Category: Sec. 3: Termination of Tenancy

After a judge issues an eviction order, the tenant must remove all personal property by the date and time specified in the court order. W.Va. Code §55-3A-3(f).

If the tenant fails to remove the personal property, the landlord must preserve it and allow the tenant to take possession of it. W.Va. Code §55-3A-3(h). The landlord has several options on how to do this:

1. The landlord may remove and store the personal property and may charge the tenant reasonable costs for the storage

2. The landlord may dispose of the property after storing the property for thirty days, if the tenant fails to pay the reasonable cost of storage and has not taken possession of the stored property or if the storage costs equal the value of the personal property being stored

3. The landlord may leave the personal property on the premises and, after thirty days, the landlord may dispose of the property if the tenant has not paid the landlord the reasonable costs of leaving the personal property on the landlord’s premises and has not taken possession of the personal property

If the personal property is worth more than three hundred dollars ($300) and was not removed by the tenant after thirty days, the landlord must store the property for up to an additional thirty days if the tenant, or any person with a security interest in the personal property, informs the landlord of intent to remove the personal property. The tenant, or the person holding a security interest in the personal property, is responsible for paying a reasonable cost of storage and removal to the landlord. W.Va. Code §55-3A-3(i).

A landlord is only legally permitted to throw away a tenant’s possessions during the waiting period when the tenant informs the landlord in writing that the personal property is abandoned or the property is garbage. W.Va. Code §55-3A-3(h)(1).

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The landlord must prove that the tenancy has been properly terminated in court to obtain a court order granting possession of the property.

At the conclusion of the hearing, if the court finds the tenant is in wrongful occupation of the property, the court will issue an order granting possession of the property to the landlord and may require back rent to be paid as required by the evidence. W.Va. Code §55-3A-3(e).

The tenant has the right to appear in court with or without a lawyer to present evidence in his or her defense. W.Va. Code §55-3A-2. If the tenant fails to answer the landlord’s petition or appear in court after being properly served, the court may grant the landlord’s request for immediate possession of the property and require payment of money as shown by the evidence presented by the landlord. W.Va. Code §55-3A-3(a)

If an order of possession is obtained, the sheriff’s office will assist in enforcing the order if necessary. The order will specify a date and time by which the tenant must remove his or her belongings from the property and vacate the premises. W.Va. Code §55-3A-3(f).

If a magistrate court issues an eviction order, the tenant has 20 days after the court has entered final judgment to appeal the decision to the circuit court if the tenant disagrees with the court decision. However, the tenant can only appeal the monetary amount, not the eviction order itself. WV R MAG CTS RCP Rule 18.

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If the landlord files an eviction suit, the tenant may file a suit against the landlord, called a counterclaim. One reason a tenant may file a counterclaim is if the landlord has not maintained the rental property in a fit and habitable condition at all times. Serious violations would include lack of adequate heat and hot water, faulty wiring and other fire and safety hazards, and roach or rat infestations. For more information on the Warranty of Habitability see Section 2.

The tenant may also file a counterclaim for other reasons, including retaliation. For example, if the landlord started the eviction proceedings in retaliation for the tenant making a complaint about the conditions of the property or in retaliation for a civil rights discrimination complaint made by the tenant. W. Va. Code §55-3A-3(g).

The tenant may sue for money damages for not maintaining the property in fit and habitable condition and for annoyance and inconvenience as a result of the unlawful housing conditions. In magistrate court, the law allows the tenant to ask for damages, but only up to $10,000 (see new law WV Code §50-2-1, effective June 2016 increasing maximum case jurisdiction from $5,000 to $10,000). If the tenant has asked to have the eviction suit moved to circuit court, there is no limit on the amount of damages the tenant can legally ask for from the landlord in a counterclaim.

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If the tenant does not provide a written answer to the eviction notice or appear in court, the landlord will be given a judgment for possession, which will require the tenant to vacate the rental property by a certain date. The court may order an immediate move or give the tenant more time depending on the circumstances (such as giving additional time to move as a reasonable accommodation to a tenant with disabilities). W.Va. Code §55-3A-3(a),(f).

