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CHAPTER
38 LIENS
ARTICLE
2 MECHANICS’ LIENS
38-2-1 Contractor Has a Lien
38-2-2 Subcontractor Has a Lien
38-2-3 Lien for Materials and Equipment
38-2-4 Lien for Materials or Equipment
38-2-5 Lien of Worker
38-2-6 Lien of Worker
38-2-6a Lien of Architect, Engineer
38-2-7 Discharge of Lien, Perfection of Lien
38-2-8 Notice of Claim, Recording
38-2-9 Notice of Claim, Subcontractor, Recording
38-2-10 Notice of Lien, Material and Equipment Supplier
38-2-11 Notice of Lien, Supplies Furnished to Contractor or
Subcontractor
38-2-12 Notice of Lien, Laborer
38-2-13 Notice of Lien, Laborer for Contractor or Subcontractor
38-2-14 Discharge of Lien, Failure to Give Notice
38-2-15 Service by Publication
38-2-16 One Contract
38-2-17 Priorities
38-2-18 Priority Among Lien Claimants
38-2-19 Demand for Itemized Account
38-2-20 Notice to Owner
38-2-21 Effect of Payments by Owner
38-2-22 Contracts to be Recorded with Bond, Effect
38-2-23 Failure to Record Contract and Bond, Effect
38-2-24 Bond Form
38-2-25 Property Outside City
38-2-26 Parties
38-2-27 Recordings
38-2-28 Proof of Sale, Effect
38-2-29 Multiple Improvements
38-2-30 Prevention of Performance
38-2-31 Lien of Worker Against Property of Corporation, Limitations
38-2-32 Discharge of Lien Against Corporation, Notice of Lien
38-2-33 Recording
38-2-34 Actions, Limitations, Intervention
38-2-35 Sale, Personal Judgment
38-2-36 Discharge of Lien, Deposit in Court, Hearing, Release,
Escrow, Action, Receiver
38-2-37 Order of Discharge, Costs
38-2-38 Executor, Administrator, Assignee
38-2-39 Public Projects, Payment Bond, No Lien
ARTICLE 12 RELEASE AND ASSIGNMENT OF LIENS
38-12-1 Satisfaction, Release
38-12-2 Release by Trustee
38-12-3 Release by Trustee, Publication of Notice
38-12-4 Form of Release
38-12-5 Partial Release
38-12-6 Release by Assignor, Liability
38-12-7 Personal Representative
38-12-8 Recording
38-12-9 Recording, Indexing
38-12-10 Action for Failure to Release
38-12-11 Discharge or Impairment
38-12-12 Satisfaction, Entry
38-12-13 Liability of Clerk
WEST
VIRGINIA CODE
CHAPTER 38 LIENS
ARTICLE 2 MECHANICS’ LIENS
38-2-1 Contractor Has a Lien
Every person, firm or corporation who erects, builds, constructs,
alters, removes or repairs any building or other structure,
or other improvement appurtenant to any such building or other
structure, or who alters or improves the real property whereon
the same stands, or to which it may have been removed, or
who provides services for any of the foregoing, under and
by virtue of a contract with the owner for such erection,
building, construction, alteration, removal or repair, either
for an agreed lump sum or upon any other basis of settlement
and payment, shall have a lien upon such building or other
structure or improvement appurtenant thereto, and upon the
interest of the owner thereof in the real property whereon
the same stands, or to which it may have been removed, to
secure the payment of such contract price or other compensation
therefore.
38-2-2 Subcontractor Has a Lien
Every person, firm or corporation who, under and by virtue
of a contract with such general contractor as is mentioned
in section one [s 38-2-1] of this article, or with a subcontractor
for a part of such work, either for an agreed contract price
or by day or by piece, or other basis of payment, shall furnish
any part of the materials, machinery or other necessary supplies
or equipment, or shall perform any labor, do any work or provide
any services necessary to the completion of any general contract,
such as is mentioned in section one of this article, shall
have such a lien for his or her compensation, as is provided
for in section one of this article.
8-2-3 Lien for Materials and Equipment
dEvery person, firm or corporation which shall furnish to
any owner, for use in the erection, construction, alteration,
repair or removal of any building or other structure or improvement
appurtenant thereto, any materials, machinery or other equipment
or supplies necessary to the completion of such building or
other structure or improvement, shall have such a lien for
his compensation as is mentioned in section one [s 38-2-1]
of this article.
38-2-4 Lien for Materials or Equipment
Every person, firm or corporation, which shall furnish to
any general contractor or to any subcontractor mentioned in
sections one and two [ss 38-2-1, 38-2-2] of this article,
any materials, machinery or other equipment or supplies necessary
to the completion of any building or other structure mentioned
in this article, or improvement appurtenant thereto, for use
in the erection, construction, repair or removal thereof,
by virtue of a contract between such general contractor or
subcontractor and the materialman or furnisher of machinery,
or other supplies or equipment necessary to the completion
of such general contract, shall have such a lien for his compensation
as is mentioned in section one of this article.
38-2-5
Lien of Worker
Every
workman, artisan, mechanic, laborer or other person who performs
any work or labor or provides any service in the erection,
construction, repair or removal of any building or other structure
or improvement appurtenant thereto, or who alters or improves
the real property whereon the same stands, or to which it
may have been removed, by virtue of a contract for such work
and labor directly with the owner thereof, shall have such
a lien for his or her compensation as is mentioned in section
one [s 38-2-1] of this article.
