What Is the Property Damage Statute of Limitations in West Virginia?

"How long do I have to file a property damage lawsuit in West Virginia?"

If that question—or something like it—is what brought you here, you're in the right place. West Virginia's property damage statute of limitations is one of the first things you need learn about when your property has been damaged or destroyed by someone else's negligence or intentional misconduct.

After a quick refresher on statutes of limitations and how they work, we'll zero in on West Virginia's property damage filing deadline. From there, we'll explore some situations when you might get an extension of time to sue, and we explain what happens if you don't file your lawsuit in time.

What Is a Statute of Limitations?

A "statute of limitations" is a statutory deadline on your time to file a lawsuit in court. Every state enacts its own statutes of limitations, with different deadlines for different kinds of legal claims. So, for example, a state might have a two-year limit on personal injury claims, a four-year deadline for trespass to land, and a five-year limitation period on claims for breach of a written contract.

To understand how statutes of limitations work, you need to know:

• how much time the statute gives you to sue, and
• the claim "accrual" date, meaning when the filing deadline clock starts running.

How Much Time Do I Have to Sue?

The statute of limitations will tell you how long—usually a period of years—you have to file a lawsuit in court. For example, a property damage statute of limitations might say: "Except as otherwise provided, all claims for damage to or destruction of real or personal property must be filed within two years." This means if your property was damaged by another person's wrongdoing, you have two years—from whenever your claim accrued—to sue.

When Does the Filing Deadline Clock Start Running?

The filing deadline clock starts running on the date your legal claim "accrues." As a rule, a legal claim accrues when all the facts necessary to have a claim are established and known. What does that mean? It means your claim probably accrues when you know (or have reason to know) your property was wrongfully damaged.

Of course, in most cases you know right away—on the date it happens—that your property's been damaged. Generally speaking, then, your property damage claim likely accrues on the date the damage or destruction occurs, sometimes called the "occurrence rule."

What if you don't know about your loss right away? In that situation, holding you to the occurrence rule wouldn't be fair. That's why most states also follow the "discovery rule," at least in some cases. Under the discovery rule, your property damage claim accrues on the date you:

• discover your property loss, or
• had enough facts that, if you were being reasonably diligent, you should have known your property had been damaged or destroyed.

In a few states, the discovery rule requires that you knew or should have known of your loss and who or what caused it.

The West Virginia Property Damage Statute of Limitations

You'll find West Virginia's property damage statute of limitations at W. Va. Code § 55-2-12(a) (2024). It gives you two years from the date your claim accrues to file a property damage lawsuit in court. This filing deadline applies to claims involving both real property (land, buildings, and fixtures attached to the land) and personal property (vehicles, household goods, electronics, and other movable things).

A couple of examples will illustrate. Say you were hit by a careless driver who ran a red light. Fortunately, you walked away uninjured, but your car was badly damaged. You have two years to bring a vehicle damage lawsuit. Suppose a lawn care company accidentally destroyed your prize-winning roses. The same two-year lawsuit deadline applies.

When does a West Virginia property damage claim accrue? Generally speaking, West Virginia follows the occurrence rule. Your property damage claim probably accrues on the date the damage occurs. But West Virginia follows the discovery rule, too. When you can't reasonably discover your property damage right away, your claim doesn't accrue until you know (or should know) about the damage and what caused it. (See Gaither v. City Hospital, Inc., 199 W. Va. 706, 714 (1997).)

Can the Two-Year Deadline Be Extended?

In a couple of situations, maybe so. West Virginia law allows extensions of the statute of limitations when:

• the person whose property was damaged or destroyed (the "plaintiff") was legally disabled, or
• the person who damaged or destroyed your property (the "defendant") leaves the state or goes into hiding.

If you think one of these exceptions might apply in your case, you'll want to get advice from a West Virginia lawyer. It will be your job to convince the court that an extension applies. You should have an attorney prepare your arguments and present them to the judge.

Legally Disabled Persons

If the plaintiff was legally disabled when the property damage occurred—meaning younger than 18 years or "insane"—the statute of limitations clock doesn't begin to run until the disability is removed. The disability is removed on a minor's 18th birthday, or when an "insane" person is found to be "sane." (W. Va. Code § 55-2-15(b) (2024).)

