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Chapter 36     Entire Code
‹ Chapter 35A  |  Chapter 36A › Printer Friendly Versions
Chapter 36  |  Article 36 - 4  |  Section 7
WVC 36 - CHAPTER 36. ESTATES AND PROPERTY.
WVC 36 - 4 - ARTICLE 4. COVENANTS.

WVC 36 - 4 - 1 §36-4-1. Effect of covenant in a deed.
When the words "the said ............... covenants," are used in a deed, such covenant shall have the same effect as if it was expressed to be by the covenantor, for himself, his heirs, personal representatives and assigns, and shall be deemed to be with the covenantee, his heirs, personal representatives and assigns.

WVC 36 - 4 - 2 §36-4-2. General warranty.
A covenant by a grantor in a deed, "that he will warrant generally the property hereby conveyed," or a covenant of like import, or the use of the words "with general warranty" in a deed, shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives will forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of all persons whomsoever.

WVC 36 - 4 - 3 §36-4-3. Special warranty.
A covenant by a grantor in a deed "that he will warrant specially the property hereby conveyed," or a covenant of like import, or the use of the words "with special warranty" in a deed, shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives will forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of the grantor and all persons claiming by, through, or under him.

WVC 36 - 4 - 4 §36-4-4. Right to convey.
A covenant by a grantor in a deed for land, "that he has the right to convey the said land to the grantee," or a covenant of like import, shall have the same effect as if the grantor had covenanted that he has good right, full power, and absolute authority to convey the said land, with all the buildings thereon, and the privileges and appurtenances thereto belonging, unto the grantee, in the manner in which the same is conveyed, or intended so to be by the deed, and according to its true intent.

WVC 36 - 4 - 5 §36-4-5. Quiet possession.
A covenant by a grantor in a deed "that the grantee shall have quiet possession of the said land," or a covenant of like import, shall have as much effect as if he had covenanted that the grantee, his heirs, personal representatives, and assigns, might at any and all times thereafter, peaceably and quietly enter upon, and have, hold and enjoy, the land conveyed by the deed, or intended so to be, with all the buildings thereon, and the privileges and appurtenances thereto belonging, and receive and take the rents and profits thereof, to and for his and their use and benefit, without any lawful eviction, interruption, suit, claim or demand whatever.

WVC 36 - 4 - 6 §36-4-6. Freedom from encumbrances.
A covenant, by any grantor in a deed, containing the words "free from all encumbrances," or a covenant of like import, shall have the same effect as if the grantor had covenanted for himself, his heirs and personal representatives, that the premises are freely and absolutely acquitted, exonerated and forever discharged, and the grantee, his heirs and assigns, will be saved harmless and indemnified of, from and against any and every charge and encumbrance whatever.

WVC 36 - 4 - 7 §36-4-7. Special covenant against encumbrances.
A covenant by a grantor in a deed, "that he has done no act to encumber the said lands," or a covenant of like import, shall have the same effect as if he had covenanted that he had not done or executed, or knowingly suffered to be done or executed, any act, deed or thing whereby the lands and premises conveyed or intended so to be, or any part thereof, are, or will be, charged, affected, or encumbered in title, estate or otherwise.

WVC 36 - 4 - 8 §36-4-8. Further assurances.
A covenant by a grantor in a deed for land "that he will execute such further assurances of the said lands as may be requisite," or a covenant of like import, shall have the same effect as if he covenanted that he, the grantor, his heirs or personal representatives, will, at any time, upon any reasonable request, at the expense of the grantee, his heirs or assigns, do, execute, or cause to be done or executed, all such further acts, deeds and things, for the better, more perfectly and absolutely conveying and assuring the said lands and premises hereby conveyed or intended so to be, unto the grantee, his heirs and assigns, in manner aforesaid, as by the grantee, his heirs or assigns, his or their counsel in the law, shall be reasonably advised, or required.

WVC 36 - 4 - 9 §36-4-9. Covenant to pay rents.
In a lease, a covenant by the lessee "to pay the rent," or a covenant of like import, shall have the effect of a covenant that the rent reserved by the deed shall be paid to the lessor, or to those entitled under him, in the manner therein mentioned.

WVC 36 - 4 - 9 A §36-4-9a. Cancellation of oil or gas leases for nonpayment of delay rental; prohibition against maintaining actions or proceedings in state courts for enforcement of certain oil or gas leases; rebuttable presumption of intention to abandon well and well equipment.

