Agreement or Contract for Deed for Sale and Purchase of Real Estate a/k/a Land or Executory Contract
Contract for Deed - General - Utah
UTAH STATUTES
TITLE 57 REAL ESTATE
CHAPTER 1 CONVEYANCES
57-1-1. Definitions.
As used in this title:
(1) "Certified copy" means a copy of a document certified by its custodian to be a true and correct copy of the document or the copy of the document maintained by the custodian, where the document or copy is maintained under the authority of the United States, the state of Utah or any of its political subdivisions, another state, a court of record, a foreign government, or an Indian tribe.
(2) "Document" means every instrument in writing, including every conveyance, affecting, purporting to affect, describing, or otherwise concerning any right, title, or interest in real property, except wills and leases for a term not exceeding one year.
(3) "Real property" or "real estate" means any right, title, estate, or interest in land, including all nonextracted minerals located in, on, or under the land, all buildings, fixtures and improvements on the land, and all water rights, rights-of-way, easements, rents, issues, profits, income, tenements, hereditaments, possessory rights, claims, including mining claims, privileges, and appurtenances belonging to, used, or enjoyed with the land or any part of the land.
(4) "Stigmatized" means:
(a) the site or suspected site of a homicide, other felony, or suicide;
(b) the dwelling place of a person infected, or suspected of being infected, with the Human Immunodeficiency Virus, or any other infectious disease that the Utah Department of Health determines cannot be transferred by occupancy of a dwelling place; or
(c) property that has been found to be contaminated, and that the local health department has subsequently found to have been decontaminated in accordance with Title 19, Chapter 6, Part 9, Illegal Drug Operations Site Reporting and Decontamination Act.
Amended by Chapter 249, 2004 General Session
57-1-3. Grant of fee simple presumed.
A fee simple title is presumed to be intended to pass by a conveyance of real estate, unless it appears from the conveyance that a lesser estate was intended.
No Change Since 1953
57-1-4. Attempted conveyance of more than grantor owns -- Effect.
A conveyance made by an owner of an estate for life or years, purporting to convey a greater estate than he could lawfully transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer.
No Change Since 1953
57-1-12. Form of warranty deed -- Effect.
(1) Conveyances of land may be substantially in the following form:
WARRANTY DEED
____ (here insert name), grantor, of ____ (insert place of residence), hereby conveys and warrants to ____ (insert name), grantee, of ____ (insert place of residence), for the sum of ____ dollars, the following described tract ____ of land in ____ County, Utah, to wit: (here describe the premises).
Witness the hand of said grantor this __________(month\day\year).
(2) A warranty deed when executed as required by law shall have the effect of a conveyance in fee simple to the grantee, the grantee's heirs, and assigns:
(a) of the premises named in the warranty deed;
(b) of all the appurtenances, rights, and privileges belonging to the premises named in the warranty deed; and
(c) with covenants from the grantor, the grantor's heirs, and personal representatives, that:
(i) the grantor lawfully owns fee simple title to and has the right to immediate possession of the premises;
(ii) the grantor has good right to convey the premises;
(iii) the grantor guarantees the grantee, the grantee's heirs, and assigns in the quiet possession of the premises;
(iv) the premises are free from all encumbrances; and
(v) the grantor, the grantor's heirs, and personal representatives will forever warrant and defend the title of the premises in the grantee, the grantee's heirs, and assigns against all lawful claims whatsoever.
(3) Any exception to the covenants described in Subsection (2)(c) may be briefly inserted in the warranty deed following the description of the land.
Amended by Chapter 55, 2007 General Session
57-1-12.5. Form of special warranty deed -- Effect.
(1) Conveyances of land may be substantially in the following form:
SPECIAL WARRANTY DEED
____ (here insert name), grantor, of ____ (insert place of residence), hereby conveys and warrants against all who claim by, through, or under the grantor to ____ (insert name), grantee, of ____ (insert place of residence), for the sum of ____ dollars, the following described tract ____ of land in ____ County, Utah, to wit: (here describe the property).
Witness the hand of said grantor this __________(month\day\year).
(2) A special warranty deed when executed as required by law shall have the effect of:
(a) a conveyance in fee simple to the grantee, the grantee's heirs, and assigns, of the property named in the special warranty deed, together with all the appurtenances, rights, and privileges belonging to the property; and
(b) a covenant from the grantor, the grantor's heirs, and personal representatives, that:
(i) the granted property is free from all encumbrances made by that grantor; and
(ii) the grantor, the grantor's heirs, and personal representatives will forever warrant and defend the title of the property in the grantee, the grantee's heirs, and assigns against any lawful claim and demand of the grantor and any person claiming or to claim by, through, or under the grantor.
(3) Any exceptions to a covenant described in Subsection (2)(b) may be briefly inserted in the deed following the description of the land.
Enacted by Chapter 213, 2005 General Session
57-1-13. Form of quitclaim deed -- Effect.
(1) A conveyance of land may also be substantially in the following form:
"QUITCLAIM DEED
____ (here insert name), grantor, of ____ (insert place of residence), hereby quitclaims to ____ (insert name), grantee, of ____ (here insert place of residence), for the sum of ____ dollars, the following described tract ____ of land in ____ County, Utah, to wit: (here describe the premises).
Witness the hand of said grantor this __________(month\day\year).
A quitclaim deed when executed as required by law shall have the effect of a conveyance of all right, title, interest, and estate of the grantor in and to the premises therein described and all rights, privileges, and appurtenances thereunto belonging, at the date of the conveyance."
(2) For a boundary line agreement operating as a quitclaim deed as described in Section 57-1-45, the boundary line agreement shall include, in addition to a legal description of the agreed upon boundary line:
(a) the signature of each grantor;
(b) a sufficient acknowledgment for each grantor's signature; and
(c) the address of each grantee for assessment purposes.
