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
(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
(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
§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
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
(c) In the case of a petition alleging a breach by the
tenant or damage to the property, if the defendant
files an answer raising defenses to the claim or claims set forth
in the petition, the court shall proceed to a hearing on such
(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
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
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.