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Enrolled Version - Final Version House Bill 2848 History

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COM SUB 2 LINES

ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 2848

(By Delegates Boggs, Swartzmiller, Ferro, Caputo and D. Poling)

[Passed April 13, 2013; in effect ninety days from passage.]

 

 

 

AN ACT to amend and reenact §11A-3-18, §11A-3-22, §11A-3-27, §11A-3-28 and §11A-3-55 of the Code of the West Virginia, 1931, as amended, all relating generally to the sale of tax liens and nonentered, escheated and waste and unappropriated lands; providing the process for requesting a refund after forfeiture of rights to a tax deed; clarifying deadlines for receipt of tax deeds and refunds related to failure to meet deadlines; modifying the requirements for petitioning to compel execution of a deed by the State Auditor; removing the provisions allowing judgment against the State Auditor for costs in the case of failure or refusal to execute a deed without reasonable cause; and providing for service of notice when mail is not deliverable to an address at the physical location of the property.

Be it enacted by the Legislature of West Virginia:

    That §11A-3-18, §11A-3-22, §11A-3-27, §11A-3-28 and §11A-3-55 of the Code of the West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE AND UNAPPROPRIATED LANDS.

§11A-3-18. Limitations on tax certificates.

    (a) No lien upon real property evidenced by a tax certificate of sale issued by a sheriff on account of any delinquent property taxes may remain a lien on the real property for a period longer than eighteen months after the original issuance of the tax certificate of sale.

    (b) All rights of a purchaser to the property, to a lien on the property, or to any other interest in the property, including but not limited to any right to a tax deed, shall be considered forfeited and expired and no tax deed is to be issued on any tax sale evidenced by a tax certificate of sale where the certificate has ceased to be a lien pursuant to the provisions of this section and application for the tax deed, pursuant to the provisions of section twenty-seven of this article, is not pending at the time of the expiration of the limitation period provided in this section.

    (c) Whenever a lien evidenced by a tax certificate of sale has expired by reason of the provisions of this section, the State Auditor shall immediately issue and record a certificate of cancellation describing the real estate included in the certificate of purchase or tax certificate and giving the date of cancellation and the State Auditor shall also make proper entries in his or her records. The State Auditor shall also present a copy of every certificate of cancellation to the sheriff who shall enter it in the sheriff’s records and the certificate and the record are prima facie evidence of the cancellation of the certificate of sale and of the release of the lien of the certificate on the lands described in the certificate. Failure to record the certificate of cancellation does not extend the lien evidenced by the certificate of sale. The sheriff and State Auditor are not entitled to any fees for the issuing of the certificate of cancellation nor for the entries in their books made under the provisions of this subsection.

    (d) Whenever a purchaser has complied with the notice requirements provided in section nineteen of this article, but has failed to request a deed within the eighteen month deadline provided in this section, thereby forfeiting all rights to a tax deed, the purchaser may recover the amounts paid in excess of the taxes owed and expenses incurred by the State Auditor in the processing of the tax lien if, within thirty days of the expiration of the lien, upon a showing of compliance with the provisons of section nineteen of this article, the purchaser files with the State Auditor a request in writing for the refund. A purchaser who fails to file the request within the thirty day period forfeits all rights to the refund.

§11A-3-22. Service of notice.

    (a) As soon as the State Auditor has prepared the notice provided in section twenty-one of this article, he or she shall cause it to be served upon all persons named on the list generated by the purchaser pursuant to the provisions of section nineteen of this article.

    (b) The notice shall be served upon all persons residing or found in the state in the manner provided for serving process commencing a civil action or by certified mail, return receipt requested. The notice shall be served on or before the thirtieth day following the request for the notice.

    (c) If a person entitled to notice is a nonresident of this state, whose address is known to the purchaser, he or she shall be served at that address by certified mail, return receipt requested.

    (d) If the address of a person entitled to notice, whether a resident or nonresident of this state, is unknown to the purchaser and cannot be discovered by due diligence on the part of the purchaser, the notice shall be served by publication as a Class III-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication shall be the county in which the real estate is located. If service by publication is necessary, publication shall be commenced when personal service is required as set forth in this section and a copy of the notice shall at the same time be sent by certified mail, return receipt requested, to the last known address of the person to be served. The return of service of the notice and the affidavit of publication, if any, shall be in the manner provided for process generally and shall be filed and preserved by the State Auditor in his or her office, together with any return receipts for notices sent by certified mail.

