H. B. 2018
(By Delegate Schadler)
[Introduced January 13, 2010; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §37-6-31, relating to
making the destruction of a landlord's property which has been
rented for residential purposes a criminal offense; providing
that damage greater than $300.00 but less than $1,000.00
constitutes a misdemeanor; providing that damage greater than
$1,000.00 constitutes a felony; providing that tenants who
leave trash when vacating a premises may be guilty of a
misdemeanor if it costs more than $100.00 to remove it;
providing that damage deposits be used to offset ascertainment
of value of damage; providing for the determination of prima
facie evidence under certain circumstances; providing that
tenants or others in privity of contract with landlords or
lessors have a duty to report damage not caused by themselves;
and providing a criminal penalty for failure to report the damage under certain circumstances.
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, to read as
follows:
ARTICLE 6. LANDLORD AND TENANT.
§37-6-31. Crime to destroy landlord's rented residential
premises; misdemeanor offense; felony offense;
requirement to use damage deposit as offset; prima
facie evidence; duty to report damage.
(a) Misdemeanor offenses. -- When a tenant or other person
present in the premises with the tenant's permission or authority
intentionally inflicts damage, or damage is otherwise inflicted in
reckless disregard for the property interests of others, which
equates an amount required for cost of repair or replacement
greater than $300.00 but less than $1,000.00, to a residential
leasehold, or any part, fixture, structure or appurtenance attached
to the leasehold, the tenant or other person is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $300.00, or confined in jail not more than six months, or both
fined and imprisoned. In the alternative, the court may order
restitution in lieu of a fine, if the court determines it
appropriate.
(b) Felony offense. -- When a tenant or other person present in the premises with the tenant's permission or authority
intentionally inflicts damage, or damage is otherwise inflicted in
reckless disregard for the property interests of others, which
equates an amount required for cost of repair or replacement
greater than $1,000.00, to a residential leasehold, or any part,
fixture, structure or appurtenance attached to the leasehold, the
tenant or other person is guilty of a felony and, upon conviction
thereof, shall be fined not more than $10,000.00, or imprisoned in
a state correctional facility for one to 10 years, or both fined
and imprisoned. In the alternative, upon a first conviction under
this subsection, the court in imposing any confinement may confine
an offender in jail up to eight months or order restitution in lieu
of a fine, if the court determines it appropriate.
(c) Failure to remove trash. -- Any tenant who, upon vacating
the premises of a residential leasehold, leaves trash or other
debris on the premises that reasonably causes or requires a
landlord, owner or lessor to expend in excess of $100.00 to remove,
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined an amount not to exceed $300.00. The court may, in lieu of
a fine, order restitution in a like sum for which a landlord, owner
or lessor was reasonably caused or required to expend in order to
remove the trash or other debris.
(d) Offset of deposit. -- For the purposes of this section,
any existing damage deposit shall be used as an offset in determining value.
(e) Prima facie evidence. -- For the purposes of this section,
prima facie evidence exists upon the viewing by the court of video
or photographic images of a leasehold or a part, fixture, structure
or appurtenance of the property, as it existed immediately before
a tenant took possession of the property, in contrast to the
condition upon which any criminal charge made under this section
arose: Provided, That the court finds to its reasonable
satisfaction the subject damage was not caused by normal wear and
tear or simple negligence: Provided, however, That before any
finding of prima facie evidence of guilt may be made, it is
necessary to present, in conjunction with the video or photographic
images, credible and trustworthy testimony or other evidence
concerning the cost of repair or replacement of the damaged
property.
(f) Duty to report. -- When there is the infliction or
existence of damage, other than normal and reasonable wear and
tear, to a residential leasehold or any part, fixture, structure or
appurtenance to the property, caused by any person other than the
tenant in possession or other person in privity of contract with
the landlord, owner or lessor, or other cause unrelated to any duty
imposed in this article upon landlords, the tenant or other person,
upon discovering or receiving trustworthy notice of the damage
shall, within 10 days of the discovery or notice, provide notice to the landlord, owner or lessor of the existence of the damage. Any
person who, without good or otherwise justifiable cause, fails to
provide the notice required under this subsection, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $1,000.00.
NOTE: The purpose of this bill is to make it a criminal
offense for the destruction of a landlord's property which has been
rented for residential purposes. The bill provides that damage
greater than $300.00 but less than $1,000.00 may constitute a
misdemeanor while providing that damage greater than $1000.00 may
constitute a felony. Failure to remove trash upon vacating a
leasehold is also designated as a criminal offense if the landlord
is required to expend more than $100.00 to remove it. It further
provides as follows: That damage deposits be used to offset
ascertainment of value of damage; that a finding of prima facie
evidence under certain circumstances may be made; and that tenants
or others in privity of contract with landlords or lessors have a
duty to report damage not caused by themselves while additionally,
providing a criminal penalty for failure to report such damage
under certain circumstances. This reporting requirement takes into
consideration the tenant or other person's right against
self-incrimination to the extent it does not require the tenant or
other person to report damage caused by themselves.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.