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Law Line - Landlord/Tenant Law

These messages only provide general information. If you have questions about your own situation, you should talk to a lawyer. For information about applying for Legal Aid, go to the Apply for Help page.

Do You Have to Pay Rent If You’ve Gotten An Eviction Notice?

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Suppose you’ve been paying your rent, but you get an eviction notice from your landlord for some other reason. Maybe he claims you caused damage to the property, or were disturbing other tenants. Do you have to pay rent while waiting for the eviction case to be decided?

The short answer is Yes. You are responsible for rent for all time that you live in the unit. Generally, you owe a whole month’s rent no matter how long or short you actually used the unit during that month.

If you do not pay the rent, then you can be evicted for non-payment of rent. The rest of the argument with the landlord won’t matter. The landlord won’t even have to prove whether the other grounds are true. If you don’t pay the rent, you’ll be evicted.M/p>

So if you want to fight the case and stay in the premises, you’ve got to pay the rent. If the landlord refuses to accept your rent payment, then take the rent money to court. If you win your case and the judge lets you stay, you can pay your rent at the court hearing.

For information about the Court Eviction Process, read this article.


A Tenant’s Right to “Pay-And-Dismiss” An Eviction Case For Non-Payment Of Rent.

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You’ve fallen behind on the rent, and the landlord filed an eviction case. But now you’ve got the money to catch everything up. Under West Virginia law you may have the right to pay everything that’s owed and have the case dismissed. We call this the right to “pay and dismiss.”

The Pay-and-Dismiss right applies only to non-payment of rent cases. If there are other reasons for eviction - like damage or disturbances - “Pay and Dismiss” won’t apply.

Understand that you’ll have to pay more than just the back rent. You must pay all the rent, plus any late fees under the lease, plus the court costs the landlord had to pay to file the case.

Third, you’ve got to pay in cash, money order or certified check. Personal checks, and promises, aren’t accepted by the courts.

If you do pay all the rent and late fees and court costs, you can have the case dismissed even if the landlord does not agree.

How do you do this?

First Step: contact the landlord before the court hearing. Offer to pay everything in cash, immediately, if he will drop the eviction. If he accepts, make the payment. Get a signed, dated receipt. Send a copy of the receipt to the Court, with a letter asking to have the case dismissed. Always keep your original copy of the receipt.

Second Step: If the landlord does not agree, go to the court hearing. Take the full combined amount with you. Also take a copy of a article on the Legal Aid web site on Pay and Dismiss in Eviction Cases. Tell the judge you have the full amount at the hearing, and you want to pay everything you owe and have the case dismissed. Show the article to the judge.

Finally, realize that some written leases may have language that eliminates the Pay-&-Dismiss option. The Legal Aid article on our web site on Pay and Dismiss in Eviction Cases has more information about this language in a lease. Read your lease very carefully.

A Tenant’s Right to Safe Housing - The Warranty of Habitability.

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West Virginia law is clear. A landlord is required to keep rental premises in safe and livable condition. If the heat goes out, the landlord has to fix it. If the hot water tank starts leaking, the landlord has to fix it. Once you notify the landlord of the problems, he’s got to make repairs in a reasonable time.

There are two exceptions. First, when the problem was caused by tenant damage or negligence. Second, when the tenant was already behind in rent at the time the heat went out, or the hot water tank started leaking.

So, what if the landlord is notified of the problem but does NOT fix it in a reasonable time? The law says there are three choices.

Choice Number 1: Move out, with no further liability to pay future rent. The rental agreement is over because the landlord failed to meet his legal obligations. The downside is that finding another place may not be easy. If you lived with the problems for a while you can sue the landlord asking for a refund of the rent you paid while you had problems.

Choice Number 2: Don’t move out, and sue the landlord. You can ask for a refund of some rent paid while the problem wasn’t fixed. And you can get some payment for the annoyance and inconvenience of the nightmare. The downside here is that court is complicated and slow, and meanwhile no repairs are being made.

