COMMITTEE SUBSTITUTE

FOR

H. B. 4573


(By Delegates Trump, Facemyer and L. White)


[Originating in the Committee on the Judiciary]

[February 28, 2000]


A BILL to amend chapter thirty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article fourteen, relating to the self-storage lien act; definitions; creating a lien on personal property stored in self-storage facility; withholding access to personal property on nonpayment of rent; enforcement of liens; no impairment of other liens; and no impairment of rental agreement.

Be it enacted by the Legislature of West Virginia:
That chapter thirty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article fourteen, to read as follows:
ARTICLE 14. SELF-STORAGE LIEN ACT.
§38-14-1. Definitions.
As used in this article:
(1) "Self-service storage facility" means any real property designed and used for the purpose of renting or leasing individual storage space to tenants who are to have access to the space for the purpose of storing and removing personal property. No individual storage space may be used for residential purposes. A self-service storage facility is not a "warehouse" as contemplated in article seven, chapter forty-six of this code. If an owner issues any warehouse receipt, bill of lading, or other document of title for the personal property stored, the owner and the tenant are subject to the provisions of article seven, chapter forty-six of this code, and the provisions of this article are not applicable.
(2) "Self-contained storage unit" means any unit not less than six hundred cubic feet in size, including, but not limited to, a trailer, box or other shipping container, which is leased by a tenant primarily for use as storage space, whether the unit is located at a facility owned or operated by the owner or at another location designated by the tenant.
(3) "Owner" means the owner, operator, lessor, or sublessor of a self-service storage facility or self-contained storage unit or his or her agent or any other person authorized by him or her to manage the facility or to receive rent from a tenant under a rental agreement.
(4) "Tenant" means a person or the person's sublessee, successor, or assign entitled to the use of storage space at a self-service storage facility or in a self-contained unit, under a rental agreement, to the exclusion of others.
(5) "Rental agreement" means any agreement or lease which establishes or modifies terms, conditions, rules, or any other provisions concerning the use and occupancy of a self-service storage facility or use of a self-contained storage unit.
(6) "Last known address" means that address provided by the tenant in the latest rental agreement or the address provided by the tenant by hand delivery or certified mail in a subsequent written notice of a change of address.
§38-14-2. Self-storage liens.
The owner of a self-service storage facility or self-contained storage unit and the owner's heirs, executors, administrators, successors, and assigns have a lien upon all personal property, whether or not owned by the tenant, located at a self-service storage facility or in a self-contained storage unit for agreed rent, labor charges or other charges, present or future, in relation to the personal property and for expenses necessary for its preservation or expenses reasonably incurred in its sale or other disposition pursuant to this article. The lien provided in this section attaches as of the date of default under the rental agreement and continues as long as the personal property remains in the possession of the owner, and the priority of this lien is the same as provided in section five of this article. In the event of default by the tenant, the owner shall give written notice not later than five days after such default to persons who hold perfected security interests under the Uniform Commercial Code in which the tenant is named as the debtor.
§38-14-3. Withholding access to personal property upon nonpayment of rent.