    In addition to the other notice requirements set forth in this section, if the real property subject to the tax lien was classified as Class II property at the time of the assessment, at the same time the State Auditor issues the required notices by certified mail, the State Auditor shall forward a copy of the notice sent to the delinquent taxpayer by first class mail, addressed to “Occupant”, to the physical mailing address for the subject property. The physical mailing address for the subject property shall be supplied by the purchaser of the tax lien pursuant to the provisions of section nineteen of this article. Where the mail is not deliverable to an address at the physical location of the subject property, the copy of the notice shall be sent to any other mailing address that exists to which the notice would be delivered to an occupant of the subject property.

§11A-3-27. Deed to purchaser; record.

    (a) If the real estate described in the notice is not redeemed within the time specified in the notice, then from April 1 of the second year following the sheriff’s sale until the expiration of the lien evidenced by a tax certificate of sale as provided in section eighteen of this article, the State Auditor or his or her deputy shall upon request of the purchaser make and deliver to the clerk of the county commission, a quitclaim deed for the real estate. The purchaser’s right to a tax deed shall be forfeited if the deed is not requested within the eighteen month period set forth in section eighteen of this article. The deed shall provide in form or effect as follows:

    This deed made this _______ day of _____________, 20 _____, by and between _________________, State Auditor, West Virginia, (or by and between _______________, a commissioner appointed by the circuit court of ______________ County, West Virginia) grantor, and _____________, purchaser, (or __________________, heir, devisee or assignee of _______________________, purchaser), grantee, witnesseth, that:

    Whereas, In pursuance of the statutes in such case made and provided, _________________, Sheriff of ____________ County, (or ______________, deputy for ______________, Sheriff of ___________ County), (or ______________, collector of ______________ County), did, in the month of ____________, in the year 20 _____, sell the tax lien(s) on real estate, hereinafter mentioned and described, for the taxes delinquent thereon for the year (or years) 20 _____, and ______________, (here insert name of purchaser) for the sum of $___________, that being the amount of purchase money paid to the sheriff, did become the purchaser of the tax lien(s) on such real estate (or on ________ acres, part of the tract or land, or on an undivided _____________ interest in such real estate) which was returned delinquent in the name of ___________________; and

    Whereas, The State Auditor has caused the notice to redeem to be served on all persons required by law to be served therewith; and

    Whereas, The tax lien(s) on the real estate so purchased has not been redeemed in the manner provided by law and the time for redemption set in such notice has expired;

    Now, therefore, the grantor, for and in consideration of the premises and in pursuance of the statutes, doth grant unto ______________, grantee, his or her heirs and assigns forever, the real estate on which the tax lien(s) so purchased existed, situate in the county of _____________________, bounded and described as follows: ______________________________.

    Witness the following signature: __________________________

State Auditor.

    (b) The State Auditor may not execute and deliver a deed more than sixty days after the person entitled to the deed delivers the same and requests the execution of the deed, except when directed to do so under section twenty-eight of this article.

    (c) For the execution of the deed and for all the recording required by this section, a fee of $50 and the recording and transfer tax expenses shall be charged, to be paid by the grantee upon delivery of the deed. The deed, when duly acknowledged or proven, shall be recorded by the clerk of the county commission in the deed book in the clerk’s office, together with any assignment from the purchaser, if one was made, the notice to redeem, the return of service of the notice, the affidavit of publication, if the notice was served by publication, and any return receipts for notices sent by certified mail.

    (d) The State Auditor shall appoint employees of his or her office to act as his or her designee to effect the purposes of this section.

§11A-3-28. Compelling service of notice or execution of deed.

