Enrolled Version - Final Version
House Bill 3202 History
OTHER VERSIONS -
HB3202 SUB ENR
H. B. 3202
(By Delegates Miley, Caputo, Skaff, Fleischauer
Manchin, Lawrence, Poore, Lane, Sobonya and Pasdon)
[Passed March 12, 2011; in effect ninety days from passage.]
AN ACT 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 and §37-6A-6,
all relating to
residential rental security deposits; providing relevant
definitions; providing for deduction from and returning of
security deposits; maintaining records; prohibiting certain
provisions in rental agreements; providing remedies upon
landlord's noncompliance; setting forth application of
article; and providing for security deposits 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 and §37-6A-6, all to read as follows:
ARTICLE 6A. RESIDENTIAL RENTAL SECURITY DEPOSITS.
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, 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
(4) "Facility" means something that is built, constructed,
installed or established to perform some particular function.
(5) "Landlord" means the owner or lessor 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 or lessor.
(6) "Managing agent" means a person authorized by the landlord
to act on behalf of the landlord under a management agreement.
(7) "Notice period" means: (A) within 60 days of the
termination of the tenancy; or (B) within 45 days of the occupation
of the premise by a subsequent tenant, whichever time period is
(8) "Owner" means one or more persons, jointly or severally,
in whom is vested:
(A) All or part of the legal title to the property, or
(B) 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
nonrefundable 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.
(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, or
as security for damages to the leased premises. Security deposit
does not include: (A) Rent; (B) a pet fee; or (C) application fee:
Provided, That the parties expressly agree, in writing, that a pet
fee or application fee is nonrefundable. A security deposit does
not include prepaid rent.
(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.
(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. Security deposits.
(a) Upon termination of the tenancy and within the applicable
notice period, any security deposit held by the landlord, minus any
deductions for damages or other charges, shall be delivered to the
tenant, together with a written itemization of any such damages or
other charges as provided in subsection (c).
(b) Upon termination of the tenancy, any security deposit held
by the landlord may be applied by the landlord only to:
(1) The payment of rent due, 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 that were billed to and
paid by the landlord, are the obligation of the tenant under the
rental agreement and unpaid by the tenant;
(4) The payment of reasonable costs for the removal and
storage of the tenant's personal property. The landlord may
dispose of the stored personal property pursuant to the provisions
of subdivisions (1) through (3), subsection (h), section three,
article three-a, chapter fifty-five of this code; and
(5) To other damages or charges as provided in the rental
agreement, including but not limited to, paying for the services of
a third party contractor to repair damages to the property caused
by the tenant.
(c) 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, advising him or her of that fact, within the applicable
notice 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
(d) 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.
(e 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 that is duly owed to the tenant. The provisions
of this subsection 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 or her successors in interest.
(f) 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.
(g) For the purposes of this section, the delivery to a tenant
of a security deposit and/or any notice prescribed by this section,
may be accomplished by either personal delivery to the tenant, or
by mailing the deposit and/or notice to the tenant's last known
address or forwarding address as provided by the tenant. It shall
be the responsibility of the tenant to provide an accurate address
to the landlord. If personal delivery is not reasonably possible
and a deposit or notice mailed to the tenant at his or her last
known address or forwarding address provided is returned as non-
deliverable, then the landlord shall hold the deposit or notice for
the period of six months, to be personally delivered to the tenant, or his or her authorized agent or attorney, at the landlord's place
of business during normal business hours within seventy-two hours
after a written request is received from the tenant.
§37-6A-3. Maintenance of records by landlord.
The landlord shall:
(1) Maintain and itemize records for each tenant of all
deductions from security deposits provided under this article which
the landlord has made by reason of a tenant's noncompliance with
the rental agreement for one year after the termination of the
(2) Either permit a tenant or his or her authorized agent or
attorney to inspect the tenant's records of deductions at any time
during normal business hours within seventy-two hours of a written
request, or at the landlord's option, provide a tenant or his or
her authorized agent or attorney a copy of the tenant's record of
deductions during normal business hours within seventy-two hours of
a written request.
§37-6A-4. Prohibited provision in rental agreements.
A rental agreement may not contain a provision that the tenant
agrees to waive or forego rights or remedies under this article.
A provision prohibited by this section 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
§37-6A-5. Landlord's noncompliance.
(a) If a landlord fails to comply with any of the provisions
of this article, and such noncompliance is willful or not in good
faith, 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 one and a half times the amount
wrongfully withheld, 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) Jurisdiction for any civil action brought pursuant to this
article shall be in magistrate court or circuit court in the county
where the residential rental premises or units are located.
(c) This section does not limit rights or remedies available
to a landlord or tenant under any other law.
§37-6A-6. Application and effective date of this article.
(a) The provisions of this article shall apply to all
residential rental premises or units used for dwelling purposes.
(b) The provisions of this article do not apply to agreements
for the payment of security deposits entered into prior to the
effective date of this article.