2.7 How to enforce the warranty of habitability

Under West Virginia law, a landlord is excused from making repairs and maintaining fit conditions of rental properties if the tenant has not paid full rent due at the time the repair is made necessary. W.Va. Code §37-6-30(c). The landlord is also not responsible for making certain repairs to the individual dwelling units if the repairs were made necessary primarily by the negligence or lack of due care by the tenant, the tenant’s family members, or other persons on the premises with the permission of the tenant. The previous section details when these repairs are not the responsibility of the landlord.

If the rental lease between the landlord and tenant imposes greater responsibilities on the landlord than those imposed by law, then the lease will be the controlling document and the landlord will be held to the higher standard in the agreement. W.Va. Code §37-6-30(b). In other words, your lease can include obligations beyond the basics and if it does, those provisions can be enforceable.

No person may legally waive the right to live in a fit and habitable condition. Teller v. McCoy at 130. So for example, a provision saying the tenant is responsible for maintaining the plumbing at tenant’s expense may not be enforced.

The first step in enforcing a tenant’s right to habitable housing is to make a complaint to the landlord. The tenant must make the complaint detailed as to the exact provisions of the law or rental agreement that are in violation. The law requires the landlord to correct the problem promptly and properly. A responsible landlord should investigate the complaint after receiving it and make any necessary repairs in a prompt and proper manner. A written complaint, allowing a proper time for action, usually around 7-10 days, may be used as evidence if the landlord fails to take action and the tenant has to go to court. The tenant should keep a receipt of mailing the complaint and a written copy of the complaint, which can provide evidence in court of notice to the landlord of the problems with the rental premises.

If the landlord fails to take action in a reasonable amount of time after receiving the complaint, the tenant has a right to file a civil suit against the landlord to enforce his or her rights in the county in which the rental property is located. Having an attorney to represent the tenant in litigation can be helpful. In West Virginia there are programs that can help low-income and older clients obtain free legal help for those who qualify. For more information on these programs see Section 4 on Housing and Legal Authorities.

A tenant may proceed without an attorney.

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