What is a Lien in West Virginia?
A lien in West Virginia is a legal right to another person's property because of unpaid debts. A lien is typically used to recover a debt or the performance of an obligation. If the debtor does not reimburse the creditor, they may lose the liened property. The individual benefiting from the lien is known as the lienor/lienholder, while the party whose property was attached to the lien is the lienee.
In West Virginia, there are various kinds of lien holders and liens. Individuals, small businesses, financial establishments, and government agencies can place liens on a person's property. The following are some types of liens in West Virginia:
- Property liens
- Tax liens
- Mechanics' liens
- Real estate liens
- Judgment liens
- Bank liens
Generally, liens can be classified as general or specific. A lien is general when it is not attached to a particular belonging. Therefore, if there is a default, the lienor can have any of the lienee's belongings as collateral. On the other hand, a lien is specific when the lien is attached to a particular property of the lienee. In this situation, if the lienee defaults, the lienor can only hold onto the property specified in the agreement.
Liens in West Virginia are filed with the government. This is done to inform the general public that a lienor has a stake in a particular property or asset. A West Virginia lien is a public document, and it notifies all concerned parties that the lien must be terminated before the property in question can be sold. Liens are typically maintained alongside other West Virginia court records, and interested persons can obtain them from their respective record custodians on request.
Are Liens Public in West Virginia
Yes, according to West Virginia state statutes, liens are considered public records. The information contained within these records is accessible to the general public as required by the state's public record laws. Liens in West Virginia are filed with the county clerk's office in the county where the property is located. This ensures transparency and allows interested parties to obtain information on properties or debtors.
When a lien is satisfied or released in West Virginia, the lienholder is responsible for filing a release of lien with the appropriate county clerk's office. Upon filing the release, the lien is no longer effective, the property is no longer subject to seizure, and the lien is considered legally terminated.
Types of Lien in West Virginia
Any debt or unmet financial obligation can prompt the placement of a lien in West Virginia. For this reason, there are judgment liens, agricultural liens, tax liens, mortgage liens, construction liens, child support liens, UCC liens, restitution liens, sewerage liens, equitable liens, and more in West Virginia. However, all liens are inherently voluntary or involuntary and general or specific.
A voluntary lien is established by an agreement between a borrower and lender, usually because of a loan. In contrast, an involuntary lien is attached against the property owner's will. An involuntary lien is also deemed a statutory lien because the creditor's right to lien is given by law. On the other hand, a general lien attaches to all property that a debtor owns, and a specific lien ties only to a particular property.
Voluntary and involuntary liens can be general or specific, and vice versa. Mortgage liens, a common type of voluntary lien, are specific because the creditor's claim only extends to the property purchased or refinanced. Meanwhile, tax liens, which stem from owed taxes, are involuntary and general. No one will deliberately give creditors access to all owned properties and assets. As a result, voluntary liens are usually specific liens. Involuntary liens can attach to all or one property but are often general liens.
How Do I Check for Liens in West Virginia?
To find liens recorded in West Virginia, requestors can obtain property records preserved by the county clerk. Each West Virginia county clerk keeps and stores liens filed in their county. Hence, after determining the county where the property is situated, the interested individual can visit the clerk's office on a business day to check for liens.
Alternatively, people who cannot travel to the clerk's office can use a document/public records search system to find liens on the clerk's website. However, not all clerks provide this service. Also, the clerk charges a nominal fee for plain or certified copy requests made in person or online (if the option is provided).
In addition, individuals can research UCC liens filed against personal property in West Virginia with the Secretary of State's UCC Online Filing, Search & Retrieval System. It is possible to perform regular or certified searches and purchase records using the system. People requiring further assistance can contact the Business and Licensing Division at ucc@wvsos.com, (304) 558-8000, or (866) 767-8683 (toll-free).
Free Lien Search in West Virginia
When the objective is to inspect liens records in West Virginia, an individual can often examine those records at the clerk's office or on the clerk's website for free. Typically, the requestor is only charged is when the request involves duplicating or certifying original documents.