    (a) If the State Auditor fails or refuses to prepare and serve the notice to redeem as required in sections twenty-one and twenty-two of this article, the person requesting the notice may, at any time within two weeks after discovery of the failure or refusal, but in no event later than sixty days following the date the person requested that notice be prepared and served, apply by petition to the circuit court of the county for an order compelling the State Auditor to prepare and serve the notice or appointing a commissioner to do so. If the person requesting the notice fails to make application within the time allowed, he or she shall lose his or her right to the notice, but his or her rights against the State Auditor under the provisions of section sixty-seven of this article shall not be affected. Notice given pursuant to an order of the court or judge shall be as valid for all purposes as if given within the time required by section twenty-two of this article.

    (b) If the State Auditor fails or refuses to execute the deed as required in section twenty-seven of this article to a purchaser who has requested the deed within the period required by said section twenty-seven, the person requesting the deed may, at any time after such failure or refusal, but not more than six months after his or her right to the deed accrued, upon proof that the purchaser requested the deed within the period required by said section twenty-seven, apply by petition to the circuit court of the county for an order compelling the State Auditor to execute the deed or appointing a commissioner to do so. If the person requesting the deed fails to prove compliance with the limitations period set forth in section twenty-seven of this article or fails to make an application within the time allowed, he or she shall lose his or her right to the deed. Any deed executed pursuant to an order of the court or judge shall have the same force and effect as if executed and delivered by the State Auditor within the time specified in section twenty-seven of this article.

    (c) Ten days’ written notice of every application must be given to the State Auditor. If, upon the hearing of the application, the court or judge is of the opinion that the applicant is not entitled to the notice or deed requested, the petition shall be dismissed at his or her costs; but if the court or judge is of the opinion that he or she is entitled to the notice or deed, then, upon his or her deposit with the clerk of the circuit court of a sum sufficient to cover the costs of preparing and serving the notice, unless a deposit has already been made with the State Auditor, an order shall be made by the court or judge directing the State Auditor to prepare and serve the notice or execute the deed, or appointing a commissioner for the purpose, as the court or judge shall determine.

    (d) Any commissioner appointed under the provisions of this section shall be subject to the same liabilities as are provided for the State Auditor. For the preparation of the notice to redeem, he or she shall be entitled to the same fee as is provided for the State Auditor. For the execution of the deed, he or she shall also be entitled to a fee of $50 and the recording and transfer expenses, to be paid by the grantee upon delivery of the deed.

§11A-3-55. Service of notice.

    As soon as the deputy commissioner has prepared the notice provided for in section fifty-four of this article, he shall cause it to be served upon all persons named on the list generated by the purchaser pursuant to the provisions of section fifty-two of this article. Such notice shall be mailed and, if necessary, published at least thirty days prior to the first day a deed may be issued following the deputy commissioner’s sale.

    The notice shall be served upon all such persons residing or found in the state in the manner provided for serving process commencing a civil action or by certified mail, return receipt requested. The notice shall be served on or before the thirtieth day following the request for such notice.

    If any person entitled to notice is a nonresident of this state, whose address is known to the purchaser, he shall be served at such address by certified mail, return receipt requested.

    If the address of any person entitled to notice, whether a resident or nonresident of this state, is unknown to the purchaser and cannot be discovered by due diligence on the part of the purchaser, the notice shall be served by publication as a Class III-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county in which such real estate is located. If service by publication is necessary, publication shall be commenced when personal service is required as set forth above, and a copy of the notice shall at the same time be sent by certified mail, return receipt requested, to the last known address of the person to be served. The return of service of such notice, and the affidavit of publication, if any, shall be in the manner provided for process generally and shall be filed and preserved by the auditor in his office, together with any return receipts for notices sent by certified mail.

    In addition to the other notice requirements set forth in this section, if the real property subject to the tax lien was classified as Class II property at the time of the assessment, at the same time the deputy commissioner issues the required notices by certified mail, the deputy commissioner shall forward a copy of the notice sent to the delinquent taxpayer by first class mail, addressed to “Occupant”, to the physical mailing address for the subject property. The physical mailing address for the subject property shall be supplied by the purchaser of the property, pursuant to the provisions of section fifty-two of this article. Where the mail is not deliverable to an address at the physical location of the subject property, the copy of the notice shall be sent to any other mailing address that exists to which the notice would be delivered to an occupant of the subject property.

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