H. B. 2974
(By Delegates Schadler and Long)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §37-6-31, relating to
making the destruction of a landlord's property which has been
rented for residential purposes a criminal offense; providing
that damage greater than three hundred dollars but less than
one thousand dollars constitutes a misdemeanor; providing that
damage greater than one thousand dollars constitutes a felony;
providing that tenants who leave trash when vacating a
premises may be guilty of a misdemeanor if it costs more than
one hundred dollars to remove it; providing that damage
deposits be used to offset ascertainment of value of damage;
providing for the determination of prima facie evidence under
certain circumstances; providing that tenants or others in
privity of contract with landlords or lessors have a duty to
report damage not caused by themselves; and providing a criminal penalty for failure to report the damage under
certain circumstances.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §37-6-31, to read as
follows:
ARTICLE 6. LANDLORD AND TENANT.
§37-6-31. Crime to destroy landlord's rented residential
premises; misdemeanor offense; felony offense;
requirement to use damage deposit as offset; prima
facie evidence; duty to report damage.
(a) Misdemeanor offenses. -- When a tenant or other person
present in the premises with the tenant's permission or authority
intentionally inflicts damage, or damage is otherwise inflicted in
reckless disregard for the property interests of others, which
equates an amount required for cost of repair or replacement
greater than three hundred dollars but less than one thousand, to
a residential leasehold, or any part, fixture, structure or
appurtenance attached to the leasehold, the tenant or other person
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than three hundred dollars, or confined in jail not
more than six months, or both fined and imprisoned. In the
alternative, the court may order restitution in lieu of a fine, if
the court determines it appropriate.
(b) Felony offense. -- When a tenant or other person present
in the premises with the tenant's permission or authority
intentionally inflicts damage, or damage is otherwise inflicted in
reckless disregard for the property interests of others, which
equates an amount required for cost of repair or replacement
greater than one thousand dollars, to a residential leasehold, or
any part, fixture, structure or appurtenance attached to the
leasehold, the tenant or other person is guilty of a felony and,
upon conviction thereof, shall be fined not more than ten thousand
dollars, or imprisoned in a state correctional facility for one to
ten years, or both fined and imprisoned. In the alternative, upon
a first conviction under this subsection, the court in imposing any
confinement may confine an offender in jail up to eight months or
order restitution in lieu of a fine, if the court determines it
appropriate.
(c) Failure to remove trash. -- Any tenant who, upon vacating
the premises of a residential leasehold, leaves trash or other
debris on the premises that reasonably causes or requires a
landlord, owner or lessor to expend in excess of one hundred
dollars to remove, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined an amount not to exceed three hundred
dollars. The court may, in lieu of a fine, order restitution in a
like sum for which a landlord, owner or lessor was reasonably
caused or required to expend in order to remove the trash or other debris.
(d) Offset of deposit. -- For the purposes of this section,
any existing damage deposit shall be used as an offset in
determining value.
(e) Prima facie evidence. -- For the purposes of this section,
prima facie evidence exists upon the viewing by the court of video
or photographic images of a leasehold or a part, fixture, structure
or appurtenance of the property, as it existed immediately before
a tenant took possession of the property, in contrast to the
condition upon which any criminal charge made under this section
arose: Provided, That the court finds to its reasonable
satisfaction the subject damage was not caused by normal wear and
tear or simple negligence: Provided, however, That before any
finding of prima facie evidence of guilt may be made, it is
necessary to present, in conjunction with the video or photographic
images, credible and trustworthy testimony or other evidence
concerning the cost of repair or replacement of the damaged
property.
(f) Duty to report. -- When there is the infliction or
existence of damage, other than normal and reasonable wear and
tear, to a residential leasehold or any part, fixture, structure or
appurtenance to the property, caused by any person other than the
tenant in possession or other person in privity of contract with
the landlord, owner or lessor, or other cause unrelated to any duty imposed in this article upon landlords, the tenant or other person,
upon discovering or receiving trustworthy notice of the damage
shall, within ten days of the discovery or notice, provide notice
to the landlord, owner or lessor of the existence of the damage.
Any person who, without good or otherwise justifiable cause, fails
to provide the notice required under this subsection, is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars.
NOTE: The purpose of this bill is to make it a criminal
offense for the destruction of a landlord's property which has been
rented for residential purposes. The bill provides that damage
greater than three hundred dollars but less than one thousand
dollars may constitute a misdemeanor while providing that damage
greater than one thousand dollars may constitute a felony. Failure
to remove trash upon vacating a leasehold is also designated as a
criminal offense if the landlord is required to expend more than
one hundred dollars to remove it. It further provides as follows:
That damage deposits be used to offset ascertainment of value of
damage; that a finding of prima facie evidence under certain
circumstances may be made; and that tenants or others in privity of
contract with landlords or lessors have a duty to report damage not
caused by themselves while additionally, providing a criminal
penalty for failure to report such damage under certain
circumstances. This reporting requirement takes into consideration
the tenant or other person's right against self-incrimination to
the extent it does not require the tenant or other person to report
damage caused by themselves.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.