COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 361

(By Senators Love, Schoonover and Yoder)

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[Originating in the Committee on the Judiciary;

reported February 24, 1995.]

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A BILL to amend and reenact section six, article six, chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section three, article three-a, chapter fifty-five of said code, all relating generally to abandoned property in the possession of a landlord and further to the ability of the landlord to dispose of such property upon the tenant abandoning the premises or upon being evicted from the property.

Be it enacted by the Legislature of West Virginia:
That section six, article six, chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section three, article three-a, chapter fifty-five of said code be amended and reenacted, all to read as follows:
CHAPTER 37. REAL PROPERTY.

ARTICLE 6. LANDLORD AND TENANT.
§37-6-6. Desertion of premises; entry; recovery of rent.

If any tenant from whom rent is in arrear and unpaid shall abandon the demised premises, and leave the same uncultivated or unoccupied, without goods thereon subject to distress sufficient to satisfy such rent, the lessor or his agent may post a notice in writing in a conspicuous part of the premises, requiring the tenant to pay such rent within one month. If the same be not paid within that time, the lessor shall be entitled to possession of the premises, and may enter thereon, and the right of such tenant thereto shall thenceforth be at an end. But the landlord may recover the rent up to the time when he became entitled to the possession. The lessor or his agent may take, dispose of or otherwise remove the tenant's personal property without incurring any liability or responsibility to the tenant or any other person whatsoever upon regaining possession of such premises.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;

JUDICIAL SALE.

ARTICLE 3A. REMEDIES FOR WRONGFUL OCCUPATION OF RESIDENTIAL RENTAL PROPERTY.
§55-3A-3. Proceedings in court; final order.
(a) If at the time of the hearing there has been no appearance, answer or other responsive pleading filed by the tenant, the court shall make and enter an order granting immediate possession of the property to the petitioner.
(b) In the case of a petition alleging arrearage in rent, if the tenant shall file an answer raising the defense of breach by the landlord of a material covenant upon which the duty to pay rent depends, the court shall proceed to a hearing on such issues.
(c) In the case of a petition alleging a breach by the tenant or damage to the property, if the defendant shall file an answer raising defenses to the claim or claims set forth in the petition, the court shall proceed to a hearing on such issues.
(d) Continuances of the hearing provided for in this section shall be for cause only and the judge or magistrate shall not grant a continuance to either party as a matter of right. If a continuance is granted upon request by a tenant, the tenant shall be required to pay into court any periodic rent becoming due during the period of such continuance.
(e) At the conclusion of a hearing held under the provisions of subsection (b) or (c) of this section if the court shall find that the tenant is in wrongful occupation of the rental property, the court shall make and enter an order granting immediate possession of the property to the petitioner. In the case of a proceeding under subsection (a) of this section, the court may also make a written finding and include in its order such relief on the issue of arrearage in the payment of rent as the evidence may require. Any moneys paid into court by the tenant in accordance with the provisions of this section may be ordered to be disbursed to the parties as may be appropriate under the findings of the court.
(f) Taking into consideration such factors as the nature of the property (i.e., furnished or unfurnished) the possibility of relative harm to the parties and other material facts deemed relevant by the court in considering the time in which the tenant might reasonably be expected to vacate the premises, the court shall in its order specify the time by which the tenant must remove himself from the property. The order shall further provide that if the tenant still wrongfully occupies the property beyond such time the sheriff shall forthwith remove him, taking such precautions as are necessary to guard against damage to the property of the landlord and the tenant.
(g) Absent an issue of title, retaliation or breach of warranty, and in the event of an appeal wherein the tenant prevails, if the term of the lease has expired, the relief ordered by the appellate court shall be for monetary damages only and shall not restore the tenant to possession. During the pendency of any such appeal no tenant shall be entitled to remain in possession of the leasehold if the period of the tenancy has otherwise expired.
(h) When an order is granted pursuant to this section that grants possession of the property to the petitioner, and the tenant fails to remove all personal property by the date and time specified in an order pursuant to subsection (f) of this section, the landlord may take, dispose of or otherwise remove such personal property without incurring any liability or responsibility to the tenant or any other person whatsoever.