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Court Eviction Process

Last Updated On: 9/19/2016 2:12:10 PM

How Fast Does the Court Eviction Process Move in West Virginia?

The court eviction process can be very fast.  Lawyers sometimes call it a “rocket docket.”  In most magistrate court eviction cases, a court hearing will be held no more than ten days after the landlord starts the case.

Here are the steps in starting the case:

  1. The landlord will file a “Wrongful Occupation” case in magistrate court.  
  2. When the landlord files the papers to start the case, the court will schedule a court hearing.  That hearing is to be held no more than 10 business days after the landlord files the case.  
  3. The papers will be served on the tenant sometime between the date of filing and the date of hearing.  (If the papers are not served on the tenant, the hearing is supposed to be postponed.)
  4. Then the court hearing is held.  Each side can bring evidence and witnesses to prove their case.

It’s not unusual for the papers to be served just a day or two before the hearing.  The tenant might not even know the landlord is trying to evict, until getting the papers.   

This means you need to be prepared to act QUICKLY.  In some cases you may need to collect records, like cancelled checks, receipts, copies of letters asking the landlord to make repairs, and so on.  Do it immediately.  Have your evidence ready, because the case will move fast. Go here to learn more about how to prepare for a hearing in Magistrate Court.

What Rights Do I Have In The Court Eviction Process?

Jury.  You have the right to ask for a jury to decide your case, or to permit a magistrate to decide your case.  Your case will automatically be set for a trial with the magistrate unless you file a written request before the date of hearing for a jury.  

There are court costs to have a jury present.  If you qualify for a Fee Waiver, you will not have to pay those costs. Go here to learn more about asking for a Fee Waiver.

Request Copies of Documents and Photos.  Before the hearing, you have the right to get copies of any of the landlord’s documents or photos that may be important in your case.  You have to submit a written list to the court identifying the documents you want.  You must also send a copy of the request list to the landlord.  

For example, you might want to see the landlord’s rent payment records, or the landlord’s records showing what repairs were done.  (Which might then show what repairs were NOT done.)   These should be given to you BEFORE the actual trial day.  If the landlord cannot produce the records before the trial, then the case should be postponed.

Subpoena Witnesses.  You have the right to subpoena witnesses to testify.  To get a subpoena, go to the court clerk’s office and fill out a form.  You will need to provide the name and address of any witness to be served with a subpoena.  

There is a fee required to subpoena witnesses.  If you qualify for a Fee Waiver , you may not have to pay those costs.Go here to learn more about asking for a Fee Waiver.

Transfer to Circuit Court. You can transfer your case to circuit court IF THE CASE INVOLVES MORE THAN $2,500.  This is called “removal” of the case.  You have more protections in Circuit Court, including the right to file written questions that the landlord must answer before the trial.  But you will also have to handle more complicated procedures and rules in Circuit Court.

There is a filing fee required to “remove” your case to circuit court.  If you qualify for a Fee Waiver,you may not have to pay those costs. Go here to learn more about asking for a Fee Waiver.

Are There Defenses to Eviction?

Yes.  There may be several different possible reasons why the landlord should not be able to evict you.

First, the landlord may be wrong about the facts.  This is the main defense in most eviction cases.  It will be up to you to bring evidence to court to show that the landlord is wrong.

Suppose the landlord says you haven’t paid your rent.  But you have written receipts showing that you did pay.  

Suppose the landlord says you created disturbances in the building on a particular date.  But you can prove you were out of town that week.

In some ‘non-payment of rent’ cases, the real story is that you withheld your rent because the landlord wouldn’t fix major defects that affected health and safety.  To use this defense, you must show:

  • There was a major defect in the premises, like unsafe electrical systems, or sanitary plumbing that didn’t work, or lack of heat;
  • You informed the landlord about the defect and asked for repairs;
  • The landlord had a “reasonable time” to fix the defect, but has not fixed it;
  • Finally, you have to show that you were current in rent at the time the defect began.  If you were already behind in rent before the defect appeared, you cannot use this defense.  But if you were current in rent when it appeared, and you started “withholding” your rent after that time, you can use this defense.
  • If you have been withholding your rent, you may be required to pay the back rent into court while the case is pending.  Eventually the judge will decide how much of the rent should be paid to the landlord, and how much should be refunded to you because of the problems.

    Another defense is that the landlord really wants to evict you only because you complained about him or used other legal rights related to your tenancy. To use this “Retaliation” defense, the landlord must know that you complained to the landlord or a government agency about a rental housing problem, or that you joined a tenant's group, before the eviction case was filed.

    I Did Fall Behind On My Rent, But I Have All The Money Now.  If I Pay It Now Will That End The Eviction Case?  

