H. B. 4651
(By Delegates Manypenny, (By Request)
Fleischauer, Hamilton, Hunt, Beach
and Martin)
[Introduced February 22, 2010
; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business then the Judiciary.]
A BILL to amend and reenact §11A-3-19 and §11A-3-21 of the Code of
West Virginia, 1931, as amended; to amend said code by adding
thereto a new section, designated §11A-3-23a; to amend and
reenact §11A-3-52 and §11A-3-54 of said code; and to amend
said code by adding thereto a new section, designated
§11A-3-58a, all relating to permitting surface owners to
purchase the mineral interests that lay below the property
when the mineral interest becomes subject to a tax lien;
establishing the purchase price to be twice the amount owed by
the mineral interest owner; setting forth the procedure for
clerks and deputy commissioners; establishing a nonrefundable
$20 administrative fee to be paid by surface owners; providing
a procedure if more than one surface owner desires to purchase
the delinquent mineral interest; and modifying notices to
redeem that are sent to property owners identifying the
additional rights available to surface owners.
Be it enacted by the Legislature of West Virginia:
That §11A-3-19 and §11A-3-21 of the Code of West Virginia,
1931, as amended, be amended and reenacted; that said code be
amended by adding thereto a new section, designated §11A-3-23a;
that §11A-3-52 and §11A-3-54 of said code be amended and reenacted;
and that said code be amended by adding thereto a new section,
designated §11A-3-58a, all to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-19. What purchaser must do before he or she can secure
deed.
(a) At any time after October 31 of the year following the
sheriff's sale, and on or before December 31, of the same year, the
purchaser, his or her heirs or assigns, in order to secure a deed
for the real estate subject to the tax lien or liens purchased,
shall: (1) Prepare a list of those to be served with notice to
redeem and request the clerk to prepare and serve the notice as
provided in sections twenty-one and twenty-two of this article; (2)
provide the clerk with a list of any additional expenses incurred
after January 1, of the year following the sheriff's sale for the
preparation of the list of those to be served with notice to redeem
including proof of the additional expenses in the form of receipts
or other evidence of reasonable legal expenses incurred for the
services of any attorney who has performed an examination of the
title to the real estate and rendered a written opinion and certification thereon; (3) deposit, or offer to deposit, with the
clerk a sum sufficient to cover the costs of preparing and serving
the notice; and (4) present the purchaser's certificate of sale, or
order of the county commission where the certificate has been lost
or wrongfully withheld from the owner, to the clerk of the county
commission.
For an interest in real estate subject to the tax lien
or liens that includes minerals but does not include an interest in
the surface, other than an interest for the purpose of developing
the minerals, the list shall include the last known name and
mailing address of the taxpayer to which the sheriff is required to
send a tax ticket pursuant to section eight, article one of this
chapter for all tracts of surface property shown on the tax maps
provided in subsection (e), section seven, article one-c, chapter
eleven of this code to lie above the mineral tract subject to the
tax lien or liens purchased. For failure to meet these
requirements, the purchaser shall lose all the benefits of his or
her purchase.
No deed to a bona fide purchaser for value from a
purchaser or a surface owner substituted for a purchaser may be set
aside for failure of the purchaser to comply with this subsection,
but this limitation does not affect other remedies at law, if any.
(b) If the person requesting preparation and service of the
notice is an assignee of the purchaser, he or she shall, at the
time of the request, file with the clerk a written assignment to
him or her of the purchaser's rights, executed, acknowledged and
certified in the manner required to make a valid deed.
(c) Whenever any certificate given by the sheriff for a tax
lien on any land, or interest in the land sold for delinquent
taxes, or any assignment of the lien is lost or wrongfully withheld
from the rightful owner of the land and the land or interest has
not been redeemed, the county commission may receive evidence of
the loss or wrongful detention and, upon satisfactory proof of that
fact, may cause a certificate of the proof and finding, properly
attested by the county clerk under the seal of the county, to be
delivered to the rightful claimant, and a record of the certificate
shall be duly made by the county clerk in the recorded proceedings
of the commission.
