This appeal concerns the priority of claims to a security interest in personal property used in a restaurant that went out of business. The landlord, the appellant, Elks Building, N.V., claims a lien for unpaid rents pursuant to U.C.A., 1953, § 38-3-1 and pursuant to a provision in the lease. Elks contends that its lien is superior to Citizens Bank’s lien which was perfected under the provisions of the U.C.C. to secure a loan from the Bank. The matter was adjudicated on cross motions for summary judgment. The trial court held for the Bank. We affirm.
The parties have stipulated to the following facts: The Elks Building Corporation, N.V., owns a commercial building in Salt Lake City, Utah. On August 6,1980, Food Innovation Systems, Inc., d/b/a Pouches Restaurant, leased space from Elks in which to operate a restaurant. The lease ran from August 15, 1980 to February 14, 1981. Pouches moved equipment necessary for the restaurant operation onto the leased premises.
In November of 1980 Pouches failed to make its monthly payment. On December 8, Elks served a notice of default on Pouches which gave Pouches thirty days to pay the rent or face legal action. Pouches did not respond. On approximately December 15, Pouches closed its restaurant but left its restaurant equipment on the premises. Shortly thereafter, Elks padlocked the doors to the premises and took possession of the equipment.
Thereafter, in March 1981, Pouches applied for a $70,000 loan from Citizens Bank. The loan was approved and disbursed to Pouches on April 7. 1 As security for the loan, Pouches signed a security agreement which listed as collateral all equipment and fixtures that it owned. Included in the list was the restaurant equipment that Pouches • had left on the Elks’ premises.
To perfect the security agreement, the Bank filed a financing statement on the same day that it disbursed the loan. Two days later, on April 9, 1981, Elks filed a complaint against Pouches for unpaid lease payments and asserted a landlord’s lien against the equipment pursuant to U.C.A., 1953, § 38-3-3. Elks eventually obtained a default judgment which foreclosed Pouches’ interest in the restaurant equipment. At the sheriff’s sale of the equipment, the Bank appeared, presented its secured interest, and claimed priority over Elks’ judgment lien. Because of the conflicting claims, the sheriff terminated the sale, and this lawsuit ensued.
The trial court ruled that the Bank’s security interest had priority over whatever lien Elks had. On appeal Elks contends that it has both a statutory lien under § 38-3-1 and a common law contractual lien on the restaurant equipment, and that *58 both liens are prior to the Bank’s security interest. The Bank counters by attacking the .validity of Elks’ asserted liens and by arguing that even if the liens are valid, its security interest is superior. We think the issues as to the validity of Elks’ liens are dispositive.
U.C.A., 1953, § 38-3-1 creates a limited lessor’s lien:
Except as hereinafter provided, lessors shall have a lien for rent due upon all nonexempt property of the lessee brought or kept upon the leased premises so long as the lessee shall occupy said premises and for thirty days thereafter.
Thus, by the express terms of the statute, the lessor’s statutory lien terminates thirty-one days after the lessee has quit the premises. Therefore, Elks’ statutory landlord’s lien expired January 16, 1981, and, barring a contractual lien, Elks stood as an unsecured creditor after that date. This conclusion is consistent with prior Utah law.
Eason v. Wheelock,
In In re Stone’s Estate, supra, we strictly construed a predecessor of § 38-3-1. The former version, which is almost identical, read:
Lessors, except as hereinafter provided, shall have a lien for rent due upon all of the property of the lessee not exempt from execution, as long as the lessee shall occupy the leased premises, and for thirty days thereafter.
The lessee in that case died and left $270 rent unpaid. Thirty-four days after the lessee’s death, the lessor, Eccles Lumber Company, brought proceedings to claim the benefit of the statutory landlord’s lien. This Court held that the 34-day delay “brought the action of the lessor without the terms of the statute, and [therefore] his lien was gone.”
In
Eason
v.
Wheelock, supra,
we again construed a predecessor of § 38-3-1 with the same 30-day cut-off clause. There the holder of a chattel mortgage attempted to remove property securing the mortgage from leased premises before the 30 days had passed. The lessor locked the mortgagor out, and the mortgagor sued for conversion. Because the mortgagor’s attempt to retrieve the property occurred
within
the 30-day statutory period, we upheld the lessor’s right to retain possession of the lessee’s property. We also stated that “[a]ny act
after that date
would be one of withholding the property.”
