Celeste C. Canning, PLLC, Ogden, UT

Most tenants are in belief that when they pay a security deposit, they won’t ever see it again. This misconception has caused many to lose their deposit unnecessarily.  When a tenant vacates a rental property at the end of their leasing agreement, they have rights regarding their security deposit.

Utah Code 57-17-3 specifies the timeframe and obligation a landlord has regarding a renter’s security deposit. Under this code, a landlord can apply a deposit toward payment of rent, damages to the premises beyond reasonable wear and tear, other costs and fees provided for in the lease agreement or cleaning of the unit

Within 30 days after the date a tenant vacates and returns possession of the rental property to the landlord, the landlord shall deliver to the tenant at their last known address: A- the balance of any deposit, B- the balance of any prepaid rent; and C- If any deductions were made from the deposit, a written notice that itemizes and explains the reason for each deduction.

When a tenant does not receive the information as required under Utah Code 57-17-3 within thirty (30) days of vacating the rental unit, they can complete and serve upon the landlord a Notice to Provide Deposit Disposition. This notice tells the landlord that they have five (5) business days to comply with the code by refunding the security deposit, and providing a notice of any deductions made on the tenant’s security deposit.

Supposing that the landlord fails to provide the requested documentation within five (5) days of being served the Notice to Provide Deposit Disposition; they are required to refund the entire security deposit, along with a penalty of $100.00 to the tenant for failure to respond to the notice. If the landlord fails or refuses to return the security deposit and the penalty fee, the tenant can pursue litigation under the statute requesting the entirety of their security deposit, the penalty for failure to comply with the written notice, along with court costs and attorney fees.

If all fails and you need to know your rights regarding a security deposit, do not navigate it alone. We are happy to assist you with this process. Please contact our office at 801-612-9299 and request to speak with Brooke for more information and assistance.

https://www.utcourts.gov/en/self-help/categories/housing/landlord/refunding-deposits.html

[1] https://le.utah.gov/xcode/Title57/Chapter17/57-17-S3.html?v=C57-17-S3_2018050820180508

Beginning sometime after August 20, 2024, new noncompete agreements between employers and employees will no longer be allowed under a new FTC rule passed April 23, 2024.

In brief: After the rule becomes effective (not before August 20, 2024), new noncompete agreements are prohibited and most existing agreements cannot be enforced. The exception to enforcement is for senior executives – those existing noncompete agreements may continue to be enforced. In addition, employers must notify employees that the employer will not be seeking to enforce the agreement.

Prior to the new rule, about 1 in 5 workers were required to enter into noncompete agreements as a condition of employment. At a minimum, noncompete agreements prohibited the affected employee from working in the same field (sometimes, any field) in a defined geographic area during and after employment. The employee is bound to the employer – the employee cannot quit and find other employment without violating the agreement. If the employee is terminated by the employer, even without cause, the employee would have difficulty obtaining a job for which they are qualified due to the noncompete in place.

Beginning in August, employers can no longer require – or even ask – any employees to enter into noncompete agreements. Moreover, they cannot enforce the ones they already have, with a very narrow exception. Employees at most levels will be free to move to jobs they may enjoy more, that may pay more, or that have better benefits, including starting their own businesses.

The only exception will be existing noncompete agreements with senior executive employees. A senior executive employee is one making over $151,164 per year and involved in policy decisions or planning. If a senior executive employee is currently subject to a noncompete, the restriction is allowed to continue. However, no new noncompete agreements can be made after August 21, 2024, regardless of the employee’s level.

This sounds like a bigger blow to the employer than it really is. Some states have already passed legislation to prohibit noncompete agreements to some degree. California, Minnesota, North Dakota, Oklahoma and Washington DC have already banned noncompete agreements in most circumstances. Nine other states have established compensation floors below which Noncompetes cannot be used. And other states, like Utah, have curtailed the scope of the noncompete. In Utah, Noncompetes cannot be effective for more than one-year post-employment, and may only prevent competition within the least restrictive geographic area possible.

