H. B. 2178
(By Delegates Trump and L. White
)
[Introduced February 14, 2001; referred to the
Committee on the Judiciary.]
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 creating 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 providing that there is 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 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 that provided in section five of this
article. In the event of default, the owner shall give written
notice, not later than five days after the 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
the provisions of 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 in this article may 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 the 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 is 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 may not take place
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 ten days before the date of the sale or other disposition
in no 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
must conform to the terms of the notification as provided in this
section and must 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 the 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) If there is a sale under the provisions of 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, must be held by the
owner for delivery on demand to the tenant. A notice of any
balance must 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 are considered abandoned,
and the owner has no further obligation with regard to the
payment of the balance. If the owner's lien does not have
priority over all other liens, the sale proceeds must 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 are 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 any other lien not provided in section
two of this article. Nothing in this article affects 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 impairs or affects 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.
NOTE: The purpose of this bill is to create the Self-Storage
Lien Act. It provides procedures for creating liens on property
held in self-storage facilities and the manner in which these
liens may be enforced.
This article is new; therefore, strike-throughs and
underscoring have been omitted.