

1 . 3 Utah 2d 419, 285 P.2d 1114.