COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 637
(By Senator Snyder)
_______
[Originating in the Committee on the Judiciary;
reported March 1, 2004.]
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A BILL to amend and reenact §37-15-2, §37-15-3 and §37-15-6 of the
code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new section, designated section §37-
15-3a; and to amend said code by adding thereto a new article,
designated §55-3B-1, §55-3B-2, §55-3B-3, §55-3B-4, §55-3B-5
and §55-3B-6, all relating to real property; house trailers,
mobile homes, manufactured homes and modular homes;
definitions; written rental agreements; termination of
tenancy; rules and regulations adopted by owner; remedies for
wrongful occupation of factory-built home site; definitions;
tenancy of factory-built home site; definitions; tenancy of
factory-built home site; termination of tenancy; petition for
summary relief for wrongful occupation of residential rental
property; contents of petition; notice; hearing defenses; eviction; removal of factory-built home; duty of sheriff;
appeal; failure of tenant to remove factory-built home;
landlord's options; disposal of personal property; and storage
and removal costs.
Be it enacted by the Legislature of West Virginia:
That §37-15-2, §37-15-3 and §37-15-6 of the code of West
Virginia, 1931, as amended, be amended and reenacted; that said
code be amended by adding thereto a new article, designated §37-15-
3a; and that said code be amended by adding thereto a new chapter,
designated §55-3B-1, §55-3B-2, §55-3B-3, §55-3B-4, §55-3B-5 and
§55-3B-6, all to read as follows:
CHAPTER 37. REAL PROPERTY.
ARTICLE 15. HOUSE TRAILERS, MOBILE HOMES, MANUFACTURED HOMES AND
MODULAR HOMES.
§37-15-2. Definitions.
For the purposes of this article, unless expressly stated
otherwise:
(a) "Abandoned factory-built home" means a factory-built home
occupying a factory-built home site pursuant to a written agreement
under which the tenant has defaulted in rent or the landlord has
exercised any right to terminate the rental agreement;
(b) "Factory-built home" includes modular homes, mobile homes,
house trailers and manufactured homes;
(c) "Factory-built home rental community" means a parcel of
land under single or common ownership upon which two or more
factory-built homes are located on a continual, nonrecreational
basis together with any structure, equipment, road or facility
intended for use incidental to the occupancy of the factory-built
homes, but does not include premises used solely for storage or
display of uninhabited factory-built homes or premises occupied
solely by a landowner and members of his family;
(d) "Factory-built home site" means a parcel of land within
the boundaries of a factory-built home rental community provided
for the placement of a single factory-built home and the exclusive
use of its occupants;
(e) "Good cause" means:
(1) The tenant is in arrears in the payment of periodic
payments or other charges;
(2) The tenant has breached a material term of a written
rental agreement or has repeatedly breached other terms of the
rental agreement;
(3) Where there is no written agreement, or where the written
agreement does not cover the subject matter of a warranty or
leasehold covenant, the tenant breached a material warranty or
leasehold covenant or has repeatedly breached other terms of a
material warranty or a leasehold covenant;
(4) The tenant has deliberately or negligently damaged the
property or knowingly permitted another person to do so.
(e)(f) "House trailers" means all trailers designed or
intended for human occupancy and commonly referred to as mobile
homes or house trailers and shall include fold down camping and
travel trailers as these terms are defined in section one, article
six, chapter seventeen-a of this code, but only when such camping
and travel trailers are located in a factory-built home rental
community, as defined in this section, on a continual,
nonrecreational basis.
(f)(g) "Landlord" means the factory-built home rental
community owner, lessor or sublessor of the factory-built home
rental community, or an agent or representative authorized to act
on his or her behalf in connection with matters relating to tenancy
in the community.
(g)(h) "Manufactured home" has the same meaning as the term is
defined in section two, article nine, chapter twenty-one of this
code which meets the National Manufactured Housing Construction and
Safety Standards Act of 1974 (42 U. S. C. §§5401
et seq.),
effective on the fifteenth day of June, one thousand nine hundred
seventy-six, and the federal manufactured home construction and
safety standards and regulations promulgated by the secretary of
the United States department of housing and urban development.
