WVC 37 -
CHAPTER 37. REAL PROPERTY.
WVC 37 - 1 -
ARTICLE 1. LANDS OF INFANTS, INSANE PERSONS, OR CONVICTS, AND
LANDS HELD IN TRUST.
WVC 37 - 1 - 1
§37-1-1. Renewal of lease by or to persons under disability.
Where an infant, insane person, or convict is entitled to or
bound to renew any lease, any person on behalf of such infant,
insane person, or convict, or any person interested, may apply by
petition or motion in a summary way, to the circuit court of the
county in which the land leased or some part thereof may lie, and
by the order of such court, any person appointed by it may, from
time to time, surrender or accept a surrender of such lease, or
take or make a new lease of the same premises for such term, and
with such provisions as the court shall direct. Such reasonable
sums as may be incurred to renew any such lease shall, with
interest thereon, be paid out of the profits of the leasehold
premises and be a charge thereon until such payment.
WVC 37 - 1 - 2
§37-1-2. Sale, lease or mortgage; bill; parties; definition.
If the guardian of any minor, or the committee of any insane
person or convict, think that the interest of the ward or insane
person or convict will be promoted by a lease or by a mortgage or
by a trust deed upon or by a sale of his estates, or of an estate
in which he is interested with others, infants or adults; or if
the trustee of any estate, or any person interested in any estate
in trust, whether he be interested with others or not, think the
interest of those for whom the estate is held will be promoted by
a lease of the same, mortgage or trust deed upon the same, or a
sale thereof; such guardian, committee, trustee, or beneficiary,
whether the estate of the minor or insane person or convict, or
any of the persons interested, be absolute or limited, and
whether there be or be not limited thereon any other estate,
vested or contingent, and whether the guardian, committee or
trustee, or the minor, insane person, convict, or any of the
persons interested, reside in this state or not, may, for the
purpose of obtaining such sale, lease, mortgage or trust deed,
file a bill in equity in the circuit court of the county in which
the estate proposed to be leased, sold or encumbered by mortgage
or trust deed or some part thereof may be, stating plainly all of
the estate, real and personal, belonging to such infant or insane
person or convict, or so held in trust, and all of the facts
calculated to show the propriety of the sale, lease, mortgage, or
trust deed. The bill shall be verified by the oath of the
plaintiff; and the infant or insane person or convict, or the
beneficiaries in such trust, when not plaintiffs, and all others interested, shall be made defendants. The word "lease" as used in
this article shall include any mining or timber lease or any
lease of any profit in land, and the word "sale" shall include
the sale of any undivided interest, or any part of the corpus of
land, or anything in or growing upon land.
WVC 37 - 1 - 3
§37-1-3. Guardian ad litem.
A guardian ad litem shall be appointed for minors under the
age of eighteen, inmates and protected persons subject to the
requirements of section five, article three, chapter forty-four-a
of this code. The guardian ad litem shall answer the petition
under oath, be present at any summary proceeding or hearing and
inform the court whether the sale of property is in the best
interests of the minor, inmate or protected person. Minors over
the age of fourteen may answer in person as well.
WVC 37 - 1 - 4
No deposition shall be read in the suit against any infant
or insane or convict party, except by leave of the court, unless
it be taken in the presence of the guardian ad litem or upon
interrogatories agreed on by him.
WVC 37 - 1 - 5
If it be clearly shown, independently of any admissions in
the answers, that the interest of the infant, insane person,
convict or beneficiaries in the trust, as the case may be, will
be promoted, and the court be of the opinion that the rights of
no person will be violated thereby, it may decree that such
estate or any part thereof be sold, leased, mortgaged or
encumbered by a trust deed, on such conditions and upon such
terms as to the court shall seem to the best interests of such
infant, insane person, convict or beneficiary in a trust, as the
case may be, and in case the sale of such land is decreed, the
purchaser, when the sale is on credit, shall be required to give
ample security, and, if the sale be of real estate, a lien shall
be retained thereon to secure the payment of the purchase money.
WVC 37 - 1 - 6
§37-1-6. Who not to be purchaser.
At such sale the guardian, or guardian ad litem, or
committee, or trustee, shall not be a purchaser, directly or
WVC 37 - 1 - 7
§37-1-7. Investment of proceeds.
The proceeds of sale shall be invested under the direction
of the court, for the use and benefit of the persons entitled to
the estate, and, in case of a trust estate, subject to the uses,
limitations, and conditions contained in the writing creating the
trust. But into whosesoever hands such proceeds may be placed,
the court shall take ample security and from time to time require
additional security, if necessary, and make any other proper
orders for the faithful application of the fund, and for the
management and preservation of any property, or securities in
which the same may be invested, and for the protection of the
rights of all persons interested therein, whether such rights be
vested or contingent.
WVC 37 - 1 - 8
§37-1-8. Joinder of spouse, or sale free of dower.
When a decree or order is made under this article, or under
article nine, chapter twenty-seven of this code, for the sale or
other conveyance of the real estate of an insane or infant or
convict spouse, the other spouse may, if he or she think fit,
join in the conveyance and thereby release dower and shall in
such case, if he or she so demand, receive out of the proceeds of
sale the value of his or her inchoate dower, computed according
to the provisions of article two, chapter forty-three of this
code, or such land may be sold free and clear of inchoate dower
under the provisions of section five, article one, chapter forty-
three of this code.
WVC 37 - 1 - 9
§37-1-9. Release of dower under order of court; conveyance
without joinder of spouse.
If the spouse of an infant or insane or convict husband or
wife wish to sell real estate and to have the right of dower of
such incompetent therein released to the purchaser, he or she may
petition for that purpose the circuit court of the county in
which such estate or some part thereof is, and if it appear to
the court to be proper, an order may be made for the execution of
such a release of dower, by a commissioner to be appointed by the
court for the purpose, which release shall be effectual to pass
such right of dower. And in making such order the court shall
secure to such infant or insane or convict spouse, a sum in
gross, computed according to the provisions of article two,
chapter forty-three of this code as compensation for such right
WVC 37 - 1 - 10
§37-1-10. Proceeds of sale to descend as lands.
What may be received under this article for the real estate
of an infant or insane person, sold or divided, or so much
thereof as may remain at his death intestate, shall, if he
continue till his death incapable of making a will, pass to those
who would have been entitled to the land if it had not been so
sold or divided.
WVC 37 - 1 - 11
§37-1-11. Summary proceedings for sale, lease or mortgage;
In addition to the proceedings authorized by section two of
this article, the guardian of any minor, or the committee of any
insane person or convict, if he deem that the interests of his
ward or insane person or convict will be promoted by a sale,
lease or mortgage of, or trust deed upon, his estate, or of any
estate in which he with others, infants or adults, is interested,
whether the estate of the minor, or insane person or convict, or
of any of the other persons interested, be absolute or limited,
and whether there be or be not limited thereon any other estate,
vested or contingent, may apply by petition, in a summary way, to
the circuit court, or to the judge thereof in vacation, or to any
court of concurrent jurisdiction with the circuit court, or to
the judge thereof in vacation, or to any juvenile court, or to
the judge thereof in vacation, of the county in which the estate
proposed to be sold, leased, or encumbered, or some part thereof
may be, describing all the estate, real and personal, belonging
to the minor, or insane person or convict and setting forth
plainly all the facts calculated to show the propriety of the
sale, lease, mortgage, or deed of trust. The petition shall be
verified by the oath of the plaintiff, and all persons interested
shall be made defendants, and ten days' notice shall be given to
such defendants before such petition can be heard: Provided,
That any notice or service required by this section to be made
upon any infant under fourteen years of age shall be made by
delivering a copy of such notice and petition to his guardian resident in this state; or, if there be no such guardian, then
either to his father or mother if they be found. If there is no
such guardian and if the father or mother cannot be found,
service of such notice and petition shall be made upon a guardian
ad litem appointed in the manner provided by law.
WVC 37 - 1 - 11 A
§37-1-11a. Jurisdiction of court in proceedings under article;
process; investment not required if funds
In any suit or proceeding under this article the court shall
have jurisdiction to hear, decide and dispose of any matter which
involves the property or welfare of any person under legal
disability who may be a party to a suit or proceeding, which
matter, but for this section, would otherwise be the subject of a
separate suit, or suits, under section thirteen, article ten,
chapter forty-four of this code. Rules of equity governing service
of process generally shall apply to all proceedings under this
article, and section seven of this article shall not require the
investment of funds of any person under disability in those cases
where such funds, as a result of the court's action, may not be
available for such purpose.
WVC 37 - 1 - 12
§37-1-12. Guardian ad litem in summary proceeding.
For every such minor or insane person or convict the court
shall appoint a guardian ad litem who must be present at the
hearing of the summary proceeding mentioned in the preceding
WVC 37 - 1 - 13
§37-1-13. Order; sale.
If it be clearly shown by the petition, exhibits, and
evidence adduced, that the interest of the minor or insane person
or convict will be promoted by the sale, lease or encumbrance by
mortgage or trust deed, and the court be of opinion that the
rights of no person will be affected thereby, it may order such
estate, or any part thereof, to be sold, lease, or encumbered by
mortgage or trust deed; and in such manner and on such terms and
in such parcels as may be deemed most beneficial to the minor or
insane person or convict; and, in case the same be decreed to be
sold, shall take from the purchaser bond, with ample security,
when the sale is on credit. And, in case of sale or lease, the
same may be decreed to be made either at public or private sale
or lease. At such sale or lease neither the guardian, committee,
nor guardian ad litem shall be a purchaser directly or
indirectly. But no estate of any minor or insane person or
convict shall be sold contrary to the provisions of any will or
conveyance by which such estate was devised or granted to such
person, if such provision would be valid if contained in a
conveyance or devise to a person sui juris.
WVC 37 - 1 - 14
§37-1-14. Bond for proceeds.
In case such sale or lease be made, the guardian or
committee shall enter into bond, with approved security,
conditioned for the faithful application of the proceeds of sale
or lease. And in case of a mortgage or trust deed such guardian
or committee shall enter into bond, with approved security,
conditioned for the faithful application of any moneys which may
come into his hands from the encumbrancing. In either case such
bonds shall be taken in open court, or before the judge in
vacation, or before the clerk, and shall be payable to the state,
in such penalty as shall be prescribed by the court; and the
court may thereafter order a new bond, with other security, to be
given if deemed necessary. If the court shall find that the bond
already given by the guardian or committee is sufficient, no
additional bond need be required.
WVC 37 - 1 - 15
§37-1-15. Application of proceeds; costs.
The provisions of section seven of this article shall govern
as to the application of the proceeds of sale. The cost of the
proceedings may be paid out of such proceeds, but no attorney's
fee shall be taxed therein, except where, in the discretion of
the court, it be reasonable and just.
WVC 37 - 1 - 16
§37-1-16. Confirmation; conveyance.
Whenever a sale, lease, mortgage or trust deed is ordered as
herein provided, the court shall order the proceedings under such
sale, lease, mortgage or trust deed, to be reported for
confirmation; and, in case of sale, may direct a conveyance with
covenant of special warranty to be made by the guardian, the
committee or a commissioner. And every such conveyance shall be
as effectual in law as if the same were made by the minor when of
lawful age, or by the insane if compos mentis, or by the convict
if competent; and, in case of a lease, the court shall direct the
same to be made by the guardian or committee applying for the
same, and to be reported to the court for confirmation. And, in
case of a mortgage or trust deed, the guardian or committee, as
the case may be, shall report to the court in full particulars
concerning the making of such mortgage or trust deed and the
moneys received under the same.
WVC 37 - 1 - 17
§37-1-17. Validation of certain sales.
No sale of the real estate of an infant, convict, or insane
person, heretofore made and confirmed, under and by the judgment,
order or decree of a court of competent jurisdiction, nor any
conveyance of such real estate made or to be made under any such
judgment, order, or decree, and no lease, mortgage, or trust deed
upon the real estate of any such person, heretofore made under
any such judgment, order or decree, shall in any manner be
affected or invalidated by reason of the bill or petition in the
case not having been verified, or by reason of the persons who
would be the heirs or distributees of such infant, convict or
insane person, if he were dead, not having been made parties to
the suit or proceedings, or by reason of any other error or
defect in the proceeding or deed, not affecting the very right of
the case, or by reason of any action of the court in dealing
with, in such suit or proceedings, matters which would otherwise
have been the subject matter of a separate suit under section
thirteen, article ten, chapter forty-four of this code. All such
sales and conveyances are hereby legalized and made valid; and
all such leases, mortgages and deeds of trust, heretofore made,
or to be made under any such judgment, order or decree in those
cases where the welfare and property of the person under legal
disability has been sufficiently protected are hereby legalized
and made valid. Sales, leases, mortgages, or deeds of trust
heretofore made pursuant to judgments, orders or decrees in suits
or proceedings under this article shall not hereafter be
invalidated for the reason that the court, in disposing of the case, failed to require such persons, property and estate to be
burdened with the expense of a separate suit or proceedings under
section thirteen, of article ten, of chapter forty-four of this
code, where it appears from the record that the court did
adequately protect the welfare and property of the person under
WVC 37 - 2 -
ARTICLE 2. ESCHEATS.
WVC 37 - 2 - 1
Acts, 1992 Reg. Sess., Ch. 75.
WVC 37 - 2 - 2
§37-2-2. Escheat of equitable interests.
An estate vested in a person merely by way of mortgage or
trust shall not escheat by reason of the mortgagee or trustee
dying without heirs but any equitable title to or interest in
lands shall escheat or be forfeited in the same manner as it
would if the person having the equitable had the legal title.
WVC 37 - 2 - 3
§37-2-3. Tenants of escheated land.
If any person holds any escheated land or personal property
for a term of years, or for life, or has a right to any rent or
other profit or has any other interest whatever in such land, he
shall hold and enjoy his lease, rent, profit or other interest,
and any sale of such land as escheated land, under the provisions
of article three of this chapter, shall be made subject to such
lease, rent, profit, or other interest.
WVC 37 - 2 - 4
The assessor of each county shall by virtue of his office be
the escheator of such county.
WVC 37 - 2 - 5
§37-2-5. List of land by escheator.
Each escheator shall annually, in September, prepare a list
of all lands within his county, of which any person shall have
died owning an estate of inheritance, intestate and without any
known heir, or to which no person is known by him to be entitled,
and transmit such list to the commissioner of school lands of his
county, according to the provisions of section seven, article
three of this chapter. If the state tax commissioner shall be of
the opinion that other lands, not included by the escheator in
such list, should be so included, and shall so advise the
escheator, in writing, the escheator shall place such lands upon
Repealed. Acts, 1961 Reg.
