2.12 Destruction of Buildings

If leased property is destroyed in whole or part by fire or otherwise, and if the destruction is not caused by the negligence or carelessness of the tenant, then the tenant has a right to a reasonable reduction in rent for the amount of time it takes the landlord to replace the leased structure with one of as much value to the tenant as the one which was destroyed, unless the lease otherwise provides. If the landlord does not replace or rebuild the leased structure, then the tenant has the right at the end of a reasonable period of time to surrender possession of the leased premises and be relieved of any further liability for rent not yet owed at that time. W.Va. Code §37-6-28.

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2.11 Covenant for Quiet Enjoyment

West Virginia law grants tenants the right to the quiet and peaceful enjoyment of their rental property as long as they are current in all rent payment owed. W.Va. Code §36-4-14. This means that as long as the tenant has paid all rent owed, the tenant has the right to enjoy the property without the interruption or disturbance by any person including the landlord.

It is unlawful for the landlord or any person to enter the premises without consent of the tenant, or reasonable notice in advance, except in emergency situations, such as threat to the health and safety of an individual or property. If the landlord violates the tenant’s right to quiet enjoyment by entering the premises without his or her permission or subjecting the tenant to other forms of harassment, then the tenant has the right to file suit against the landlord for trespass and invasion of the right to privacy.

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2.10 Smoke and Carbon Monoxide Detectors

Effective June 2012, the West Virginia legislature amended W.Va. Code §29-3-16a of the Fire Prevention and Control Act. Under this law, as amended, an operational smoke detector must be installed in the immediate vicinity of each sleeping area in all one and two family dwellings. The detector must meet the specifications of and be installed in accordance with the current edition of the National Fire Prevention Association Standard 72. When activated the alarm must be loud enough to warn the occupants of the dwelling of the danger of a fire. W.Va. Code §29-3-16a(a).

It is the responsibility of the owner of the dwelling to install and replace operational smoke detectors, however, it is the duty of the tenant to perform routine maintenance on the smoke detectors. W.Va. Code §29-3-16a (b). If the tenant of a unit is deaf or hearing impaired, it is the responsibility of the owner, upon written request by or on behalf of the tenant, to provide and install a smoke detector with a light signal sufficient to warn the deaf or hearing-impaired individual of the danger of fire. W.Va. Code §29-3-16a(c). A properly installed, automatic fire sprinkler system may be provided instead of smoke detectors. W.Va. Code §29-3-16a(d).

Effective September 1, 2012, a carbon monoxide detector or a combination detector meeting state law specifications must be installed, maintained, tested, repaired, or replaced, as necessary, in either a common area where the general public has access to or all rooms in which a person will be sleeping which are adjoining to, directly below, or directly above all areas or rooms which contain permanently installed fuel-burning appliances and equipment that emits carbon monoxide as a byproduct of combustion in all apartment buildings, boarding houses, dormitories, long-term care facilities, adult or child care facilities, assisted living facilities, one and two family dwellings intended to be rented or leased, hotels, and motels. W.Va. Code §29-3-16a(f)(3).

Effective January 1, 2013, the single station carbon monoxide detector or combination detector, where required by law must be hardwired into an alternating current (AC) electrical source with a battery backup. W.Va. Code §29-3-16a (g).

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2.9 Withholding Rent

According to the West Virginia Supreme Court of Appeals, if a landlord has failed to maintain rental premises in a fit and habitable condition, he or she has violated the lease agreement’s implied warranty of habitability. Once the lease agreement has been violated, the tenant has the right to withhold further rent until such time as the landlord makes reasonable repairs to maintain the property in fit and habitable condition. Teller v. McCoy at 120.

The tenant also has the right to vacate the premises and effectively terminate his or her responsibility to pay further rent if the landlord has violated the implied warranty of habitability. Teller v. McCoy at 125-26. Breach of the implied warranty of habitability is a defense to an attempt to evict the tenant in court in West Virginia. Teller v. McCoy at 127. However, if the tenant does withhold rent until improvements are made, he or she may be required to repay all rent due at the point of repair by the landlord, pay such money into the court during a pending action by either the landlord or the tenant, and/or to repay all or any part of the amount due at the time when any court might order such. Teller v. McCoy at 129-30.

