HB 2848 Text

H. B. 2848

          (By Delegate Boggs, Swartzmiller, Ferro,
           Caputo, D, Poling.)
          (By Request of the State Auditor)
          [Introduced March 6, 2013; referred to the
          Committee on the Judiciary then Finance.]

A BILL to amend and reenact §11A-3-18, §11A-3-27, and §11A-3-28 of the Code of the West Virginia, 1931, as amended, all relating generally to the sale of tax liens and nonentered, escheated and waste and unappropriated lands; providing the process for requesting a refund after forfeiture of rights to a tax deed; clarifying deadlines for receipt of tax deeds and refunds related to failure to meet deadlines; providing procedure for petitioning to compel execution of a deed by the State Auditor; removing the provisions allowing judgment against the State Auditor for costs in the case of failure or refusal to execute a deed without reasonable cause.
Be it enacted by the Legislature of West Virginia:
     That §11A-3-18, §11A-3-27, and §11A-3-28 of the Code of the West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE AND UNAPPROPRIATED LANDS.
§11A-3-18. Limitations on tax certificates.
  (a) No lien upon real property evidenced by a tax certificate of sale issued by a sheriff on account of any delinquent property taxes may remain a lien on the real property for a period longer than eighteen months after the original issuance of the tax certificate of sale.
  (b) All rights of a purchaser to a tax deed shall be considered forfeited and expired and no tax deed is to be issued on any tax sale evidenced by a tax certificate of sale where the certificate has ceased to be a lien pursuant to the provisions of this section and application for the tax deed, pursuant to the provisions of section twenty-seven of this article, is not pending at the time of the expiration of the limitation period provided in this section.
  (c) Whenever a lien evidenced by a tax certificate of sale has expired by reason of the provisions of this section, the State Auditor shall immediately issue and record a certificate of cancellation describing the real estate included in the certificate of purchase or tax certificate and giving the date of cancellation and the State Auditor shall also make proper entries in his or her records. The State Auditor shall also present a copy of every certificate of cancellation to the sheriff who shall enter it in the sheriff's records and the certificate and the record are prima facie evidence of the cancellation of the certificate of sale and of the release of the lien of the certificate on the lands described in the certificate. Failure to record the certificate of cancellation does not extend the lien evidenced by the certificate of sale. The sheriff and State Auditor are not entitled to any fees for the issuing of the certificate of cancellation nor for the entries in their books made under the provisions of this subsection.
  (d) Whenever a purchaser has complied with the notice requirements provided in section nineteen of this article, but has failed to request a deed within the eighteen month deadline provided in this section, thereby forfeiting all rights to a tax deed, the purchaser may within thirty days of the expiration of the lien, request a refund of the amounts paid in excess of the taxes owed and expenses incurred in the processing of the tax lien: Provided, That the purchaser shall only be entitled to a refund upon proof of compliance with the requirements of section nineteen of this article.
§11A-3-27. Deed to purchaser; record.
  (a) If the real estate described in the notice is not redeemed within the time specified in the notice, then ~~from~~ between April 1 of the second year following the sheriff's sale and ~~until~~ the expiration of the lien evidenced by a tax certificate of sale ~~issued by a sheriff for the real estate~~ as provided in section eighteen of this article, the State Auditor or his or her deputy shall upon request of the purchaser make and deliver to the clerk of the county commission ~~subject to the provisions of section eighteen of this article~~, a quitclaim deed for the real estate: Provided, That the purchaser's right to a tax deed shall be considered forfeited if the deed is not requested within the eighteen month period set forth in section eighteen. The deed shall provide in form or effect as follows:
  This deed made this _______ day of _____________, 20 _____, by and between _________________, State Auditor, West Virginia, (or by and between _______________, a commissioner appointed by the circuit court of ______________ County, West Virginia) grantor, and _____________, purchaser, (or __________________, heir, devisee or assignee of _______________________, purchaser), grantee, witnesseth, that:
  Whereas, In pursuance of the statutes in such case made and provided, _________________, Sheriff of ____________ County, (or ______________, deputy for ______________, Sheriff of ___________ County), (or ______________, collector of ______________ County), did, in the month of ____________, in the year 20 _____, sell the tax lien(s) on real estate, hereinafter mentioned and described, for the taxes delinquent thereon for the year (or years) 20 _____, and ______________, (here insert name of purchaser) for the sum of $___________, that being the amount of purchase money paid to the sheriff, did become the purchaser of the tax lien(s) on such real estate (or on ________ acres, part of the tract or land, or on an undivided _____________ interest in such real estate) which was returned delinquent in the name of ___________________; and
  Whereas, The State Auditor has caused the notice to redeem to be served on all persons required by law to be served therewith; and
  Whereas, The tax lien(s) on the real estate so purchased has not been redeemed in the manner provided by law and the time for redemption set in such notice has expired;