Sess., Ch. 133.
WVC 37 - 2 A-
ARTICLE 2A. PUBLIC LAND CORPORATION OF WEST VIRGINIA.
WVC 37 - 2 A- 1
§§37-2A-1 to 37-2A-9.
Acts, 1961 Reg. Sess., Ch. 133.
WVC 37 - 2 B-
ARTICLE 2B. REDEMPTION OF, AND CLARIFICATION OF TITLE TO, REAL
PROPERTY FORMERLY HELD FOR RELIGIOUS, CHARITABLE
AND EDUCATIONAL PURPOSES AND IMPROPERLY EXEMPTED
WVC 37 - 2 B- 1
§37-2B-1. Compromise of state's claims.
The auditor, in his capacity as commissioner of forfeited
and delinquent lands, is hereby authorized to compromise all
claims of the state against all real property, including
undivided interests therein, which, heretofore, may have been
exempted from taxation and carried upon the land books of any
county as tax-exempt property, or which may have been exempted
from taxation as religious, charitable or educational property
regardless of the form of assessment or entry insofar as the
state may now have any claim thereto and the property, or any
part thereof, or interest therein has not been transferred to
others by operation of section 3, article XIII of the
constitution of West Virginia, upon payment to him of the sum of
one dollar for each year that any parcel, lot, tract or interest,
heretofore exempted as aforesaid, may have been exempted or
carried as exempt property upon the land books of any county
prior to the year one thousand nine hundred forty-five. The
auditor, as such commissioner, is hereby authorized to establish
and provide administrative procedure for handling of such cases;
and to design, procure and keep and maintain such records
concerning his transactions under this article as sound business
practice may demand, and charge the cost thereof to
appropriations for the operation of his office and the proceeds
of redemption hereunder.
WVC 37 - 2 B- 2
§37-2B-2. Auditor's receipt for redemption; receipt as release
and discharge from taxes; recordation.
The auditor shall issue his receipt for redemptions made
under the preceding section. Such receipt shall operate as a
full and complete discharge and release of the property described
therein from any and all claims on account of direct property
taxes imposed or imposable by the state of West Virginia, or any
of its subdivisions, or agencies of every kind and character for
each and every year covered by such receipt, and shall release
and return to the owner of the property described such title as
may have been in the state at the time such receipt is issued
free and acquit of all claims of the state, or any of its
subdivisions for the year or years covered by such receipt. Such
receipts shall be recordable in the deed books of the proper
counties, and once recorded shall constitute notice to all
persons of the facts recited therein.
WVC 37 - 2 B- 3
§37-2B-3. Entry and back-taxing of property after redemption.
In every case where the auditor provides for redemption
under this article he shall, where such redemption is made prior
to the first day of January, one thousand nine hundred forty-
seven, direct the assessor to enter and back-tax such property,
as other property should be entered and back-taxed for the
assessment year one thousand nine hundred forty-five and each and
every year thereafter in which the same has not properly appeared
upon the land books of such county. In those cases where
redemption is made after the first day of January, one thousand
nine hundred forty-seven, he shall extend and collect taxes at
proper valuations and rates for all assessment years after the
year one thousand nine hundred forty-five. No compromise shall
be made under the authority of this article for direct property
taxes for the year one thousand nine hundred forty-five or
thereafter: Provided, however,
That nothing herein contained
shall prevent the auditor from redetermining value and taxes for
the year one thousand nine hundred forty-five and thereafter in
the manner otherwise provided for by law in case of redemption of
property which may have been sold to the state for nonpayment of
taxes, or be delinquent, or forfeit for nonentry.
WVC 37 - 2 B- 4
§37-2B-4. Entry of property acquired after year 1942.
In every case where real property was acquired for and
transferred to or placed in religious, educational or charitable
usages after the assessment year one thousand nine hundred forty-
two and was improperly exempted (under the holding of Central
Realty Company versus Martin, assessor), the assessor shall
reenter such property and value and extend taxes thereupon for
the assessment year one thousand nine hundred forty-five, without
regard to the former exemption in those cases where redemption
has been made from the auditor. Taxes extended upon such
assessment shall be valid and enforceable as all other taxes
without regard to the former exemptions. Entry and payment of
taxes hereunder shall operate to relive such property against the
assertion of any forfeiture which has not become effective prior
to the effective date of this article, and shall stand and at all
times be construed as a valid entry of such property for taxation
for the year or years involved, and payment of taxes under such
assessment shall discharge and relieve such property from all
claims of the state and its subdivisions for all property taxes
of any such year or years.
WVC 37 - 2 B- 5
§37-2B-5. Reports to auditor by assessor; when assessor to
The auditor is empowered to direct the assessor of each
county to examine the lists of tax-exempt properties appearing on
the land books of his county for the assessment years one
thousand nine hundred twenty-eight through one thousand nine
hundred forty-five, both inclusive, and report to the auditor a
list of all real estate so exempted from taxation in any of said
years which was not actually used for religious, charitable or
educational purposes and which (under the opinion in Central
Realty Company versus Martin, assessor) he believes should have
been assessed with taxes in any of said years. No assessor shall
reenter any real property, now or formerly held for religious,
charitable or educational usages and upon which taxes for years
prior to the year one thousand nine hundred forty-five should
have been paid except upon written directions from the auditor or
by order of the judge of a court of record which has jurisdiction
to deal with such property or rights therein. Such list shall
show the name of the person assessed, a description of the
property, and the year or years for which the same was entered on
the land books as tax exempt, and the assessor shall classify and
value the same. Where any list of real property is forwarded to
the auditor under this section he shall have power and authority
to compromise the claim of the state or its subdivisions or
agencies for taxes, to accept redemptions from forfeitures, and
to do all acts and things which may be necessary to protect the
interest of the state and assist the property owner in clearing his title.
WVC 37 - 2 B- 6
§37-2B-6. Protection of purchasers of exempted property who have
held for five years or more; right of redemption.
In all cases where property formerly held for religious,
charitable or educational usages has heretofore been sold or
transferred in good faith to persons for value as successors in
title of the person who held for such usage, and has been
subsequently assessed to them and taxes have been paid thereon
for such number of years that such persons are or would otherwise
be entitled to claim the benefit of a transfer under section 3,
article XIII of the constitution, the same, by operation hereof,
shall be transferred to and vested in such person, and the state
hereby waives its claim to assert penalties or forfeiture on
account of any taxes which would otherwise have accrued or become
due prior to the creation of color of title in such successor.
In all cases where property formerly held for the uses
aforesaid has heretofore been sold or transferred to another in
good faith and has subsequently been assessed to him, and the
taxes paid, for a period of time less than the period of time
necessary to establish the right to claim the benefit of a
transfer under said constitutional provision or this section, the
owners shall have the right to apply for and have redemption so
far as title thereto may be in the state.
WVC 37 - 2 B- 7
§37-2B-7. Protection of constitutional transferees; priority of
The provisions of this article shall not extend to or affect
any real property or undivided interest therein which has been
transferred to or vested in adverse claimants by operation of
constitution, article XIII, section 3, in those cases where the
color of title of such claimants originated in good faith and has
been regularly maintained and protected against subsequent
forfeiture and loss by entry and payment of taxes according to
law: Provided, however,
That in any case where there has been a
constitutional transfer and the adverse claim has subsequently
been acquired by the state for nonpayment or nonentry, the
successor in title to the former religious, charitable or
educational usage shall have a prior right of redemption.
WVC 37 - 2 B- 8
§37-2B-8. Purpose of article; power and jurisdiction of courts;
state as party to suits.
This article is to provide for clarification of land titles
and for establishment of a sound system of property law and of
taxation, and the courts of this state which have equitable
jurisdiction are hereby vested with authority, power and
jurisdiction to entertain, hear and decide suits on behalf of any
person whose property or title may be affected by a former
exemption from taxation for religious, charitable or educational
purposes; and to make and render such decisions, orders and
decrees as will give equitable justice to the persons involved.
Whenever it appears that the state or any of its subdivisions has
any interest in any of such proceedings any person or the court
shall have the right to make the state, its subdivisions, or
proper officials a party or parties plaintiff thereto and shall
cause the attorney general of the state of West Virginia to be
notified thereof. Such courts shall have the right to try title
and render decisions as may be necessary and proper, based upon
the tax status of different claims without regard to proof of
chain of title for a period longer than is necessary to establish
a tax claim better than that of any other party. No decision,
order or opinion rendered by any court under this article shall
establish precedent or be regarded as stare decisis as to any
§37-2B-9. Auditor's power to provide for redemption of such
property as not covered by other statutes.
The auditor shall have full power and authority to provide for
redemption of property covered by this article, and to compromise
the state's claim for unpaid taxes upon any such property which has
heretofore been purchased at sales for nonpayment of taxes, or
acquired by forfeiture for nonentry, to make redemptions, and to
provide for reassessment and back-taxing of property redeemed on
account of any taxes heretofore levied or hereafter to accrue; such
redemptions and compromises to be made upon like payment and
condition as provided in section one of this article for any year
prior to the year one thousand nine hundred thirty-six.
WVC 37 - 3 -
ARTICLE 3. SALE OF LAND FOR BENEFIT OF SCHOOL FUND.
WVC 37 - 3 - 1
§§37-3-1 to 37-3-39.
Acts, 1941 Reg. Sess., Ch. 117.
WVC 37 - 4 -
ARTICLE 4. PARTITION.
WVC 37 - 4 - 1
§37-4-1. Who entitled to partition; jurisdiction; state as party
Tenants in common, joint tenants and coparceners of real
property, including minerals, lessees of mineral rights other than
lessees of oil and gas minerals and stockholders of a closely held
corporation when there are no more than five stockholders and the
only substantial asset of the corporation is real estate, shall be
compelled to make partition, and the circuit court of the county
wherein the land or estate, or any part thereof, may be, has
jurisdiction, in cases of partition, and in the exercise of that
jurisdiction, may take cognizance of all questions of law affecting
the legal title, that may arise in any proceedings.
The state hereafter shall, whenever it is an owner of an
undivided interest in any land or real estate, together with other
persons, become a party plaintiff in any proceedings by any person
entitled to demand partition under the first sentence of this
section. Before instituting suit for partition the person entitled
to demand it shall notify the proper official who has supervision
of the state land and thereafter they shall proceed as they
determine best. In all cases resulting in partition or sale the
costs of suit shall come from the proceeds of sale. No state
official in charge of state lands may refuse to perform his duty in
any case where any person is entitled to demand a partition, or
sale under this article.
WVC 37 - 4 - 2
§37-4-2. Allotting shares together.
Any two or more of the parties, if they so elect, may have
their shares laid off together, when partition can be
conveniently made in that way.
WVC 37 - 4 - 3
§37-4-3. Allotment or sale; procedure for allotment.
When partition cannot be conveniently made, the entire
subject may be allotted to any party or parties who will accept
it, and pay therefor to the other party or parties such sum of
money as his or their interest therein may entitle him or them
to; or in any case in which partition cannot be conveniently
made, if the interests of one or more of those who are entitled
to the subject, or its proceeds, will be promoted by a sale of
the entire subject, or allotment of part and sale of the residue,
and the interest of the other person or persons so entitled will
not be prejudiced thereby, the court, notwithstanding the fact
that any of those entitled may be an infant, insane person, or
convict, may order such sale, or such sale and allotment, and
make distribution of the proceeds of sale, according to the
respective rights of those entitled, taking care, when there are
creditors of any deceased person who was a tenant in common,
joint tenant, or coparcener, to have the proceeds of such
deceased person's part applied according to the rights of such
creditors. Where it clearly appears to the court that partition
cannot be conveniently made, the court may order sale without
appointing commissioners. The court making an order for sale
shall, when the dividend of a party exceeds the value of three
hundred dollars, if such party be an infant, insane person, or
convict, require security for the faithful application of the
proceeds of his interest, in like manner as if the sale were made
under article one of this chapter.
In the event that allotment shall be made as aforesaid and the person or persons entitled to the proceeds, for any reason,
cannot agree upon the value of the subject, the court, or the
judge thereof in vacation, shall appoint three disinterested and
qualified persons to fix the value of the whole subject who,
after being duly sworn to make an appraisal of the fair market
value of the subject, shall within thirty days from the taking of
such oath, appraise the subject and make and file a written
report of their findings in the office of the clerk of the court
in which the suit is pending. If such appraisers report their
disagreement, or fail to file such report within thirty days,
other appraisers may in like manner be appointed, and so again,
from time to time, as often as may be necessary. The report of
the appraisers when filed, shall be conclusive and binding upon
all persons having any interest in the subject, unless an
objection is filed thereto in said clerk's office within thirty
days after the date of such report by the appraiser. If
objection is made to such report, the court, or the judge thereof
in vacation, shall take evidence upon the value of the subject in
the same manner as in other chancery matters, shall find the fair
market value of the subject and shall decree payment therefor
according to the respective rights of those entitled thereto as
their interest may appear, taking care to protect the rights of
creditors as aforesaid in this section.
If any party to the suit refuses or is unable because of any
disability, including but not limited to infancy, insanity and
conviction of crime, to make, execute and deliver a deed or other
instrument transferring title to the subject to the person or persons to whom the subject has been allotted, the court, or the
judge thereof in vacation, shall appoint a special commissioner
for the purposes of accepting the purchase money from the person
or persons to whom the subject has been allotted, making,
executing and delivering thereto a deed or other instrument
therefor and distributing such purchase money according to the
respective rights of those persons entitled thereto. The special
commissioner so appointed shall give bond and be governed in all
respects as provided in section one, article twelve, chapter
fifty-five of this code.
WVC 37 - 4 - 4
§37-4-4. Determination of liens.
When there are liens by judgment or otherwise, on the
interest of any party to a partition suit, the court may, on the
petition of any person holding a lien, ascertain the liens and
apply the dividend of such party in the proceeds of sale to the
discharge of such liens so far as may be necessary for that
WVC 37 - 4 - 5
§37-4-5. Sale of land free of dower.
The provisions of section five, article one, chapter forty-
three of this code shall be applicable to any sale made under the
provisions of this article.
WVC 37 - 4 - 6
§37-4-6. Unknown owners.
If the name or share of any person interested in the subject
of the partition be unknown, so much as is known in relation
thereto shall be stated in the bill.
WVC 37 - 4 - 7
Any person who, before the partition or sale, was lessee of
any of the lands divided or sold, shall hold the same of him to
whom such land is allotted or sold, on the same terms on which,
by his lease, he held it before the partition.
