Eviction Notice and Petition for Summary Relief Package - West Virginia

EVICTION NOTICE AND PETITION FOR SUMMARY RELIEF PACKAGE — WEST VIRGINIA

TABLE OF CONTENTS

1. Pre-Filing Compliance Checklist
2. Document A — Optional Lease-Required Notice to Pay or Quit
3. Document B — Statutory Notice to Quit Periodic Tenancy
4. Document C — Affidavit / Proof of Service of Notice
5. Document D — Verified Petition for Summary Relief for Wrongful Occupation
6. Document E — Notice of Hearing / Summons
7. Document F — Proposed Order of Possession and Money Judgment
8. West Virginia Practice Notes
9. Sources and References

1. PRE-FILING COMPLIANCE CHECKLIST

☐ Confirm the property is RESIDENTIAL (commercial properties use § 37-6-19 et seq.).
☐ Review LEASE for any contractual notice requirement (e.g., "10-day cure"). If the lease requires notice, serve it before filing.
☐ Compile rent ledger; account for any partial payments, security deposit, and assistance.
☐ For NO-CAUSE termination of periodic tenancy, serve § 37-6-5 notice (one full period for a tenancy under one year; three months for a year-to-year tenancy, unless the agreement provides otherwise).
☐ Identify ground(s) for wrongful occupation: rent arrears, breach of warranty / covenant, or willful damage.
☐ Prepare VERIFIED Petition with case-specific facts.
☐ Determine forum: Magistrate Court (civil claims up to $20,000 and wrongful occupation when title is not disputed) or Circuit Court.
☐ Calendar a hearing date 5–10 judicial days from filing.
☐ Arrange for service through sheriff/constable or certified mail.
☐ Confirm no protected status (SCRA, federally subsidized housing).
☐ Anticipate tenant's "pay-and-stay" right (§ 37-6-23) up to time of trial.

2. DOCUMENT A — OPTIONAL LEASE-REQUIRED NOTICE TO PAY OR QUIT

(Used only if the lease requires notice; otherwise OMIT.)

TO: [TENANT FULL NAME]
PREMISES: [STREET ADDRESS, UNIT NUMBER]
[CITY], WEST VIRGINIA [ZIP CODE]

FROM: [LANDLORD / AGENT NAME]
[LANDLORD ADDRESS]
Telephone: [____________]

DATE OF NOTICE: [__/__/____]

YOU ARE NOTIFIED that rent is past due and unpaid for the residential dwelling unit located at the address above. This Notice is provided pursuant to Section [____] of the Lease Agreement dated [__/__/____], which requires written notice and an opportunity to cure before termination.

Itemization of Amounts Due

You must pay the total amount due, in good funds, on or before [__/__/____] ([____] days from service of this Notice, as required by the Lease), or vacate and surrender the premises.

If you fail to cure or vacate, the Landlord will file a Petition for Summary Relief for Wrongful Occupation under W. Va. Code § 55-3A-1.

Statutory Pay-and-Stay Right (§ 37-6-23)

Even if a petition is filed, you may stop proceedings by paying all rent owed, interest, and court costs before the trial date.

Landlord / Authorized Agent: [________________________________]
Signature: _________________________________
Date: [__/__/____]

3. DOCUMENT B — STATUTORY NOTICE TO QUIT PERIODIC TENANCY

(W. Va. Code § 37-6-5)

(Use ONLY for termination of a periodic tenancy without cause.)

TO: [TENANT FULL NAME]
PREMISES: [________________________________]
DATE OF NOTICE: [__/__/____]

YOU ARE NOTIFIED that, pursuant to W. Va. Code § 37-6-5, the Landlord terminates your tenancy at the address above effective [__/__/____].

Type of Tenancy and Notice Period

☐ Month-to-Month — one full monthly tenancy period before the end of a period
☐ Week-to-Week — one full weekly tenancy period before the end of a period
☐ Year-to-Year — three months before the end of the tenancy year

Current tenancy period: [START DATE] through [END DATE]. Special agreement fixing another notice rule, if any: [LEASE SECTION AND RULE / NONE].

Demand for Possession

You are directed to vacate the premises on or before the termination date stated above and deliver up peaceable possession. If you fail to vacate, the Landlord may seek relief under W. Va. Code § 55-3A-1 only if the facts also establish a listed wrongful-occupation ground, such as a documented breach of a leasehold covenant to surrender possession. Termination and continued occupancy alone are not listed grounds in § 55-3A-1(a)(3).

