Utah Real Estate Practices

Attorney Involvement

Please describe any requirements under applicable state law for attorney, abstractor or other special professional involvement, for example, in the search, examination, opinion of title, signing, closing, disbursement, recording, preparation of documents, and/or policy-issuance.

A policy insuring property located in Utah must be issued by a title insurance producer who is a resident of Utah through a bona fide branch office in Utah under the direction and control of the title insurer that pays all the expenses of the branch office or through a subsidiary title insurer authorized to do business in Utah.  See Utah Code Ann. § 31A-14-211.  Utah has specific requirements for title insurance producers to be licensed, maintain bonds and to pay to certain reserve funds.  See Utah Code Ann. § 31A-23a-204.  A person licensed to practice law in Utah is exempt from being licensed and is not subject to the requirements contained in Utah Code Ann. § 31-23a-204 if the attorney issues 12 or less policies in any 12 month period.  The attorney, however, must maintain a separate trust account.  See Utah Code Ann. § 31A-23a-204(7) and (8).

Only the title agent issuing a title insurance policy may perform escrow related matters including the closing, disbursement, recording, and preparation of documents or other matters relating to escrow.  See Utah Code Ann. § 31A-23a-406, See also Utah Insurance Department, Bulletin 2007-05.   

Cancellation/Commitment Fee

Does your state permit or require a cancellation fee or commitment fee upon cancellation?

It is customary to charge a cancellation fee for a cancelled commitment.  The charge for a cancelled commitment is established by each title agent. 

Certificate of Release (of Mortgage)

If anyone other than the lender (such as a title agent, settlement agent, underwriter or attorney) has the authority to release the security instrument, please describe.

A title insurer or agent may reconvey a trust deed or release a mortgage if the obligation secured by trust deed or mortgage has been fully paid by the title insurer or agent or if the title insurer or agent has satisfactory evidence of the full payment of the obligation secured by the deed of trust or mortgage.  See Utah Code Ann. § 57-1-40.  The title insurer or agent must deliver a notice of intent to release or reconvey to the beneficiary, mortgagee or servicer together with a copy of the proposed reconveyance or release.  The contents of the notice of intent to release or reconvey is described in Utah Code Ann. § 57-1-40(4).   The title insurer or agent may reconvey the trust deed or release the mortgage if, within 60 days from the day on which the title insurer or agent delivered the notice of intent to release or reconvey, no notice from the beneficiary, mortgagee or servicer has been sent objecting to the reconveyance of the deed of trust or release of the mortgage.  The contents of the reconveyance of the deed of trust or the release of mortgage may be found in Utah Code Ann. § 57-1-40(4).

Deeds

Please describe the kinds of deeds that are customary for commercial and residential transactions.  Please describe the kinds of deeds that are generally not insurable.

A warranty deed or special warranty deed is customarily provided in commercial and residential transactions.  Underwriting approval should be obtained if an insurance policy is being issued based on a quitclaim deed.  

Joinder of Spouses

If a non-title holding spouse is required to join in the execution of a deed or a security instrument, please describe.  Any analogous rights, such as those in a civil union or equivalent, should also be addressed. 

A non-title spouse does not have to join in the execution of a deed or security instrument.  If, however, a homestead declaration has been recorded pursuant to Utah Code Ann. § 78-23-4, a non-title spouse must join in the execution of a deed or security instrument. 

Mortgage Tax

Is there a mortgage tax in your state?  If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.  

There is no mortgage tax in Utah. 

Payment Customs

Who customarily pays for:

(a) Owner’s Policy?
(b) Transfer Tax & Recording Fee?
(c) Survey Charges?
(d) Closing/Settlement Fees?

Pursuant to the terms of the standard Real Estate Purchase Contract, the seller pays for the owner’s policy.  The seller and buyer will pay for their respective recording fees and escrow fees.  The settlement fee is typically split 50/50.   The recording fee for the deed and TD is paid by the buyer.  There is no transfer tax.  The survey charge is rare but when it is charged it has been negotiated by the buyer and seller.

Policy Countersignatures

Please describe any statutory or regulatory requirements for countersignatures in order to issue the policy (for example, residency requirements).

An officer of the issuing title agency may provide any countersignature to a policy or endorsement. 

Real Estate Taxes

Please describe the general tax year, due dates, and delinquency dates, including lien dates and payment cycle.

Taxes for the year beginning January 1st and ending December 31st are due no later than November 30th of that year. 