To conduct free lien searches online, an individual will usually need the debtor's name, secured party's name, filing number/date, and book and page numbers. The information that can be acquired includes:
- The debtor's full name
- The creditor's full name
- Type of lien
- Filing/instrument number
- Recording date
- Book and page numbers
- A digital image of the document used to create or release the lien
- Number of pages in the document
- The total debt amount (including interest and penalties)
- Status of the lien (active or lapsed)
What is a Property Lien in West Virginia?
Usually, liens in West Virginia are attached to properties to ensure that a debtor pays whatever is owed. Some examples of these liens include mortgage, mechanics, judgment, and tax liens. For instance, a judgment lien in West Virginia can only be attached to a debtor's real estate property (condos, lands, houses, and more). In contrast, a tax lien can be attached to any debtor's property for unpaid taxes. According to the West Virginia lien laws, the government can sell delinquent real property taxes as tax liens. This is done yearly at the state's public auction, and a certificate of sale gets issued to the purchaser as detailed in W. Va. Code § 11A-3-14.
How Do You Know if a Property Has a Lien in West Virginia?
Liens are a matter of public record in West Virginia. Hence, anyone who wishes to know if a property has a lien can pull property records held at the county or state level. If the query involves real estate, conducting a title search through a county recorder's office or local title company is recommended. Because the property/asset owner may not be aware of a lien, purchasing the item without the needful research can lead to financial liability on the buyer's part.
Property Lien Search by Address in West Virginia
There are a number of options for persons to conduct a property lien search in west Virginia, a good place to start a search is the county assessor's office. Here persons can search for liens associated with any property in the state by visiting the official county pages either online or in person. Another way to search property lien records by address is to visit the county sheriff's tax offices either online or in person. County sheriff tax offices usually maintain a searchable database of all taxes and liens that are associated with a particular property in the state. For example, the Kanawha county sheriff's tax office allows persons to search for property liens by address using a database.
Another alternative is to conduct a search online utilizing services like the West Virginia Secretary of State's Business and Licensing Search, which enables one to look up commercial and residential property liens.
Free Property Lien Search by Address
Property Liens in West Virginia are public records and can be gotten typically through a search by address with the county recorder, or assessor’s office online. County recorders offices in west Virginia also allow for persons to visit in person to perform a free property lien search by address.
What is a Tax Lien in West Virginia?
A West Virginia tax lien is a legal claim on the assets of individuals owing taxes. In West Virginia, the government has the right to attach a tax lien to a party's property when that party fails to pay taxes. The property's owner cannot sell that property until the tax is paid. Upon payment, the lien is removed. The Internal Revenue Service (IRS) collects federal taxes through a tax lien. Also, a West Virginia local government agency may collect these taxes. The concerned government agency will file the tax lien with the county commission clerk in the taxpayer's county of residence. The National Tax Lien Association (NTLA) in 2017 reported that property taxes of over $14 billion go unpaid in the country. The report also discloses that states that sell tax liens (over 30 states) sell about $4.2 billion of those liens to private investors.
Tax Lien Lookup in West Virginia
Unpaid taxes that are due and payable and no longer susceptible to administrative or judicial review result in the creation of a lien against a person or business.
Interested persons can conduct a tax lien lookup by making inquiries at any west Virginia Tax division location in person, this can be done by making an online appointment with the department. A lookup can also be done by calling the department's taxpayer services at (304) 558-3333 or (800) 982-8297
What is a Mortgage Lien in West Virginia?
A mortgage lien in West Virginia is a legal claim to a person's home conferred on an individual or organization. This lien takes effect when the house owner takes out a mortgage loan and fails to pay it back. A mortgage lien is a type of property lien. Per W. Va. Code § 55-2-5, a mortgage lien expires thirty-five years after the date it was filed. The lienor can renew it, but this must be done before the thirty-five years are complete. When a mortgage lien is renewed in West Virginia, it stays active for five years.
Lienholders can file an action with the court to enforce a mortgage lien. This ensures that the debtor pays what is due before the lien's expiration date.
What is a Mechanics Lien in West Virginia?
