What is the right to “Pay and Dismiss”?
A LANDLORD IS ENTITLED TO BE PAID THE RENT. If you don’t pay the rent, you’ll be evicted. But what if, after you get sued for eviction, you come up with the money and you want to stay. Is it too late? Or is there still a way to save the day?
Most of the time there IS a way to solve the problem. But you’ve got to have the money to pay up. You’ve got to the pay the rent, PLUS any late fees or interest charged in the lease, PLUS all court costs. If you can do that, you can “Pay and Dismiss.” The landlord gets everything he’s entitled to receive. The eviction case gets dismissed. You get to stay.
Where Does The Law Say There Is A Right to “Pay and Dismiss”?
West Virginia law does not use the specific words “pay and dismiss.” That’s our simple explanation for the right that does exist under West Virginia law.
Here is what West Virginia Code 37-6-23 does say. If a tenant, before a trial begins, “pays to the owed party, the attorney or to the court, all rents and arrears owed including interests and costs, all further proceedings shall end.”
The word “shall” is important. That means it isn’t up the judge or magistrate to decide whether you get to do this. When you pay, in full, then “all further proceedings shall end.”
This means that when a tenant is sued for eviction for non-payment of rent, he can have the case dismissed if by paying all back rent, late fees, and court costs.
NOTE: The tenant’s right to “pay and dismiss” applies ONLY when rent arrearage is the SOLE basis for eviction. If the landlord claims other reasons for eviction (such as damage or disturbance), then simply paying the rent and costs will not end the eviction proceeding.
Does the right to “pay and dismiss” an eviction proceeding for rent arrearage always apply?
Not necessarily. The West Virginia Supreme Court case of Kincaid v. Patterson (129 W.V. 234, 244-245; 39 S.E. 2d 920, 926-927 (1946)) says that a landlord may put language in the lease which over-rides the “pay and dismiss” statute.
On the other hand, if there is no language like this in your agreement, then the “pay and dismiss” right applies. What’s important to remember is that the “pay and dismiss” right applies UNLESS there is something in your rental agreement that says otherwise.
How does the “pay and dismiss” right work?
In a “pay and dismiss” proceeding, the tenant must pay the total amount of rent, PLUS late fees, PLUS any interest provided in the lease agreement, PLUS court costs. [Contact the court clerk’s office to find out how much the landlord had to pay for court fees, and add that to the amount of back rent, late fees, etc.]
Understand that paying just the rent alone isn’t enough. By this late stage of the process, you’ve got to pay the rent PLUS any late fees or interest PLUS court costs.
You should contact the landlord before the court hearing. Offer to pay immediately the full amount of rent, fees, and court costs, in exchange for landlord’s agreement to drop the eviction. If the landlord accepts, the payment must immediate, in cash, certified check or money order. Have the landlord sign something showing the payment was made and the agreement that the case will be dismissed.
Go to the scheduled court hearing. Tell the judge that you and the landlord have already agreed upon a “Pay and Dismiss.” Show your receipt and agreement.
What If The Landlord Does Not Agree To Accept The Payment and Dismiss The Case?
This happens sometimes. It’s not the end of the road.
Go to the court hearing. Take the money (or certified check, or money order) with you. Tell the judge that you contacted the landlord ahead of time and offered full payment of rent, fees and costs.
Then tell the judge you have the money with you. Tell the judge you want to make an immediate payment, right there in court, of all the rent, fees and costs that are owed to the landlord.
Don’t argue about whether you owe the rent or not. That’s not why you’re there. Don’t make excuses about why the rent wasn’t paid. That’s not why you’re there.
You are there to pay everything the landlord is entitled to receive. Ask the judge to dismiss the case because you are offering immediate full payment. Give the judge a printed copy of this information, in case the judge has any questions about “Pay and Dismiss.”
Summary Points: Right to “Pay and Dismiss”
- WV Code 37-6-23 says that if the tenant pays “all rents and arrears owed including interest and costs” then further proceedings “shall” be dismissed.
- This right applies ONLY if non-payment of rent is the sole and only reason given by the landlord for eviction.
- If the lease has special language which over-rides the right to Pay & Dismiss, then this statute will not apply.
- To exercise this right the tenant must pay the full amount of all back rent, PLUS late fees, PLUS court costs.
- A personal check or a “promise to pay” is not adequate. The tenant must have cash, money order, or certified check, at the time of offering full payment.