Search and Examination Fees

Is it permissible and/or customary to charge a separate search and/or examination fee, and under what circumstances?  If your jurisdiction is all-inclusive, please state that.

The charge for the search and examination are included in the basic schedule of charges.  An additional fee is charged if the property includes multiple parcels that are located in a different block, section or county or when the parcels are not under common ownership. 

Search Requirements

Is there a minimum period of time for a title search required: (a) by state law, (b) pursuant to marketable record title acts, or (c) by any other applicable title examination standards (e.g., state bar association)?  Please respond to each category.  If a minimum search period exists for any category, please state it.

Instead of a state required time period, state law requires that the title insurer or its producer conduct a reasonable search and examination of title and that the insurer or producer has made a determination of insurability to title under sound underwriting principles.  See Utah Code Ann. § 31A-20-110.  Evidence of the title search must be retained for no less than 15 years after the policy has been issued.  See id. 

According to the Utah Marketable Title, marketable title exists if a person has an unbroken chain of title of record for forty years or more.  See Utah Code Ann. § 57-9-1 et seq.

Security Instruments (Deed of Trust vs. Mortgage)

Please describe the customary and permissible form(s) of security instruments used in your state. 

Who can be listed as the trustee on the Deed of Trust (e.g., residency and/or natural person requirements, etc.)? Can an underwriter or title agent be designated as the trustee, and, if so, is it customary?

A deed of trust is the customary form of security instrument.  Mortgages are permitted but are uncommon. 

A trustee in a deed of trust must be either an 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, a bank, savings and loan association, savings bank, industrial bank,   credit union,  an insurance company authorized to do business and actually doing business in Utah, a corporation authorized to conduct a trust business and actually conducting a trust business in Utah or a title insurance company or agency that holds a certificate of authority or license Under Title 31A of the Utah Insurance Code that has a bona fide office in the state and is actually doing business in the state.  See Utah Code Ann. § 57-1-21. 

Standard Exceptions and Requirements

Please identify the standard exceptions and requirements that are customarily used in your state.

1)         Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records.

2)         Any facts, rights, interests, or claims which are not shown by the Public Records, but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof.

3)         Easements, liens, or encumbrances, or claims thereof, which are not shown by the Public Records.

4)         Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records.

5)         (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims, or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the Public Records.

6)         Any lien or right to a lien for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records.

State-specific Policy Variations

If there are state-specific changes to the provisions in the ALTA policies (e.g., Arbitration, Minerals), please describe.

There is no change to the ALTA policies required by the state.

Title Insurance Form and Filing Regulations

Please describe the form and/or rate filing requirements, if any, related to policies and endorsements.  Please describe any applicable rating bureau. 

Utah requires forms and rates to be filed.  The Utah Insurance Department requires that all form and rate filings be electronically filed and processed through SERFF or SIRCON.  See Utah Insurance Department bulletin 2007-03.  All filings must include the following language:

BY SUBMITTING THIS TRANSMITTAL, I CERTIFY THAT THE ATTACHED FILING HAS BEEN COMPLETED IN ACCORDANCE WITH UTAH ADMINISTRATIVE RULE R-590-225 AND IS IN COMPLIANCE WITH APPLICABLE UTAH LAWS AND RULES.

A copy of the Utah Rate Manual may be found at www.stewartregionf.com. And http://www.stewart.com/utah/meet-our-staff.

Transfer Taxes

Is there a transfer tax in your state? If yes, is it uniform across the state or does it vary?  If it is uniform, please describe.

There is no transfer tax in Utah.

Usury

Is usury coverage available?

The STG Usury endorsement is available in Utah.  Utah Code Ann. § 15-1-1.  Interest rates -- Contracted rate -- Legal rate

   (1) The parties to a lawful contract may agree upon any rate of interest for the loan or forbearance of any money, goods, or chose in action that is the subject of their contract.

Withholding Taxes

What are your state’s requirements, if any, with regard to withholding proceeds from a sale, similar to but not including FIRPTA?

There is no state specific requirement regarding withholding proceeds from a sale.

Witness Requirements

Are witnesses required on a deed or security instrument?  If so, please describe.

A certificate of acknowledgement, proof of execution, jurat or other notarial certificate that is signed and certified by the officer taking the acknowledgment entitles the document to be recorded.  See Utah Code Ann. § 57-3-103.  Witnesses are not required.