WVC 37 - 4 - 8
§37-4-8. Record; effect.
The provisions of section seven, article four, chapter
fifty- one of this code shall be applicable to any partition made
under this article.
WVC 37 - 5 -
ARTICLE 5. ADJOINING OWNERS.
WVC 37 - 5 - 1
§37-5-1. Excavations near boundaries.
No owner or tenant of any land containing coal shall open or
sink, or dig, excavate or work in, any coal mine or shaft on such
land, within five feet of the line dividing such land from that
of another person or persons, without the consent in writing of
every person interested in, or having title to, such adjoining
lands in possession, reversion, or remainder, or of the guardian
of any such persons as may be an infant, or the committee of any
such person as may be insane or convict. If any person shall
violate this section, he shall forfeit five hundred dollars to
any person injured thereby who may sue for the same.
WVC 37 - 5 - 2
§37-5-2. Survey of mine.
The owner, tenant, or occupant of any land on which a coal
mine is opened and worked, or his agent, shall permit any person
interested in, or having title to, any land coterminous with that
in which such coal mine is, to have ingress and egress with
surveyors and assistants to explore and survey such mine at his
own expense, and not oftener than once a month, for the purpose
of ascertaining whether or not the preceding section has been
violated. Every owner, tenant, occupant, or agent, who shall
refuse such permission, exploration or survey, shall forfeit
twenty dollars for each refusal to the person so refused.
WVC 37 - 5 - 3
§37-5-3. Prosecution under preceding sections.
A justice of the county in which such mine is, before whom
complaint of such refusal is made, may issue a summons to such
owner, tenant, occupant or agent to answer such complaint. On
the return of the summons executed, and proof that the
complainant has right of entry, and that he has been refused
without sufficient cause, the justice shall designate an early
and convenient time of such entry to be made, and issue his
warrant commanding the sheriff of the county to attend and
prevent obstructions and impediments to such entry, exploration
and survey. The cost of such summons, and a fee of three dollars
to the sheriff executing the warrant, shall be paid by the person
whose refusal caused the complaint. But if the justice dismiss
the complaint, the costs shall be paid by the party making it.
WVC 37 - 6 -
ARTICLE 6. LANDLORD AND TENANT.
WVC 37 - 6 - 1
§37-6-1. Rights of parties on transfer of land or reversion.
An heir, devisee, grantee or assignee of any land let to
lease, or of the reversion thereof, and his heirs, personal
representative or assigns, shall enjoy against the lessee, his
personal representative, devisees or assigns, the like advantage
by action or entry upon any condition or forfeiture, or by action
upon any covenant or promise in the lease, which the grantor,
assignor, or lessor might have enjoyed.
WVC 37 - 6 - 2
§37-6-2. Rights of lessee against transferee of reversion.
A lessee, his personal representatives, devisees or assigns,
may have against an heir, devisee, grantee or alienee of the
reversion, or of any part thereof, or of any estate therein, his
heirs, devisees, or assigns, the like benefit of any condition,
covenant, or promise in the lease, as he could have had against
the lessors themselves; except the benefit of any warranty, in
deed or law.
WVC 37 - 6 - 3
§37-6-3. Effect of transfer of rent, reversion or remainder.
When rents are inherited, conveyed or devised, all rights of
distress and reentry, or either of them, shall pass to the heir,
grantee or devisee without express words. An inheritance, grant,
or devise of a rent, or of a reversion or remainder, shall be
good and effectual without attornment of the tenant; but no
tenant, who, before the death of the ancestor or testator, or
before notice of the grant, shall have paid the rent to the
ancestor, testator, or grantor, shall suffer any damage thereby.
WVC 37 - 6 - 4
§37-6-4. Attornment to stranger void.
The attornment of a tenant to any stranger shall be void,
unless it be with the consent of the landlord of such tenant, or
pursuant to, or in consequence of, the judgment, order, or decree
of a court.
WVC 37 - 6 - 5
§37-6-5. Notice to terminate tenancy.
A tenancy from year to year may be terminated by either
party giving notice in writing to the other, at least three
months prior to the end of any year, of his intention to
terminate the same. A periodic tenancy, in which the period is
less than one year, may be terminated by like notice, or by
notice for one full period before the end of any period. When
such notice is to the tenant, it may be served upon him, or upon
anyone holding under him the leased premises, or any part
thereof. When it is by the tenant, it may be served upon anyone
who at the time owns the premises in whole or in part, or the
agent of such owner, or according to the common law. This
section shall not apply where, by special agreement, some other
period of notice is fixed, or no notice is to be given; nor shall
notice be necessary from or to a tenant whose term is to end at a
WVC 37 - 6 - 6
§37-6-6. Desertion of leased property; entry; recovery of rent,
disposition of abandoned personal property; notice.
(a) If any tenant from whom rent is in arrears and unpaid
abandons the leased property, the landlord or his or her agent
shall post a notice in writing in a conspicuous part of the
property, requiring the tenant to pay the rent within one month.
If the rent is not paid within that time, the landlord shall be
entitled to possession of the property, and may enter thereon, and
the right of the tenant to the leased property shall end. The
landlord may recover the rent owed up to the time when he or she
became entitled to possession.
(b) If any tenant of a housing development operated by a
housing authority abandons the leased property when rent is not a
condition of the lease agreement, the housing authority shall post
a notice in writing in a conspicuous part of the property,
requiring the tenant to respond in writing within one month stating
that he or she has not abandoned the leased property. If the
tenant does not respond in writing within one month, stating that
he or she has not abandoned the leased property, the housing
authority shall be entitled to possession of the property, and may
enter thereon, and the right of the tenant to the leased property
(c) Upon regaining possession of the property, the landlord or his or her agent or housing authority may take, dispose of or
otherwise remove the tenant's personal property without incurring
any liability to the tenant or any other person. To dispose of the
tenant's property under this section, the landlord or housing
authority shall give a written notice to the tenant that shall be:
(1) Posted in a conspicuous place on the property; and
(2) Sent by first-class mail with a certificate of mailing,
which provides a receipt of the date of mailing, in an envelope
endorsed "Please Forward", addressed and mailed to the tenant at:
(A) The leased property;
(B) Any post office box held by the tenant and known to the
landlord or housing authority; and
(C) The most recent forwarding address if provided by the
tenant or known to the landlord or housing authority.
(d) The written notice required under subsection (c) of this
section shall state that:
(1) The leased property is considered abandoned;
(2) Any personal property left by the tenant must be removed
from the property or from the place of safekeeping, if the landlord
or housing authority has stored the property, by a date specified
in the written notice that is:
(A) Not less than thirty days after the date the written
notice was mailed; or
(B) Not less than sixty days after the date the written notice
was mailed if the tenant has notified the landlord or housing
authority that he or she is on active duty in the armed forces of
the United States.
(3) If the personal property is not removed within the time
provided for in this section, then the tenant forfeits his or her
ownership rights to the personal property, and the personal
property becomes the property of the landlord or housing authority.
(e) Notwithstanding the provisions of subsection (c) of this
section, if the abandoned personal property is worth more than
three hundred dollars and was not removed from the property or from
the place of safekeeping within the time period stated in the
notice required in subsection (d) of this section, the landlord
shall store the personal property for up to thirty additional days
if the tenant or any person holding a security interest in the
abandoned personal property informs the landlord of their intent to
remove the property: Provided, That the tenant or person holding
a security interest in the abandoned personal property pays the
landlord the reasonable costs of storage and removal.
WVC 37 - 6 - 7
§37-6-7. Reletting by landlord.
The landlord, or other person entitled to the rent may,
however, at his election, incorporate, in the notice provided for
in the preceding section, the further notice that he will, after
he shall have taken possession of the demised premises, lease the
premises to some other person, in which case the tenant will
still remain liable upon his lease, for the unexpired portion of
his term, for the difference between the amount of rent received
by the landlord from the new tenant, and the amount payable under
the lease of the original tenant, and upon any other covenants or
agreements contained in the original lease.
WVC 37 - 6 - 8
§37-6-8. Tenant's right to recover possession.
If the landlord shall have elected to continue to hold the
tenant liable upon his lease, as provided in the preceding
section, the tenant shall be entitled, upon the payment of all
arrears of rent, and the satisfaction of any liabilities which
shall have accrued upon the covenants or agreements contained in
his lease, and any other liabilities with which he is chargeable
by virtue of his lease, to the possession of the premises, except
to the extent that some other person is already in possession of
the premises, or is entitled to such possession, by virtue of a
lease made by the landlord to such other person pursuant to the
notice given under the preceding section, before the tenant shall
have notified the landlord in writing of his intention to resume
possession of the premises, and shall have satisfied, or tendered
an amount sufficient to satisfy, his liabilities under his lease
as aforesaid. No tenant whose lease has been lawfully forfeited,
under the second preceding section, shall be entitled to any
right, either at law or in equity, to be relieved of such
forfeiture, or to reenter the premises, except as provided in
WVC 37 - 6 - 9
§37-6-9. Recovery of rent by distress or action; evidence;
Rent of every kind may be recovered by distress or action. A
landlord may also, by action, recover a reasonable satisfaction
for the use and occupation of lands, and, on the trial of such
action, if any parol demise, or any agreement wherein a certain
rent was reserved, shall appear in evidence, the plaintiff shall
not for that reason be nonsuited, but may use the same as
evidence of the amount of his debt or damages. In any action for
rent, or for such use and occupation, interest shall be allowed
as on other contracts.
WVC 37 - 6 - 10
§37-6-10. Who may recover rent.
He to whom rent or compensation is due, whether he have the
reversion or not, his personal representative or assignee, may
recover it as provided in the preceding section, or may, in a
proper case, resort to an attachment, whatever be the estate of
the person owing it, or though his estate or interest in the land
be ended. And when the owner of real estate in fee, or holder of
a term, yielding him rent, dies, the rent thereafter due shall be
recoverable by such owner's heir or devisee, or such term-
holder's personal representative or devisee. And if the owner or
holder alien or assign his estate or term, or the rent thereafter
to fall due thereon, his alienee or assignee may recover such
WVC 37 - 6 - 11
§37-6-11. Persons liable for rent.
Rent may be recovered from the lessee, or other person owing
it, or the heir, personal representative, devisee or assignee,
who has succeeded to the lessee's estate in the premises. But no
assignee shall be liable for rent which became due before his
interest began. Nothing herein shall change or impair the
liability of heirs, personal representatives, or devisees, for
rent, to the extent and in the manner in which they are liable
for other debts of the ancestor or testator; nor shall the mere
merger of the reversion to which a rent is incident affect the
liability for such rent.
WVC 37 - 6 - 12
§37-6-12. Distress for rent; time and place; warrant.
Rent may be distrained for within one year after the time it
becomes due, and not afterwards, whether the lease be ended or
not. The distress shall be made by any sheriff or constable of
the county wherein the premises yielding the rent or some part
thereof may be or the goods liable to distress may be found,
under a warrant from a justice founded upon the affidavit of the
person claiming the rent, or his agent, that the amount of money
or other thing to be distrained for (to be specified in the
affidavit), as he verily believes, is justly due to the claimant
for rent reserved upon contract from the person of whom it is
WVC 37 - 6 - 13
§37-6-13. Property subject to distress.
The distress may be levied on any goods of the lessee, or his
assignee or undertenant, found on the premises, or which may have
been removed therefrom not more than thirty days. If the goods of
such lessee, assignee or undertenant, when carried on the premises,
are subject to a lien which is valid against his creditors, his
interest only in such goods shall be liable to such distress. If
any lien be created thereon while they are upon the leased
premises, they shall be liable to distress, but for not more than
one year's rent, whether it shall have accrued before or after the
creation of the lien: Provided,
That if the goods are subject to
a perfected purchase money security interest, as defined in section
one hundred seven, article nine, chapter forty-six of this code,
and that such purchase money security interest is in effect under
the terms set forth in section four hundred three, article nine of
chapter forty-six of this code, then the goods are liable to
distress only to the extent of the unencumbered interest of the
lessee, assignee or undertenant. No goods shall be liable to
distress other than such as are declared to be so liable in this section.
WVC 37 - 6 - 14
§37-6-14. Forcible entry by officer.
The officer having such distress warrant or an order of
attachment, based upon rent, if there be need for it, may, in the
daytime, break open and enter into any house or close in which
there may be goods liable to the distress or order, and may,
either in the day or nighttime, break open and enter into any
house or close wherein there may be any goods so liable, which
have been fraudulently or clandestinely removed from the demised
WVC 37 - 6 - 15
§37-6-15. Unlawful act after making distress; damages.
WVC 37 - 6 - 16
Where distress shall be made for rent justly due, and any
irregularity or unlawful act shall afterwards be done by the
party distraining, or his agent, the distress itself shall not be
deemed to be unlawful, nor the party making it be therefore
deemed a trespasser ab initio; but the aggrieved by such
irregularity or unlawful act may, by action, recover full
satisfaction for the special damage he shall have sustained
§37-6-16. Distress or attachment when rent not payable in money.
Where goods are distrained or attached for rent reserved in
a share of the crops, or in anything other than money, the
claimant of the rent, having given the tenant ten days' notice,
or if he be out of the county, having set up the notice in some
conspicuous place on the premises, may apply to the court or
justice to which the distress or attachment is returnable, to fix
the value of such rent. Upon such application the court or
justice having ascertained the value, either by its own judgment,
or, if either party require it, by the verdict of a jury
impaneled without the formality of pleading, shall order the
goods distrained or attached, to be sold to pay the amount so
WVC 37 - 6 - 17
§37-6-17. Attachment for rent.
On complaint by any landlord or person entitled to rent, or
his agent, to a justice, that any person liable to him for rent
intends to remove, or is removing, or has within thirty days
removed his effects from the leased premises, if such landlord or
person entitled to rent, or his agent, make oath to the truth of
such complaint to the best of his belief, and to the rent which
is reserved (whether in money or other thing) and will be payable
within one year, and the time or times when it will be payable,
and also make oath either that there is not, or he believes,
unless an attachment issues, there will not be, left on such
premises, property liable to distress sufficient to satisfy the
rent so to become payable, such justice shall, if the landlord or
person entitled to rent, or his agent, shall execute before such
justice a bond in the penalty and with the conditions prescribed
in section eight, article seven, chapter thirty-eight of this
code, issue an order of attachment for such rent against the
personal estate of the person so liable therefor. If the amount
of rent claimed by the landlord or person entitled to the rent,
or his agent, exclusive of interest, is fifty dollars or less
than that amount, the order of attachment shall be returnable
before the justice issuing the order, or another justice; if the
amount of rent so claimed, exclusive of interest, is more than
fifty dollars and not more than three hundred dollars, the order
of attachment may be returnable before the justice issuing the
order, or another justice, or to the next term of the circuit
court thereafter; and if the amount of rent so claimed, exclusive of interest, exceeds three hundred dollars, the order of
attachment shall be returnable to the next term of the circuit
If the order of attachment is returnable to the circuit
court, it shall be in form or effect as follows:
"District of ...................., ....................
