H. B. 2134
(By Delegate Kiss)
[Introduced February 16, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections two and three, article
three-a, chapter fifty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating
to remedies for wrongful occupation of residential rental
property, defenses, counterclaims, limiting grounds for
continuances, deeming damage claims not to constitute
compulsory counterclaims, requiring the posting of a bond
and payment of rent during pendency of appeal and removal of
magistrate court proceeding to circuit court.
Be it enacted by the Legislature of West Virginia:
That sections two and three, article three-a, chapter fifty-
five of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 3A. REMEDIES FOR WRONGFUL OCCUPATION OF RESIDENTIAL
RENTAL PROPERTY.
§55-3A-2. Defenses available; counterclaims.
(a) 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.
(b) A claim for damages which may be asserted by the tenant
against the owner of residential rental property does not
constitute a compulsory counterclaim required to be maintained in
the proceeding provided for by this article. Nothing in this
article may be construed to prevent a tenant from bringing a
seperate action in the court of appropriate jurisdiction against
the owner for damages arising from the tenancy of the property,
including, but not limited to, claims for breach of warranty of
habitability, for failure to make repairs and for harrassment.
§55-3A-3. Proceedings in court; final order.
(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 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 an
answer raising defenses to the claim or claims set forth in thepetition 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. The
need for additional time to prepare for the prosecution or
defense of claims by either party which are distinct from the
issue of whether the tenant is in wrongful occupation of the
rental property does not constitute good cause for granting a
continuance of the hearing held pursuant to subsection (b) or (c)
of this section. 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
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 ofrelative 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, taking
such precautions as are necessary to guard against damage to the
property of the landlord and the tenant.
(g) An appeal from an order granting or denying possession
of the property may be perfected by the posting of a bond of five
hundred dollars with the court and the payment of other required
fees. If an appeal is taken from an order granting possession of
the property to the owner or the agent of the owner, the tenant
shall be required to pay to the clerk of the court any periodic
rent becoming due during the pendency of the appeal. Failure to
make the required payments to the clerk, without good cause,
constitutes a ground for dismissal of the appeal.
(h) A petition originally filed in magistrate court may be
removed to circuit court by any party to the proceeding after
executing a bond of five hundred dollars with the clerk of the
court and otherwise complying with the provisions of section
eight, article four, chapter fifty of this code.
(g) (i) 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 orderedby 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.
NOTE: The purpose of this bill is to prevent the defendant
in a summary proceeding for recovery of wrongfully occupied
rental property from causing delay by filing a counterclaim and
to require the payment of rent to the court and the posting of a
bond during the pendency of an appeal.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.