WEST virginia legislature
2019 regular session
Introduced
House Bill 2761
By Delegate Westfall
[Introduced January 30, 2019; Referred
to the Committee on the Judiciary.]
A BILL to amend and reenact §38-14-2, §38-14-3, §38-14-4, §38-14-5, §38-14-7, §38-14-8, and §38-14-9 of the Code of West Virginia, 1931, as amended, all relating to modernizing the self-service storage lien law; modifying late fees; re-defining certain terms; providing modern methods of satisfying a self-service storage lien; and providing a new effective date.
Be it enacted by the Legislature of West Virginia:
ARTICLE 14. 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 by the occupant to perform on time any obligation or duty set forth in the rental agreement or this article;
(2) "Late fee" means a fee or charge assessed
for a default;
(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 entitled to the
use of a leased space at a self-service storage facility under a rental
agreement, or the person's sublessee, successor or assign;
(5) "Owner" means the owner, operator, lessor
or sublessor of a self-service storage facility or 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) "Primary address" means that address
provided by the occupant in the rental agreement or the address provided by the
occupant in a subsequent notice of a change of address;
(8) "Rental agreement" means any agreement or
lease that establishes or modifies the terms, conditions or rules concerning
the lawful and reasonable use and occupancy of a self-service storage facility;
(9) "Secondary address" means any address
provided on the rental agreement and is in addition to the primary address;
(10) "Self-service storage facility" means
any real property 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; and
(11) "Self-service storage lien" means a lien
imposed on the personal property of an occupant by the owner of a self-service
storage facility
(2) “Last known address” means that address or electronic mail address provided by the occupant in the rental agreement or the address or electronic mail 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 storage facility which is rented to an occupant pursuant to a rental agreement;
(4) “Occupant” means a person, a sublessee, successor, or assign, entitled to the use of a leased space at a self-service storage facility under a rental agreement;
(5) “Operator” means the owner, operator, lessor, or sublessor of a self-service storage facility, an agent, or any other person authorized to manage the facility. The operator is not a warehouseman, unless the operator issues a warehouse receipt, bill of lading, or other document of title for the personal property stored;
(6) “Personal property” means movable property, not affixed to land. Personal property includes goods, wares, merchandise, motor vehicles, trailer, watercraft, and household items and furnishings;
(7) “Rental agreement” means any written agreement that establishes or modifies the terms, conditions, or rules concerning the use and occupancy of leased space at a self-service storage facility;
(8) “Self-service storage facility” means any real property used for renting or leasing individual storage spaces in which the occupants themselves customarily store and remove their own personal property on a “self-service” basis; and
(9) “Verified mail” means any method of mailing that is offered by the United States Postal Service or private delivery service that provides evidence of mailing.
§38-14-3. Self-service storage lien.
(a) The owner operator has a self-service
storage lien on all personal property stored within each leased space for
agreed rent, labor, or late fees, and other charges and for
expenses reasonably incurred in its sale or destruction disposition
pursuant to this article. The self-service storage lien attaches as of
the date the personal property is stored within each leased space and remains a
lien until the occupant has satisfied the terms of the rental agreement.
(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
operator has a self-service storage lien on the vehicle or
watercraft so long as the motor vehicle or watercraft remains stored within the
leased space.
(c) The rental agreement must contain:
(1) A statement in bold type advising the occupant
of the existence of the self-service storage lien and that the personal
property stored within the leased space may be sold to satisfy the self-service
storage lien or destroyed if the value of the property would not reasonably
discharge the costs of the sale and self-service storage lien if the
occupant is in default;
(2) A space for a secondary address immediately
following the space provided for the primary address; and
(3) A statement that the occupant may not store
hazardous waste or contraband in the leased space.
(2) A statement advising the occupant that personal property stored in the leased space may be towed or removed from the self-service storage facility if the personal property is a motor vehicle, trailer, or watercraft and the occupant is in default for more than 60 days; and
(3) A statement advising the occupant that a sale of personal property stored in the leased space to satisfy the lien if the occupant is in default may be advertised:
(A) In a newspaper of general circulation in the jurisdiction where the sale is to be held or where the self-service storage facility is located;
(B) By electronic mail; or
(C) On an online website.
§38-14-4. Late fees.
The owner may charge a late fee not to exceed $10 or
ten $20 or 20 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) Proceed to enforce the self-service storage lien by
selling the contents of the occupant's unit at public 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 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 $1,000 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 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 thirty days prior to the
auction. At any time prior to the public 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 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 person conducting the public 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, street
address and 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 auction at a specified time and place which may
not be less than sixty 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 days from the date
of the service; and
(d) At any time prior to the public 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 $175 for incurred rental
fees, late fees and safekeeping of the property in addition to an amount not to
exceed $75 for notice and redeem only the personal property subject to the
lien.
(e)(1) Any owner who conducts a public auction pursuant
to this section may satisfy the self-service storage lien from the proceeds of
the public 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 auction;
(2) If an owner conducts a public auction pursuant to
this section, the owner's liability to a lienholder is limited to the proceeds
received at the public 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 auction.
(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 or municipality
in which the public auction is to be held not less than twenty days 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;
(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.
(a) (1) If the occupant is in default for a period of more than 60 days, the operator may enforce the lien by selling the personal property stored in the leased space at a public or private sale or dispose of the personal property if the operator 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 auction plus the amount of the self-service storage lien.
(2) Proceeds from the sale shall be applied to satisfy the lien, and any surplus shall be disbursed as provided in subsection (e) of this section.
(b) (1) Before conducting a sale under subsection (a) of this section, the operator shall, subject to paragraph (2) of this subsection, notify the occupant of the default by hand delivery, verified mail, or electronic mail at the occupant's last known address.