The above-named plaintiff having filed with me the affidavit
and bond required by law, the sheriff of the County of
...................., or any constable therein to whom this order
may come, is hereby required, in the name of the State of West
Virginia, to attach and take into his possession the personal
estate of the defendant, C................ D................,
sufficient to pay the sum of ............... dollars (the sum
affiant states will be due), and the costs of this attachment,
and to make return of his proceedings under this order to the
next term of the circuit court of the said county.
Given under my hand this ........ day of ......., 19.....
E.......... F.........., Justice."
The defendant, in an attachment issued under the next
preceding paragraph, may make defense thereto in the same manner
and to the same extent as in other cases of attachment; and the
same, as to the rent claimed, shall be proceeded in, tried and
determined, as if it were an original action brought in said circuit court, and the affidavit and attachment shall take the
place of a declaration in the case. The affidavit in such case
shall be returned to the clerk of the circuit court by the
justice. The provisions of sections seven to forty-six, both
inclusive, except sections thirty-seven, thirty-eight, and thirty- nine, article seven, chapter thirty-eight of this code, shall be
applicable to attachments issued hereunder and returnable to the
If the order of attachment is returnable before a justice,
it shall be in form or effect as follows:
"District of ....., ....., County, to-wit:
"A..... B......, Plaintiff, ) Order
vs. ) of
C..... D....., Defendant. ) Attachment
The above-named plaintiff having filed with me the affidavit
and bond required by law, any constable in the County of............, to whom this order may come, is hereby required, in
the name of the State of West Virginia, to attach and take into
his possession the personal estate of the defendant, C..........
D.........., sufficient to pay the sum of .......... dollars (the
sum affiant states will be due), and the costs of this
attachment, and to make return of his proceedings under this
order to me (or, if the order is made returnable before another
justice, to G.......... H..........), a justice of the peace in
Given under my hand this ..... day of ......, 19....
E.......... F.........., Justice."
The provisions of sections seven to twenty-four, both
inclusive, article nine, chapter fifty of this code shall be
applicable to attachments issued hereunder and returnable before
WVC 37 - 6 - 18
§37-6-18. Removal of goods by third party having lien.
If, after the commencement of any tenancy, a lien be obtained
or created by trust deed, mortgage, or otherwise, upon the interest
or property in goods on premises leased or rented, of any person
liable for the rent, the party having such lien may remove such
goods from the premises on the following terms, and not otherwise,
that is to say: On the terms of paying to the person entitled to
the rent, so much as is in arrear, and securing to him so much as
is to become due; what is so paid or secured not being more
altogether than a year's rent in any case: Provided,
That if the
party removing such goods has perfected a purchase money security
interest in the goods, as defined in section one hundred seven,
article nine, chapter forty-six of this code and that such purchase
money security interest is in effect under the terms set forth in
section four hundred three, article nine, chapter forty-six of this
code, then the goods are liable to distress only to the extent of
the unencumbered interest of the lessee, assignee or undertenant.
If the goods be taken under legal process, the officer executing it
shall, out of the proceeds of the goods, make such payment of what
is in arrear; and, as to what is to become due, he shall sell a
sufficient portion of the goods on a credit till then, taking from
the purchaser bond, with good security, payable to the person so
entitled, and delivering such bond to him. If the goods be not
taken under legal process, such payment and security shall be made
and given before their removal. Neither this nor any other section
of this article shall affect any lien for taxes or levies.
WVC 37 - 6 - 19
§37-6-19. Right of reentry; ejectment; unlawful detainer;
judgment by default.
Any person who shall have the right of reentry into the
lands by reason of any rent issuing thereout being in arrear, or
by reason of the breach of any covenant or condition, may serve a
declaration in ejectment on the tenant in possession, where there
shall be such tenant, or, if the possession be vacant, by
affixing the declaration upon the chief door of any messuage, or
at any other conspicuous place on the premises, which service
shall be in lieu of a demand and reentry; or may commence an
action of unlawful detainer, and obtain service either in person
or by publication, as in other such actions, which service shall
be in lieu of a demand and reentry; and upon proof to the court,
by affidavit in case of judgment by default, or upon proof on the
trial that the rent claimed was due, and there was not sufficient
property subject to distress upon the premises to satisfy the
claim for rent due, or that the covenant or condition was broken
before the service of the declaration in ejectment, or the
commencement of the action of unlawful detainer, and that the
plaintiff had power thereupon to reenter, he shall recover
judgment, and have execution for such lands. In case the time
for reentering be specified in the instrument creating the rent,
covenant or condition, the proceedings in ejectment or unlawful
detainer shall not be begun until such time shall have elapsed.
WVC 37 - 6 - 20
§37-6-20. Relief against forfeiture.
Should the defendant, or other person for him, not pay the
rent in arrear, with interests and costs, nor file a bill in
equity for relief against such forfeiture, within twelve months
after execution executed, he shall be barred of all rights, in
law or equity, to be restored to such lands or tenements.
WVC 37 - 6 - 21
§37-6-21. Rights of mortgagee or trustee.
Any mortgagee or trustee of the tenant's interest in such
lands, or any part thereof, whether he be in possession of the
lands or not, may, within twelve months after execution executed,
pay the rent and all arrears, with interest and costs, or file a
bill in equity for relief against such forfeiture; and thereupon
may be relieved against it, on the same terms and conditions as
the tenant of such lands or tenements would be entitled to.
WVC 37 - 6 - 22
§37-6-22. Injunction against ejectment or unlawful detainer.
If the tenant of such lands, or any person having a right or
claim thereto, shall, within the time aforesaid, file his bill
for relief in the circuit court of the county wherein the lands
are situated, he shall not have or continue any injunction
against the proceedings at law on the ejectment or unlawful
detainer, unless he shall, within thirty days next after a full
and perfect answer filed by the plaintiff in ejectment, or
unlawful detainer, bring into court or deposit in some bank
within the state, to the credit of the cause, such money as the
plaintiff in ejectment or unlawful detainer shall, in his answer,
swear to be due and in arrear over and above all just allowances,
and also the costs taxed in the suit, there to remain till the
hearing of the cause, or to be paid out to such plaintiff on good
security, subject to the decree of the court.
WVC 37 - 6 - 23
§37-6-23. Effect of payment of rent or relief in equity.
If any party having a right or claim to such lands shall, at
any time before the trial in such action of ejectment or of
unlawful detainer, pay or tender to the party entitled to such
rent, or to his attorney in the cause, or pay into court, all the
rents and arrears, with interest and costs, all further
proceedings in the action shall cease. If the person claiming
the land shall, upon bill filed as aforesaid, be relieved in
equity, he shall hold the land as before the proceedings began,
without a new lease or conveyance.
WVC 37 - 6 - 24
§37-6-24. Record of reentry; publication of certificate.
Where actual reentry shall be made, the party, by or for
whom the same shall be made, shall return a written act of
reentry, sworn to by the sheriff or other officer acting therein,
to the clerk of the county court of the county wherein the lands
or tenements shall be, who shall record the same in the deed
book, and shall deliver, to the party making the reentry, a
certificate setting forth the substance of such written act, and
that the same had been left in his office to be recorded, which
certificate shall be published as a Class II legal advertisement
in compliance with the provisions of article three, chapter fifty- nine of this code, and the publication area for such publication
shall be such county. Such publication shall be proved by
affidavit to the satisfaction of such clerk, who shall note the
fact on the margin of the deed book against the record of the act
of reentry in the words, "Publication made and proved according
to law, A ........... B .........., Clerk," and shall return the
original act of reentry to the party entitled thereto. Such
written act of reentry, when recorded, and the record thereof, or
a duly certified copy from such record, shall be evidence in all
cases of the facts therein set forth.
WVC 37 - 6 - 25
§37-6-25. Fees of clerk.
The clerk shall be paid for recording, granting certificate,
and noting publication, as aforesaid, one dollar and fifty cents.
WVC 37 - 6 - 26
§37-6-26. Payment of rent and reinstatement after reentry.
Should the person entitled to such land at the time of
reentry made, or having a claim thereto, not pay or tender the
rent and all arrears thereof, with interest and all reasonable
expenses incurred about such reentry, within one year from the
first day of publication as aforesaid, he shall be forever barred
from all right, in law or equity, to such lands. In case any
party, having such right, shall pay or tender such rent and
arrears with interest and expenses as aforesaid to the party
making reentry, within the time aforementioned therefor, he shall
be reinstated in his possession to hold as if the reentry had not
WVC 37 - 6 - 27
§37-6-27. Defects in entry proceedings.
No person who, or those under whom he claims, shall have
been possessed of lands by virtue of a reentry, for the term of
two years, shall be disturbed therein by suit or otherwise for
any defect of proceedings in such reentry.
WVC 37 - 6 - 28
§37-6-28. Destruction of buildings; abatement of rent.
Where buildings or other structures upon leased premises,
not owned by the tenant or removable by him, are destroyed by
fire or otherwise, in whole or in part, without fault or
negligence on the part of the tenant, there shall be, unless the
lease otherwise provides, a reasonable reduction of the rent for
such time as may elapse until there be placed again upon the
premises buildings, or other structures, of as much value to the
tenant for his purposes as those destroyed, and unless the
landlord shall rebuild or replace such structures as soon as he
can reasonably do so, the tenant may, after the expiration of
such reasonable time, surrender the possession of the premises
and be relieved of all further liability for rent, after the time
of such surrender.
WVC 37 - 6 - 29
§37-6-29. Land taken by eminent domain; termination or reduction
Whenever the whole of any tract of land which is under lease
is taken under the power of eminent domain, the liability of any
tenant of such land to pay rent thereon shall terminate unless
the lease expressly provide otherwise. If any part of a tract of
land which is under lease, or any easement or other interest in
such land, is taken under the power of eminent domain, the rent
of any tenant of the land shall, unless the lease expressly
provide otherwise, be reduced in the proportion which the value
of the land or interest taken bears, at the time of such taking,
to the total value of the land upon which rent was payable, under
the lease. The foregoing provisions shall not affect nor impair
any right which a tenant of land may have to compensation from
the person exercising the right of eminent domain, for the value
of his lease, or other property upon the leased premises
belonging to him, or in which he may have an interest, if such
value shall exceed the amount of the rent from the payment of
which he is relieved by virtue of the provisions of this section.
WVC 37 - 6 - 30
§37-6-30. Landlord to deliver premises; duty to maintain premises
in fit and habitable condition.
With respect to residential property:
(a) A landlord shall:
(1) At the commencement of a tenancy, deliver the dwelling
unit and surrounding premises in a fit and habitable condition,
and shall thereafter maintain the leased property in such
(2) Maintain the leased property in a condition that meets
requirements of applicable health, safety, fire and housing
codes, unless the failure to meet those requirements is the fault
of the tenant, a member of his family or other person on the
premises with his consent; and
(3) In multiple housing units, keep clean, safe and in
repair all common areas of the premises remaining under his
control that are maintained for the use and benefit of his
(4) Make all repairs necessary to keep the premises in a fit
and habitable condition, unless said repairs were necessitated
primarily by a lack of reasonable care by the tenant, a member of
his family or other person on the premises with his consent; and
(5) Maintain in good and safe working order and condition
all electrical, plumbing, sanitary, heating, ventilating, air-
conditioning and other facilities and appliances, including
elevators, supplied or required to be supplied by him by written
or oral agreement or by law; and
(6) In multiple housing units, provide and maintain appropriate conveniences for the removal of ashes, garbage,
rubbish and other waste incidental to the occupancy of the
dwelling unit; and
(7) With respect to dwelling units supplied by direct public
utility connections, supply running water and reasonable amounts
of hot water at all times, and reasonable heat between the first
day of October and the last day of April, except where the
dwelling unit is so constructed that running water, heat or hot
water is generated by an installation within the exclusive
control of the tenant.
(b) If a landlord's duty under the rental agreement exceeds
a duty imposed by this section, that portion of the rental
agreement imposing a greater duty shall control.
(c) None of the provisions of this section shall be deemed
to require the landlord to make repairs when the tenant is in
arrears in payment of rent.
(d) For the purposes of this section, the term "multiple
housing unit" shall mean a dwelling which contains a room or
group of rooms located within a building or structure forming
more than one habitable unit for occupants for living, sleeping,
eating and cooking.
WVC 37 - 6 A-
ARTICLE 6A. RESIDENTIAL RENTAL SECURITY DEPOSITS.
WVC 37 - 6 A- 1
When used in this article, unless expressly stated otherwise:
(1) "Action" means recoupment, counterclaim, set off or other
civil suit and any other proceeding in which rights are determined,
including without limitation actions for possession, rent, unlawful
detainer, unlawful entry and distress for rent.
(2) "Application fee" means any deposit of money, however
denominated, which is paid by a tenant to a landlord, lessor or
agent of a landlord for the purpose of being considered as a tenant
for a dwelling unit.
(3) "Dwelling unit" means a structure or part of a structure
that is used as a home or residence by one or more persons who
maintain a household, including, but not limited to, a manufactured
(4) "Facility" means something that is built, constructed,
installed or established to perform some particular function.
(5) "Landlord" means the owner or lessor of the dwelling unit
or the building of which such dwelling unit is a part. "Landlord"
also includes a managing agent of the premises who fails to
disclose the name of such owner or lessor.
(6) "Managing agent" means a person authorized by the landlord
to act on behalf of the landlord under a management agreement.
(7) "Notice period" means: (A) within 60 days of the
termination of the tenancy; or (B) within 45 days of the occupation
of the premise by a subsequent tenant, whichever time period is shorter.
(8) "Owner" means one or more persons, jointly or severally,
in whom is vested:
(A) All or part of the legal title to the property, or
(B) All or part of the beneficial ownership and a right to
present use and enjoyment of the premises, and the term includes a
mortgagee in possession.
(9) "Person" means any individual, group of individuals,
corporation, partnership, business trust, association or other
legal entity, or any combination thereof.