38-2-6
Lien of Worker
Every
workman, artisan, mechanic, laborer or other person who performs
any work or labor or provides any service under the employment
of any general contractor or of any subcontractor in the erection,
construction, repair or removal of any building or other structure,
or improvement appurtenant there to, or who alters or improves
the real property whereon the same stands, or to which it
may have been removed, necessary to the completion of such
general contract, shall have such a lien for his or her compensation
as is mentioned in section one [s 38-2-1] of this article.
38-2-6a
Lien of Architect, Engineer
An
architect, surveyor, engineer or landscape architect shall
have a lien for his or her compensation as provided for in
sections one through six [ss 38-2-1 through 38-2-6], inclusive,
of this article for all materials furnished and all work done,
or all services provided by such architect, surveyor, engineer
and landscape architect as a contractor, subcontractor, materialman,
mechanic or laborer, as the case may be. The lien shall be
perfected and preserved in accordance with, and shall otherwise
be subject to, the provisions of this article governing liens
for contractors, subcontractors, materialmen, mechanics or
laborers, as the case may be.
38-2-7
Discharge of Lien, Perfection of Lien
But
the lien created and authorized by section one [s 38-2-1]
of this article shall be discharged from and after one hundred (100) days from the completion of the contract, and the lien created
and authorized by section two [s 38-2-2] of this article shall
be discharged from and after seventy-five days from the completion
of the subcontract, and the lien created and authorized by
section three [s 38-2-3] of this article shall be discharged
from and after one hundred (100) days from the furnishing of the last
of the materials, machinery or other supplies and equipment,
and the lien created and authorized by section four [s 38-2-4]
of this article shall be discharged from and after seventy-five
days from the date of the furnishing of the last of the materials,
machinery or other equipment or supplies, and the lien created
and authorized by section five [s 38-2-5] of this article
shall be discharged from and after one hundred (100) days from the date
of the performing of the last of the work and labor, and the
lien created and authorized by section six [s 38-2-6] of this
article shall be discharged from and after seventy-five days
from the date of the performing of the last of the work and
labor, unless within the respective periods, the claimant
of any such lien shall have perfected and preserved the same,
as hereinafter provided in this article.
38-2-8
Notice of Claim, Recording
For
the purpose of perfecting and preserving his lien, any such
general contractor as is mentioned in section one [s 38-2-1]
of this article shall, within one hundred (100) days after the completion
of his work provided for in such contract, cause to be recorded,
in the office of the clerk of the county court [county commission]
of the county wherein such property is situate, a notice of
such lien, which notice shall be sufficient if in form and
effect as follows:
Notice
of Mechanic’s Lien.
To
___________________
Notice
is hereby given, in accordance with the laws of the State
of West Virginia, that the undersigned claims a lien to secure
the payment of the sum of $ _______ upon your interest in
and to lot number ___________ of block number ________ as
shown on the official map of the city of _____________ (or
other adequate and ascertainable description of the real estate
to be charged), and upon the following buildings, structures
and improvements thereon: (List the buildings, structures
or improvements sought to be charged.)
Given
under my hand this ________ day of ______, 20___
State of West Virginia, County of _______________
________________________, being first duly sworn, upon his
oath says that the statements contained in the foregoing notice
of lien are true, as he verily believes. Taken, subscribed
and sworn to before me this ____ day of ____, 19__
My commission expires ______________
________________
(Official Capacity)
38-2-9
Notice of Claim, Subcontractor, Recording
For
the purpose of perfecting and preserving his or her lien,
every subcontractor mentioned in section two [s 38-2-2] of
this article shall, within one hundred (100) days after the completion
of his or her subcontract, give to the owner or his or her
authorized agent, by any of the methods provided by law for
the service of a legal notice or summons, a notice of lien,
which notice shall be sufficient if in form and effect as
follows:
Notice
of Mechanic’s Lien.
To
________________
You
will please take notice that the undersigned _________________
was and is subcontractor with ___________ who was and is general
contractor for the furnishing of materials and doing of the
work and labor, necessary to the completion of (here describe
the nature of the subcontract) on that certain building (or
other structure or improvement as the case may be), owned
by you and situate on lot number _________ of block number
_________ as shown on the official map of _________ (or other
definite and ascertainable description of the real estate)
and that the contract price and value of said work and materials
is $_______ You are further notified that the undersigned
has not been paid therefore (or has been paid only $_______
thereof) and that he claims and will claim a lien upon your
interest in the said lot (or tract) of land and upon the buildings,
structures and improvements thereon to secure the payment
of the said sum.
__________________
State of West Virginia,
County of__________
__________________, being first duly sworn, upon his oath
says that the statements in the foregoing notice of mechanic’s
lien are true, as he verily believes. Taken, subscribed and
sworn to before me this _________ day of ______, 20__
My commission expires ____________
___________________
(Official Capacity)
But the lien shall be discharged and avoided, unless within
one hundred (100) days after the completion of his or her subcontract
as aforesaid the subcontractor shall cause to be recorded
in the office of the clerk of the county commission of the
county wherein the property is situate a notice of the lien,
which notice shall be sufficient if in form and effect as
that provided in section eight [s 38-2-8] of this article.
38-2-10 Notice of Lien, Material and
Equipment Supplier
For the purpose of perfecting and preserving his lien, every
materialman or furnisher of machinery or other necessary equipment,
under a contract with the owner, as mentioned in section three
[s 38-2-3] of this article, shall cause to be recorded in
the office of the clerk of the county court [county commission]
of the county wherein such property is situate, within one hundred (100)
days from the date when he shall have ceased to furnish material
or machinery or other necessary equipment, a notice of such
lien, which notice shall be sufficient if in form and effect
as that provided in section eight [s 38-2-8] of this article.
