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Introduced Version House Bill 4347 History

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H. B. 4347

 

         (By Delegates Shott, Sponaugle, Sobonya,

         Manchin, Lane Poore ad Pino)

 

         [Introduced January 28, 2014; referred to the

         Committee on the Judiciary.]

 

 

A BILL to amend and reenact §38-2-21 and §38-2-34 of the Code of West Virginia, 1931, as amended, all relating to affirmative defenses against mechanics’ liens.

Be it enacted by the Legislature of West Virginia:

    That §38-2-21 and §38-2-34 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 2. MECHANICS' LIENS.

§38-2-21. Effect of payment by owner to contractor or subcontractor.

    (a) No payment by the owner to any contractor or subcontractor of any part or all of the contract price for the erection and construction of any such a building, structure or improvement appurtenant thereto to a building, structure or improvement or for any part or section of such a work shall may affect, impair or limit the lien of the subcontractor, laborer, or materialman or furnisher of machinery or other necessary material or equipment, as provided for in this article, except as otherwise provided in this article.

    (b) Notwithstanding any provisions of this code to the contrary, it is an affirmative defense in any action to enforce a lien pursuant to this article that the owner or some person acting on the owner's behalf has paid an amount sufficient to satisfy the contractual and legal obligations of the owner, including the initial purchase price or contract amount plus any additions or change orders, to the principal contractor or any subcontractor for the purpose of payment to the subcontractors or suppliers of laborers, materials, or services to the job, when:

    (1) The property is an existing single-family dwelling unit;

    (2) The property is a residence constructed by the owner or under a contract entered into by the owner prior to its occupancy as the owner's primary residence; or

    (3) The property is a single-family, owner-occupied dwelling unit, including a residence constructed and sold for occupancy as a primary residence. This subdivision does not apply to a developer or builder of multiple residences except for the residence that is occupied as the primary residence of the developer or builder.

§38-2-34. Time within which suit to enforce lien may be brought; right of other lienors to intervene.

    (a) Unless a suit in chancery an action to enforce any lien authorized by this article is commenced in a circuit court within six months after the person desiring to avail himself or herself thereof shall have of the court has filed his or her notice in the clerk's office, as hereinbefore provided in this article, such the lien shall be discharged; but a suit an action commenced by any person having such a lien shall, for the purpose of preserving the same, inure to the benefit of all other persons having a lien under this article on the same property, and such persons may intervene in such suit the action for the purpose of enforcing their liens in the same manner as in other chancery suits.

    (b) In an action to enforce any lien authorized by this article, it is an affirmative defense that the owner or some person acting on the owner's behalf has paid an amount sufficient to satisfy the contractual and legal obligations of the owner, including the initial purchase price or contract amount plus any additions or change orders, to the principal contractor or any subcontractor for the purpose of payment to the subcontractors or suppliers of laborers or materials or services to the job, when:

    (1) The property is an existing single-family dwelling unit;

    (2) The property is a residence constructed by the owner or under a contract entered into by the owner prior to its occupancy as his or her primary residence; or

    (3) The property is a single-family, owner-occupied dwelling unit, including a residence constructed and sold for occupancy as a primary residence. This subdivision does not apply to a developer or builder of multiple residences except for the residence that is occupied as the primary residence of the developer or builder.



    NOTE: The purpose of this bill is add language to West Virginia Code providing for affirmative defenses against mechanic’s liens.


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

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