Landlord / Authorized Agent: [________________________________]
Signature: _________________________________
Date: [__/__/____]

4. DOCUMENT C — AFFIDAVIT / PROOF OF SERVICE OF NOTICE

STATE OF WEST VIRGINIA )
) ss.
COUNTY OF [_________] )

I, [NAME OF SERVER], being first duly sworn, depose and state:

1. I am over the age of eighteen (18) and not a party to this matter.

2. On [__/__/____], at approximately [____] [a.m. / p.m.], I served the foregoing [check one]:

☐ Lease-Required Notice to Pay or Quit
☐ Notice to Quit Periodic Tenancy (§ 37-6-5)

upon [TENANT NAME], with respect to the premises located at [________________________________], in the following manner:

☐ Personal delivery to the named tenant.
☐ Substituted delivery by leaving with a person of suitable age (18+) at the dwelling unit, namely [NAME / RELATIONSHIP].
☐ Certified mail (return receipt no. [____________]) and First-class mail, both mailed on [__/__/____].
☐ Posting at a conspicuous place on the premises AND mailing by first-class mail.

Server's Name: [________________________________]
Capacity: ☐ Landlord ☐ Agent ☐ Process Server ☐ Other [______]
Signature: _________________________________

Subscribed and sworn before me this [____] day of [____________], 20[__].

_________________________________
Notary Public — State of West Virginia
My commission expires: [__/__/____]

5. DOCUMENT D — VERIFIED PETITION FOR SUMMARY RELIEF FOR WRONGFUL OCCUPATION

IN THE [MAGISTRATE / CIRCUIT] COURT OF [____________] COUNTY, WEST VIRGINIA

Civil Action No. [________________________________]

VERIFIED PETITION FOR SUMMARY RELIEF FOR WRONGFUL OCCUPATION OF RESIDENTIAL RENTAL PROPERTY

(W. Va. Code § 55-3A-1)

Petitioner, by and through [pro se / undersigned counsel], for cause of action against Respondent(s), states as follows:

1. Ownership and Standing. Petitioner is the [☐ owner ☐ authorized agent of the owner] of the residential rental property located at:

[STREET ADDRESS, UNIT NUMBER]
[CITY], [____________] COUNTY, WEST VIRGINIA [ZIP CODE]

and as such has a right to recover possession of the property under W. Va. Code § 55-3A-1(a)(1).

2. Description of Premises. The property consists of [SINGLE-FAMILY HOME / APARTMENT / MOBILE HOME / OTHER: ____________], commonly known as [________________________________], being more particularly described as [LEGAL DESCRIPTION OR DEED BOOK / PAGE REFERENCE, IF AVAILABLE]. (§ 55-3A-1(a)(2).)

3. Tenancy. Respondent took possession of the premises under a [☐ written ☐ oral] rental agreement entered into on or about [__/__/____]. Monthly rent is $[__________] payable on the [____] day of each month.

4. Grounds for Wrongful Occupation. (Check all that apply — § 55-3A-1(a)(3).)

☐ Arrears in payment of rent. Respondent is in arrears in the amount of $[__________], for unpaid rent for [____________ — describe periods]. Itemization:

☐ Breach of warranty or leasehold covenant. Respondent has breached the rental agreement by [SPECIFICALLY DESCRIBE: e.g., unauthorized occupants, prohibited pets, illegal activity, etc.]:

[____________________________________________________________]
[____________________________________________________________]

☐ Deliberate or negligent property damage. Respondent has deliberately or negligently damaged the property, or has knowingly permitted another to do so, as follows:

[____________________________________________________________]
[____________________________________________________________]

Estimated cost of repair: $[__________].

5. Wrongful Occupation. By reason of the foregoing, Respondent is wrongfully occupying the premises.

6. Lease Notice (if applicable). [If the lease required pre-filing notice]: Petitioner served the Notice required by Section [____] of the Lease on [__/__/____]. (See Exhibit A.)

[If no notice was required]: No statutory notice period is required under W. Va. Code § 55-3A-1 for the grounds stated herein, and the lease does not require pre-filing notice.

7. Money Damages Sought. In addition to possession, Petitioner seeks:

Rent continues to accrue at the per diem rate of $[__________] until possession is restored.

PRAYER FOR RELIEF

WHEREFORE, Petitioner prays that this Court:

A. Set a hearing not less than five (5) nor more than ten (10) judicial days from the filing of this Petition, pursuant to W. Va. Code § 55-3A-1(b);
B. After hearing, enter an Order of Possession awarding the premises to Petitioner;
C. Award arrears relief to the extent § 55-3A-3(e) permits in this proceeding, and other monetary relief only if separately authorized and within this Court's jurisdiction;
D. Direct the Sheriff of [____________] County to execute the Order of Possession; and
E. Grant such further relief as the Court deems just and proper.