Except in the case where operations for the drilling of a well are being conducted thereunder, any undeveloped lease for oil and/or gas in this state hereafter executed in which the consideration therein provided to be paid for the privilege of postponing actual drilling or development or for the holding of said lease without commencing operations for the drilling of a well, commonly called delay rental, has not been paid when due according to the terms of such lease, or the terms of any other agreement between lessor and lessee, shall be null and void as to such oil and/or gas unless payment thereof shall be made within sixty days from the date upon which demand for payment in full of such delay rental has been made by the lessor upon the lessee therein, as hereinafter provided, except in such cases where a bona fide dispute shall exist between lessor and lessee as to any amount due or entitlement thereto or any part thereof under such lease.

No person, firm, corporation, partnership or association shall maintain any action or proceeding in the courts of this state for the purpose of enforcing or perpetuating during the term thereof any lease heretofore executed covering oil and/or gas, as against the owner of such oil and/or gas, or the owner's subsequent lessee, if such person, firm, corporation, partnership or association has failed to pay to the lessor such delay rental in full when due according to the terms thereof, for a period of sixty days after demand for such payment has been made by the lessor upon such lessee, as hereinafter provided.

The demand for payment referred to in the two preceding paragraphs shall be made by notice in writing and shall be sufficient if served upon such person, firm, partnership, association or corporation whether domestic or foreign, whether engaged in business or dissolved, by United States registered mail, return receipt requested, to the lessee's last known address.

A copy of such notice, together with the return receipt attached thereto, shall be filed with the clerk of the county commission in which such lease is recorded, or in which such oil and/or gas property is located, in whole or in part, and upon payment of a fee of fifty cents for each such lease, said clerk shall permanently file such notice alphabetically under the name of the first lessor appearing in such lease and shall stamp or write upon the margin of the record in the clerk's office of such lease hereafter executed the words "canceled by notice"; and as to any such lease executed before the enactment of this statute said clerk shall file such notice as hereinbefore provided and shall stamp or write upon the margin of the record of such lease in the clerk's office the words "enforcement barred by notice."

The word "lessor" includes the original lessor, as well as the original lessor's successors in title to the oil and/or gas involved. The word "lessee" includes the original lessee, the original lessee's assignee properly of record at the time such demand is made, and the original lessee's successors, heirs, or personal representatives. No assignee of such lease whose assignment is not recorded in the proper county shall be heard in any court of this state to attack the validity or sufficiency of the notice hereinbefore mentioned.

There is a rebuttable legal presumption that the failure of a person, firm, corporation, partnership or association to produce and sell or produce and use for its own purpose for a period of greater than twenty-four months, subsequent to the first day of July, one thousand nine hundred seventy-nine, oil and/or gas produced from such leased premises constitutes an intention to abandon any oil and/or gas well and oil and/or gas well equipment situate on said leased premises, including casing, rods, tubing, pumps, motors, lines, tanks, separators and any other equipment, or both, used in the production of any oil and/or gas from any well or wells on said leasehold estate.

This rebuttable presumption shall not be created in instances (i) of leases for gas storage purposes, or (ii) where any shut-in royalty, flat rate well rental, delay rental or other similar payment designed to keep an oil or gas lease in effect or to extend its term has been paid or tendered, or (iii) where the failure to produce and sell is the direct result of the interference or action of the owner of such oil and/or gas or his subsequent lessee or assignee. Additionally, no such presumption is created when a delay in excess of twenty-four months occurs because of any inability to sell any oil and/or gas produced or because of any inability to deliver or otherwise tender such oil and/or gas produced to any person, firm, corporation, partnership or association.

In all instances when the owner of such oil and/or gas or the owner's subsequent lessee or assignee desires to terminate the right, interest or title of any person, firm, corporation, partnership or association in such oil and/or gas by utilization of the presumption created in this section, this presumption may not be utilized except in an action or proceeding by the owner of the oil and/or gas or the owner's lessee or assignee in an action brought in the circuit court for the judicial district in which the oil and/or gas property is partially or wholly located. A certified copy of a final order of the circuit court shall be mailed by the clerk of such court to the chief of the office of oil and gas of the division of environmental protection.

The continuation in force of any such lease after demand for and failure to pay such delay rental or failure to produce and sell, or to produce and use oil and gas for a period of twenty-four months as hereinbefore set forth is deemed by the Legislature to be opposed to public policy against the general welfare. If any part of this section shall be declared unconstitutional such declaration shall not affect any other part thereof.

WVC 36 - 4 - 10 §36-4-10. Covenant to pay taxes.
A covenant by the lessee in a lease "to pay the taxes," or a covenant of like import, shall have the effect of a covenant that all taxes, levies, and assessments upon the demised premises, or upon the lessor on account thereof, shall be paid by the lessee or those claiming under him: Provided, however, That no assessment for a permanent local improvement, such as paving the street or sidewalk, or other such improvement, and no tax levied upon the income of the lessor derived from such leased premises, shall be chargeable to the lessee, unless it is expressly so provided in the lease.

