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Introduced Version House Bill 2851 History

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H. B. 2851

 

         (By Delegates Manypenny. Fleischauer,

                    Hamilton and Martin)


         [Introduced January 25, 2011; referred to the

Committee on Energy, Industry and Labor, Economic Development and Small Business then the Judiciary.]

 

A BILL to amend and reenact §11A-3-19 and §11A-3-21 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §11A-3-23a; to amend and reenact §11A-3-52 and §11A-3-54 of said code; and to amend said code by adding thereto a new section, designated §11A-3-58a, all relating to permitting surface owners to purchase the mineral interests that lay below the property when the mineral interest becomes subject to a tax lien; establishing the purchase price to be twice the amount owed by the mineral interest owner; setting forth the procedure for clerks and deputy commissioners; establishing a nonrefundable $20 administrative fee to be paid by surface owners; providing a procedure if more than one surface owner desires to purchase the delinquent mineral interest; and modifying notices to redeem that are sent to property owners identifying the additional rights available to surface owners.

Be it enacted by the Legislature of West Virginia:

    That §11A-3-19 and §11A-3-21 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §11A-3-23a; that §11A-3-52 and §11A-3-54 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §11A-3-58a, all to read as follows:

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

§11A-3-19. What purchaser must do before the deed can be secured.

    (a) At any time after October 31 of the year following the sheriff's sale, and on or before December 31 of the same year, the purchaser, his or her heirs or assigns, in order to secure a deed for the real estate subject to the tax lien or liens purchased, shall:

    (1) Prepare a list of those to be served with notice to redeem and request the State Auditor to prepare and serve the notice as provided in sections twenty-one and twenty-two of this article;

    (2) When the real property subject to the tax lien is classified as Class II property, provide the State Auditor with the physical mailing address of the property that is subject to the tax lien or liens purchased;

    (3) Provide the State Auditor with a list of any additional expenses incurred after January 1 of the year following the sheriff’s sale for the preparation of the list of those to be served with notice to redeem including proof of the additional expenses in the form of receipts or other evidence of reasonable legal expenses incurred for the services of any attorney who has performed an examination of the title to the real estate and rendered written documentation used in the preparation of the list of those to be served with the notice to redeem;

    (4) Deposit with the State Auditor a sum sufficient to cover the costs of preparing and serving the notice; and

    (5) Present the purchaser's certificate of sale, or order of the county commission where the certificate has been lost or wrongfully withheld from the owner, to the State Auditor.

    If the purchaser fails to meet these requirements, he or she shall lose all the benefits of his or her purchase.

    (b) For an interest in real estate subject to the tax lien or liens that includes minerals but does not include an interest in the surface, other than an interest for the purpose of developing the minerals, the list shall include the last known name and mailing address of the taxpayer to which the sheriff is required to send a tax ticket pursuant to section eight, article one of this chapter for all tracts of surface property shown on the tax maps provided in subsection (e), section seven, article one-c, chapter eleven of this code to lie above the mineral tract subject to the tax lien or liens purchased. For failure to meet these requirements, the purchaser shall lose all the benefits of his or her purchase. No deed to a bona fide purchaser for value from a purchaser or a surface owner substituted for a purchaser may be set aside for failure of the purchaser to comply with this subsection, but this limitation does not affect other remedies at law, if any.

    (b) (c) If the person requesting preparation and service of the notice is an assignee of the purchaser, he or she shall, at the time of the request, file with the State Auditor a written assignment to him or her of the purchaser's rights, executed, acknowledged and certified in the manner required to make a valid deed.

    (c) (d) Whenever any certificate given by the sheriff for a tax lien on any land, or interest in the land sold for delinquent taxes, or any assignment of the lien is lost or wrongfully withheld from the rightful owner of the land and the land or interest has not been redeemed, the county commission may receive evidence of the loss or wrongful detention and, upon satisfactory proof of that fact, may cause a certificate of the proof and finding, properly attested by the State Auditor, to be delivered to the rightful claimant and a record of the certificate shall be duly made by the county clerk in the recorded proceedings of the commission.