Amended by Chapter 88, 2011 General Session
57-1-14. Form of mortgage -- Effect.
A mortgage of land may be substantially in the following form:
MORTGAGE
____ (here insert name), mortgagor, of ____ (insert place of residence), hereby mortgages to ____ (insert name), mortgagee, of ____ (insert place of residence), for the sum of ____ dollars, the following described tract ____ of land in ____ County, Utah, to wit: (here describe the premises).
This mortgage is given to secure the following indebtedness (here state amount and form of indebtedness, maturity, rate of interest, by and to whom payable, and where).
The mortgagor agrees to pay all taxes and assessments on said premises, and the sum of ____ dollars attorneys’ fee in case of foreclosure.
Witness the hand of said mortgagor this __________(month\day\year).
A mortgage when executed as required by law shall have the effect of a conveyance of the land therein described, together with all the rights, privileges and appurtenances thereunto belonging, to the mortgagee, his heirs, assigns, and legal representatives, as security for the payment of the indebtedness thereon set forth, with covenants from the mortgagor of general warranty of title, and that all taxes and assessments levied and assessed upon the land described, during the continuance of the mortgage, will be paid previous to the day appointed for the sale of such lands for taxes; and may be foreclosed as provided by law upon any default being made in any of the conditions thereof as to payment of either principal, interest, taxes, or assessments.
Amended by Chapter 75, 2000 General Session
57-1-15. Effect of recording assignment of mortgage.
The recording of an assignment of a mortgage is not in itself considered notice of the assignment to the mortgagor, his heirs, or personal representatives so as to invalidate any payment made by them or either of them to the mortgagee.
Repealed and Re-enacted by Chapter 155, 1988 General Session
57-1-19. Trust deeds — Definitions of terms.
As used in Sections 57-1-20 through 57-1-36:
(1) “Beneficiary” means the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or his successor in interest.
(2) “Trustor” means the person conveying real property by a trust deed as security for the performance of an obligation.
(3) “Trust deed” means a deed executed in conformity with Sections 57-1-20 through 57-1-36 and conveying real property to a trustee in trust to secure the performance of an obligation of the trustor or other person named in the deed to a beneficiary.
(4) “Trustee” means a person to whom title to real property is conveyed by trust deed, or his successor in interest.
(5) “Real property” has the same meaning as set forth in Section 57-1-1.
(6) “Trust property” means the real property conveyed by the trust deed.
Amended by Chapter 155, 1988 General Session
57-1-20. Transfers in trust of real property — Purposes — Effect.
Transfers in trust of real property may be made to secure the performance of an obligation of the trustor or any other person named in the trust deed to a beneficiary. All right, title, interest and claim in and to the trust property acquired by the trustor, or the trustor’s successors in interest, subsequent to the execution of the trust deed, shall inure to the trustee as security for the obligation or obligations for which the trust property is conveyed as if acquired before execution of the trust deed.
Amended by Chapter 236, 2001 General Session
57-1-21. Trustees of trust deeds — Qualifications.
(1) (a) The trustee of a trust deed shall be:
(i) any active member of the Utah State Bar who maintains a place within the state where the trustor or other interested parties may meet with the trustee to:
(A) request information about what is required to reinstate or payoff the obligation secured by the trust deed;
(B) deliver written communications to the lender as required by both the trust deed and by law;
(C) deliver funds to reinstate or payoff the loan secured by the trust deed; or
(D) deliver funds by a bidder at a foreclosure sale to pay for the purchase of the property secured by the trust deed;
(ii) any depository institution as defined in Section 7-1-103, or insurance company authorized to do business and actually doing business in Utah under the laws of Utah or the United States;
(iii) any corporation authorized to conduct a trust business and actually conducting a trust business in Utah under the laws of Utah or the United States;
(iv) any title insurance company or agency that:
(A) holds a certificate of authority or license under Title 31A, Insurance Code, to conduct insurance business in the state;
(B) is actually doing business in the state; and
(C) maintains a bona fide office in the state;
(v) any agency of the United States government; or
(vi) any association or corporation that is licensed, chartered, or regulated by the Farm Credit Administration or its successor.
(b) For purposes of this Subsection (1), a person maintains a bona fide office within the state if that person maintains a physical office in the state:
(i) that is open to the public;
(ii) that is staffed during regular business hours on regular business days; and
(iii) at which a trustor of a trust deed may in person:
(A) request information regarding a trust deed; or
(B) deliver funds, including reinstatement or payoff funds.
(c) This Subsection (1) is not applicable to a trustee of a trust deed existing prior to May 14, 1963, nor to any agreement that is supplemental to that trust deed.
(d) The amendments in Laws of Utah 2002, Chapter 209, to this Subsection (1) apply only to a trustee that is appointed on or after May 6, 2002.
(2) The trustee of a trust deed may not be the beneficiary of the trust deed, unless the beneficiary is qualified to be a trustee under Subsection (1)(a)(ii), (iii), (v), or (vi).
(3) The power of sale conferred by Section 57-1-23 may only be exercised by the trustee of a trust deed if the trustee is qualified under Subsection (1)(a)(i) or (iv).
(4) A trust deed with an unqualified trustee or without a trustee shall be effective to create a lien on the trust property, but the power of sale and other trustee powers under the trust deed may be exercised only if the beneficiary has appointed a qualified successor trustee under Section 57-1-22.
Amended by Chapter 250, 2008 General Session
57-1-21.5. Trustees of trust deeds — Duties — Prohibited conduct — Penalties.
(1) Until a beneficiary under a trust deed or the beneficiary’s agent provides a trustee of the trust deed written instructions directing the trustee to exercise powers under this chapter, the trustee has no duty or obligation to the beneficiary or to the agent of a beneficiary.