(10) "Premises" means a dwelling unit and the structure of
which it is a part and facilities and appurtenances therein and
grounds, areas and facilities held out for the use of tenants
generally or whose use is promised to the tenant.
(11) "Rent" means all money, other than a security deposit, a
nonrefundable fee or money paid to the landlord by the tenant for
damage caused by the tenant to the dwelling unit, owed or paid to
the landlord under the rental agreement.
(12) "Rental agreement" means all agreements, written
(including an electronic record as defined by paragraph (7),
section two, article one, chapter thirty-nine-a of the code) or
oral, express or implied, embodying the terms and conditions
concerning the use and occupancy of a dwelling unit and premises.
(13) "Roomer" means a person occupying a dwelling unit that
lacks a major bathroom or kitchen facility, in a structure where one or more major facilities are used in common by occupants of the
dwelling unit and other dwelling units. Major facility in the case
of a bathroom means toilet, and either a bath or shower, and in the
case of a kitchen means refrigerator, stove or sink.
(14) "Security deposit" means any refundable deposit of money
that is furnished by a tenant to a landlord to secure the
performance of the terms and conditions of a rental agreement, or
as security for damages to the leased premises. Security deposit
does not include: (A) Rent; (B) a pet fee; or (C) application fee:
Provided, That the parties expressly agree, in writing, that a pet
fee or application fee is nonrefundable. A security deposit does
not include prepaid rent.
(15) "Sublease" means the transfer by any tenant of any but
not all interests created by a rental agreement.
(16) "Tenant" means a person entitled under a rental agreement
to occupy a dwelling unit to the exclusion of others and shall
include a roomer.
(17) "Utility" means electricity, natural gas, propane gas,
water, sewer, telephone and cable television provided by a public
utility or such other person providing residential utility
services. If the rental agreement so provides, a landlord may use
submetering equipment or energy allocation equipment, or a ratio
utility billing system.
WVC 37 - 6 A- 2
§37-6A-2. Security deposits.
(a) Upon termination of the tenancy and within the applicable
notice period, any security deposit held by the landlord, minus any
deductions for damages or other charges, shall be delivered to the
tenant, together with a written itemization of any such damages or
other charges as provided in subsection (c).
(b) Upon termination of the tenancy, any security deposit held
by the landlord may be applied by the landlord only to:
(1) The payment of rent due, including the reasonable charges
for late payment of rent specified in the rental agreement;
(2) The payment of the amount of damages which the landlord
has suffered by reason of the tenant's noncompliance with the
rental agreement, less reasonable wear and tear;
(3) The payment of unpaid utilities that were billed to and
paid by the landlord, are the obligation of the tenant under the
rental agreement and unpaid by the tenant;
(4) The payment of reasonable costs for the removal and
storage of the tenant's personal property. The landlord may
dispose of the stored personal property pursuant to the provisions
of subdivisions (1) through (3), subsection (h), section three,
article three-a, chapter fifty-five of this code; and
(5) To other damages or charges as provided in the rental
agreement, including but not limited to, paying for the services of
a third party contractor to repair damages to the property caused
by the tenant.
(c) In the event that damages to the premises exceed the
amount of the security deposit and require the services of a third
party contractor, the landlord shall give written notice to the
tenant, advising him or her of that fact, within the applicable
notice period. If notice is given as prescribed in this
subsection, the landlord shall have an additional fifteen day
period to provide an itemization of the damages and the cost of
(d) Nothing in this section shall be construed by a court of
law or otherwise as entitling the tenant, upon the termination of
the tenancy, to an immediate credit against the tenant's delinquent
rent account in the amount of the security deposit.
(e The holder of the landlord's interest in the premises at
the time of the termination of the tenancy, regardless of how the
interest is acquired or transferred, is bound by this section and
shall be required to return any security deposit received by the
original landlord that is duly owed to the tenant. The provisions
of this subsection apply whether or not such security deposit is
transferred with the landlord's interest by law or equity, and
regardless of any contractual agreements between the original
landlord and his or her successors in interest.
(f) If the tenant has any assignee or sublessee, the landlord
shall be entitled to hold a security deposit from only one party in
compliance with the provisions of this section.
(g) For the purposes of this section, the delivery to a tenant of a security deposit and/or any notice prescribed by this section,
may be accomplished by either personal delivery to the tenant, or
by mailing the deposit and/or notice to the tenant's last known
address or forwarding address as provided by the tenant. It shall
be the responsibility of the tenant to provide an accurate address
to the landlord. If personal delivery is not reasonably possible
and a deposit or notice mailed to the tenant at his or her last
known address or forwarding address provided is returned as non-
deliverable, then the landlord shall hold the deposit or notice for
the period of six months, to be personally delivered to the tenant,
or his or her authorized agent or attorney, at the landlord's place
of business during normal business hours within seventy-two hours
after a written request is received from the tenant.
WVC 37 - 6 A- 3
§37-6A-3. Maintenance of records by landlord.
The landlord shall:
(1) Maintain and itemize records for each tenant of all
deductions from security deposits provided under this article which
the landlord has made by reason of a tenant's noncompliance with
the rental agreement for one year after the termination of the
(2) Either permit a tenant or his or her authorized agent or
attorney to inspect the tenant's records of deductions at any time
during normal business hours within seventy-two hours of a written
request, or at the landlord's option, provide a tenant or his or
her authorized agent or attorney a copy of the tenant's record of
deductions during normal business hours within seventy-two hours of
a written request.
WVC 37 - 6 A- 4
§37-6A-4. Prohibited provision in rental agreements.
A rental agreement may not contain a provision that the tenant
agrees to waive or forego rights or remedies under this article.
A provision prohibited by this section included in a rental
agreement is unenforceable. If a landlord brings an action to
enforce any of the prohibited provisions, the tenant may recover
actual damages sustained by him or her and reasonable attorney's
WVC 37 - 6 A- 5
§37-6A-5. Landlord's noncompliance.
(a) If a landlord fails to comply with any of the provisions
of this article, and such noncompliance is willful or not in good
faith, the tenant is entitled to a judgment for:
(1) The amount of any unreturned security deposit; and
(2) Damages for annoyance or inconvenience resulting from the
landlord's nonconformance equal to one and a half times the amount
wrongfully withheld, unless the tenant owes rent to the landlord,
in which case, the court shall order an amount equal to any amount
awarded to the tenant pursuant to this subsection to be credited
against any rent due to the landlord.
(b) Jurisdiction for any civil action brought pursuant to this
article shall be in magistrate court or circuit court in the county
where the residential rental premises or units are located.
(c) This section does not limit rights or remedies available
to a landlord or tenant under any other law.
WVC 37 - 6 A- 6
§37-6A-6. Application and effective date of this article.
(a) The provisions of this article shall apply to all
residential rental premises or units used for dwelling purposes.
(b) The provisions of this article do not apply to agreements
for the payment of security deposits entered into prior to the
effective date of this article.
WVC 37 - 7 -
ARTICLE 7. WASTE.
WVC 37 - 7 - 1
§37-7-1. Waste by tenant in possession.
If any tenant of land or any person who has alienated land
commit any waste thereon while he remains in possession, unless
by special permission of the owner so to do, he shall be liable
to any party injured for damages.
WVC 37 - 7 - 2
§37-7-2. Waste by cotenant.
If a tenant in common, joint tenant, or parcener commit
waste, he shall be liable to his cotenants, jointly or severally,
WVC 37 - 7 - 3
If a guardian or committee commit waste of the estate of his
ward, he shall be liable to the ward, at the expiration of his
guardianship, for damages.
WVC 37 - 7 - 4
§37-7-4. Actions; damages.
Any person entitled to damages, in any case arising under
the preceding sections of this article, may recover the same in
an action on the case. And if it shall be found by the jury that
the waste was committed wantonly, judgment shall be for three
times the amount of damages assessed therefor.
WVC 37 - 7 - 5
§37-7-5. Waste pending suit.
If the tenant in possession of any land shall, pending any
suit to recover or charge such land, with knowledge of such suit,
commit any waste thereon, the court, in which the suit is, may
command the sheriff or other officer to take possession of the
land; and, if the plaintiff succeed in recovering or charging the
land, he may recover, in an action on the case against him who
committed the waste, three times the amount of damages assessed
WVC 37 - 8 -
ARTICLE 8. EMBLEMENTS.
WVC 37 - 8 - 1
§37-8-1. Lessee of tenant or owner of an uncertain interest.
If the landlord of land which is let to another be tenant
for life or other uncertain interest or be an owner whose estate
is subject to a limitation over upon a contingency, and if the
estate of such landlord terminates during the tenancy of the
lessee, the lessee may hold the land to the end of the current
year of the tenancy, paying rent therefor; the rent, if it be
reserved in money, shall be apportioned between the landlord or
his personal representative, and those who succeed to the land.
If rent be reserved in kind, it shall be paid to the landlord, or
his personal representative; and such landlord, or his personal
representative, as the case may be, shall pay to those who
succeed to the land a reasonable rent in money, from the
expiration of the life estate, or other uncertain interest or
estate, to the end of the current year of the tenancy; the rent
to be paid to those who succeed to the land shall be a charge in
preference to other claims on the rent received in kind by such
landlord or his personal representative. Such lessee shall be
entitled as at common law to the emblements growing on the lands
at the expiration of the estate for life, or other uncertain
interest, whether they be severed during the year or not, but
shall not, after the expiration of the life estate, plant any
crop which will not mature during the current year, and, if he
does so, he shall have no right to sever the same after the end
of the current year. But where the growing crops are severed
after the expiration of the current year of the tenancy, such
lessee shall pay a reasonable rent to those who succeed to the lands, from the end of such tenancy to the time when the same are
severed. If such life estate, or other uncertain interest or
estate expire before the first of August in any year, the lessee
shall permit those who succeed to the land to put in the ground
any crop they may desire after that period; and if any land has
been prepared by such lessee previous to that period, for the
purpose of putting a crop in the ground, those who succeed to the
land shall pay a reasonable compensation for such preparation;
and to the extent that such lessee is deprived of the use of the
land by reason of a crop being put in the ground, by those who
succeed to the land, he shall be paid a reasonable compensation
for the use of such land.
WVC 37 - 8 - 2
§37-8-2. Land employed in farming or planting.
If any person, having land employed in farming or planting,
whether it be held for life or any other interest, shall die on
or after the first of March, his personal representative may, in
his discretion, continue such employment until the last day of
December following, and all the emblements which such
representative may sever before that day shall be personal assets
in his hands, deducting first the taxes and levies on such land,
and the cost of tools procured after the decedent's death. If he
elect not to continue such employment, he shall dispose of, for
the balance of the year, to the best advantage for the estate of
the decedent, such land held by him for life only, and in either
case such representative shall, out of the assets, pay to those
entitled in reversion or remainder, a reasonable rent or hire,
from the death of his decedent to the last day of December. Such
rent or hire shall be chargeable, in preference to all other
claims against the estate, on the profits which may arise from
such land after the death of the decedent.
WVC 37 - 8 - 3
§37-8-3. At common law.
In all other cases the right to emblements shall be as at
WVC 37 - 9 -
ARTICLE 9. APPORTIONMENT OF RENT.
WVC 37 - 9 - 1
§37-9-1. Apportionment of rent on determination of estate.
On the determination by death or otherwise, of the estate or
other thing, from or in respect of which any rent, hire or money,
coming due at fixed periods, issues or is derived, or on the
death of any person interested in such rent, hire or money, the
person or the personal representative or assignee of the person
who would have been entitled, but for such death or
determination, to the rent, hire, or money coming due at any such
period, shall have a proportion thereof, according to the time
which shall have elapsed of the time for which such rent, hire,
or other money was growing due, including the day of such death
or determination, deducting a proportional part of the charges.
WVC 37 - 9 - 2
§37-9-2. Remedies for recovery.
For recovering such proportion, such person, representative,
or assignee, shall, after such fixed period, have such remedies
as he would have had for recovering the whole of such rent, hire
or other money, if entitled thereto.
WVC 37 - 9 - 3
§37-9-3. Scope of article.
This article shall not apply to any case in which it is
expressly provided that no apportionment shall take place.
WVC 37 - 9 - 4
§37-9-4. Apportionment on purchase of rent or part of land.
Where the holder of a rent shall purchase part of the land
out of which the same issues, the rent shall be apportioned in
like manner as if the land had come to him by descent; and where
the holder of land, being part of land out of which rent shall be
issuing, shall purchase such rent, or part thereof, the rent so
purchased shall be apportioned as aforesaid.
WVC 37 - 10 -
ARTICLE 10. LAND RECORDS PROCURED FROM VIRGINIA.
WVC 37 - 10 - 1
§37-10-1. Custody of records procured from Virginia.
