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.