Residential Property Evictions

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid

*This article is about eviction laws on typical residential rental property. Please see our other article for information on factory-built house sites/mobile home parks.*

Eviction laws in West Virginia outline specific procedures and requirements for landlords and tenants to (1) protect both parties’ rights and (2) ensure the eviction process is proceeding fairly and legally. Navigating eviction laws can feel like trying to dance the Charleston in a minefield – one wrong step and BOOM! Whether you are a landlord wanting to reclaim your castle or a tenant clinging to your fortress, understanding state laws is key. From the conflict to the nerve-wracking notice to the courtroom drama, and even the exceptions, this article will break it down with no sweat!

If a landlord has the right to take back their land because rent has not been paid, a promise has been broken, a family member or friend has overstayed, et cetera, they can give an eviction notice to the tenant; or if no one is there, post the notice on the property. This replaces the need for a formal demand to leave. W.Va. Code §37-6-19.

A landlord can also start a legal eviction process, serving the tenant in person or by public notice. If it is proven that the rent was overdue with not enough property to cover it or a promise was broken before the eviction notice or process started, the landlord will win and get the land back. They also must wait if there is a specified waiting period in the agreement before beginning the eviction process. W.Va. Code §37-6-19.

The minimum amount of time required in the written notice of eviction (a.k.a. “Notice to Quit”) to grant the tenant to vacate depends on the type of tenancy (Week-to-Week: 7 days; Month-to-Month: 30 days; Year-to-Year: 90 days). W.Va. Code §37-6-5.

Suppose the tenant does not comply with the notice. In that case, the landlord can file an eviction lawsuit in the magistrate court of the county where the property is located. The court will schedule a hearing within a few weeks (typically 5 days in many jurisdictions in West Virginia). The landlord must file a complaint with the magistrate court, and then serve (1) notice of the hearing to the tenant before filing (telling the tenant their right to submit a written defense within 5 days) and (2) proof of service with the court. W. Va. Code §55-3A-1.

At the hearing, both the landlord and the tenant will have the opportunity to present their case. The landlord must prove the eviction notice was properly served and that the tenant violated the lease terms or failed to pay rent. If the court rules in favor of the landlord, the landlord will grant immediate possession, and the tenant will typically have a few days to vacate the property voluntarily – the court will provide a specific date. The court may also determine the amount of unpaid rent the tenant owes, and that amount will be owed to the landlord as relief. W.Va. Code §55-3A-3.

Suppose an individual forcefully enters a property or stays on it without permission after their right to be there has ended. In that case, the rightful owner or the individual being unlawfully kept out of the property can take legal action within three years. They can go to the court in the county where the property is located and file a complaint against the person who is unlawfully occupying the property. They only need to describe the property clearly and state the damages they have suffered. No other legal paperwork is required. W. Va. Code §55-3-1.

After getting the property back, the landlord can take, sell, or remove the tenant’s remaining possessions without liability. To be able to do this, the landlord needs to give written notice to the tenant. The notice must state (1) that the possessions are considered abandoned and (2) a deadline to remove the possessions. If not removed, the possessions become the landlord’s property. However, if the abandoned possessions are valuable (over $300 value) and not removed within the deadline, the landlord stores them for 30 extra days if notified and paid by the tenant. W.Va. Code §37-6-5.

If the tenant does not leave, the landlord can request a “Writ of Possession,” allowing the sheriff to remove the tenant and their possessions from the property. W. Va. Code §55-3A-3.

There are limits to the almighty landlord’s powers. West Virginia law prohibits landlords from evicting a tenant in retaliation for the tenant exercising their legal rights. A landlord cannot retaliate by selectively increasing rent or decreasing services or by bringing or threatening to bring an action for possession after the landlord knows 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. W.Va. Code §37-15-7; W. Va. Code §55-3A-2.

If the tenancy is within the initial period, it can only be ended with good, clear, and specific reasoning. Suppose the landlord ends the tenancy without good reason. In that case, the tenant can sell their home to another qualified tenant before the tenancy ends, unless the landlord is changing the site’s use. Also, the landlord cannot cut off utilities or remove one’s home to make them leave (i.e., “constructive eviction”). W. Va. Code §37-15-6.

Additionally, evictions based on discriminatory reasons, such as race, religion, or disability, are illegal under the Federal and West Virginia Fair Housing Act. Disabled tenants may receive up to 6 months to vacate for the sake of reasonableness. 42 U.S.C. 3601, et seq.; W.Va. Code §5-11A.

For military members, The Servicemembers Civil Relief Act provides additional protections, including postponing eviction proceedings if military service affects their ability to pay rent. W.Va. Code §15-1F-11.

Tenants in properties undergoing foreclosure also have specific protections. The Protecting Tenants at Foreclosure Act requires that most tenants receive at least a 90-day notice before eviction.

Generally, one right tenants have is that landlords must return their security deposit within 60 days after the tenant vacates the property or within 45 days after a new tenant takes possession, whichever is shorter. Deductions must be itemized and explained. W.Va. Code §37-6A-2.

The following information is from West Virginia Senior Legal Aid’s former Executive Director Cat McConnell (Rest in Peace): In West Virginia, there is a “Pay-&-Dismiss” right, which applies in most cases where non-payment of rent is the only ground for eviction. There are several things to understand about doing a successful “Pay-&-Dismiss” motion: (1) The tenant must pay the landlord all the back rent and all the landlord’s court costs; (2) The tenant must offer cash, certified check, or money order (nothing else is legally acceptable); (3) The tenant must offer the payment before the hearing. If the landlord refuses payment, take the money to the hearing and offer at the beginning of the hearing. The magistrate should require the landlord to accept, and then dismiss the case; (4) Even if the money is accepted before the hearing, the tenant should go to the hearing and tell the magistrate the case has been resolved. Otherwise, the judge can enter a default decision against the tenant.

Sidenote: If the case’s amount in controversy is more than $2,500, one can transfer the case to the circuit court (i.e., “removal”).

In sum, West Virginia’s eviction laws aim to balance the rights of landlords to maintain their properties and ensure rent payments with the rights of tenants to have a safe and habitable living environment. Understanding these laws is crucial for landlords and tenants to navigate the eviction process legally and fairly. If you trust in the procedural process, help will come! For further aid, please contact a licensed attorney. West Virginia Senior Legal Aid is dedicated to defending West Virginia seniors’ rights.