§11A-3-21. Notice to redeem.

    (a) Whenever the provisions of section nineteen of this article have been complied with, the State Auditor shall prepare a notice in form or effect as follows:

    To ___________________________________.

    You will take notice that _______________, the purchaser (or _____________, the assignee, heir or devisee of _______________, the purchaser) of the tax lien(s) on the following real estate, __________________, (here describe the real estate for which the tax lien(s) thereon were sold) located in ___________________, (here name the city, town or village in which the real estate is situated or, if not within a city, town or village, give the district and a general description) which was returned delinquent in the name of ________________, and for which the tax lien(s) thereon was sold by the sheriff of __________________ County at the sale for delinquent taxes made on the ____________ day of _____________, 20, has requested that you be notified that a deed for such real estate will be made to him or her on or after April 1, 20 ____, as provided by law, unless before that day you redeem such real estate. The amount you will have to pay to redeem on the last day, March 31, will be as follows:

    Amount equal to the taxes, interest, and charges due on the date of sale, with interest to March 31, 20 _______ ........ $__________

    Amount of subsequent years taxes paid on the property, since the sale, with interest to March 31, 20 ____ ........ $___________

    Amount paid for title examination and preparation of list of those to be served, and for preparation and service of the notice with interest from January 1, 20 (insert year) following the sheriff’s sale to March 31, 20 ______ ........ $__________

    Amount paid for other statutory costs (describe) _____________________ ........ $___________

    Total ................. $_____________

    You may redeem at any time before March 31, 20 _______________, by paying the above total less any unearned interest.

    NOTE: If you are receiving this notice because you are the owner of an interest in the surface overlaying a mineral interest which was returned delinquent, you may pay the clerk twice the amount identified above, a $20 administrative fee, before March 1, 20___. If you do so and the property is redeemed, the amount you paid, less the administrative fee, will be refunded. If you do so and the property is not redeemed, then you will be substituted for the purchaser of the tax lien and may proceed to obtain a deed for the property. If you do so and if one or more additional surface owners do so, then the surface owners must submit, by April 7, 20___, an agreement dividing the real estate according to their proportionate share or any other method or formula agreed to among all of you. If an agreement is not filed, the clerk shall refund the moneys tendered by the surface owners, less the administrative fees, and the original purchaser will be returned to his or her original rights and duties.

    Given under my hand this _____ day of __________, 20 ____.

_________________________________________________________________

State Auditor, State of West Virginia

    (b) The State Auditor for his or her service in preparing the notice shall receive a fee of $10 for the original and $2 for each copy required. Any additional costs which must be expended for publication, or service of the notice in the manner provided for serving process commencing a civil action, or for service of process by certified mail, shall be charged by the State Auditor. All costs provided by this section shall be included as redemption costs and included in the notice described in this section.

§11A-3-23a. Surface owner substitution for purchaser.

    (a) If the real estate interest subject to the tax lien is an interest in real estate that includes minerals but does not include an interest in the surface, other than an interest for the purpose of developing the minerals, then prior to March 31 of the year following the sale an owner of record of the surface laying above the real estate interest subject to the tax lien real estate being sold may pay the clerk twice the amount that would be required for redemption pursuant to section twenty-three of this article, plus an administrative fee of $20. The clerk shall issue the surface owner a certificate of substitution and send a copy to the purchaser. If more than one surface owner of record applies to pay the clerk, the clerk shall accept payment from each surface owner of record and issue each a certificate of substitution for each and send copies of the certificates of substitution to each other in addition to the purchaser.

    (b) If the property is redeemed, the clerk shall refund the moneys paid, less the administrative fees.

    (c) If the property is not timely redeemed, and if only one surface owner has received a certificate of substitution, then the clerk shall send the amount paid by the surface owner to the purchaser, keep the $20 administrative fee, and record the certificate of substitution, and the surface owner is substituted to the full rights and duties of the purchaser.