  Now, therefore, the grantor, for and in consideration of the premises and in pursuance of the statutes, doth grant unto ______________, grantee, his or her heirs and assigns forever, the real estate on which the tax lien(s) so purchased existed, situate in the county of _____________________, bounded and described as follows: ______________________________
  Witness the following signature: __________________________
   State Auditor.
  (b) ~~Except when ordered to do so, as provided in section twenty-eight of this article,~~ The State Auditor may not execute and deliver a deed more than sixty days after the person entitled to the deed delivers the same and requests the execution of the deed, except pursuant to the provisions of section twenty-eight of this article.
  (c) For the execution of the deed and for all the recording required by this section, a fee of $50 and the recording and transfer tax expenses shall be charged, to be paid by the grantee upon delivery of the deed. The deed, when duly acknowledged or proven, shall be recorded by the clerk of the county commission in the deed book in the clerk's office, together with any assignment from the purchaser, if one was made, the notice to redeem, the return of service of the notice, the affidavit of publication, if the notice was served by publication, and any return receipts for notices sent by certified mail.
  (d) The State Auditor shall appoint employees of his or her office to act as his or her designee to effect the purposes of this section.
§11A-3-28. Compelling service of notice or execution of deed.
  (a) If the State Auditor fails or refuses to prepare and serve the notice to redeem as required in sections twenty-one and twenty- two of this article, the person requesting the notice may, at any time within two weeks after discovery of the failure or refusal, but in no event later than sixty days following the date the person requested that notice be prepared and served, apply by petition to the circuit court of the county for an order compelling the State Auditor to prepare and serve the notice or appointing a commissioner to do so. If the person requesting the notice fails to make application within the time allowed, he or she shall lose his or her right to the notice, but his or her rights against the State Auditor under the provisions of section sixty-seven of this article shall not be affected. Notice given pursuant to an order of the court or judge shall be as valid for all purposes as if given within the time required by section twenty-two of this article.
  (b) If the State Auditor fails or refuses to execute the deed as to a purchaser who has complied with the deadline required in section twenty-seven of this article, the person requesting the deed may, at any time after such failure or refusal upon proof of compliance with the limitations period set forth in section twenty- seven of this article, but not more than six months after his or her right to the deed accrued, apply by petition to the circuit court of the county for an order compelling the State Auditor to execute the deed or appointing a commissioner to do so. If the person requesting the deed fails to prove compliance with the limitations period set forth in section twenty-seven of this article or fails to make an application within the time allowed, he or she shall lose his or her right to the deed. ~~but his or her rights against the State Auditor under the provisions of section sixty-seven of this article shall not be affected.~~ Any deed executed pursuant to an order of the court or judge shall have the same force and effect as if executed and delivered by the State Auditor within the time specified in section twenty-seven of this article.
  (c) Ten days' written notice of every application must be given to the State Auditor. If, upon the hearing of the application, the court or judge is of the opinion that the applicant is not entitled to the notice or deed requested, the petition shall be dismissed at his or her costs; but if the court or judge is of the opinion that he or she is entitled to the notice or deed, then, upon his or her deposit with the clerk of the circuit court of a sum sufficient to cover the costs of preparing and serving the notice, unless a deposit has already been made with the State Auditor, an order shall be made by the court or judge directing the State Auditor to prepare and serve the notice or execute the deed, or appointing a commissioner for the purpose, as the court or judge shall determine. If it appears to the court or judge that the failure or refusal of the State Auditor was without reasonable cause, judgment shall be given against him or her for the costs of the proceedings; otherwise the costs shall be paid by the applicant.
  (d) Any commissioner appointed under the provisions of this section shall be subject to the same liabilities as are provided for the State Auditor. For the preparation of the notice to redeem, he or she shall be entitled to the same fee as is provided for the State Auditor. For the execution of the deed, he or she shall also be entitled to a fee of $50 and the recording and transfer expenses, to be paid by the grantee upon delivery of the deed.


  NOTE: The purpose of this bill is to provide the process for requesting a refund after forfeiture of rights to a tax deed; to clarify deadlines for receipt of tax deeds and refunds related to failure to meet deadlines; to provide the procedure for petitioning to compel execution of a deed by the State Auditor; and to remove the provisions allowing judgment against the State Auditor for costs in the case of failure or refusal to execute a deed without reasonable cause.


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

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