H. B. 4688


(By Delegate Rowe)
[Introduced March 2, 1994; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact section three, article three-a, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section four, all relating to providing for the storage and disposition of property belonging to a tenant who has been evicted from the premises of residential rental property pursuant to a judgment for wrongful occupation of such property; allowing twenty-four hours to a tenant to remove his property from the premises; limiting the liability of the landlord for damage to a tenant's property left on the premises; requiring the tenant to pay the sheriff for removing and storing property; allowing the sheriff to withhold property from the tenant if the tenant fails or refuses to pay the sheriff for costs incurred in removing and storing property; providing that the sheriff may dispose of property of which a tenant fails to take repossession while being stored by the sheriff; notice requirements; limiting the liability of the sheriff and those that act on his or her behalf; and providing a procedure for property owners to remove house trailers belonging to others from their property.
Be it enacted by the Legislature of West Virginia:

That section 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; and that said article be further amended by adding thereto a new section, designated section four, all to read as follows:
ARTICLE 3A. REMEDIES FOR WRONGFUL OCCUPATION OF RESIDENTIAL RENTAL PROPERTY.

§ 55 - 3A - 3. Proceedings in court; procedure for removal of property; 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 the petition 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. 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 of relative 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: Provided , That in the event the tenant's person is removed by the sheriff from the premises and such tenant has furnishings or other personal property or effects still remaining on the premises at the time he or she is so removed and which such tenant has failed or refused to move to a location away from such premises, such furnishings, property or effects may be disposed of by the sheriff in a lawful manner: Provided, however, That in the event the tenant requests twenty-four hours to make provision to move his or her furnishings, property or effects he or she shall be allowed such period of time, to run from the time he or she was removed from the premises. The sheriff shall be required to apprise the tenant of his or her right to request twenty-four hours to make provision to move his or her property. In such event, the sheriff may either remove the property or effects to a safe location not located on the landlord's premises to be picked up by the tenant in such twenty-four hour period or as soon thereafter as the sheriff in his or her discretion allows, or, with the written permission of the landlord and tenant the sheriff may allow such property to be left on the landlord's premises at a location designated by the landlord for such period of time: Provided further, That the landlord or landowner is not liable for any damage or destruction that may result to the property of the tenant left on the premises within said twenty-four hour period unless the landlord or landowner or landlord's or landowner's agents or employees intentionally or wantonly and recklessly damage or destroy such property. In no event may a landowner or landlord be held liable for damage or destruction to a tenant's property left on such landowner or landlord's premises after such twenty-four hour period: And provided further, That in the event the sheriff removes the property and effects to a safe location, the tenant shall be required to pay the reasonable costs incurred in the transportation and storage of same or the sheriff may withhold all or a portion of such property in order to defray such costs: And provided further, That in the event the tenant is not present at the time the sheriff performs his or her responsibilities hereunder in removing the tenant's furnishings, personal property or personal effects from the premises, the sheriff shall move such furnishings, property and effects to a safe location at which such tenant shall be allowed to take repossession thereof. The tenant shall, however, be required to pay the reasonable costs incurred in the transportation and storage of same or the sheriff may withhold all or a portion of such property in order to defray such costs: And provided further, That in the event property is transported and stored by the sheriff under this section and a tenant, for whatever reason, fails to appear and take possession of same or fails to pay for the reasonable costs incurred in the transportation and storage of such property within five days after same has been stored, the sheriff shall be authorized, upon complying with the notice requirements set forth below, to dispose of all or any part of such property in a lawful and environmentally sound manner. The sheriff shall also be authorized to sell all or any part of such property at public auction to the highest bidder or to convert all or any part thereof to public use: And provided further, That prior to any disposition, sale or public conversion of any such furnishings, personal property or personal effects, the sheriff shall provide notice, at least twenty days in advance of any such disposition, sale or public conversion to the tenant or any lienholder of record or any other lienholder, person, corporation or partnership that is a co-owner of such property or which has a monetary interest therein, whether perfected or not, and of which the sheriff has knowledge. Such notice shall be made by certified mail, return receipt requested, or in the event the sheriff does not have a current or last known address for the tenant or any third party with a monetary interest in such property of whose existence he or she is aware, or such certified mail is returned without being received or accepted by such tenant or other third party, or if a public auction of the tenant's goods is to be held, the sheriff shall provide notice of such disposition, sale or public conversion by Class I legal advertisement in a newspaper of general circulation in the county wherein the property is situate or in any county wherein the sheriff has reason to believe a tenant or interested third party, for which the sheriff does not have a current and existing address, resides or is situate. Notice by publication shall be in compliance with the provisions of article three, chapter fifty-nine of this code. Such notice shall provide the following:
(1) The date, time and place at which the disposal, sale or public conversion of such property is intended to be accomplished; and
(2) The costs, if any, due to the sheriff for the storage, transportation or handling of the tenant's property.
The sheriff is not liable for acts or omissions which occur during the performance of his or her duties hereunder that result in damages to a tenant's property or while such property is under the care, custody or control of the sheriff or his or her agents, employees, assigns or any bailee under hire who acts on behalf of the sheriff without a showing of intentional, wanton or reckless conduct by such sheriff, his or her agents, employees, assigns or bailee acting on his or her behalf.
(g) 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 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 no tenant shall be entitled to remain in possession of the leasehold if the period of the tenancy has otherwise expired.
§ 55-3A-4. Removal of house trailers; notice to owners and lienholders.