• File a written answer to the notice

• Use the form attached to the summons for the tenant’s written answer. The tenant is required to mail or deliver one copy of the completed form to the magistrate court and mail or deliver one copy to the landlord and keep one copy

• Appear in court on the date specified in the eviction notice

• Ask to have the eviction suit moved from magistrate court to the circuit court. The tenant must file a form and pay a fee for this option. If the tenant cannot afford the fee, the tenant may file an Affidavit of Indigency, which, if granted, will waive the fee for moving the action to circuit court and also waive the fee for a jury trial if the tenant asks for one

• File a counterclaim

If the landlord is trying to evict a tenant for non-payment of rent only, an eviction suit must be dismissed if the tenant pays all rent, with interests and costs, and all other fees any time before the beginning of the trial. The landlord does not have to accept a partial payment. W.Va. Code §37-6-22.

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A tenant may only have a few days to respond to an eviction notice. The tenant should find a lawyer immediately for assistance. If the tenant cannot afford to pay an attorney, the tenant may be eligible for assistance from a legal aid program that serves low-income persons. Call Legal Aid of West Virginia, toll free at 800-642-8279 to determine your eligibility for assistance.

Tenants have the right to represent themselves in a court action for eviction. West Virginia law does not require a tenant to be represented by an attorney in an eviction proceeding. The tenant has the right to have help from others, but the tenant cannot be legally represented by a person who is not a licensed attorney in the state of West Virginia. Tenants who choos to represent themselves must follow the required procedure. To defend against eviction, the tenant must:

• File a written answer to the notice

• Use the form attached to the summons for the tenant’s written answer. The tenant is required to mail or deliver one copy of the completed form to the magistrate court and mail or deliver one copy to the landlord and keep one copy

• Appear in court on the date specified in the eviction notice

• Ask to have the eviction suit moved from magistrate court to the circuit court. The tenant must file a form and pay a fee for this option. If the tenant cannot afford the fee, the tenant may file an Affidavit of Indigency, which, if granted, will waive the fee for moving the action to circuit court and also waive the fee for a jury trial if the tenant asks for one

• File a counterclaim

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The landlord may file a suit for eviction in either the magistrate court or the circuit court for the county in which the property is located. This process can move very quickly; a landlord can get a hearing within five days of filing. The landlord must provide a reason as to why the tenant is in wrongful occupation of the premises. Valid reasons for applying for wrongful occupation include that the tenant has failed to pay rent, has breached a warranty or provision of the lease agreement, or has negligently or deliberately damaged the property. W.Va. Code §55-3A-1(a)(3). The landlord must serve notice on the tenant that includes the time and place of the hearing and must inform the tenant that any defense must be submitted in writing to the landlord within five days of the receipt by the tenant of the notice, and in no case later than the fifth day next preceding the date of hearing. W.Va. Code §55-3A-1(c).

The landlord cannot legally threaten to or take action to do any of the following before such is ordered by a court or the landlord has followed the steps proscribed by law to regain possession of an abandoned rental property:

1. Lock the tenant out of the rental property

2. Take the tenant’s personal property

3. Shut off the tenant’s utilities

4. Send the tenant to jail

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Under West Virginia law, the landlord is required to provide the tenant with proper written notice in advance before attempting to evict the tenant, unless the tenant has violated the lease or failed to pay rent. The amount of notice required varies depending on whether or not there is a written lease or rental agreement. The landlord is required to provide at least the amount of notice stated in the lease. More information can be found in the section on Notice to Terminate Tenancy. In many instances, the eviction notice can legally be the summons to appear in a proceeding for eviction if the landlord has filed suit against the tenant.

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If a tenant has violated the rental agreement by not paying rent or violating any provision of the lease agreement then the landlord may take action to have the tenant evicted. The tenant is entitled to notice of termination of the tenancy and to vacate the premises. This notice can be given in any form and does not have to be in writing if the term of the lease has expired or the tenancy has already ended. The law permits the landlord to specify a date on which the tenant must vacate the premises, no matter how soon, if the lease agreement has been violated. The landlord is not required by law to provide any advanced notice to the tenant and has the right to go directly to court and file a suit to have the tenant evicted.

