Senate Bill No. 442
(By Senators Kessler and Minard)
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[Introduced February 4, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §11A-3-27 and §11A-3-28 of the code of
West Virginia, 1931, as amended, all relating to conforming
the county clerk's fees to be paid in the subject statutes to
the fees prescribed in the general fee statute in §59-1-10.
Be it enacted by the Legislature of West Virginia:
That §11A-3-27 and §11A-3-28 of the code of West Virginia,
1931, as amended, [BE AMENDED AND REENACTED]be amended and reenacted, all to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-27. Deed to purchaser; record.
If the real estate described in the notice is not redeemed
within the time specified therein, but in no event prior to the
first day of April of the second year following the sheriff's sale,
the person entitled thereto shall thereafter, but prior to the
expiration of the lien evidenced by a tax certificate of sale issued by a sheriff for such real estate as provided in section
eighteen of this article, 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 in form or
effect as follows:
This deed made this _________ day of _____________,
19 20___,
by and between _________________, clerk of the county commission of
______________________ County, 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
19 20_____, sell the
tax lien(s) on real estate, hereinafter mentioned and described,
for the taxes delinquent thereon for the year (or years)
19
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 clerk of the county commission 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: __________________________
Clerk of the County Commission of ___________________ County.
Except when ordered to do so, as provided in section
twenty-eight of this article, no clerk of the county commission may
execute and deliver such a deed more than thirty days after the
person entitled to the deed delivers the same and requests the
execution thereof. Upon the clerk's determination that the deed
presented substantially complies with the requirements of this
section, the clerk shall execute the deed and acknowledge the same,
record the deed in the clerk's office and deliver the original thereof to the purchaser.
For the execution of the deed and for all the recording
required by this section,
a fee of seven dollars and fifty cents
that fee as may be prescribed under chapter fifty-a, article three,
section ten of the code and the recording 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 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.
§11A-3-28. Compelling service of notice or execution of deed.
If the clerk of the county commission 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
such 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 clerk to prepare and serve the notice or
appointing a commissioner to do so. If the person requesting the
notice fails to make such application within the time allowed, he
or she shall lose his
or her right to the notice, but his
or her
rights against the clerk 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.
If the clerk fails or refuses to execute the deed as required
in section twenty-seven of this article, the person requesting the
deed may, at any time after such failure or refusal, 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 clerk to execute the deed or appointing a
commissioner to do so. If the person requesting the deed fails to
make such application within the time allowed, he
or she shall lose
his
or her right to the deed, but his
or her rights against the
clerk 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 clerk within the time specified in
the preceding section.
Ten days' written notice of every such application must be
given to the clerk. If, upon the hearing of such 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 such 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 such a
deposit has already been made with the clerk of the county
commission, an order shall be made by the court or judge directing
the clerk 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 clerk 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.
Any commissioner appointed under the provisions of this
section shall be subject to the same liabilities as are provided
for the clerk. For the preparation of the notice to redeem, he
or
she shall be entitled to the same fee as is provided for the clerk.
For the execution of the deed, he
or she shall also be entitled to
a fee of seven dollars and fifty cents that fee as may be
prescribed under chapter fifty-a, article three, section ten of the
code and the recording expenses, to be paid by the grantee upon
delivery of the deed.
NOTE: The purpose of this bill is to create consistency in
the fee amounts charged by the clerk of the county commission, and
to arrive at a single statute to which referral might be made in
determining the correct fee to charge in each instance.
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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