Dated: [__/__/____]

_________________________________
[ATTORNEY / PETITIONER NAME], WV Bar No. [____]
[FIRM NAME]
[ADDRESS]
[CITY], WEST VIRGINIA [ZIP]
Telephone: [____________]
Email: [____________]
Counsel for Petitioner [or Petitioner Pro Se]

VERIFICATION

STATE OF WEST VIRGINIA )
) ss.
COUNTY OF [_________] )

I, [PETITIONER NAME], being first duly sworn upon oath, depose and state that I am the Petitioner in the foregoing action; that I have read the Verified Petition; and that the facts and matters stated therein are true and correct to the best of my knowledge, information, and belief.

_________________________________
[PETITIONER NAME]

Subscribed and sworn before me this [____] day of [____________], 20[__].

_________________________________
Notary Public — State of West Virginia
My commission expires: [__/__/____]

6. DOCUMENT E — NOTICE OF HEARING / SUMMONS

IN THE [MAGISTRATE / CIRCUIT] COURT OF [____________] COUNTY, WEST VIRGINIA

Civil Action No. [________________________________]

NOTICE OF HEARING ON PETITION FOR SUMMARY RELIEF

TO THE RESPONDENT: [TENANT NAME]

A Petition for Summary Relief for Wrongful Occupation of Residential Rental Property has been filed against you in the [Magistrate / Circuit] Court of [____________] County, West Virginia. A copy of the Petition is served with this Notice.

HEARING DATE: [__/__/____]
TIME: [____] [a.m. / p.m.]
LOCATION: [COURT ADDRESS]
JUDGE / MAGISTRATE: [____________]

The hearing has been scheduled at least five (5) but not more than ten (10) judicial days from the date the Petition was filed, in accordance with W. Va. Code § 55-3A-1(b).

YOUR RIGHT TO FILE A DEFENSE

You may file a written defense to the Petition within FIVE (5) DAYS after you receive this Notice, pursuant to W. Va. Code § 55-3A-1(c). Your written defense must be filed with the Clerk of the Court and served on the Petitioner.

PAY-AND-STAY RIGHT

You may stop these proceedings by paying all rent owed, interest, and court costs before the trial date, pursuant to W. Va. Code § 37-6-23.

CONSEQUENCE OF FAILURE TO APPEAR

If at the time of the hearing you have made no appearance and filed no answer or other responsive pleading, § 55-3A-3(a) directs the Court to enter an order granting immediate possession. A written defense may be filed and served within five days after receipt of this notice under § 55-3A-1(c); failure to file that writing alone is not the default condition stated in § 55-3A-3(a). Any rent relief depends on the evidence and applicable subsection.

LEGAL ASSISTANCE

You have the right to be represented by an attorney. Free or low-cost legal assistance may be available through Legal Aid of West Virginia (1-866-255-4370).

Issued: [__/__/____]

_________________________________
Clerk of the [Magistrate / Circuit] Court

RETURN OF SERVICE

I, [SERVER NAME], certify that on [__/__/____] at [____] [a.m. / p.m.], I served the foregoing Notice of Hearing and Petition upon [RESPONDENT NAME] at [ADDRESS], by the following method pursuant to Rule 4 of the West Virginia Rules of Civil Procedure:

☐ Personal delivery
☐ Service on a household member age 18 or older, namely [NAME / RELATIONSHIP]
☐ Certified mail (return receipt no. [____________])
☐ First-class mail
☐ Service by publication (per court order dated [__/__/____])

_________________________________
[Sheriff / Constable / Designated Process Server]

7. DOCUMENT F — PROPOSED ORDER OF POSSESSION AND MONEY JUDGMENT

IN THE [MAGISTRATE / CIRCUIT] COURT OF [____________] COUNTY, WEST VIRGINIA

Civil Action No. [________________________________]

ORDER OF POSSESSION AND MONEY JUDGMENT

THIS MATTER came before the Court on [__/__/____] on Petitioner's Verified Petition for Summary Relief for Wrongful Occupation. The Court, having considered the Petition and the evidence presented, FINDS:

1. This Court has jurisdiction over the subject matter and the parties pursuant to W. Va. Code § 55-3A-1.
2. Respondent was duly served with the Petition and Notice of Hearing in accordance with the West Virginia Rules of Civil Procedure.
3. Respondent is wrongfully occupying the premises located at [________________________________].
4. Petitioner is entitled to immediate restitution of the premises.