(h)(i) "Mobile home" means a transportable structure that is
wholly, or in substantial part, made, fabricated, formed or
assembled in manufacturing facilities for installation or assembly
and installation on a building site and designed for long-term
residential use and built prior to enactment of the Federal
Manufactured Housing Construction and Safety Standards Act of 1974
(42 U. S. C. §§5401
et seq.), effective on the fifteenth day of
June, one thousand nine hundred seventy-six, and usually built to
the voluntary industry standard of the American national standards
institute (ANSI)--A119.1 standards for mobile homes.
(i)(j) "Modular home" means any structure that is wholly, or
in substantial part, made, fabricated, formed or assembled in
manufacturing facilities for installation or assembly and
installation on a building site and designed for long-term
residential use and is certified as meeting the standards contained
in the state fire code encompassed in the legislative rules
promulgated by the state fire commission pursuant to section five-
b, article three, chapter twenty-nine of this code.
(j)(k) "Owner" means one or more persons, jointly or
severally, in whom is vested: (i) All or part of the legal title
to the factory-built home rental community; or (ii) all or part of
the beneficial ownership and right to present use and enjoyment of
the factory-built homesite or other areas specified in the rental
agreement and the term includes a mortgagee in possession.
(k)(l) "Rent" means payments made by the tenant to the
landlord for use of a factory-built home site and as payment for
other facilities or services provided by the landlord.
(m) "Section" means a unit of a factory-built home which is
transported and delivered as a whole and which contains some or all
of the indoor living area.
(l) (n) "Tenant" means a person entitled pursuant to a rental
agreement to occupy a factory-built home site to the exclusion of
others.
§
37-15-3. Written agreement required.
(a) The rental and occupancy of a factory-built home site
shall be governed by a written agreement which shall be dated and
signed by all parties thereto prior to commencement of tenancy. A
copy of the signed and dated written agreement and a copy of this
article shall be given by the landlord to the tenant within seven
days after the tenant signs the written agreement.
(b) The written agreement, in addition to the provisions
otherwise required by law to be included, shall contain:
(1) The terms of the tenancy and the rent therefor;
(2) The rules and regulations of the factory-built home rental
community. A copy of the text of the rules and regulations
attached as an exhibit satisfies this requirement;
(3) The language of the provisions of this article. A copy of
the text of this article attached as an exhibit satisfies this
requirement;
(4) A description of the physical improvements and maintenance
to be provided by the tenant and the landlord during the tenancy;
and
(5) A provision listing those services which will be provided
at the time the rental agreement is executed and will continue to
be offered for the term of tenancy and the fees, if any, to be
charged for those services.
(c) The written agreement for a factory-built home site on
which is placed a factory-built home that is comprised of one
section, other than a camping or travel trailer, may not allow for
the termination of the tenancy by the landlord during the first
twelve months that the factory-built home is placed on the site
except for good cause. The written agreement for a factory-built
home site upon which is placed a factory-built home that is
comprised of more than one section may not allow for the
termination of the tenancy by the landlord during the first five
years the factory-built home is placed on the site except for good
cause.
(c) (d) The written agreement may not contain:
(1) Any provisions contrary to the provisions of this article
and shall not contain a provision prohibiting the tenant who owns his or her factory-built home from selling his or her factory-built
home;
(2) Any provision that requires the tenant to pay any
recurring charges except fixed rent, utility charges or reasonable
incidental charges for services or facilities supplied by the
landlord; or
(3) Any provision by which the tenant waives his or her rights
under the provisions of this article.
(d) (e) When any person possesses a security interest in the
factory-built home, the written agreement or rental application
shall contain the name and address of any secured parties. The
written agreement shall require the tenant to notify the landlord
within ten days of any new security interest, change of existing
security interest or settlement or release of the security
interest.
