H. B. 3229
(By Delegate Palumbo)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §38-14-4 and §38-14-5 of the Code of
West Virginia, 1931, as amended, all relating to self-service
storage liens; late fees and enforcement.
Be it enacted by the Legislature of West Virginia:
That §38-14-4 and §38-14-5 of the Code of West Virginia, 1931,
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
dollars or
ten twenty percent of the monthly rental fee, whichever
is greater, for each month the occupant defaults for a period of
fifteen 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 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 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 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 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 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 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.
NOTE: The purpose of this bill is to increase default late
fees and shorten the period given to an occupant to cure a default
before an owner may enforce a lien for self-service storage
facilities.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.