Evicting a tenant in West Virginia can take around 1 to 3 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.
Grounds for an Eviction in West Virginia
In West Virginia, a landlord cannot legally evict a tenant without cause. Legal grounds to evict include:
- Not paying rent on time
- Staying after the lease ends
- Violating lease terms
Depending on the grounds for eviction, the landlord must give proper notice and provide the tenant a chance to cure the violation.
| Grounds | Notice Period | Curable? |
|---|---|---|
| Nonpayment of Rent | Immediate | No |
| End of Lease or No Lease | 30 Days | No |
| Lease Violation | Immediate | No |
Nonpayment of Rent
In West Virginia, a landlord can evict a tenant for not paying rent on time. No prior notice is needed and the landlord may immediately file an eviction action with the court. The tenant does not have the option to fix the issue and must vacate the premises.
Unless the lease states otherwise, rent is due at the beginning of each month and is considered late in West Virginia the day immediately after its due date. West Virginia landlords are not required to give tenants a rent payment grace period.
If rent is due on December 1st, it will be considered late starting on December 2nd, unless the lease specifically states there is a longer grace period.
Once rent is considered late, the landlord can immediately file an eviction action with the court.
End of Lease or No Lease
In West Virginia, a landlord can evict a tenant who does not have a lease (“tenant at will”) or has a lease that has terminated and continues to remain on the premises (“holdover tenant”). To do so, they must first terminate the tenancy by giving a proper 30 days’ notice to move out.
Once the tenancy ends, if the tenant remains on the property, the landlord can move forward and file an eviction lawsuit.
Lease Violations
In West Virginia, a landlord can evict a tenant for violating the terms of their lease or not upholding their responsibilities under West Virginia landlord-tenant law. No prior notice is needed and the landlord may immediately file an eviction action with the court.
Examples of lease violations:
- Having an unauthorized pet, guest or vehicle
- Parking in an unauthorized area
- Not maintaining a certain level of cleanliness
Illegal Evictions in West Virginia
In West Virginia, a landlord can evict a tenant if they commit an illegal activity. If found liable, the landlord could be required to pay the tenant an amount that the trial court sees fit.
“Self-Help” Evictions
A landlord is not allowed to forcibly remove a tenant by:
- Changing the locks
- Shutting off utilities
- Removing tenant belongings
Unlike most states, West Virginia does not have a state statute outlining specific types of self-help evictions A tenant can only be legally removed with a court order obtained through the formal eviction process.
Retaliatory Evictions
It is illegal for a landlord to evict a tenant in response to exercising a legally protected right. While West Virginia law doesn’t outline specific legally protected rights, most states recognize the following as retaliatory actions:
- Complaining about habitability issues to the landlord or any authority tasked to enforce the law
- Pursuing a legal right to remedy habitability issues
In West Virginia, all evictions follow the same process:
- Landlord serves tenant written notice of violations
- Landlord files complaint with court for unresolved issues
- Court holds hearing and issues judgment
- Writ of possession is issued
- Possession of property is returned to landlord
Step 1: Landlord Serves Notice to Tenant
West Virginia landlords can begin the eviction process by serving the tenant with written notice. A landlord may deliver an eviction notice using any of these methods:
- Hand delivery to the tenant
- Hand delivery to a member of the tenant’s family on the premises, at least 16 years old, who has had the contents of the notice explained to them
- Only if the premises are vacant: Posting at a conspicuous place on the premises
Landlords should always keep the original signed notice and declaration of service as proof of proper service if the case proceeds to court.
30-Day Notice To Quit
For a tenant with no lease or a month-to-month lease in West Virginia, the landlord must serve them a 30-Day Notice To Quit to end the tenancy. This eviction notice allows the tenant 30 days to move out.
For tenants that don’t pay monthly, the amount of notice differs:
| Rent Payment Frequency | Notice Amount |
|---|---|
| Week-to-Week | 7 Days |
| Month-to-Month | 30 Days |
| Year-to-Year | 90 Days |
If the tenant remains on the property after the notice period expires, the landlord may proceed with the eviction process.
No Notice Required
In West Virginia, if a tenant is late on paying rent (full or partial) or if a tenant commits a violation of the terms of their lease or does not uphold their legal responsibilities as a tenant, no prior notice is required. The landlord may immediately proceed with filing an eviction action with the court.
Step 2: Landlord Files Lawsuit with Court
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 a family member of the tenant, at least age 16, who has been advised of the contents of the summons
- Posting to a prominent location on the premises (only if the premises are vacant)
- 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.
Step 3: Court Holds Hearing and Issues Judgment
The eviction hearing will be scheduled for 5-10 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 5 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.
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.
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.
West Virginia Eviction Process Timeline
In West Virginia, an eviction can be completed in 1 to 3 months but can take longer depending on the reason for eviction, whether the eviction is contested, which days courts are (or aren’t) in session and other various possible delays.