38-2-11
Notice of Lien, Supplies Furnished to Contractor or Subcontractor
For
the purpose of perfecting and preserving his or her lien,
every materialman or furnisher of machinery or other necessary
equipment, who shall have furnished material, machinery or
equipment under a contract with any contractor or with any
subcontractor, as set forth in section four [s 38-2-4] of
this article, within seventy-five days after he or she shall
have ceased to furnish such material or machinery or other
equipment, shall give to the owner, or his or her authorized
agent, by any of the methods provided by law for the service
of a legal notice or summons, a notice of such lien, which
notice
shall be suffieient if in form and effedt as follows:
Notice
of Mechanic’s Lien.
To ___________________
You will
please take notice that the undersigned ___________________
has furnished and delivered to _________ who was contractor
with you (or subcontractor with ______________, who was contractor
with you, as the case may be) for use in the erection and
construction (or repair, removal, improvement, as the case
may be) of (here list the buildings or other structure or
improvement to be charged) on the real estate known as (here
insert an adequate and ascertainable description of the real
estate to be charged) and the said materials were of the nature
and were furnished on the dates and in the quantities and
at the price as shown in the following account thereof:
(Here insert itemized account.)
You are further notified that the undersigned has not been
paid the sum of $______ (or that there is still due and owing
to the undersigned thereon the sum of $_______) and that he
claims a lien upon your interest in the said lot (or tract)
of land and upon the buildings, structures and improvements
thereon, to secure the payment of the said sum.
__________________
State of West Virginia,
County of __________
___________________, being first duly sworn, upon his oath
says that the statements in the foregoing notice of lien contained
are true, as he verily believes. Taken, subscribed and sworn
to before me this ________ day of _____, 20__
My
commission expires _______________
____________________
(Official
Capacity)
But
the lien shall be discharged and avoided, unless, within one hundred (100)
days after such materialman or other furnisher of machinery
or other necessary equipment shall have ceased to furnish
such materials or machinery or other equipment, he or she
shall cause to be recorded in the office of the clerk of the
county commission of the county wherein such property is situate
a notice of such lien, which notice shall be sufficient if
in form and effect as that provided in section eight [s 38-2-8]
of this article, and which recorded notice need not include
such itemized account.
38-2-12 Notice of Lien, Laborer
For the purpose of perfecting and preserving his lien every
such workman, artisan, mechanic, laborer or other person as
is mentioned in section five [s 38-2-5] of this article who
shall have done any work or performed any labor upon any such
building or improvement, under a contract with the owner thereof,
shall cause to be recorded in the office of the clerk of the
county court [county commission] of the county wherein such
property is situate, within one hundred (100) days after he shall have
ceased to perform any such work or labor, a notice of his
lien, which notice shall be sufficient if in form and effect
as that provided in section eight [s 38-2-8] of this article.
38-2-13
Notice of Lien, Laborer for Contractor or Subcontractor
For the purpose of perfecting and preserving his or her lien,
every workman, artisan, mechanic, laborer or other person
who shall have performed any work or labor upon the building
or improvement thereto, under a contract with any general
contractor or with any subcontractor, as set forth in section
six [s 38-2-6] of this article, shall cause to be given to
the owner, or his or her authorized agent, by any of the methods
provided by law for the service of a legal notice or summons,
within seventy-five days after he or she shall have ceased
to perform any such work or labor, a notice of the lien, which
notice shall be sufficient, if in form and effect as follows:
Notice of Mechanic’s Lien.
To ___________________
You will please take notice that the undersigned has performed
work and labor under a contract with _______. who was general
contractor with you (or who was subcontractor with ______,
who was general contractor with you) in the erection and construction
(or removal, repair, improvement or otherwise, as the case
may be) of a certain building (or other structure or improvement)
on real estate known as (here insert an adequate and ascertainable
description of the real estate to be charged) and that said
work and labor was of the kind, was performed on the dates,
for the purposes and at the prices, as shown in the following
itemized account thereof:
(Here insert itemized account.)
You are further notified that the undersigned has not been
paid the sum of $_____ (or that there is still due and owing
to the undersigned thereon the sum of $ _____) and that he
claims a lien upon your interest in the said lot (or tract)
of land and upon the buildings, structures and improvements
thereon to secure the payment of the said sum.
___________________
State of West Virginia,
County of___________
___________________, being first duly sworn, upon his oath
says that the statements in the foregoing notice of mechanic’s
lien contained are true, as he verily believes. Taken, subscribed
and sworn to before me this ______ day of ____, 19__
My commission expires __________________
___________________
(Official Capacity)
But the lien shall be discharged, unless such workman, artisan,
mechanic, laborer or other person shall cause to be recorded
in the office of the clerk of the county commission wherein
such property is situate, within one hundred (100) days after he or she
shall have ceased to do work or perform labor upon the building
or improvement thereto, a notice of the lien, which notice
shall be sufficient if in form and effect as that provided
in section eight [s 38-2-8] of this article and which recorded
notice need not include such itemized account.
38-2-14 Discharge of Lien, Failure to Give Notice
The failure of any person claiming a lien under this article
to give such notice as is required by sections nine, eleven
and thirteen [ss 38-2-9, 38-2-11, 38-2-13] of this article,
or to record such notice as is required by sections eight,
nine, ten, eleven, twelve and thirteen [ss 38-2-8 to 38-2-13]
of this article, in the manner and within the time specified
in such sections, or the failure of any such claimant of any
such lien to comply substantially with all of the requirements
of this article for the perfecting and preservation of such
lien, within the time provided therefore in this article,
shall, except as provided in section twenty [s 38-2-20] of
this article, operate as a complete discharge of such owner
and of such property from all liens for claims and charges
of any such contractor, subcontractor, materialman or laborer,
for any work claimed to have been performed and for any materials,
machinery or other necessary equipment claimed to have been
furnished in connection with such work.
