Senate Bill No. 101

(By Senators Love, Buckalew, Dugan, Ball, Ross and Sharpe)

____________

[Introduced January 14, 1998; referred to the Committee
on the Judiciary.]
____________




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 to abandoned property in the possession of a landlord; and authorizing the landlord to dispose of the property upon the tenant's abandonment of or eviction from the premises.

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 abandons the premises, and leaves the premises uncultivated or unoccupied, 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 rent is not paid within that time, the lessor shall be entitled to possession of the premises, and may enter thereon, and the right of the tenant to possession of the premises is terminated. But the landlord may recover the rent up to the time when he became entitled to the possession.
(a) A landlord may terminate a tenancy that has been abandoned and dispose of any goods, chattels, motor vehicles or other personal property left upon the premises by the tenant, in the manner provided by subsections (d) and (e) of this section, after giving notice as required by subsection (b) of this section, when:
(1) The landlord reasonably believes under all the circumstances that the tenant has left the property upon the premises with no intention of asserting any further claim to the premises or to the property;
(2) The tenant has been absent from the premises continuously for thirty days; and
(3) Rent is in arrears and unpaid.
(b) To terminate the tenancy and dispose of the tenant's property under this section, the landlord shall give a written notice to the tenant which notice shall be:
(1) Sent by first class mail;
(2) Addressed and mailed to the tenant at:
(A) The premises;
(B) Any post-office box held by the tenant and known to the landlord; and
(C) The most recent forwarding address if provided by the tenant or known to the landlord; and
(3) Mailed in an envelope indorsed "Please Forward."
(c) "First class mail" for purposes of this section does not include certified or registered mail, or any other form of mail which may delay or hinder actual delivery of mail to the tenant.
(d) The notice required under subsection (b) of this section shall state that the premises are considered abandoned and the personal property must be removed from the premises or from the place of safekeeping, if the landlord has stored the property, by a specified day, not less than twenty-one days after mailing of the notice, or the personal property will be sold or otherwise disposed of, and if the personal property is not removed:
(1) The landlord may sell the property at a public or private sale; or
(2) The landlord may destroy or otherwise dispose of the property if the landlord reasonably determines that the value of the property is so low that the cost of storage and conducting a public sale probably exceeds the amount that would be realized from the sale; or
(3) The landlord may sell certain items and destroy or otherwise dispose of the remaining property.
(e) After notifying the tenant as required by subsections (b) and (d) of this section, the landlord shall store all goods, chattels, motor vehicles and other personal property of the tenant in a place of safekeeping and shall exercise reasonable care for the property, except that the landlord may promptly dispose of rotting food and allow an animal control agency to remove any abandoned animals. The landlord may store a tenant's manufactured dwelling on the space rented or elsewhere on the premises. The landlord is entitled to reasonable storage charges and costs incidental to storage. The landlord may store the property at a commercial storage company, in which case the storage cost shall include the actual storage charge plus the cost of removal of the property to the place of storage.
(f) If the tenant upon the receipt of the notice provided by subsections (b) and (d) of this section or otherwise responds in writing to the landlord on or before the day specified in the landlord's notice that the tenant intends to remove the property from the premises or from the place of safekeeping, if the landlord has stored the property as provided in subsection (e) of this section, and does not do so within the time specified in the notice or within 15 days after the delivery of the tenant's response, whichever is later, the tenant's property is conclusively presumed to be abandoned. If the tenant removes the property, the landlord is entitled to the cost of storage for the period during which the property remained in the landlord's safekeeping, including any cost of removal of the property to the place of storage.
(g) The landlord is not responsible for any loss to the tenant resulting from storage of property in compliance with this section unless the loss was caused by the landlord's deliberate or negligent act. In the event of a deliberate or malicious violation, the landlord is liable for twice the actual damages sustained by the tenant.
(h) A public or private sale is authorized by this section.
(i)(1) The landlord may deduct from the proceeds of any public or private sale:
(A) The reasonable cost of notice, storage and sale; and
(B) Any unpaid rent.
(2) After deducting the amounts listed in subdivision (1) of this subsection, the landlord shall remit to the tenant the remaining proceeds, if any, together with an itemized accounting.
(3) If the tenant cannot after due diligence be found, the remaining proceeds shall be deposited with the county treasurer of the county in which the sale occurred, and if not claimed within three years shall revert to the general fund of the county available for general purposes.
(j) Complete compliance in good faith with this section constitutes a complete defense to any action brought by a tenant against a landlord for loss or damage to personal property disposed of pursuant to this section.
(k) If a landlord seizes and retains a tenant's personal property without complying with this section, the tenant is relieved of any liability for damage to the premises caused by conduct which was not deliberate, intentional or grossly negligent and for unpaid rent and may recover up to twice the actual damages sustained by the tenant.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 3A. REMEDIES FOR WRONGFUL OCCUPATION OF RESIDENTIAL RENTAL PROPERTY.

§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 files 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 those issues.
(c) In the case of a petition alleging a breach by the tenant or damage to the property, if the defendant shall file files an answer raising defenses to the claim or claims set forth in the petition, the court shall proceed to a hearing on such those issues.
(d) Continuances of the hearing provided for in this section shall may be for cause only and the judge or magistrate shall may 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 is required to pay into court any periodic rent becoming due during the period of such the 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 finds 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 any 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 considered 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 or herself from the property. The order shall further provide that if the tenant still wrongfully occupies the property beyond such that time, the sheriff shall forthwith remove him or her, taking such precautions as are any necessary precautions 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 may be for monetary damages only and shall may not restore the tenant to possession. During the pendency of any such appeal, no tenant shall be is entitled to remain in possession of the leasehold if the period of the tenancy has otherwise expired.
(h) When an order is issued granting possession of the property to the petitioner pursuant to this section, and the tenant fails to remove all personal property by the date and time specified in the order pursuant to subsection (f) of this section, the landlord may take, dispose of or otherwise remove the personal property in the same manner as abandoned personal property is disposed of under section six, article six, chapter thirty-seven of this code: Provided, That before actually removing or disposing of personal property, the landlord shall obtain written confirmation from the clerk of the court that issued the order that the time for filing an appeal has run and no appeal has been filed.


NOTE: The purpose of this bill is to authorize and provide a procedure whereby a landlord may dispose of the personal property of a tenant who has abandoned the leased premises.

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