IT IS HEREBY ORDERED:

A. Petitioner shall have immediate possession of the premises located at [________________________________];
B. [INCLUDE ONLY IF AUTHORIZED IN THIS PROCEEDING AND SUPPORTED BY FINDINGS.] Monetary relief is entered against Respondent and in favor of Petitioner in the total amount of $[__________], itemized as follows:

C. Respondent shall vacate by [DATE AND TIME FIXED BY COURT]. If Respondent remains beyond that time, the Sheriff of [____________] County shall remove Respondent under § 55-3A-3(f);
D. Any stay and right to remain pending appeal shall be determined under W. Va. Code §§ 50-5-12(a) and 55-3A-3(g). Section 55-3A-3(g) does not itself create a bond waiver or an automatic possession stay when the tenancy period has otherwise expired.

ENTERED this [____] day of [____________], 20[__].

_________________________________
Magistrate / Judge

8. WEST VIRGINIA PRACTICE NOTES

8.1 Statutory Authority Snapshot

8.2 No Statutory Pre-Filing Notice

A critical and often misunderstood feature of West Virginia eviction law: No statutory notice period is required before filing for nonpayment, lease violation, or damage. The hearing summons itself serves as the tenant's notice. However:

• Pre-filing notice IS required if the LEASE provides for one. Failing to comply with a contractual notice provision is a complete defense.
• For NO-CAUSE termination of a periodic tenancy, statutory notice under § 37-6-5 is required.
• Self-help eviction (lock-out, utility shut-off) is NOT permitted, regardless of notice.

8.3 Pay-and-Stay Right (§ 37-6-23)

A tenant facing eviction for nonpayment may stop proceedings by paying all unpaid rent, interest, and court costs BEFORE THE TRIAL DATE. The landlord cannot refuse this tender. Plan rent ledger carefully to reflect all amounts owed (including assistance applied).

8.4 Forum and Filing

• Magistrate Court: Jurisdiction over wrongful occupation when title is not disputed and civil claims up to $20,000, exclusive of interest and costs. Confirm current filing fees with the clerk.
• Circuit Court: Available under § 55-3A-1 and may be required where the requested relief exceeds magistrate jurisdiction or presents issues outside that court's authority.

8.5 Service of Process

Posting alone is NOT sufficient under § 55-3A-1(c). The petitioner must cause hearing notice to be served under Rule 4 of the West Virginia Rules of Civil Procedure or by certified mail, return receipt requested. Confirm the applicable Rule 4 method before service.

8.6 Tenant Defenses Commonly Raised

☐ Defective service (improper return; posting only)
☐ Pay-and-stay tender (§ 37-6-23)
☐ Breach of warranty of habitability (Teller v. McCoy, 162 W. Va. 367 (1978))
☐ Failure to comply with contractual notice provision
☐ Acceptance of rent after notice (waiver)
☐ Federal subsidized-housing termination requirements (HUD, LIHTC)
☐ Servicemembers Civil Relief Act

8.7 Personal Property: Two Distinct Statutory Paths

After a possession order — § 55-3A-3(h)-(i). If the tenant leaves property after the court-ordered removal deadline, the landlord may follow the storage, cost-payment, and 30-day disposition rules in subsection (h). Written abandonment or garbage may be disposed of under subsection (h)(1). Property worth more than $300 receives up to 30 additional days when the tenant or secured party timely states an intent to remove it and pays the required reasonable costs.

Desertion with unpaid rent — § 37-6-6. This is a separate non-order pathway. The landlord first posts a conspicuous notice requiring payment within one month. If rent remains unpaid, the landlord may regain possession and must then post and mail the statutory property notice with a certificate of mailing. The removal deadline is at least 30 days after mailing, or at least 60 days after mailing when the tenant has notified the landlord or housing authority of active-duty military service.

9. SOURCES AND REFERENCES

• W. Va. Code § 55-3A-1 et seq. (Wrongful Occupation): https://code.wvlegislature.gov/55-3A-1/
• W. Va. Code § 37-6-1 et seq. (Landlord and Tenant): https://code.wvlegislature.gov/37-6/
• W. Va. Code § 50-2-1 (Magistrate Court jurisdiction): https://code.wvlegislature.gov/50-2-1/
• W. Va. Code § 50-5-12 (Civil appeals): https://code.wvlegislature.gov/50-5-12/
• West Virginia Judiciary, Petition for Summary Relief form (CCA-LTW-1): https://www.courtswv.gov/lower-courts/magistrate-court/civil-forms
• "West Virginia's New Summary Eviction Proceedings," 86 W. Va. L. Rev. (1984): https://researchrepository.wvu.edu/cgi/viewcontent.cgi?article=2324&context=wvlr
• Legal Aid of West Virginia: https://www.legalaidwv.org