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.)