Senate Bill No. 407
(By Senator Sharpe)
____________
[Introduced January 25, 2002; referred to the Committee
on the Judiciary.]
____________
A BILL to amend and reenact
sections seven, eight, nine, ten,
eleven, twelve and thirteen, article two, chapter
thirty-eight of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all relating to
increasing the periods in which a contractor,
subcontractor, materialman and mechanic or laborer may
perfect a lien for improvements to real property.
Be it enacted by the Legislature of West Virginia:
That sections
seven, eight, nine, ten, eleven, twelve and
thirteen, 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 one hundred
twenty days from the completion of the contract, and the lien
created and authorized by section two of this article shall be
discharged from and after seventy-five one hundred twenty days
from the completion of the subcontract, and the lien created and
authorized by section three of this article shall be discharged
from and after ninety one hundred twenty days from the
furnishing of the last of 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
seventy-five one hundred twenty days from the date of the
furnishing of the last of 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 one hundred twenty days from the date of the performing
of the last of the work and labor, and the lien created and
authorized by section six of this article shall be discharged
from and after seventy-five one hundred twenty days from the
date of the performing of the last of the work and labor, unless
within the respective periods, the claimant of any such lien
shall have perfected and preserved the same, as hereinafter
provided in this article.
§38-2-8. Notice and recordation of contractor's lien.
For the purpose of perfecting and preserving his or her
lien, any such general contractor as is mentioned in section one
of this article shall, within ninety one hundred twenty days
after the completion of his or her work provided for in such
contract, 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 the lien, which notice shall be
sufficient if in form and effect as follows:
Notice of Mechanic's Lien.
To......................
Notice is hereby given, in accordance with the laws of the
State of West Virginia, that the undersigned claims a lien to
secure the payment of the sum of $......... upon your interest
in and to lot number ......... of block number ......... as
shown on the official map of the city of .......... (or other
adequate and ascertainable description of the real estate to be
charged), and upon the following buildings, structures and
improvements thereon: (List the buildings, structures or
improvements sought to be charged.)
Given under my hand this ..... day of ..........., 1920....
...................................
State of West Virginia,
County of ......................., being first duly sworn,
upon his oath says that the statements contained in the
foregoing notice of lien are true, as he verily believes.
Taken, subscribed and sworn to before me this ...... day
of......., 1920....
My commission expires .........................
.........................
(Official Capacity)
§38-2-9. Notice and recordation of subcontractor's lien.
For the purpose of perfecting and preserving his or her
lien, every subcontractor mentioned in section two of this
article shall, within seventy-five one hundred twenty 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 or she claims and
will claim a lien upon your interest in the said lot (or tract)
of land and upon the 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 or she verily believes.
Taken, subscribed and sworn to before me this ....... day of
..................., 1920....
My commission expires ..............
....................
(Official Capacity)
But the lien shall be discharged and avoided, unless within
ninety one hundred twenty days after the completion of his or
her subcontract as aforesaid the subcontractor shall cause to be
recorded in the office of the clerk of the county commission of
the county wherein the property is situate a notice of the lien,
which notice shall be sufficient if in form and effect as that
provided in section eight of this article.
§38-2-10. Notice and recordation of lien for supplies furnished
to owner.
For the purpose of perfecting and preserving his or her
lien, every materialman or furnisher of machinery or other
necessary equipment, under a contract with the owner, as
mentioned in section three of this article, 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,
within ninety one hundred twenty days from the date when he or
she shall have ceased to furnish material or machinery or other
necessary equipment, a notice of such 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 seventy-five one hundred twenty 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 the 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 or she
claims a lien upon your interest in the said lot (or tract) of
land and upon the 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
or her oath says that the statements in the foregoing notice of
lien contained are true, as he or she verily believes.
Taken, subscribed and sworn to before me this ....... day of
.............., 1920.....
My commission expires ........................
....................
(Official Capacity)
But the lien shall be discharged and avoided, unless, within
ninety one hundred twenty days after such the materialman or
other furnisher of machinery or other necessary equipment shall
have has 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 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 and which recorded notice need not
include such the itemized account.
§38-2-12. Notice and recordation of lien of mechanic or laborer
working for owner.
For the purpose of perfecting and preserving his or her lien
every such workman, artisan, mechanic, laborer or other person
as is mentioned in section five of this article who shall have
has done any work or performed any labor upon any such building
or improvement, under a contract with the owner thereof, shall
cause to be recorded in the office of the clerk of the county
court commission of the county wherein such property is situate,
within ninety one hundred twenty days after he or she shall have
ceased to perform any such work or labor, a notice of his or her
lien, which notice shall be sufficient if in form and effect as
that provided in section eight of this article.
§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 has performed any work or labor upon the 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
seventy-five one hundred twenty days after he or she shall have
ceased to perform any such work or labor, a notice of the 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 the 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 or she
claims a lien upon your interest in the said lot (or tract) of
land and upon the buildings, structures and improvements thereon
to secure the payment of the sum.
........................
State of West Virginia,
County of .............., being first duly sworn, upon his
or her oath says that the statements in the foregoing notice of
mechanic's lien contained are true, as he or she verily
believes.
Taken, subscribed and sworn to before me this ........... day
of ................., 1920......
My commission expires ..........
.......................
(Official Capacity)
But the lien shall be discharged, unless such the workman,
artisan, mechanic, laborer or other person shall cause to be
recorded in the office of the clerk of the county commission
wherein such the property is situate, within ninety one hundred
twenty days after he or she shall have has ceased to do work or perform labor upon the building or improvement thereto, a notice
of 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 the itemized
account.
NOTE: The purpose of this bill is to modify the varying
time periods for perfecting six types of liens to a uniform 120
days.
Strike-throughs indicate language which would be stricken
from the present law, and underscoring indicates new language
that would be added.