If the tenant has violated the rental agreement and the landlord has asked the tenant to vacate the premises but the tenant has refused, the landlord has the right to go directly to court and file a suit to have the tenant evicted. It is illegal for the landlord to physically force the tenant off the premises and for the landlord to force the tenant off the property by cutting off or interfering with utilities in the tenant’s name or changing the locks to the rental property.

A popular belief is that an eviction notice is sufficient to force a tenant to move out by the date specified on the notice. In fact, the eviction notice is just the first step. Technically, the landlord’s notice to vacate means that, should the tenant not move out by the date specified, then the landlord may file suit in court to regain possession of the property. The tenant may move out before the notice expires. However, if the tenant does not move out by the specified date, the landlord may start a legal action with the local courts to regain possession of the property.

In cases where a tenant wishes to resist eviction, the tenant may lawfully remain on the premises until a landlord has received a court judgment against the tenant. Then, if forced physical removal of the tenant is required, it must be done by the sheriff’s office.

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In 2012, the West Virginia legislature passed a law changing the liability of those who come into possession of a lease agreement after the death of the original tenant. This amended law became effective on all leases entered into or renewed on or after July 1, 2012.

Rent may be recovered from the tenant, or other person owing it, or his or her heir, personal representative, devisee, or assignee who has succeeded to the tenant’s estate in the premises. But no assignee is liable for rent that became due before his or her interest began. The heirs, personal representatives, or devisees of the tenant are liable for the rent owed to the extent and in the manner in which they are liable for the other debts of the tenant’s estate. W.Va. Code §37-6-11(a).

Unless otherwise provided by law, the heirs, personal representatives, devisees, or assignees of the deceased tenant may legally terminate a lease prior to its expiration. W.Va. Code §37-6-11(b)(1).

Termination of the lease becomes effective on the last day of the month that is two months after: W.Va. Code §37-6-11(b)(2).

1. The date on which the notice is hand-delivered to the other party of the lease or

2. The date on which the notice, addressed to the other party to the lease, is deposited in the United States mail, postage prepaid, as evidenced by the postmark

Termination of the lease does not relieve the tenant’s estate from liability for rent owed before or during the two month period or any amount necessary to restore the premises to the condition before the commencement of the lease, with the exception of general wear and tear. W.Va. Code §37-6-11(b)(3).

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If the tenant stays longer than the term of the lease agreement, even by one extra day, this is considered holding over. A landlord has the option to collect rent from the tenant for the holding over period or to commence legal action to evict the tenant from the premises. W.Va. Code §55-3-1. The landlord, but not the tenant, has the legal right to determine whether to continue to view the tenant as a tenant or to view the tenant as a trespasser if the tenant has remained on the premises after the end of the rental period. Voss v. King, 18 S.E. 762 (W.Va., 1893).

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Once the landlord has lawfully re-entered the leased property, the landlord has the right to begin the process of taking possession of all personal property left on the premises by the tenant. W.Va. Code §37-6-6(c).

To gain possession, the landlord is obligated to give written notice to the tenant that must be: W.Va. Code §37-6-6(c).

1. Posted in a conspicuous place on the property and

2. Sent by first class mail with a certificate of mailing, which provides a receipt of the date of mailing, in an envelope endorsed “please forward”, addressed and mailed to the tenant at the leased property, any post office box held by the tenant and known to the landlord, and the most recent forwarding address if provided by the tenant or known to the landlord.

The notice must state that the leased property is considered abandoned and that any personal property left by the tenant must be removed by a date specified within the written notice that is not less than thirty days after the date the written notice was mailed, or not less than 60 days if the landlord knows the tenant is on active duty in the United States military. W.Va. Code §37-6-6(d).

If the personal property is not removed within the time stated in the written notice, then the tenant loses all ownership interest and the personal property becomes the property of the landlord. W.Va. Code §37-6-6(d)(3).

