Category: Housing / Utilities

A utility company has a right to travel over the lands of a private land-owner for the purpose of building and maintaining power lines, pipelines, or any other structure necessary for the operation of the utility. This right is granted by the state through the power of eminent domain.  

This right of way is known as an easement. Generally the utility company will pay for the easement, but if the landowner refuses to contract for the easement, the utility company can take the easement through a condemnation proceeding. Regardless of the manner in which the utility company gains the easement, it still has the same rights and duties. 

The utility company has the right to enter land to repair and maintain its lines and structures. This right is limited to such use as will be “reasonably necessary” to achieve these ends. However, if any damages are caused by the negligence of the utility company, the property owner will be able to recover damages from the utility company. In such a case, the landowner will have an action in magistrate court or circuit court to recover the fair market value of the damages. 

If the damage is to a road the utility company has used and damaged, whether you can recover from the utility is unclear because no case law exists on that point. However, the law discussed above should still apply, and the landowner should be able to recover for any damages done. 

For more information, see: Wheeling Elec. Co. v. Gist, 154 W. Va. 69, 173 S.E.2d 336 (1970).

First, contact the utility company and request an installment payment plan. Certain utility companies, like gas and electricity, are required by law to work with you to develop a reasonable installment plan if you request it. Electric companies, for example, may consider factors including the amount of the bill, the customer’s ability to pay, payment history, how long the balance has been outstanding and why, and other relevant factors. If you are not able to get the company to offer you a plan you can afford you can appeal the decision to the Public Service Commission and as long as you pay the current bill they cannot terminate your service pending the appeal. 

If you are not able to pay any amount of your utility bills, you may be eligible for low-income energy assistance. The federal government provides funds to West Virginia under the Low Income Energy Assistance Program (LIEAP). The West Virginia Department of Health and Human Resources (DHHR) distributes this federal money. Energy assistance only applies to utilities that are related to heating your home: gas, electricity, oil, wood burning, etc. 

You can submit an application for low-income energy assistance at any Senior Center or local DHHR office. If you meet certain eligibility requirements, DHHR will make payments directly to the gas or electric company. 

The state Public Service Commission (PSC) regulates electricity and gas utility companies. If one of these utilities wants to shut off your service, it must follow certain regulations. First, the utility must mail you a notice that it is shutting off service within 10 days of the cut-off date. Then, it has to attempt to make personal contact with you by telephone 24 hours before service is cut off. 

In certain instances, the utility company may not be allowed to cut off your service. The utility company cannot cut off service without letting you work out an installment plan if doing so would jeopardize the safety of someone in your household. The Public Service Commission has the following list of circumstances when the health or safety of someone would be in danger:  

•during the winter months, 
•if someone in your home is using a dialysis or life-supporting machine, or 
•if a doctor states in writing that cutting off the electricity would be dangerous to your health. 

If you are over 65 years old or you are disabled, the utility company is supposed to contact a relative before cutting off your service. In addition, the utility company has to allow you to pay your bill before it cuts off the service. If a utility worker comes to your house to cut off your service, and you pay the worker the bill, he cannot cut off your service. In addition, the utility company cannot cut off service during non-working hours or on a Friday, Saturday, or Sunday. 

If you cannot work out an installment plan, you can request a hearing with the utility company. During this hearing, you can try to convince the utility company that your service should not be turned off. 

If you do not agree with the final decision of the utility company, you can appeal the decision to the Public Service Commission. You must do this within seven days of the utility company’s final decision. You can contact the Public Service Commission of WV at 1 (800) 642-8544. As long as the Public Service Commission is looking at your case, the utility company cannot cut off your service. 

If your service does get cut off, you can pay the bill and the utility company has to turn your service back on within eight hours. However, the utility company may charge you a re-connection fee (usually five dollars). 

Keep in mind that these rules and regulations only apply to gas and electric companies. They do not apply to water, phone, or cable television. If you believe you are being treated unfairly by a utility company, contact the Public Service Commission of WV at 1 (800) 642-8544. 

For more information, see: 42 U.S.C. §§ 8621-8629 (2015); 45 C.F.R. §§ 96.80-96.89 (2015); W. Va. C.S.R. §150-3-4(4.8) (2015); W. Va. Public Service Commission, http://www.psc.state.wv.us (last visited June 12, 2015); West Virginia Low Income Energy Assistance Program, http://www.wvdhhr.org/bcf/family_assistance/utility.asp (last visited June 12, 2015).

