H. B. 4695
(By Delegate Hunt)
(Originating in the House Committee on the Judiciary)
[March 2, 2000]
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
the Real Estate used for Illegal Purposes Act; setting forth
legislative purpose; prohibiting owners from permitting the
use of rental property for certain illegal purposes; defining
a right to evict for the use of real property for illegal
purposes; providing a mechanism to give notice to owners
concerning illegal activities on real property; forbidding
discrimination; providing for reports, investigations and
notices by law-enforcement agencies; establishing criteria for
determining a violation under the article; providing that the
existence of eviction proceedings are a defense for an owner;
setting forth the necessary party to name in the event of
multiple units; providing for the filing of criminal charges; requiring law-enforcement agencies to train, educate and
assist landlords in avoiding violations under the article;
providing for the defense of owners from certain suits; and
providing for criminal penalties.
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. REAL ESTATE USED FOR ILLEGAL PURPOSES ACT.
The Legislature finds it to be in the best interest of the
residents of this state and the general public to provide for the
regulation of conduct it considers to be offensive; to prevent
vice, disorder and immorality; and to promote public peace, health
§37-6A-2. Permitting the use of real property for illicit drug
activity or prostitution.
(a) No owner of real property located in this state may
knowingly allow real property to be used as a site for any illegal
possession, manufacture or sale of controlled substances, as
defined in chapter sixty-a of this code or prostitution as defined
in article eight, chapter sixty-one of this code, after having
received written notice from any law-enforcement agency in this state that a present occupant or tenant of that property has been
illegally possessing, manufacturing or selling controlled
substances or allowing the illegal possession, manufacture or sale
of controlled substances or has been engaging in or allowing
illegal prostitution on the real property.
(b) For the purposes of this article, a person is an owner of
real property if he or she, alone or with others, has legal title
to any residential dwelling or dwelling unit.
§37-6A-3. Eviction proceedings arising out of use of real property
for illegal purposes.
(a) The owner of real property has the absolute right to
terminate the tenancy or evict any tenant or occupant from real
property which is the subject of the notice required in subsection
(f) of section five of this article upon the receipt of the notice.
(b) The court may order the termination of a tenancy upon a
showing by a preponderance of the evidence that the tenant or
occupant of the real property has illegally possessed, manufactured
or sold a controlled substance or allowed the illegal possession,
manufacture or sale of a controlled substance, or has been engaging
in illegal prostitution at the real property.
(c) In any eviction or tenancy termination proceeding, there
must be a finding of either:
(1) The tenant's participation in the illegal activities; or
(2) The tenant's knowledge of the participation of a member of the tenant's household or a tenant's guest in the illegal
(d) Any act done by a member of the tenant's household or a
tenant's guest is presumed to be known by the tenant. This
presumption may be rebutted by a preponderance of the evidence that
the tenant could not reasonably have known that the act would occur
or that the tenant took reasonable measures to prevent the act from
(e) The court shall consider all circumstances surrounding
the tenant's eviction, including the seriousness of the illegal
activity, the extent of participation by household members and the
effect on household members not involved.
§37-6A-4. Discrimination forbidden.
Nothing in this article may be construed to encourage or
authorize the discrimination of any person based upon the race,
creed, religion, sex, age or national origin of the person. It is
the intent of this article to hold persons accountable for
acquiescing in or participating in the continued illegal use of
their property, after having received notice as prescribed by this
§37-6A-5. Reports, investigations and notices by law-enforcement
(a) Any complaint of suspected illegal activities involving
controlled substances or prostitution by tenants, or other persons on the real property, made by the lessor, other tenants or persons
residing or working in the vicinity of the real property, or by
officials or representatives of a governmental agency, are to be
submitted to the law-enforcement agency responsible for receiving
these types of complaints and each complaint is to be individually
logged by the law-enforcement agency.
(b) Upon receipt of a complaint, the law-enforcement agency
shall determine whether there is a need to investigate, including
whether surveillance of the real property would be prudent and
(c) The law-enforcement agency that received the complaint
shall notify all other applicable and relevant agencies of
government, including those who enforce applicable city or county
provisions related to building, zoning and health, in order to
afford those agencies the opportunity to inspect the property for
violations and if appropriate issue citations.
(d) In the event a law-enforcement agency upon sufficient
investigation concludes there is probable cause that illegal
activity is taking place at the real property, that agency shall
send a warning letter to the owner of the real property with a copy
to the tenant whose real property is the subject of the
investigation. The notice is to be sent by certified mail, return
receipt requested, and it is to inform the owner of the
investigation of the suspected illegal activity.
(e) In the event a search warrant is obtained to search the
real property, the law-enforcement agency shall send a second
notice to the owner of the real property, by certified mail, return
receipt requested. This notice is to inform the owner that the
warrant was served, that the investigation at the real property is
continuing, and that legal proceedings may be commenced. The
second notice must also inform the owner of his or her obligation
to take remedial action. A copy of the letter is to be sent to the
county prosecuting attorney's office and to the tenant of the real
(f) Upon receipt of a copy of the second notice, the
prosecuting attorney's office may proceed to abate or enjoin any
suspected illegal activity. If the prosecuting attorney decides to
proceed in abatement or injunction, he or she shall provide notice
advising that legal proceedings will be instituted against the
owner and that the owner has an obligation to commence eviction
proceedings against the offending tenant.
§37-6A-6. Criteria for establishing a violation.
A violation of the provisions of this article is based upon
the totality of the circumstances present, including, but not
limited to, whether the owner has received sufficient notice
pursuant to the provisions of this article. Notice is deemed
sufficient under the provisions of this article if a certification
of the notice required under subsection (f), section five of this article is filed with the clerk of the county commission of the
county where the real property is located thirty days prior to the
institution of the criminal proceeding.
§37-6A-7. Eviction proceedings as a defense.
No person may be charged with a violation of any provision of
this article if the person has instituted eviction proceedings
within thirty days of receipt of notice as provided for under the
provisions of subsection (f), section five of this article.
§37-6A-8. Multiple unit dwellings.
In the case of a multiple unit dwelling, the only person
necessary to name in an eviction proceeding is the tenant or other
person actually occupying the unit who is suspected of illegal
§37-6A-9. Filing of criminal charges.
Charging an owner of real property with a violation under
this article is in addition to, and not a substitute for, any
criminal charges filed as a result of an investigation by a law-
enforcement agency against occupants or tenants of an owner's real
§37-6A-10. Assistance by law enforcement.
Any law-enforcement agency that acts pursuant to the
provisions of this article shall use reasonable efforts to
disseminate information designed to educate and assist owners of
real property in preventing and addressing violations of any provision of this article.
§37-6A-11. Defense of owners of real property.
It is an absolute defense against any claim for damages
instituted against the owner of real property by a tenant,
occupant, former tenant or former occupant arising out of eviction
proceedings instituted against them to prevent prosecution under
Any person violating the provisions of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined up to
two hundred fifty dollars and any costs of prosecution.
This article is new; therefore, strike-throughs and
underscoring have been omitted.