If the personal property is worth more than three hundred dollars ($300.00) and was not removed within the time period specified in the notice letter, the landlord must store the property for up to thirty additional days if the tenant, or other person with an ownership interest in the personal property, notifies the landlord of intention to remove the property. The tenant may be responsible for paying the reasonable costs of storage and removal. W.Va. Code §37-6-6(e).

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The tenant has a duty to pay rent on the leased premises for the term of the lease. If a tenant has not paid rent and vacates the premises before the end of the lease agreement with the clear intent not to be bound by the lease, the tenant has “abandoned‛ the residence.

If a tenant has abandoned the property, a landlord may legally take steps to regain possession of the property before the end of the lease period. To begin this process, the landlord must post a notice in a conspicuous part of the property that requires the tenant to pay the rent owed within one month. If the tenant does not pay the rent within one month then the landlord is entitled to possession and the right of the tenant to the leased property is ended. Landlords have a right to recover all rent owed up to the time when they became entitled to possession of the property. W.Va. Code §37-6-6(a).

Regarding lost rent, the landlord has three lawful options:

1. The landlord has the right to accept the abandonment and not hold the tenant liable for the rent as it accrues

2. The landlord may legally hold the tenant liable for the rent as it accrues

3. The landlord has the right to re-lease the property with the tenant being liable for any difference between the amount of rent the landlord is reasonably able to re-let the property for and the amount of rent which the tenant was paying at the time of abandonment

The landlord may legally re-lease the rental property if notice is given to the original tenant of the landlord’s intention to re-lease the property. This notice may legally be included in the original notice posted in a conspicuous area of the property. If the landlord chooses to do this, the first tenant will still be liable for the remaining term of the lease, to pay the difference between the rent owed under the agreement and the amount of rent the landlord was able to re-lease the apartment for to a new tenant. W.Va. Code §37-6-7.

If the landlord continues to hold the tenant liable for rent on the lease, then the tenant has the right to resume possession of the leased property. The tenant will need to provide notice to the landlord of the tenant’s intention to do so and payment of all rent and liabilities owed on the lease, as long as no other person is already in possession of the premises or entitled to possession of the premises by virtue of a lease with the landlord, and as long as the tenant’s lease has not been lawfully forfeited. W.Va. Code §37-6-8.

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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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West Virginia law recognizes various types of tenancy agreements and the rules for termination by either the landlord or the tenant vary depending on the type of agreement held. In a year-to-year lease agreement, either the landlord or the tenant may legally terminate the agreement by giving written notice to the other party of his or her intention to terminate the tenancy at least three months before the end of the year. W.Va. Code §37-6-5.

A periodic tenancy, one in which the lease is for less than one year, such as a month-to month-agreement, may be legally terminated one full rental period after the rental period in which notice is given. Rental periods will vary from tenant to tenant, but, for example, if the period of a tenant’s lease is from the 1st to the 1st, then notice must be given before the first of the month and the tenant may legally remain a tenant until the end of the rental period following the notice. So if the landlord notifies the tenant on June 15th that he or she wishes to terminate the tenancy, then the tenant may remain a tenant for the remainder of June and also the July rental period, from July 1st to July 31st, before the tenancy is legally terminated on August 1st. The landlord must serve a Notice of Termination on the tenant or any person holding the premises or any part of the premises under the tenant. A tenant must serve a Notice of Termination on the person owning the premises or his or her designated agent. W.Va. Code §37-6-5.

This law does not apply to lease agreements which specify that another notice period is required or that no notice period is required. It also does not require notice to or from a tenant when the lease term is to end at a certain time. W.Va. Code §37-6-5.

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A lease agreement may naturally terminate at the end of the agreed rental period. Unless the lease says otherwise, neither the tenant nor the landlord has a right to renew a lease if the other party chooses not to renew. In other words, no matter how long you have lived somewhere your landlord can choose not to renew your lease once it ends, and you do not have a legal right to demand that it be renewed.

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