In general, the life tenant is not required to keep the property insured, unless there is a specific agreement to do so. However, a life tenant does have an insurable interest in the property. An insurable interest is a substantial economic interest in the safety or preservation of the property. Because you live there, you have an insurable interest; therefore, you can insure the property if you want to. It may be a good idea to do so in order to protect both yourself and your interest in the house.  

Under West Virginia law, a life tenant is responsible for paying all ordinary taxes on the property. If the life tenant fails to pay the taxes, the state can foreclose on the property. In this situation, the remainderman’s interest will be seriously affected, and the life tenant will be liable to the remainderman. The remainderman is the person who will own the home after your life estate ends. However, you are only responsible for the taxes accrued during your possession of the property. Past-due taxes must be paid by the estate. 

If your spouse took out a mortgage on the property which is not paid off, you are responsible for paying the interest on the mortgage. However, you are not responsible for paying the principal of the mortgage. Furthermore, you will not even be responsible for paying the interest if it exceeds the fair rental value of the property.  

For more information, see: W. Va. Code § 11-3-8 (2015); Boggess v. Scott, 48 W. Va. 316, 37 S.E. 661 (1900) (questioned by Bailey v. Baker, 137 W. Va. 85, 68 S.E.2d 74, 70 S.E.2d 645 (1951)); McDougal v. Musgrave, 46 W. Va. 509, 33 S.E. 281 (1899); Irwin v. Zane, 15 W. Va. 646 (1879); 31 C.J.S. Estates §§44-46 (2009); 7A Michie’s Jurisprudence Estates §27 (2009).

First of all, it is important to understand that what you have is called a life estate and what your stepson has is a remainder. Generally, a person holding a life estate in a particular piece of property has the right to possession of that property for as long as he/she lives. The life tenant can use, occupy, and enjoy the property while he/she is alive. The very idea of a life estate is that you have present and free enjoyment of the property. Your stepchild is the remainderman, which means that he will own the property after your life estate ends. Conflicts may arise between life tenants and remaindermen because both people have valid but distinct interests in the property. 

As a life tenant, it is your responsibility to preserve the property and care for it by keeping your stepchild’s interest in mind. You cannot do anything which causes permanent injury to the property. You can enjoy the land and use it as much as you want–that is your right as a life tenant. But you are responsible for making sure that no damage occurs that would affect your stepchild’s interest. For example, you may cut timber for your own firewood or make minor repairs to the property, but you are not permitted to timber the entire property or begin selling firewood for profit.  

The life tenant is also responsible for ordinary repairs necessary to preserve the property. Ordinary repairs are generally ones that do not exceed the fair rental value of the property. You are obligated to keep the property in as good a condition as it was when you received the life estate, minus ordinary wear and tear. If the roof begins leaking, you will probably have to patch it, but you probably do not have to go buy a new roof. As a life tenant, you are not responsible for extraordinary or unusual repairs. You will not be held responsible for the repairs if there is a flood or a tornado, for example.  

You must also be very careful in making any major improvements to the property. You will be expected to keep the house in more or less the same condition as it was when you received the life estate; therefore, what may seem like an improvement to you may not be an improvement to the remainderman. Also, if you do make improvements, generally you cannot charge them to the remainderman. A few exceptions apply to this general rule. For example, you may be able to share the costs or have the estate pay for the work to the property if you are obligated under statute or municipal order to make the improvements, or because the property would become unmanageable if the improvements were not made.  

For more information, see: Kanawha Banking & Trust Co. v. Alderson, 129 W. Va. 510, 40 S.E.2d 881 (1946); University v. Tucker, 31 W. Va. 621, 8 S.E. 410 (1888); McDougal v. Musgrave, 46 W. Va. 509, 33 S.E. 281 (1899); Callwood v. Virgin Islands National Bank, 221 F.2d 770 (1955); Lynch v. Johnson, 196 Va. 516, 84 S.E.2d 419 (1954); Livesay v. Boyd, 164 Va. 528, 180 S.E. 158 (1935); 31 C.J.S. Estates §§29,41-43 (2009).

