Senate Bill No. 69

(By Senator Wooton)

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[Introduced February 14, 2001; referred to the Committee on the Judiciary.]
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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 a self-storage lien act; imposing lien; and providing method of enforcing lien.

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-Service Storage Lien Act.

§38-14-1. Short title.
This article may be known as the "Self-Service Storage Lien Act."
§38-14-2. Definitions.
As used in this article, unless the context clearly requires otherwise:
(1) "Default" means the failure to perform on time any obligation or duty set forth in the rental agreement or this article.
(2) "Last known address" means that address provided by the occupant in the rental agreement or the address provided by the occupant in a subsequent written notice of a change of address.
(3) "Leased space" means the individual storage space at the self-service facility which is leased or rented to an occupant pursuant to a rental agreement.
(4) "Occupant" means a person, the person's sublessee, successor or assign, entitled to the use of a leased space at a self-service storage facility under a rental agreement.
(5) "Owner" means the owner, operator, lessor or sublessor of a self-service storage facility, the person's agent or any other person authorized to manage the facility or to receive rent from any occupant under a rental agreement. The owner of a self-service storage facility is not a warehouseman as defined in section one hundred two, article seven, chapter forty-six of this code, unless the owner issues a warehouse receipt, bill of lading or other document of title for the personal property stored, in which event, the owner and the occupant are subject to the provisions of article seven, chapter forty-six of this code, dealing with warehousemen.
(6) "Personal property" means movable property, not affixed to land and includes, but is not limited to, goods, wares, merchandise, motor vehicles and household items and furnishings.
(7) "Rental agreement" means any agreement or lease that establishes or modifies the terms, conditions or rules concerning the use and occupancy of a self-service storage facility.
(8) "Self-service storage facility" means any real property designed and used for renting or leasing individual storage spaces, other than storage spaces which are leased or rented as an incident to the lease or rental of residential property or dwelling units, to which the occupants have access for storing or removing their personal property. No occupant may use a self-service storage facility for residential purposes.
§38-14-3. Lien.
(a) The owner has a lien on all personal property stored within each leased space for rent, labor or other charges and for expenses reasonably incurred in its sale pursuant to this article. The lien attaches as of the date the personal property is stored within each leased space, and, to the extent the property remains stored within the leased space, as provided, is superior to any other existing liens or security interests to the extent of two hundred fifty dollars, and the lien extends to the proceeds, if any, remaining after the satisfaction of any perfected liens and the owner may retain possession of the proceeds until the balance, if any, of the charges is paid.
(b) In the case of any motor vehicle or watercraft which is subject to a lien, previously recorded on the certificate of title, the owner, so long as the motor vehicle or watercraft remains stored within the leased space, has a lien on the vehicle or watercraft to the extent of two hundred fifty dollars. In addition, the lien extends to the proceeds, if any, remaining after the satisfaction of any recorded liens and the owner may retain possession of the proceeds until the balance, if any, of the charges is paid.
(c) The rental agreement must contain a statement, in bold type, advising the occupant of the existence of the lien, and that the personal property stored within the leased space may be sold to satisfy the lien if the occupant is in default.
§38-14-4. Enforcement of lien.
(a)(1) If an occupant is in default under a rental agreement, the owner shall notify the occupant of the default by regular mail at the occupant's last known address. If the default is not cured within ten days after its occurrence, the owner may proceed to enforce the lien by selling the contents of the occupant's unit at public auction, for cash, and apply the proceeds to satisfaction of the lien, with the surplus, if any, to be disbursed as provided in this article. Before conducting the public auction, the owner shall notify the occupant as prescribed in subsection (c) of this section and shall advertise the time, place and terms of the auction in a manner as to give publicity to the auction.
(2) In the case of personal property having a fair market value in excess of one thousand dollars, and against which a creditor has filed a financing statement in the name of the occupant with the secretary of state or in the office of the clerk of the county commission in the county where the self-service storage facility is located or in the county in West Virginia shown as the last known address of the occupant, or if the personal property is a motor vehicle or watercraft required by the laws of this state to be registered and the division of motor vehicles shows a lien on the certificate of title, the owner shall notify the lienholder of record, by certified mail, at the address on the financing statement or certificate of title, of the time and place of the proposed public auction, at least ten days prior to the auction.
