West Virginia Contract for Deed Law


Contract for Deed – General – West Virginia

Related West Virginia Legal Forms

WEST VIRGINIA CODE
CHAPTER 36. ESTATES AND PROPERTY.
ARTICLE 1. CREATION OF ESTATES GENERALLY

§ 36-1-1. Creation of estates; necessity of deed or will.

No estate of inheritance or freehold, or for a term of more than five years, in lands, or any other interest or term therein of any duration under which the whole or any part of the corpus of the estate may be taken, destroyed, or consumed, except for domestic use, shall be created or conveyed unless by deed or will.
(Code 1849, c. 116, § 1; Code 1860, c. 116, § 1; Code 1868, c. 71, § 1; Code 1923, c. 71, § 1.)

§ 36-1-2. Power of attorney to execute deed of land; necessity of writing.

No power of attorney to execute a deed of land for another person shall be valid, unless it be in writing signed by the person on whose behalf such deed is to be made.
(1931 Code, § 36-1-2.)

§ 36-1-3. Contracts for sale or lease of land; necessity of writing.

No contract for the sale of land, or the lease thereof for more than one year, shall be enforceable unless the contract or some note or memorandum thereof be in writing and signed by the party to be charged thereby, or by his agent. But the consideration need not be set forth or expressed in the writing, and it may be proved by other evidence.
(Code 1849, c. 143, § 1; Code 1860, c. 143, § 1; Code 1868, c. 98, § 1; Code 1923, c. 98, § 1.)

§ 36-1-4. Creation of trusts in lands; necessity of writing.

No declaration of trust of land shall be enforceable, unless it be made in writing, signed by the person who declares such trust or by his agent. If a conveyance of land, not fraudulent, is made to one in trust either for the grantor or a third person, such trust may be enforced, though it be not disclosed on the face of the conveyance, nor evidenced by a writing: Provided, however, that trusts arising by construction or operation of law shall not be subject to the provisions of this section.
(1931 Code, § 36-1-4.)

§ 36-1-4a. Memorandum of trust; requirements; recordation.

(a) A memorandum of trust that satisfies both of the following requirements may be presented for recordation in the office of the clerk of the county commission of any county in which real property that is subject to the trust is located:

(1) The memorandum shall be executed by the currently acting trustee or trustees of the trust, and, if living, by the settlor or settlors, personally, or by a duly appointed attorney-in-fact or conservator of the settlor or settlors, and shall be acknowledged in the manner a deed must be acknowledged in order to be recorded.

(2) The memorandum shall contain at least the following information with respect to the trust:

(i) The existence of the trust and the date of the trust;

(ii) The names and mailing addresses of the settlor or settlors and of the currently acting trustee or trustees of the trust, the names and mailing addresses of any successor trustee or trustees, and the circumstances under which any successor trustee or trustees will assume trust powers;

(iii) The revocability or irrevocability of the trust; and

(iv) A verbatim recitation of the trust powers specified in the trust relative to the acquisition, sale, disposition, or encumbering of real property by the trustee or trustees or the conveyance or disposition of real property by the trustee or trustees and any restrictions upon those powers, or a statement that the trust powers include at least all those trust powers contained in section three, article five-a, chapter forty-four of this code as they existed at the date of the execution of the trust.

(b) A memorandum of trust may also set forth the substance or actual text of any or all of the provisions of the trust.

(c) A memorandum of trust that satisfies the provisions of this section constitutes notice only of the information contained therein.

(d) Upon the presentation of a memorandum of trust that satisfies the provisions of this section and the payment of the requisite fee, the clerk shall record the memorandum of trust with the records of deeds and list it in the grantor index under the name of the settlor or settlors and in the grantee index under the names of the then-acting trustee or trustees.

(e) Nothing herein shall be construed or deemed to require recordation of any original trust agreement or other governing instrument which establishes the trust identified in the memorandum of trust.
(1998, c. 148.)

§ 36-1-6. Declarations of trust in personal property; necessity of writing.

No declaration of trust of any personal property, without consideration, shall be valid unless it be in writing, signed by the person who creates such trust or by his agent. This section shall have no application to a conveyance of personal property to another person, in trust either for the person making such conveyance, or for a third person.
(1931 Code, § 36-1-6.)

§ 36-1-18. Trust estates; debts of beneficiaries; spendthrift trusts; nonmerger of trusts.