The restrictions by the states are a result of employer abuses having an adverse effect on the employees and the workforce in general, as well as competition and innovation. I was involved in one situation where the employee was prevented from working anywhere in the world, in any profession, for five years after employment terminated. I have seen noncompete agreements applied to skilled and unskilled trades as well as entry level positions earing minimum wage and having no access to company secrets and no ability to determine policy or direction. Basically, the trend was to make everyone sign one. There is no legitimate business interest that can justify those restrictions.

Not all is lost for the employer. Noncompetes were originally intended to allow an employer to share processes, methods, ideas, and strategic policies with employees without fear the employee would take them to a competitor or use the information to open employee’s own business. Employers may continue to use nondisclosure agreements to accomplish this goal. Nondisclosure agreements prohibit the employee from using or providing specific information obtained in the employer’s employ for the benefit of any other party, including the employee. They serve the same goal noncompete agreements were initially created to further.

If you need assistance with creating a nondisclosure agreement for your employees, or to discuss your rights as an employer under this new rule, please contact my office at 801-612-9299 for a consultation.

Being evicted from a rental unit can be detrimental to not only your wallet, but also your credit score. When an eviction occurs and pings on your credit, you may struggle with obtaining a new place to live, and landlords may require additional deposits before allowing you to move into their unit. Utah has passed a law that can assist those with evictions on their records by expungement. Expunging a record means to destroy, obliterate or strike out records in a file.

Utah legislative has created a new system to assist the burden of renters being unable to find places to live due to evictions being on their credit scores. There are three ways an eviction expungement can occur: 1: Automatic expungement. 2: Asking for expungement by filing a petition and 3: Settlement expungement agreement with all parties to matter.

Automatic expungements occur automatically if; A. the entire case was dismissed, there is no appeal pending and at least three years have passed from the date the case was filed. B. the parties to the case agree to the expungement and file a stipulation with the Court that states the parties stipulate the Court to expunge the eviction. If a case is eligible for expungement under one of the automatic expungement requirements, the Court will order the expungement immediately once it qualifies. No party to the case receives any notice regarding the expungement. Mycase can be utilized to locate if the eviction has been expunged.

If an automatic expungement does not work for your case, the next way an eviction can be expunged is by asking for the expungement by filing a petition. In order to file a petition to request an expungement on an eviction, you must meet the following requirements: A. Your eviction was for nonpayment of rent or staying in the property after your lease expired (an unlawful detainer matter). B. If a judgment was entered against you, it has been satisfied and a Satisfaction of Judgment has been filed with the Court.

In the event the Court grants your expungement, either by automatic or requested expungements, the case should be treated like it never happened. Any third parties who have information about your case will be prohibited from giving out any information about your case. This includes, but is not limited to: government agencies, such as the sheriff and tenant screening agencies. The Court posts a list of case numbers that were expunged to inform third parties to remove the case from their files.[1]

Not every eviction matter will be eligible for expungement. In the event a case is not eligible, there are still options to pursue! If your eviction is causing you difficulty in finding a place to live, you can A: try to pay down the debt owed. This can be difficult for some, but a judgment on your credit report can make finding a place to live more difficult. Paying off the debt and reporting the payoff to the credit reporting agency can make the judgment less harmful. If you are struggling to manage your debts, you can contact Fair Credit[2] to see if they can assist you. Ask for a letter of reference from a previous landlord or others to show prospective landlords. Contact 2-1-1 Utah[3] for help and connection to other resources.

If all fails and you need to know your legal rights under an eviction, do not navigate it alone! We are happy to assist you in this process. Please call our office at 801-612-9299 to speak with Brooke for more information and assistance.

https://www.utcourts.gov/en/self-help/categories/housing/landlord/expunge.html#:~:text= You%20can%20ask%20to%20expunge,been%20filed%20with%20the%20court

[1] https://apps.utcourts.gov/CourtsPublicWEB/index.jsp?option=EVICT

[2] https://faircredit.org/

[3] https://211utah.org/

Utah recently passed a law that allows paralegals to independently practice in specific areas of law, in certain circumstances. The areas of law currently open for Licensed Paralegal Practitioners, as of right now, are: Family Law; Landlord/Tenant disputes; and, Debt Collection Law (under the small claims amount, currently $11,000).