(e) (f) When a factory-built home owner sells a factory-built
home, the new owner shall enter into a written agreement if the
factory-built home continues to occupy the site:
Provided, That
the new owner meets the standards and restrictions contained in the
prior rental agreement.
37-15-3a. Rules and regulations.
(a) An owner, from time to time, may adopt rules or
regulations concerning the tenant's use and occupancy of the premises. A rule or regulation is enforceable against the tenant
if the rule or regulation:
(1) Is reasonably related to the purpose for which it is
adopted;
(2) Applies to all tenants in the factory-built home rental
community in a fair manner;
(3) Is sufficiently explicit in its prohibition, direction, or
limitation of the tenant's conduct to fairly inform the tenant of
what the tenant must or must not do to comply;
(4) Is not for the purpose of evading the obligations of the
landlord; and
(5) The tenant has been given written notice of the rule at
the time the tenant enters into the rental agreement, or when it is
adopted by the owner.
(b) A rule or regulation adopted by the owner after the tenant
has entered into a rental agreement that results in a substantial
modification of the tenant
'
s original rental agreement does not
become effective until the current rental agreement expires and a
new agreement is made in writing.
§37-15-6. Termination of tenancy.
(a) The tenancy for a factory-built home site upon which is
placed a factory-built home that is comprised of one section,
other than a camping or travel trailer, may not be terminated until
twelve months after the home is placed on the site except for good cause. The tenancy for a factory-built home site on which is
placed a factory-built home that is comprised of two or more
sections may not be terminated until five years after the home has
been placed on the site except for good cause.
(b) The tenancy for a factory-built home, other then a camping
or travel trailer, may be terminated at the time set forth in this
subsection.
(1) Either party may terminate a rental agreement at the end
of its stated term or at the end of the time period set out in
subsection (a) of this section, whichever is later, for any reason,
unless the rental agreement states that reasons for termination
must exist.
(2) Either party may terminate a tenancy which has continued
after its stated term and longer than the period set out in
subsection(a) of this section for no reason, unless the rental
agreement states that reasons must exist.
(3) A tenancy that has not reached the end of its stated term
or has not existed for the time periods stated in subsection (a)
may only be terminated for good cause.
(c) which is for a term of thirty days or more by giving
written notice to the other party at least thirty days prior to the
termination date: Provided, That A tenancy governed by subdivision
(1) or (2), subsection (b) of this section may be terminated by
written notice at least three months before the termination date of the tenancy. A tenancy governed by subdivision (3), subsection (a)
of this section may be terminated by a written notice at least
three months before the termination date of the tenancy. The
rental agreement may specify a period of notice in excess of thirty
days the periods of time set out in this subsection.
(d) A landlord may not cause the eviction of a tenant by
willfully interrupting gas, electricity, water or any other
essential service, or by removal of the factory-built home from the
factory-built home site, or by any other willful self-help measure.
(d) A rental agreement may be terminated by the landlord for
the following reasons:
(1) Failure to comply with the terms of the rental agreement;
(2) Condemnation of the community; or
(3) change of use of the community: Provided, That all
requirements imposed by this chapter are complied with.
(c)(e) The landlord shall set forth in a notice of termination
the reason relied upon for the termination with specific facts to
permit determination of the date, place, witnesses and
circumstances concerning that reason.
(f) If a tenancy is ended by the landlord at the later of its
stated term or at the end of the time period set out in subsection
(a) of this article with no good cause, the owner may nor prevent
the sale of the factory-built home in place to another tenant who meets the standards and restrictions in effect for other new
tenants prior to the termination of the tenancy.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE
3B. REMEDIES FOR WRONGFUL OCCUPATION OF FACTORY-BUILT HOME
SITE.
§55-3B-1. Definitions.
For the purposes of this article, unless expressly stated
otherwise:
(a) "Factory-built home" has the same meaning given to that
term in West Virginia code section two, article fifteen, chapter
thirty-seven of this code.
