In 2004, the West Virginia legislature passed a new law that created an exclusive method for perfecting liens on mobile homes[1]. W. Va. Code § 17A-4A-1, et seq. requires that a lien be properly recorded on a certificate of title to be perfected. Once perfected and upon default, the creditor is able to obtain a repossession title, then cancel the mobile home title to affix it to the land post foreclosure sale. Once the title is canceled, the mobile home is forever considered permanently attached to the land.[2] The statute was intended to codify the method for properly perfecting a lien on a certificate of title. However, the passing of this new law, created a clear delineation of pre-2004 and post-2004 mobile homes in determining whether a creditor properly perfected its lien on a mobile home.
Prior to the enactment of this statute, creditor’s liens were not recorded on the certificate of title because there often was never a certificate of title issued. Creditors must then rely on common law principals that the mobile home is affixed to the land, and their liens perfected by recording the Deed of Trust. To determine if a pre-2004 mobile home is properly affixed, West Virginia Courts look to the intent of the borrower. Deeds of Trust may contain an affidavit, signed by the borrower, that the mobile home was permanently affixed to the land. The affidavit is excellent evidence establishing that the borrower intended the mobile home be affixed to the real property at the origination of the loan.
Other factors that the Courts consider as evidence of affixture of the mobile home include, but are not limited to, the removal of wheels or axels, attachment to the electrical grid or septic system, presence of a foundation, and
[1] The word “mobile home” is used interchangeably with manufactured home, factory built home and house trailer as defined in W. Va. Code § 17A-1-1. All of which are vehicles pursuant to W. Va. Code § 17A-1-1(a).
[2] W.Va. Code §11-5-12: … A mobile home permanently attached to the real estate of the owner may not be classified as personal property if the owner has filed a canceled certificate of title with the clerk of the county commission and the clerk has recorded it in the same manner as deeds are recorded and indexed.
whether the mobile home is being assessed for tax purposes as real or personal property. If the mobile home is determined to be properly affixed to the land, it would be considered real property and the creditor’s lien is properly perfected by the recording of the Deed of Trust. Under the new law, all mobile homes titled after 2004 require a creditor to properly record their lien on the certificate of title, or risk becoming unsecured unless the certificate of title was properly cancelled.
When presented with a lien perfection issue involving a mobile home, it is essential to confirm whether a certificate of title was ever issued. If no certificate was ever issued, one must look to the date of construction of the mobile home and if before 2004, the common law principals discussed above will apply. A proper analysis and subsequent curative measures will ensure that a creditor is secured and that a lien is properly perfected under current West Virginia Law.
If you have any questions on Mobile Home matters in West Virginia, our experienced counsel are ready to assist.
