Get Lease in Writing
A West Virginia residential rental lease agreement should contain certain basic terms like any other enforceable and binding contract together with optional terms to ensure that you address certain foreseeable circumstances that often arise in residential landlord/tenant relationships.
Landlords in West Virginia may not be required to have written rental agreements, but not having one can lead to unnecessary disputes, delays in evicting someone and even result in you having to pay damages to the tenant.
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As a landlord, you are required to provide a fit and habitable residence for your tenants and to maintain it by performing those repairs necessary to keep it habitable and to do so in a timely manner.
Obligations of the Landlord
You have certain duties and responsibilities as a West Virginia landlord:
- Comply with applicable housing and building codes regarding the health and safety of the tenants
- Provide basic services such as heat, electricity, running and hot water, plumbing, ventilation in good condition
- Make timely repairs when requested or needed to maintain the premises in a habitable condition
- Maintain common areas in a clean, trash-free and safe condition
You may not discriminate against a tenant or a rental applicant based on race, color, creed, religion, national origin, familial status, gender, sexual orientation and disability. You may reject an applicant due to poor credit, lack of references, criminal history, insufficient income or history of evictions.
Further, you may not self-evict a tenant without a court order by removing the tenant’s personal belongings, shutting off utilities, restricting or denying the tenant access to the unit, threatening the tenant or taking any other actions designed to force the tenant to vacate. This prohibition extends to taking retaliatory measures against a tenant such as raising the rent or terminating the lease because the tenant complained to a governmental authority about the condition of the premises, sued you or participated in a tenants’ union or advocacy organization.
Obligations of the Tenant
Tenants have certain responsibilities as well under the lease:
- Comply with housing and building codes regarding safety and health
- Keep the premises clean and free of trash, rubbish and waste
- Obey the law and not engage in illegal activities
- Use appliances and services in a responsible and appropriate manner
- Do not intentionally damage or remove any part of the premises and keep guests from doing the same
- Do not disturb the right of other tenants to the quiet enjoyment of their units
Terms of the Residential Lease
You will want certain terms and provisions in your rental agreement to ensure you comply with state laws and local ordinances and that your tenants are aware of their responsibilities and duties. It is recommended that your lease be comprehensive and contain reasonable terms regarding notices and procedures to maintain a good, working relationship with your tenants.
Consider having the following terms in your lease:
- Name of owner and property manager; address where rent is to be paid and request for repairs are to be directed; address and identity of person to whom legal documents and notices are to be served (required term)
- Name all the tenants and any other occupants—have all adult tenants sign the lease so that they are jointly and severally liable for the lease terms
- Address of the premises
- Term of the lease—weekly, monthly, yearly or other
- Amount of rent and date it is due—state a grace period and amount of late fees—you may ask for prepaid rent to use if the tenant vacates with rent still outstanding
- Insufficient check fees—$25
- Security deposit:
- no more than 1 month’s rent- no interest required or that funds be deposited in a separate account
- advise tenant that the funds will be returned within 14-days of vacating unit to a forwarding address or submit a written, itemized statement with specific reasons for withholding deposit by mail with return receipt requested within this time
- you should provide and have the tenant sign a record of the inventory and condition of the premises when the tenant takes possession
- recommend that you set a time and date for a mutual inspection a short time after the tenant vacates with check-out list on hand
- may request that the tenant provide a forwarding address for return of the deposit or submission of the itemized damages list
- Landlord’s obligations regarding repairs and maintenance and of services—Rules of conduct that fairly apply to and promote the safety or welfare of all tenants and preserve the landlord’s property
- Tenant’s obligations as noted above—you may require the tenant to perform specific minor repairs if it does not diminish the obligations of the landlord to provide a fit and habitable residence
- Party responsible for certain utilities
- Major appliances that you are providing
- No commercial, business or illegal use of premises by tenant or conduct that constitutes a nuisance or is unlawful
- Landlord’s right to receive attorney’s fee and court costs for any court action against the tenant
- Pet clause—may limit type of pet, weight and require tenant to clean up pet waste in common areas; may charge a deposit except for service dogs
- Subletting clause—recommend the tenant obtain your consent before subletting
- Your right of entry to make repairs, inspect and show to future tenants or purchasers or if the tenant has been causing a disturbance or is otherwise violating the lease—no statutory notice but recommend 24-hours’ notice and entry at reasonable hours; indicate that you may enter immediately if it is an emergency
- Notify landlord if absence from unit is to be 7 days or longer
- No notice required for nonpayment of rent or for other material violations and you may file eviction proceedings but recommend you give reasonable notice such as 3 or 5 days for tenant to pay full rent or to cure other lease violation unless the tenant has substantially damaged the unit or has engaged in illegal or criminal activity
- Notice for increasing rent—no statutory notice but recommend 30-days in advance of the date rent is due in a monthly lease (may not be for a discriminatory or retaliatory purpose)
- Provide disclosure of the presence of lead-based paint on the property for all rental property built before 1978—provide the tenant with an EPA pamphlet entitled “Protect Your Family from Lead in Your Home.”
