Category: Sec. 1: Preparing to make a rental agreement

Often tenants lease rental property after making only a quick inspection. When tenants take possession of the rental property, they may find conditions they had not observed on their first visit, such as broken steps, insects, faulty electrical systems, or generally shabby conditions.

A new tenant should carefully inspect the rental property before moving in. The tenant should document the inspection in writing or by taking photos or video that documents all existing damage or other conditions. Some landlords may even provide a new tenant with a checklist to perform this inspection. A copy of these findings can help to resolve future disputes concerning the conditions of the rental property. A sample checklist is available in Appendix B.

Under current West Virginia law, the landlord has a duty to deliver rental property in conditions that are fit and habitable. For more information on what conditions are covered by habitability law in West Virginia see the section on Warranty of Habitability. Enforcement of these responsibilities of the landlord may take a long time and be costly. It is very important that the tenant make a careful inspection of the premises before entering into a written or oral lease.

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A court of law can refuse to enforce any clause in a lease that the court finds to be unconscionable. Unconscionable terms in a contract refer to terms that the court finds to be extremely unreasonable or unfair toward the party with less bargaining power, in the case of rental agreements this is usually the tenant. However, it is not guaranteed that the court will rule in favor of the tenant, so the tenant is advised to not sign a lease with these clauses before seeking guidance or legal advice.

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There is no standard lease in WV. Leases can contain unexpected provisions, so landlords and tenants should carefully read the entire lease. Many clauses that may not be in the best interests of a tenant can appear in a lease. If any of the clauses such as those listed below appear in a lease, a tenant would be well advised to seek legal advice before signing the lease. These clauses include:

1. The tenant waives defects in the building, for example, elevator does not work

2. The landlord is not liable for damages arising from the premises, such as damages a fire caused by faulty electrical wiring

3. The tenant does not give written notice thirty days before the tenant wants to vacate the premises, and the lease is extended automatically to a period of time equal to the original lease or automatically renewed for another year

4. The tenant is liable for attorney fees and all legal costs arising from the lease

5. The tenant agrees to default judgment on controversy arising from the lease

6. The tenant agrees to replace the premises if they are destroyed

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The law does not permit terms to be changed by one party to a rental agreement, during the life of the agreement, without advance notice. For example, if a landlord wishes to legally increase the rent then he or she must provide notice to the tenant. The notice is effectively a way of terminating the current agreement and offering to enter a new agreement. The tenant has the right to stay in the rental property at the current rent for the remainder of the current lease and then can decide to agree to the increase or to leave the property. Other terms may be legally varied in a similar manner. This situation only applies when the landlord and tenant have not expressly agreed to a different form of notice. For more information on W.Va. Code §37-6-5 and Notice see Section 3.

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In West Virginia, oral leases are valid and binding rental agreements when made between a landlord and tenant for a rental term which lasts less than one year. The rules governing oral leases are substantially the same as those that govern written leases.

Unless otherwise stated by existing statute or case law, a landlord and tenant may negotiate most of the terms of their agreement however they see fit. Some legal protections, such as the right to fit and habitable conditions, cannot be legally negotiated away. When a lease is silent on a term the law will apply to fill in the gaps. For example, if a landlord has not specifically said in the rental agreement that pets are not allowed, then it is assumed that pets are allowed on the rental premises, because West Virginia law does not specifically forbid a tenant from owning a pet on rental property.

The landlord and the tenant can vary terms existing in law in the lease. For instance, West Virginia law provides a required notice period for either the landlord or the tenant to terminate a lease, but these provisions can legally be altered by agreement by both the landlord and the tenant.

While these rules apply to both written and oral leases, it is important to note it will be more difficult for either party to prove the presence or absence of terms in an oral lease.

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If the lease is for the rental of a lot site, where the land is rented and a mobile home owned by the tenant is placed on the rented property, the lease must be in writing. The landlord must give the tenant a copy of the signed, written lease and of the relevant Article of the West Virginia Code within seven days of the tenant signing the rental agreement. W.Va. Code §37-15-3(a).

