Senate Bill No. 198
(By Senators Fanning, Ball, Kessler, Ross, Schoonover, Wooton,
Deem, Snyder, Sharpe, Love, Hunter, Mitchell, McCabe, Sprouse,
Anderson, Helmick and Plymale)
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[Introduced January 22, 1999;
referred to the Committee on the Judiciary.]
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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 to tenants' personal property left on
leased premises; allowing for entry and repossession of leased
property by landlord; allowing the landlord to dispose of
abandoned personal property upon repossession; requiring
notice to the tenant of the disposal of personal property;
proceedings in court for wrongful occupation of residential
rental property; final order; and disposition of abandoned
personal property upon eviction.
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,
disposition of abandoned personal property; notice.
(a) If any tenant from whom rent is in arrear and unpaid
shall
abandon abandons the
demised premises leased property, and leave
the same uncultivated or unoccupied, without goods thereon subject
to distress sufficient to satisfy such rent, the lessor or his
or
her agent
may shall post a notice in writing in a conspicuous part
of the
premises property, requiring the tenant to pay
such the rent
within one month. If the
same be rent is not paid within that
time, the lessor shall be entitled to possession of the
premises
property, and may enter thereon, and the right of
such the tenant
thereto to the leased property shall
thenceforth be at an end.
But
the The landlord may recover the rent up to the time when he
or
she became entitled to
the possession.
(b) Upon regaining possession of the property, the lessor or his or her agent may take, dispose of or otherwise remove the
tenant's personal property without incurring any liability to the
tenant or any other person. To dispose of the tenant's property
under this section, the landlord shall give a written notice to the
tenant which notice shall be:
(1) Posted in a conspicuous place on the property; and
(2) Sent by first class mail in an envelope endorsed "Please
Forward", addressed and mailed to the tenant at:
(A) The leased property;
(B) Any post office box held by the tenant and known to the
landlord; and
(C) The most recent forwarding address if provided by the
tenant or known to the landlord.
(c) "First class mail" for purposes of this section does not
include certified or registered mail, or any other form of mail
which may delay or hinder actual delivery of mail to the tenant.
(d) The notice required under subsection (b) of this section
shall state that:
(1) The premises are considered abandoned;
(2) Any personal property left by the tenant must be removed
from the property or from the place of safekeeping, if the landlord
has stored the property, by a specified day, which is:
(A)not less than thirty days after mailing of the notice, or
(B)not less than sixty days after mailing of the notice if the
tenant has notified the landlord that he or she is on active duty
in the armed forces of the United States;
(3) If the personal property is not removed:
(A) The landlord may sell the property at a public or private
sale;
(B) The landlord may destroy or otherwise dispose of the
property if the landlord reasonably determines that the value of
the property is so low that the cost of storage and conducting a
public sale exceeds the amount that would be realized from the
sale; or
(C) The landlord may sell certain items and destroy or
otherwise dispose of the remaining property.
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; disposition of
abandoned personal property.
(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 files 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 files 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
finds 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
or her, 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 issued pursuant to this section granting
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.
NOTE:The purpose of this bill is to allow a landlord to
dispose of the personal property of a tenant left on the leased
property after the tenant has abandoned the property or is evicted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
This bill was recommended by the Joint Standing Committee on
the Judiciary for introduction and passage during the 1999
legislative session.