COMMITTEE SUBSTITUTE
FOR
H. B. 4695
(By Delegates Amores, Ellem and Morgan)
(Originating in the Committee on the Judiciary)
[February 27, 2006]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §37-6A-1, §37-6A-2,
§37-6A-3, §37-6A-4, §37-6A-5, and §37-6A-6, relating to
residential rental security deposits; relevant definitions;
security deposits; maintenance of records; prohibited
provisions in rental agreements; remedies upon landlord's non-
compliance; application of article; security deposits prior to
effective date of article.
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 article, designated §37-6A-1, §37-6A-2,
§37-6A-3, §37-6A-4, §37-6A-5, and §37-6A-6, all to read as follows:
ARTICLE 6A. RESIDENTIAL RENTAL SECURITY DEPOSITS.
§37-6A-1. Definitions
When used in this article, unless expressly stated otherwise:
(1) "Action" means recoupment, counterclaim, set off, or other civil suit and any other proceeding in which rights are determined,
including without limitation actions for possession, rent, unlawful
detainer, unlawful entry, and distress for rent.
(2) "Application fee" means any deposit of money, however
denominated, which is paid by a tenant to a landlord, lessor, or
agent of a landlord for the purpose of being considered as a tenant
for a dwelling unit.
(3) "Dwelling unit" means a structure or part of a structure
that is used as a home or residence by one or more persons who
maintain a household, including, but not limited to, a manufactured
home.
(4) "Facility" means something that is built, constructed,
installed or established to perform some particular function.
(5) "Guest or invitee" means a person, other than the tenant
or person authorized by the landlord to occupy the premises, who
has the permission of the tenant to visit but not to occupy the
premises.
(6) "Landlord" means the owner or lessor of the dwelling unit
or the building of which such dwelling unit is a part. "Landlord"
also includes a managing agent of the premises who fails to
disclose the name of such owner or lessor.
(7) "Managing agent" means a person authorized by the landlord
to act on behalf of the landlord under a management agreement.
(8) "Notice period" means (A) thirty days for landlords with a turnover rate of twenty-five percent or less; (B) forty-five days
for landlords with a turnover rate of between twenty-six percent
and fifty percent; and (C) sixty days for landlords with a turnover
rate of over fifty percent.
(9) "Owner" means one or more persons, jointly or severally,
in whom is vested:
(A) All or part of the legal title to the property, or
(B) All or part of the beneficial ownership and a right to
present use and enjoyment of the premises, and the term includes a
mortgagee in possession.
(10) "Person" means any individual, group of individuals,
corporation, partnership, business trust, association or other
legal entity, or any combination thereof.
(11) "Premises" means a dwelling unit and the structure of
which it is a part and facilities and appurtenances therein and
grounds, areas and facilities held out for the use of tenants
generally or whose use is promised to the tenant.
(12) "Rent" means all money, other than a security deposit, a
non-refundable fee or money paid to the landlord by the tenant for
damage caused by the tenant to the dwelling unit, owed or paid to
the landlord under the rental agreement.
(13) "Rental agreement" means all agreements, written
(including an electronic record as defined by paragraph (7),
section two, article one, chapter thirty-nine-A of the code) or oral, express or implied, embodying the terms and conditions
concerning the use and occupancy of a dwelling unit and premises.
(14) "Roomer" means a person occupying a dwelling unit that
lacks a major bathroom or kitchen facility, in a structure where
one or more major facilities are used in common by occupants of the
dwelling unit and other dwelling units. Major facility in the case
of a bathroom means toilet, and either a bath or shower, and in the
case of a kitchen means refrigerator, stove or sink.
(15) "Security deposit" means any refundable deposit of money
that is furnished by a tenant to a landlord to secure the
performance of the terms and conditions of a rental agreement, or
as security for damages to the leased premises. Security deposit
does not include,(A) rent, other than prepaid rent; (B) a pet fee;
or (C) application fee:
Provided, That the parties expressly agree,
in writing, that a pet fee or application fee is non-refundable.
(16) "Sublease" means the transfer by any tenant of any but
not all interests created by a rental agreement.
(17) "Tenant" means a person entitled under a rental agreement
to occupy a dwelling unit to the exclusion of others and shall
include a roomer. Tenant shall not include (i) a guest or invitee,
or (ii) any person who guarantees or cosigns the payment of the
financial obligations of a rental agreement but has no right to
occupy a dwelling unit.
(18) "Turn-over rate" means the total number of dwelling units vacated in a specific complex or structure within a thirty
day period divided by the total number of dwelling units in the
complex or structure.
(19) "Utility" means electricity, natural gas, propane gas,
water, sewer, telephone, and cable television provided by a public
utility or such other person providing residential utility
services. If the rental agreement so provides, a landlord may use
submetering equipment or energy allocation equipment, or a ratio
utility billing system.
