Fights over security deposits make up a large percentage of the landlord-tenant disputes that wind up in small claims court, called Magistrate Court in West Virginia. Typical lawsuits are brought by tenants against landlords who unfairly withheld deposit money for cleaning, repairs, or back rent, or failed to return the deposit at all. Fortunately, it’s fairly simple to file a small claims lawsuit in West Virginia. Here’s an overview of the steps involved with doing so.
Before you head off to court, make sure you have a clear understanding of relevant state security deposit rules on when and how landlords must return deposits. For example, in West Virginia, landlords have 60 days from the date the tenancy has ended, or within 45 days of the occupancy of a subsequent tenant, (whichever is shorter) to itemize and return your deposit. If the damage exceeds the amount of the security deposit and the landlord has to hire a contractor to fix it, the notice period is extended 15 days. The itemization should be in writing and state how the deposit has been applied toward back rent and costs of cleaning and damage repair, together with whatever is left of the deposit.
Typically, landlords may use deposits to cover the following things:
For details on state security deposit rules, including exemptions and statutory citations, see West Virginia Security Deposit Limits and Deadlines.
After you move out, your landlord will need to inspect the rental unit to assess what cleaning and damage repair is necessary. Many landlords do this on their own and will simply send you an itemized statement with any remaining balance of the deposit. Ideally, your landlord will have used some kind of inventory or Landlord-Tenant Checklist when you moved in, so you can compare the condition of the rental at the start and end of the tenancy.
It’s also a good idea to photograph or videotape the rental unit before you leave, so that you have visual proof of the condition of the rental unit to present in court. Ideally, you will have also done this you moved in, so you have before and after photos.
If you have done a thorough job of cleaning and fixing any damage that you (or your pet or guest) caused, hopefully the landlord will return all or most of your deposit. If the landlord has identified problems that you feel are your responsibility, ask if you can do more cleaning (or repair any damage identified in the final inspection) before the landlord takes deductions from your deposit.
If your landlord has not returned your deposit or provided an itemization of deductions by the state deadline, or the landlord has taken deductions that you don’t believe are justified, ask for the return of your deposit in writing. Your letter should spell out the main facts, your legal rights, what exactly you want, and your intent to sue in small claims court if necessary. Sending some kind of demand letter like this is important for several reasons:
See the Sample Demand Letter for Return of Security Deposit for a template to write your own. Edit the demand letter to cover the specific details of your dispute, and send it by certified mail (return receipt requested), or use a delivery service that will give you a receipt establishing delivery. Keep a copy of your letter and the delivery receipt. You’ll need them if you end up in court.
If your landlord has not given you a satisfactory response to your demand letter, you may file a lawsuit immediately, or try mediation first, a procedure in which you meet with a neutral third person who helps you and your landlord arrive at your own solution. Mediation may be available from a community-based mediation program, or even right in the courthouse. In some cases, the court may require you to try mediation before suing your landlord, so check with your court for details on this.
Suing your landlord is inexpensive, usually less than $50 to file a case (fee waivers or deferrals are sometimes available for people with low incomes). You don’t need a lawyer—in fact, they’re not even allowed in some cases. Disputes usually go before a judge (there are no juries) within a month or two.
You can sue for the amount of the security deposit that your landlord wrongfully withheld, up to the state limit. The maximum amount for which you can sue in West Virginia Magistrate Court is $5,000.
See the West Virginia state court website for more details on small claims lawsuits, including the name of the court where you should file suit, the paperwork involved with suing your landlord (typically called a complaint or claim), filing fees and other costs, and whether or not attorneys are allowed in small claims court disputes in West Virginia.
In addition to knowing your state security deposit rules, tangible evidence is key to winning your case in small claims court. Here are the types of evidence you should take to court (what you need depends on the specifics of your case):
Small claims courts are informal places, but you may want to consider watching a few cases a few days before your court date, so you know what to expect. Also, many court websites provide useful advice, and some courts even offer free legal advisor programs to help prepare your case properly. Before you go to court, practice your presentation with a friend or relative, so that you can make your case in an efficient and convincing way, backed up with relevant evidence.
The trial consists of both you and your landlord explaining your point of view of the dispute, and presenting any evidence or witnesses. Explain and document your case thoroughly, but be brief and succinct. Describe your loss and how much you are asking for. Then go back and tell the story chronologically, and present the evidence you’ve collected to support your case. If you brought witnesses, point them out to the court, summarize the testimony you expect they will give, and ask permission to call them. Your testimony will typically takes less than 15 minutes, and the judge either announces a decision right in the courtroom or mails it within a few days.
If you don’t agree with the court ruling, you may be able to appeal it.
Nolo’s Small Claims Court & Lawsuits section provides a wide variety of articles on small claims court, including an overview of West Virginia small claims rules and procedures. The small claims section of the Nolo site also includes general articles on what to do if you are sued in small claims court, how mediation works in small claims cases, how tofile an appeal in a small claims court case, and more. For complete details on the subject, see the Nolo book Everybody’s Guide to Small Claims Court.
For dozens of articles on the use and return of deposits, see the Security Deposits section of the Nolo site.
For an overview of state landlord-tenant laws on security deposits and other issues, check guides to tenant rights in West Virginia and Nolo’s Every Tenant’s Legal Guide, a 50-state book covering everything from repairs and maintenance to termination procedures.