The basic agreement in a mobile home lot lease is that the landlord agrees to allow the tenant to live on and use the property and the tenant agrees to pay the landlord a certain amount of money for the exclusive use of that property. A mobile home lot lease normally contains the following information:

• Length of the lease, for instance, one year or month-to-month

• Rent amount and payment terms

• Amount of security deposit (not to be used as rent, unless both the landlord and tenant agree)

• Lease renewal terms

• Notice requirements for terminating a lease

• Name of landlord and tenant(s)

• Exterior and/or interior maintenance responsibilities

• Person responsible for paying the utility bills

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The contract between the landlord and tenant is called a lease. Any contract for the lease of land lasting longer than one year must be in writing to be valid. W.Va. Code §36-1-3. An oral contract can be valid and binding for a lease lasting less than one year. A written lease that sets out all the rights and responsibilities of the landlord and the tenant can minimize several problems such as vagueness of lease terms and the difficulty of proving those terms should a disagreement arise.

Before signing a lease, a tenant should read the lease carefully and understand what it says. It is a good practice to have someone who understands leases to read it over as well. This could be an attorney or someone knowledgeable about leases and lease terms. This is particularly important if the tenant does not understand any of the requirements in the lease.

Once the landlord and tenant sign the lease, they are legally liable for the responsibilities set out in the lease unless the terms of the lease are in violation of state laws. Therefore, it is important that both the landlord and the tenant understand what the lease says or does not say, particularly about the following items:

1. Security deposits

2. Pets

3. Penalties for late rents

4. Conditions surrounding subletting

5. The lease duration, meaning when the lease will become effective and when the lease will terminate

6. Which party will be responsible for making improvements to the property, if any will be made, and which party is responsible for which repairs. See the section on Responsibility for Repairs for more information.

7. Who will be responsible for making and paying for reasonable modifications for tenants with disabilities, and what modifications will be necessary to accommodate the tenant’s disability. See Appendix E for more information on Fair Housing Law and reasonable modifications.

8. Conditions on which the lease may be terminated before the natural end of the lease terms.

9. When, and under what conditions, landlords, or their employees, are permitted to enter the rental unit.

10. How to renew the lease beyond the initial rental period.

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The Federal Fair Housing Act, as amended in 1988, prohibits housing discrimination on the basis of race, color, religion, sex, handicap (disability), familial status (presence of children 18 years and younger, pregnant women, or persons anticipating an adoption), and national origin. 42 U.S.C. §3604.

 

The West Virginia Fair Housing Act includes the seven protected classes in the federal Fair Housing Act and also forbids housing discrimination based on blindness and ancestry. W.Va. Code §5-11A-5.

The federal and state Fair Housing Acts cover private housing, housing that receives federal financial assistance, and state and local government housing with certain exceptions. W.Va. Code §5-11A-4.

The goal of the Fair Housing Acts is to provide protection against discrimination. These civil rights laws are designed to protect applicants so that all qualified applicants are equally invited to apply for rental housing and all qualified applicants are screened fairly.

Under the West Virginia Fair Housing Act W.Va. Code §5-11A-5(a)-(e), it is illegal to take the following actions against an applicant on the basis of race, color, religion, sex, handicap (disability), familial status, national origin, blindness, or ancestry:

• Refusing to sell or rent a dwelling after the making of a bona fide offer, to refuse to negotiate for the sale or rental of a dwelling, or to otherwise make the dwelling unavailable or deny the person the right to purchase or rent the property

• Discriminating against any person in the terms, conditions, or privileges of sale or rental

• Making, printing, or publishing any notice, statement, or advertisement that indicates preference, limitation, or discrimination in the sale or rental of a dwelling

• Making a dwelling unavailable for inspection, sale, or rental when the dwelling is in fact available

• Attempting for profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or possible entry into the neighborhood a person or persons of a particular race, color, religion, sex, blindness, handicap, familial status, ancestry, or national origin

According to the West Virginia Supreme Court of Appeals, it is unlawful for a landlord to discriminate against an individual based on his or her association with a person or persons of a protected class. West Virginia Human Rights Commission v. Wilson Estates, Inc., 503 S.E. 2d 6 (W. Va., 1998).