When property is owned by more than one person, it may be owned with or without the right of survivorship. Persons who own property without the right of survivorship are called tenants in common. Each tenant in common owns a percentage of the property. For instance, if you and your spouse own your home as tenants in common, you each own half, or 50%. Persons who own property with the right of survivorship are called joint tenants, or joint tenants with the right of survivorship. Spouses who own as joint tenants are sometimes called tenants by the entirety. Each joint tenant owns an undivided interest in the whole property. This means that each person actually owns the whole property at the same time.  

When a joint tenant dies, the surviving owner automatically owns the whole property. When a tenant in common dies, his or her interest transfers according to his or her will. This is important because property can avoid probate if owned as joint tenancy with right of survivorship. However, property jointly owned may still be considered for tax purposes. 

In West Virginia, property that is acquired by a married couple is not automatically considered a joint tenancy or tenancy by the entirety. The deed must expressly state that the right of survivorship is intended. If there is any question as to whether ownership is a joint tenancy or tenancy in common, the court will presume that the parties held ownership as tenants in common. That presumption can only be overcome by clear and convincing evidence showing that the intention of the parties was to create a joint tenancy with the right of survivorship.  

Furthermore, if one joint tenant transfers or sells his or her interest, survivorship is destroyed. The property then is held as a tenancy in common. 

For more information, see: W. Va. Code §§ 36-1-19 to -20 (2014);W. Va. Code §§ 44-1-14 (2014); Lieving v. Hadley, 188 W. Va. 197, 423 S.E.2d 600 (1992) (abrogated in part by State v. Mckinley, 764 SE 2d. 303 (2014) but only relating to “the footnote” issue); John W. Fisher, II, Joint Tenancy in West Virginia: A Progressive Court Looks at Traditional Property Rights, 91 W. Va. L. Rev. 267 (1989), available at http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/wvb91&div=20&id=&page= (last visited June 12, 2015); 5A Michie’s Jurisprudence Cotenancy §§ 2, 3, 7 (2009).

You must be sure that the tenant has abandoned the property. If he is current on his rental payments, he is entitled to possess the apartment and may leave for extended periods of time. However, if he has not paid rent and you know that he has left the apartment without plans to return, or if there are strong indications of such, there are steps you can take to repossess the property.  

First, post a notice in a conspicuous place stating that the tenant must pay rent within one month. This notice should be placed where the tenant would be sure to see it if he returned to the apartment. You may also include in the notice that if the tenant does not respond within a month, you will re-enter and re-let the property. If, after a month, the tenant has not responded and it does not appear that he has returned, then you may re-enter the apartment.  

It is a good idea to keep the tenant’s belongings until a Magistrate judge authorizes you to dispose of them. After you re-enter the apartment, go to the Magistrate and request a court order allowing you to dispose of the property. The general rule is that the clearer the indications of abandonment, the less of a duty the landlord has to safeguard the tenant’s property. If the tenant returns and demands his things after a long period of absence, you will be protected from liability for the value of the tenant’s belongings by the court order. Another way to protect your rights is to include a clause in the lease allowing you to discard of the tenant’s belongings if he or she has not paid rent and has not resided on the premises for a specific length of time.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §§ 37-6-5 to -8, -12 (2015); State ex rel. Payne v. Walden, 156 W. Va. 60, 190 S.E.2d 770 (1972) (questioned by Union Barge Line Corp. v. Marble Cliff Quarries Co., 374 F. Supp. 834 (1974)).

When you lease an apartment or other dwelling, you are guaranteed that the property will be habitable and in good condition. This guarantee is called the warranty of habitability. Even if those words are not expressly stated in the rental agreement, the landlord is required by law to ensure the property meets certain standards. To maintain the property, the landlord must ensure that the following duties are fulfilled: 

•The apartment must meet health, fire, and housing codes; however, the landlord is released from this responsibility if failure to meet the codes’ standards are due to your conduct or an invited guest’s conduct; 
•The common areas such as hallways, entrances, and laundry rooms must be clean, safe, and in good repair; 
•All electric, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, must be kept in good repair;  
•In multiple housing units, the landlord must provide and maintain appropriate conveniences for garbage removal;  
•There must be a supply of running water with an adequate amount of hot water at all times, and reasonable heat between October 1st and April 1st, unless the dwelling is constructed so that installation of heat and running water is under the exclusive control of the tenant; 
•The landlord must fulfill any additional obligations contracted to in the rental agreement. 

