COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 41
(By Senators Oliverio, Sharpe, Ross and Scott)
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[Originating in the Committee on the Judiciary;
reported February 29, 1996.]
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A BILL to amend and reenact sections seven, nine, eleven, thirteen and twenty,
article two, chapter thirty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to extending
the time in which subcontractors and persons performing work or labor
or furnishing materials to contractors or subcontractors may file
mechanics' liens; extending the time for the filing of a lein from sixty
to ninety days from the completion of the subcontract, the performance
of work and labor or the furnishing of materials; changing the
requirements for notice and recordation of such mechanics' liens;
providing for preliminary notice to owner and extending date of written
notice, if required; and making certain technical revisions.
Be it enacted by the Legislature of West Virginia:
That sections seven, nine, eleven, thirteen and twenty, article two,
chapter thirty-eight of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. MECHANICS' LIENS.
§38-2-7. Necessity and period for perfecting lien.
But the lien created and authorized by section one of this
article shall be discharged from and after ninety days from the
completion of such the contract, and the lien created and
authorized by section two of this article shall be discharged from and after sixty ninety days from the completion of such the
subcontract, and the lien created and authorized by section three
of this article shall be discharged from and after ninety days
from the furnishing of the last of such the materials, machinery
or other supplies and equipment, and the lien created and
authorized by section four of this article shall be discharged
from and after sixty ninety days from the date of the furnishing
of the last of such the materials, machinery or other equipment
or supplies, and the lien created and authorized by section five
of this article shall be discharged from and after ninety days
from the date of the performing of the last of such the work and
labor, and the lien created and authorized by section six of this
article shall be discharged from and after sixty ninety days from
the date of the performing of the last of such the work and
labor, unless within such the respective periods, the claimant of
any such lien shall have perfected and preserved the same, as
hereinafter provided in this article.
§38-2-9. Notice and recordation of subcontractor's lien.
For the purpose of perfecting and preserving his or her
lien, every such subcontractor mentioned in section two of this
article shall, within sixty ninety days after the completion of
his or her subcontract, give to the owner or his or her
authorized agent, by any of the methods provided by law for the service of a legal notice or summons, a notice of lien, which
notice shall be sufficient if in form and effect as follows:
Notice of Mechanic's Lien.
To......................
You will please take notice that the undersigned
................. was and is subcontractor with .................
who was and is general contractor for the furnishing of materials
and doing of the work and labor, necessary to the completion of
(here describe the nature of the subcontract) on that certain
building (or other structure or improvement as the case may be),
owned by you and situate on lot number ....... of block number
....... as shown on the official map of ............ (or other
definite and ascertainable description of the real estate) and
that the contract price and value of said work and materials is
$....... You are further notified that the undersigned has not
been paid therefor (or has been paid only $....... thereof) and
that he claims and will claim a lien upon your interest in the
said lot (or tract) of land and upon the said buildings,
structures and improvements thereon to secure the payment of the
said sum.
......................
State of West Virginia,
County of ..................................., being first duly sworn, upon his oath says that the statements in the
foregoing notice of mechanic's lien are true, as he verily
believes.
Taken, subscribed and sworn to before me this ....... day of
..................., 19....
My commission expires .........................
....................
(Official Capacity)
But such the lien shall be discharged and avoided, unless
within ninety days after the completion of his or her subcontract
as aforesaid such the subcontractor shall cause to be recorded in
the office of the clerk of the county court commission of the
county wherein such the property is situate a notice of such the
lien, which notice shall be sufficient if in form and effect as
that provided in section eight of this article.
§38-2-11. Notice and recordation of lien for supplies furnished
to contractor or subcontractor.
For the purpose of perfecting and preserving his or her
lien, every materialman or furnisher of machinery or other
necessary equipment, who shall have furnished material, machinery
or equipment under a contract with any contractor or with any
subcontractor, as set forth in section four of this article,
within sixty ninety days after he or she shall have ceased to furnish such material or machinery or other equipment, shall give
to the owner, or his or her authorized agent, by any of the
methods provided by law for the service of a legal notice or
summons, a notice of such lien, which notice shall be sufficient
if in form and effect as follows:
Notice of Mechanic's Lien.
To...................
You will please take notice that the undersigned
............... has furnished and delivered to ...............
who was contractor with you (or subcontractor with
..............., who was contractor with you, as the case may be)
for use in the erection and construction (or repair, removal,
improvement, as the case may be) of (here list the buildings or
other structure or improvement to be charged) on the real estate
known as (here insert an adequate and ascertainable description
of the real estate to be charged) and the said materials were of
the nature and were furnished on the dates and in the quantities
and at the price as shown in the following account thereof:
(Here insert itemized account.)