Below are the parts of the West Virginia eviction process outside the control of landlords for cases that go uncontested.
| Step | Estimated Time |
|---|---|
| Initial Notice Period | 30-90 Calendar Days |
| Court Issuing/Serving Summons | 10-120 Calendar Days |
| Tenant Response Period | 5 Business Days |
| Court Ruling | 5-10Business Days |
| Court Serving Writ of Possession | ~1-21 Business Days |
| Final Notice Period | 1-3 Calendar Days |
Flowchart of West Virginia Eviction Process
West Virginia Eviction Court Fees
The cost of an eviction in Washington D.C. for all filing, court, and service fees can vary based on the court’s venue and service fees. For cases filed in Magistrate Court, the average cost is $80. For cases filed in Circuit Court, the average cost is $250.
| Fee | Magistrate | Circuit |
| Initial Court Filing | $30+ | $200 |
| Summons Service | ~$25 | ~$25 |
| Writ of Possession Service | $25 | $25 |
| Notice of Appeal Filing (Optional) | $200 | $200 |
Sources
- 1 WV Code §37-6-19 (2019)
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any rent…being in arrear, or…the breach of any covenant or condition, may serve a declaration in ejectment on the tenant in possession…or may commence an action of unlawful detainer…and upon proof to the court…that the rent claimed was due…or that the covenant or condition was broken before the service of the declaration in ejectment, or the commencement of the action of unlawful detainer…shall recover judgment.
- 2 WV Code §37-6-23 (2019)
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If any party having a right or claim to such lands shall, at any time before the trial in such action of ejectment or of unlawful detainer, pay or tender to the party entitled to such rent, or to his attorney in the cause, or pay into court, all the rents and arrears, with interest and costs, all further proceedings in the action shall cease.
- 3 WV Code §37-6-5 (2019)
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A tenancy from year to year may be terminated by either party giving notice in writing to the other, at least three months prior to the end of any year, of his intention to terminate the same…A periodic tenancy, in which the period is less than one year, may be terminated by like notice, or by notice for one full period before the end of any period.
- 4 WV Code §55-3A-1 (2021)
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(a) A person desiring to remove a tenant from residential rental property may apply for such relief to the magistrate court or the circuit court of the county in which such property is located,
- 5 Imperial Colliery Co. v. Fout, 373 S.E.2d 489 (1988)
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… retaliation may be asserted as a defense to a summary eviction proceeding under W.Va.Code, 55-3A-1, et seq., if the landlord’s conduct is in retaliation for the tenant’s exercise of a right incidental to the tenancy.
- 6 WV Rules of Civil Proc, Rule 4 (2019)
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(c)(2) Service may be effected by any person who is not a party and who is at least 18 years of age. (3) At the request of the plaintiff…the clerk shall: (A)Deliver the summons and complaint to the sheriff for service as directed by the plaintiff…
- 7 WV Rules of Civil Proc, Rule 4 (2019)
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(d)(1)(A) Delivering a copy of the summons and complaint to the individual personally; or (B)Delivering a copy of the summons and complaint at the individual’s dwelling place or usual place of abode to a member of the individual’s family who is above the age of sixteen (16) years and by advising such person of the purport of the summons and complaint…
- 8 WV Code §55-3A-1 (2019)
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(c) Immediately upon being apprised of the time and place for hearing the petitioner shall cause a notice of the same to be served upon the tenant in accordance with the provisions of Rule 4 of the West Virginia rules of civil procedure or by certified mail, return receipt requested.
- 9 WV Rules of Civil Proc, Rule 4 (2019)
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(e)(1)(C) That the plaintiff has used due diligence to ascertain the residence or whereabouts of the defendant, without effect; or (D)That process, delivered to the sheriff of the county in which the defendant resides or is, has twice been delivered to such officer and has been returned without being executed…then clerk shall enter an order of publication against such named and unknown defendants…
- 10 WV Rules of Civil Proc, Rule 4 (2019)
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(k) If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice…
- 11 WV Code §55-3A-1 (2019)
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(b) Previous to the filing of the petition the person shall request from the court the time and place at which the petitioner shall be heard. The court shall fix a time for such hearing, which time shall not be less than five nor more than ten judicial days following such request.
- 12 WV Code §55-3A-1 (2019)
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(c)…Such notice shall inform the tenant that any defense to the petition must be submitted in writing to the petitioner within five days of the receipt by the tenant of the notice…
- 13 W. Va. Code § 37-6-19
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Any person who shall have the right of reentry into the lands by reason of any rent issuing thereout being in arrear, or by reason of the breach of any covenant or condition, may serve a declaration in ejectment on the tenant in possession, where there shall be such tenant, or, if the possession be vacant, by affixing the declaration upon the chief door of any messuage, or at any other conspicuous place on the premises, which service shall be in lieu of a demand and reentry; or may commence an action of unlawful detainer, and obtain service either in person or by publication, as in other such actions, which service shall be in lieu of a demand and reentry.
Source Link - 14 W.Va. R. Civ. P. 4(d)(1)(A) & (B)
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Source Link
Service upon an individual other than an infant, incompetent person, or convict may be made by:
(A) Delivering a copy of the summons and complaint to the individual personally; or (B) Delivering a copy of the summons and complaint at the individual’s dwelling place or usual place of abode to a member of the individual’s family who is above the age of sixteen (16) years and by advising such person of the purport of the summons and complaint