    (d) If more than one surface owner pays in, then no deed may be issued before April 15 of the year following the sale and the surface owners must submit an agreement dividing the real estate according to the proportion their interests bear to each other by April 15 of the year following the sale of the lien. The interest of an owner of a surface tract shall be equal to the acreage stated on documents of record even if the owner only owns an undivided interest. However, if more than one owner of an undivided interest pays in, his or her proportion shall be the total acreage of the undivided tract divided by the number of owners of the tract who pay in. If no agreement is filed, then the clerk shall refund the moneys paid to the surface owners, except for the $20 administrative fees, and the original purchaser is returned to his or her original position. If an agreement is filed, then the clerk shall make an amended certificate showing the division according to their respective interests and divide any remaining moneys paid by all surface owners according to their agreed interest and return it to them.

§11A-3-52. What purchaser must do before he or she can secure a deed.

    (a) Within forty-five days following the approval of the sale by the Auditor pursuant to section fifty-one of this article, the purchaser, his or her heirs or assigns, in order to secure a deed for the real estate purchased, shall:

    (1) Prepare a list of those to be served with notice to redeem and request the deputy commissioner to prepare and serve the notice as provided in sections fifty-four and fifty-five of this article;

    (2) When the real property subject to the tax lien was classified as Class II property, provide the deputy commissioner with the actual mailing address of the property that is subject to the tax lien or liens purchased; and

    (3) Deposit, or offer to deposit, with the deputy commissioner a sum sufficient to cover the costs of preparing and serving the notice.

    (b) If the purchaser fails to fulfill the requirements set forth in paragraph (a) of this section, the purchaser shall lose all the benefits of his or her purchase.

    (c) After the requirements of paragraph (a) of this section have been satisfied, the deputy commissioner may then sell the property in the same manner as he sells lands which have been offered for sale at public auction but which remain unsold after such auction, as provided in section forty-eight of this article.

    (d) For an interest in real estate subject to the tax lien or liens that includes minerals but does not include an interest in the surface, except an interest for the purpose of developing the minerals, the list shall include the last known name and mailing address of the taxpayer to which the sheriff is required to send a tax ticket pursuant to section eight, article one of this chapter for all tracts of surface property shown on the tax maps, provided in subsection (e), section seven, article one-c, chapter eleven of this code, that lie above the mineral tract subject to the tax lien or liens purchased. No deed to a bona fide purchaser for value from a purchaser or a surface owner substituted for a purchaser may be set aside for failure of the purchaser to comply with this subsection, but this limitation does not affect other remedies at law, if any.

    (d) (e) If the person requesting preparation and service of the notice is an assignee of the purchaser, he shall, at the time of the request, file with the deputy commissioner a written assignment to him or her of the purchaser's rights, executed, acknowledged and certified in the manner required to make a valid deed.

§11A-3-54. Notice to redeem.

    Whenever the provisions of section fifty-two of this article have been complied with, the deputy commissioner shall thereupon prepare a notice in form or effect as follows:

To _____________________________________

    You will take notice that ___________________, the purchaser (or _____________, the assignee, heir or devisee of ____________, the purchaser) of the following real estate, ___________________, (here describe the real estate sold) located in ________________, (here name the city, town or village in which the real estate is situated or, if not within a city, town or village, give the district and a general description) which was __________________ (here put whether the property was returned delinquent or nonentered) in the name of __________________, and was sold by the deputy commissioner of delinquent and nonentered lands of _________________ County at the sale for delinquent taxes (or nonentry) on the ______ day of _________________, 19 20____, has requested that you be notified that a deed for such real estate will be made to him or her on or after the ______ day of _____________, 19 20____, as provided by law, unless before that day you redeem such real estate. The amount you will have to pay to redeem on the ________ day of __________________,19 20__ will be as follows:

    Amount equal to the taxes, interest and charges due on the date of sale, with interest to ______________ .........$_________

    Amount of taxes paid on the property, since the sale, with interest to _______________ ..........      $_________

    Amount paid for title examination and preparation of list of those to be served, and for preparation and service of the notice with interest to ______________ ..........  $_________

    Amount paid for other statutory costs (describe) _________________________________________________________________ _________________................... $_________

    Total ......................... $_________

    You may redeem at any time before _________________ by paying the above total less any unearned interest.

