4.3 General Definitions

Affidavit of Indigency – A tenant who cannot pay court or jury fees can file an affidavit of indigency, which if approved, waives the fees.

Dwelling Unit – A single unit that provides complete, independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation.

Circuit Court – Circuit courts have jurisdiction over all civil cases at law over $300; all civil cases in equity; proceedings in habeas corpus, mandamus, quo warranto, prohibition, and certiorari; and all felonies and misdemeanors. The circuit courts receive appeals from magistrate court, municipal court, and administrative agencies, excluding workers’ compensation appeals. The circuit courts also hear appeals of family court decisions unless both parties agree to appeal directly to the Supreme Court of Appeals.

Constructive eviction – A tenant is no longer bound by a lease because the landlord creates a situation that makes it impossible for the tenant to live in the rental property, for instance, the landlord fails to provide adequate heat in the winter.

Counterclaim – A lawsuit brought in response to a lawsuit. An example would be a suit filed by a tenant against a landlord who has filed an eviction notice. In the countersuit, a tenant can sue for money damages as a result of the landlord’s failure to provide fit and habitable conditions at all times in the rental property.

Disability – As it pertains to the rental of property, a handicap is defined as a physical or mental impairment which 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.

Eviction – Eviction is the legal process undertaken by a landlord to remove a tenant from rental property. The landlord must provide an eviction notice. A court will decide if a tenant is given an eviction order.

Exterior Property – Exterior property is the open space on the premises and on adjoining property under the control of owners or operators of such premises.

Fair Housing – The Fair Housing Act, as amended in 1988, prohibits housing discrimination of the basis of race, color, religion, sex, disability, familial status, and national origin. West Virginia state law also prohibits housing discrimination on the basis of ancestry and blindness.

Familial Status – As it pertains to Fair Housing laws, one or more individuals who have not attained the age of 18 and are living with a parent or other person having legal custody of such individuals or a person having written permission from the parent or legal guardian to have the minor living in his or her custody; or any person who is pregnant or is in the process of securing legal custody of an individual who is under the age of 18.

Fixed Period Tenancy – A lease that states a specific beginning and ending date of the rental period. A fixed tenancy is automatically over at the end of the fixed rental period. Tenants are not required to give notice if they intend to leave at the end of the rental period.

Habitable Space – Space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls storage or utility paces, and similar areas are not considered habitable spaces.

Handicap – see Disability

Holding Over – Holding over occurs when a tenant does not leave a rental property at the end of a lease.

Implied Warranties – The law imposes certain responsibilities on a landlord, whether they are stated in a written lease or not. These responsibilities are called “implied warranties.‛

Judgment for Possession – A court order that requires a tenant to vacate the rental property by a certain date.

Landlord – The landlord is the person who owns the rental property. In apartment complexes, the manager may be considered the landlord.

Lease – A lease is a contract between a tenant and a landlord. The lease may be either written or oral.

Magistrate Court – There are 158 magistrates statewide, with at least two in every county and 10 in the largest county. Magistrates issue arrest and search warrants, hear misdemeanor cases, conduct preliminary examinations in felony cases, and hear civil cases with $10,000 or less in dispute (see new law WV Code §50-2-1, effective June 2016 increasing maximum case jurisdiction from $5,000 to $10,000). Magistrates also issue emergency protective orders in cases involving domestic violence. The circuit courts hear appeals of magistrate court cases. Magistrates run for four-year terms in partisan elections. They do not have to be lawyers. Circuit judges appoint magistrates to fill vacancies. An appointee who wishes to remain in office must run in the next election.

Multiple Housing Unit – As it pertains to Warranty of Habitability laws, a dwelling which contains a room or group of rooms located within a building or structure forming more than one habitable unit for occupants for living, sleeping, eating, and cooking.

Owner – Any person, agent, operator, firm, or corporation having a legal or equitable interest in the property; or recorded in the official records of the state, county or municipality as holding title to the property; or otherwise having control of the property.

Periodic Tenancy – A tenancy where the lease is year-to-year, month-to-month or week-to-week. For example, a month-to-month tenancy would be for a lease for one month periods. Often a lease agreement will list requirements for terminating the lease. If a lease does not list these requirements, either the landlord or the tenant may terminate the lease by giving written notice, one full rental period in advance of termination.

Premises – A lot, plot or parcel of land, easement or public way, including any structures on the land.

Reasonable Accommodation – A change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces.

Reasonable Modification – Structural changes made to existing premises in order to afford a person with disabilities full enjoyment of the premises.

Repairs – Maintenance that is necessary to keep the rental property in fit, habitable, and working condition.

Tenancy – Tenancy is the legal name for the tenant’s right to occupy the house or apartment being rented.

Tenant –  A tenant is the person who pays rent for a rental property. If there is a written lease, the tenant is the person who signed the lease.

Unconscionable – In contracts, a term is unconscionable if the court finds that the term is extremely unreasonable or unfair towards the party with less bargaining power; the term “shocks the conscience” of the court.

Warranty of Habitability – The landlord must provide rental units suitable to live in. If the landlord creates conditions on the premises that make them unfit for the tenant to use, the tenant may leave the premises and be excused from rental payments.

Warranty of Quiet Enjoyment – During the term of a lease, the rental unit belongs to the tenant and no one, including the landlord, is permitted to enter without the consent of the tenant, while the tenant is using the premises. No one, including the landlord, can disturb the tenant and neither the landlord nor his employees are permitted to enter unless the terms of the lease would provide otherwise.


4.2 HUD Housing Choice Voucher Program

The HUD Housing Choice Voucher Program (formerly called the Section 8 program) provides housing subsidies to very low-income persons, the elderly, and people with disabilities to help them find decent housing. Participants who receive vouchers are free to choose any housing that meets the requirements of the program and is not limited to units in subsidized housing projects.

The housing vouchers are administered locally by public housing authorities (PHA). The public housing authority pays the housing subsidy directly to the landlord on behalf of the participating individual or family. The PHA determines what “reasonable rent‛ is and sets that amount. Landlords do not have to accept vouchers, but if they do they may not charge you more than the amount set by the PHA.

Landlords who accept the Section 8 housing choice vouchers are required by HUD to maintain a safe and decent living environment and charge rent at fair market rates. The rental property must meet HUD’s “housing quality standards‛ for safety and sanitation.

Call your local housing authority for information on how to apply for a housing choice voucher. To locate a public housing authority in your area, call 800-955-2232 or go online to www.hud.gov/offices/pih/pha/contacts/.

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4.1 Legal Assistance

Legal Aid of West Virginia – Legal Aid of West Virginia (866-255-4370) may be able to assist low-income tenants facing eviction, having difficulties with subsidized housing, or who feel they are being treated unfairly by their landlord, such as failure to repair sub-standard conditions. www.lawv.net

West Virginia Senior Legal Aid, Inc. – If you are at least 60 years of age you can call West Virginia Senior Legal Aid, Inc. (800-229-5068) for legal assistance with rental issues. www.seniorlegalaid.org

West Virginia Office of the Attorney General Civil Rights Division – The West Virginia Office of the Attorney General Civil Rights Division enforces the West Virginia Human Rights Act and the West Virginia Fair Housing Act. The West Virginia Fair Housing Act prohibits discrimination in the sale or rental of housing against any person because of race, color, religion, ancestry, sex, familial status, blindness, handicap or national origin. If you feel your rights have been violated in regards to housing, you can call the West Virginia Human Rights Commission at 888-676-5546 or the Office of the Attorney General Civil Rights Division at 877-421-5074. www.hrc.wv.gov

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