In these types of cases, lessors, to preserve their statutory liens, must comply with the terms established by U.C.A., 1953, §§ 38-3-3 through 38-3-6, including the 30-day period. These sections permit the lessor to file a complaint against the lessee, request a writ of attachment, and execute on the writ. Had Elks done this, its statutory lien would have been perfected, and it would have been prior to the Bank’s security interest. Instead, appellant waited almost four months before filing a complaint and never sought a writ of attachment.
Elks argues, however, that because it had possession of the restaurant equipment, filing a complaint and issuing a writ of attachment were not required to perfect its lien. It asserts that a lessor’s possession of the lessee’s property indefinitely extends the statutory landlord’s lien. However, Elks points to no authority which supports this argument. The only Utah case that Elks cites in support is
Eason v. Wheelock, supra,
which we read as reaching the opposite conclusion. The cases from other jurisdictions that appellant cites do not interpret a landlord’s lien statute with a cut-off provision similar to our own.
See Chessport Millworks, Inc. v. Solie,
*59 The second issue on this appeal is whether Elks has a contractual lien. The argument is that paragraph twenty-five of Elks’ lease with Pouches created a contractual landlord’s lien which is superior to the Bank’s security interest. The relevant portion of paragraph twenty-five reads:
In the event of any such material default or breach by tenant, landlord may at any time thereafter, with or without notice or demand, without limiting landlord in the exercise of any other right or remedy which landlord may have by reason of such default or breach:
a. without terminating this lease, reenter the premises, with or without process of law, and take possession of the same and all equipment and fixtures therein, and thereafter relet the premises or any part thereof for the account of tenant for such terms and upon such conditions as landlord may deem proper. [Emphasis added.]
The remedy contemplated by this provision was apparently designed to permit the lessor to protect his interest by entering and reletting the premises. Nothing in the language suggests that the parties intended that a lien for unpaid rent was to be created against the equipment or fixtures.
This Court has defined the term “lien” as a legal charge collectible out of specific property for the payment of a debt.
Olsen v. Kidman,
Parties may create a lien by a contract.
See, e.g., Frisco Joes, Inc. v. Peay,
Utah,
In cases where courts have held that a lease created a landlord’s lien, the nature of the debt and of the property to be charged have been identified in the lease. Thus, in
Frisco Joes, Inc. v. Peay, supra,
the lease that created a contractual lien provided that any unpaid rent would be a lien against the lessee’s personal property, which was not to be removed until all the rent was paid. In
In re King Furniture City, Inc.,
The only case we have found which departs from the principles above stated is
Dunham’s Music House, Inc.
v.
Ashville Theatres, Inc.,
In light of the above cases, we do not read paragraph twenty-five of the Elks-Pouches lease as creating a landlord’s lien. The paragraph gives the lessor the right to re-enter and take possession of the lessee’s equipment. The language states that the landlord may take possession of all the property, regardless of how much rent the lessee owes. The paragraph does not state that its purpose is for securing rent, nor does it in any way suggest that a charge is created against lessee’s property from which rent may be collected. We conclude, therefore, that Elks has no contractual lien.
This conclusion is consistent with Elks’ behavior during the period between Pouches’ default under the lease and the initiation of the present suit. During that time, Elks did not evidence any belief that it had a contractual lien on Pouches’ property. For example, in its complaint against Pouches, Elks did not assert a contractual lien, only a statutory one. Not until the present suit when Elks was faced with the claim of a superior security interest, did it assert that paragraph twenty-five of its lease created a contractual lien.
Because Elks had no valid basis in the lease for the creation of a contractual lien, we need not address the issue of whether U.C.C. Article 9 filing requirements apply to contractual liens.
See Todsen v. Runge,
Finally, Elks argues that the Bank has not sufficiently supported its claim that it was a purchase money lender. Elks asserts that the stipulated facts do not show that the restaurant equipment which secured the Bank’s loan was being purchased by Pouches. The argument is without merit. Both Elks and the Bank stipulated in oral argument before the district court that it made no difference whether the Bank’s security interest was a purchase money security interest or not. Moreover, Elks does not deny that the Bank has a secured interest. It is sufficient, therefore, that the Bank has a security interest of some kind that is superior to Elks’ claim.
Affirmed. Costs to respondents.
Notes
. Apparently, one purpose of the loan was to enable Pouches to pay off money owed on its restaurant equipment. About $38,000 was disbursed in checks made out jointly to Pouches and the businesses that had leased or sold Pouches the restaurant equipment.