(3) If the owner of the personal property cannot be ascertained, the name of "Jane Doe" shall be substituted in the proceedings brought under this article and no written notice is required. Whenever a motor vehicle or watercraft is sold under the provisions of this article, the division of motor vehicles shall issue a certificate of title and registration to the purchaser upon the purchaser's application containing the serial or motor number of the vehicle or watercraft purchased, together with an affidavit by the lienholder, or by the person conducting the public auction, evidencing compliance with the provisions of this article.
(b) Whenever the occupant is in default, the owner has the right to deny the occupant access to the leased space.
(c) After the occupant has been in default for a period of ten days, and before the owner can sell the occupant's personal property in accordance with this article, the owner shall send a further notice of default, by registered or certified mail, postage prepaid, to the occupant at the occupant's last known address. The notice of default shall include:
(1) An itemized statement of the owner's claim, indicating the charges due on the date of the notice and the date when the charges became due;
(2) A demand for payment of the charges due within a specified time not less than twenty days after the date of the notice;
(3) A statement that the contents of the occupant's leased space are subject to the owner's lien;
(4) A conspicuous statement that unless the claim is paid within the time stated, the contents of the occupant's space will be sold at public auction at a specified time and place; and
(5) The name, street address and telephone number of the owner or the owner's designated agent whom the occupant may contact to respond to the notice.
(d) At any time prior to the public auction pursuant to this section, the occupant may pay the amount necessary to satisfy the lien and redeem the personal property.
(e) In the event of a public auction pursuant to this section, the owner may satisfy the lien from the proceeds of the public auction, and shall hold the balance, if any, for delivery on demand to the occupant or other lienholder referred to in this article. However, the owner is not obligated to hold any balance for a lienholder of record notified pursuant to subdivision (2), subsection (a) of this section or any other lien creditor, that fails to claim an interest in the balance within thirty days of the public auction. So long as the owner complies with the provisions of this article, the owner's liability to the occupant under this article is limited to the net proceeds received from the public auction of any personal property, and as to other lienholders, is limited to the net proceeds received from the public auction of any personal property covered by the superior lien.
(f) Any public auction of the personal property shall be held at the self-service storage facility or at the nearest suitable place to where the personal property is held or stored. An advertisement shall be published in a newspaper of general circulation in the county, city or town in which the public auction is to be held at least once prior to the public auction. The advertisement must state the:
(1) Fact that it is a public auction;
(2) Date, time and location of the public auction; and

(3) Form of payment acceptable.
(g) A purchaser in good faith of any personal property sold or otherwise disposed of pursuant to this article takes the property free and clear of any rights of persons against whom the lien was
valid.
(h) Any notice made pursuant to this section is presumed delivered when it is deposited with the United States postal service and properly addressed to the occupant's last known address with postage prepaid.
§38-14-5. Other legal remedies may be used.
The provisions of this article do not preempt or limit the owner's use of any additional remedy otherwise allowed by law.
§38-14-6. Care, custody and control of property.
Unless the rental agreement specifically provides otherwise, the exclusive care, custody and control of all personal property stored in the leased space remains vested in the occupant.
§38-14-7. Savings clause.
All rental agreements, entered into prior to the first day of July, two thousand one, which have not been extended or renewed after that date, remain valid and may be enforced or terminated in accordance with their terms or as permitted by any other statute or law of this state.
§38-14-8. Effective date and application of article.
The provisions of this article apply to all rental agreements entered into or extended or renewed after the first day of July, two thousand one.




NOTE: The purpose of this bill is to create a self-storage lien act. It provides for the creation of a lien in favor of the owner of leased space for rent on all personal property stored in the space and a procedure for enforcing the lien.

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