If a tenant fails to pay the rent when it becomes due, the owner may, without notice, after five days from the date the rent is due, deny the tenant access to the personal property located in the self-service storage facility or self-contained storage unit until payment is made or the property is sold pursuant to this article. In denying the tenant access to personal property contained in the self-contained storage unit, the owner may proceed without judicial process, if this can be done without breach of the peace, or may proceed by action. Nothing herein shall be construed as permitting the owner to deny access to personal property by a person who holds a perfected security interest in or other lien on such personal property.
§38-14-4. Enforcement of lien.
An owner's lien as provided in section two of this article may be satisfied as follows:
(a) The tenant and any person who holds a perfected security interest in any of the subject personal property shall be notified by written notice delivered in person or by certified mail to the tenant's and each secured party's last known address and conspicuously posted at the self-service storage facility or on the self-contained storage unit;
(b) The notice shall include:
(1) An itemized statement of the owner's claim, showing the sum due at the time of the notice and the date when the sum became due;
(2) The same description, or a reasonably similar description, of the personal property as provided in the rental agreement;
(3) A demand for payment within a specified time not less than fourteen days after delivery of the notice;
(4) A conspicuous statement that, unless the claim is paid within the time stated in the notice, the personal property will be advertised for sale or other disposition and will be sold or otherwise disposed of at a specified time and place; and
(5) The name, street address, and telephone number of the owner whom the tenant or secured party may contact to respond to the notice;
(c) Any notice given pursuant to this section shall be presumed delivered when it is deposited with the United States postal service, registered, and properly addressed with postage prepaid;
(d) After the expiration of the time given in the notice, an advertisement of the sale or other disposition shall be published once a week for two consecutive weeks in a newspaper of general circulation in the area where the self-service storage facility or self-contained storage unit is located. A single advertisement may be used to dispose of property involving more than one tenant at any one sale.
(1) The advertisement shall include:
(A) A brief and general description of what is believed to constitute the personal property contained in the storage unit, as provided in subdivision (2), subsection (b) of this section; (B) The address of the self-service storage facility or the address where the self-contained storage unit is located and the name of the tenant; and
(C) The time, place and manner of the sale or other disposition. The sale or other disposition shall take place not sooner than fifteen days after the first publication;
(2) If there is no newspaper of general circulation in the area where the self-service storage facility or self-contained storage unit is located, the advertisement shall be posted at least fifteen days before the date of the sale or other disposition in not fewer than three conspicuous places in the neighborhood where the self-service storage facility or self-contained storage unit is located.
(e) Any sale or other disposition of the personal property shall conform to the terms of the notification as provided in this section and shall be conducted in a commercially reasonable
manner;
(f) Before any sale or other disposition of personal property pursuant to this section, the tenant or any person holding a perfected security interest in or lien on such personal property may pay the amount necessary to satisfy the lien and the reasonable expenses incurred under this section and thereby redeem the personal property. Upon receipt of the payment, the owner shall return the property to the tenant and thereafter has no liability to any person with respect to the personal property. If the tenant fails to redeem the personal property or satisfy the lien, including reasonable expenses, he or she is considered to have unjustifiably abandoned the self-service storage facility or self-contained storage unit, and the owner may resume possession of the premises for himself or herself;
(g) A purchaser in good faith of the personal property sold to satisfy a lien provided for in section two of this article takes the property free of any claims, except those interests provided for in section five of this article, despite noncompliance by the owner with the requirements of this section;
(h) In the event of a sale under this section, the owner may satisfy his or her lien from the proceeds of the sale: Provided, That the owner's lien has priority over all other liens in the personal property. The lien rights of secured lienholders are automatically transferred to the remaining proceeds of the sale.
The balance, if any, shall be held by the owner for delivery on demand to the tenant. A notice of any balance shall be delivered by the owner to the tenant in person or by certified mail to the last known address of the tenant. If the tenant does not claim the balance of the proceeds within two years of the date of sale, the proceeds shall be considered abandoned, and the owner has no further obligation with regard to the payment of the balance. In the event that the owner's lien does not have priority over all other liens, the sale proceeds shall be held for the benefit of the holders of those liens having priority. A notice of the amount of the sale proceeds shall be delivered by the owner to the tenant or secured lienholders in person or by certified mail to their last known addresses. If the tenant or the secured lienholders do not claim the sale proceeds within two years of the date of sale, the proceeds shall be considered abandoned, and the owner has no further obligation with regard to the payment of the proceeds.
§38-14-5. Other liens and security interests.
Nothing in this article may be construed as in any manner
impairing or affecting the right of parties to create liens by special contract or agreement nor does it in any manner impair or affect any other lien arising at common law, in equity, or by any statute of this state or the United States or any other lien not provided in section two of this article. Nothing in this article shall be construed as affecting the priority of any lien perfected prior to a lien created in section two of this article.
§38-14-6. Application of act.
Nothing in this article may be construed as in any manner impairing or affecting the right of parties to create additional rights, duties, and obligations in and by virtue of a rental agreement. The provisions of this article are in addition to all other rights allowed by law in a creditor-debtor or landlord-tenant relationship.


This article is new; therefore, strike-throughs and underscoring have been omitted.