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2.8 Affidavit of Indigency

If the tenants are unable to pay filing fees and court costs, they have the right to file an Affidavit of Indigency which, if granted, will waive some court costs of litigation. The tenants have the right to have the case decided by a jury in either magistrate court or circuit court, but not both. A tenant unhappy with the outcome of litigation in magistrate court may appeal any part of the final decision to the circuit court within 20 days after the judgment is entered. WV R MAG CTS RCP Rule 18.

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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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2.6 Warranty of Habitability – The Right to Decent Housing

In West Virginia, tenants have a right to live in decent housing, and landlords are obligated to maintain rental premises in a fit and habitable condition for the duration of the lease agreement as long as they are receiving rent payments from the tenant and the tenant has not caused the deterioration of the premises through negligence or carelessness. W.Va. Code §37-6-30. The West Virginia Supreme Court of Appeals has ruled that even if there is no written lease, there is an “implied warranty of habitability”; meaning that where there is no written lease but where the law recognizes a landlord-tenant relationship, the landlord is responsible for maintaining the premises in a fit and habitable condition. Teller v. McCoy, 253 S.E. 2d 114 (W. Va., 1978).

Under W.Va. Code §37-6-30, a landlord is responsible for:

1. Delivering the premises in a fit and habitable condition and thereafter maintaining such condition

2. Maintaining the leased property in a condition that meets all applicable health, safety, fire, and building codes, as long as the failure to meet such codes is not the fault of the tenant or others on the premises with permission of the tenant

3. Keeping clean, safe, and in repair all common areas that are maintained for the use and benefit of the tenants in multiple housing units

4. Making all repairs necessary to maintain the premises in a fit and habitable condition, unless such repairs were made necessary primarily by a lack of due care by the tenant or others on the premises with the permission of the tenant

5. Maintaining in good and safe working condition all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him or her by written or oral agreement or by law

6. Providing and maintaining appropriate conveniences for the removal of ashes, garbage, rubbish and other wastes incidental to occupation of the dwelling in multiple housing units

7. Supplying running water and reasonable amounts of hot water at all times, and reasonable heat between the first day of October and the last day of April, except where the unit is constructed so that running water, heat, and hot water are provided by an installation in exclusive control of the tenant in units supplied by direct public utility connections

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2.5 Reasonable Modifications vs. Repairs

In legal terms, in the lease for a rental property, the term “reasonable modification” or “accommodation” and the term “repairs” have different meanings. Different types of responsibilities and rights are imposed by law on both landlords and tenants depending on whether a tenant requires a reasonable modification or a repair.

Repairs mean any type of maintenance required to keep the rental property in fit, habitable, and working condition, such as repairing a broken heater or replacing faulty wiring. Repairs apply to all rental properties and include any maintenance necessary to keep the property in compliance with both state and federal law. Repairs can be the responsibility of either the landlord or the tenant, more information on which party is responsible in different situations is contained in this Section.

Reasonable modification or accommodation means any structural change which is necessary to afford a person with disabilities full enjoyment of the leased property. This means making the existing property readily accessible and useable by tenants with disabilities, such as making sure doorways are wide enough for wheelchairs or adding grab bars in the shower. See Appendix E for information on what modifications are the responsibility of the tenant and what must be legally provided by the landlord.

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2.4 Responsibility for Repairs

The responsibility for repairs and upgrades may be the responsibility of either the landlord or the tenant depending on the type of repair, who caused the damages, and what repairs and upgrades were agreed to in the written lease.

The landlord is responsible for paying for and making all repairs to the rental property and common areas as are necessary to keep the premises in good condition and to maintain compliance with all relevant health, safety, fire, and building codes during the term of the lease. W.Va. Code §37-6-30.

The landlord is not responsible for making repairs to damage that was caused by the neglect or carelessness of the tenant, or others on the premises with the permission of the tenant. Even if those repairs would otherwise be required by law. W.Va. Code §37-6-30. The tenants are liable for repayment of any repairs made necessary due to their negligence or carelessness. Failure to pay such damages is a legal ground for,and may result in, eviction.

