| (1) |
As used in this section, “timeshare interest” means the same as that term is defined in Section 57-19-2. |
Terms Used In Utah Code 78B-21-117
- Contract: A legal written agreement that becomes binding when signed.
- Court: means a court of this state with jurisdiction over the action under Title 78A, Judiciary and Judicial Administration. See Utah Code 78B-21-102 v2
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Executory contract: means a contract, including a lease, under which each party has an unperformed obligation and the failure of a party to complete performance would constitute a material breach. See Utah Code 78B-21-102 v2
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Lien: A claim against real or personal property in satisfaction of a debt.
- Lien: means an interest in property that secures payment or performance of an obligation. See Utah Code 78B-21-102 v2
- Mortgage: means a record, however denominated, that creates or provides for a consensual lien on real property or rents, even if the mortgage also creates or provides for a lien on personal property. See Utah Code 78B-21-102 v2
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Mortgagee: means a person entitled to enforce an obligation secured by a mortgage. See Utah Code 78B-21-102 v2
- Mortgagee: The person to whom property is mortgaged and who has loaned the money.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Owner: means the person for whose property a receiver is appointed. See Utah Code 78B-21-102 v2
- Person: means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity. See Utah Code 78B-21-102 v2
- Property: means all of a person's right, title, and interest, both legal and equitable, in real and personal property, tangible and intangible, wherever located and however acquired. See Utah Code 78B-21-102 v2
- real property: includes :Utah Code 68-3-12.5
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Receiver: means a person appointed by the court as the court's agent, and subject to the court's direction, to take possession of, manage, and, if authorized by this chapter or court order, transfer, sell, lease, license, exchange, collect, or otherwise dispose of receivership property. See Utah Code 78B-21-102 v2
- Receivership: means a proceeding in which a receiver is appointed. See Utah Code 78B-21-102 v2
- Receivership property: means the property of an owner that is described in the order appointing a receiver or a subsequent order. See Utah Code 78B-21-102 v2
- Record: means , when used as a noun, information that is inscribed on a tangible medium or that is stored on an electronic or other medium and is retrievable in perceivable form. See Utah Code 78B-21-102 v2
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
| (2) |
| (a) |
Except as otherwise provided in Subsection (8), with court approval, a receiver may adopt or reject an executory contract of the owner relating to receivership property. |
| (b) |
The court may condition the receiver’s adoption and continued performance of the contract on terms appropriate under the circumstances. |
| (c) |
If the receiver does not request court approval to adopt or reject the executory contract within a reasonable time after the receiver’s appointment, the receiver is deemed to have rejected the executory contract. |
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| (3) |
A receiver’s performance of an executory contract before court approval under Subsection (2) of the executory contract’s adoption or rejection is not an adoption of the executory contract and does not preclude the receiver from seeking approval to reject the executory contract. |
| (4) |
A provision in an executory contract that requires or permits a forfeiture, modification, or termination of the executory contract because of the appointment of a receiver or the financial condition of the owner does not affect a receiver’s power under Subsection (2) to adopt the executory contract. |
| (5) |
| (a) |
A receiver’s right to possess or use receivership property pursuant to an executory contract terminates on rejection of the executory contract under Subsection (2). |
| (b) |
Rejection is a breach of the executory contract effective immediately before appointment of the receiver. |
| (c) |
A claim for damages for rejection of the executory contract must be submitted by the later of:
| (i) |
the time set for submitting a claim in the receivership; or |
| (ii) |
30 days after the court approves the rejection. |
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| (6) |
If at the time a receiver is appointed, the owner has the right to assign an executory contract relating to receivership property under law of this state other than this chapter, the receiver may assign the executory contract with court approval. |
| (7) |
If a receiver rejects an executory contract for the sale of receivership property that is real property in possession of the purchaser or a real-property timeshare interest under Subsection (2), the purchaser may:
| (a) |
treat the rejection as a termination of the executory contract, and in that case the purchaser has a lien on the property for the recovery of any part of the purchase price the purchaser paid; or |
| (b) |
retain the purchaser’s right to possession under the executory contract, and in that case the purchaser shall continue to perform all obligations arising under the executory contract and may offset any damages caused by nonperformance of an obligation of the owner after the date of the rejection, but the purchaser has no right or claim against other receivership property or the receiver on account of the damages. |
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| (8) |
A receiver may not reject an unexpired lease of real property under which the owner is the landlord if:
| (a) |
the tenant occupies the leased premises as the tenant’s primary residence; |
| (b) |
the receiver was appointed at the request of a person other than a mortgagee; or |
| (c) |
the receiver was appointed at the request of a mortgagee and:
| (i) |
the lease is superior to the lien of the mortgage; |
| (ii) |
the tenant has an enforceable agreement with the mortgagee or the holder of a senior lien under which the tenant’s occupancy will not be disturbed as long as the tenant performs the tenant’s obligations under the lease; |
| (iii) |
the mortgagee has consented to the lease, either in a signed record or by the mortgagee’s failure to timely object that the lease violated the mortgage; or |
| (iv) |
the terms of the lease were commercially reasonable at the time the lease was agreed to and the tenant did not know or have reason to know that the lease violated the mortgage. |
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Enacted by Chapter 431, 2017 General Session