Defendant Leaves the State or Goes Into Hiding

If a West Virginia resident defendant damages or destroys your property and then leaves the state or goes into hiding to keep you from suing, the statute of limitations clock doesn't run—as to that defendant—while they're out of West Virginia or in hiding. The limitation clock does run as to others who might be responsible for your losses. (W. Va. Code § 55-2-17 (2024).)

Note that this extension applies only if the defendant's actions prevent you from suing. The fact that the defendant leaves West Virginia, standing alone, might not be enough. Ask your lawyer if the defendant's absence from the state means you can't sue them or serve them with your lawsuit.

Where Do I File a West Virginia Property Damage Case?

Unless you're planning to sue in West Virginia small claims court (discussed below), you should think about hiring legal counsel to prepare, file, and handle your property damage lawsuit. Why? Having an attorney increases your chances of success, for starters.

In addition, cases that aren't filed in small claims court must follow West Virginia's Rules of Civil Procedure (effective until December 31, 2024; on and after January 1, 2025, these amendments also will apply). Chances are you're not familiar with those rules. But the defendant's lawyer will be, and without experienced legal help in your corner you'll quickly find yourself at a real disadvantage.

The Circuit Court

The West Virginia court where most cases start—including those involving property damage claims—is called the circuit court. The state is divided into 31 judicial circuits, with each circuit consisting of one or more counties. Your lawyer likely will file your property damage suit in circuit court.

But not just any circuit court will do. Your lawyer also must file in the correct "venue," or location. Most often, that will be the circuit where the defendant lives or, if the defendant is a corporation, where it has its principal place of business. You're also allowed to file in the circuit where the property damage happened. (See W. Va. Code § 56-1-1(a) (2024).) In some cases, depending on the facts, your lawyer might have to file in a different circuit.

Can I Sue in Small Claims Court?

Yes, as long as the compensation ("damages") you're asking for don't exceed $10,000. West Virginia small claims actions are filed in the magistrate court. Every county has at least one, and larger counties might have several. Lawyers are allowed—but not required—in magistrate court. You'll find the rules and procedures to be more relaxed and informal than in the circuit court, and court forms are available. Cases tend to get resolved faster in magistrate court, too.

I Think I Missed the Filing Deadline. What Now?

If you think you've missed West Virginia's property damage filing deadline, your first call should be to a West Virginia lawyer. Here's what you need to know.

• What's the statute of limitations for my property damage claim?
• When did the filing deadline clock start running?
• Has the limitation period expired?
• If so, is there an extension that might give me more time to sue?

Lawyers are trained to make arguments favoring their client's case. If there's a good faith factual basis to argue that the statute of limitations hasn't run out, or that you're entitled to an extension of time, your lawyer will find it.

Now, the bad news. If the filing deadline has passed and you don't qualify for an extension of time, your property damage claim is legally dead. There's nothing you can do to bring it back to life. Try to file a lawsuit and the defendant will ask the court to dismiss it. The court will grant that request. Worse still, the court might "sanction" (penalize) you for filing a frivolous lawsuit.

What about negotiating a settlement with the defendant? That won't work, either. Once you've passed the filing deadline, in the eyes of the law you no longer have a claim to settle. The defendant isn't likely to voluntarily pay you anything. You've lost the right to recover damages for your property loss.

Do I Really Need a Lawyer for My Property Damage Case?

It depends. To decide whether you can go it alone or should hire counsel, ask these questions.

• Are the facts simple and mostly uncontested? If so, that's a point in favor of you handling the case by yourself. But if the facts are convoluted or unclear, or if the other side disputes your version of what happened, think again. It's probably in your best interest to hire a lawyer who can find and develop the facts into a coherent, convincing story.
• Are there any legal issues in the case? Here, we're talking about issues that might seriously damage or destroy your claim. Is the statute of limitations a problem? Is the defendant arguing that you're partly or completely to blame for what happened? If those or other troublesome legal issues appear, you need an attorney to prepare your legal arguments and present them to the court.

So, if the facts are simple and uncontested and the case isn't cluttered with legal land mines, you might be able to get a fair settlement on your own. Otherwise, your best bet will be to hire a lawyer. You only get one chance to make your case, so be sure to make the most of it.

If you decide to hire an attorney, here's how to find one who's right for you.