38-2-15 Service by Publication
In the event that any owner, upon whose real estate or improvement
thereof it is desired to take a lien under this article, should
be a nonresident of this State, or in the event that any officer
of this State authorized by law to execute legal process should
make return “not found” upon any notice of a mechanic’s
lien which may be presented to him for service, then it shall
be sufficient service of any such notice of mechanic’s
lien upon such nonresident owner, or upon such owner as to
whom any such return, of “not found” shall be
made by any such officer, to publish a copy of such notice
as a Class II legal advertisement in compliance with the provisions
of article three [s 59-3-1 et seq.], chapter fifty-nine of
this Code, and the publication area for such publication shall
be the county wherein the real estate lies. A copy of such
notice shall also be posted in a conspicuous place upon the
property sought to be charged thereby, which publishing and
posting shall be sufficient, if commenced within the period
provided by this article for the filing of such notice. The
costs of such publication may be added to the account for
which the lien is claimed, and, if included in the amount
mentioned in the recorded notice the lien shall cover such
costs.
38-2-16 One Contract
For the purposes of this article, all materials furnished,
all work done, and all services provided by anyone person,
firm or corporation, upon any one building or the improvements
appurtenant thereto, or upon the real property whereon the
same stands, or to which it may have been removed, shall be
deemed and considered one contract, whether or not all of
such material was bought at one time, or under one general
agreement or otherwise, and whether or not all of such work,
labor or services provided, was contracted for at one time
or otherwise.
38-2-17 Priorities
A lien authorized and created by this article shall, when
perfected, attach as of the date such labor, material, machinery
or other necessary equipment shall have begun to be furnished,
and shall have priority over any other lien secured by a deed
of trust or otherwise which is created subsequent to such
date. Each lien authorized and created by this article shall
be subordinate to any other lien created by a deed of trust
or otherwise which is duly recorded or otherwise perfected
to constitute constructive notice prior to the date labor,
material, machinery or other necessary equipment giving rise
to such lien shall have begun to be furnished, notwithstanding
the fact that some other lien authorized and created by this
article may have priority over such other lien created by
deed of trust or otherwise which is so recorded or otherwise
perfected.
38-2-18 Priority Among Lien Claimants
Of the persons acquiring liens by virtue of this article and
solely for determining priorities as among such persons, laborers,
artisans, mechanics, workmen and furnishers of material, machinery
and other necessary equipment, shall have first liens, and
the lien of such persons, when perfected and preserved as
required by this article, shall take precedence over any lien
taken or to be taken by the contractor or subcontractor indebted
to them for labor, material, machinery or other equipment,
to the extent of the amount of the lien of such contractor
or subcontractor, and the lien of a subcontractor shall take
precedence over any lien taken or to be taken by a contractor
indebted to him upon his subcontract, to the extent of the
amount of the lien of such contractor, and every assignment
or transfer by any such head contractor of his contract with
the owner or by any such subcontractor of his contract with
the contractor, or any proceeding in attachment or otherwise
against such head contractor or subcontractor, with the purpose
of encumbering or subjecting his interest in such contract,
shall be subject and subordinate to the liens of all such
subcontractors, laborers, workmen, artisans, materialmen and
furnishers of machinery and other necessary equipment who
shall perfect their liens according to the provisions of this
article. But all of such perfected liens of such laborers
and workmen and of such materialmen and furnishers of machinery
and of such contractors and subcontractors, respectively,
shall be of equal dignity without priority among themselves,
except as otherwise provided in this article.
38-2-19 Demand for Itemized Account
The owner may, at any time, by notice in writing, require
such subcontractor, laborer, mechanic, workman or other person
doing, or causing to be done, work or labor upon such building
or other structure or improvement appurtenant thereto, or
any such materialman or other person furnishing materials,
machinery or other necessary equipment for such work, to file
with such owner an itemized account of the work done or caused
to be done by such laborer or other person, or of the materials
or machinery or other equipment furnished by such materialman
or other person for such work, which account shall show the
dates upon which such work was done, or such materials were
furnished, the price charged therefore, and the nature of
such work or materials, and the neglect or failure of any
such laborer, mechanic or other person furnishing materials,
machinery or other necessary equipment for the doing of the
same, so to file such itemized statement with such owner,
within ten days after the receipt by him of such written notice
so to do, shall release such owner from all responsibility
and his property from all lien or charge for all labor done
and for all materials furnished by the person so failing to
file such required itemized statement, prior to the giving
of such notice.
38-2-20
Notice to Owner
Any laborer or other person employed to do any work or furnish
any materials or machinery for the erection, construction,
alteration, repair or removal of any building or other structure,
or any improvement appurtenant thereto, by another who may
have contracted with the owner therefore may, before doing
any work or furnishing any material or machinery, give the
owner of such building or other structure or improvement thereto
notice in writing that if he is not paid therefore by the
person employing him, he will look to the owner for payment;
and it shall not be necessary for the person who has given
such notice in writing to file the account and notice with
the owner within sixty days of the date of the doing of the
last work or of the furnishing of the last of such materials
or machinery, unless he is required by the owner in writing
within such sixty days to do so, and his neglect or failure
to file such notice and account within sixty days, unless
so required to do so, shall in no way affect or impair his
lien if it be otherwise perfected and preserved, as provided
in this article.
38-2-21 Effect of Payments by Owner
No payment by the owner to any contractor or subcontractor
of any part or all of the contract price for the erection
and construction of any such building, structure or improvement
appurtenant thereto or for any part or section of such work
shall affect, impair or limit the lien of the subcontractor,
laborer, or materialman or furnisher of machinery or other
necessary material or equipment, as provided for in this article,
except as otherwise provided in this article.
