Landlords in West Virginia can’t just change the locks, toss your belongings out on the front yard, or shut down essential utilities. A landlord must follow the eviction process in order to have a tenant evicted for any reason. Here's an overview of what this means for tenants in West Virginia.
Written by Upsolve Team.
Updated November 19, 2021
In West Virginia, if you’re behind on paying your rent, have breached the terms of your lease, or if your lease has expired, your landlord may be able to evict you from your rental property. This article explains the eviction process in West Virginia and tenants’ rights and obligations during the process.
What Is Eviction?
Eviction is a legal action a landlord files in a court to get permission to force the tenant to move out. West Virginia has two types of evictions — summary ejectment and unlawful detainer actions. In West Virginia, unless your landlord gets a court order through one of these actions, your landlord can’t evict you. Once the landlord gets the court order, only a law enforcement officer with a court order can remove you from the property.
Landlords can’t use self-help tactics to force a tenant to move out. This means your landlord can’t change the locks, turn off your utilities, or remove your belongings to force you to move out. That would be an illegal eviction.
Who Can Be Evicted in West Virginia?
Tenants can be evicted through the West Virginia eviction process. You’re a tenant if you have a written or oral agreement to pay rent to a property owner so you can live in the property. Those living with the tenant can also be evicted, even if they aren’t on the lease. West Virginia’s residential landlord-tenant laws are set out in Section 37 of the West Virginia Code.
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Why Can Someone Be Evicted in West Virginia?
Landlords in West Virginia can generally evict tenants for three reasons:
The tenant is either late or short on paying rent.
The tenant has violated a term of the rental agreement. Examples include keeping an unauthorized pet in the property, damaging the rental property, or creating a nuisance such as disturbing neighbors with noise.
The lease term is ending, and the landlord chooses not to renew the lease.
A landlord can also evict the tenant if the tenant is engaged in criminal activity, such as possessing or distributing illegal drugs.
West Virginia has two different types of eviction proceedings — a summary eviction and a complaint in unlawful detainer. Landlords who want to make the tenant move out quickly without getting money damages will typically file a summary eviction.
Late, Short, or Behind on Rent?
Under West Virginia law, a landlord can start an eviction action against you if you’re late paying rent, even by just one day. Unlike many states, in West Virginia landlords don’t have to give advance notice of lease violations, such as nonpayment of rent, before starting the eviction process. Landlords also don’t have to give tenants time to fix the problem. That said, if the tenant pays the back rent and costs before an eviction hearing, the eviction is automatically stopped.
You can move out immediately if your landlord gives you notice that they plan to file an eviction action. This will keep the landlord from going forward with the eviction action, but they can use your security deposit for any unpaid rent. If your security deposit doesn’t cover the rent you owe, your landlord can bring a lawsuit against you to recover this amount.
If you don’t move out and don’t pay rent, your landlord can start the eviction proceeding.
Lease Expiration or Termination
In West Virginia, landlords can also evict a tenant after the lease has expired or if the landlord terminates the lease. In both cases, the landlord is claiming the tenant can no longer live in the property, even though the tenant has paid the rent.
With lease expiration, the lease has expired and the tenant has remained in the property. If the landlord doesn’t want to renew the lease, they can evict you. They have to give you written notice to move out before starting eviction proceedings. The amount of notice they give depends on the type of lease you had:
Week-to-week leases require a seven-day notice.
Month-to-month leases require a 30-day notice.
Year-to-year leases require a 90-day notice.
With lease termination, the landlord terminates the lease and files an eviction action because the tenant has violated the terms of the lease. West Virginia doesn’t require landlords to give tenants advanced notice before evicting them when their lease is terminated.
The West Virginia Eviction Process
This section describes West Virginia’s process for residential evictions.
First, West Virginia has two different types of eviction proceedings — a summary eviction and a complaint in unlawful detainer. If your landlord files a summary eviction, they can only make you move out. They can’t ask for any money owed unless you either fail to respond to the eviction complaint or don’t show up at the hearing. If the landlord files a complaint in unlawful detainer, they can ask the court to evict the tenant, and they can ask for a money judgment. Summary evictions tend to be quicker than unlawful detainer actions.
What does a landlord have to do to begin an eviction?
For nonpayment of rent, landlords aren’t required to give you notice prior to filing an eviction action in court. If your lease is expiring, the landlord can’t bring the eviction action until the time in the notice requirement has lapsed. That’s seven days for week-to-week leases, 30 days for month-to-month leases, and 90 days for year-to-year leases.
To start an eviction action, the landlord must file a complaint in either magistrate court or with the circuit court. The complaint must state the reason for the eviction. Most eviction hearings are held in magistrate court. But the landlord or tenant can ask the magistrate judge to move the case to circuit court if the damages or rent due exceeds a certain amount.
