Title 78B - Judicial Code - Chapter 21 - Uniform Commercial Real Estate Receivership Act - Section 117 - Executory contract.


Published: 2017-05-09

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Effective 5/9/2017 78B-21-117 Executory contract. (1) As used in this section, "timeshare interest" means the same as that term is defined in Section

57-19-2. (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.

(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.

(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.

(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;

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(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.

Enacted by Chapter 431, 2017 General Session