COMMITTEE SUBSTITUTE
FOR
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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[Originating in the Committee on the Judiciary;
reported February 3, l999.]
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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; and disposition of abandoned personal
property upon order of the court.
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
s 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
landlord 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 landlord 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
owed up to the time when he
or she became entitled to
the
possession.
(b) Upon regaining possession of the property, the landlord 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 that shall be:
(1) Posted in a conspicuous place on the property; and
(2) Sent by first-class mail with a certificate of mailing,
which provides a receipt of the date of mailing, 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) The written 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 date specified in the written notice
that is:
(A) Not less than thirty days after the date the written
notice was mailed; or
(B) Not less than sixty days after the date the written notice
was mailed 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 within the time
frame provided for in subsection (c) of this section, then the
tenant forfeits his or her ownership rights to the personal
property, and the personal property becomes the property of the
landlord.
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 landlord.
(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 tenant 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 landlord.
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.
The court may disburse any 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)
The court order shall specify the time when the tenant
shall vacate the property, taking 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 when 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 continues to
wrongfully
occupies occupy the property beyond such time
, the
sheriff shall forthwith remove
him the tenant, taking
such
precautions
as are necessary to guard against damage to the
property of the landlord and the tenant.
(g)
In the event an appeal is taken and the tenant prevails
upon appeal, the relief ordered by the appellate court shall be for
monetary damages only and shall not restore the tenant to
possession if the term of the lease has expired, Absent absent an
issue of title,
retaliation retaliatory eviction, 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
, the no tenant
shall be is not 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 landlord, and the tenant fails to
remove all personal property by the date and time specified by the
order issued pursuant to subsection (f) of this section, the
landlord 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.
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(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.
The certificate of mailing required in subdivision (1) of
subsection(b) provides a receipt showing evidence of mailing, but
unlike a certified or registered letter, does not require that the
recipient sign for the letter, which may delay delivery.
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.)
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