It is also unlawful to discriminate based on a disability of the renter, a person residing in, or intending to reside in, that dwelling, or any person associated with that person. W.Va. Code §5-11A-5(f)(1)-(2). In terms of the rental of property, a disability is defined as a physical or mental impairment that substantially limits one or more of a person’s major life activities, a record of having such impairment, or being regarded as having such impairment, but does not include current illegal use of, or addiction to, a controlled substance. W.Va. Code §5-11A-3(g)(1)-(3).

The Fair Housing Acts also require owners of housing facilities to make reasonable accommodations in their policies and operations to afford people with disabilities equal housing opportunities. The Acts require landlords to allow tenants with disabilities to make reasonable access-related modifications to their private living space. W.Va. Code §5-11A-5(f)(3)(A)-(B). In most cases, the landlord is not required to pay for the changes in private living spaces. W.Va. Code §5-11A-5(f)(3)(A).

Landlords may be responsible for making changes to private living spaces and to common-use areas such as mail and laundry facilities, under the Fair Housing Acts, in buildings constructed after March 13, 1991. W.Va. Code §5-11A-5(f)(3)(C). In addition, if the general public has access to places, such as a rental office or meeting room, it is possible the landlord may be required to make changes to these spaces under the Americans with Disabilities Act (ADA). 42 U.S.C. §§12812, 12813.

The information in this section is not a complete list of fair housing rights and responsibilities for tenants or landlords. Fair Housing is both complex and comprehensive. For more information about the Fair Housing Acts, see Appendix E.

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• Among the reasons a landlord might legally turn down an applicant are:

• The landlord cannot verify the applicant’s rental history, after making a good faith effort.

• The landlord cannot verify independently the amount and stability of tenant’s income. (For example: through pay stubs, employer/source contact, or tax records. If self-employed: business license, tax records, bank records, or a list of client references.) For Section 8 applicants, the amount of assistance will be considered part of tenant’s monthly income for purposes of figuring the proportion.

• The applicant has misrepresented any information on the application. If misrepresentations are found after a rental agreement is signed, the tenant’s rental agreement could be terminated.

• The applicant has a criminal record.

• The applicant had a court ordered eviction, or had any judgment for financial delinquency.

• Previous landlords report complaints of non-compliant activity such as repeated disturbance of the neighbors’ peace, reports of prostitution, drug dealing, or drug manufacturing, damage to the property beyond normal wear, reports of violence or threats to landlords or neighbors, allowing persons not on the lease to reside on the premises, or failure to give proper notice when vacating the property.

The above list is only a portion of the reasons a landlord may legally decline a person’s application to rent. If the applicant feels any reference given by a previous landlord was unfair, the applicant can request an opportunity to explain the situation and give alternate references.

A landlord can generally refuse to rent for any reason unless it is a discriminatory reason that violates civil rights laws such as Fair Housing.

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A landlord, the person whose property is being rented, will generally ask questions to determine if an applicant would be a good tenant. (See Appendix A for a sample rental application.) The application will provide information to help the landlord collect rental money or money owed for property damage if the tenant fails to uphold the lease terms.

Typical questions a landlord might ask to determine whether to accept the tenant’s application include:

• Full name, including middle

• Date of birth

• Driver’s license/legally accepted ID card (number and state)

• Social security number (Landlord may request it to run a credit check.)

• Name, date of birth and relationship of all people who are going to occupy the premises

• Name, address, and phone number of tenant’s past landlords

• Income/employment history including income/salary, contact/supervisor’s name, phone number and address. If the tenant is self-employed, the landlord could ask for a copy of business license, tax returns, bank records, or client references.

• Additional income – it is only necessary to list income that the applicant wants included for qualification

• Credit and loan references including automobile payments, department store and other credit cards, and other loans

• Bank references including bank name and account number

• Contact information of a relative to call in case of emergency

• Information about pets and deposit rules

• Other information required for the application

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