(2) Except as provided in Subsection (3), the following duties of a trustee may not be delegated:
(a) a preparation and execution of:
(i) a notice of default and election to sell;
(ii) a cancellation of notice of default and election to sell;
(iii) a notice of sale; and
(iv) a trustee’s deed;
(b) the notification of foreclosure through publication, posting, and certified or registered mail;
(c) the receiving and responding to requests for reinstatement or payoff requirements; and
(d) the handling of reinstatement or payoff funds.
(3) Nothing in this section is intended to prevent:
(a) a trustee from using clerical or office staff:
(i) that is under the trustee’s direct and immediate supervision; and
(ii) to assist in the duties described in Subsection (2);
(b) a trustee from using the services of others for publication, posting, marketing, or advertising the sale; or
(c) a beneficiary of a trust deed or the servicing agent of the beneficiary from directly performing the functions described in Subsection (2)(c) or (d).
(4) The amendments in Laws of Utah 2002, Chapter 209, to Subsection (3) do not apply to a foreclosure if the notice of default related to the foreclosure was filed before May 6, 2002.
(5) (a) Except as provided in Subsection (5)(c), a trustee may not solicit or receive any fee for referring business to a third party.
(b) A fee prohibited under Subsection (5)(a) includes:
(i) a commission;
(ii) a referral based fee, including a fee for the referral of:
(A) title work;
(B) posting services; or
(C) publishing services; or
(iii) a fee similar to a fee described in Subsection (5)(b)(i) or (ii).
(c) Subsection (5)(a) does not apply to:
(i) a fee received by a trustee for the trustee acting as co-legal counsel, if the trustee is otherwise permitted by law to receive fees as co-legal counsel; or
(ii) a nonpreferred participation in net profits based upon an ownership interest or franchise relationship that is not otherwise prohibited by law.
(6) A trustee may not require the following to pay any costs that exceed the actual costs incurred by the trustee:
(a) a trustor reinstating or paying off a loan; or
(b) a beneficiary acquiring property through foreclosure.
(7) (a) A person that violates Subsection (5) or (6) is guilty of a class B misdemeanor.
(b) In addition to a person’s liability under Subsection (7)(a), if a person violates Subsection (5) or (6), the person is liable to the trustor for an amount equal to the greater of:
(i) the actual damages of the trustor as a result of the violation; or
(ii) $1,000.
(c) In an action brought under Subsection (7)(b), the party that does not prevail in the action that is brought under Subsection (7)(b) shall pay the attorney fees of the prevailing party.
Amended by Chapter 395, 2013 General Session
57-1-22. Successor trustees — Appointment by beneficiary — Effect — Substitution of trustee — Recording — Form.
(1) (a) The beneficiary may appoint a successor trustee at any time by filing an appointment of trustee or a substitution of trustee for record in the office of the county recorder of each county in which the trust property or a part of the trust property is located.
(b) The trustee appointed under Subsection (1)(a) has the power, duties, authority, and title described in the deed of trust.
(c) The beneficiary may, by express provision in the appointment of trustee or substitution of trustee, ratify and confirm an action taken on the beneficiary’s behalf by the new trustee prior to the recording of the substitution of trustee.
(2) An appointment of trustee or a substitution of trustee shall:
(a) identify the trust deed by stating:
(i) the names of the original parties to the trust deed;
(ii) the date of recordation; and
(iii) (A) the book and page where the trust deed is recorded; or
(B) the entry number;
(b) include the legal description of the trust property;
(c) state the name and address of the new trustee; and
(d) be executed and acknowledged by all of the beneficiaries under the trust deed or their successors in interest.
(3) (a) If not previously recorded at the time of recording a notice of default, the successor trustee shall file for record, in the office of the county recorder of each county in which the trust property or some part of it is situated, the appointment of trustee or substitution of trustee.
(b) A copy of the appointment of trustee or the substitution of trustee shall be sent in the manner provided in Subsection 57-1-26(2) to any:
(i) person who requests a copy of any notice of default or notice of sale under Subsection 57-1-26(1)(a); and
(ii) person who is a party to the trust deed to whom a copy of a notice of default would be required to be mailed by Subsection 57-1-26(3).
(4) An appointment of trustee or a substitution of trustee shall be in substantially the following form:
“Appointment or Substitution of Trustee
_________________________(name and address of appointed or substituted trustee)
is hereby appointed trustee under the trust deed executed by ____ as trustor, in which ____ is named beneficiary and ____ as trustee, and filed for record __________(month\day\year), and recorded in Book ____, Page ____, Records of ____ County, (Utah or filed for record __________(month\day\year), with recorder’s entry No. ____, ____ County), Utah.
(Insert legal description)
Signature_____________________________
(Certificate of Acknowledgment)”
(5) (a) A trustee of a trust deed may, in accordance with this Subsection (5), resign as trustee by filing for record in the office of the recorder of each county in which the trust property is located, a resignation of trustee.
(b) A trustee’s resignation under this Subsection (5) takes effect upon the recording of a resignation of trustee.
(c) A resignation of trustee shall be in substantially the following form: “Resignation of Trustee
_________________________( insert name and address of resigned trustee) hereby resigns as trustee under the trust deed executed by (insert name of trustor) as trustor, in which (insert name of the beneficiary) is named beneficiary and (insert name of trustee) as trustee, and filed for record (insert the month, day, and year the trust deed was recorded), and recorded in Book ___, Page ___, Records of ______________ County, Utah or with recorder’s entry no.____, ______________ County, Utah.
(Insert legal description)
Signature ________________________
(Certificate of acknowledgment)”
(d) (i) Within three days after the day on which a trustee resigns under this Subsection (5), the trustee shall provide written notice of the trustee’s resignation to each party in any legal action pending against the trustee that is related to or arises from the trustee’s performance of a duty of a trustee.
(ii) Except as provided in Subsection (5)(d)(iv), within 10 days after the day on which a party is provided a notice described in Subsection (5)(d)(i), the party may move the court to substitute the beneficiary of the trust deed as defendant in the action in the place of the trustee until a successor trustee is appointed.
