COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 101
(By Senators Love, Buckalew, Dugan, Ball, Ross and Sharpe)
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[Originating in the Committee on the Judiciary;
reported January 22, 1998.]
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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 personal property
in the possession of a landlord; tenant's desertion of
rental premises; entry; recovery of rent; ability of the
landlord to dispose of abandoned personal property upon the
tenant's abandonment of the premises owing rent; notice to
the tenant of the landlord's action; 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, and
leave leaves 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, requiring the tenant to pay such rent
within one month. If the same
be is 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
or she became entitled to
the possession.
(b) Upon regaining possession of the premises, the lessor or
his or her 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. 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 premises; and
(2) Sent by first class mail, addressed and mailed in an
envelope endorsed "Please Forward" to the tenant at:
(A) The premises;
(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 the premises are considered abandoned and the
personal property must be removed from the premises or from the
place of safekeeping, if the landlord has stored the property, by
a specified day, not less than thirty days after mailing of the
notice, or the personal property will be sold or otherwise
disposed of, and that if the personal property is not removed:
(1) The landlord may sell the property at a public or
private sale; or
(2) 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 probably exceeds the amount that would be realized from the sale; or
(3) The landlord may sell certain items and destroy or
otherwise dispose of the remaining property: Provided, That
notice to a tenant who has notified the landlord that he or she
is on active duty in the armed forces of the United States shall
state that the landlord may sell or otherwise dispose of the
tenant's personal property if such property is not removed from
the premises or from the place of safekeeping, if the landlord
has stored the property, by a specified day, not less than sixty
days after mailing of the written notice.
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 whatsoever.