(b) "Factory-built home site" means a parcel of land provided
for the placement of a factory-built home for occupancy as a
residence whether or not in a factory-built home community. A
factory-built home site is not residential rental property for the
purposes of article three-a of this chapter.
(c) "Good cause" means:
(1) The tenant is in arrears in the payment of rent;
(2) The tenant has breached a material term of a written
rental agreement or repeatedly breached other terms of a written
rental agreement including those agreements required in section
three, article fifteen, chapter thirty-seven of this code;
(3) Where there is no written agreement, or where the written
agreement does not cover the subject matter of a warranty or leasehold covenant, the tenant breached a material term of a
warranty or leasehold covenant or repeatedly breached other terms
of a leasehold covenant;
(4) The tenant has deliberately or negligently damaged the
property or knowingly permitted another person to do so.
(d) "Section" means a unit of a factory-built home which is
transported and delivered as a whole and which contains some or all
of the indoor living area.
§55-3B-2. Tenancy of factory-built home site.
(a) The tenancy of the site of a factory-built home that is
comprised of one section and that is not subject to a written
agreement is from month to month. The tenancy of the site of a
factory-built home that is comprised of two or more sections that
is not subject to a written agreement is from year to year.
(b) The tenancy of a factory-built home site that has placed
on it a factory-built home that is comprised of one section, other
then a camping or travel trailer, may not be terminated by the
landlord until twelve months after the tenancy began except for
good cause. The tenancy of a factory-built home site that has
placed on it a factory-built home that is comprised of two or more
sections may not be terminated by the landlord until five years
after the tenancy began except for good cause. A written agreement
may provide that the tenant may not terminate the tenancy for the
same or greater periods of time. A written agreement may provide that the landlord may not terminate the tenancy for greater periods
of time.
(c) For a month-to-month or year-to-year or a tenancy that is
created by a written agreement for a definite period of time the
tenancy does not terminate at the end of the month, year or stated
period of time unless either party gives timely notice as required
in section three of this article. If no notice is given and if no
new agreement is made, the tenancy of a factory-built home site
that is comprised of one section becomes a month-to-month tenancy
and the tenancy of a factory-built home that is comprised of two or
more sections becomes year-to-year tenancy.
§55-3B-3. Termination of tenancy.
(a) The tenancy of a factory-built home site may be terminated
by either party by giving at least three months' notice in writing
to the other of his or her intention to terminate the tenancy.
When such notice is to the tenant, it may be served upon him, or
upon anyone holding under him the leased premises or any part
thereof. When it is by the tenant, it may be served upon anyone
who at the time owns the premises, in whole or in part, or the
agent of such owner or according to the common law.
(b) Unless the landlord is changing the use of the site, if a
tenancy is ended by the landlord at the later of its stated term or
at the end of the time period set out in subsection (b), section
two of this article, with no good cause, the owner may not prevent the sale of the factory-built home in place to another tenant who
meets the standards and criteria in effect for tenants prior to the
termination of the tenancy.
§55-3B-4. Petition for summary relief for wrongful occupation of
residential rental property
.
(a) A person desiring to remove a tenant and factory-built
home from a factory-built home site may apply for such relief to
the magistrate court or the circuit court of the county in which
such property is located, by verified petition, setting forth the
following:
(1) That he is the owner or agent of the owner and as such has
a right to evict the tenant and have the factory-built home of the
tenant's removed;
(2) A brief description of the factory-built home site
sufficient to identify it;
(3) That the tenant is wrongfully occupying such property in
that the tenant is:
(A) Holding over after having been given proper notice of
termination of tenancy, whether or not the tenant has continued to
pay and the landlord has accepted rent; or
(B) The landlord has good cause; and
(4) A prayer for eviction of the tenant and removal of the
tenant's factory-built home.
