3.2 Security Deposits

In 2011, the WV Legislature enacted a new law defining the legal requirements of how security deposits must be handled. A security deposit is any refundable deposit paid to a landlord, by the tenant as security for damage to the leased property. W.Va. Code §37-6A-1(14). A security deposit does not include any fees paid for the rental application or for pets if the landlord and tenant expressly agreed, in writing, that these were nonrefundable, and does not include any money paid for rent or prepaid rent. W.Va. Code §37-6A-1.

Security deposits held by the landlord must be returned, minus any deductions for damages or other charges, upon termination of the tenancy, or within the notice period, meaning within 60 days of the termination of the tenancy or 45 days of occupation of the premises by another tenant, which ever period of time is shorter. W.Va. Code §37-6A-2(a). The landlord must include a written itemization of any deductions or other charges with the deposit.

If the total cost of damage to the premises is greater than the amount of the security deposit and requires the use of a third-party contractor, the landlord may give written notice within the notice period advising the tenant of this fact. If the landlord provides this notice, then he or she will have an additional 15 days to provide the itemization and cost of repair. W.Va. Code §37-6A-2(c). A security deposit may legally be applied to the following items at termination of a tenancy W.Va. Code §37-6A-2(b)(1)-(5).

1. Payment of rent due, including reasonable fees for late payment of rent, but a security deposit does not have to be applied as an immediate credit against a tenant’s delinquent rent

2. Payment of the amount of damages the landlord has suffered as a result of the tenant’s noncompliance with the rental agreement, not including reasonable wear and tear

3. Payment of utilities that were the responsibility of the tenant under the agreement and were unpaid by the tenant, which were billed to and paid for by the landlord

4. Payment for the reasonable costs of removal and storage of the tenant’s personal property

5. Payment of other damages and charges as provided by the rental agreement, such as the costs of the service

The security deposit may be returned either by personal delivery or mailed to the tenant’s last known address or to a forwarding address provided by the tenant. W.Va. Code §37-6A-2(g). It is the responsibility of the tenant to provide accurate information to the landlord. If a deposit is not reasonably able to be returned in person to the tenant and is returned to the landlord as non-deliverable after an attempt to mail it to the tenant, then the landlord must hold the deposit for a period of six months to be personally delivered to the tenant or his or her authorized agent at the landlord’s place of business.

When landlords fails to comply with security deposit provisions as outlined in this section, and their noncompliance is willful or not in good faith, then the tenant is entitled to recover the amount of any unreturned security deposit and damages equal to up to one and a half times the amount of the wrongfully withheld deposit for annoyance and inconvenience. W.Va. Code §37-6A-5. If the tenant owes rent to the landlord then any amount awarded will be ordered by the court to be applied against the amount of rent owed.

Tenants may not waive their rights under Section 37-6A of the West Virginia Code concerning the return of security deposits. Any lease provision waiving these rights is unenforceable by law. W.Va. Code §37-6A-4.

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