Timeline. Evicting a tenant in West Virginia can take around one to three months, depending on the eviction type and whether a jury trial or removal to circuit court is requested. If a writ of possession is required, the process could take even longer (read more).
Introduction. In Virginia, there are rules and procedures landlords must follow for a lawful eviction process. Below are the individual steps of the eviction process in West Virginia.
Step 1: Notice is Posted
Landlords in West Virginia can begin the eviction process for several reasons, including:
- Violation of Lease Terms / Rental Agreement – Written notice is not required for any type of lease violation, including nonpayment of rent and illegal activity, which are considered lease violations in West Virginia.
- No Lease / End of Lease Term (Tenant at Will) – If there is no lease or the term of the lease has ended, the landlord is required to give notice prior to proceeding with an eviction.
- Retaliatory Evictions. It is illegal for a landlord to evict a tenant for complaining to the landlord or to the appropriate local or government agency regarding the property.
- Evicting a Squatter. If the individual occupying the property did not have the permission of the landlord when initially moving in, does not have a lease (or verbal agreement) and has no history of paying rent, then a landlord/tenant relationship may not be established. As a result, the normal eviction process may not be applicable (read more).
- Service of Notice. Notice may be served by the landlord. Notice to terminate the tenancy shall be delivered in person to the tenant. For service of notice of unpaid rent, the landlord may post the notice in a conspicuous place on the property (such as the front door).
Each possible ground for eviction has its own rules for how the process starts.
Eviction Process for Violation of Lease Terms / Rental Agreement
When a tenant has violated the terms of a rental or lease agreement for any reason (including nonpayment of rent, illegal activity, and any other breach), a West Virginia landlord may give the tenant written notice stating what parts of the lease were violated, and give the tenant time to correct the issue if the landlord so chooses.
However, West Virginia law does not require the landlord to give advanced notice prior to an eviction for violating the lease or nonpayment of rent, nor does it require landlords to give tenants the option to correct or “cure” the issue.
If the reason for the eviction is nonpayment of rent, and the tenant pays past-due rent (and any associated costs) in full prior to the eviction hearing, the eviction proceedings will be stopped.
The landlord may proceed directly to Step 2 below without giving prior written notice of their intention to evict the tenants.
Eviction Process for No Lease / End of Lease
In the state of West Virginia, if tenants “holdover,” or stay in the rental unit after the rental term has expired, then the landlord must give tenants notice before evicting them. This can include tenants without a written lease and week-to-week and month-to-month tenants.
Often this type of eviction applies to tenants who are at the end of their lease and the landlord doesn’t want to renew.
The amount of time required in the notice depends on the type of tenancy.
- Week-to-Week – If rent is paid on a week-to-week basis, a landlord must provide the tenant with a 7-Day Notice to Quit .
- Month-to-Month – If rent is paid on a month-to-month basis, a landlord must provide the tenant with a 30-Day Notice to Quit .
- Year-to-Year – If the tenancy is from year-to-year, a landlord must provide the tenant with a 90-Day Notice to Quit .
If the tenant remains on the property after the notice period expires, the landlord may proceed with the eviction process.
Step 2: Complaint is Filed and Served
As the next step in the eviction process, West Virginia landlords must file a complaint in the appropriate magistrate or circuit court. Fees are the same statewide, and vary based on which court the case is filed in.
In Magistrate Court, filing fees range from $30-$50, depending on the amount of back rent or other damages owed. In Circuit Court, the filing fee is $200 regardless of how much is owed.
Generally, the summons and complaint are the only notice a tenant will receive alerting them of the landlord’s eviction plans.
The summons must be served on the tenant before the hearing, by anyone over the age of 18 who isn’t part of the case via one of the following methods:
- Giving a copy to the tenant in person;
- Leaving a copy at the rental unit with the tenant’s family member;
- Mailing a copy via certified mail, with a return receipt; or
- Publishing a copy of the summons and complaint (only if all other methods fail).
If the summons is not served on the tenant within 120 days, the eviction action may be dismissed, and the landlord will need to begin the process all over again.
Up to 10 days before the hearing; however, if the landlord cannot show proof the tenant received a copy of the summons and complaint within 120 days, the hearing will be dismissed.
Step 3: Court Hearing and Judgment
The eviction hearing will be scheduled for 5-10 judicial days after the date the landlord requests a hearing.
If the tenant chooses to file a response to the complaint, it must be done within five days of receiving the summons; however, the tenant is not required to file an answer to attend the hearing.