    NOTE: If you are receiving this notice because you are the owner of an interest in the surface overlaying a mineral interest which was returned delinquent, you may pay the deputy commissioner twice the amount identified above, plus a $20 administrative fee, before the above date. If you do so and the property is redeemed, the amount you paid, less the administrative fee, will be refunded. If you do so and the property is not redeemed, then you will be substituted for the purchaser of the tax lien and may proceed to obtain a deed for the property. If you do so and if one or more additional surface owners do so, then the surface owners must submit an agreement dividing the property according to their proportionate shares. If an agreement is not filed, the deputy commissioner shall refund the moneys tendered by the surface owners, less the administrative fees, and the original purchaser will be returned to his or her original rights and duties.

    Given under my hand this ________ day of __________________, 19 20_____.

_________________________________

Deputy Commissioner of Delinquent

and Nonentered Lands  

______________________ County,

State of West Virginia

    The deputy commissioner for his or her service in preparing the notice shall receive a fee of $10 for the original and $2 for each copy required. Any costs which must be expended in addition thereto for publication, or service of such notice in the manner provided for serving process commencing a civil action, or for service of process by certified mail, shall be charged by the deputy commissioner. All costs provided by this section shall be included as redemption costs and included in the notice described herein.

§11A-3-58a. Surface owner substitution for purchaser.

    (a) If the real estate interest subject to the tax lien is an interest in real estate that includes minerals but does not include an interest in the surface, other than an interest for the purpose of developing the minerals, then within thirty days after notices to redeem have been personally served, or an attempt of personal service has been made, or such notices have been mailed or, if necessary, published in accordance with the provisions of section fifty-five of this article, following the deputy commissioner’s sale, an owner of record of the surface laying above the real estate interest subject to the tax lien real estate being sold may pay to the deputy commissioner twice the amount that would be required for redemption. The deputy commissioner shall issue the surface owner a certificate of substitution, and send a copy to the purchaser. If more than one surface owner of record applies to pay the deputy commissioner, the deputy commissioner shall accept payment from each surface owner of record and issue each a certificate of substitution for each and send copies of the certificates of substitution to each other in addition to the purchaser.

    (b) If the property is redeemed, the deputy commissioner shall refund the moneys paid, less the administrative fees.

    (c) If the property is not timely redeemed, and if only one surface owner has received a certificate of substitution, then the deputy commissioner shall send the amount paid by the surface owner to the purchaser and record the certificate of substitution, whereupon the surface owner is substituted to the full rights and duties of the purchaser.

    (d) If more than one surface owner submits payment, before an additional fifteen days, the surface owners must submit an agreement dividing the real estate according to their proportionate share. The interest of an owner of a surface tract shall be equal to the acreage stated on documents of record even if the owner only owns an undivided interest. However, if more than one owner of an undivided interest submits payment, their proportionate shares are the total acreage of the undivided tract divided by the number of owners of the tract who pay in. If no agreement is filed, then the deputy commissioner shall refund their moneys, less the administrative fees, and the original purchaser is returned to his or her original position. If an agreement is filed, then the deputy commissioner shall make an amended certificate showing the division according to their interests, the deputy commissioner shall send the purchaser twice the amount required for redemption, and divide the remaining money paid by all surface owners according to their agreed interests.



    NOTE: The purpose of this bill is to permit surface owners to purchase the mineral interests that lay below the property when the mineral interest becomes subject to a tax lien. The bill provides that the price to substitute the surface owner for the tax lien purchaser would be twice the amount owed by the mineral interest owner. The bill sets forth the procedure for clerks and deputy commissioners and establishes a nonrefundable $20 administrative fee to be paid by surface owners. The bill provides a procedure if more than one surface owner desires to purchase the delinquent mineral interest. The bill modifies the notices to redeem that are sent to property owners by identifying the additional rights available to surface owners.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


    §11A-3-23a and §11A-3-58a are new; therefore, they have been completely underscored.

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