In West Virginia, a mechanics' lien is a legal instrument that enables contractors, suppliers, and any party to a construction project to claim a stake in their work. This serves as security in case they do not get paid. According to W. Va. Code § 38-2-7, a lien must be filed within 100 days after the concerned party last contributed to the construction project. Should the due date for filing the lien fall on holiday, such a person should file the action the day before the holiday. Persons interested in filing this action in West Virginia should note that only individuals among the top three tiers of the concerned project are entitled to lien rights. In West Virginia, consequential damages, lost profits, or attorney fees are not added to the lien. The accepted lien amount must be that of the original agreement.
What is a UCC Lien?
A UCC lien is a legal action filed against another party's business or property. In a situation where one person lends out money to another, if a UCC lien was attached to the credit, such a person may claim the borrower's assets. The Uniform Commercial Code (UCC) refers to business laws applicable in every US state. The UCC makes provisions for selling securities, goods, and negotiable instruments. The Uniform Commercial Code applies to most contracts. However, below are some contracts where this law is not applicable:
- Real estate contracts
- Service contracts
- Employee-employer contracts
To file a UCC lien, interested persons should visit the West Virginia Secretary of State's office. Generally, a UCC lien becomes inactive after five years, although the creditor can renew it. Once the lien is paid off before the five years are complete, the lienor will be asked to terminate it.
How to Conduct a UCC Lien Search
A UCC lien search is a procedure used to find out if there are any liens or encumbrances on a piece of personal property. The person must first ascertain the jurisdiction in which the property is situated in order to do a UCC lien search. This is due to the fact that UCC liens are filed at the state level, making it necessary to determine the proper state agency. UCC liens are often filed with the Department of Commerce or the Secretary of State.
To perform a UCC lien search in West Virginia persons can use the online database that is made available on the website of the West Virginia secretary of state. This search option allows anyone to perform a query against the database storing all Filings on record. Individuals can search by entering various Search Terms that correspond to a Debtor's or Secured Party's name or enter a Filing Number.
What is a Judgment Lien?
In West Virginia, a judgment lien ensures that a person (or debtor) adequately reimburses a creditor who wins a verdict. Generally, a judgment lien allows a creditor to profit from the proceeds of the debtor's property. According to W. Va. Code § 38-3-5, a judgment lien in West Virginia will remain attached to a debtor's property for ten years unless the debt is paid. Should the debtor sell the property, the lien will remain on that property. Persons interested in filing a judgment lien in West Virginia should do so at the County Court clerk's office situated in the county where the concerned property is located.
What is a Federal Tax Lien
The term "federal tax lien" refers to the federal government's authority to confiscate property when past taxes are unpaid. A federal tax lien may be issued on any property owned by a person or business that owes past taxes, even property that was purchased while the lien was in effect. Title 26 of the code of federal regulations section § 301.6321-1, generally gives a detailed explanation of federal tax liens and stipulates situations where a tax lien may arise.
The Internal Revenue Service must comply with section 6321 et seq. of the Internal Revenue Code in order for a federal tax lien to develop. When a debt arises, a federal tax lien is not immediately issued. Instead, the IRS pursues collection by sending out numerous letters in advance. The letters grow more serious as time passes and if the debt is not paid off, the IRS may decide to pursue a Notice of Federal Tax Lien in line with IRC 6321. When a federal tax lien is issued and not paid within a stipulated time, the debt is constantly reassessed by the IRS until the liability for the amount assessed is satisfied.
Liens in West Virginia are created by law under W. Va. Code § 11-10-12 of the West Virginia legislature and continue until the liability for the tax, additions to tax, penalties, and interest is paid, or under some circumstances such as bankruptcy an agreement is reached between the taxpayer and the State Tax Department for the lien to be extended.
What is a Lien Title?
A lien is a formal claim or encumbrance that a lender or creditor can place on property to ensure a debt is paid. A lien title is a document that attests to a lien on a particular piece of real estate. It specifies that the property owner must settle a debt or obligation before they may sell or transfer possession of the asset. The government or a lender may issue it. Real estate, automobiles, and personal items are just a few of the several categories of property that can have a lien title placed on them. The creditor may be entitled to seize the property and sell it to recoup the debt if it is not paid.