(iii) Except as provided in Subsection (5)(d)(iv), if, after the expiration of the time described in Subsection (5)(d)(ii), a party does not move the court to substitute the beneficiary or the successor trustee in place of the trustee as defendant, the court shall dismiss with prejudice all claims against the withdrawn trustee.
(iv) Subsection (5)(d)(ii) and (5)(d)(iii) do not apply to a cause of action against a trustee that alleges negligent or intentional misconduct by the withdrawn trustee.
(e) (i) The withdrawal of a trustee of a trust deed under this section does not affect the validity or the priority of the trust deed.
(ii) After a trustee withdraws under this part, only a qualified successor trustee appointed by the beneficiary under Section 57-1-22 may exercise trustee powers, including the power of sale.
Amended by Chapter 305, 2016 General Session
57-1-23. Sale of trust property — Power of trustee — Foreclosure of trust deed.
The trustee who is qualified under Subsection 57-1-21(1)(a)(i) or (iv) is given the power of sale by which the trustee may exercise and cause the trust property to be sold in the manner provided in Sections 57-1-24 and 57-1-27, after a breach of an obligation for which the trust property is conveyed as security; or, at the option of the beneficiary, a trust deed may be foreclosed in the manner provided by law for the foreclosure of mortgages on real property. The power of sale may be exercised by the trustee without express provision for it in the trust deed.
Amended by Chapter 236, 2001 General Session
57-1-24. Sale of trust property by trustee — Notice of default.
The power of sale conferred upon the trustee who is qualified under Subsection 57-1-21(1)(a)(i) or (iv) may not be exercised until:
(1) the trustee first files for record, in the office of the recorder of each county where the trust property or some part or parcel of the trust property is situated, a notice of default, identifying the trust deed by stating the name of the trustor named in the trust deed and giving the book and page, or the recorder’s entry number, where the trust deed is recorded and a legal description of the trust property, and containing a statement that a breach of an obligation for which the trust property was conveyed as security has occurred, and setting forth the nature of that breach and of the trustee’s election to sell or cause to be sold the property to satisfy the obligation;
(2) not less than three months has elapsed from the time the trustee filed for record under Subsection (1); and
(3) after the lapse of at least three months the trustee shall give notice of sale as provided in Sections 57-1-25 and 57-1-26.
Amended by Chapter 236, 2001 General Session
57-1-25. Notice of trustee’s sale — Description of property — Time and place of sale.
(1) The trustee shall give written notice of the time and place of sale particularly describing the property to be sold:
(a) by publication of the notice:
(i) (A) at least three times;
(B) at least once a week for three consecutive weeks;
(C) the last publication to be at least 10 days but not more than 30 days before the date the sale is scheduled; and
(D) in a newspaper having a general circulation in each county in which the property to be sold, or some part of the property to be sold, is situated; and
(ii) in accordance with Section 45-1-101 for 30 days before the date the sale is scheduled;
(b) by posting the notice:
(i) at least 20 days before the date the sale is scheduled; and
(ii) (A) in some conspicuous place on the property to be sold; and
(B) at the office of the county recorder of each county in which the trust property, or some part of it, is located; and
(c) if the stated purpose of the obligation for which the trust deed was given as security is to finance residential rental property:
(i) by posting the notice, including the statement required under Subsection (3)(b):
(A) on the primary door of each dwelling unit on the property to be sold, if the property to be sold has fewer than nine dwelling units; or
(B) in at least three conspicuous places on the property to be sold, in addition to the posting required under Subsection (1)(b)(ii)(A), if the property to be sold has nine or more dwelling units; or
(ii) by mailing the notice, including the statement required under Subsection (3)(b), to the occupant of each dwelling unit on the property to be sold.
(2) (a) The sale shall be held at the time and place designated in the notice of sale.
(b) The time of sale shall be between the hours of 8 a.m. and 5 p.m.
(c) The place of sale shall be clearly identified in the notice of sale under Subsection (1) and shall be at a courthouse serving the county in which the property to be sold, or some part of the property to be sold, is located.
(3) (a) The notice of sale shall be in substantially the following form:
Notice of Trustee’s Sale
The following described property will be sold at public auction to the highest bidder, payable in lawful money of the United States at the time of sale, at (insert location of sale) ________________on __________(month\day\year), at __.m. of said day, for the purpose of foreclosing a trust deed originally executed by ____ (and ____, his wife,) as trustors, in favor of ____, covering real property located at ____, and more particularly described as:
(Insert legal description)
The current beneficiary of the trust deed is ______________________ and the record owners of the property as of the recording of the notice of default are _________________ and ____________________.
Dated __________(month\day\year).
_______________
Trustee
(b) If the stated purpose of the obligation for which the trust deed was given as security is to finance residential rental property, the notice required under Subsection (1)(c) shall include a statement, in at least 14-point font, substantially as follows: “Notice to Tenant As stated in the accompanying Notice of Trustee’s Sale, this property is scheduled to be sold at public auction to the highest bidder unless the default in the obligation secured by this property is cured. If the property is sold, you may be allowed under Utah Code Section 57-1-25.5 to continue to occupy your rental unit until your rental agreement expires, or until 45 days after the date you are served with a notice to vacate, whichever is later. If your rental or lease agreement expires after the 45-day period, you may need to provide a copy of your rental or lease agreement to the new owner to prove your right to remain on the property longer than 45 days after the sale of the property. You must continue to pay your rent and comply with other requirements of your rental or lease agreement or you will be subject to eviction for violating your rental or lease agreement. The new owner or the new owner’s representative will probably contact you after the property is sold with directions about where to pay rent. The new owner of the property may or may not want to offer to enter into a new rental or lease agreement with you at the expiration of the period described above.”
(4) The failure to provide notice as required under Subsections (1)(c) and (3)(b) or a defect in that notice may not be the basis for challenging or invaliding a trustee’s sale.