Generally, routine repairs are the responsibility of the landlord as a part of the services included with rent, however this can legally be altered by express agreement by all parties to the lease. Tenants do not have the right to waive their right to live in habitable housing and it is the duty of the landlord to maintain the property in the condition of habitability imposed by law. General repairs not affecting the warranty of habitability may be the responsibility of the tenant if the tenant has expressly agreed to this provision in the rental agreement.

If the tenant has a written lease, oral promises by the landlord to make repairs which are not included in the written document are not enforceable. For an agreement to make such repairs binding on either party, the oral agreement must be written into the written lease. Oral agreements and oral leases are very difficult to prove in court in the event of a disagreement between the parties.

Landlords are not generally responsible for changes to private living areas. In most cases, any upgrades desired by the tenant must be made at his or her own expense and the landlord has the right to require that the tenant remove any changes at the termination of tenancy or pay to have the changes removed.

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2.3 Tenant’s Personal Property

Tenants are responsible for damages to their personal property. Landlords typically do not insure anything other than the building and infrastructure items such as elevators and air conditioning systems. Even negligent actions caused by one tenant, such as a fire in another rental apartment that causes damage to an innocent tenant’s personal property, will not be covered by the landlord’s insurance.

Exceptions to this could include damage caused by the landlord’s negligence such as damage caused by faulty electrical wiring. However, a tenant might have to seek assistance from a court to receive compensation for damage to personal property.

Many insurance companies have rental insurance available for tenants to help insure personal property against damage.

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2.2 Tenants

Tenants have a set of rights imposed by both rental and general laws. In West Virginia, tenants have the legal right to rent a premise regardless of their race, religion, color, national origin, ancestry, sex, blindness, handicap (disability), or familial status. W.Va. Code §5-11A-5. They also have the right to have such premises delivered and maintained in a fit and habitable condition for the duration of their tenancy. W.Va. Code §37-6-30.

If a landlord fails to maintain the premises in a fit condition then the tenant has the right to complain to the landlord or to local government agencies, such as the building code inspector, fire marshal, or health department. The landlord cannot legally evict the tenant in retaliation for complaints made about unfit housing conditions. But a landlord is under no general legal duty to renew a lease once it naturally expires.

Tenants have the right to file a civil suit against the landlord to enforce their right to live in fit housing and to seek monetary damages if the tenant’s rights have been violated. Tenants do not need to have legal representation in order to file suit and have the right to represent themselves in the action. If tenants are unable to pay filing fees to bring suit, then they have the right to file an Affidavit of Indigency, which, if granted, would waive some court costs associated with bringing a civil case.

In West Virginia, tenants do not legally have the right to withhold rent to pressure a landlord to make changes. W.Va. Code §37-6-30(7)(c). There are some exceptions to this rule; more information on when a tenant is not legally obligated to pay rent can be found in the section on Warranty of Habitability.

Tenants are responsible for the timely payment of rent in accordance with the terms of the lease and reporting and paying proper reimbursement for all damage caused to the property by the tenant or someone on the premises with the tenant’s permission.

The tenant is responsible for behaving, and making his or her guests behave, in a way that does not disturb others’ peaceful enjoyment of their property, and that does not cause undue wear and tear on the rental property. A landlord is not responsible for making repairs to the property that were caused by the tenant or others on the premises with the permission of the tenant.

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2.1 Landlords

By law, a landlord is entitled to collect rent by the terms specified in the lease. The landlord also has the right to evict the tenant or terminate the lease if the tenant fails to pay rent or uphold provisions of the lease agreement.

A landlord is responsible for general maintenance to the rental property and to keep it in a fit and habitable condition and to be in compliance with applicable health, safety, fire, and housing codes. W.Va. Code §37-6-30. The landlord must comply with state law imposing a warranty of habitability on the premises, for more information on this please see the section on the Warranty of Habitability.

A landlord is also responsible for whatever the lease specifically requires. This could include almost anything that was included in the lease, such as snow removal, grass cutting, etc.

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