Where and How to Do a Title Search in West Virginia
In order to find out a piece of real estate's ownership history and current status in the legal system, one must conduct a property title search. A title search's goal is to find any problems that might have an impact on the property's ownership or use. This may involve issues like unpaid loans or liens, encumbrances or easements, or ownership conflicts.
A person must supply information about the property, such as the address, owner's name, and parcel number, to the county assessor's office or the West Virginia Secretary of State's office in order to do a title search. After doing a record search, the office will next generate a report with details on the history of ownership of the property and any liens or mortgages still in effect. Persons can also perform a title search in West Virginia through third-party aggregate websites. These services enable users to search by name to find all county property records, deeds, title transfers, and lien information for all US counties
Voluntary Lien vs. Involuntary Lien in West Virginia
A lien in West Virginia may be involuntary or voluntary. An involuntary lien is attached to the debtor's property without consent - for example, a tax lien. When a company or individual has unpaid taxes, such an entity could lose the property to the government. Voluntary liens have to do with the debtor consenting to the terms outlined in a loan agreement. This is the case with mortgage liens. In a mortgage agreement, an individual receives money from another party, prompting the party to impose the lien. In this case, the lienee is notified of the lien attachment.
How Creditors Collect Payment Through a Lien
Any creditor that places a lien on property situated in West Virginia is entitled to collect the debt when the property is sold, transferred, or refinanced. Because a lien acts as an encumbrance on a property's title, it compels any debtor who wishes to sell, transfer, or refinance their property without complications to pay off the associated debt. Nevertheless, the creditor can execute on the property if it is nonexempt under state law. Hence, the creditor can force the sale of the property to recover the debt if the debtor persists with nonpayment.
It is worth noting that selling property may be disadvantageous to the creditor if several liens are anchored on the property. The main reason is that liens have priority, which is established by the recording date or the law. Thus, the creditor who records a lien first or is given the first position by law is the one who gets paid first. Others will only collect payment if sufficient funds are available, and this may not happen if the property is low-value or a mortgage lender repossesses the property.
Furthermore, regarding the transfer of property ownership, liens attach to the property, not the owner. As a result, even when the original owner fails to settle the debt and successfully transfers the title, the new owner will be legally liable for the debt.
How Do I Get a Lien Removed in West Virginia?
A straightforward way to get a lien removed in West Virginia is to pay the lienholder voluntarily. Following payment, the lienholder will file a release of lien with the appropriate authority (the court clerk or Secretary of State). The document serves as proof of payment and the removal of the lien.
Alternatively, if convinced that a lien is invalid or unlawful, the debtor can take the matter to court. The court has the authority to remove a fraudulent or improper lien from a person's property, but the debtor must have solid evidence of the lien's illegality.
The last option is to wait for the statute of limitations to expire. Granted, this only applies to involuntary liens, as voluntary liens usually stick until the loan or credit terms and conditions are fulfilled. Even so, though involuntary liens have a deadline, they can often be renewed by the creditor. As such, this option may not be viable to the debtor.
How Long Does a Lien Stay on Your Property in West Virginia?
In West Virginia, a lien stays on a debtor's property until the statute of limitations expires (for involuntary liens), or the debtor satisfies the payment agreement (for voluntary liens).
The West Virginia Code specifies the enforcement deadlines for involuntary liens. Some include:
- Judgment and child support liens: ten years (W. Va. Code § 38-3-18)
- Tax liens:
- Until the liability for the tax, penalties, additions to tax, and interest is paid, or
- Ten years from when the tax, additions to tax, penalties, and interest became due and payable, or ten years from when the tax return was filed showing a deficit, whichever comes later. (W. Va. Code § 11-10-12)
- Mechanics' liens: Six months (W. Va. Code § 38-2-34)
- UCC liens: Five years (W. Va. Code § 46-9-515)
How to Avoid a Lien in West Virginia
Liens result from unpaid debts or unmet financial obligations. As such, an individual who wants to avoid a lien in West Virginia is advised to meet payment agreements made with lenders or settle debts as soon as they arise. Opting to use bankruptcy to avoid a lien hardly works, as liens cannot usually be discharged. Besides, bankruptcy is a complex procedure that should be utilized when one has no other option to eliminate debts. In this aspect, an attorney can provide more insight.