(b) Previous to the filing of the petition the person shall
request from the court the time and place at which the petitioner
shall be heard. The court shall fix a time for such hearing, which
time shall not be less than five nor more than ten judicial days
following such request.
(c) Immediately upon being apprised of the time and place for
hearing the petitioner shall cause a notice of the same to be
served upon the tenant in accordance with the provisions of rule 4
of the West Virginia rules of civil procedure or by certified mail,
return receipt requested. Such notice shall inform the tenant that
any defense to the petition must be submitted in writing to the
petitioner within five days of the receipt by the tenant of the
notice and in no case later than the fifth day next preceding the
date of hearing. Upon receipt of the return of service or the
return receipt as the case may be, evidencing service upon the
tenant, the petitioner shall file with the court his petition and
such proof of service.
§55-3B-5. Defenses available.
In a proceeding under the provisions of this article, a tenant
against whom a petition has been brought may assert any and all
defenses which might be raised in an action for ejectment or an
action for unlawful detainer or provided by this article or article
fifteen, chapter thirty-seven of this code.
§55-3B-6. 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 evicting the tenant
and ordering the tenant to have the factory-built home removed.
(b) In the case of a petition alleging good cause, if the
tenant files an answer raising the defense of breach by the
landlord of a material covenant upon which the tenant's duties
depend or other defenses to the claim or claims set forth in the
petition, the court shall proceed to a hearing on such issues.
(c) Continuances of the hearing provided for in this section
shall be for good 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.
(d) At the conclusion of the hearing, if the court finds that
the landlord is entitled to evict the tenants and have the factory-
built home of the tenant's removed, the court shall make and enter
an order evicting the tenants and ordering the tenants to have the
factory-built home removed. In the case of a proceeding in which
the defendant appeared under subsection (b) 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 moneys paid into
court by the tenant in accordance with the provisions of this
section.
(e) The court order shall specify the time when the tenant
shall vacate the property, taking into consideration such factors
as the nature of the factory-built home, the possibility of
relative harm to the parties and other material facts deemed
relevant by the court in considering when the tenant might
reasonably be expected to vacate the property. The court shall not
order the tenant to vacate the premises in less than one month
unless the tenant refuses or fails to pay rent for that period in
advance as it becomes due or unless the court finds that the tenant
has deliberately or negligently damaged the property or the
property of other tenants or materially threatened or harmed the
quiet enjoyment of the property of other tenants or neighbors or
knowingly permitted another person to do so. The court shall not
order the tenant to remove the factory-built home in less than
three months unless the tenant refuses or fails to pay rent in
advance as it becomes due for that period or unless the court finds
that the presence of the factory-built home poses an imminent
threat to the health or safety of other tenants or neighbors. The
order shall further provide that if the tenant continues to
wrongfully occupy the property beyond such time or if the tenant refuses or fails to remove the factory-built home in the time
required, the landlord may apply for a writ of possession and the
sheriff shall forthwith remove the tenant, taking precautions to
guard against damage to the property of the landlord and the
tenant.
(f) 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 an issue of
title, retaliatory eviction or breach of warranty. During the
pendency of any such appeal, the tenant is not entitled to remain
in possession of the property if the period of the tenancy has
otherwise expired.
(g) When an order is issued pursuant to this section evicting
the tenant and ordering the tenant to remove the factory-built home
and the tenant fails to remove the factory-built home by the date
and time specified by the order issued pursuant to subsection (e)
of this section, the landlord may:
(1) Dispose of the tenant's factory-built home without
incurring any liability or responsibility to the tenant or any
other person if the tenant informs the landlord in writing that the
tenant is abandoning the factory-built home;
(2) Remove and store the factory-built home after the date and
time by which the court ordered the tenant to remove the factory- built home. The landlord may sell the stored factory-built home
after thirty days without incurring any liability or responsibility
to the tenant or any other person if: (i) The tenant has not paid
the reasonable costs of storage and removal to the landlord and has
not taken possession of the stored factory-built home; or (ii) the
costs of storage equal to the value of the factory-built home being
stored; or
(3) Leave the factory-built home on the property. The landlord
may sell the factory-built home left on the property after thirty
days without incurring any liability or responsibility to the
tenant or any other person if the tenant has not paid the landlord
the reasonable costs of leaving the factory-built home on the
landlord's property and has not taken possession of the factory-
built home.
