H. B. 3346
(By Delegate Palumbo (By Request))
[Introduced
March 25, 2005
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §55-3B-3 and §55-3B-6 of the Code of
West Virginia, 1931, as amended, all relating to reducing the
period within which the tenancy of a factory-built home site
may be terminated from three months to forty-five days.
Be it enacted by the Legislature of West Virginia:
That §55-3B-3 and §55-3B-6
of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 3B. REMEDIES FOR WRONGFUL OCCUPATION OF FACTORY-BUILT
HOME SITE.
§55-3B-3. Termination of tenancy.
(a) The tenancy of a factory-built home site may be terminated
by either party only by giving at least three months' forty-five
days notice in writing to the other of his or her intention to
terminate the tenancy. When such notice is to the tenant, it may
be served upon him or her, or upon anyone holding under him or her the leased premises or any part thereof. When it is by the tenant,
it may be served upon anyone who at the time owns the premises, in
whole or in part, or the agent of such owner or according to the
common law.
(b) Unless the landlord is changing the use of the site, if a
tenancy is ended by the landlord at the later of its stated term or
at the end of the time period set out in subsection (b), section
two of this article, with no good cause, the owner may not prevent
the sale of the factory-built home in place to another tenant who
meets the standards and criteria in effect for new tenants prior to
the termination of the tenancy.
§55-3B-6. Proceedings in court; final order; disposition of
abandoned personal property.
(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 evicting the tenant
and ordering the tenant to have the factory-built home removed.
(b) In the case of a petition alleging good cause or holding
over after proper termination of a tenancy, if the tenant files an
answer raising the defense of breach by the landlord of a material
covenant upon which the tenant's duties depend or other defenses to
the claim or claims set forth in the petition, the court shall
proceed to a hearing on such issues.
(c) Continuances of the hearing provided for in this section shall be for good cause only and the judge or magistrate shall not
grant a continuance to either party as a matter of right. 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.
(d) At the conclusion of the hearing, if the court finds that
the landlord is entitled to evict the tenants and have the
factory-built home of the tenants removed, the court shall make and
enter an order evicting the tenants and ordering the tenants to
have the factory-built home removed. In the case of a proceeding
pursuant to 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 periodic payments or other agreed
charges related to the tenancy as the evidence may require. The
court may disburse any moneys paid into court by the tenant in
accordance with the provisions of this section.
(e) The court order shall specify the time when the tenant
shall vacate the property, taking into consideration such factors
as the nature of the factory-built home, the possibility of
relative harm to the parties and other material facts deemed
relevant by the court in considering when the tenant might
reasonably be expected to vacate the property. The court shall not
order the tenant to vacate the premises in less than one month
unless the tenant refuses or fails to pay rent for that period in advance as it becomes due or unless the court finds that the tenant
has deliberately or negligently damaged the property or the
property of other tenants or materially threatened or harmed the
quiet enjoyment of the property of other tenants or neighbors or
knowingly permitted another person to do so. The court shall not
order the tenant to remove the factory-built home in less than
three months forty-five days unless the tenant refuses or fails to
pay rent in advance as it becomes due for that period or unless the
court finds that the presence of the factory-built home poses an
imminent threat to the health or safety of other tenants or
neighbors: Provided, That the court may order the home to be
removed in not less than thirty days if the factory-built home is
a single section and the tenant had held over after having been
given notice pursuant to section three of this article. The order
shall further provide that if the tenant continues to wrongfully
occupy the property beyond such time or if the tenant refuses or
fails to remove the factory-built home in the time required, the
landlord may apply for a writ of possession and the sheriff shall
forthwith remove the tenant, taking precautions to guard against
damage to the property of the landlord and the tenant.
(f) In the event an appeal is taken and the tenant prevails
upon appeal, and if the term of the lease has expired and proper
termination notice was given pursuant to section three of this
article, absent an issue of title, retaliatory eviction or breach of warranty, the relief ordered by the appellate court shall be for
monetary damages only and shall not restore the tenant to
possession. During the pendency of any such appeal, if the period
of the tenancy has otherwise expired and proper termination notice
was given pursuant to section three of this article, the tenant is
not entitled to remain in possession of the property.
(g) When an order is issued pursuant to this section evicting
the tenant and ordering the tenant to remove the factory-built home
and the tenant fails to remove the factory-built home by the date
specified by the order issued pursuant to subsection (e) of this
section, the landlord may:
(1) Dispose of the tenant's factory-built home without
incurring any liability or responsibility to the tenant or any
other person if the tenant informs the landlord in writing that the
tenant is abandoning the factory-built home;
(2) Remove and store the factory-built home after the date and
time by which the court ordered the tenant to remove the
factory-built home. The landlord may sell the stored factory-built
home after thirty days without incurring any liability or
responsibility to the tenant or any other person if: (i) The
tenant has not paid the reasonable costs of storage and removal to
the landlord and has not taken possession of the stored
factory-built home; or (ii) the costs of storage equal the value of
the factory-built home being stored; or
(3) Leave the factory-built home on the property. The
landlord may sell the factory-built home left on the property after
thirty days without incurring any liability or responsibility to
the tenant or any other person if the tenant has not paid the
landlord the reasonable costs of leaving the factory-built home on
the landlord's property and has not taken possession of the
factory-built home.
(h) The sale shall be conducted and the proceeds distributed
pursuant to article nine, chapter forty-six of this code as if the
landlord became the holder of a security interest on the day the
tenant was to have the factory-built home removed from the site
except that the landlord shall have first priority to recover
unpaid rent and may require as a condition of the sale that the
buyer post security or place in escrow the cost of moving the
factory-built home from the site.
(i) When an order is issued pursuant to this section granting
possession of the property to the landlord and the tenant removes
the factory-built home, but fails to remove all other personal
property by the date and time specified by the order issued
pursuant to subsection (e) of this section, the landlord may:
(1) Dispose of the tenant's personal property without
incurring any liability or responsibility to the tenant or any
other person if the tenant informs the landlord in writing that the
other personal property is abandoned or if the property is garbage;
(2) Remove and store the other personal property after the
date and time by which the court ordered the tenant to vacate the
property. The landlord may dispose of the stored personal property
after thirty days without incurring any liability or responsibility
to the tenant or any other person if: (i) The tenant has not paid
the reasonable costs of storage and removal to the landlord and has
not taken possession of the stored personal property; or (ii) the
costs of storage equal the value of the personal property being
stored; or
(3) Leave the personal property on the property. The landlord
may dispose of personal property left on the property after thirty
days without incurring any liability or responsibility to the
tenant or any other person if the tenant has not paid the landlord
the reasonable costs of leaving the personal property on the
landlord's property and has not taken possession of the personal
property.
(j) Notwithstanding the provisions of subsections (g) and (i)
of this section, if the personal property is worth more than three
hundred dollars and was not removed from the property or place of
storage within thirty days with the required fees paid as provided
in subsection (i) of this section, or if the factory-built home was
not removed within thirty days with the required fees paid as
provided in subsection (g) of this section, the landlord shall
store the personal property or factory-built home for up to thirty additional days if the tenant or any person holding a security
interest in the abandoned personal property or factory-built home
informs the landlord of their intent to remove the property:
Provided, That the tenant or person holding a security interest in
the personal property pays the landlord the reasonable costs of
storage and removal.
NOTE: The purpose of this bill is to reduce the period within
which the tenancy of a factory-built home site may be terminated
from three months to forty-five days.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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