That the records, books documents and papers, relating to
land titles in this state, the assessments, delinquency sales and
redemptions of lands, and which have been heretofore procured
from the state of Virginia by the governor of this state, under
and by virtue of an act of the general assembly of Virginia
entitled "An act to authorize the auditor of public account and
the register of the land office to deliver to the state of West
Virginia certain of the original title papers respecting land in
the state of West Virginia, and to authorize the said state to
obtain copies of such title papers to lands as cannot be properly
so delivered," approved February fifth, eighteen hundred and
ninety-two, shall be placed and kept in the auditor's office of
this state as part of the public records of said office. The
foregoing provision relates to the following list of records,
books, documents and papers, as well as to other records and
papers of a similar character, viz: 1 vol. western delinquent
lands, 1840, 1845; 1 vol. western delinquent lands, 1845, 6, 7, 8
and 9; 1 vol. loose-printed, 1821, 1831; 1 vol. western
delinquent lands, 1850, 1, 2, 3, and 4; 1 vol. eastern delinquent
lands, 1840, 45; 1 vol. eastern delinquent lands, 1845, 6, 7, 8
and 9; 1 vol. eastern delinquent lands, 1851, 2, 3 and 4; 1 vol.
delinquent lands, east Allegheny, to 1820 inclusive; 1 vol.
delinquent lands and lots, printed; 1 vol. written delinquent
lands since 1831, loose; 1 vol. delinquent lands, east Allegheny,
to 1820 inclusive; 1 vol. lands not ascertainable, since 1832; 1
vol. lands not ascertainable since 1832; 1 unbound book written, without title or back; 1 vol. lands sold and bought for the
commonwealth, 1855, 1860; 1 vol. lands sold and bought for the
commonwealth, 1851, 1855; 1 vol. taxes paid in advance; 1 vol.
receipts for redeemed lands, from N. to Z.; 1 vol. (thin book) of
forfeitures; 1 vol. list of delinquent lands and lots, western; 1
vol. receipts for lands, from A. to M.; 1 vol. lands sold and
bought for the commonwealth, 1844, 45; 1 vol. delinquent lands,
since 1831, since 1839. Unascertained lands for the following
counties, 1 vol. for each year named, viz: Barbour 1843; Braxton
1841, 42 and 44; Brooke 1848; Fayette 1832 and 44; Gilmer 1845,
46 and 47; Hampshire 1832; Hardy 1832, 33 and 34; Harrison 1832,
41, 42 and 44; Jackson 1832; Kanawha 1841 and 32; Lewis 1834, 44,
45, 46, 47, 41, 42 and 43; Logan 1832; Marion 1843; Mason 1834
and 32; Monongalia 1832; Morgan 1832, 33, 34, 36, 38 and 40;
Nicholas 1832 and 41; Preston 1834; Randolph 1832, 41, 44 and 48;
Taylor 1847; Tyler 1832; Wood 1832. Assessor's books for the
following counties, one volume for each year named, viz: Barbour,
Berkeley, Boone, Braxton and Brooke for 1850; Cabell 1830;
Fayette and Gilmer 1850; Greenbrier 1850; Hampshire and Hancock
1850 and 1856; Hardy 1856; Harrison 1850 and 1856; Jackson and
Jefferson 1838 and 1850; Kanawha, Lewis, Logan, Marshall, Mason
and Mercer, 1850; Monongalia 1838 and 50; Monroe 1838; Morgan
1838 and 1850; Nicholas 1838; Pendleton, Pocahontas, Preston,
Putnam, Raleigh, Randolph, Ritchie, Taylor, Tyler, Wayne, Wetzel,
Wood and Wyoming, 1850. Delinquent list for the following
counties and years, viz: Barbour 1843 and 44; Berkeley 1835, 6,
7 and 8; Braxton 1836, 7, 8, 9, 40, 1, 2, 3 and 4; Brooke 1835; Cabell 1835, 6, 7, 8, 9, 41, 2 and 3; Fayette 1841, 2, 3 and 4;
Greenbrier 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Hampshire 1834,
5, 6, 7, 8, 9, 41, 2, 3 and 4; Hardy 1835, 6, 7, 8, 9, 40, 1, 2,
3 and 4; Harrison 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Jackson
1841, 2, 3, 4, 5, 6, 8 and 9; Jefferson 1835, and 43; Kanawha
1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Lewis 1834, 5, 6, 7, 8, 9,
40, 1, 2, 3 and 4; Logan 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4;
Marion 1842, 3 and 4; Marshall 1836, 7, 8, 9, 40, 1, 2, 3 and 4;
Mason 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Mercer 1840, 42 and 4;
Monongalia 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Monroe 1835, 6,
7, 8, 9, 41, 2, 3 and 4; Morgan 1841, 2, 3 and 4; Nicholas 1835,
7, 8, 9, 40, 1, 2, 3 and 4; Ohio 1842, 3, 4, 5, 8 and 9;
Pendleton 1840, 3 and 4; Pocahontas 1836, 7, 8, 9, 40, 1, 2, 3
and 4; Preston 1836, 7, 8, 9, 41, 2, 3 and 4; Randolph 1835, 6,
7, 8, 9, 41, 2 and 4; Ritchie 1843 and 44; Taylor 1844; Tyler1835, 6, 9, 40, 1, 2, 3 and 4; Wayne 1842, 3 and 4; Wood 1835, 7,
8, 9, 40, 1, 2, 3 and 4. Land books as follows, viz: Barbour 2,
1843 to 54 and 1855 to 1860; Berkeley 9, 1779 to 1826, 1827 to
1837, 1838 to 1850, 1851 to 1856, 1857 to 1861, 1782 to 1794,
1795 to 1803, 1804 to 1812, 1813 to 1818; Boone 1, 1847 to 1860;
Braxton 3, 1836 to 1850, 1851 to 1856, and 1857 to 1861; Brooke
5, 1716 to 1725, 1797 to 1815, 1826 to 1830, 1831 to 1850, 1851
to 1860; Cabell 5, 1809 to 1822, 1823 to 1831, 1832 to 1840, 1841
to 1852, 1853 to 1860; Clay-Calhoun 1, 1856 to 1861; Doddridge 1,
1845 to 1860; Fayette 2, 1831 to 1850, 1851 to 1861; Gilmer 2,
1845 to 1855, 1856 to 1861; Greenbrier 11, 1782 to 1811, 1812 to
1820, 1821 to 1825, 1826 to 1829, 1830 to 1834, 1835 to 1839, 1840 to 1844, 1845 to 1851, 1852 to 1856, 1857 to 1860, 1861 to
1863; Hampshire 15, 1782 to 1797, 1798 to 1801, 1805 to 1811,
1812 to 1815, 1816 to 1819, 1820 to 25, 1826 to 28, 1829 to 32,
1833 to 36, 1837 to 1840, 1841 to 1844, 45 to 50, 51 to 54, 55 to
57, 58 to 60; Hancock 1, 1848 to 1860; Hardy 12, 1786 to 1805,
1806 to 14, 15 to 20, 21 to 26, 27 to 32, 33 to 39, 40 to 44, 45
to 49, 50 to 53, 54 to 56, 57 to 59, 60 to 61; Harrison 12, 1796
to 1806, 1807 to 1813, 14 to 19, 20 to 25, 26 to 31, 32 to 34, 35
to 37, 38 to 41, 42 to 45, 46 to 52, 53 to 56, 57 to 60; Jackson
3, 1831 to 1845, 46 to 55, 56 to 61; Jefferson 5, 1802 to 24, 25
to 35, 36 to 48, 49 to 56, 57 to 61; Kanawha 6, 1793 to 1813, 14
to 31, 32 to 44, 45 to 53, 54 to 57, 58 to 61; Lewis 7, 1817 to
1826, 27 to 33, 34 to 39, 40 to 46, 47 to 52, 53 to 56, 57 to 60;
Logan 3, 1824 to 1845, 46 to 55, 56 to 60; Marion 4, 1842 to
1850, 51 to 54, 55 to 57, 58 to 60; Marshall 4, 1836 to 1844, 45
to 52, 53 to 57, 58 to 60; Mason 5, 1814 to 1823, 24 to 35, 36 to
50, 51 to 56, 57 to 60; Mercer 2, 1837 to 1855, 56 to 63;
Monongalia 10, 1788 to 1806, 1807 to 15, 16 to 23, 24 to 32, 33
to 38, 39 to 45, 46 to 51, 52 to 54, 55 to 57, 58 to 60; Monroe
4, 1851 to 1854, 55 to 57, 58 to 60, 61 to 63; Morgan 4, 1820 to
1830, 31 to 44, 45 to 55, 56 to 61; McDowell 1, 1859 to 1863;
Nicholas 4, 1818 to 1833, 34 to 45, 46 to 52, 53 to 61; Ohio 12,
1784 to 1795, 96 to 1801, 1802 to 1806, 07 to 13, 14 to 22, 23 to
30, 31 to 36, 37 to 43, 44 to 51, 52 to 54, 55 to 57, 58 to 60;
Pendleton 11, 1789 to 1804, 1805 to 14, 15 to 19, 20 to 25, 26 to
30, 31 to 36, 37 to 42, 43 to 48, 49 to 54, 55 to 59, 60 to 63;
Pleasants 1, 1851 to 1860; Pocahontas 3, 1822 to 1838, 39 to 53, 54 to 61; Preston 5, 1818 to 37, 38 to 47, 48 to 53, 54 to 57;
Putnam 1, 1848 to 1861; Raleigh 1, 1850 to 61; Randolph 7, 1802
to 1819, 20 to 29, 30 to 38, 39 to 47, 48 to 53, 54 to 57, 58 to
61; Ritchie 2, 1843 to 1854, 55 to 60; Roane 1, 1856 to 1861;
Taylor 1, 1844 to 1860; Tucker 1, 1856 to 60; Tyler 4, 1815 to
1830, 31 to 41, 42 to 55, 53 to 60; Upshur 1, 1851 to 1860; Wayne
2, 1842 to 1855, 56 to 61; Webster-Wyoming 1, 1850 to 1861;
Wetzel 2, 1846 to 1855, 56 to 60; Wirt 1, 1848 to 1860; Wood 5,
1802 to 1822, 23 to 34, 35 to 44, 45 to 54, 55 to 60. Total 206
books. Also copies of five books containing record copies of
sheriffs' returns of lands delinquent for taxes and of sales made
by the sheriffs of lands sold for taxes.
WVC 37 - 10 - 2
§37-10-2. Charge of such records by auditor.
All such books, records, documents and papers relating to
land titles in this state, which may hereafter be procured by
this state from the state of Virginia, under and by virtue of
said act of the general assembly of Virginia, and all copies in
whole or in part of records, books, documents and papers relating
to land titles in this state, which may hereafter be procured
from the state of Virginia by the governor of this state by his
agent, under and by virtue of said act of the general assembly of
Virginia, and which shall be prepared and made under the
authority and direction of the governor, shall be placed in the
auditor's office as they are procured from time to time and shall
be kept in said auditor's office as part of the public records of
WVC 37 - 10 - 3
§37-10-3. Copies from records as evidence; fees.
All copies in whole or in part of books, records, documents
and papers, which have heretofore been or which shall hereafter
be procured from the state of Virginia by the agent of the
governor of this state, under and by virtue of said act of the
general assembly of Virginia, and which shall be placed and kept
in the auditor's office under the provisions of this article,
shall be treated and held to be prima facie correct, and may be
used for all purposes in like manner and with like effect as the
originals from which they were copied could be used: Provided,
That any person shall have the right to prove that any
such copy or any part thereof was not correctly made from the
original in Virginia, and that it is not a correct copy of such
original. The auditor shall take charge of and be the custodian
and keeper of the books, documents and papers mentioned in this
article, and make and certify copies or abstracts thereof. The
books in the secretary of state's office, containing the record
of land grants, surveys and plats shall be transferred to the
auditor's office, and the auditor shall be the custodian and
keeper of such books; and copies thereof attested by the auditor
shall be held to be prima facie correct and may be used for all
purposes in like manner and with like effect as the originals
from which they were copied could be used. For making searches
and certifying copies and abstracts from such books, documents
and papers the auditor shall charge such fees as are allowed by
law to clerks of the county courts for like services, which fees
shall be allowed when the services are rendered. A record and account shall be kept of all such fees. Such fees shall be paid
into the state treasury at the end of every six months.
WVC 37 - 10 - 4
The provisions contained in sections seven and eight,
article one, chapter fifty-seven of this code shall apply to a
copy of or from any of the books, records, documents or papers,
or copies of books, records, documents or papers, which shall be
placed and kept in the auditor's office under the provisions of
this article, attested as provided in said sections; and to any
certificate of the auditor based in whole or in part upon the
contents of any such books, records, documents and papers, or
copies of books, records, documents and papers, as to the return
of any real estate as delinquent, or sale thereof for taxes or
payment or nonpayment of taxes or forfeited or delinquent lands,
or nonentry of lands, or the books of the commissioners of the
WVC 37 - 11 -
ARTICLE 11. CURATIVE PROVISIONS RESPECTING DEEDS AND OTHER
WRITINGS AND THE RECORDATION THEREOF.
WVC 37 - 11 - 1
§37-11-1. Informality in deeds and other instruments.
Any instrument, executed before this code takes effect,
shall be as valid and effective as it would be, according to the
provisions of section four, article three, chapter thirty-six of
this code, if executed after this code takes effect.
WVC 37 - 11 - 2
§37-11-2. Validation of instruments, acknowledgments and records.
(a) No deed or other writing conveying or purporting to convey
or release or assign real estate, or any interest therein, or to
create any power of attorney relating to real estate or any
interest therein, heretofore made or executed and delivered by any
person or persons whomsoever, or by a husband and wife to a bona
fide purchaser for good and valuable consideration, and
acknowledged by him or them before an officer duly authorized by
law to take such acknowledgments, if such deed, writing or power of
attorney was made, executed, acknowledged and delivered prior to
the seventh day of June, one thousand nine hundred fifty-five,
shall be deemed, held or adjudged invalid, or defective, or
insufficient in law or in equity, by reason of any informality or
omission in setting forth the particulars of the acknowledgment
made before such officer aforesaid in the certification thereof, or
in stating the official character of such officer, or the place of
taking the acknowledgment, or by reason of the fact that the wife
executed such instrument prior to the execution thereof by the
husband, or by reason of the fact that the parties making or
executing the instrument or writing, or any of them omitted to seal
the same, or by reason of the fact that the official taking the
acknowledgment omitted his official seal, or by reason of the
failure to set forth the date of the deed or other writing or the
date of the acknowledgment in the certification thereof, or by
reason of the failure to set forth correctly the date of the deed
or other writing or the date of the acknowledgment in the
(b) If a period of five years has elapsed from the date of
recordation of any deed or other writing, and if said deed or other
writing has an acknowledgment considered defective for any reason,
then every such deed or other writing shall be as good, valid and
effectual in law as if the law with respect to acknowledgments and
seals, in force at the date of such acknowledgment had been fully
complied with; and the record of the same duly made in the proper
office for recording deeds in the state of West Virginia, or in the
state of Virginia before formation of West Virginia, and
exemplifications of the same duly certified, shall be legal
evidence in all cases in which the original would be competent
That this section shall not apply to suits now
pending and undetermined insofar as it amends laws existing at the
time such pending suits were instituted, nor to any suit that may
be brought within one year after the day this section takes effect,
insofar as it amends laws existing at the time this section takes
effect; nor shall this section apply to any deed or other writing
which has heretofore been declared or held invalid by any court of
WVC 37 - 11 - 3
§37-11-3. Validation of acknowledgments defective in other
Where the acknowledgment of any deed or other writing, or
the privy examination of a married woman respecting the same, has
been taken either within or without the state of West Virginia,
by a notary public, justice of the peace, or president of a
county court, whether he used an official seal or not, or by two
justices of the peace in any county in the state of Virginia
prior to the reorganization of the state government thereof, or
by any justice out of his district or township, or it does not
appear by the certificate of the justice that such acknowledgment
or privy examination was taken within his district or township,
or county, the same shall nevertheless be sufficient, unless
there be other lawful objections; and the admission to record and
recordation of any such deed or writing heretofore had or made
upon any such acknowledgment or privy examination shall likewise
be sufficient and valid unless there be other lawful objections:
That this section shall not affect the rights of any
party to any pending suit instituted prior to the twenty-fifth
day of May, nineteen hundred and eleven.