With summary eviction and unlawful detainer actions, the landlord gives notice to the tenant of the time and day to appear in court. The notice requirements and time to file the answer are the same for both types of eviction, but the trial date for unlawful detainer actions is usually later than the trial date for summary eviction action.
What happens once the eviction action is filed with the court?
Once the eviction complaint is filed, the clerk of the court will issue a summons telling the tenant where and when to show up in court to defend the eviction action. The court may also dismiss the action if the landlord can’t show that the tenant has been served 10 days before the eviction hearing.
The summons can be served in a few ways. Anyone over 18 who isn’t a party to the eviction action can serve the summons by hand-delivery, through certified mail, or by leaving a copy of the summons at the rental property with the tenant’s family member. If none of these methods work, a copy of the summons and complaint can be published in a newspaper. The landlord must serve the tenant within 120 days of filing the complaint or the eviction action might be dismissed.
The tenant isn’t required to file a response, known as an answer, with the court. Instead, you can just show up at the eviction hearing. If you do file an answer, it must be within five days of receiving the summons.
If you need more time to prepare for your court hearing, you can file a motion for continuance with the magistrate’s office. Ask a clerk for a form to fill out. In the form, you must explain why you want the continuance. You’ll need to have a reasonable excuse. If you don’t show up at the eviction hearing, the court might enter a default judgment against you, which means the court will find in the landlord’s favor and give them the relief they seek. Tenants who want to defend eviction actions need to show up at the eviction hearing.
Telling Your Side of the Story: Affirmative Defenses and Counterclaims
When your landlord files an eviction action against you, you can raise affirmative defenses or counterclaims to fight the eviction. When you raise an affirmative defense, you’re telling the court that what your landlord is claiming isn’t true. For example, your landlord may claim that you didn’t pay your rent. If you can show the court evidence that you did pay the rent, you can raise this as an affirmative defense.
In West Virginia, defenses to a summary eviction or unlawful detainer lawsuit can include the following:
You didn’t violate the lease.
You gave your landlord written notice of a dangerous or unhealthy condition in the property, and your landlord didn’t fix it.
Your landlord is retaliating against you for filing a complaint with a government agency.
Your landlord violated lease terms or is wrongfully trying to force you out of the property.
Your landlord is discriminating against you based on your gender, race, religion, national origin, or disability.
You can also defend the eviction lawsuit by raising what’s known as a counterclaim. This is where you agree that you breached the lease terms, but you argue that your duty to pay rent is excused for some reason. For example, you could bring a counterclaim if you didn’t pay rent because the landlord turned off the utilities, so you couldn’t live in the rental property. A counterclaim won’t stop an eviction, but it can help you get compensated for certain costs or reduce the amount you owe your landlord.
What Happens After an Eviction Trial?
If the landlord wins in the eviction hearing, the court can decide how long to give the tenant to move out. This decision can be made on the day of the eviction hearing or a few weeks later. You can ask the court to give you time to move out. If you haven’t moved out by the deadline, the landlord must then ask the court for a writ of possession, which gives the sheriff the right to remove you from the property. The court decides how long you have to move out before you’re forcefully removed. The court could order you to move out immediately or days or weeks later.
You can appeal the eviction proceeding, but you must move out while the appeal is pending, especially if the lease has already expired. If you decide to appeal, you must bring your appeal within 20 days of the eviction judgment, and you still have to pay rent during the appeal.
After the eviction, if you left some of your property behind and you let your landlord know in writing that you’ve abandoned the property, the landlord can dispose of the items immediately. If you don’t give your landlord this written notice, your landlord must wait 30 days before getting rid of the property. The landlord can either leave the property in the rental or take it to a storage unit.
Practical Tips for Tenants Facing Eviction in West Virginia
Often, an eviction can be stopped through good communication with your landlord. If your landlord has started eviction proceedings, you may want to contact the landlord directly and try to come to an agreement so you don’t have to go to court. For example, you could agree to move out by a certain date if the landlord stops the eviction proceeding. Since the mere filing of an eviction action can hurt your credit score and harm your ability to rent other properties, this might be your best option.
Make sure to put any agreement you come to in writing. Both you and your landlord should also sign it.
If you’re being evicted, keep any records that can serve as evidence for any defenses you may use. If you’re being evicted for damaging the rental property, keep documents, photos, videos, or other evidence of the property’s condition. You could also hire a municipal building inspector to write up a report about the property's conditions.
Remember, if you don’t show up at your eviction hearing, the court will likely enter a default judgment against you, which means you lose the case. If you absolutely can’t attend the hearing, inform the court clerk. You can also ask the court to reschedule the hearing.
Finally, if your landlord threatens an eviction action, you may want to hire an attorney to find out your legal rights and obligations.
Tenant Resources in West Virginia
The following links and resources are useful to West Virginia tenants facing eviction actions:
Mountaineer Rental Assistance Program helps low-income renters facing financial hardship because of coronavirus. The program pays eligible tenants’ back rent and utilities back to April 2020, plus three months of advanced rent.