H. B. 4695


(By Delegate Hunt)

[Introduced February 205, 2000; referred to the

Committee on the Judiciary.]





A BILL to amend chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article six-a, relating to the "Real Estate used for Illegal Purposes Act"; setting forth legislative purpose; prohibiting owners from permitting the use of rental property for certain illegal purposes; providing a mechanism to give notice to owners concerning illegal activities on rental premises; forbidding discrimination; providing for reports, investigations and notices by police agencies; establishing criteria for determining a violation under the article; providing that the existence of eviction proceedings are a defense for an owner; setting forth the necessary party to name in the event of multiple units; providing for the filing of criminal charges; requiring police departments to train, educate and assist landlords in avoiding violations under the article; providing for the limited indemnification of owners by municipalities and counties; and, providing for criminal penalties.

Be it enacted by the Legislature of West Virginia:
That chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article six-a, to read as follows:
ARTICLE 6A. PURPOSES ACT.
§37-6A-1. Purpose.
The Legislature finds it to be in the best interest of the residents of this state and the general public to provide for the regulation of conduct it considers to be offensive, to prevent vice, disorder and immorality; and to promote public peace, health and safety.
§37-6A-2. Permitting the use of real estate for illicit drug activity, gambling or prostitution.

No owner of real estate located in this state may knowingly allow that real estate to be used as a site for any illegal use or sale of controlled substances, gambling or prostitution after having received written notice from any police agency in this state that a present occupant or tenant of that property has been illegally using or selling controlled substances or allowing the illegal using or selling of controlled substances or has been engaging in or allowing gambling or prostitution or has otherwise been engaging in or allowing activity constituting a nuisance at the subject property. A legal or equitable owner of the real estate is considered as having knowledge of illegal activity upon receipt of notice as provided under this article. For the purposes of this article, "an owner of real estate" means any person who, alone or with others has legal title to any residential dwelling or dwelling unit.
§37-6A-3. Notice.
Notice to an owner under the provisions of this article is considered perfected, upon certification of such notice by a law-enforcement officer, filed with the clerk of the county commission wherein the subject property is located.
§37-6A-4. Discrimination forbidden.
Nothing in this article may be construed to encourage or authorize the discrimination of any person based upon the race, creed, religion, sex, age or national origin of the person. Rather, it is the intent of this article to hold persons accountable for acquiescing in or participating in the continued illegal use of their property, after having received notice as prescribed by this article.
§37-6A-5. Reports, investigations and notices by police departments.