WVC 37 - 11 - 4
§37-11-4. Validation of records failing to comply with §9,
chapter 73, code 1868.
All deeds and other writings admitted to record under
chapter seventy-three of the code of West Virginia of eighteen
hundred and sixty-eight, are hereby declared to be as legal and
valid as if the provisions of the ninth section of said chapter,
and of all acts amendatory of said section, had been fully
WVC 37 - 11 - 5
§37-11-5. Presumption of jurisdiction in cases of judicial sales.
When any land or any interest in land in this state has
heretofore been sold, partitioned or disposed of prior to the
formation of this state, under the order, judgment or decree of
any court of competent jurisdiction of the state of Virginia, or
has heretofore been or shall hereafter be sold, partitioned or
disposed of under the order, judgment or decree of any court of
competent jurisdiction of this state, it shall be presumed, in
the absence of evidence to the contrary, that every such court
obtained due jurisdiction in the cause by the institution of all
proper proceedings and by the service or execution of proper
process over any and all persons whose names appear in any part
of the record of the cause as persons embraced therein or against
whom the court proceeded, and this presumption shall apply to any
person or persons named by the designation of child, children,
heir-at-law, heirs-at-law, devisee, devisees, or other sufficient
designation or classification from which it can be shown by the
record or otherwise the person or persons included therein or
WVC 37 - 11 - 6
§37-11-6. Presumption of authority of commissioners and certain
other officers in certain cases.
When any deed has heretofore been made prior to the
formation of this state for land or any interest in land therein,
which purports on its face to be made under judicial proceedings
of a court of the state of Virginia by a commissioner, special
commissioner, guardian or other person, or when any deed has
heretofore been made or shall hereafter be made for land or any
interest in land in this state, which purports on its face to be
made by a commissioner, special commissioner, guardian or other
person under the judicial proceedings of a court of this state,
then in every such case it shall be presumed, in the absence of
evidence to the contrary, that the person executing such deed was
authorized by the court to convey the land or interest therein
which is conveyed by such deed, and if any such deed was duly, or
shall hereafter be duly admitted to record in any county, and not
less than ten years shall have elapsed after such record thereof,
it shall be presumed, in the absence of evidence to the contrary,
that the title of all persons which said deed professes to
convey, under such judicial proceedings, did in fact pass by such
For the purpose of this and the preceding section a court of
the United States shall be deemed a court of the state within
which it has been or may be held.
WVC 37 - 12 -
ARTICLE 12. SURVEYORS.
WVC 37 - 12 - 1
§37-12-1. Survey by magnetic meridian; variations; measurement.
When any surveyor is required to survey lands which have
been surveyed before, he shall make such survey by the magnetic
meridian, but shall also return and certify in his plat the
degree of the variation of the magnetic needle from the true
meridian, at the time of the resurvey; and also (if the same can
be done) the degree of such variation at the time of the original
survey; and every survey, whether original or not, shall be made
by horizontal measurement, unless otherwise provided by deed or
WVC 37 - 12 - 2
§37-12-2. Execution of orders of survey.
Every surveyor shall promptly and faithfully execute any
order of survey made by any court, of lands lying in his county,
and make due return of a true plat and certificate thereof; and,
if he fail to do so, he shall forfeit fifty dollars to the party
injured by such failure.
WVC 37 - 13 -
ARTICLE 13. REMOVAL, TRANSFER AND DISPOSITION OF REMAINS IN
GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
WVC 37 - 13 - 1
§37-13-1. Jurisdiction to permit and order removal, etc.
The circuit court of any county shall have jurisdiction and
authority to permit and order the removal, transfer and
reinterment, or other disposition, of remains in any graves
located upon privately owned land within the boundaries of such
county under the provisions hereinafter set forth: Provided,
That the provisions of this article shall not apply to any grave
or grave area where title or color of title to the same exists as
a matter of public record in any person or persons not a
plaintiff or plaintiffs instituting an action pursuant to this
article: Provided, however,
That when title or color of title of
public record to such grave or grave area exists in such
plaintiff or plaintiffs, the provisions of this article may be
available in addition to any other rights or remedies provided by
law for the removal, transfer and disposition of remains in
graves or grave areas.
WVC 37 - 13 - 1 A
§37-13-1a. Improvement, construction or development upon privately
owned lands containing graves.
No improvement, construction or development shall commence
upon privately owned lands on which a cemetery or graves are
located if such improvement, construction or development would
destroy or otherwise physically disturb the cemetery or graves
located on the land unless the owner first files a petition in
accordance with the provisions of section two of this article and
an order is entered pursuant to section five of this article
providing for the disposition of the remains.
WVC 37 - 13 - 2
§37-13-2. Action; contents of petition.
Any owner of private lands, may, as plaintiff, institute an
action for the purposes set forth in section one of this article
by filing a petition before the circuit court of the county in
which the lands affected are located. Such petition shall show
the title to such lands, the condition of the graves in question,
the interests of all persons in such lands and in the remains in
such graves, so far as known, the reasons why removal is sought,
and the proposed disposition of such remains. The petition shall
further show that plaintiffs have made reasonable and diligent
effort to ascertain the identity of each deceased and each
deceased's surviving next of kin, heirs-at-law, administrator,
executor or personal representative. The court may, if deemed
necessary, appoint a guardian ad litem to protect the interests
of known or unknown persons in interest, whether living or dead.
WVC 37 - 13 - 3
§37-13-3. Parties; notice.
All owners, lessees and other persons having an interest in
such lands, other than plaintiffs, and also the surviving next of
kin, heirs at law, administrator, executor, or personal
representative of each deceased, so far as can be determined
through reasonable and diligent effort, shall be made defendants
in such action. Insofar as possible all defendants shall be
served with notice of the institution of the action and the date
of the first hearing upon the same, such service to be made in
the same manner provided by law for the service of process in
other civil actions. If the address of any defendant be unknown,
or, if there be any unknown next of kin, heirs at law,
administrator, executor or personal representative of any known
or unknown person whose remains may be interred within any such
grave, then, in such event, a copy of said notice shall be
published prior to the hearing upon the same as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the county.
WVC 37 - 13 - 4
§37-13-4. Hearing; discretion in granting or refusing relief;
No sooner than three weeks from the filing of such petition
the court shall take evidence upon relief sought, together with
any evidence presented in opposition thereto. In granting or
denying such relief the court shall consider, as well as other
evidence adduced, evidence as to the wishes of all persons
concerned, whether living or deceased, and shall exercise a sound
discretion in granting or refusing, in whole or in part, the
relief sought. If the court is satisfied with the propriety of
the relief sought by plaintiffs it shall enter an order granting
the same, either in whole or in part.
WVC 37 - 13 - 5
§37-13-5. Procedure upon removal.
Such order permitting removal, transfer and disposition of
remains in any grave shall provide that the same shall be done
with care, decency and reverence for the remains of the deceased,
may require that the services of a licensed funeral director
shall be utilized and may be upon any other terms and conditions
as the court may deem fit and proper, including the method and
manner of disposition of such remains.
WVC 37 - 13 - 6
In the event that the plaintiff or plaintiffs shall be
granted the relief sought, then all costs of such action shall be
borne by plaintiffs. In the event that such relief is not
granted, or is granted only in part, then such costs may be
allocated between the parties as the court shall deem equitable
and just. In any event wherein any relief is granted, the costs
of removal, transfer and disposition shall be borne by the
plaintiffs, including the cost of erecting appropriate memorials
to the deceased as the same may be ordered by the court.
WVC 37 - 13 - 7
§37-13-7. Remedy herein provided cumulative.
This article and the rights and remedies herein provided for
shall be cumulative and in addition to other existing rights. The
right of eminent domain and the remedy of condemnation of lands
shall not be affected hereby. This article shall not apply to
burial grounds governed by the provisions of article five, chapter
thirty-five of this code or by the provisions of section eight-a,
article one, chapter twenty-nine of this code.
WVC 37 - 13 A-
ARTICLE 13A. GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
WVC 37 - 13 A- 1
§37-13A-1. Access of certain persons to cemeteries and graves
located on private land.
(a) Any authorized person who wishes to visit a cemetery or
grave site located on privately owned land and for which no public
ingress or egress is available, shall have the right to reasonable
ingress or egress for the purposes described in subsection (c) of
this section after providing the owner of the privately owned land
with reasonable notice as defined in subsection (b) of this
(b) An authorized person intending to visit the cemetery or
grave site for the purpose of installing a monument or grave marker
pursuant to subdivision (2), subsection (c) of this section, shall
give reasonable notice to the property owner which is to include a
description of the monument or grave marker to be installed. As
used in this article, "reasonable notice" means written notice of
the date and time the authorized person intends to visit the
cemetery or grave site delivered to the property owner at least ten
days prior to the date of the intended visit.
(c) The right of access to cemeteries or grave sites provided
in subsection (a) of this section shall be during reasonable hours
and only for the purposes of:
(1) Visiting graves;
(2) Maintaining the grave site or cemetery, including the
installation of a monument or a grave marker: Provided, That a
property owner may deny access to the cemetery or grave site because the owner objects to the installation of the type or style
of the monument or grave marker that has been described in the
notice given pursuant to subsection (b) of this section;
(3) Burying a deceased person in a cemetery plot by those
granted rights of burial to that plot; and
(4) Conducting genealogy research.
(d)(1) The access route to the cemetery or grave site may be
designated by the landowner if no traditional access route is
obviously visible by a view of the property. If no traditional
access route is obviously visible by a view of the property, the
landowner is not required to incur any expense in improving a
designated access route.
(2) Unless the property owner has caused a traditional access
route to the cemetery or grave site to be unusable or unavailable,
the property owner is not required to make any improvements to
their property to satisfy the requirement of providing reasonable
ingress and egress to a cemetery or burial site pursuant to this
(e) A property owner who is required to permit authorized
persons reasonable ingress and egress for the purpose of visiting
a cemetery or grave site and who acts in good faith and in a
reasonable manner pursuant to this section is not liable for any
personal injury or property damage that occurs in connection with
the access to the cemetery or grave site.
(f) Nothing in this section shall be construed to limit or modify the power or authority of a court in any action of law or
equity to order the disinterment and removal of the remains from a
cemetery and interment in a suitable location.
WVC 37 - 13 A- 2
In this article:
(1) "Authorized person" means:
(A) A family member, close friend or descendant of a deceased
(B) A cemetery plot owner;
(C) A person who has the written permission of a family member
or descendant of a deceased person to enter the property solely for
the purpose of installing monuments or grave markers or preparing
the cemetery plot for burying a deceased person by those granted
rights of burial to that plot; or
(D) A person engaged in genealogy research.
(2) "Governmental subdivision" means any county commission or
(3) "Reasonable ingress and egress" or "reasonable access"
means access to the cemetery or grave site within ten days of the
receipt of written notice of the intent to visit the cemetery or
grave site. If the property owner cannot provide reasonable access
to the cemetery or grave site on the desired date, the property
owner shall provide reasonable alternative dates when the property
owner can provide access within five days of the receipt of the
WVC 37 - 13 A- 3
§37-13A-3. Conduct of persons accessing cemeteries or grave sites;
persons liable for damage.
All persons exercising access to a grave site or cemetery
under the provisions of this article are responsible for conducting
themselves in a manner that does not damage the private lands, the
cemetery or grave sites and are liable to the owner of the private
lands for any damage caused as a result of their access.
WVC 37 - 13 A- 4
§37-13A-4. Limiting the use of motor vehicles on private lands.
The access to a cemetery or grave site on private lands
conferred by this article does not include the right to operate
motor vehicles on the private lands, unless there is a road or
adequate right-of-way that permits access by motor vehicle and the
owner has given written permission to use the road or right-of-way
or way of necessity.
WVC 37 - 13 A- 5
§37-13A-5. Cause of action for injunctive relief.
(a) An authorized person denied reasonable access under the
provisions of this article, including the denial of permission to
use vehicular access or the denial of permission to access the
cemetery or grave site to install a monument or grave marker, may
institute a proceeding in the circuit court of the county in which
the cemetery or grave site is located to enjoin the owner of the
private lands on which the cemetery or grave site is located, or
his or her agent, from denying the authorized person reasonable
ingress and egress to the cemetery or grave site for the purposes
set forth in this article. In granting relief, the court may set
the frequency of access, hours and duration of the access.
(b) The court or the judge thereof may issue a preliminary
injunction in any case pending a decision on the merits of any
application filed without requiring the filing of a bond or other
WVC 37 - 13 A- 6
§37-13A-6. Application of article.
The provisions of this article shall not apply to any deed or
other written instrument executed prior to the effective date of
this article which creates or reserves a cemetery or grave site on
private property and which specifically sets forth terms of access.
WVC 37 - 13 A- 7
§37-13A-7. Existence of cemetery or grave site, notification.
If a governmental subdivision is notified of the existence of
a cemetery, or a marked grave site that is not located in a
dedicated cemetery, within its jurisdiction, the governmental
subdivision shall, as soon as is practicable, notify the owner of
the land upon which the cemetery or burial site is located of the
cemetery's or grave site's existence and location. The
Governmental subdivision shall, upon notification of grave site
location, document the location. Data collected shall be deposited
with the Division of Culture and History. The notification shall
include an explanation of the provisions of this article.
WVC 37 - 14 -
ARTICLE 14. THE REAL ESTATE APPRAISER LICENSING AND CERTIFICATION
WVC 37 - 14 - 1
§§37-14-1 to 37-14-45.
Acts, 2001 Reg. Sess., Ch. 237.
WVC 37 - 15 -
ARTICLE 15. HOUSE TRAILERS, MOBILE HOMES, MANUFACTURED HOMES AND
WVC 37 - 15 - 1
§37-15-1. Purpose and applicability.
The purpose of this article is to recognize the distinction
between a house trailer, a mobile home, a manufactured home and a
modular home. While it is the intent of this article to include
the different classifications of factory-built homes into a single
category for the purposes of this article, it is also the intent of
this article to acknowledge the differences between the various
types of factory-built homes for other purposes.
In addition, it is the purpose of this article to clarify the
ambiguity and confusion related to the classification of factory-built homes as real or personal property, particularly relating to
security interests. The provisions of this article apply to
factory-built homes, as defined herein, which are held as personal
property situated on real property owned by another in conjunction
with a landlord/tenant relationship.
