Senate Bill No. 133

(By Senators Bailey, Love and Oliverio)

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[Introduced January 10, 2002; referred to the Committee

on the Judiciary.]

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A BILL to amend article six, chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section thirty-one, relating to making the destruction of a landlord's property which has been rented for residential purposes a criminal offense; providing that damage greater than three hundred dollars but less than one thousand dollars constitutes a misdemeanor; providing that damage greater than one thousand dollars constitutes a felony; providing that tenants who leave trash when vacating a premises may be guilty of a misdemeanor if it costs more than one hundred dollars to remove it; providing that damage deposits be used to offset ascertainment of value of damage; providing for the determination of prima facie evidence under certain circumstances; providing that tenants or others in privity of contract with landlords or lessors have a duty to report damage not caused by themselves; and providing a criminal penalty for failure to report the damage under certain circumstances.

Be it enacted by the Legislature of West Virginia:
That article six, chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section thirty-one, to read as follows:
ARTICLE 6. LANDLORD AND TENANT.

§37-6-31. Crime to destroy landlord's rented residential premises; misdemeanor offense; felony offense; requirement to use damage deposit as offset; prima facie evidence; duty to report damage.

(a) Misdemeanor offenses. -- In the event of the intentional infliction of damage, or damage otherwise inflicted in reckless disregard for the property interests of others, which equates an amount required for cost of repair or replacement greater than three hundred dollars but less than one thousand, to a residential leasehold, or any part, fixture, structure or appurtenance attached thereto, by a tenant or other person present in the premises with the tenant's permission or authority, the tenant or other person shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than three hundred dollars, or confined in a regional jail facility not more than six months, or both: Provided, That the court may alternatively order restitution in lieu of a fine, in the event the court determines it appropriate to do so under the circumstances.
(b) Felony offense. -- In the event of the intentional infliction of damage, or damage otherwise inflicted in reckless disregard for the property interests of others, which equates an amount required for cost of repair or replacement greater than one thousand dollars, to a residential leasehold, or any part, fixture, structure or appurtenance attached thereto, by a tenant or other person present in the premises with the tenant's permission or authority, the tenant or other person shall be guilty of a felony and, upon conviction thereof, shall be fined not more than ten thousand dollars, or confined in a correctional facility for one to ten years, or both: Provided, That upon a first conviction under this subsection, the court in imposing any confinement may, alternatively, confine an offender in a regional jail facility up to eight months: Provided, however, That the court may alternatively order restitution in lieu of a fine, in the event the court determines it appropriate to do so under the circumstances.
(c) Failure to remove trash. -- Any tenant who, upon vacating the premises of a residential leasehold, leaves trash or other debris on the premises that reasonably causes or requires a landlord, owner or lessor to expend in excess of one hundred dollars to remove, is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed three hundred dollars. The court shall have the option, in lieu of a fine, to order restitution in a like sum for which a landlord, owner or lessor was reasonably caused or required to expend in order to remove the trash or other debris.
(d) Offset of deposit. -- For the purposes of this section, any existing damage deposit shall be used as an offset in determining value.
(e) Prima facie evidence. -- For the purposes of this section, prima facie evidence shall be determined to exist upon the viewing by the court of video or photographic images of a leasehold or a part, fixture, structure or appurtenance of the property, as it existed immediately before a tenant took possession of the property, in contrast to the condition upon which any criminal charge made under this section arose: Provided, That the court shall find to its reasonable satisfaction, the subject damage was not caused by normal wear and tear or simple negligence: Provided, however, That before any finding of prima facie evidence of guilt may be made, it shall be necessary to present, in conjunction with the video or photographic images, credible and trustworthy testimony or other evidence concerning the cost of repair or replacement of the damaged property.
(f) Duty to report. -- In the event of the infliction or existence of damage, other than normal and reasonable wear and tear, to a residential leasehold or any part, fixture, structure or appurtenance to the property, caused by any person other than the tenant in possession or other person in privity of contract with the landlord, owner or lessor, or other cause unrelated to any duty imposed in this article upon landlords, the tenant or other person, upon discovering or receiving trustworthy notice of the damage shall, within ten days of the discovery or notice, provide notice to the landlord, owner or lessor of the existence of the damage. Any person who, without good or otherwise justifiable cause, fails to provide the notice required under this subsection, is guilty of a misdemeanor and, upon conviction thereof, shall be fined up to one thousand dollars.


NOTE: The purpose of this bill is to make a criminal offense for the destruction of a landlord's property which has been rented for residential purposes. The bill provides that damage greater than three hundred dollars but less than one thousand dollars may constitute a misdemeanor while providing that damage greater than one thousand dollars may constitute a felony. Failure to remove trash upon vacating a leasehold is also designated as a criminal offense if the landlord is required to expend more than one hundred dollars to remove it. It further provides as follows: That damage deposits be used to offset ascertainment of value of damage; that a finding of prima facie evidence under certain circumstances may be made; and that tenants or others in privity of contract with landlords or lessors have a duty to report damage not caused by themselves while additionally, providing a criminal penalty for failure to report such damage under certain circumstances. This reporting requirement takes into consideration the tenant or other person's right against self-incrimination to the extent it does not require the tenant or other person to report damage caused by themselves.

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