38-2-22 Contracts to be Recorded with
Bond, Effect
Any owner may limit his liability upon a contract such as
is mentioned in section one [s 38-2-1] of this article, to
the sum agreed therein to be paid therefore, by recording
his contract with such general contractor, in the office of
the clerk of the county court [county commission] of the county
wherein such building or other structure is situate, prior
to the beginning of the building, erection and construction
thereof, and by requiring to be given by his general contractor,
and by recording with such general contract, a valid and solvent
bond, in a penalty equal to the contract price, with solvent
surety, conditioned that in the event any laborer, materialman
or other person, having perfected his lien as allowed by this
article, be deprived by the recordation of the owner’s
contract from receiving from such owner the amount of his
lien, then such bond and the surety thereon shall be responsible
to such lienor for the amount of such lien account, or for
any balance thereof not collected by such lienor from such
owner and from such property. Any such owner who shall cause
his general contract to be recorded in such clerk’s
office and who shall cause to be executed and recorded the
bond therewith as hereinbefore provided shall be exempt from
the payment of more than such contract price, and his property
shall likewise be exempt therefrom, and all such liens created
by this article as are not fully satisfied and discharged
by such owner, by reason of such recordation, shall be paid
by such contractor and his surety on such bond. If liens in
excess of the contract price are perfected as provided in
this article, the owner shall be liable to each lien claimant
pro rata, in the proportion which the contract price bears
to the total amount of the liens so perfected.
38-2-23
Failure to Record Contract and Bond, Effect
In the event any such owner should fail to record such contract
and bond, or in the event the penalty of such bond should
not be equal to the contract price, or in the event such bond
should not be solvent at the time when given, then such contractor
shall be deemed to be the agent of such owner and the building
or other structure and the improvements appurtenant thereto,
together with the interest of the owner thereof in and to
the lot of land whereon the same stands or to which it is
removed, shall be held liable and subject to such perfected
liens, for the full and true value of all work and labor done
and of all materials, machinery and equipment furnished therefore,
although the same may exceed in the aggregate the price stipulated
in the contract between the owner and the contractor.
38-2-24 Bond Form
The bond referred to in section twenty-two [s 38-2-22] of
this article shall be sufficient if in form and effect as
follows:
Know all men by these presents: That ___________ as principal,
and _____________ as sureties (or surety) are held and firmly
bound unto ___________ in the just and full sum of $________,
to the payment whereof well and truly to be made, we bind
ourselves, our heirs, administrators and assigns, jointly
and severally by these presents. Sealed with or seals and
dated this ______ day of _____, 20
The condition of the above obligation is such: That whereas,
the said ___________ has entered into a certain contract with
___________ for the building and erection by the said ____________
for the said ___________ of a certain ___________, to be situated
___________; and whereas, it is agreed between the above named
principal and surety that no change or modification of such
contract shall operate to discharge the surety upon this bond;
now, therefore, if the said ___________ shall well and truly
perform his said contract, and shall pay off, satisfy and
discharge all claims of subcontractors, laborers, materialmen
and all persons furnishing material or doing work upon said
building and shall save the said ____________ and his property
harmless from any and all liability, over and above the contract
price thereof, between the said owner and the said contractor,
for all of such labor and materials, and shall fully pay off
and discharge and secure the release of any and all mechanics’
liens which may be placed upon said property by any such subcontractor,
laborer or materialman, then this obligation shall be null
and void. Otherwise it shall remain in full effect.
____________(Seal)
____________(Seal)
____________(Seal)
Acknowledged before the subscriber, a notary public, in and
for the State of West Virginia and County of _________, this
______ day of _______, 20__
My commission expires _________
____________________Notary Public.
No change or modification of any such contract between such
owner and such general contractor shall operate to discharge
or release the obligation of the surety or sureties upon any
such bond.
38-2-25
Property Outside City
Whenever a lien, perfected and preserved under this article
is sought to be enforced against any property outside of any
city, town or village, it shall be the duty of the court before
which any suit for the enforcement of such lien is pending,
to determine in its discretion how much land surrounding any
such building shall be subject to such lien. In any event,
not more of such land shall be so subject to such lien than
shall be reasonably necessary to the full enjoyment of such
building or other improvement.
38-2-26 Parties
Whenever it shall be necessary for suit to be brought as hereinafter
provided, for the enforcement of any of the liens contemplated
by this article, such contractor and the sureties upon such
bond mentioned in sections twenty-two, twenty-three and twenty-four
[ss 38-2-22 to 38-2-24] of this article, shall be made parties
thereto and all matters arising upon such bond and the liabilities
thereunder shall be litigated and determined in such suit
to enforce the lien and it shall not be necessary for judgment
upon such bond to be taken at law, but all such proceedings
as are necessary to enforce liability upon such bond shall
be had in such court of chancery, according to the usual and
ordinary course of proceeding therein.
38-2-27
Recordings
It shall be the duty of the clerk of the county court [county
commission] of the county to enter every notice of lien mentioned
in this article upon the filing in his office of such notice
in a book by him to be kept for that purpose, to be called
“Mechanic’s Lien Record,” which book shall
be well and properly indexed, so as to show the names of the
parties, the amount and character of the claim, when filed,
and the description of the property to be charged by such
lien. The contract and bond mentioned in section twenty-two
[s 38-2-22] of this article shall also, when filed in the
office of such clerk, be entered in the mechanic’s lien
record and indexed.
