H. B. 4526


(By Delegate Overington)

[Introduced February 18, 2002 ; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact sections four and five, article fourteen, chapter thirty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the self-service storage lien act providing for an increase in late fees; shortening the time to be considered in default; adding sale by private auction as well as public auction; and shortening the time that personal property may be sold at a public or private auction.

Be it enacted by the Legislature of West Virginia:
That sections four and five, article fourteen, 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 14. SELF-SERVICE STORAGE LIEN ACT.
§38-14-4. Late fees.
The owner may charge a late fee not to exceed ten twenty-five dollars or ten twenty-five percent of the monthly rental fee, whichever is greater, for each month the occupant defaults for a period of fifteen five days or more.
§38-14-5. Enforcement of self-service storage lien.
(a) (1) If an occupant is in default under a rental agreement and the owner wishes to enforce the lien, the owner shall notify the occupant of the default in a form as prescribed by subsection (c) of this section. If the default is not cured within sixty thirty days after the service of the notice, the owner may:
(A) Proceed to enforce the self-service storage lien by selling the contents of the occupant's unit at public or private auction, for cash, and apply the proceeds to satisfaction of the self-service storage lien, with the surplus, if any, to be disbursed as provided in this article; or
(B) Destroy the personal property if he or she can demonstrate by photographs or other images and affidavit of a knowledgeable and credible person that the personal property lacks a value sufficient to cover the reasonable expense of a public or private auction plus the amount of the self-service storage lien;
(2) In the case of personal property having a fair market value in excess of one thousand dollars and against which a secured party 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 water craft 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 or private auction, at least thirty days prior to the auction. At any time prior to the public or private sale or destruction, a secured party may pay the reasonable fees and costs due to the person possessing the self-service storage lien and take possession of the personal property which is subject to the lien;
(3) If a lienholder of record 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 except as prescribed by subsection (c) of this section. Whenever a motor vehicle or water craft 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 water craft purchased, together with an affidavit by the person conducting the public or private auction, evidencing compliance with the provisions of this article.
(b) The owner may, without judicial process, deny the occupant access to the personal property stored at the self-service storage facility if the occupant has been in default for fifteen days: Provided, That the owner clearly states in the rental agreement that he or she may deny the occupant access to the personal property stored in the rental space after a default lasting fifteen or more days and the owner maintains a conspicuous sign on the premises of the self-service storage facility stating the name, business street address and business telephone number of the owner or the owner's designated agent who the occupant may contact to redeem his or her personal property and upon redemption, the occupant or lienholder be permitted access to his or her personal property at a time not later than the close of business on the next following business day.
(c) Anytime after the occupant has been in default and before the owner can sell or destroy the occupant's personal property in accordance with the terms of this article, the owner shall send a notice of default, by regular mail, and registered or certified mail, postage prepaid, to the occupant at the occupant's last-known primary address and secondary address, if any. 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, the date when the charges became due and those charges that will accrue through the date of sale or destruction of the occupant's personal property;
(2) A demand for payment of the charges due to the owner with an address where payment can be made;
(3) A statement that the contents of the occupant's leased space are subject to the owner's self-service storage lien;
(4) A conspicuous statement that unless the claim is paid prior to the enforcement of the self-storage lien:
(A) The personal property contained in the occupant's space will be sold at public or private auction at a specified time and place which may not be less than sixty thirty days from the date of the service; or
(B) The personal property contained in the occupant's space will be disposed of at a commercially reasonable cost to the occupant at a specified time and place which may not be less than sixty thirty days from the date of the service; and
(d) At any time prior to the public or private auction or destruction of the personal property pursuant to this section the occupant may pay the full amount necessary to satisfy the self- service storage lien. A lienholder of record may pay an amount not to exceed one hundred seventy-five dollars for incurred rental fees, late fees and safekeeping of the property in addition to an amount not to exceed seventy-five dollars for notice and redeem only the personal property subject to the lien.
(e) (1) Any owner who conducts a public or private auction pursuant to this section may satisfy the self-service storage lien from the proceeds of the public or private auction and hold the balance, if any, for delivery on demand to the occupant. If an owner complies with the provisions of this article, his or her liability to the occupant is limited to the net proceeds less the amount of the self-service storage lien and costs received at the public or private auction;
(2) If an owner conducts a public or private auction pursuant to this section, the owner's liability to a lienholder is limited to the proceeds received at the public or private auction, less the amount of the self-service storage lien and costs. If an owner complies with the provisions of this article, the owner is not liable to a lienholder who fails to claim an interest in the net proceeds within thirty days after the public or private auction.
(f) Any public or private 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 or municipality in which the public or private auction is to be held not less than twenty days prior to the public or private auction. The advertisement must state the:
(1) Fact that it is a public or private auction;
(2) Date, time and location of the public or private auction;

(3) Date, time and location which the property may be inspected; and
(4) 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 with postage prepaid.


 NOTE: The purpose of this bill is to increase the maximum allowance charged for late fees; shortening the time to be considered in default; allowing for personal property to be sold also at a private auction; and shortening the time that personal property may be sold at a public or private auction

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.