WVC 36 - 4 - 11 §36-4-11. Covenant against assignment.
In a lease, a covenant by the lessee "that he will not assign or sublet without leave," or a covenant of like import, shall have the same effect as a covenant that the lessee will not, during the term, assign, transfer, set over, or sublet, the premises, or any part thereof, to any person, without the consent in writing of the lessor, his representatives or assigns.

WVC 36 - 4 - 12 §36-4-12. Covenant for repairs.
In a lease, a covenant by the lessee "that he will leave the premises in good repair," or a covenant of like import, shall, subject to the provisions of the following section, have the same effect as a covenant that the demised premises will, at the expiration or other sooner determination of the term, be peaceably surrendered and yielded up unto the lessor, his representatives or assigns, in good and substantial repair and condition, reasonable wear and tear excepted.

WVC 36 - 4 - 13 §36-4-13. Effect of destruction of buildings.
No covenant or promise by a lessee that he will leave the premises in good repair shall have the effect, if the buildings or other structures are destroyed by fire or otherwise, in whole or part, without fault or negligence on his part, of binding him to erect such buildings again, or to pay for the same or any part thereof, unless there be other words showing it to be the intent of the parties that he should be so bound.

WVC 36 - 4 - 14 §36-4-14. Covenant for quiet enjoyment.
A covenant by a lessor, "for the lessee's quiet enjoyment of his term," or a covenant of like import, shall have the same effect as a covenant that the lessee, his personal representatives and lawful assigns, paying the rent reserved, and performing his or their covenants, shall peaceably possess and enjoy the demised premises, for the term granted, without any interruption or disturbance from any person whatever.

WVC 36 - 4 - 15 §36-4-15. Covenant for reentry for default of lessee.
If in a lease it be provided that "the lessor may reenter for default in the payment of rent or for the breach of covenants," or if the lease contains words of like import, such words shall have the effect of an agreement that if the rent reserved, or any part thereof, be unpaid on or after the day specified in the deed for the payment thereof, or if any of the other covenants on the part of the lessee, his personal representatives or assigns, be broken, then, in either of such cases, the lessor, or those entitled in his place, at any time afterwards, into and upon the demised premises, or any part thereof, in the name of the whole, may reenter and the same again have, repossess and enjoy, as of his or their former estate.

WVC 36 - 4 - 16 §36-4-16. Covenants shall run with land.
Each of the covenants hereinbefore mentioned in this article, as well as the covenant of seisin, when used in a conveyance of land, delivered after the date when this code shall take effect, shall be considered as a covenant running with the land, whether such covenants have heretofore been so considered or not, unless a contrary intent shall be apparent from the conveyance.

WVC 36 - 4 - 17 §36-4-17. Construction of covenants.
The legal scope and effect of the covenants mentioned in this article, and the person or persons by and against whom such covenants may be enforced, shall be determined according to the rules of law applicable to such cases, and the plain intent and meaning of the parties.

WVC 36 - 4 - 18 §36-4-18. Recorded disclaimer of unlawful restrictions.
The clerk of the county commission shall execute, record and post in a prominent place in the county record room a document that disclaims the validity and enforceability of certain restrictions and covenants in deeds. The document shall contain a disclaimer in substantially the following form:

"Except as provided in section eight, article eleven-a, chapter five of the Code of West Virginia, it is the law of this state that certain covenants or restrictions that are based on race, color, religion, ancestry, sex, familial status, blindness, handicap or national origin are invalid and unenforceable. If an invalid covenant or restriction is contained in a document that is recorded in this county, the invalid covenant or restriction is void notwithstanding its recordation."

WVC 36 - 4 - 19 §36-4-19. Solar energy covenants unenforceable; penalty.

          (a) It is the policy of the state to promote and encourage the residential and commercial use of solar energy systems and to remove obstacles thereto to promote energy efficiency and pollution reduction. Therefore, any covenant, restriction, or condition contained in any governing document of a housing association executed or recorded after the effective date of this section that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable: Provided, That a housing association may, by vote of its members, establish or remove a restriction that prohibits or restricts the installation or use of a solar energy system.

          (b) For the purposes of this section:

          (1) "Solar energy system" means a system affixed to a building or buildings that uses solar devices, which are thermally isolated from living space or any other area where the energy is used, to provide for the collection, storage, or distribution of solar energy; and

          (2) "reasonable restriction" means those restrictions that do not effectually result in a prohibition of their use by eliminating the system's energy conservation benefits or economic practicality.

          (c) This section does not apply to provisions that impose reasonable restrictions on solar energy systems including restrictions for historical preservation, architectural significance, religious or cultural importance to a given community. Nothing in this section precludes the regulation of solar energy systems by state and local authorities which may establish land use, health and safety standards. Nothing in this section precludes housing associations from restricting or limiting the installation of solar energy systems installed in common areas and common structures.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
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