West Virginia Code 55-21-17 – Executory contract
(a) In this section, “executory contract” has the same meaning as “timesharing plan” as defined in § 36-9-4 of this code.
Terms Used In West Virginia Code 55-21-17
- Contract: A legal written agreement that becomes binding when signed.
- Court: means a circuit court. See West Virginia Code 55-21-2
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Executory contract: means a contract, including a lease, under which each party has an unperformed obligation and the failure of a party to complete performance would constitute a material breach. See West Virginia Code 55-21-2
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Lien: A claim against real or personal property in satisfaction of a debt.
- Lien: means an interest in property which secures payment or performance of an obligation. See West Virginia Code 55-21-2
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Mortgage: means a record, however denominated, that creates or provides for a consensual lien on real property or rents, even if it also creates or provides for a lien on personal property. See West Virginia Code 55-21-2
- Mortgagee: The person to whom property is mortgaged and who has loaned the money.
- Mortgagee: means a person entitled to enforce an obligation secured by a mortgage. See West Virginia Code 55-21-2
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Owner: means the person for whose property a receiver is appointed. See West Virginia Code 55-21-2
- Person: means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity. See West Virginia Code 55-21-2
- Property: means all of a person's right, title, and interest, both legal and equitable, in real and personal property, tangible and intangible, wherever located and however acquired. See West Virginia Code 55-21-2
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- real property: include lands, tenements and hereditaments, all rights thereto and interests therein, except chattel interests. See West Virginia Code 2-2-10
- Receiver: means a person appointed by the court as the court's agent, and subject to the court's direction, to take possession of, manage, and, if authorized by this article or court order, transfer, sell, lease, license, exchange, collect, or otherwise dispose of receivership property. See West Virginia Code 55-21-2
- Receivership: means a proceeding in which a receiver is appointed. See West Virginia Code 55-21-2
- Receivership property: means the property of an owner which is described in the order appointing a receiver or a subsequent order. See West Virginia Code 55-21-2
- State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. See West Virginia Code 55-21-2
(b) Except as otherwise provided in subsection (h) of this section, with court approval, a receiver may adopt or reject an executory contract of the owner relating to receivership property. The court may condition the receiver’s adoption and continued performance of the contract on terms appropriate under the circumstances. If the receiver does not request court approval to adopt or reject the contract within a reasonable time after the receiver’s appointment, the receiver is deemed to have rejected the contract.
(c) A receiver’s performance of an executory contract before court approval under subsection (b) of this section of its adoption or rejection is not an adoption of the contract and does not preclude the receiver from seeking approval to reject the contract.
(d) A provision in an executory contract which requires or permits a forfeiture, modification, or termination of the contract because of the appointment of a receiver or the financial condition of the owner does not affect a receiver’s power under subsection (b) of this section to adopt the contract.
(e) A receiver’s right to possess or use receivership property pursuant to an executory contract terminates on rejection of the contract under subsection (b) of this section. Rejection is a breach of the contract effective immediately before appointment of the receiver. A claim for damages for rejection of the contract must be submitted by the later of:
(1) The time set for submitting a claim in the receivership; or
(2) Thirty days after the court approves the rejection.
(f) If at the time a receiver is appointed, the owner has the right to assign an executory contract relating to receivership property under law of this state other than this article, the receiver may assign the contract with court approval.
(g) If a receiver rejects, under subsection (b) of this section, an executory contract for the sale of receivership property that is real property in possession of the purchaser or a real-property timeshare interest, the purchaser may:
(1) Treat the rejection as a termination of the contract, and in that case the purchaser has a lien on the property for the recovery of any part of the purchase price the purchaser paid; or
(2) Retain the purchaser’s right to possession under the contract, and in that case the purchaser shall continue to perform all obligations arising under the contract and may offset any damages caused by nonperformance of an obligation of the owner after the date of the rejection, but the purchaser has no right or claim against other receivership property or the receiver on account of the damages.
(h) A receiver may not reject an unexpired lease of real property under which the owner is the landlord if:
(1) The tenant occupies the leased premises as the tenant’s primary residence;
(2) The receiver was appointed at the request of a person other than a mortgagee; or
(3) The receiver was appointed at the request of a mortgagee and:
(A) The lease is superior to the lien of the mortgage;
(B) The tenant has an enforceable agreement with the mortgagee or the holder of a senior lien under which the tenant’s occupancy will not be disturbed as long as the tenant performs its obligations under the lease;
(C) The mortgagee has consented to the lease, either in a signed record or by its failure timely to object that the lease violated the mortgage; or
(D) The terms of the lease were commercially reasonable at the time the lease was agreed to and the tenant did not know or have reason to know that the lease violated the mortgage.