38-2-28 Proof of Sale, Effect
Proof of the sale to any owner, contractor or subcontractor
of any materials, machinery or other equipment for use in
the performance of any contract mentioned in this article,
and of the delivery of such materials, machinery or other
equipment to such contractor or subcontractor, shall be prima
facie proof of the use of such materials, machinery or equipment
in the erection and construction of such building or other
structure and of the improvements appurtenant thereto, and
upon the proving of such facts, the burden of showing that
such materials, machinery and equipment were not used in such
building or other structure or improvement appurtenant thereto
shall be upon the owner or other person disputing such use
thereof.
38-2-29
Multiple Improvements
Any materialman or furnisher of machinery or other equipment
necessary to the performance of any one such general or subcontract,
who shall furnish such materials, machinery or other equipment
in quantities for use in more than one building or other structure
or improvement appurtenant thereto, and any workman, laborer
or other person who shall perform work or labor upon more
than one such building or other structure or improvement appurtenant
thereto, provided for in such contract, shall have a lien
upon all of such buildings and other structures and improvements
into which his materials were put or upon which his work and
labor was expended and upon the interest of the owner in and
to the lot of ground upon which all of such buildings and
structures stand or
38-2-30
Prevention of Performance
When the owner fails to perform his part of the contract and
by reason thereof the other party, without his own default,
is prevented from completely performing his part, he shall
be entitled to reasonable compensation for so much as he shall
have performed, in proportion to the price stipulated for
the whole, and shall have such a lien as is provided in this
article, to secure payment thereof, when such lien is properly
perfected and preserved according to the provisions of this
article.
38-2-31 Lien of Worker Against Property
of Corporation, Limitations
Every workman, laborer or other person who shall do or perform
any work or labor, for an incorporated company doing business
in this State, by virtue of a contract either directly with
such incorporated company or with its general contractor,
or with any subcontractor, shall have a lien for the value
of such work or labor upon all real estate and personal property
of such company; and, to the extent and value of one month’s
such work or labor, said lien shall have priority over any
lien created by deed or otherwise on such real estate or personal
property subsequent to the time when such work or labor was
performed: Provided, however, that there shall be no priority
of lien as against conditional sales of, or reservation of
title to, machinery sold to such company; nor shall there
be priority of lien as between the parties claiming under
the provisions of this section.
38-2-32
Discharge of Lien Against Corporation, Notice of Lien
Such lien shall be discharged unless the person desiring to
avail himself thereof, within one hundred (100) days from the time he
shall have ceased to work or labor for such incorporated company
or for such contractor, shall file with the clerk of the county
court [county commission] of the county in which such work
or labor was performed, or in which the principal office,
works, real estate or personal property of such incorporated
company is situated, a notice of lien containing the amount
due him after allowing all credits, which notice shall be
sworn to by the person claiming such lien, or by someone in
his behalf.
38-2-33
Recording
The clerk of the county court [county commission], to whom
the notice of lien mentioned in the preceding section [s 38-2-32]
is presented, shall record the same in the mechanic’s
lien record. If the amount of the claim is for more than one
month’s work or labor, the record shall show, separately,
the full amount of the claim and in addition thereto the amount
of the claim for such month for which such prior lien is claimed.
38-2-34 Actions, Limitations, Intervention
Unless a suit in chancery to enforce any lien authorized by
this article is commenced within six months after the person
desiring to avail himself thereof shall have filed his notice
in the clerk’s office, as hereinbefore provided in this
article, such lien shall be discharged; but a suit commenced
by any person having such lien shall, for the purpose of preserving
the same, inure to the benefit of all other persons having
a lien under this article on the same property, and such persons
may intervene in such suit for the purpose of enforcing their
liens, in the same manner as in other chancery suits.
38-2-35
Sale, Personal Judgment
If the lien or liens be established in favor of any of the
creditors whose claims are presented in the suit mentioned
in the preceding section [s 38-2-34], the court shall order
a sale of the property on which the liens are established,
or so much thereof as may be sufficient to satisfy such claims,
in like manner as in other suits in chancery, and the court
may, in addition, give a personal decree in favor of such
creditors for the amount of their claims against any party
against whom they may be established, and such decree shall
have the effect of, and be enforced as, other decrees for
money.
38-2-36
Discharge of Lien, Deposit in Court, Hearing, Release, Escrow,
Action, Receiver
(a) When a debt secured by any lien mentioned in this article
is fully paid at any time after the lien creditor shall have
filed his notice of such lien in the office of the clerk of
the county commission, such creditor assignee shall cause
the clerk to enter a discharge of such lien in the margin
of the book in which such account is entered and immediately
opposite thereto, or shall execute a release thereof, which
shall be recorded in the book in which such notice is entered
and noted on the margin of such notice.
(b)(1) At any time after a lien creditor has given notice
of lien as required by the provisions of this article and
has subsequently duly filed such notice of lien with the clerk
of the county commission as provided for in this article,
the owner or any person against whom the lien is claimed may
apply to the circuit court having jurisdiction to enforce
such lien, by petition, for an order authorizing such owner
or other person against whom the lien is claimed to deposit,
in escrow, with the clerk of the circuit court, an amount
equal to the sum set out as due in the notice of lien, and
directing the circuit clerk to execute a release of the lien.
Previous to the filing of such petition, the petitioner shall
cause to be served upon the lien creditor a notice of the
time and place that such application will be made, which notice
shall be served by registered mail, return receipt requested,
addressed to the lien creditor or his authorized agent at
the address set forth in the notice of lien: Provided, that
if no such address is set forth in the notice of lien, the
petitioner shall serve the notice, setting forth the time
and place that his application will be made, in the same manner
as original process is served for the commencement of civil
actions.