§11A-3-21. Notice to redeem.
Whenever the provisions of section nineteen of this article
have been complied with, the clerk of the county commission shall
prepare a notice in form or effect as follows:
To ___________________________________.
You will take notice that _______________, the purchaser (or
_____________, the assignee, heir or devisee of _______________, the
purchaser) of the tax lien(s) on the following real estate,
__________________, (here describe the real estate for which the tax
lien(s) thereon were sold) located in ___________________, (here
name the city, town or village in which the real estate is situated
or, if not within a city, town or village, give the district and a
general description) which was returned delinquent in the name of
________________, and for which the tax lien(s) thereon was sold by the sheriff of ____________________ County at the sale for
delinquent taxes made on the _______________ day of _____________,
19 20____, has requested that you be notified that a deed for such
real estate will be made to him
or her on or after April 1,
19
20____, provided by law, unless before that day you redeem such real
estate. The amount you will have to pay to redeem on the last day,
March 31, will be as follows:
Amount equal to the taxes, interest, and charges due on the
date of sale, with interest to March 31,
19 20 ........$__________
Amount of subsequent years taxes paid on the property, since
the sale, with interest to March 31,
19 20____ ........ $___________
Amount paid for title examination and preparation of list of
those to be served, and for preparation and service of the notice
with interest from January 1,
19 20 (insert year) following the
sheriff's sale to March 31,
19 20____ ........ $__________
Amount paid for other statutory costs (describe)
_____________________ ........ $___________
Total ................. $_____________
You may redeem at any time before March 31,
19 20__, by paying
the above total less any unearned interest.
Note: If you are receiving this notice because you are the
owner of an interest in the surface overlaying a mineral interest
which was returned delinquent, you may pay the clerk twice the
amount identified above, a $20 administrative fee, before March 1,
20___. If you do so and the property is redeemed, the amount you paid, less the administrative fee, will be refunded. If you do so
and the property is not redeemed, then you will be substituted for
the purchaser of the tax lien and may proceed to obtain a deed for
the property. If you do so and if one or more additional surface
owners do so, then the surface owners must submit, by April 7,
20___, an agreement dividing the real estate according to their
proportionate share or any other method or formula agreed to among
all of you. If an agreement is not filed, the clerk shall refund
the moneys tendered by the surface owners, less the administrative
fees, and the original purchaser will be returned to his or her
original rights and duties.
Given under my hand this ______ day of _______________,19
20____.
_________________________________________
Clerk of the county commission
of ___________________ County,
State of West Virginia
The clerk for his or her service in preparing the notice shall
receive a fee of $5 for the original and $1 for each copy required.
Any additional costs which must be expended for publication, or
service of the notice in the manner provided for serving process
commencing a civil action, or for service of process by certified
mail, shall be charged by the clerk. All costs provided by this
section shall be included as redemption costs and included in the notice described in this section.
§11A-3-23a. Surface owner substitution for purchaser.
(a) If the real estate interest subject to the tax lien is an
interest in real estate that includes minerals but does not include
an interest in the surface, other than an interest for the purpose
of developing the minerals, then prior to March 31 of the year
following the sale an owner of record of the surface laying above
the real estate interest subject to the tax lien real estate being
sold may pay the clerk twice the amount that would be required for
redemption pursuant to section twenty-three of this article, plus
an administrative fee of $20. The clerk shall issue the surface
owner a certificate of substitution and send a copy to the
purchaser. If more than one surface owner of record applies to pay
the clerk, the clerk shall accept payment from each surface owner
of record and issue each a certificate of substitution for each and
send copies of the certificates of substitution to each other in
addition to the purchaser.
(b) If the property is redeemed, the clerk shall refund the
moneys paid, less the administrative fees.
(c) If the property is not timely redeemed, and if only one
surface owner has received a certificate of substitution, then the
clerk shall send the amount paid by the surface owner to the
purchaser, keep the $20 administrative fee, and record the
certificate of substitution, and the surface owner is substituted
to the full rights and duties of the purchaser.