- Notice if apartment building or unit is sold or ownership transferred
Do not include the following terms in your lease or you may be subject to damages if you attempt to enforce them:
- Waiver of statutory and other civil remedies available to tenant
- Waiver of right to sue you for negligence or to recover damages from you regarding conditions of the premises or your conduct
- Authorize a person to confess judgment on any claim arising out of the lease
- Allow you to evict tenant without a court order
- Allow you to enter without notice at any time
- Charge more than the maximum allowable for security deposit
- Alter the notice and other procedures for return of the security deposit
- Lockout the tenant for failure to pay rent absent a court order
Security Deposits Capped
You may not charge more than one months’ rent as security deposit to be used for damage to the apartment that is more than normal wear and tear. You should have a move-in checklist for the tenant to review with you that also includes the furnishings and appliances that you are providing. Indicate the condition of the unit and existence of any damage before the tenant takes possession. The list should be signed by you and the tenant. You should also conduct a mutual inspection of the premises at the end of the tenancy with the checklist that can be used if you are going to withhold any part of the security deposit.
You can also have the tenant give you a prepayment when the tenancy begins to be used if the tenant vacates with rent still outstanding.
You must return the deposit within 14-days after the tenancy expires to the forwarding address provided or to the tenant’s last known address. If you are going to withhold the deposit for outstanding rent or damages, you are required to serve within 14-days an itemized list of the damages and cost of repairs or rent owed.
Termination of the Lease in West Virginia
Leases that have fixed terms expire on the final day of the agreement. If you wish for the tenant to remain, you can accept the rent for the subsequent month so that that lease becomes a month-to-month. You should consider asking the tenants if they intend to stay beyond the expiration date. If so, you may either have the tenants sign a new fixed term agreement or the lease becomes a month-to-month.
If you do not have a written rental lease agreement, you need to give 30-days’ notice. For yearly leases with no end date, you must give 90-days’ notice to terminate. No cause is required.
West Virginia law differs from nearly every other state by not requiring that you provide advance notice of your intent to terminate a lease because of nonpayment of rent or for any other material violation of the lease such as by having unauthorized tenants or pets. You may wish to give your tenant an opportunity to pay within a certain time or to cure any other lease violation or you will incur the time and expense of having to find a new tenant.
If the tenant does vacate with rent still owing, you are obligated to mitigate your damages by taking reasonable steps to find a suitable replacement. Your failure to make any reasonable efforts may result in you not being able to recover all outstanding rent owed by the original tenant.
Under the Servicemembers Relief Act, a tenant who is a member of the Armed Forces including any of the uniformed services may terminate a fixed term lease if the tenant receives deployment orders to move more than 35 miles from the premises for more than 90 days. The tenant must provide a copy of the orders or at least a written statement from the commanding officer. This also applies if the tenant is ordered to reside in government-supplied quarters. The tenant must give 30-days’ and has no further obligations under the lease so long as the rent owed for the final rental term is paid.
Withhold Rent/Deduct and Repair Procedures
West Virginia law does not allow tenants to withhold rent in case you allegedly failed to make necessary repairs or provide basic or essential services. A tenant may, however, send a certified letter to you detailing the necessary repairs or defective condition and that you have 14-days to do the repairs or remedy the hazard. If the repairs are not done within this time, the tenant may hire a professional to perform the repairs and deduct the cost from the subsequent month’s rent.
Although state law does not require certain notices regarding terminating the lease in some cases or that other terms be included, having them in your West Virginia Residential Lease Agreement can give you confidence that you will have a responsible and long-lasting tenant. It can also reduce your costs by giving your tenants notice of late rent or other lease violations and in minimizing the chances of a dispute over the security deposit. If you have any questions about your rental lease agreement, contact a West Virginia landlord/tenant attorney.
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