If the case is heard in Magistrate Court, either the landlord or tenant could request that the case be “removed” to the Circuit Court, if the amount of past-due rent or other damages is over a set dollar amount. This could add another 7-10 days to the process.
If the judicial officer rules in favor of the landlord, the judicial officer will choose when a tenant has to move out of a rental unit. This could be immediately after the hearing or even a few weeks later.
Appeals. Tenants may file an appeal if the court rules in the landlord’s favor; however, if the lease term or rent period has already expired, the tenant may not be allowed to remain in the rental unit during the appeal. Even if the appeals court rules in the tenant’s favor, the tenant may not be allowed to move back into the rental unit.
If the tenant doesn’t move out by the court-ordered date, a landlord may need to return to court to obtain a writ of possession, depending on the type of eviction case that was filed (which is not the same as the reason the tenant is being evicted).
5-10 business days after the request for hearing is made. If the landlord or tenant requests a jury trial or asks to remove the case to circuit court, this will add more time to the process.
Step 4: Writ of Possession Is Issued
Depending on which type of hearing it is (i.e. unlawful entry/detainer, ejectment, or removal of tenant), the sheriff may already be scheduled to appear at the final day of the court-ordered deadline to remove the tenant. In those instances, no writ of possession is required.
However, in other cases, if the tenant fails to move out by the end of the court-ordered deadline, the landlord must return to court and request a separate writ of possession to forcibly remove the tenant.
A few hours to a few weeks, depending on whether a writ of possession is required and how quickly the landlord requests the writ from the court once the original move-out deadline has passed.
Step 5: Possession of Property is Returned
If the tenant doesn’t move out by the judicial officer’s deadline, the sheriff will return to forcibly remove the tenant.
Depending on the type of eviction case (i.e. unlawful entry/detainer, ejectment, or removal of tenant), this could happen on the final day of the court-ordered deadline, the day after the deadline, or only after a landlord has returned to the court and requested a writ of possession.
If a writ of possession is required, this will add more time to the process.
A few hours to a few days. If the tenant doesn’t move out at the end of the original court-ordered deadline, the sheriff could return that day or several days or weeks later, depending on the type of eviction case it is and when the landlord requests a writ of possession (if required).
West Virginia Eviction Process Timeline
Below is a summary of the aspects outside of the landlord’s control that dictate the amount of time it takes to evict a tenant in West Virginia. These estimates can vary greatly, and some time periods may not include weekends or legal holidays.
- Initial Notice Period – 30-90 days, but only required for no lease or end of lease evictions.
- Issuance/Service of Summons and Complaint – Within 10 days before the hearing; but if not served within 120 days, the eviction case may be dismissed.
- Court Hearing and Ruling on the Eviction – 5-10 business days after the request for hearing is made.
- Issuance of Writ of Possession – A few hours to a few weeks, depending on how much time the judicial officer chooses to give the tenant to move out.
- Return of Possession – A few hours to a few days, depending on whether the landlord is required to obtain a writ of possession.
Tenant’s Defenses for Eviction. There are several legal reasons why an eviction lawsuit may be dismissed or delayed. Below are some common defenses:
- The tenant withheld rent because the landlord did not fix a health or safety violation (i.e. unsafe electrical system, backed up plumbing, etc.) after notice was given.
- The landlord retaliates against the tenant for complaining to a government agency.
- The landlord discriminates against the tenant based on race, religion, gender, disability, national origin, etc.
- The landlord evicts the tenant based on false information.
Tenant’s Abandoned Personal Property. Once the landlord has regained possession of the property, the landlord must store the tenant’s personal property in a safe location if the property’s value is worth more than $300. The landlord shall provide the tenant with a written notice and it must be posted in a conspicuous place on the property and sent by first-class, certified mail.
If the property is not claimed within 30 days after the notice was mailed, the landlord may dispose of the property. If the tenant is an active-duty member of the Armed Forces, the landlord must give the tenant 60 days to claim the property. If the tenant informs the landlord that they intend to claim the property by written notice and the tenant holds a security interest in the abandoned personal property, the landlord must keep the property for an additional 30 days.
Flowchart of West Virginia Eviction Process
For additional questions about the eviction process in West Virginia, please refer to the official legislation, West Virginia Code §55-3A-1 through 55-3A-3, §37-6-1 through 37-6-30 , and West Virginia Rules of Civil Procedure, Rule 4, for more information.