(5) A trustee qualified under Subsection 57-1-21(1)(a)(i) or (iv) who exercises a power of sale has a duty to the trustor not to defraud, or conspire or scheme to defraud, the trustor.
Amended by Chapter 325, 2016 General Session
57-1-31. Trust deeds — Default in performance of obligations secured — Reinstatement — Cancellation of recorded notice of default.
(1) Whenever all or a portion of the principal sum of any obligation secured by a trust deed has, prior to the maturity date fixed in the obligation, become due or been declared due by reason of a breach or default in the performance of any obligation secured by the trust deed, including a default in the payment of interest or of any installment of principal, or by reason of failure of the trustor to pay, in accordance with the terms of the trust deed, taxes, assessments, premiums for insurance, or advances made by the beneficiary in accordance with terms of the obligation or of the trust deed, the trustor or the trustor’s successor in interest in the trust property or any part of the trust property or any other person having a subordinate lien or encumbrance of record on the trust property or any beneficiary under a subordinate trust deed, at any time within three months of the filing for record of notice of default under the trust deed, if the power of sale is to be exercised, may pay to the beneficiary or the beneficiary’s successor in interest the entire amount then due under the terms of the trust deed (including costs and expenses actually incurred in enforcing the terms of the obligation, or trust deed, and the trustee’s and attorney’s fees actually incurred) other than that portion of the principal as would not then be due had no default occurred, and thereby cure the existing default. After the beneficiary or beneficiary’s successor in interest has been paid and the default cured, the obligation and trust deed shall be reinstated as if no acceleration had occurred.
(2) If the default is cured and the trust deed reinstated in the manner provided in Subsection (1), and a reasonable fee is paid for cancellation, including the cost of recording the cancellation of notice of default, the trustee shall execute, acknowledge, and deliver a cancellation of the recorded notice of default under the trust deed; and any trustee who refuses to execute and record this cancellation within 30 days is liable to the person curing the default for all actual damages resulting from this refusal. A reconveyance given by the trustee or the execution of a trustee’s deed constitutes a cancellation of a notice of default. Otherwise, a cancellation of a recorded notice of default under a trust deed is, when acknowledged, entitled to be recorded and is sufficient if made and executed by the trustee in substantially the following form:
Cancellation of Notice of Default
The undersigned hereby cancels the notice of default filed for record __________(month\day\year), and recorded in Book ____, Page ____, Records of ____ County, (or filed of record __________(month\day\year), with recorder’s entry No. ____, ____ County), Utah, which notice of default refers to the trust deed executed by ____ and ___________ as trustors, in which ____ is named as beneficiary and ____ as trustee, and filed for record __________(month\day\year), and recorded in Book ____, Page ____, Records of ____ County, (or filed of record __________(month\day\year), with recorder’s entry No. ____, ____ County), Utah.
(legal description)
Signature of Trustee ______________________________________________________
Amended by Chapter 236, 2001 General Session
57-1-33.1. Reconveyance of a trust deed — Erroneous reconveyance.
(1) (a) When an obligation secured by a trust deed has been satisfied, the trustee shall, upon written request by the beneficiary, reconvey the trust property.
(b) At the time the beneficiary requests a reconveyance under Subsection (1)(a), the beneficiary shall deliver to the trustee or the trustee’s successor in interest the trust deed and the note or other evidence that the obligation securing the trust deed has been satisfied.
(2) The reconveyance under Subsection (1) may designate the grantee as “the person or persons entitled thereto.”
(3) If a reconveyance is erroneously recorded by a beneficiary, the effect of the reconveyance may be nullified and the trust deed reinstated by the recording of a corrective affidavit executed by the then current beneficiary describing the trust deed and setting forth the fact of the erroneous reconveyance. Upon the recording of a corrective affidavit or similar instrument, the trust deed has the same priority as it did prior to the erroneous reconveyance. However, any lien or interest that was recorded or attached to the trust deed property between the time of the recording of the erroneous reconveyance and the recording of the corrective affidavit or similar instrument has priority over the reinstated trust deed, unless the lien or interest was recorded or attached with actual knowledge that the trust deed had been reconveyed erroneously.
Amended by Chapter 236, 2001 General Session
57-1-35. Trust deeds — Transfer of secured debts as transfer of security.
The transfer of any debt secured by a trust deed shall operate as a transfer of the security therefor.
Enacted by Chapter 181, 1961 General Session
57-1-36. Trust deeds — Instruments entitled to be recorded — Assignment of a beneficial interest.
Any trust deed, substitution of trustee, assignment of a beneficial interest under a trust deed, notice of assignment of a beneficial interest, notice of default, trustee’s deed, reconveyance of the trust property, and any instrument by which any trust deed is subordinated or waived as to priority, if acknowledged as provided by law, is entitled to be recorded. The recording of an assignment of a beneficial interest under a trust deed or a notice of assignment of a beneficial interest does not in itself impart notice of the assignment to the trustor, or the trustor’s heirs or personal representatives, so as to invalidate any payment made by the trustor, or the trustor’s heirs or personal representatives, to the person holding the note, bond, or other instrument evidencing the obligation by the trust deed.
Amended by Chapter 208, 2013 General Session
57-1-40. Reconveyance of trust deed or release of mortgage — Procedures — Forms.
(1) A title insurer or title agent may reconvey a trust deed or release a mortgage in accordance with the provisions of Subsections (2) through (6) if:
(a) the obligation secured by the trust deed or mortgage has been fully paid by the title insurer or title agent;
(b) the obligation secured by the trust deed or mortgage has been partially paid by the title insurer or title agent in an amount agreed to by the beneficiary, mortgagee, or servicer as sufficient to release the mortgage or reconvey the trust deed; or
(c) the title insurer or title agent possesses satisfactory evidence that an event described in either Subsection (1)(a) or (b) has occurred.