(h) The sale shall be conducted and the proceeds distributed
pursuant to article nine, chapter forty-six of this code as if the
landlord became the holder of a security interest on the day the
the tenant was to have the factory-built home removed from the site
except that the landlord shall have first priority to recover
unpaid rent and may require as a condition of the sale that the
buyer post security or place in escrow the cost of moving the
factory-built home from the site.
(i) When an order is issued pursuant to this section granting
possession of the property to the landlord, and the tenant removes the factory-built home, but fails to remove all other personal
property by the date and time specified by the order issued
pursuant to subsection (e) of this section, the landlord may:
(1) Dispose of the tenant's personal property without
incurring any liability or responsibility to the tenant or any
other person if the tenant informs the landlord in writing that the
other personal property is abandoned or if the property is garbage;
(2) Remove and store the other personal property after the
date and time by which the court ordered the tenant to vacate the
property. The landlord may dispose of the stored personal property
after thirty days without incurring any liability or responsibility
to the tenant or any other person if: (i) The tenant has not paid
the reasonable costs of storage and removal to the landlord and has
not taken possession of the stored personal property; or (ii) the
costs of storage equal to the value of the personal property being
stored; or
(3) Leave the personal property on the property. The landlord
may dispose of personal property left on the property after thirty
days without incurring any liability or responsibility to the
tenant or any other person if the tenant has not paid the landlord
the reasonable costs of leaving the personal property on the
landlord's property and has not taken possession of the personal
property.
(j) Notwithstanding the provisions of subsections (g) and (i)
of this section, if the personal property is worth more than three
hundred dollars and was not removed from the property or place of
storage within thirty days with the required fees paid as provided
in subsection (i) of this section if the factory-built home was not
removed within thirty days with the required feed paid as provided
in said subsection, or if the factory-built home was not removed
within thirty days with the required fees paid as provided in
subsection (g) of this section, the landlord shall store the
personal property or factory-built home for up to thirty additional
days if the tenant or any person holding a security interest in the
abandoned personal property or factory-built home informs the
landlord of their intent to remove the property: Provided, That
the tenant or person holding a security interest in the personal
property pays the landlord the reasonable costs of storage and
removal.
__________
(NOTE: The current statute states that the tenancy of the
rental of a lot in a factory-built home community for placement of
a factory-built home cannot be terminated except for some form of
good cause. Also the current statute may prohibit the changing of
factory-built home community rules and regulations.
This bill provides that a landlord may without good cause
terminate the tenancy of a factory-built home which is delivered in
one section (and which costs $1200 to properly move) only after one
year and that a landlord may without good cause terminate the
tenancy of a factory-built home which is delivered in two sections
(which can cost $5,000 to property move) only after five years.
The landlord can terminate the tenancy of any factory-built home
site for material good cause at any time. The bill also sets out the notice periods for terminating the tenancies, the amount of
time that the court has to give to the tenant to leave the site and
the amount of time the tenant has to move the factory-built home
(contingent on paying rent).
It authorizes the adoption of rules or regulations, but
provides that rules or regulations adopted after the tenant enters
into the rental agreement that work a substantial modification of
the tenant's bargain are not valid until the current tenancy ends
and a new agreement is made in writing.
The changes in chapter thirty-seven apply to home sites in
factory-built rental communities which are composed of two or more
factory-built homes. The new article in chapter fifty-five applies
to single factory-built home sites and the eviction process for
both single factory-built home sites and factory-built rental
communities.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Chapter thirty-seven, article fifteen, section six and chapter
fifty-five, article three-a is new; therefore, strike-throughs and
underscoring have been omitted.