    West Virginia law does provide a “Pay-&-Dismiss” right.  This applies in most cases where non-payment of rent is the ONLY ground for eviction.  But there are several things to understand about doing a successful “Pay-&-Dismiss” motion:

    1. First, you must pay to the landlord all the back rent AND all late fees AND all the court costs the landlord had to pay.  By the time you’re in court, it’s more than just “the back rent.”  
    2. Second, you must offer cash, certified check, or money order.  Personal checks are not legally acceptable for Pay-&-Dismiss.  Promises to pay next week are not legally acceptable for Pay-&-Dismiss.   It must be cash, certified check, or money order.
    3. Third, you must offer the payment to the landlord BEFORE the court hearing.  If the landlord refuses to accept the offered payment, take the money to the court hearing. Offer it at the beginning of the hearing.  The magistrate should require the landlord to take his money, and then dismiss the case.
    4. Fourth, even if the landlord accepts your offer before the hearing, go to the hearing to tell the magistrate that the case has been resolved.  If you aren’t there to make sure things are clear, bad things can happen.

    What are the court eviction procedures?

    At the end of the court hearing, the magistrate or judge will announce the decision.    If you win you will be allowed to stay.  If you lose, the judge will set a date by which you must be out.

    The judge will set a date that he believes is "fair" under all the facts of the case.  There is no flat rule about how much time a tenant will be given.  In extreme cases, the eviction date may be "immediate," the same day.  In other cases, the tenant may be given more time.  In some cases the judge may order the sheriff to participate and assure the eviction takes place on that date.  The sheriff will make sure: (1) the tenant is fact is removed and (2) there is no violence or disturbance at that time.  

    If you do not move by the date the court set, the landlord can go back and get a “writ of possession.”  This means that the court will then order the sheriff to oversee an eviction and make sure you are removed from the property.

    What this means is that you and your family members will not be permitted to continue to stay in the unit.  You will be “removed,” and the doors locked so you cannot return.  

    What Happens To Any Personal Property Left In The Unit If I’m Put Out By Court Order?

    Let’s be clear about the starting point.  In this situation, you have lost the court case.  The judge has ordered that you must vacate.  That means you are supposed to remove yourself AND your family members AND your possessions.  

    If you don’t voluntarily vacate, you can be forced out (with the supervision of the sheriff to assure there’s no violence).  You will find yourself standing on the sidewalk, homeless, with no way to get back in.  

    But even in this terrible situation, your furniture, clothing, and personal possessions should not be set out on the sidewalk or the street.  When things are put on the sidewalk, they are damaged by the weather or stolen by people driving by.  Many years ago that was the way court-ordered evictions were done.  That procedure is not legal now.  

    The law today requires the landlord to “safeguard” or protect any possessions left in the premises, for at least 30 days. The landlord can charge an additional “reasonable fee” for protecting your stuff.

    If the landlord puts your belongings out on the sidewalk, he’s not protecting your possessions.  If your stuff is damaged by rain or snow, or stolen by people walking by, the landlord has failed to protect it.  You may be able to sue the landlord for the damages to your possessions.   

    However, the landlord cannot prevent you from reclaiming your personal possessions.  The landlord cannot hold your stuff “hostage,” until you pay any back rent.  If you contact the landlord to get your things, he’s required to allow you to get them.  This doesn’t mean you can move back into the apartment.  It does mean you can reclaim your clothes and furniture and kitchen equipment and child toys and everything else.

    Exception.  If the total value of all the things left in the rental unit is less than $300, the landlord is not required to safeguard it.  The landlord can get rid of them immediately, without any legal liability.

    How Long Does The Landlord Have To Protect Tenant Possessions After Eviction?

    There are three possible answers:

    1. At least 30 days (unless the tenant reclaims the items, or gives written permission for the landlord to dispose of them); and
    2. At least 60 days if the tenant has notified the landlord that he or she is on active duty with the armed forces; or
    3. At least 60 days if the tenant (or anyone holding a “security interest” in the items) requests an additional 30 days and pays “the reasonable costs of storage and removal” in the meantime.

    If you don’t contact the landlord and make arrangements to get your stuff within the first 30 days (and pay the storage fee), then the landlord may be permitted to get rid of it.  At that point you really will be all out of luck and all out of options.

    What If My Lease Says I Have To Waive My Rights If I Violate The Lease?

    Federally-subsidized leases.  No lease for a federally subsidized unit can require you to “waive” (that is, give up) your rights in the court eviction process.

    This protection covers many different types of housing assistance rentals:

    • Live in public housing, or
    • Have a Section 8 Voucher, or
    • Live in “Rural Development” housing, or
    • Live in a “Low Income Housing Tax Credit (LIHTC) unit.

    If you benefit from any form of federal housing assistance, you cannot be required to waive your legal rights.  Any statement in your lease that says you give up or waive your rights is illegal and invalid.

    Some rights under West Virginia law cannot be waived, no matter what the lease says, even if there is no federal housing assistance involved.

    Warranty of Habitability.  The landlord’s obligation to make repairs to keep the premises in safe and decent condition cannot be waived.

    Protection Against Retaliation.  The landlord’s obligation NOT to retaliate against a tenant for asserting his or her legal rights cannot be waived.

    Anti-Discrimination Laws.  The laws prohibiting discrimination based on race, gender, religion, national origin, disability or familial status cannot be waived.  A landlord is always obligated to comply with these laws.

    Courts will look very carefully at any other type of waiver of legal rights.  The law is clear that a person must understand the rights they are waiving at the time they sign a waiver.  If they don’t understand what they are giving up, then a court may find the waiver is invalid.

    This is general legal information. For guidance about your situation, talk to a lawyer.