Choice Number 3: Don’t move out, and withhold your rent until he gets the problem fixed. Don’t spend the rent money! If he tries to sue you for eviction for non-payment, you can show the court that he failed to make necessary repairs. The downside here is that you may find yourself in court. It’s complicated and slow, and meanwhile no repairs are being made.

For all three options, it’s important to keep evidence showing the problems with the rental. You can take photos or videos, keep inspection reports and rent receipts, or anything else that proves what you were dealing with.

Well, there are no perfect answers. Every option has a downside. What does common sense tell us? Most of the time, moving out is your best option. Give your landlord written notice that you are leaving because he failed to make repairs. Keep a copy. Find another place to rent that doesn’t have these problems.

Otherwise, you’re staying in a place with big problems that aren’t getting fixed. Your landlord is mad at you. Maybe he’s going to refuse to do repairs just to get back at you for complaining. If he does any repairs, they are probably going to be the shoddiest, cheapest he can possibly get away with. Is that how you want to live?

A Tenant’s Right to Withhold Rent for Serious Problems with Rental Property

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Suppose there are serious problems in your apartment. You didn’t cause them, but the landlord won’t fix them.

The law recognizes the right of a tenant to withhold rent when the living conditions become dangerous and the landlord won’t make repairs in a reasonable time.

But be careful! Withholding rent can be a dangerous step for a tenant. The landlord may file an eviction case after you withhold rent. Then you’ll have to prove to the court why you were justified in withholding your rent.

On the other hand, withholding rent can be a very effective step if you do it right.

When am I justified in withholding rent?

When there are VERY serious problems, that you or your family did not cause. In general, anything that threatens the health or safety of people living in the premises. For example, lack of heat or running water, or unsafe sanitary plumbing, or unsafe electrical conditions.

What would not justify withholding rent?

Minor or cosmetic problems do not justify withholding rent. Peeling paint or cracked linoleum. Things that are aggravating, but don’t make the place unlivable, do not justify withholding rent.

If my family or friends caused the problem, can I withhold rent?

No. The landlord is not required to fix things that you, your children, or your guests broke. Even if the damage was an accident, you cannot withhold rent in this situation.

What if I was behind on my rent when the problem came up. Can I withhold rent?

No. The landlord is not required to make repairs if you were behind in rent before the problem started.

How do I withhold rent “properly”?

  1. Give your landlord written notice of the problem. Keep a copy for court.
  2. Give your landlord reasonable time to fix the problem. “Reasonable time” depends on the seriousness of the problem.
  3. If your landlord still does not repair, send a letter stating that you will be withholding your rent because of the problem. Keep a copy of the letter.
  4. DO NOT SPEND YOUR RENT MONEY! If the dispute goes to court, the judge may require you to pay the withheld rent into court.

You mean that if I withhold rent, I might still be required to pay some of it to the landlord later?

Yes, that is possible

If the dispute goes to court a judge will decide a “reasonable amount” of rent for the unit as it existed with defects. The court might knock $100 a month off your rent; or cut it in half; or cut it all the way to zero. So don’t spend the withheld money on something else.

When the case begins, a judge may order you to pay the withheld rent “into escrow.” At the end of the case the judge will decide how much of the escrow rent goes to you, and how much goes to the landlord. If you can’t pay the rent into escrow at the start of the case, you could be evicted right away.

A Tenant’s Right to Security Deposits

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How long can the landlord take to refund your deposit, or explain why it’s not being refunded?

No matter what your lease says, there are two maximum time limits:

  • No more than 30 days for public or “subsidized” housing;
  • No more than 60 days if you are not in subsidized housing.

Your lease may have a SHORTER time limit. If it does, the landlord has to follow the lease.

What can the landlord take out of your deposit?

Damage - Yes. Broken windows or blinds. Holes in the walls. Your child’s wall art. Cigarette burns. It doesn’t matter whether the damages were just accidents, or done by your guests instead of your family.

