Senate Bill No. 361
(By Senators Love, Schoonover and Yoder)
[Originating in the Committee on the Judiciary;
reported February 24, 1995.]
A BILL to amend and reenact section six, article six, chapter
thirty-seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section three, article three-a, chapter fifty-five of said
code, all relating generally to abandoned property in the
possession of a landlord and further to the ability of the
landlord to dispose of such property upon the tenant
abandoning the premises or upon being evicted from the
Be it enacted by the Legislature of West Virginia:
That section six, article six, chapter thirty-seven of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section three, article
three-a, chapter fifty-five of said code be amended and reenacted,
all to read as follows:
CHAPTER 37. REAL PROPERTY.
ARTICLE 6. LANDLORD AND TENANT.
§37-6-6. Desertion of premises; entry; recovery of rent.
If any tenant from whom rent is in arrear and unpaid shall
abandon the demised premises, and leave the same uncultivated or
unoccupied, without goods thereon subject to distress sufficient to
satisfy such rent, the lessor or his agent may post a notice in
writing in a conspicuous part of the premises, requiring the tenant
to pay such rent within one month. If the same be not paid within
that time, the lessor shall be entitled to possession of the
premises, and may enter thereon, and the right of such tenant
thereto shall thenceforth be at an end. But the landlord may
recover the rent up to the time when he became entitled to the
possession. The lessor or his agent may take, dispose of or
otherwise remove the tenant's personal property without incurring
any liability or responsibility to the tenant or any other person
whatsoever upon regaining possession of such premises.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
ARTICLE 3A. REMEDIES FOR WRONGFUL OCCUPATION OF RESIDENTIAL RENTAL
§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 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.
(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.
(h) When an order is granted pursuant to this section that
grants possession of the property to the petitioner, and the tenant
fails to remove all personal property by the date and time
specified in an order pursuant to subsection (f) of this section,
the landlord may take, dispose of or otherwise remove such personal
property without incurring any liability or responsibility to the tenant or any other person whatsoever.