If your landlord has not upheld his part of the lease agreement or has violated the warranty of habitability, you may be able to sue for damages or vacate your apartment without being held to the lease. To obtain a legal remedy, the violation must be substantial and affect basic living requirements. For example, heating, running water, garbage, and sometimes a working elevator are considered essential living requirements. However, a cracked wall, a water leak, or not painting a room are only considered minor violations unless the problem is of such proportion that it affects the habitability of your home.  

You also have certain duties to the landlord to fulfill before you are entitled to a legal remedy. Before a court will award damages or release you from the rental agreement, you must show that you gave the landlord notice of the problem and a reasonable opportunity to repair the defect. Also, you must be up to date on paying rent. If you have not been paying rent to your landlord and have not been reserving rent in an escrow account–even if it is because the apartment is in poor condition–it will look like you are bringing a suit against your landlord to avoid payment. This will severely affect your credibility in court.  

If you choose not to pay rent in an attempt to pressure your landlord to improve the apartment, it is vital that you put the money in an escrow account and not use it. That way, your credibility will be preserved, and if your case is not successful, you will be able to quickly pay back any rent you owe to the landlord. If the court finds that you do not owe any rent, the money will be returned to you.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: § 37-6-30 (2015); Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978).

You may complain to the U.S. Department of Housing and Urban Development (HUD). HUD is responsible for all government-subsidized housing, whether it be “Section 8,” public housing, or privately owned housing. Landlords are required to deal fairly with tenants and provide safe and decent housing. To report a bad landlord, call toll-free at 1 (800) 685-8470/ TTY 1 (800) 432-2209. Or, you may call the Charleston HUD office at 1 (304) 347-7000. 

You can also file a complaint with HUD if you believe you have been denied government-subsidized housing based on age or disability. To report housing discrimination, you may fill out a complaint form online; call toll-free, 1 (800) 669-9777; or write a letter. In the letter be sure to include all of the following: 

•your name and address; 
•the name and address of the person your complaint is about; 
•the address of the house or apartment you were trying to rent or buy; 
•the date when this incident occurred; and 
•a short description of what happened.  

Mail the letter to either the regional office or the local field office : 

Philadelphia Regional Office of FHEO 
U.S. Department of Housing and Urban Development 
The Wanamaker Building
100 Penn Square East, 12th Floor
Philadelphia, PA 19107-3380

OR 

Charleston Field Office of FHEO
U.S. Department of Housing and Urban Development
405 Capitol Street, Ste. 708
Charleston, WV 25301-1795

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: The U.S. Department of Housing and Urban Development, Homes and Communities, Housing Discrimination, http://www.portal.hud.gov/hudportal/HUD?src=topics/housing_discrimination (last visited June 12, 2015).

Based on new legislation for all leases signed on or after July 1, 2012 an heir, personal representatives, devisee, or assignee may terminate your lease if you die prior to its expiration. The termination of the lease will be effective on the last day of the second month after the request to terminate is either hand-delivered or post-marked to the landlord. The estate is still responsible for any rent owed prior to the tenant’s death and for the two months after the request to terminate is made. The estate will also be responsible for any costs of bringing the rental property back to its condition when the rental began, except for ordinary wear and tear. A landlord is not allowed to require a longer than two month notice period to terminate after a tenant’s death.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §37-6-11 (2015).

Probably not. Landlords may use your security deposit to act as a buffer if you move out of your rental before your lease ends. The deposit ensures that the landlord has some income until he/she can find another person to fill the rental. Your landlord is required to take steps to re-rent the place, but if that takes more than one rent period after you leave your deposit may be used to pay the rent due for that month. Thus, if you break the lease you may not necessarily have a right to get your deposit back. But if your landlord keeps any or all of your deposit he or she is required to provide an itemized list of the charges within 60 days of the end of our tenancy or 45 days from the time the place is re-rented, whichever is shorter.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §§37-6A-1 through 6 (2015); Russell v. Pineview Realty, 165 W. Va. 822, 272 S.E.2d 241 (1980).

A landlord may collect a security deposit in order to pay for potential damages to the property or failure to pay rent. If you have not caused any damage or fallen behind in your rent you are entitled to get your security deposit returned to you. 