Normal wear and tear - No. An old carpet that’s worn out. Floor finish that’s faded or worn. Dirty or dingy paint on the walls. Those are “normal wear and tear.” You should not be charged for them.

Reasonable Cleaning - Yes. Suppose you left a yucky fridge, or a dirty oven, or a gross toilet, or trash after packing up. The landlord can charge a reasonable cost for cleaning up your mess.

Damage Caused by Storm, Fire or Vandalism. You can’t be charged for things out of your control, as long as you took reasonable steps to prevent them. If you left the doors standing open and the rain blew in, you’re responsible. If the roof leaked while it was raining, you’re not responsible.

Best Steps to Get Your Security Deposit Back

  1. Give the right amount of advance notice to the landlord before you move.
  2. Clean the premises thoroughly. Remove all of your trash.
  3. Ask the landlord to do a move-out inspection. If the landlord won't do this, take pictures. Have witnesses who observe the clean conditions.
  4. Deliver all the keys to your landlord. Don’t just leave them in the apartment, unless your landlord says that's okay.
  5. Send a signed, dated letter asking for the deposit. Tell your landlord the address where you want the refund sent. Keep a copy of your letter.

What If My Landlord Doesn't Send a Refund or an Explanation by the Deadline?

First, contact your landlord, by written letter sent "certified mail, return receipt requested." This way you can prove to a court later that you tried to solve the problem before going to court.

Your letter to the landlord should include the following information:

  • Your name;
  • The address where you rented;
  • The date that you notified him you would be leaving;
  • The date that you actually removed all your stuff; and
  • The address where the landlord can send you the deposit refund.

You may want to give your landlord a specific date to respond or else you’ll go to court.

If that doesn’t work you may need to go to court. Talk to an attorney about taking your case, or file your own case against the landlord in Magistrate Court.

Keep one thing in mind: If you file a lawsuit, you make it easy for your landlord to claim everything he could possibly charge your for. A lot of little things, like nail holes in the wall, add up fast. Think carefully about whether you want to file a lawsuit and risk owing money instead of getting money back.

For more information on security deposits, read this article.

How Much Time Do You Get When the Landlord Sends Notice to End a “Month-to-Month” Tenancy

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Suppose you’re in a month-to-month rental. But now the landlord wants you out so he can rent to his Cousin Vinnie. You haven’t done anything wrong, but he wants you out. How much time do you get?

Before we answer that, let’s explain a few other things.

What is a month-to-month tenancy?

It’s when you rent your place “by the month.” Not for a year, or six months, or any fixed time. It’s just “by the month.”

Does a month-to-month tenancy have to be in writing?

No. Month-to-month rentals can be either verbal or written.

How does the landlord end a month-to-month tenancy?

The landlord must send a “proper advance notice,” in writing, to the other side. When the notice time runs out, the rental is over and you have to leave.

So, how much time is “proper advance notice”?

There are two pieces to the answer.

Unless your rent agreement says something different, advance notice must run until the end of next month’s rent.

The first part of the answer is that the landlord has to follow whatever your rental agreement said. It may be shorter or longer than “the end of next month’s rent.” If you have a written agreement, read it carefully.

The second part is that if your agreement does not say something different, then the law requires notice to run until the end of NEXT month’s rent.

Those are not the actual words the law uses, and they aren’t the actual words the landlord has to use. But it’s the easiest way to understand the requirement.

Notice from the landlord must give you at least until the end of next month’s rent. Any notice that runs out sooner than “the end of next month’s rent,” is not valid.

Is it valid if the landlord just verbally tells me when I’m going to have to leave?

No, unless your agreement says verbal notice is acceptable. Otherwise, written notice is required.

Does the “notice to the end of next month’s rent” rule apply if I have broken the lease?

Most of the time, no.

Your agreement may say something different. If so, that’s what the landlord has to do. Read your lease carefully.

Otherwise, if you haven’t paid your rent, or you damaged the unit, or you’ve been causing disturbances, the law itself does not require the landlord to send a separate notice to evict.