(d) If more than one surface owner pays in, then no deed may
be issued before April 15 of the year following the sale and the
surface owners must submit an agreement dividing the real estate
according to the proportion their interests bear to each other by
April 15 of the year following the sale of the lien. The interest
of an owner of a surface tract shall be equal to the acreage stated
on documents of record even if the owner only owns an undivided
interest. However, if more than one owner of an undivided interest
pays in, his or her proportion shall be the total acreage of the
undivided tract divided by the number of owners of the tract who pay
in. If no agreement is filed, then the clerk shall refund the
moneys paid to the surface owners, except for the $20 administrative
fees, and the original purchaser is returned to his or her original
position. If an agreement is filed, then the clerk shall make an
amended certificate showing the division according to their
respective interests and divide any remaining moneys paid by all
surface owners according to their agreed interest and return it to
them.
§11A-3-52. What purchaser must do before he or she can secure a
deed.
(a) Within forty-five days following the approval of the sale
by the Auditor pursuant to section fifty-one of this article, the
purchaser, his or her heirs or assigns, in order to secure a deed
for the real estate purchased, shall: (1) Prepare a list of those
to be served with notice to redeem and request the deputy commissioner to prepare and serve the notice as provided in sections
fifty-four and fifty-five of this article; and (2) deposit, or offer
to deposit, with the deputy commissioner a sum sufficient to cover
the costs of preparing and serving the notice. For failure to meet
these requirements, the purchaser shall lose all the benefits of his
or her purchase. The deputy commissioner may then sell the property
in the same manner as he or she sells lands which have been offered
for sale at public auction but which remain unsold after such
auction, as provided in section forty-eight of this article. For
an interest in real estate subject to the tax lien or liens that
includes minerals but does not include an interest in the surface,
except an interest for the purpose of developing the minerals, the
list shall include the last known name and mailing address of the
taxpayer to which the sheriff is required to send a tax ticket
pursuant to section eight, article one of this chapter for all
tracts of surface property shown on the tax maps, provided in
subsection (e), section seven, article one-c, chapter eleven of this
code, that lie above the mineral tract subject to the tax lien or
liens purchased. No deed to a bona fide purchaser for value from
a purchaser or a surface owner substituted for a purchaser may be
set aside for failure of the purchaser to comply with this
subsection, but this limitation does not affect other remedies at
law, if any.
(b) If the person requesting preparation and service of the
notice is an assignee of the purchaser, he or she shall, at the time of the request, file with the deputy commissioner a written
assignment to him or her of the purchaser's rights, executed,
acknowledged and certified in the manner required to make a valid
deed.
§11A-3-54. Notice to redeem.
Whenever the provisions of section fifty-two of this article
have been complied with, the deputy commissioner shall thereupon
prepare a notice in form or effect as follows:
To _____________________________________
You will take notice that ___________________, the purchaser
(or _____________, the assignee, heir or devisee of ____________,
the purchaser) of the following real estate, ___________________,
(here describe the real estate sold) located in ________________,
(here name the city, town or village in which the real estate is
situated or, if not within a city, town or village, give the
district and a general description) which was __________________
(here put whether the property was returned delinquent or
nonentered) in the name of __________________, and was sold by the
deputy commissioner of delinquent and nonentered lands of
_________________ County at the sale for delinquent taxes (or
nonentry) on the ______ day of _________________, 19 20____, has
requested that you be notified that a deed for such real estate will
be made to him or her on or after the ______ day of _____________,
19 20____, as provided by law, unless before that day you redeem
such real estate. The amount you will have to pay to redeem on the ________ day of __________________,19 20__ will be as follows:
Amount equal to the taxes, interest and charges due on the date
of sale, with interest to ______________ .........$_________
Amount of taxes paid on the property, since the sale, with
interest to _______________ ..........$_________
Amount paid for title examination and preparation of list of
those to be served, and for preparation and service of the notice
with interest to ______________ ..........$_________
Amount paid for other statutory costs (describe)
_________________________________________________________________
_________________................... $_________
Total ......................... $_________
You may redeem at any time before _________________ by paying
the above total less any unearned interest.