(a) In the event the property subject to removal under the provisions of this article is a "house trailer" as that term is defined in section one, article six, chapter seventeen of this code the sheriff shall not be required to remove such house trailer. The landowner or landlord or such landowner or landlord's agents, employees or assigns, however, shall have the right to remove such house trailer at their own expense in the event, the owner or tenant responsible for the placement of such house trailer on the premises of the landowner or landlord is insolvent or refuses to pay for such removal, or if the house trailer is abandoned or the owner thereof or the tenant responsible for the placement of such house trailer is absent and his or her whereabouts are unknown: Provided, That the landlord shall be required to comply with all applicable provisions of this article as well as any other applicable provision of law prior to such removal in addition to the following:

(1) Notice shall be sent by certified mail, return receipt requested, to the owner of the house trailer and to the tenant, in the event such tenant is not the owner of such trailer. Such notice shall be directed to the last known address of such owner and tenant. Notice by certified mail shall also be provided to any record lienholder having an interest in the house trailer. In the event a landowner or landlord, after exercising due diligence, is unable to secure an existing and current address for any person upon which notice is required by this section, or in the event such notice is returned unclaimed, such landowner or landlord shall cause to be published a Class III legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code;
(2) The notice shall be designed to apprise each person for which it is intended of the time and date when the landlord or landowner intends to remove the house trailer. It shall also apprise each addressee of the current location of the house trailer and the place that it will be situated immediately prior to removal, in the event such place is different than the current location. The notice shall also apprise each addressee of the place to which the landowner or landlord intends to remove the house trailer. In the event that any person intends or envisions that the house trailer will be disassembled or otherwise destroyed or dismantled prior to being removed or while in the process of being removed, such notice shall so state; and
(3) The notice shall be delivered to any required addressee at least thirty days before the removal, disassembling or destruction of any house trailer under the provisions of this section. Section three of this article shall be applicable to any removal of a house trailer under the provision of this section in all respects other than the relevant portions set forth therein that requires the sheriff to transport and store personal property.
(b) The landowner and landlord shall be responsible for ensuring that any house trailer that is removed under the provisions of this section shall not be removed, dumped or otherwise disposed of in violation of any rule, regulation or provision of law.
(c) For the purpose of this section, "abandoned house trailer" means a house trailer that has been left continuously without upkeep or habitation on the property of another other than the owner of such house trailer for a continuous period of more than six months and that no agreement exists with the owner or caretaker of the property upon which the trailer is situated that it may so continuously be left thereupon and, that the owner or caretaker of the property has practiced due diligence in unsuccessfully attempting to locate the owner, tenant or lienholder of record of such house trailer.
(d) This section shall provide a mechanism for relief to landowners and landlords in addition to any other existing legal remedy.



NOTE: The purpose of this bill is to: provide for the storage and disposition of property belonging to a tenant who has been evicted from the premises of residential rental property pursuant to a judgment for wrongful occupation of residential rental property; allow twenty four hours to a tenant to remove his property from the premises; limit the liability of the landlord for damage to a tenant's property left on the premises; require the tenant to pay the sheriff for removing and storing property; allow the sheriff to withhold property from the tenant if the tenant fails or refuses to pay the sheriff for costs incurred in removing and storing property; provide that the sheriff may dispose of property of which a tenant fails to take possession while being stored by the sheriff; provide notice requirements; limit the liability of the sheriff and those that act on his or her behalf; and provide a mechanism for property owners to remove house trailers belonging to others from their property.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§55-3A-4 is new; therefore, strike-throughs and underscoring have been omitted.