(a) Any complaint of suspected illegal activities involving controlled substances, gambling, prostitution or a nuisance by tenants, or other persons on the premises, made by the lessor, other tenants or persons residing or working in the vicinity of the property, or by officials or representatives of a governmental agency, shall be submitted to the police department that receives the complaint and each complaint shall be individually logged by the police department.
(b) Upon receipt of a complaint, a determination shall be made by the police department as to the need for an investigation including whether surveillance of the premises would be prudent and appropriate.
(c) The police department that received the complaint shall notify all other applicable and relevant agencies of government, including those who enforce applicable city or county provisions related to building, zoning and health, in order to afford those agencies the opportunity to inspect the property for violations and if appropriate issue citations.
(d) In the event a police department upon sufficient investigation concludes that illegal activity is taking place at a particular premises, a warning letter shall be sent by the police department to the owner of the real estate with a copy to the tenant whose premise is the subject of the investigation. The notice shall be provided by certified mail, return receipt requested, and it shall inform the owner of the investigation, and the suspected illegal activity. The warning letter shall also inform the owner of his or her obligation to take action to abate the suspected illegal activity and of the prospect of the police department, if the suspected illegal activity has not ceased, to take further action.
(e) In the event a search warrant is obtained to search the real estate premises, a second notice shall be sent by police to the owner of the real estate, by certified mail, return receipt requested. This notice shall inform the owner that the warrant was served, that the investigation at the premises is continuing, and that legal proceedings may be commenced. The second notice shall also inform the owner of his or her obligation to take remedial action. A copy of the letter shall be sent to the county prosecuting attorney's office and to the tenant of the subject premises.
(f) Upon receipt of a copy of the second notice, the prosecuting attorney's office may proceed to abate or enjoin any suspected illegal activity. If the prosecuting attorney decides to proceed in abatement or injunction, he or she shall provide notice advising that legal proceedings will be instituted against the owner and that the owner has an obligation to commence eviction proceedings against the offending tenant.
§37-6A-6. Criteria for establishing a violation.
A violation of the provisions of this article is based upon the totality of the circumstances present, including, but not limited to, whether the owner has received sufficient notice pursuant to the provisions of this article.
§37-6A-7. Eviction proceedings as a defense.
(a) No person may be charged with a violation of any provision of this article if the person:
(1) Has instituted eviction proceedings within thirty days of receipt of notice as provided for under the provisions of subsection (f), section five of this article; and
(2) The eviction proceedings are completed within thirty days of commencement of the proceedings.
(b) If an eviction proceeding is not completed within thirty days by reason of court ordered delays, the person charged with a violation under this article shall, nonetheless, be required to expeditiously prosecute the eviction proceedings.
§37-6A-8. Multiple unit dwellings.
In the case of a multiple unit dwelling, the only person necessary to name in an eviction proceeding is the tenant or other person actually occupying the unit who is suspected of illegal activity.
§37-6A-9. Filing of criminal charges.
Charging an owner of real estate with a violation under this article shall be an adjunct to, and not substitution for, any criminal charges filed as a result of investigation by a police department against occupants or tenants of an owner's real estate premises.
§37-6A-10. Assistance by law enforcement.
Any law-enforcement agency that acts pursuant to the provisions of this article shall use reasonable efforts to disseminate information designed to educate and assist owners of real estate in preventing and addressing violations of any provision of this article.
§37-6A-11. Limited indemnification of owners of real estate.
(a) The county commission shall make provision to provide limited indemnification to any owner of real estate located in the county or municipality who suffers economic loss by virtue of the obligations imposed by this article subject to the following conditions:
(1) That the owner received written notice as required by this article;
(2) That the owner of real estate has instituted eviction proceedings within thirty days of receipt of notice of the suspected illegal activities of a tenant;
(3) That the owner of the real estate gives no less than thirty days' notice to the county prosecuting attorney, by certified mail, return-receipt requested, of the trial date for an eviction proceeding and a list containing the names and addresses of witnesses the owner intends to call at the proceeding;
(b) The prosecuting attorney, upon receipt of the notice and list of witnesses as provided for under subdivision three, subsection (a) of this section, may provide the owner of the real estate with the names and addresses of additional witnesses, whose presence in the opinion of the prosecuting attorney is necessary to prosecute the eviction proceeding;
(c) All witnesses listed by either the owner or the county prosecuting attorney's office shall be subpoenaed by the owner.
(d) A tenant may institute a claim against a person under the provisions of this article for false reporting. The tenant, if he or she prevails in the claim, is entitled to reasonable attorney's fees.
(e) Indemnification by the county commission shall be restricted to damages assessed by judgment against the owner as set out aforesaid but shall not, in any event, include any attorney's fees incurred by the owner of real estate in connection with the enforcement of any of the terms of this article. Indemnification shall include reasonable attorney's fees incurred in the defense of legal proceedings brought by a tenant in the event the owner prevails in the defense.
§37-6A-12. Penalty.
Whoever violates any provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined up to two thousand five hundred dollars plus the costs of prosecution. Each day a violation of this article continues constitutes a separate offense.


NOTE: The purpose of this bill is to create the "Real Estate used for Illegal Purposes Act". In creating the act the bill provides for the following: Setting forth legislative purpose; prohibiting owners from permitting the use of rental property for certain illegal purposes; providing a mechanism to give notice to owners concerning illegal activities on rental premises; forbidding discrimination; providing for reports, investigations and notices by police agencies; establishing criteria for determining a violation under this article; providing that the existence of eviction proceedings are a defense for an owner; setting forth the necessary party to name in the event of multiple units; providing for the filing of criminal charges; requiring police departments to disseminate information to educate and assist landlords in avoiding violations under this article; providing for the limited indemnification of owners by municipalities and counties; and, providing for criminal penalties.

This article is new; therefore, strike-throughs and underscoring have been omitted.