§37-6A-2. Security deposits.
(a) Upon termination of the tenancy and within the applicable
notice period, any security deposit held by the landlord, minus any
deductions for damages or other charges, shall be delivered to the
tenant, together with a written itemization of any such damages or
other charges as provided in subsection (c).
(b) Upon termination of the tenancy, any security deposit
held by the landlord may be applied by the landlord only to:
(1) the payment of accrued rent, including the reasonable
charges for late payment of rent specified in the rental agreement;
(2) the payment of the amount of damages which the landlord
has suffered by reason of the tenant's noncompliance with the
rental agreement, less reasonable wear and tear;
(3) the payment of unpaid utilities in the name of the
landlord that the rental agreement provided were to be paid by the tenant that were actually used by the tenant prior to the
termination of the tenancy;
(4) the payment of reasonable costs for the removal and
storage of the tenant's personal property. The landlord may
dispose of the stored personal property pursuant to the provisions
of subdivisions (1) through (3), subsection (h), section three,
article three-A, chapter fifty-five of this Code; and
(5) to other damages or charges as provided in the rental
agreement, including but not limited to, paying for the services of
a third party contractor to repair damages to the property caused
by the tenant.
(c) The landlord shall notify, in writing, the tenant within
the applicable notice period, of any deductions to be made from the
tenant's security deposit during the course of the tenancy. Such
notification shall not be required for deductions made less than
thirty days prior to the termination of the rental agreement. A
landlord who makes any deductions from the tenant's security
deposit pursuant to this section may not use the circumstances
related to the deduction as a basis for the termination of the
tenancy.
(d) In the event that damages to the premises exceed the
amount of the security deposit and require the services of a third
party contractor, the landlord shall give written notice to the
tenant, advising him or her of that fact, within the applicable notice period. If notice is given as prescribed in this
subsection, the landlord shall have an additional fifteen day
period to provide an itemization of the damages and the cost of
repair.
(e) Nothing in this section shall be construed by a court of
law or otherwise as entitling the tenant, upon the termination of
the tenancy, to an immediate credit against the tenant's delinquent
rent account in the amount of the security deposit.
(f) The holder of the landlord's interest in the premises at
the time of the termination of the tenancy, regardless of how the
interest is acquired or transferred, is bound by this section and
shall be required to return any security deposit received by the
original landlord that is duly owed to the tenant. The provisions
of this subsection shall apply whether or not such security deposit
is transferred with the landlord's interest by law or equity, and
regardless of any contractual agreements between the original
landlord and his successors in interest.
(g) If the tenant has any assignee or sublessee, the landlord
shall be entitled to hold a security deposit from only one party in
compliance with the provisions of this section.
(h) For the purposes of this section, the delivery to a tenant
of a security deposit and/or any notice prescribed by this section,
may be accomplished by either personal delivery to the tenant, or
by mailing the deposit and/or notice to the tenant's last known address or forwarding address as provided by the tenant.
§37-6A-3. Maintenance of records by landlord.
The landlord shall:
(1) Maintain and itemize records for each tenant of all
deductions from security deposits provided for under this article
which the landlord has made by reason of a tenant's noncompliance
with the rental agreement for three years after the deduction or
one year after the termination of the tenancy, whichever is less;
and
(2) Permit a tenant or his authorized agent or attorney to
inspect such tenant's records of deductions at any time during
normal business hours.
§37-6A-4. Prohibited provision in rental agreements.
A rental agreement shall not contain a provision that the
tenant agrees to waive or forego rights or remedies under this
article. A provision prohibited by this section included in a
rental agreement is unenforceable. If a landlord brings an action
to enforce any of the prohibited provisions, the tenant may recover
actual damages sustained by him or her and reasonable attorney's
fees.
§37-6A-5. Landlord's non-compliance.
(a) If a landlord fails to comply with any of the provisions
of this article, and such non-compliance is willfully or not in
good faith, the tenant is entitled to a judgment for:
(1) the amount of any unreturned security deposit;
(2) damages for annoyance or inconvenience resulting from the
landlord's nonconformance equal to one and a half times the amount
of the tenant's security deposit, unless the tenant owes rent to
the landlord, in which case, the court shall order an amount equal
to any amount awarded to the tenant pursuant to this subsection to
be credited against any rent due to the landlord; and
(3) reasonable attorney fees.
(b) This section does not limit rights or remedies available
to a landlord or tenant under any other law.
§37-6A-6. Application and effective date of this article.
(a) The provisions of this article shall apply to all rental
premises or units used for dwelling purposes.
(b) The provisions of this article shall not apply to
agreements for the payment of security deposits entered into prior
to the effective date of this article.
Email
Webmaster | © 2024 West Virginia Legislature **