(2) At the hearing upon the petition, the court shall ascertain
what interest, if any, might reasonably be expected to accrue
on the sum claimed to be due, either by contract or by operation
of law, and subsequently be payable to the lien creditor,
should he prevail upon his claim. The court shall also determine
the current rate of return upon investments made by the general
receiver of the court at the time of the hearing, and ascertain
what rate of interest might reasonably be earned upon the
petitioner’s escrow deposit when paid into the court.
To the extent that the anticipated interest due to the lien
creditor exceeds the anticipated return upon the investment
of the escrow deposit, the court may require an additional
deposit beyond the sum set forth in the notice of lien, as
the interests of the parties may require. The order authorizing
the deposit and directing the execution of the release shall,
if the court anticipates that complex or extended litigation
may arise in resolving the issue of the validity of liens
or claims in the case, require that the petitioner or other
parties give security before the court, or the clerk thereof,
for payment of the costs which may be awarded in the court,
and of the fees due, or to become due, in any action to determine
such issue.
(3) If an escrow deposit is authorized by the court, such
deposit shall be made by cash, and when paid into court, shall
be received by the general receiver of the court, who shall
take charge of and invest the money deposited in the manner
provided for in section one [s 51-6-1], article six, chapter
fifty-one of this Code until otherwise ordered to pay out
or dispose of the same by the circuit court. Upon presentation
to the clerk of the county commission wherein the notice of
lien is filed of an order of the court and a receipt executed
by the clerk of the circuit court for the amount required
to be deposited by the terms of the order, the clerk of the
county commission shah file the order and shall enter a discharge
of the lien in the margin of the book in which such account
is entered and immediately opposite thereto, or shall execute
a release thereof, which shall be recorded in the book in
which such notice is entered and noted on the margin of such
notice.
(4) Unless an action to determine the validity of the creditor’s
claim is commenced within six months after the creditor shall
have filed his notice of lien in the office of the clerk of
the county commission as provided for in this article, the
court shall, upon motion of the depositor, order the general
receiver to pay out to the depositor the sum deposited, together
with any dividends and interest, if any, earned upon the investment
of the deposit, less any compensation for the services of
the general receiver as the court may direct in accordance
with the provisions of section seven [s 51-6-7], article six,
chapter fifty-one of this Code. If the claim is satisfied
or settled and compromised at any time while secured by the
deposit made with the general receiver but before an action
is commenced, the court shall, upon proof of satisfaction
or settlement and compromise, order the general receiver to
payout the deposit to the depositor in the same manner as
though suit was not commenced within the requisite period
of six months as described above. If an action is commenced,
the general receiver shall thereafter pay out the money deposited
and the dividends and interest, if any, earned upon the investment
of the deposit, as the court may order or decree, less any
compensation for the services of the general receiver as the
court may direct in accordance with the provisions of said
section seven [s 51-6-7].
38-2-37
Order of Discharge, Costs
In case of the refusal of the party holding such lien to cause
such clerk to enter a discharge of such lien, or to execute
a release of such lien, in the manner provided in the preceding
section [s 38-2-36] of this article, upon the request of the
party entitled to such discharge or release, the circuit court
of the county, or the judge thereof in vacation, in which
such lien is recorded may, on motion, after reasonable notice
of the party so refusing, and if no good cause be shown against
it, direct the clerk of the county court [county commission]
to enter such discharge, which shall thereupon have the effect
of a discharge entered under the provisions of the preceding
section. Such proceeding shall be at the cost of the party
so refusing.
38-2-38 Executor, Administrator, Assignee
The executor or administrator of any person entitled to a
lien under this article, or any assignee of the claim upon
which such lien is based, shall be entitled to such lien,
and to the right to perfect and enforce such lien, in the
same manner and to the same extent as the testator, intestate,
or assignor could have done, had he remained the owner of
such claim.
38-2-39
Public Projects, Payment Bond, No Lien
It shall be the duty of the State commissioner of public institutions[department
of corrections],and of all county courts [county commissions],
boards of education, boards of trustees, and other legal bodies
having authority to contract for the erection, construction,
improvement, alteration or repair of any public building or
other structure, or any building or other structure used or
to be used for public purposes, to require of every person
to whom it shall award, and with whom it shall enter into,
any contract for the erection, construction, improvement,
alteration or repair of any such public building or other
structure used or to be used for public purposes, that such
contractor shall cause to be executed and delivered to the
secretary of such commissioner or other legal body, or other
proper and designated custodian of the papers and records
thereof, a good, valid, solvent and sufficient bond, in a
penal sum equal at the least to the reasonable cost of the
materials, machinery, equipment and labor required for the
completion of such contract, and conditioned that in the event
such contractor shall fail to pay in full for all such materials,
machinery, equipment and labor delivered to him for use in
the erection, construction, improvement, alteration or repair
of such public building or other structure, or building or
other structure used or to be used for public purposes, then
such bond and the sureties thereon shall be responsible to
such materialman, furnisher of machinery or equipment, and
furnisher or performer of such labor, or their assigns, for
the full payment of the full value thereof. All such bonds
shall have as surety thereon either some incorporated bonding
and/or surety company authorized to carry on business in this
State, or in lieu of such corporate surety the contractor
may deposit as security for such bond with the said State
commissioner of public institutions [department of corrections],
county court [county commission], board of education, board
of trustees or other legal body having authority so to contract,
a sum in cash or bonds and securities of the United States
of America or of the State of West Virginia of sufficient
amount and value equal at least to the reasonable cost of
materials, machinery, equipment and labor required for the
completion of such contract. Immediately upon the acceptance
of either of said bonds by the State commissioner of public
institutions [department of corrections], county court [county
commission], board of education and board of trustees, or
other legal body, the bond shall be recorded by the secretary
of such commissioner [department] or other legal body, or
by the proper designated custodian of the papers or records
thereof, in the office of the clerk of the county court [county
commission] of the county or counties wherein such work is
to be done and where such materials, machinery or equipment
are to be delivered, and no such contract shall be binding
and effective upon either party or parties thereto until such bond has been executed, delivered and recorded as aforesaid.
