COMMITTEE SUBSTITUTE
for
H. B. 4208
(By Delegates Lawrence, Cowles, Phillips,
Argento, T. Waker, Beach and Fleischauer)
(Originating in the Committee on the Judiciary)
[February 12, 2010]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §37-6-31; and by
adding thereto a new section, designated §38-1-16, all
relating to requiring a landlord to give written notice to a
prospective tenant when property is subject to foreclosure;
requiring a landlord to give written notice to a tenant when
property is subject to foreclosure or sale; providing for
damages for failure to provide notice; effect of foreclosure
on preexisting tenancy; notice of foreclosure; termination of
lease prior to end of lease term.
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 section, designated §37-6-31; and by adding
thereto a new section, designated §38-1-16, to read as follows:
CHAPTER 37. REAL PROPERTY
ARTICLE 6. LANDLORD AND TENANT.
§37-6-31. Notice of foreclosure.
(a) If at the time of the execution of a residential rental
agreement, the premises is subject to any of the following circumstances, the landlord shall disclose that circumstance to the
tenant in writing in a separate written statement, signed by the
tenant before the execution of the rental agreement, that the owner
has provided written notice as required by this subsection:
(1) Any outstanding notice of default under a trust deed,
mortgage or contract of sale, or notice of trustee's sale under a
trust deed;
(2) Any pending suit to foreclose a mortgage, trust deed or
vendor's lien under a contract of sale;
(3) Any pending declaration of forfeiture or suit for specific
performance of a contract of sale; or
(4) Any pending proceeding to foreclose a tax lien.
(b) A residential rental agreement that does not include a
statement signed by the tenant pursuant to subsection (a) is
voidable at the option of the tenant.
(c) If an foreclosure action has been commenced against
residential rental property or if a trustee, pursuant to a trust
deed, has initiated a sale of residential rental property, the owner
of the property shall notify any tenant in writing of the following:
(1) That a foreclosure action or sale of the residential rental
property under a trust deed has been commenced against the rental
property; and
(2) The date of the sale of the property.
(d) Nothing in this section allows a tenant to withhold his or
her rental obligation because of receipt of the required notice.
(f) If the tenant moves as a result of a circumstance that the
landlord failed to disclose as required by the provisions of section, the tenant may recover twice the actual damages or twice
the monthly rent, whichever is greater, and all prepaid rent, in
addition to any other remedy that the law may provide.
CHAPTER 38. LIENS
ARTICLE 1. VENDOR'S AND TRUST DEED LIENS
§38-1-16. Effect of Foreclosure on Preexisting Tenancy.
(a) Notwithstanding the notice provisions of section five,
article six, chapter thirty-seven of this code, in the case of any
foreclosure on any dwelling or residential real property after the
date of enactment of this section, any immediate successor in
interest in such property pursuant to the foreclosure shall assume
such interest subject to:
(1) the provision, by such successor in interest of a notice
to vacate to any bona fide tenant at least ninety days before the
effective date of such notice; and
(2) the rights of any bona fide tenant, as of the date of such
notice of foreclosure:
(A) under any bona fide lease entered into before the notice
of foreclosure to occupy the premises until the end of the remaining
term of the lease, except that a successor in interest may terminate
a lease effective on the date of sale of the unit to a purchaser who
will occupy the unit as a primary residence, subject to the receipt
by the tenant of the ninety day notice under subdivision (1); or
(B) without a lease, subject to the receipt by the tenant of
the ninety day notice under subdivision (1),
except that nothing under this section shall affect the requirements
for termination of any Federal or State subsidized tenancy.
(b) For purposes of this section, a lease or tenancy shall be
considered bona fide only if:
(1) the mortgagor or the child, spouse, or parent of the
mortgagor under the contract is not the tenant;
(2) the lease or tenancy was the result of an arms-length
transaction; and
(3) the lease or tenancy requires the receipt of rent that is
not substantially less than fair market rent for the property or the
unit's rent is reduced or subsidized due to a Federal or State
subsidy.
(c) Nothing in this section shall affect:
(1) The requirements for termination of any Federal or State
subsidized tenancy;
(2) Any state law that provides longer periods or other
additional protections for tenants; or
(3) A lease or tenancy entered into prior to the execution of
a deed of trust that is the subject of a foreclosure.
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