How to Evict a Tenant (Process)
In West Virginia, the landlord is not required to give an eviction notice to a tenant who has failed to pay rent, committed a lease violation, damaged the property, or engaged in illegal activity on the premises as in each one of these cases the landlord can sue them for possession of the property immediately. Although giving notice in these instances is not required, it is still a good practice to do so and may save the landlord the trouble of filing an eviction lawsuit. Monthly and weekly tenancies, however, do require at least one (1) full rental period’s notice before a rental/lease agreement can be terminated or an eviction action can be filed. “Self-help” evictions (when a landlord attempts to force the tenant off the property, changes the locks, or turns off utilities) are not legal in West Virginia, a tenant can only forcibly evicted by a Sheriff who has been given a court order instructing them to do so.
Step 1 – Notice to Vacate/Quit
If the landlord is terminating a month-to-month rental agreement, they must serve the tenant with a Thirty (30) Day Notice to Vacate giving them thirty (30) days/one (1) full rental period to vacate the property (weekly tenants must be served a One (1) Week Notice to Vacate). This notice must be served in-person by the landlord, the Sheriff, or a process server. Alternatively, the notice can be sent by certified/first-class mail. Tenants who have committed a lease violation, engaged in illegal activity on the property, damaged the property, or who have failed to pay rent do not have to be given any notice before the landlord files an eviction action against them. However, if the landlord wishes to give the tenant notice of the impending eviction as a courtesy, they may serve the tenant with a Notice to Quit. The Notice to Quit describes the reason for the eviction, informs the tenant that the landlord has the right to sue them for possession immediately, and instructs them to vacate immediately.
Step 2 – Petition for Summary Relief/Unlawful Detainer
To file an eviction action, known in West Virginia as a “Wrongful Occupation” action, the landlord must fill out the appropriate petition form (listed below).
Petition for Summary Relief for Wrongful Occupation of Residential Property
Petition for Summary Relief for Wrongful Occupation of Factory-Built Home Site
The landlord should also gather any other relevant documents, such as a copy of the eviction notice, proof of lease violations, a record of nonpayment, or evidence of illegal activity.
If the landlord is seeking payment of delinquent rent or damages, they may prefer to file a Summons and Complaint in Unlawful Detainer. The reason for this being that in a Wrongful Occupation case, the landlord will only be awarded financial damages if the client fails to file an Answer contesting the lawsuit. In an Unlawful Detainer action, the landlord can request that financial damages be paid. However, an Unlawful Detainer case takes much longer to process and is less commonly employed than a Wrongful Occupation action. The necessary forms for this action must be obtained from the court with which the case is being filed.
Step 3 – File Forms With Clerk
The landlord must file the Wrongful Occupation documents in the Magistrate Court of the county where the rental property is located. The landlord will be responsible for paying the court fees, which vary from one county to another. After the action has been filed, the court will schedule the hearing date, which will be no more than ten (10) days from the filing date (unless it is for an Unlawful Detainer case).
Step 4 – Serve the Tenant
The landlord must arrange for the court papers to be served on the tenant by a Sheriff or third party and obtain a proof of service, such as a signed receipt. If the tenant wishes to contest the lawsuit, they must file an Answer to the lawsuit within five (5) days of being served. Otherwise, the Magistrate will issue a judgment for possession in the landlord’s favor. If the eviction is for nonpayment of rent, the tenant can stop the case by paying the full past-due amount, plus the landlord’s legal fees, and requesting a “summary dismissal” from the court.
Step 5 – Attend Hearing
The landlord and tenant must both be present in court on the date of the hearing. Each party will be allowed to present their evidence, documents, and witnesses before the Magistrate makes a ruling on the case. If the landlord wins, the tenant will be ordered to vacate the rental property by a date to be determined by the court. This date is referred to as the “set-out” date. If the Magistrate rules in favor of the tenant, the case will be dismissed and the tenant will be allowed to continue their tenancy.
Step 6 – Removal of the Tenant
If the tenant fails to move out of the rental unit by the “set-out” date, the landlord can file a request for the Sheriff to evict them from the premises. The Sheriff will come to the property and oversee the eviction, and if necessary, forcibly remove the tenant from the unit. In a Wrongful Occupation case, the Sheriff will be ordered by the court to evict the tenant when the judgment is first made. However, for an Unlawful Detainer case, the landlord must file a request with the court to have the Sheriff instructed to evict the tenant. Unless the tenant informs the landlord (in writing) that they may dispose of their belongings, the landlord must store any of the tenant’s property that is left behind for at least thirty (30) days.