Nothing in this article shall be construed to give a lien
upon such a public building or improvement as is mentioned
in this section, or upon the land upon which such public building
or improvement is situated.
ARTICLE
12 RELEASE AND ASSIGNMENT OF LIENS
38-12-1 Satisfaction, Release
(a) Every person entitled to the benefit of any lien on any
estate, real or personal, or to the money secured thereby,
whether the lien was created by conveyance, judgment, decree,
lis pendens, notice of attachment, deed of trust, contract
or otherwise, shall be required to furnish and execute an
apt and proper written release thereof free of charge to the
debtor whose obligation secured by such lien has been fully
paid and satisfied, if the lien is of record in the proper
county. Such release shall be executed and furnished to the
debtor within thirty days after the debt has been satisfied.
(b) Such release of lien shall be executed by the lienholder
and acknowledged before the clerk of the county commission
in whose office the lien is recorded or before such other
person authorized to take acknowledgments of deeds. Such written
release shall be deemed sufficient if it describe the lien
to be released by any words that will identify and show an
intent to discharge the same. Releases may also be made according
to the provisions of section two [s 38-12-2] of this article.
38-12-2 Release by Trustee
A trustee in a trust deed may release the lien of such trust
deed:
(a) When the trust deed authorizes the trustee to release
the same;
(b) When the trust deed creates a lien to secure debts to
persons not named in the trust deed;
(c) When a trust deed creates a lien to secure more than five
creditors, even though such creditors be named in the trust
deed;
(d) When a trust deed creates a lien to secure notes or bonds
or other instruments payable to bearer.
A release executed by the trustee in any of the cases mentioned
herein, and properly recorded, shall, as to purchasers for
value without notice, be valid and binding, whether the debt
secured by such lien had in fact been paid or discharged or
not.
38-12-3
Release by Trustee, Publication of Notice
If a trustee in a trust deed which secures persons not named
in the trust deed shall publish, as hereinafter provided,
a notice that he will, on a day named in such notice, such
day to be not more than thirty nor less than ten days after
the last publication of such notice, release such trust deed,
such trustee may execute such release and make distribution
of any funds in his hands as such trustee without any liability
to any person not named in the trust deed nor known to the
trustee to be a beneficiary of the trust. Such notice shall
be published as a Class II legal advertisement in compliance
with the provisions of article three [s 59-3-1 et seq.], chapter
fifty-nine of this Code, and the publication area for such
publication shall be the county in which such trust deed is
recorded.
38-12-4 Form of Release
Releases and their acknowledgments may be substantially in
form or effect as follows:
(a) In case of a mortgage or trust deed: I, A. ___ ___ B.
___, hereby release a mortgage (or trust deed) made by C.
___ ___ D. ___ to me (or to E. ____ F. ____, my trustee, or
to ____, and assigned to me) dated the ____ day of ____, recorded
in the office of the clerk of the county court [county commission]
of _____ county, West Virginia, in trust deed book ____, page
____(Or, in case the release is by the trustee, I, A. ____.
B. ____, hereby release a trust deed made by C. ____ D. ____
to me as trustee, for the benefit of E. _____ F. ____, dated
the ____ day of ____, recorded, etc., as in preceding form.)
To be signed A. ____ B. _____
Acknowledged before the subscriber, by A. ____ B. ____, this
____ day of ____ (or, in case the release be by a corporation,
acknowledged before the subscriber, by ____, who signed the
name of ____, a corporation, thereto, this ____ day of ____,
_____)
(To be signed) G. ____ H. ______, a justice (or clerk of the
county court [county commission], notary public, etc., as
the case may be) of _____ county, West Virginia.
(b) In case of a lien for purchase money, reserved by conveyance:
I, A. ___ B. ___, hereby release the right reserved to me
in a conveyance executed by me (or myself and wife) to C.
___ ___ dated the ___ day of ___ (Or, in case of an assignment,
I, A. ___ B. ___ hereby release the right reserved by C. ___
D. ___ in a conveyance to E. ___ F. ___, dated the ___ day
of ___ ., ___, which right was assigned by the said C. ___
D. ___ to me, the ___. day of ___, ___) To be signed and acknowledged
as above.
(c) In case of a judgment or decree: I, A. ___ B. ___ ___,
hereby release a judgment (or decree) in my favor (or in favor
of I. ___ K. ___, which has been assigned to me, or in favor
of I. ___ K. ___ for my use) against C. ___ D. ___, for (stating
the amount) with interest and costs, rendered by (stating
the court by which, or the justice [magistrate] by whom, it
was rendered, and the term or date at which it was rendered,
to be signed and acknowledged as above.) When such lien is
release by the assignee thereof, the assignment thereof, whether
of the lien or of the debt secured thereby, must be acknowledged
in the same manner as the release, and recorded with such
release: Provided, that if any such lien, or the debt secured
thereby, shall have been assigned, the same may always be
released by the assignee who receives satisfaction thereof,
upon the assignor joining therein, without the recordation
of the assignment as aforesaid.
38-12-5
Partial Release
In case of a discharge of only a part of the lien debt, or
a release of only a part of the property subject to the lien,
or any other partial or limited release, the form of release
prescribed in section four [s 38-12-4] of this article may
be modified to express the facts and the intention of the
parties.
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