ARTICLE 3A. REMEDIES FOR WRONGFUL OCCUPATION OF
§55-3A-1. Petition for summary relief for wrongful
occupation of residential rental property.
(a) A person desiring to remove a tenant from residential
rental property may apply for such relief to the magistrate court
or the circuit court of the county in which such property is
located, by verified petition, setting forth the following:
§55-3A-2. Defenses available.
(1) That he is the owner or agent of the owner and as such
has a right to recover possession of the property;
(b) Previous to the filing of the petition the person shall
request from the court the time and place at which the petitioner
shall be heard. The court shall fix a time for such hearing, which
time shall not be less than five nor more than ten judicial days
following such request.
(2) A brief description of the property sufficient to
(3) That the tenant is wrongfully occupying such property in
that the tenant is in arrears in the payment of rent, has
breached a warranty or a leasehold covenant, or has deliberately
or negligently damaged the property or knowingly permitted
another person to do so, and describing such arrearage, breach,
or act or omission; and
(4) A prayer for possession of the property.
(c) Immediately upon being apprised of the time and place for
hearing the petitioner shall cause a notice of the same to be
served upon the tenant in accordance with the provisions of Rule 4
of the West Virginia rules of civil procedure or by certified
mail, return receipt requested. Such notice shall inform the
tenant that any defense to the petition must be submitted in
writing to the petitioner within five days of the receipt by the
tenant of the notice, and in no case later than the fifth day next
preceding the date of hearing. Upon receipt of the return of
service or the return receipt as the case may be, evidencing
service upon the tenant, the petitioner shall file with the court
his petition and such proof of service.
In a proceeding under the provisions of this article, a tenant
against whom a petition has been brought may assert any and all
defenses which might be raised in an action for ejectment or an
action for unlawful detainer.
§55-3A-3. Proceedings in court; final order; disposition of
abandoned personal property.
(a) If at the time of the hearing there has been no
appearance, answer or other responsive pleading filed by the
tenant, the court shall make and enter an order granting immediate
possession of the property to the landlord.
(b) In the case of a petition alleging arrearage in rent, if
the tenant files an answer raising the defense of breach by the
landlord of a material covenant upon which the duty to pay rent
depends, the court shall proceed to a hearing on such issues.
(c) In the case of a petition alleging a breach by the tenant
or damage to the property, if the tenant files an answer raising
defenses to the claim or claims set forth in the petition, the
court shall proceed to a hearing on such issues.
(d) Continuances of the hearing provided for in this section
shall be for cause only and the judge or magistrate shall not
grant a continuance to either party as a matter of right. If a
continuance is granted upon request by a tenant, the tenant shall
be required to pay into court any periodic rent becoming due
during the period of such continuance.
(e) At the conclusion of a hearing held under the provisions
of subsection (b) or (c) of this section, if the court finds that
the tenant is in wrongful occupation of the rental property, the
court shall make and enter an order granting immediate possession
of the property to the landlord. In the case of a proceeding under
subsection (a) of this section, the court may also make a written
finding and include in its order such relief on the issue of
arrearage in the payment of rent as the evidence may require. The
court may disburse any moneys paid into court by the tenant in
accordance with the provisions of this section.
(f) The court order shall specify the time when the tenant
shall vacate the property, taking into consideration such factors
as the nature of the property (i.e., furnished or unfurnished),
the possibility of relative harm to the parties, and other
material facts deemed relevant by the court in considering when
the tenant might reasonably be expected to vacate the property.
The order shall further provide that if the tenant continues to
wrongfully occupy the property beyond such time, the sheriff shall
forthwith remove the tenant, taking precautions to guard against
damage to the property of the landlord and the tenant.
(g) In the event an appeal is taken and the tenant prevails
upon appeal, the relief ordered by the appellate court shall be
for monetary damages only and shall not restore the tenant to
possession if the term of the lease has expired, absent an issue
of title, retaliatory eviction, or breach of warranty. During the
pendency of any such appeal, the tenant is not entitled to remain
in possession of the property if the period of the tenancy has
(h) When an order is issued pursuant to this section granting
possession of the property to the landlord, and the tenant fails
to remove all personal property by the date and time specified by
the order issued pursuant to subsection (f) of this section, the
(1) Dispose of the tenant’s personal property without
incurring any liability or responsibility to the tenant or any
other person if the tenant informs the landlord in writing that
the personal property is abandoned or if the property is
(2) Remove and store the personal property after the date
and time by which the court ordered the tenant to vacate the
property. The landlord may dispose of the stored personal
property after thirty days without incurring any liability or
responsibility to the tenant or any other person if:
(i) The tenant has not paid the reasonable costs of
storage and removal to the landlord and has not taken
possession of the stored personal property; or
(3) Leave the personal property on the property. The
landlord may dispose of personal property left on the property
after thirty days without incurring any liability or
responsibility to the tenant or any other person if the tenant
has not paid the landlord the reasonable costs of leaving the
personal property on the landlord’s property and has not taken
possession of the personal property.
(ii) the costs of storage equal the value of the personal
property being stored; or
(i) Notwithstanding the provisions of subsection (h) of
this section, if the personal property is worth more than
three hundred dollars and was not removed from the property or
place of storage within thirty days with the required fees
paid as provided in subsection (h) 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
personal property pays the landlord the reasonable costs of
storage and removal.
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