Note: If you are receiving this notice because you are the
owner of an interest in the surface overlaying a mineral interest
which was returned delinquent, you may pay the deputy commissioner
twice the amount identified above, plus a $20 administrative fee,
before the above date. If you do so and the property is redeemed,
the amount you paid, less the administrative fee, will be refunded.
If you do so and the property is not redeemed, then you will be
substituted for the purchaser of the tax lien and may proceed to
obtain a deed for the property. If you do so and if one or more
additional surface owners do so, then the surface owners must submit
an agreement dividing the property according to their proportionate shares. If an agreement is not filed, the deputy commissioner shall
refund the moneys tendered by the surface owners, less the
administrative fees, and the original purchaser will be returned to
his or her original rights and duties.
Given under my hand this ________ day of __________________,
19 20_____.
_________________________________
Deputy Commissioner of Delinquent
and Nonentered Lands
______________________ County,
State of West Virginia
The deputy commissioner for his or her service in preparing the
notice shall receive a fee of $10 for the original and $2 for each
copy required. Any costs which must be expended in addition thereto
for publication, or service of such notice in the manner provided
for serving process commencing a civil action, or for service of
process by certified mail, shall be charged by the deputy
commissioner. All costs provided by this section shall be included
as redemption costs and included in the notice described herein.
§11A-3-58a. Surface owner substitution for purchaser.
(a) If the real estate interest subject to the tax lien is an
interest in real estate that includes minerals but does not include
an interest in the surface, other than an interest for the purpose
of developing the minerals, then within thirty days after notices
to redeem have been personally served, or an attempt of personal service has been made, or such notices have been mailed or, if
necessary, published in accordance with the provisions of section
fifty-five of this article, following the deputy commissioner's
sale, an owner of record of the surface laying above the real
estate interest subject to the tax lien real estate being sold may
pay to the deputy commissioner twice the amount that would be
required for redemption. The deputy commissioner shall issue the
surface owner a certificate of substitution, and send a copy to the
purchaser. If more than one surface owner of record applies to pay
the deputy commissioner, the deputy commissioner shall accept
payment from each surface owner of record and issue each a
certificate of substitution for each and send copies of the
certificates of substitution to each other in addition to the
purchaser.
(b) If the property is redeemed, the deputy commissioner shall
refund the moneys paid, less the administrative fees.
(c) If the property is not timely redeemed, and if only one
surface owner has received a certificate of substitution, then the
deputy commissioner shall send the amount paid by the surface owner
to the purchaser and record the certificate of substitution,
whereupon the surface owner is substituted to the full rights and
duties of the purchaser.
If more than one surface owner submits payment, before an
additional fifteen days, the surface owners must submit an agreement
dividing the real estate according to their proportionate share. The interest of an owner of a surface tract shall be equal to the
acreage stated on documents of record even if the owner only owns
an undivided interest. However, if more than one owner of an
undivided interest submits payment, their proportionate shares are
the total acreage of the undivided tract divided by the number of
owners of the tract who pay in. If no agreement is filed, then the
deputy commissioner shall refund their moneys, less the
administrative fees, and the original purchaser is returned to his
or her original position. If an agreement is filed, then the deputy
commissioner shall make an amended certificate showing the division
according to their interests, the deputy commissioner shall send the
purchaser twice the amount required for redemption, and divide the
remaining money paid by all surface owners according to their agreed
interests.
NOTE: The purpose of this bill is to permit surface owners to
purchase the mineral interests that lay below the property when the
mineral interest becomes subject to a tax lien. The bill provides
that the price to substitute the surface owner for the tax lien
purchaser would be twice the amount owed by the mineral interest
owner. The bill sets forth the procedure for clerks and deputy
commissioners and establishes a nonrefundable $20 administrative fee
to be paid by surface owners. The bill provides a procedure if more
than one surface owner desires to purchase the delinquent mineral
interest. The bill modifies the notices to redeem that are sent to
property owners by identifying the additional rights available to
surface owners.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§11A-3-23a and §11A-3-58a are new; therefore, they have been
completely underscored.