(2) A title insurer or title agent may reconvey a trust deed or release a mortgage under Subsection (1) regardless of whether the title insurer or title agent is named as a trustee under a trust deed or has the authority to release a mortgage.
(3) After the obligation secured by the trust deed or mortgage is paid in full or is partially paid as described in Subsection (1)(b), the title insurer or title agent shall deliver a notice of intent to release or reconvey, as described in Subsection (4), to the beneficiary, mortgagee, or servicer at:
(a) the address specified in the trust deed or mortgage;
(b) any address for the beneficiary or mortgagee specified in the last recorded assignment of the trust deed or mortgage;
(c) any address for the beneficiary, mortgagee, or servicer specified in a request for notice recorded under Section 57-1-26; or
(d) the address shown on any payoff statement received by the title insurer or agent from the beneficiary, mortgagee, or servicer.
(4) The notice of intent to release or reconvey shall contain the name of the beneficiary or mortgagee and the servicer if loan payments on the trust deed or mortgage are collected by a servicer, the name of the title insurer or title agent, the date, and be substantially in the following form:
NOTICE OF INTENT TO RELEASE OR RECONVEY
Notice is hereby given to you as follows:
1. This notice concerns the (trust deed or mortgage) described as follows:
(Trustor or Mortgagor): ___________________________________________
(Beneficiary or Mortgagee): _______________________________________
Recording information: ___________________________________________
Entry Number: __________________________________________________
Book Number: __________________________________________________
Page Number: ___________________________________________________
2. The undersigned claims or possesses satisfactory evidence that the obligation secured by the trust deed or mortgage was paid in full or that the obligation secured by the trust deed or mortgage was partially paid in an amount agreed to by the beneficiary, mortgagee, or servicer as sufficient to release the mortgage or reconvey the trust deed.
3. The undersigned will fully release the mortgage or reconvey the trust deed described in this notice unless, within 60 days from the date stated on this notice, the undersigned has received by certified mail a notice stating that the obligation secured by the trust deed or mortgage has not been paid in full, that payment of an amount less than the whole obligation was not agreed to or was not received by the beneficiary, mortgagee, or servicer, or that the beneficiary, mortgagee, or servicer otherwise objects to the release of the mortgage or the reconveyance of the trust deed. Notice shall be mailed to the address stated on this form.
(Signature of title insurer or title agent)
(Address of title insurer or title agent)
(5) (a) If, within 60 days from the day on which the title insurer or title agent delivered the notice of intent to release or reconvey in accordance with Subsections (3) and (4), a reconveyance of trust deed or release of mortgage is not recorded, and the beneficiary, mortgagee, or servicer does not send by certified mail to the title insurer or title agent a notice that the obligation secured by the trust deed or mortgage has not been paid in full, that payment of an amount less than the whole obligation was not agreed to or was not received by the beneficiary, mortgagee, or servicer, or that the beneficiary, mortgagee, or servicer objects to the release of the mortgage or reconveyance of the trust deed, the title insurer or title agent may execute, acknowledge, and record a reconveyance of a trust deed or release of a mortgage.
(b) A reconveyance of a trust deed under Subsection (5)(a) shall be in substantially the following form:
RECONVEYANCE OF TRUST DEED
(Name of title insurer or title agent), a (title insurer or title agent) authorized to conduct business in the state does hereby reconvey, without warranty, the following trust property located in (name of county) County, state of Utah, that is covered by a trust deed naming (name of trustor) as trustor, and (name of beneficiary) as beneficiary and was recorded on (date) in Book ________ at Page _________ as Entry Number _________: (insert a description of the trust property.)
The undersigned title insurer or title agent certifies as follows:
1. The undersigned title insurer or title agent:
a. has fully paid the obligation secured by the trust deed;
b. has partially paid the obligation secured by the trust deed in an amount agreed to by the beneficiary or servicer as sufficient to reconvey the trust deed;
c. possesses satisfactory evidence of full payment of the obligation secured by the trust deed; or
d. possesses satisfactory evidence of partial payment of the obligation secured by the trust deed in an amount agreed to by the beneficiary or servicer as sufficient to reconvey the trust deed.
2. In accordance with the requirements of Utah Code Annotated Subsections 57-1-40(3) and (4), the title insurer or title agent delivered to the beneficiary or servicer, a notice of intent to release or reconvey and a copy of the reconveyance.
3. The trust deed has not been reconveyed and the title insurer or title agent did not receive, within 60 days from the day on which the title insurer or title agent delivered the notice of intent to release or reconvey, a notice from the beneficiary or servicer sent by certified mail that the obligation secured by the trust deed has not been paid in full, that payment of an amount less than the whole obligation secured by the trust deed was not agreed to or was not received by the beneficiary or servicer, or that the beneficiary or servicer objects to the reconveyance of the trust deed.
___________________________________ __________________________________
(Notarization) (Signature of title insurer or title agent)
(c) A release of a mortgage under Subsection (5)(a) shall be in substantially the following form:
RELEASE OF MORTGAGE
(Name of title insurer or title agent), a (title insurer or title agent) authorized to conduct business in the state does hereby release the mortgage on the following property located in (name of county) County, state of Utah, that is covered by a mortgage naming (name of mortgagor) as mortgagor, and (name of mortgagee) as mortgagee and was recorded on (date) in Book ________ at Page _________ as Entry Number _________: (insert a description of the trust property.)
The undersigned title insurer or title agent certifies as follows:
1. The undersigned title insurer or title agent:
a. has fully paid the obligation secured by the mortgage;
b. has partially paid the obligation secured by the mortgage in an amount agreed to by the mortgagee or servicer as sufficient to release the mortgage;
c. possesses satisfactory evidence of full payment of the obligation secured by the mortgage; or
d. possesses satisfactory evidence of partial payment of the obligation secured by the mortgage in an amount agreed to by the mortgagee or servicer as sufficient to release the mortgage.