Licensed Paralegal Practitioner’s (aka LPPs) can assist in limited ways. They can file court documents, serve as mediators, complete settlement negotiations, review court documents and sit with a client during a court proceeding. Licensed Paralegal Practitioners are not allowed to represent a client in court, and are not allowed to prepare documents for court that are not court provided.

The decision to allow LPP’s to practice in limited fields and in limited ways was created by the Utah Supreme Court Task Force as a way to address the large number of litigants who are unrepresented or forgo access to the Utah Judicial system because of the high cost of retaining a lawyer (UTcourt.gov ). The three practice areas LLPs are currently allowed to practice in were determined to have the highest number of unrepresented litigants in need of low-cost legal assistance. (Id).

LPP’s are licensed and monitored by the Utah State Bar. They are subject to the Ethical Standards and Discipline, including the requirement of confidentiality, like attorneys. They are required to complete continuing education yearly, and must renew their licenses annually. It is exciting to see how this innovation will play out.

We are happy to announce that our paralegal, Brooke, has successfully passed and been admitted as a Licensed Paralegal Practitioner, licensed in Landlord/Tenant disputes and Debt Collection. Please contact our office at 801-612-9299 to speak with her about your legal needs.

References: https://www.utcourts.gov/rules/view.php?type=ucja&rule=14-802

CDC Moratorium:

Covid-19 has caused tension and confusion when it comes to the rights and laws on evictions. Until July 31, 2021 tenants may be protected under the CDC moratorium. This protection is for nonpayment of rent; a tenant can still be evicted (through the normal process) for nuisance, lease violation, etc.

To be protected under the CDC moratorium, the tenant must complete and sign a declaration which is then presented to the landlord. This program is set to terminate on July 31, 2021; although it has been extended several times since it first began. (See Utah.gov for more information) After July 31, there is no prohibition for eviction of tenants for non-payment of rent.

Under CDC moratorium, rent is not forgiven – merely deferred – and landlords can still charge late fees and penalties to any tenant behind on their payment.

While the current deadline for the CDC moratorium protection is nearing an end (if not extended again), do not pursue evictions until you are certain they are not prohibited. Failure to comply with the CDC moratorium can result in fines up to $250,000 and up to one year in jail, so there can be serious consequences to noncompliance.

Once the moratorium has ended, confirm you follow the legally required eviction procedure when evicting a tenant. Please note Utah courts have issued separate procedures before a landlord can evict a tenant. This entails completing a COVID Eviction Declaration, serving it on the tenant as required by law, and filing it when you start your eviction case. To find more information on this requirement, read the Administrative Order of the Supreme Court attached here:  https://www.utcourts.gov/alerts/docs/20201002%20%20Amended%20Pandemic%20Administrative%20Order.pdf

Utah Emergency Rental Assistance Program:

If you prefer to not evict an otherwise good tenant, you can guide them in obtaining relief (for you and them) through the Emergency Rental Assistance Program. It was designed for this exact situation, where a tenant has been a good tenant, takes care of the premises and paid well, up until they encountered a COVID related hardship. This program began on March 15, 2021 to assist tenants who are struggling with their rent obligations. To qualify for this program the tenant must have;

1. Combined household income at or below 80% of the area median income where they reside.
2. Someone in the household who qualified for unemployment or has experienced a reduction in household income, incurred significant costs, or experienced financial hardship due to Covid-19.
3. Household experiencing housing instability (received past due utility or rent notice or eviction notice, or living in unsafe or unhealthy living conditions) due to Covid-19.
4. Applicant resides in the household and is on the lease.

If your tenant meets the four requirements above, assistance can be applied for online at: https://rentrelief.utah.gov/  by either the property owner or the tenant. Documentation is needed (from both parties); communication is key to this procedure. The documents which must be provided are:

1. Full lease agreement (all pages)
2. A copy of the landlord’s W-9 or landlord contact information
3. A ledger from the landlord showing outstanding rent and/or other fees
4. Income Certification from the Tenant
5. 2020 1040 tax form (or W-2, 1099, K-1, etc.)
6. Tenant’s recent paystubs (30 days)
7. Unemployment insurance weekly payment history (if applicable)
8. Past-due utility bill (if applicable)
9. Eviction notice (if applicable)

Our office is happy to assist you with applying for the Emergency Rental Assistance Program. Give us a call at 801-612-9299 for more information.