(a) Estates held in trust are subject to the debts of the beneficiary of the trust, except where the creator has expressly provided in the trust instrument that:

(1) The income or principal, or both, may only be applied to the health, education, support or maintenance of a beneficiary, other than the creator of the trust, for the life of the beneficiary; and

(2) The trust is not subject to the liability of or alienation by the beneficiary or beneficiaries.

(b) A trust, whenever created, may not be set aside or terminated solely on the assertion of a creditor that the trustee or trustees are the same person or persons as the beneficiary or beneficiaries of the trust.

(c) This section applies to any trust established by an instrument executed on or after the first day of July, two thousand one, except as otherwise expressly provided in the terms of the trust.

(d) This section applies to any trust established under an instrument executed prior to the first day of July, two thousand one, when the trustee elects, in his or her sole discretion, to administer the trust pursuant to the provisions of this section.

(e) Except as provided in subsection (c) of this section, this section may not be construed to create or imply a duty on a trustee to administer the trust pursuant to the provisions of this section, and a trustee may not be held liable for refusing to administer a trust pursuant to the provisions of this section.
(Code 1849, c. 116, § 16; Code 1860, c. 116, § 16; Code 1868, c. 71, § 16; Code 1923, c. 71, § 16; 1998, c. 149; 2001, c. 125.)

West Virginia Code
CHAPTER 36. ESTATES AND PROPERTY
ARTICLE 3. FORM AND EFFECT OF DEEDS AND CONTRACTS

§ 36-3-4. Distinctions between various kinds of deeds abolished.

All distinctions in legal effect between deeds of grant, deeds of bargain and sale, deeds of lease and release, and deeds of covenant to stand seized, are hereby abolished. Any instrument which shows on its face a present intent to pass the title to, or any interest, present or future, in real property, shall, if properly executed and delivered, be given effect according to its manifest intent. No instrument purporting to convey land, or any interest therein, shall fail of effect merely for lack of conformity with the language of sections five, six, seven, eight or nine of this article.
(1931 Code, § 36-3-4.)

§ 36-3-5. Form of deed.

A deed may be made in the following form, or to the same effect: “This deed made the __________ day of __________, in the year __________, between (here insert names of parties), witnesseth: That in consideration of (here state the consideration), the said __________ grants unto the said __________ all, etc. (Here describe the property, and insert covenants or any other provisions.) Witness the following signature.”
(Code 1849, c. 117, § 1; Code 1860, c. 117, § 1; Code 1868, c. 72, § 1; Code 1923, c. 72, § 1.)

§ 36-3-5a. Easement and right-of-way; description of property; exception for certain public utility facilities and mineral leases.

(a) Any deed or instrument that initially grants or reserves an easement or right-of-way shall describe the easement or right-of-way by metes and bounds, or by specification of the centerline of the easement or right-of-way, or by station and offset, or by reference to an attached drawing or plat which may not require a survey, or instrument based on the use of the global positioning system which may not require a survey: Provided, That oil and gas, gas storage and mineral leases shall not be required to describe the easement, but shall describe the land on which the easement or right-of-way will be situate by source of title or reference to a tax map and parcel, recorded deed, recorded lease, plat or survey sufficient to reasonably identify and locate the property on which the easement or right-of-way is situate: Provided, however, That the easement or right-of-way is not invalid because of the failure of the easement or right-of-way to meet the requirements of this subsection.

(b) This section does not apply to the construction of a service extension from a main distribution system of a public utility when such service extension is located entirely on, below, or above the property to which the utility service is to be provided.

(c) The clerk of the county commission of any county in which an easement or right-of-way is recorded pursuant to this section shall only accept for recordation any document that complies with this section and that otherwise complies with the requirements of article one, chapter thirty-nine of this code, without need for a survey or certification under section twelve, article thirteen-a, chapter thirty of this code.
(2003, c. 186; 2004, c. 174.)

§ 36-3-6. Necessity of consideration in deed of real property.

If a deed of real property is in other respects valid, it shall not fail for want of a payment of consideration, or the recital of a consideration in the deed. No resulting or other trust in favor of the grantor in such deed shall arise from the mere fact that no consideration was paid or recited, if no trust was in fact intended. The foregoing provisions of this section shall not affect in any manner the right of any party to the deed, or any other person, to have such conveyance set aside for fraud, or because of any other circumstance which would render such conveyance invalid as to such person.
(1931 Code, § 36-3-6.)

