H. B. 4313


(By Delegates Fleischauer, Marshall, Johnson,
Hines, Manchin, Houston and Faircloth)
[Introduced January 31, 2000; referred to the
Committee on the Judiciary.]



A BILL to amend chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article six-a, relating to residential tenant security deposits.

Be it enacted by the Legislature of West Virginia:
That chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article six-a, to read as follows:
ARTICLE 6A. RESIDENTIAL TENANT SECURITY DEPOSITS.
§37-6A-1. Applicability.
This article shall apply to all oral or written residential lease agreements.
§37-6A-2. "Security deposit" defined.
For the purposes of this article "security deposit" means any payment made by or for a tenant to a landlord which is refundable to the tenant at the termination or expiration of the tenancy and which is to be used to secure performance of any obligation of the tenant under the lease agreement.
§37-6A-3. Amount of deposit allowed.
A landlord may not demand or receive a security deposit, however denominated, in an amount or value in excess of two month's rent.
§37-6A-4. Landlord to hold deposit in trust account.
(a) Security deposits held by the landlord continue to be the property of the tenant and shall be placed, by the landlord, in a trust account with a federally-insured financial institution located in the state of West Virginia. Security deposits shall not be commingled with the personal property of the landlord until the provisions of section six, article six-a of chapter thirty-seven are met.
(b) Notwithstanding subsection (a) of this section, all security deposits may be held in a common trust account which may be an interest bearing account.
§37-6A-5. Landlord to furnish statement of condition of the premises.

(a) A landlord shall provide the tenant, in conjunction with the execution of a lease or the creation of a tenancy, a separate written statement describing the present condition of the premises to be rented. Each written statement shall contain a clear statement of the present condition of the premises known to the landlord and shall specifically state any damage to the remises which exists prior to the commencement of the tenancy. The landlord shall sign the statement and provide a copy to the tenant within thirty days of the commencement of the tenancy.
(b) A landlord who fails to furnish a written statement as described in subsection (a) of this section is barred from recovering any sum for damage to or cleaning of the leased premises unless the landlord can establish by clear and convincing evidence that the damage occurred during the tenancy in question and was cause by the tenant or the tenant's family, licensees or invitees.
§37-6A-6. Return of deposit; exceptions.
(a) A landlord shall, within fifteen days from the date of the termination or expiration of the tenancy, return the security deposit together with any interest earned thereon to the tenant or furnish the tenant a written statement and itemized list showing specific reasons for withholding the security deposit or any portion thereof together with the remainder of the amount of security deposit due. A landlord is liable to the tenant for interest at the rate of six per cent on any security deposit due and unpaid to the tenant after fifteen days following termination or expiration of the tenancy.
(b) If the reason for the withholding of the security deposit is for the restoration of the dwelling unit, the statement shall specify the nature of the damages and the actual or estimated reasonable cost for the required restoration.
(c) The landlord may withhold from the security deposit only such amounts as are reasonably necessary for the following reasons:
(1) To remedy a tenant's default in the payment of rent or other funds due to the landlord pursuant to the lease agreement;
(2) To restore the dwelling unit to its condition at the commencement of the tenancy, normal wear and tear excepted;
(3) To recover expenses incurred in acquiring possession of the premises from a tenant who does not act in good faith in failing to surrender and vacate the premises upon noncompliance with the lease agreement; or
(4) To recover any other costs incurred by the landlord by reason of the tenant's failure to perform his or her obligations under the lease agreement.
(d) In any action concerning the security deposit, the burden of proving, by a preponderance of the evidence, the reason for withholding all or any portion of the security deposit shall be on the landlord.
§37-6A-7. Tenant to provide forwarding address.
(a) A tenant shall provide the landlord, in writing, with the forwarding address to which the written statement and amount of security deposit due from the landlord may be sent.
(b) If the tenant fails to provide the landlord with the forwarding address as required by subsection (a) of this section, the tenant shall not be entitled to damages, costs or attorney's fees under section eight, article six-a, chapter thirty-seven, unless the tenant can show that the landlord had actual knowledge of the forwarding address.
§37-6A-8. Liability of landlord for wrongfully withholding deposit.

(a) A landlord who retains a security deposit or any portion thereof in violation of this article is liable for an amount equal to two times the amount of the security deposit wrongfully withheld and the tenant's reasonable costs and attorney's fees in a suit to recover the security deposit.
(b) A landlord who does not provide a written description and itemized list of damages and charges in violation of this article:
(1) Forfeits the right to withhold any portion of the security deposit; and
(2) Is liable for the tenant's reasonable costs and attorney's fees in a suit to recover the security deposit.
(c) A tenant shall give notice to the landlord of the tenant's intention to file legal proceedings a minimum of seven days prior to filing said action.
§37-6A-9. Liability of tenant for withholding rent.
(a) The tenant may not withhold payment of any portion of the last month's rent on the grounds that the security deposit is security for the payment of the last month's rent.
(b) A tenant who violates this section is liable to the landlord for the landlord's costs and reasonable attorney's fees in a suit to recover the rent.
(c) This section does not apply where there is a written agreement between the landlord and the tenant to apply the security deposit to the tenant's last month's rent.
§37-6A-10. Landlord's transfer of the dwelling units.
(a) Upon termination of the landlord's interest in the dwelling unit in question, whether by sale, assignment, death, appointment of receiver or otherwise, the landlord or his agent shall, within thirty days, do one of the following acts, either of which shall relieve him or her of further liability with respect to the security deposit.
(1) Transfer the portion of the payment or deposit remaining after any lawful deductions made under this section to the landlord's successor in interest and thereafter notify the tenant by mail of the transfer and the transferee's name and address; or
(2) Return the portion of the security deposit remaining after any lawful deductions made under this section to the tenant.
(b) Upon termination of the landlord's interest in the dwelling unit(s), the landlord's successor in interest shall have all the rights and obligations of the landlord with respect to the security deposit.
§37-6A-11. Waiver of provisions.
The requirements of this article may not be waived by the parties to a least agreement except as specifically provided herein.



NOTE: The purpose of this bill is to protect a tenants' rights to return of all or part of residential security deposits.

This article is new; therefore, strike-throughs and underscoring have been omitted.