(2) (A) The operator may not notify the occupant of the default by electronic mail unless:
(i) The rental agreement specifies, in bold type, that notice may be given by electronic mail; and
(ii) The occupant provides the occupant’s initials next to the statement in the rental agreement specifying that notice of default may be given by electronic mail.
(B) If the operator notifies the occupant of the default by electronic mail at the occupant’s last known address and does not receive a response, return receipt, or a confirmation of delivery, the operator shall send the notice of default to the occupant by hand delivery or by verified mail to the occupant's last known postal address.
(3) The notice shall include:
(A) A statement that the contents of the occupant’s leased space are subject to the operator’s lien;
(B) A statement of the operator’s claim, indicating the charges due on the date of the notice, the amount of any additional charges which will become due before the date of sale, and the date those additional charges will become due;
(C) A demand for payment of the charges due within a specified time, not less than 14 days after the date that the notice was mailed;
(D) A statement that unless the claim is paid within the time stated, the contents of the occupant’s space will be sold at a specified time and place; and
(E) The name, street address, and telephone number of the operator, or his designated agent, whom the occupant may contact to respond to the notice.
(4) (A) Subject to paragraph (B) of this subdivision, at least three days before conducting a sale under this section, the operator shall advertise the time, place, and terms of the sale:
(i) In a newspaper of general circulation in the jurisdiction where the sale is to be held;
(ii) By electronic mail; or
(iii) On an online web site.
(B) The operator may not advertise the sale in the manner provided under subparagraph (ii) or (iii) of this paragraph unless the occupant provides the occupant's initials next to the statement in the rental agreement required under this article.
(c) The operator may dispose of the personal property if the operator has complied with subsection (b) of this section and the property has not been purchased.
(d) At any time before a sale under this section, the occupant may pay the amount necessary to satisfy the lien and redeem the occupant's personal property.
(e) A sale under this section shall be held at the self-service storage facility where the personal property is stored, on an online auction website, or at any other location reasonably determined by the operator.
(f)(1) If a sale is held under this section, the operator shall:
(A) Satisfy the lien from the proceeds of the sale; and
(B) Mail the balance, if any, by certified mail to the occupant or any other recorded lienholder at the last known address of the occupant or lienholder.
(2) (A) If the balance is returned to the operator after the operator mailed the balance in the manner required under paragraph (B), subdivision (1) of this subsection, the operator shall hold the balance for one year after the date of sale for delivery on demand to the occupant or any other recorded lienholder.
(B) After expiration of the one-year period, the balance is presumed abandoned.
(g) A purchaser in good faith of any personal property sold under this article takes the property free and clear of any rights of:
(1) Persons against whom the lien was valid; and
(2) Other lienholders.
(h) If the operator complies with the provisions of this article, the operator’s liability:
(1) To the occupant is limited to the net proceeds received from the sale of the personal property less the amount of the operator’s lien; and
(2) To other lienholders is limited to the net proceeds received from the sale of any personal property covered by that other lien less the amount of the operator’s lien.
(i) If an occupant is in default, the operator may deny the occupant access to the leased space.
(j)(1)(A) Notices sent to the operator shall be sent to the self-service storage facility where the occupant's personal property is stored by hand delivery or verified mail.
(B) Notices to the occupant shall be sent to the occupant at the occupant’s last known address.
(2) Notices shall be deemed delivered when:
(A) Deposited with the United States Postal Service or a private delivery service, properly addressed as provided in subsection (b) of this section, with postage prepaid; or
(B) Sent by electronic mail to the occupant's last known address.
(k)(1) If the occupant is in default for more than 60 days and the personal property stored in the leased space is a motor vehicle, trailer, or watercraft, the operator may have the personal property towed or removed from the self-service storage facility in lieu of a sale authorized under subsection (a) of this section.
(2) The operator is immune from civil liability for any damage to the personal property towed or removed from the self-service storage facility under subdivision (1) of this subsection that occurs after the person that undertakes the towing or removal of the personal property takes possession of the personal property.
(l) If a rental agreement specifies a limit on the value of personal property that may be stored in the occupant's leased space, the limit is the maximum value of the stored personal property.
(m) Nothing in this article impairs or affects the rights of the parties to create additional rights, duties, and obligations in and by virtue of the rental agreement.
§38-14-7. Duties; care, custody and control of property.
(a) The owner operator shall use reasonable
care in maintaining the self-service storage facility for the purposes of
storage of personal property. and may not offer to sell insurance to the
occupant to cover the owner's risk or lack of care
(b) Prior to the sale or destruction of personal
property pursuant to this section, the owner shall prepare a detailed inventory
of all personal property to be sold or destroyed and shall maintain the
inventory listing for a period of two years from the date of the sale or
destruction of the property. The occupant shall have access to the inventory
listing for the period during which it is maintained by the owner
(c) (b) 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.
(d) (c) An occupant may not use a
self-service storage facility for residential purposes.
(e) (d) An occupant may not store hazardous
waste or contraband in the leased space. An owner who discovers hazardous
waste or contraband in a leased space shall promptly notify the appropriate
law-enforcement agency and is authorized to deliver the hazardous waste or
contraband to the appropriate law-enforcement agency
§38-14-8. Savings clause.
All rental agreements entered into prior to July 1, 2001 2019, 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.
§38-14-9. Effective date and application of article.
The provisions of this article apply to all rental
agreements entered into or extended or renewed after July 1, 2001 2019.
NOTE: The purpose of this bill is to modernize the self-service storage lien law in West Virginia, re-define certain terms, and to provide an effective date for all rental agreements entered into or extended or renewed after July 1, 2019.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.