905 P.2d 1215, 1219 (Utah 1995)
In December 1991, defendants Michael Paxton and Amy Lowder rented an apartment in West Jordan, Utah, from plaintiff Building Monitoring Systems, Inc., under a month-to-month rental agreement.1 Shortly after moving in, they notified plaintiff’s resident manager that the plumbing and wiring in their apartment needed to be repaired.2 Although the manager attempted to make some minor repairs, the overall condition of the apartment remained unacceptable to defendants.3
On August 9, 1993, they complained to the Salt Lake City and County Health Department of an inoperable refrigerator, leaking sinks, decaying bathroom walls, and deteriorated carpeting.4 The Health Department determined that these conditions violated health department regulations and sent plaintiff a letter ordering it to make necessary repairs by September 7.5 On September 1, plaintiff served Paxton and Lowder with an eviction notice, effective September 30.6 However, the tenancy was reinstated when the manager accepted rent from them for the month of October.7
On or about October 12, defendants made another complaint to the Health Department, and they also gave plaintiff a written list of needed repairs.8 One day after plaintiff received notice of the complaint, it served defendants with another eviction notice, demanding that they vacate by October 31.9 When they did not do so, plaintiff brought this unlawful detainer action against them to compel them to yield possession of the premises and to pay its costs and attorney fees pursuant to Utah Code Ann. § 78-36-3(1)(b)(i).10 They countered that the court should enjoin plaintiff from carrying out the eviction because it was issued in retaliation for their complaints to the Health Department.11 The court agreed that the eviction was retaliatory but declined to recognize the defense because of the lack of statutory or case law defining it in Utah.12 Defendants appeal.13
Whether retaliatory eviction by a landlord is an affirmative defense to an unlawful detainer action in Utah?14
In Utah, retaliatory eviction by a landlord is an affirmative defense to an unlawful detainer action. The defense is defined by the five elements set forth in the Restatement (Second) of Property § 14.8, which requires a protective housing statute, the landlord to be in the business of renting, the tenant not in material default, the landlord primarily motivated by the tenant's complaint, and the complaint made in good faith and with reasonable cause.15
Yes. The facts of this case meet all five elements of the Restatement definition of retaliatory eviction. The Utah Fit Premises Act embodies an intent to insure safe and healthy living conditions for renters, satisfying the first element requiring a protective housing statute.16 Plaintiff Building Monitoring Systems, Inc. is the owner of a large multi-unit apartment building and thus is in the business of renting residential property under the second element.17
Defendants were not in breach of the rental agreement when served with the eviction notices, meeting the third element.18 The trial court found that plaintiff's primary motivation in serving the eviction notices was to retaliate against the tenants for complaining to the Health Department, satisfying the fourth element.19 Finally, the tenants complained in good faith and with reasonable cause after reasonable efforts to notify the landlord and the defects were bona fide violations, meeting the fifth element.20
Retaliatory eviction is recognized as an affirmative defense in Utah, and the judgment of the trial court is reversed.21