You are further notified that the undersigned has not been
paid the sum of $ ..... (or that there is still due and owing to
the undersigned thereon the sum of $ ......) and that he claims
a lien upon your interest in the said lot (or tract) of land and upon the said buildings, structures and improvements thereon, to
secure the payment of the said sum.
....................
State of West Virginia,
County of ..................., being first duly sworn, upon
his oath says that the statements in the foregoing notice of lien
contained are true, as he verily believes.
Taken, subscribed and sworn to before me this ....... day of
.............., 19.....
My commission expires ........................
.....................
(Official Capacity)
But such lien shall be discharged and avoided, unless,
within ninety days after such materialman or other furnisher of
machinery or other necessary equipment shall have ceased to
furnish such materials or machinery or other equipment, he or she
shall cause to be recorded in the office of the clerk of the
county court commission of the county wherein such property is
situate a notice of such lien, which notice shall be sufficient
if in form and effect as that provided in section eight of this
article, and which recorded notice need not include such itemized
account.
§38-2-13. Notice and recordation of lien of mechanic or laborer
working for contractor or subcontractor.
For the purpose of perfecting and preserving his or her
lien, every workman, artisan, mechanic, laborer or other person
who shall have performed any work or labor upon such building or
improvement thereto, under a contract with any general contractor
or with any subcontractor, as set forth in section six of this
article, shall cause to be given to the owner, or his or her
authorized agent, by any of the methods provided by law for the
service of a legal notice or summons, within sixty ninety days
after he or she shall have ceased to perform any such work or
labor, a notice of such lien, which notice shall be sufficient,
if in form and effect as follows:
Notice of Mechanic's Lien.
To.................
You will please take notice that the undersigned has
performed work and labor under a contract with ...............
who was general contractor with you (or who was subcontractor
with ..............., who was general contractor with you) in the
erection and construction (or removal, repair, improvement or
otherwise, as the case may be) of a certain building (or other
structure or improvement) on real estate known as (here insert an
adequate and ascertainable description of the real estate to be charged) and that said work and labor was of the kind, was
performed on the dates, for the purposes and at the prices, as
shown in the following itemized account thereof:
(Here insert itemized account.)
You are further notified that the undersigned has not been
paid the sum of $...... (or that there is still due and owing to
the undersigned thereon the sum of $ ......) and that he claims
a lien upon your interest in the said lot (or tract) of land and
upon the said buildings, structures and improvements thereon to
secure the payment of the said sum.
..............................
State of West Virginia,
County of ...................., being first duly sworn, upon
his oath says that the statements in the foregoing notice of
mechanic's lien contained are true, as he verily believes.
Taken, subscribed and sworn to before me this ...........
day of ................., 19......
My commission expires ..........
.......................
(Official Capacity)
But such the lien shall be discharged, unless such workman,
artisan, mechanic, laborer or other person shall cause to be
recorded in the office of the clerk of the county court commission wherein such property is situate, within ninety days
after he or she shall have ceased to do work or perform labor
upon such the building or improvement thereto, a notice of such
the lien, which notice shall be sufficient if in form and effect
as that provided in section eight of this article and which
recorded notice need not include such itemized account.
§38-2-20. Preliminary notice to owner; effect.
Any laborer or other person employed to do any work or labor
or provide any service or furnish any materials or machinery for
the erection, construction, alteration, repair or removal of any
building or other structure, or any improvement appurtenant
thereto, by another who may have contracted with the owner
therefor may, before doing any work or labor or providing any
service or furnishing any material or machinery, give the owner
of such the building or other structure or improvement thereto
notice in writing that if he is not paid therefor by the person
employing him or her, he or she will look to the owner for
payment; and it shall not be necessary for the person who has
given such notice in writing to file the account and notice with
the owner within sixty ninety days of the date of the doing of
the last work or labor or of the providing of the service or of
the furnishing of the last of such materials or machinery, unless
he is required by the owner in writing within such sixty ninety days to do so, and his or her neglect or failure to file such the
notice and account within sixty ninety days, unless so required
to do so, shall in no way affect or impair his or her lien if it
be otherwise perfected and preserved, as provided in this
article.
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(NOTE: The purpose of this bill is to allow all
subcontractors and those providing labor or materials to
contractors or subcontractors ninety days within which to claim
their mechanics' liens.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)