2. In accordance with the requirements of Utah Code Annotated Subsections 57-1-40(3) and (4), the title insurer or title agent delivered to the mortgagee or servicer a notice of intent to release or reconvey.
3. The mortgage has not been released and the title insurer or title agent did not receive, within 60 days from the day on which the title insurer or title agent delivered the notice of intent to release or reconvey, a notice from the mortgagee or servicer sent by certified mail that the obligation secured by the mortgage has not been paid in full, that payment of an amount less than the whole obligation secured by the mortgage was not agreed to or was not received by the mortgagee or servicer, or that the mortgagee or servicer objects to the release of the mortgage.
___________________________________ __________________________________
(Notarization) (Signature of title insurer or title agent)
(d) (i) A release of mortgage or reconveyance of trust deed that is executed and notarized in accordance with Subsection (5)(b) or (c) is entitled to recordation.
(ii) (A) Except as provided in Subsection (5)(d)(ii)(B), a reconveyance of a trust deed or release of a mortgage that is recorded under Subsection (5)(d)(i) is valid regardless of any deficiency in the release or reconveyance procedure not disclosed in the release of mortgage or reconveyance of trust deed.
(B) If the title insurer’s or title agent’s signature on a release of mortgage or reconveyance of trust deed recorded under Subsection (5)(d)(ii)(A) is forged, the release of mortgage or reconveyance of trust deed is void.
(6) A release of mortgage or reconveyance of trust deed under this section does not, by itself, discharge any promissory note or other obligation that was secured by the trust deed or mortgage at the time the trust deed was reconveyed or the mortgage was released.
(7) This section does not limit or modify the application of Section 57-1-33.1.
Amended by Chapter 403, 2013 General Session
57-1-40.5. Partial reconveyance of trust deed or release of mortgage — Procedures — Forms.
(1) (a) If a trustor or mortgagor pledges more than one parcel of real property as collateral under a trust deed or mortgage, the beneficiary, mortgagee, or servicer may agree for a sum certain to release a portion of the real property pledged on the trust deed or mortgage when a sum certain is paid.
(b) When the sum certain is paid, a title insurer or title agent may partially convey a trust deed or partially release a mortgage in accordance with the provisions of Subsections (2) through (6) if:
(i) the sum certain that is part of the obligation secured by the trust deed or mortgage has been paid by the title insurer or title agent to release or reconvey a portion of the real property pledged as collateral; or
(ii) the title insurer or title agent possesses satisfactory evidence of the payment of the sum certain thus authorizing release or reconveyance of a portion of the real property pledged.
(2) A title insurer or title agent may partially reconvey a trust deed or partially release a mortgage under Subsection (1) regardless of whether the title insurer or title agent is named as a trustee under a trust deed or has the authority to release a mortgage.
(3) At the time the obligation secured by the trust deed or mortgage is paid as required by Subsection (1), or at any later time, the title insurer or title agent shall deliver a notice of intent to partially release or partially reconvey, and a copy of the partial release or partial reconveyance that is to be recorded, as described in Subsection (4), to the beneficiary, mortgagee, or servicer at:
(a) the address specified in the trust deed or mortgage;
(b) any address for the beneficiary or mortgagee specified in the last recorded assignment of the trust deed or mortgage;
(c) any address for the beneficiary, mortgagee, or servicer specified in a request for notice recorded under Section 57-1-26; or
(d) the address shown on any payoff statement received by the title insurer or agent from the beneficiary, mortgagee, or servicer.
(4) The notice of intent to partially release or partially reconvey shall:
(a) contain the name of:
(i) the beneficiary or mortgagee;
(ii) the servicer, if any;
(iii) the title insurer or title agent;
(b) contain the date; and
(c) be substantially in the following form:
NOTICE OF INTENT TO PARTIALLY RELEASE OR PARTIALLY RECONVEY
Notice is hereby given to you as follows:
1. This notice concerns the (trust deed or mortgage) described as follows:
(Trustor or Mortgagor):___________________________________________________
(Beneficiary or Mortgagee):_______________________________________________
Recording Information:___________________________________________________
Entry Number:__________________________________________________________
Book Number:__________________________________________________________
Page Number:__________________________________________________________
2. To release only a portion of the real property pledged as collateral, the undersigned claims to have paid or possess satisfactory evidence of the payment of a sum certain necessary to release or reconvey a specific portion of the real property pledged as collateral under the mortgage or trust deed.
3. Within 60 days after the date stated on this notice, the undersigned will partially release the mortgage or partially reconvey the trust deed described in this notice unless the undersigned receives by certified mail a notice stating that the sum certain that is part of the obligation secured by the trust deed or mortgage has not been paid or that you otherwise object to the partial release of the mortgage or the partial reconveyance of the trust deed. Notice shall be mailed to the address stated on this form.
4. A copy of the partial release of mortgage or partial reconveyance of trust deed is enclosed with this Notice.
(Signature of title insurer or title agent)
(Address of title insurer or title agent)
(5) (a) If, within 60 days after the day on which the title insurer or title agent delivered the notice of intent to partially release or partially reconvey in accordance with Subsections (3) and (4), a partial reconveyance of trust deed or partial release of mortgage is not recorded, and the beneficiary, mortgagee, or servicer does not send by certified mail to the title insurer or title agent a notice that the obligation secured by the trust deed or mortgage has not been paid or that the beneficiary, mortgagee, or servicer objects to the partial release of the mortgage or partial reconveyance of the trust deed, the title insurer or title agent may execute, acknowledge, and record a partial reconveyance of a trust deed or partial release of a mortgage.
