ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2793
(By Delegates Staton, Fleischauer and Trump
)
[Passed April 12, 1997; in effect ninety days from passage.]
AN ACT to amend and reenact section five, article two, chapter
fifty-five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to limitation of
actions and suits for liens reserved by any conveyance of real
estate or created by any trust deed or mortgage on real
estate; changing the expiration of any such lien obligation
where the final maturity date is ascertainable; providing an
expiration for any lien obligation where the final maturity
date is not ascertainable; providing certain exceptions
thereto; changing the expiration of any affidavit or extension
agreement of such a lien obligation where the final maturity
date is ascertainable; providing an expiration for any
affidavit or extension agreement of such a lien obligation
where the final maturity date is not ascertainable; providing requirements for future affidavits or extension agreements
filed and method of recordation by the clerk of the county
commission; providing that where a lien instrument secures an
obligation in installments the time runs from the date of the
final installment; providing a grace period for enforcement or
recordation of liens reserved or created and in effect on the
effective date; providing that the time shall be extended only
as provided in this section; and providing that this section
applies to all such liens, existing and hereafter reserved or
created.
Be it enacted by the Legislature of West Virginia:
That section five, article two, chapter fifty-five of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. LIMITATION OF ACTIONS AND SUITS.
§55-2-5. Enforcement of liens reserved by conveyance or created by deed of trust or mortgage on real estate.
(a) Any lien reserved by any conveyance of real estate or
created by any deed of trust or mortgage on real estate expires
after the following periods of time, unless suit to enforce the
lien is instituted prior to expiration of the time period or unless
the lien is extended as specified in subsections (b) or (e) of this
section:
(1) If the final maturity date of the lien obligation is ascertainable from the record instrument, the lien expires five
years after that date.
(2) If the final maturity date of the lien obligation is not
ascertainable from the record instrument, the lien expires thirty- five years after the date of the lien instrument. However, if the
lienholder rerecords the lien instrument prior to thirty-five years
from the date of the lien and includes a copy of the obligation
secured by the lien so that the final maturity is ascertainable,
the lien expires five years after the date of maturity.
(b) If an affidavit or extension agreement executed by the
secured party and the grantor or mortgagor to the lien obligation
is recorded prior to expiration of the original period of
limitation, as specified in subsection (a) of this section, the
time is extended as follows:
(1) If the final maturity date of the lien obligation, as
extended, secured by the lien is ascertainable from the record of
the affidavit or extension agreement, the lien expires five years
after the date of final maturity of the obligation, as extended.
(2) If the final maturity date of the lien obligation, as
extended, secured by the lien is not ascertainable from the record
of the affidavit or extension agreement, the lien expires thirty- five years after the date of the lien instrument. However, if the
lienholder rerecords the lien instrument prior to thirty-five years
from the date of the lien and includes a copy of the obligation
secured by the lien so that the final maturity is ascertainable, the lien expires five years after the date of maturity.
(c) Any affidavit or extension agreement filed pursuant to
subsection (b) of this section after the effective date of this
section, shall include, but is not limited to, the following:
(1) The unpaid balance of the debt and interest secured by
the lien instrument;
(2) The final maturity date of the obligation of the lien, as
extended; and
(3) The book and page of recordation of the original lien
instrument.
The clerk of the county commission shall record and index any
affidavit or extension agreement in the same manner as the original
lien instrument and note that filing on the margin of the page
where the original lien instrument is recorded.
(d) If the record instrument of the lien obligation shows
that it secures an obligation payable in installments and the
maturity date of the final installment of the obligation is
ascertainable from the lien instrument, the time runs from the
maturity date of the final installment.
(e) Nothing in this section extinguishes any lien obligation
which was reserved or created and in effect prior to the effective
date of this section:
Provided, That if any such lien should be
extinguished by this section, then any action to enforce such lien
shall be brought or recordation of any extended lien obligation pursuant to subsection (b) of this section shall be made before the
first day of July, one thousand nine hundred ninety-eight.
(f) The time shall be extended only as provided in this
section and shall not be extended by any other method or by
operation of law.
(g) Subject to the provisions of subsection (e) of this
section, the provisions of this section apply with like effect to
every such lien now existing as well as to every such lien
hereafter reserved or created.
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