You and the tenant must be aware the program does not cover all costs of housing. The program only covers the following:

• Current rent plus 3 months of prospective rent (with a termed lease) [so long as the lease agreement includes the prospective period];
• Past-due rent;
• Eligible fees;
• Security deposit; and
• Utilities, internet and home energy costs (such as gas and electricity).

If all else fails and you need to evict a tenant, please don’t do it alone. We are happy to assist you in this process. Call our office at 801-612-9299 for more information and assistance.

Mention this blog and get 10% off your total price of your eviction.

https://www.utcourts.gov/howto/landlord/eviction-landlord.html

Climbing into the near year, tensions are stiff with the new Covid-19 vaccine being distributed. We came across a simple but effective article discussing Utah employers possibly requiring employees to take the vaccine once it is offered. Spencer Phillips made it clear that due to Utah being an ‘Employment At-Will” state, “They could say you either get a vaccine or you don’t have a job here anymore.” (Fox13, 2020)

Employment at will means that an employer may generally terminate an employee at any time and for any reason, unless a law or contract provides otherwise. Some examples of ways an employee could argue against a mandatory vaccine requirement would be if they had a disability or a sincerely held religious belief that prevented them from getting the vaccine. Employers must look extremely close at these exceptions; it will be the duty of the employer to offer accommodations to these employers who do not receive the vaccine under an exception.

While the effects and results of the vaccine are still unknown, being prepared of your rights as an employee and/or as an employer will assist you in the upcoming months. The rules and regulations surrounding Covid-19 and employment are not set in stone. There is a lot of gray area that could cause problems for many in the workplace during the distribution of these vaccines. If you are unsure of your rights, reach out to an employment attorney.

Read the whole article here! https://www.fox13now.com/news/local-news/employment-lawyer-utah-employers-can-require-employees-to-get-covid-19-vaccine

*This article is for informational use only, none of the facts or laws have been reviewed*

Right now, everyone is on high alert surrounding the Covid-19 pandemic. We fell across an interesting article discussing the use of Cannabis in blocking coronavirus receptors.  Alberta researcher, Igor Kovalchuk at the University of Lethbridge has discovered that cannabis extracts (high CBD) are showing potential in growing human resistance to the Coronavirus.  Mr. Kovalchuk’s research has shown that some strains of cannabis have reduced the number of virus receptors by 73 percent!

Continued research shows that the anti-inflammatory property of CBD appears to be critical in reducing virus receptors. Reducing virus receptors results in less chance of being infected, the researcher says. Being as CBD is the medical portion of Cannabis; they focused on the CBD in higher quantities. Taking CBD in higher doses does not generally cause side effects; THC is not being used in this research as strongly as CBD is. The article discusses the use of CBD in the form of mouth wash, gargle, inhalants or gel caps if the studies confirm CBD does reduce the virus receptors. This is cheaper for the population and has fewer side effects with a larger effect on reduction throughout the population.

If this research is proven correct, the amount of people who can be reached may assist the population in reducing the number of virus receptors each person carries in their body, hopefully resulting in a decline of positive cases. Since CBD is so widely available in multiple states, and many have already found medical benefits to its use, the continued use of CBD to potentially limit the virus receptors one carries could be extremely beneficial to the population.

While some may not be willing to take this route, even if proven effective, there may be enough who do to reduce the numbers of people suffering from this pandemic. This is not a lead to a vaccine, but hopefully will become another weapon against Covid-19.

Read the whole article here! https://calgaryherald.com/cannabis/cannabis-shows-promise-blocking-coronavirus-infection-alberta-researcher/

*This article is for informational use only, none of the facts have been reviewed by the CDC or other governmental agency, and is  not intend to advocate for the use of marijuana, THC, or CBD, except as prescribed by a doctor*