WVC 37 - 15 - 2
For the purposes of this article, unless expressly stated
(a) "Abandoned factory-built home" means a factory-built home
occupying a factory-built home site pursuant to a written agreement
under which the tenant has defaulted in rent or the landlord has
exercised any right to terminate the rental agreement;
(b) "Factory-built home" includes modular homes, mobile homes,
house trailers and manufactured homes;
(c) "Factory-built home rental community" means a parcel of
land under single or common ownership upon which two or more
factory-built homes are located on a continual, nonrecreational
basis together with any structure, equipment, road or facility
intended for use incidental to the occupancy of the factory-built
homes, but does not include premises used solely for storage or
display of uninhabited factory-built homes or premises occupied
solely by a landowner and members of his family;
(d) "Factory-built home site" means a parcel of land within
the boundaries of a factory-built home rental community provided
for the placement of a single factory-built home and the exclusive
use of its occupants;
(e) "Good cause" means:
(1) The tenant is in arrears in the payment of periodic
payments or other charges;
(2) The tenant has breached a material term of a written rental agreement or has repeatedly breached other terms of the
(3) Where there is no written agreement, or where the written
agreement does not cover the subject matter of a warranty or
leasehold covenant, the tenant breached a material warranty or
leasehold covenant or has repeatedly breached other terms of a
warranty or a leasehold covenant;
(4) The tenant has deliberately or negligently damaged the
property or knowingly permitted another person to do so.
(f) "House trailers" means all trailers designed or intended
for human occupancy and commonly referred to as mobile homes or
house trailers and shall include fold down camping and travel
trailers as these terms are defined in section one, article six,
chapter seventeen-a of this code, but only when such camping and
travel trailers are located in a factory-built home rental
community, as defined in this section, on a continual,
(g) "Landlord" means the factory-built home rental community
owner, lessor or sublessor of the factory-built home rental
community, or an agent or representative authorized to act on his
or her behalf in connection with matters relating to tenancy in the
(h) "Manufactured home" has the same meaning as the term is
defined in section two, article nine, chapter twenty-one of this
code which meets the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U. S. C. §5401, et seq.),
effective on the fifteenth day of June, one thousand nine hundred
seventy-six, and the federal manufactured home construction and
safety standards and regulations promulgated by the secretary of
the United States department of housing and urban development.
(i) "Mobile home" means a transportable structure that is
wholly, or in substantial part, made, fabricated, formed or
assembled in manufacturing facilities for installation or assembly
and installation on a building site and designed for long-term
residential use and built prior to enactment of the Federal
Manufactured Housing Construction and Safety Standards Act of 1974
(42 U. S. C. §5401, et seq.), effective on the fifteenth day of
June, one thousand nine hundred seventy-six, and usually built to
the voluntary industry standard of the American national standards
institute (ANSI)--A119.1 standards for mobile homes.
(j) "Modular home" means any structure that is wholly, or in
substantial part, made, fabricated, formed or assembled in
manufacturing facilities for installation or assembly and
installation on a building site and designed for long-term
residential use and is certified as meeting the standards contained
in the state fire code encompassed in the legislative rules
promulgated by the state fire commission pursuant to section
five-b, article three, chapter twenty-nine of this code.
(k) "Owner" means one or more persons, jointly or severally,
in whom is vested: (i) All or part of the legal title to the factory-built home rental community; or (ii) all or part of the
beneficial ownership and right to present use and enjoyment of the
factory-built homesite or other areas specified in the rental
agreement and the term includes a mortgagee in possession.
(l) "Rent" means payments made by the tenant to the landlord
for use of a factory-built home site and as payment for other
facilities or services provided by the landlord.
(m) "Section" means a unit of a factory-built home which is
transported and delivered as a whole and which contains some or all
of the indoor living area.
(n) "Tenant" means a person entitled pursuant to a rental
agreement to occupy a factory-built home site to the exclusion of
WVC 37 - 15 - 3
§37-15-3. Written agreement required.
(a) The rental and occupancy of a factory-built home site
shall be governed by a written agreement which shall be dated and
signed by all parties thereto prior to commencement of tenancy. A
copy of the signed and dated written agreement and a copy of this
article shall be given by the landlord to the tenant within seven
days after the tenant signs the written agreement.
(b) The written agreement, in addition to the provisions
otherwise required by law to be included, shall contain:
(1) The terms of the tenancy and the rent therefor;
(2) The rules and regulations of the factory-built home rental
community. A copy of the text of the rules and regulations
attached as an exhibit satisfies this requirement;
(3) The language of the provisions of this article. A copy of
the text of this article attached as an exhibit satisfies this
(4) A description of the physical improvements and maintenance
to be provided by the tenant and the landlord during the tenancy;
(5) A provision listing those services which will be provided
at the time the rental agreement is executed and will continue to
be offered for the term of tenancy and the fees, if any, to be
charged for those services.
(c) The written agreement for a factory-built home site on
which is placed a factory-built home that is comprised of one section, other than a camping or travel trailer, may not allow for
the termination of the tenancy by the landlord during the first
twelve months that the factory-built home is placed on the site
except for good cause. The written agreement for a factory-built
home site upon which is placed a factory-built home that is
comprised of more than one section may not allow for the
termination of the tenancy by the landlord during the first five
years the factory-built home is placed on the site except for good
(d) The written agreement may not contain:
(1) Any provisions contrary to the provisions of this article
and shall not contain a provision prohibiting the tenant who owns
his or her factory-built home from selling his or her factory-built
(2) Any provision that requires the tenant to pay any
recurring charges except fixed rent, utility charges or reasonable
incidental charges for services or facilities supplied by the
(3) Any provision by which the tenant waives his or her rights
under the provisions of this article.
(e) When any person possesses a security interest in the
factory-built home, the written agreement or rental application
shall contain the name and address of any secured parties. The
written agreement shall require the tenant to notify the landlord
within ten days of any new security interest, change of existing security interest or settlement or release of the security
(f) When a factory-built home owner sells a factory-built
home, the new owner shall enter into a written agreement if the
factory-built home continues to occupy the site: Provided, That
the new owner meets the standards and restrictions contained in the
prior rental agreement.
WVC 37 - 15 - 3 A
§37-15-3a. Rules and regulations.
(a) An owner, from time to time, may adopt rules or
regulations concerning the tenant's use and occupancy of the
premises. A rule or regulation is enforceable against the tenant
if the rule or regulation:
(1) Is reasonably related to the purpose for which it is
(2) Applies to all tenants in the factory-built home rental
community in a fair manner;
(3) Is sufficiently explicit in its prohibition, direction, or
limitation of the tenant's conduct to fairly inform the tenant of
what the tenant must or must not do to comply;
(4) Is not for the purpose of evading the obligations of the
(5) The tenant has been given written notice of the rule at
the time the tenant enters into the rental agreement, or when it is
adopted by the owner.
(b) A rule or regulation adopted by the owner after the tenant
has entered into a rental agreement that results in a substantial
modification of the tenant's original rental agreement does not
become effective until the current rental agreement expires and a
new agreement is made in writing.
WVC 37 - 15 - 4
§37-15-4. Liability of secured party taking possession of an
abandoned factory-built home.
(a) A secured party is not liable for rent to a landlord
except as provided below:
(1) When a factory-built home subject to a security interest
becomes an abandoned factory-built home, the landlord shall mail a
notice of abandonment to the owner of the factory-built home and
the secured party by certified mail, at the addresses shown in the
rental agreement or rental application. The notice shall include
any rental agreement previously signed by the tenant and the
landlord, and shall also provide the landlord's current mailing
(2) A secured party who has a security interest in an
abandoned factory-built home, and who has taken title to the
factory-built home under court order or under the applicable
security agreement, is liable to the landlord under the same rental
agreement terms as agreed on by the tenant and the landlord prior
to the accrual of a right of possession by the secured party;
(3) Subject to any defenses the tenant may have, when the
tenant has failed to comply with the terms of the written rental
agreement regarding rent and payment of fees, the tenant remains
liable to the landlord for all rent and services provided during
the period while the secured party is attempting to gain title or
exercise a right of possession to the factory-built home:
That when the landlord has terminated the rental
agreement, the tenant shall not be liable for further rent or
payment of fees to the landlord. The secured party is not liable to the landlord or tenant for rent or services until the secured
party completes foreclosure proceedings under the terms of the
security agreement or otherwise takes title or exercises a right of
possession to the factory-built home; or
(4) Upon completion of foreclosure proceedings, acquiring
title to or the exercise of a right of possession to the secured
party, the secured party shall immediately notify the landlord of
the completion of such proceedings by certified mail at the address
provided in the landlord's notice of default. After the conveyance
of title to or the exercise of a right of possession to the secured
party, the secured party shall have ten business days to remove the
factory-built home. If a secured party who has a security interest
in an abandoned factory-built home takes title to or possession of
the factory-built home and the factory-built home remains in the
factory-built home rental community for a period longer than ten
business days, the relationship between the secured party and the
landlord shall be governed by the rental agreement previously
signed by the tenant and the landlord, except that the term of the
rental agreement shall convert to a month-to-month tenancy. No
waiver is required to convert the rental agreement to a month-to-month tenancy. Either the landlord or the secured party may
terminate the month-to-month tenancy upon giving written notice of
a desire to terminate to the other party thirty days or more in
advance of the proposed date of termination. The secured party and
the landlord may enter into a subsequent agreement but are not
required to execute a new rental agreement.
(b) Nothing in this section may be construed to be a waiver of any rights by the tenant.
WVC 37 - 15 - 5
§37-15-5. Demands and charges prohibited; access by tenant's
invitee; purchases by factory-built home owner not
restricted; exception; conditions of occupancy.
(a) A landlord may not demand or collect:
(1) Any fee which is not listed in the rental agreement;
(2) An entrance fee for the privilege of renting or occupying
a factory-built home site;
(3) A commission on the sale of a factory-built home located
in the factory-built home rental community unless the tenant
expressly employs the landlord to perform a service in connection
with the sale, but employment of the landlord by the tenant may not
be a condition or term of the initial sale or rental; or
(4) A fee for improvements or installations on the interior of
a factory-built home, unless the tenant expressly employs the
landlord to perform a service in connection with such installation,
improvement or sale.
(b) An invitee of the tenant has free access to the tenant's
factory-built home site without charge unless a court of competent
jurisdiction has ordered otherwise.
(c) A factory-built home owner may not be restricted in his or
her choice of vendors from whom he or she may purchase his or her
(i) factory-built home, except in connection with the initial
renting of a newly constructed factory-built home site not
previously rented to any other person, or (ii) goods and services.
However, nothing in this article prohibits a landlord from
prescribing reasonable requirements governing, as a condition of
occupancy, the style, size or quality of the factory-built home, or other structures placed on the factory-built home site.
WVC 37 - 15 - 6
§37-15-6. Termination of tenancy.
(a) The tenancy for a factory-built home site upon which is
placed a factory-built home that is comprised of one section, other
than a camping or travel trailer, may not be terminated until
twelve months after the home is placed on the site except for good
cause. The tenancy for a factory-built home site on which is
placed a factory-built home that is comprised of two or more
sections may not be terminated until five years after the home has
been placed on the site except for good cause.
(b) The tenancy for a factory-built home, other then a camping
or travel trailer, may be terminated at the time set forth in this
(1) Either party may terminate a rental agreement at the end
of its stated term or at the end of the time period set out in
subsection (a) of this section, whichever is later, for any reason,
unless the rental agreement states that reasons for termination
(2) Either party may terminate a tenancy which has continued
after its stated term and longer than the period set out in
subsection (a) of this section for no reason, unless the rental
agreement states that reasons must exist.
(3) A tenancy that has not reached the end of its stated term
or has not existed for the time periods stated in subsection (a) of
this section may be terminated only for good cause.
(c) A tenancy governed by subdivision (1) or (2), subsection (b) of this section may be terminated only by written notice at
least three months before the termination date of the tenancy. A
tenancy governed by subdivision (3), subsection (a) of this section
may be terminated only by a written notice at least three months
before the termination date of the tenancy. The rental agreement
may specify a period of notice in excess of the periods of time set
out in this subsection.
(d) A landlord may not cause the eviction of a tenant by
willfully interrupting gas, electricity, water or any other
essential service, or by removal of the factory-built home from the
factory-built home site, or by any other willful self-help measure.
(e) The landlord shall set forth in a notice of termination
the reason relied upon for the termination with specific facts to
permit determination of the date, place, witnesses and
circumstances concerning that reason.
(f) Unless the landlord is changing the use of the site, if a
tenancy is ended by the landlord at the later of its stated term or
at the end of the time period set out in subsection (a) of this
section with no good cause, the owner may not prevent the sale of
the factory-built home in place to another tenant who meets the
standards and restrictions in effect for other new tenants prior to
the termination of the tenancy.
WVC 37 - 15 - 6 A
§37-15-6a. Termination of tenancy of more than twenty-five
(a) A landlord of a factory-built home rental community may
not terminate a rental agreement nor otherwise evict more than
twenty-five tenants of any factory-built home rental community
within a single eighteen-month period unless:
(1) The landlord obtains written agreement to voluntarily
vacate the premises by every tenant prior to the expiration of the
(2) The landlord provides not less than six months' notice to
terminate the rental agreement to each tenant; or
(3) The tenant has breached a provision of the rental
agreement and the termination complies with the requirements of
(b) If a landlord violates the provisions of this section, the
tenant has a cause of action to recover actual damages, the costs
required to relocate the aggrieved tenant and, in addition, a right
to recover treble damages or the equivalent of the aggrieved
tenant's rent for one year, whichever is greater, and reasonable
WVC 37 - 15 - 7
§37-15-7. Retaliatory conduct prohibited.
(a) Except as provided in this section, or as otherwise
provided by law, a landlord may not retaliate by selectively
increasing rent or decreasing services or by bringing or
threatening to bring an action for possession after the landlord
has knowledge that: (1) The tenant has complained to a
governmental agency charged with responsibility for enforcement of
a building or housing code of a violation applicable to the
premises materially affecting health or safety; (2) the tenant has
made a complaint to or filed a suit against the landlord for a
violation of any provision of this article; (3) the tenant has
organized or become a member of a tenant's organization; or (4) the
tenant has testified in a court proceeding against the landlord.
(b) Notwithstanding the provisions of subsection (a) of this
section, a landlord may terminate the rental agreement pursuant to
subsection (b), section six of this article unless the magistrate
or circuit court finds that the reason for the termination was
WVC 37 - 15 - 8
§37-15-8. Effect on taxation.
Nothing in this article shall be construed to affect the
taxation of factory-built homes.