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
ARTICLE 6A. RESIDENTIAL TENANT SECURITY DEPOSITS.
This article shall apply to all oral or written residential
§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
§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
(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
(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
§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
(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
(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
§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.