(b) A partial reconveyance of a trust deed under Subsection (5)(a) shall be in substantially the following form:
PARTIAL RECONVEYANCE OF TRUST DEED
(Name of title insurer or title agent), a (title insurer or title agent) authorized to conduct business in the state reconveys, without warranty, only on the following trust property located in (name of county) County, state of Utah, that is covered by a trust deed naming (name of trustor) as trustor, and (name of beneficiary) as beneficiary and was recorded on (date) in Book __________ at Page _________ as Entry Number ________: (insert a description of the specific trust property to be reconveyed.)
The undersigned title insurer or title agent certifies as follows:
1. To release only this portion of the real property pledged as collateral, the undersigned has paid or possesses satisfactory evidence of the payment of a sum certain necessary to reconvey a specific portion of the real property pledged as collateral under the trust deed.
2. In accordance with the requirements of Utah Code Subsections 57-1-40.5(3) and (4), the title insurer or title agent delivered to the beneficiary or servicer, a notice of intent to partially release or partially reconvey and a copy of the partial reconveyance.
3. The trust deed has not been reconveyed, as to this property, and the title insurer or title agent did not receive, within 60 days after the day the title insurer or title agent delivered the notice of intent to partially release or partially reconvey, a notice from the beneficiary or servicer sent by certified mail stating the sum certain necessary to reconvey a specific portion of the real property pledged as collateral under the trust deed or that the beneficiary or servicer objects to the partial reconveyance of the trust deed.
__________________________ _______________________________
(Notarization) (Signature of title insurer or title agent)
(c) A release of a mortgage under Subsection (5)(a) shall be in substantially the following form:
PARTIAL RELEASE OF MORTGAGE
(Name of title insurer or title agent), a (title insurer or title agent) authorized to conduct business in the state partially releases the mortgage only on the following property located in (name of county) County, state of Utah, that is covered by a mortgage naming (name of mortgagor) as mortgagor, and (name of mortgagee) as mortgagee and was recorded on (date) in Book _____ at Page ______ as Entry Number _______: (insert a description of the specific property.)
The undersigned title insurer or title agent certifies as follows:
1. To release only this portion of the real property pledged as collateral, the undersigned has paid or possesses satisfactory evidence of the payment of a sum certain necessary to release a specific portion of the real property pledged as collateral under the mortgage.
2. In accordance with the requirements of Utah Code Subsections 57-1-40.5(3) and (4), the title insurer or title agent delivered to the mortgagee or servicer, a notice of intent to partially release or partially reconvey and a copy of the partial release.
3. The trust deed has not been released, as to this property, and the title insurer or title agent did not receive, within 60 days after the day the title insurer or title agent delivered the notice of intent to partially release or partially reconvey, a notice from the beneficiary or servicer sent by certified mail stating the sum certain necessary to release a specific portion of the real property pledged as collateral under the mortgage or that the mortgagee or servicer objects to the partial release of the mortgage.
__________________________ _______________________________
(Notarization) (Signature of title insurer or title agent)
(d) (i) A partial release of mortgage or partial reconveyance of trust deed that is executed or notarized in accordance with Subsection (5)(b) or (c) is entitled to be recorded.
(ii) (A) Except as provided in Subsection (5)(d)(ii)(B), a partial reconveyance of a trust deed or partial release of a mortgage that is recorded under Subsection (5)(d)(i) is valid regardless of any deficiency in the partial release or reconveyance procedure not disclosed in the partial release of mortgage or partial reconveyance of trust deed.
(B) If the title insurer’s or title agent’s signature on a partial release of mortgage or partial reconveyance of trust deed recorded under Subsection (5)(d)(ii)(A) is forged, the partial release of the mortgage or partial reconveyance of trust deed is void.
(6) A partial release of mortgage or partial reconveyance of trust deed under this section does not, by itself, discharge any promissory note or other obligation secured by the trust deed or mortgage at the time the trust deed is partially reconveyed or the mortgage is partially released.
Enacted by Chapter 250, 2006 General Session
57-1-41. Objections to reconveyance or release.
A title insurer or title agent may not record a reconveyance of trust deed or release of mortgage if, within 60 days from the day on which the title insurer or title agent delivered or mailed the notice of intent to release or reconvey in accordance with Subsections 57-1-40(3) and (4), the beneficiary, mortgagee, or servicer sends a notice that:
(1) the obligation secured by the trust deed or mortgage has not been paid in full;
(2) payment of an amount less than the whole obligation was not agreed to or was not received by the beneficiary, mortgagee, or servicer; or
(3) the beneficiary, mortgagee, or servicer objects to the release of the mortgage or reconveyance of the trust deed under Subsection 57-1-40(5)(a).
Amended by Chapter 403, 2013 General Session
UTAH CASE LAW
Under an installment land sale contract, the vendor retains legal title as security for the purchase price of the property. Nevertheless, as a general proposition, the vendee is treated as the owner of the land. Thus, a vendee may mortgage his or her equity in the land, assign it to a third party as security for a loan, or sell the interest by way of an assignment. Butler v. Wilkinson, 740 P.2d 1244 (1987)
The vendor’s interest is similar to the security interest of a purchase money mortgagee. Equity and justice justify the protection afforded a vendor who parts with his property on the faith that his mortgage or trust deed securing purchase monies loaned to the vendee is entitled to priority over any preexisting claims which may be asserted against the vendee-mortgagor. Id.
A vendee is entitled to the appreciated value of the property over the contract purchase price as long as his or her interest has not been forfeited. Id.
Under the doctrine of equitable conversion, once parties have entered into a binding and enforceable land sale contract, the buyer’s interest in the contract is said to be real property and the seller’s retained interest is characterized as personal property. The rights of the parties are evaluated as if the conveyance had been made. Cannefax v. Clement, 786 P.2d 1377 (1990)
Under an installment land sale contract, the vendor retains legal title as security for the purchase price of the property. Nevertheless, as a general proposition, the vendee is treated as the owner of the land. The vendor’s interest is similar to the security interest of a purchase money mortgagee. Id.