What if I’m the one who wants to end the rental and move out. How much notice do I have to give the landlord to end a month-to-month rental?

Exactly the same rules apply.

  1. If your agreement states the amount of advance notification required, you have to follow the agreement.
  2. If the agreement does state how much advance notice is required, then the law requires you to give notice through the end of next month’s rent.
For more information on notice in a month to month tenancy, read this article.

Can I have an assistance animal in rental housing?

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You have a disability. You have an animal who helps you manage your disability. Can a landlord refuse to rent to you because of the assistance animal?

The answer depends on whether your animal meets the Fair Housing Act legal definition of an “Assistance Animal.” There are three parts to the Fair Housing Act definition:

  • First, you must have a disability.
  • Second, the Assistance Animal must be needed for you to “use and enjoy a dwelling.”
  • Third, the Assistance Animal must either perform specific work or tasks, or be an “emotional support animal” that reduces the effects of your disability.

Can The Landlord Require Me To Present Proof Of My Disability?

Not if your disability is obvious or apparent. But some disabilities are not obvious. In that case the landlord CAN require verification. This may be proof that you have a disability. Or proof of the disability-related service the animal provides.

Is Specific Training Required For An Assistance Animal Under the Fair Housing Act?

No. The animal does not have to be specially trained.

Can The Landlord Prohibit Certain Breeds or Sizes of Animals From Being an Assistance Animal?

No. The landlord cannot impose general limitations, like “no pit bulls” or “no animals larger than 50 pounds.” The landlord cannot deny an entire breed because he thinks the breed is dangerous. The landlord can deny a particular animal if that animal has a history of attacking or biting.

Are There Any Other Reasons Why The Landlord Can Refuse An Assistance Animal?

Substantial physical damage to property. Again, this cannot be based on the breed or type or size of animal. This must be a judgment based on the behavior of the actual animal.

Does The Fair Housing Act Give Me The Right To Take My Assistance Animal To A Restaurant Or Movie Theater?

No. The Fair Housing Act applies only to “housing.”

The Americans with Disabilities Act or ADA applies to public places like businesses, restaurants, and theaters. But the ADA protection for animals to enter a public place is extremely limited.

  • First, the Assistance Animal must be a dog.
  • Second, the dog must be individually trained for its role.
  • Third, the dog must perform work or tasks. “Emotional support” dogs are not covered.

If your Assistance Animal meets these conditions, then the ADA covers your animal.

For more information on assistance animals in rental housing, read this article.

Bed Bugs in Rental Housing

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You've discovered what you think might be bed bugs in your rented apartment or house. How did this happen? What should you do?

First, let’s talk about what bed bugs look like and where they can live. Bed bugs are small, oval flat, reddish-brown insects that are about the size of an apple seed.

Bed bugs live in or on our belongings - clothes, linens, furniture. But, bed bugs do not live ON PEOPLE, (or in your skin). The US Centers for Disease Control say that bed bugs do not carry disease.

If you find bed bugs in your rental property, the first thing you should do is notify your landlord. Once the landlord knows there are bed bugs in the building, the landlord is obligated to take "reasonable steps" to get rid of the bed bugs.

Buying a can of bug spray at the grocery store is not a "reasonable step." The landlord should be consulting professional exterminators for guidance on appropriate methods of treating bed bug infestations.

If the landlord does not take quick steps to get rid of the bed bugs, contact your local building or housing code enforcement office. You should also report the problem to your local health department.

If the landlord has failed to take reasonable steps to treat the bed bugs, you may be able to move out with no further obligation under your lease or rental agreement. [Be careful not to carry the little guys with you to the next place!]

In some situations, you may be able to sue the landlord for money damages. But you must prove that:

  1. you met all tenant obligations to protect against bringing bed bugs into the building; AND
  2. the landlord failed to take reasonable steps to treat the bed bugs, AND
  3. the damage you suffered happened after the landlord failed to take reasonable
For more information on bed bugs in rental housing, read this article.