§ 36-3-7. Effect of words of release in a deed.

Whenever, in any deed, there shall be used the words “The said grantor releases to the said grantee all his claims upon the said lands,” or words of like import, such deed shall be construed as if it set forth that the grantor or releasor hath remised, released, and forever quitted claim and by these presents doth remise, release, and forever quitclaim unto the grantee or releasee, his heirs and assigns, all right, title and interest whatsoever, both at law and in equity, in or to the lands and premises granted or released, or intended so to be.
(Code 1849, c. 117, § 3; Code 1860, c. 117, § 3; Code 1868, c. 72, § 3; Code 1923, c. 72, § 3.)

§ 36-3-8. Form of lease.

A deed of lease may be made in the following form or to the same effect: This deed, made the __________ day of __________, in the year __________, between (here insert the names of the parties), witnesseth: That the said __________ demises unto the said __________, his personal representatives and assigns, all, etc., (here describe the property), from the __________ day of __________, for the term of __________, thence ensuing, the said __________ (the lessee) paying to the said __________ (the lessor) therefor, during the said term, the rent of (here state the rent and mode of payment, and insert covenants, conditions, or any other provisions). Witness the following signature.
(Code 1849, c. 117, § 4; Code 1860, c. 117, § 4; Code 1868, c. 72, § 4; Code 1923, c. 72, § 4.)

§ 36-3-9. Form of deed by sheriff or special commissioner.

The deed of a sheriff or special commissioner for real estate sold under the decree, judgment or order of a court may be made in the following form, or to the same effect: This deed, made this __________ day of __________, between A. __________ B. __________, sheriff of the county of __________ (or special commissioner, as the case may be) of the first part, and C. __________ D. __________, of the second part, witnesseth: That whereas, the said sheriff (or commissioner) in pursuance of the authority vested in him by a decree (judgment, or order, as the case may be) of the circuit court of the county of __________, made on the __________ day of __________, in a suit in chancery (or an action at law, or otherwise, as the case may be) therein pending, in which E. __________ F. __________ was plaintiff, and G. __________ H. __________ was defendant, did sell the real estate hereinafter mentioned and conveyed according to the terms and conditions required by said decree (judgment or order) at which sale the said C. __________ D. __________ became the purchaser for the sum of __________ dollars. And whereas, the said court by a subsequent decree (or order) made in the case on the __________ day of __________, confirmed the said sale and directed a deed for the said real estate to be made to the said C. __________ D. __________, by the said sheriff (or commissioner). Now, therefore, this deed witnesseth: That the said A. __________ B. __________, sheriff (or special commissioner) as aforesaid, doth grant unto the said C. __________ D. __________, a certain parcel of real estate situated in the county of __________, and bounded and described as follows (here insert the boundaries, description and quantity, as near as may be). Witness the following signature. A. __________ B. __________, sheriff (or special commissioner).
(Code 1868, c. 72, § 9; 1882, c. 140, § 9; Code 1923, c. 72, § 9.)

§ 36-3-10. Deeds to include buildings, privileges and appurtenances.

Every deed conveying land shall, unless an exception be made therein, be construed to include all buildings, privileges, and appurtenances of every kind belonging to the lands therein embraced.
(Code 1849, c. 117, § 7; Code 1860, c. 117, § 7; Code 1868, c. 72, § 10; Code 1923, c. 72, § 10.)

WEST VIRGINIA CASE LAW

Cancellation of a land sales contract will not be granted by the Court because of a partial failure of consideration, where there is no offer to restore the status quo and where the grounds for cancellation are otherwise insubstantial.
Bailey v. Savage, 236 S.E.2d 203 (1977)

Time for compliance is generally not of the essense of a contract for the sale and purchase of land. A reasonable time is generally implied. If the parties would make time of the essence, they should so stipulate in the contract. And even when such contract does make time of the essence, it may be waived by indulgence or subsequent contract of the parties. Id.

“If, under an executory contract of sale of land, in which time has not been made an essential element, or from which such element originally embodied in it has been eliminated, substantial payments have been made, mere delay in payment of the residue for a reasonable period of time does not preclude specific performance at the instance of the vendee, under the principle of laches.” Malone v. Schaffer, 178 W.Va. 637 (1987)