The landlord has either 60 days from the end of your tenancy or 45 days from the time the property is re-rented (whichever is shorter) to return your security deposit minus any costs for damages beyond normal wear and tear or other charges. If the landlord keeps any of the security deposit, an itemized list of damages and charges must be supplied at the time that the remainder of the deposit is returned. 

These rights are not waivable, so language in your lease that would take away these rights is not valid.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §§37-6A-1 through 6 (2015), 63 A.L.R. 4th 901

Yes, but you will probably be liable to your landlord if he/she loses money because you broke the lease. When you sign a lease, you are agreeing to the provisions of that lease. Some landlords will allow you to break a lease if you give them sufficient notice. In that case, the landlord may just keep your security deposit if there is one. Your lease may also have provisions that allow you to break the lease. A common clause is that a lease may be broken if your job transfers you out of the area. Check the lease carefully to see if there is an escape clause. 

If there is no way to get out of the lease, you may be able to sublet or assign the premises. When you sublet your portion of the lease, someone else (called the subtenant) takes over your lease for a specified period of time, after which you usually return to finish the lease. If, for example, you are planning to go somewhere warmer for the winter, for example, you could sublease your apartment during the months you are gone. During that time, you are still responsible to the landlord if the subtenant breaches the lease. For example, if the subtenant breaches the lease by not paying rent, you may be responsible for the unpaid rent. 

If you do not intend to return to your apartment and you want someone to take over the remainder of the lease, you could assign your interest in the lease. Once you assign your interest in the lease to someone, you are released from all obligations to the landlord. For this reason, assignments must be in writing.  

If your lease does not say anything about subleasing or assignments, then it is allowed. However, many leases require the landlord’s approval before you can sublet or assign, and some leases prohibit subletting or assigning completely. But as a practical matter, if the landlord is confident that the new tenant will be suitable, he or she may not object to the sublease. Besides, the landlord may still be able to get the rent from you if you sublease and the new tenant does not pay. 

If you cannot find a suitable new tenant, you will be responsible for the rent for the remainder of the lease term. If you leave the premises, and do not pay further rent, the landlord has two choices. First, he or she can re-enter the property and accept your surrender. This means that the landlord is ending the lease agreement, you cannot live there anymore, and you no longer have to pay rent. There is a special procedure that the landlord must go through to be able to re-enter the premises. 

A landlord will generally only re-enter if he or she has a new tenant lined up. If the landlord does get a new tenant, and the new tenant will not pay the same rent as you did, the landlord can make you pay the difference. 

If a landlord does hold you responsible for the rent, then the only question is whether the landlord will pursue you to try to collect the rent due. Some landlords will not bother tracking down skipping tenants to make them pay, but many do. It is not wise to assume that your landlord will not bother with trying to get you to pay the rent if you break your lease. It is better not to sign a lease if you think you cannot stay for the entire lease term.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §§ 37-6-6 to -9 (2015); Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978); 11B Michie’s Jurisprudence Landlord and Tenant §§ 57-60 (2009); Bowyer v. Seymour, 13 W. Va. 12 (1878).

Yes, depending on the type of pet. There are many health benefits associated with the ownership of pets. Because of this, the federal government specifically provides that the elderly and disabled are permitted to keep pets in any public housing. A public housing landlord cannot discriminate against you because you have a pet nor is the manager or landlord of public housing allowed to prevent you from owning a pet. The pets that are covered by law are common household pets, such as dogs, cats, birds, rodents, fish, and turtles. Landlords, however, may prohibit you from keeping an exotic pet such as an iguana or a snake. Landlords may also impose reasonable regulations concerning common household pets. 

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: 24 C.F.R. §§ 5.306, 5.309, 5.312, 5.315 (2015).

The majority of residents in public housing are senior citizens. As a result, the federal government has passed laws to ensure that the elderly have suitable public housing. Public housing for the elderly and the disabled must be equipped with special accommodations. Such accommodations include railings in hallways, wheelchair cabinets, lower cabinets, elevators, and railings in showers. These facilities are designed to make life easier for elderly and disabled residents. Your current home may not have many of these features, and so as a result, your move to public housing might even improve the quality of your housing.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: 24 C.F.R. § 945.101 (2015); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 19.2, 19.4 (2nd ed. 1994).