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Introduced Version House Bill 4695 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 4695


(By Delegates Amores, Ellem and Morgan)



[Introduced February 22, 2006; referred to the

Committee on the Judiciary.]




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, §37-6A-6, §37-6A-7, and §37-6A- 8, relating to residential rental security deposits; relevant definitions; pre-paid rent; security deposits; maintenance of records; prohibited provisions in rental agreements; remedies upon landlord's non-compliance; application of article; pre- paid rent 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, §37-6A-6, §37-6A-7, and §37-6A-8, 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, including all money intended to be used as a security deposit under a rental agreement, or property, 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, lessor or sublessor 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, lessor or sublessor.
(7) "Managing agent" means a person authorized by the landlord to act on behalf of the landlord under a management agreement.
(8) "Owner" means one or more persons, jointly or severally, in whom is vested:
(i) All or part of the legal title to the property, or
(ii) 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.
(9) "Person" means any individual, group of individuals, corporation, partnership, business trust, association or other legal entity, or any combination thereof.
(10) "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.
(11) "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, including prepaid rent paid more than one month in advance of the rent due date.
(12) "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.
(13)"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.
(14) "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, as a security for damages to the leased premises, or as a pet deposit. Security deposit does not include,(i) a non-refundable pet deposit; or (ii) a non-refundable application fee: Provided, That the parties expressly agree, in writing, that the pet deposit or application fee will be non-refundable.
(15) "Sublease" means the transfer by any tenant of any but not all interests created by a rental agreement.
(16) "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.
(17) "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. Prepaid rent; maintenance of escrow account.
The parties to a rental agreement may agree that the tenant will furnish and the landlord will accept, prepaid rent. If a landlord receives prepaid rent, it shall be placed in an escrow account in a federally insured depository in this State by the end of the fifth business day following receipt and shall remain in the account until such time as the prepaid rent becomes due. Unless the landlord has otherwise become entitled to receive any portion of the prepaid rent, it shall not be removed from the escrow account required by this section without the written consent of the tenant.
§37-6A-3. Security deposits.
(a) A landlord may not demand or receive a security deposit, however denominated, in an amount or value in excess of two months' periodic rent. Whenever a landlord collects from a tenant an additional amount of security deposit, the amount collected annually as additional security shall not be greater than ten percent of the current security deposit.
(b) Upon termination of the tenancy, such security deposit, whether it is property or money, plus interest at annual rate equal to two percent thereon, held by the landlord as security as hereinafter provided 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
(4) the payment of reasonable costs for the removal and storage of the tenant's personal property; or
(5) to other damages or charges as provided in the rental agreement.
(c) The security deposit, plus interest at annual rate equal to two percent thereon, and any deductions, damages and charges shall be itemized by the landlord in a written notice given to the tenant, together with any amount due the tenant within thirty days after termination of the tenancy and delivery of possession by personal delivery, registered or certified mail to the tenant, or in the case of the death of the tenant, the executor or administrator of the estate of the tenant or the surviving spouse of the tenant. As used in this subsection, written notice to the tenant shall be by personal delivery or mail to the tenant's last known address or forwarding address as provided by the tenant.
(d) No interest shall be due and payable pursuant to the provisions of is section unless the security deposit has been held by the landlord for a period exceeding thirteen months after the effective date of the rental agreement or after the effective date of any prior written or oral rental agreements with the same tenant, for continuous occupancy of the same dwelling unit.
(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. The landlord shall apply the security deposit in accordance with this section within the thirty day time period.
(f) The landlord shall notify the tenant in writing by personal delivery or mail to the tenant's last known address or forwarding address as provided by the tenant, of any deductions provided by this subsection to be made from the tenant's security deposit during the course of the tenancy. Such notification shall be made within thirty days of the date of the determination of the deduction and shall itemize the reasons in the same manner as provided in section four of this article. 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 subsection may not use the circumstances related to the deduction as a basis for the termination of the tenancy.
(g) 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 by personal delivery or mail to the tenant's last known address or forwarding address as provided by the tenant, advising him or her of that fact within the thirty day 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. This section shall not preclude the landlord or tenant from recovering other damages to which he may be entitled.
(h) 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 and any accrued interest 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.
(i) 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.
§37-6A-4. 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 during the preceding two years; 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-5. Prohibited provisions in rental agreements.
(a) A rental agreement shall not contain provisions that the tenant:
(1) Agrees to waive or forego rights or remedies under this article;
(2) Agrees to both the payment of a security deposit and the provision of a bond or commercial insurance policy purchased by the tenant to secure the performance of the terms and conditions of a rental agreement, if the total of the security deposit and the bond or insurance premium exceeds the amount of two months' periodic rent.
(b) A provision prohibited by subsection (a) 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-6. Landlord's non-compliance.
(a) If a landlord willfully fails to comply with any of the provisions of this article, the tenant is entitled to a judgment for:
(1) the amount of any unreturned security deposit; and
(2) damages for annoyance or inconvenience resulting from the landlord's nonconformance equal to three 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.
(b) This section does not limit rights or remedies available to a landlord or tenant under any other law.
§37-6A-7. Application of this article.
The provisions of this article shall apply to all rental premises or units used for dwelling purposes.
§37-6A-8. Prepaid rent and security deposits prior to effective date of this article.
The provisions of this article shall not apply to agreements for the payment of security deposits or prepaid rent entered into prior to the effective date of this article.

NOTE: The purpose of this bill to create a comprehensive procedure for the residential rental security deposits.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added. Article 3E is new, therefore, strike-throughs and underscoring have been omitted.






































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