Appealing an Eviction Case to Circuit Court

Last Updated On: 7/12/2018 6:42:43 PM

Can a tenant appeal from a Magistrate Court Eviction Order?

Suppose your landlord filed an eviction case against you in Magistrate Court. Maybe she claims you caused damage to the premises, or maybe she claims you didn’t pay your rent. You didn’t agree, and went to the court hearing and gave your side of the case. But the magistrate ruled against you. The magistrate set a date for you to leave the premises.

But you think the magistrate was wrong. You believe the evidence shows you were right. You want to appeal. Here are the common questions that come up:

  • Can a losing tenant file an appeal to circuit court?
  • If you file an appeal, does that mean you get to remain in the rental unit during the appeal?
  • What if the magistrate says you cannot file "an appeal of possession?"

Learn more about your right to appeal, and your responsibilities, with this information.

What is an "Order of Possession"?

This is the final order by the magistrate in an eviction case. The magistrate’s ruling “grants possession” of the rental premises to one side or the other, either to the landlord who sued for eviction or to the tenant who asserts that he should not be evicted.

If the order says the tenant has to leave, most people call it an eviction order. But it can also be called a “possession order.”

Can a tenant appeal an eviction order issued by a magistrate?

The short answer is Yes.  Every magistrate court case can be appealed to the Circuit Court to be reviewed by a Circuit Judge.  Forms to do this are in the Magistrate Court Clerk’s Office.  You can file your appeal in the office of the Magistrate Court Clerk.

There is a fee to file an appeal. If you cannot afford the filing fee, ask the Clerk for a Fee Waiver Affidavit. You’ll have to provide information (and verifying documents) about your income and assets. If you qualify for a waiver, you will not have to pay the fee.]

An appeal from magistrate court to circuit court must be filed within twenty days from the date of the magistrate order. 

[A Circuit Court judge can allow a late appeal in unusual and extraordinary circumstances. But an order granting a late appeal must be entered by the circuit court within 90 days of the magistrate court order.]

In the appeal, the Circuit Judge can consider any issue in the case. For example, if there was a judgment for rent owed, was the dollar amount correct? If there was a judgment for payment of damages to the property, was the dollar amount correct? If a specific date was scheduled to vacate, was that date fair and reasonable? And the most fundamental question of all, does the tenant have to leave or can the tenant remain in the rental unit?

Can a tenant remain in the rental while the appeal is pending? 

There isn’t one simple answer. “Most of the time” the tenant CAN stay in the rental unit the appeal is finished. We’ll explain more about this in a moment. But first, if you get to remain in the premises, be aware of two things:

  • You will have to pay all rent that comes due while you’re waiting for the appeal to be completed; and
  • You will have to meet all other requirements of the rental agreement while you’re waiting for the appeal to be completed.

If you don’t do these things while the appeal is pending, you’ll be evicted. It won’t matter whether you were right or wrong in the magistrate court case. You’ll be evicted by the circuit court if you don’t pay the rent, or if you violate the lease in some other way during the time the appeal case is being reviewed by the circuit court.

When does a tenant have to vacate the rental premises even though an appeal has been filed? 

Most of the time the tenant can stay in the rental unit until the appeal is finished. But there are two exceptions:

  1. the lease has already expired, or
  2. the rental agreement has ended for reasons that have nothing to do with the grounds the landlord asserted in the lawsuit.

Example One: Lease Expires. Suppose you have a lease that runs out at the end of August. In July, the landlord files the eviction case claiming that you have been disturbing the neighbors. While the case is pending, the lease runs out at the end of August.  

At this point it doesn't matter whether you were causing disturbances or not. The lease has run out. Because the lease is over, you have no other legal right to keep living there. If the tenant files an appeal from magistrate court she will not be able to stay in the premises, because the lease has expired. (You may be able to appeal the other issues, such as the amount of rent or the dollar amount of damages. But you won’t be able to continue living in the rental unit while you pursue your appeal.) 

Example Two: Other Grounds Different From The Basis of The Pending Case. Suppose your landlord files the eviction case claiming that you have been disturbing the neighbors. Your lease also has a paragraph that says the landlord can end the lease at any time when he sells the building. While your disturbance case is being heard by the court, the landlord sells the building and notifies you that the lease is over.  

At this point it doesn't matter whether you were causing disturbances or not. The lease has ended because the building was sold and the lease you signed allowed for that possibility. Because the lease has now ended, you have no other legal right to keep living there. If the tenant files an appeal from magistrate court she will not be able to stay in the premises, because the lease has expired. (Again, that doesn’t mean you cannot file an appeal. It only means that you cannot stay in the premises while the appeal moves forward.)

Where does West Virginia law put this limit on the right to stay in the rental unit while the appeal is pending?

Almost all residential eviction cases are filed under a statute called the “Remedies for Wrongful Occupation Of Residential Rental Property” law. The relevant sentence in that WV statute for “Wrongful Occupation” landlord-tenant cases says:

"During the pendency of any such appeal no tenant shall be entitled to remain in possession of the leasehold if the period of the tenancy has otherwise expired." WV Code 55-3A-3(g).

The important wording in the statute is “otherwise expired.”  That means the tenant can remain in the unit UNLESS the rental agreement has expired for reasons other than the grounds the landlord claimed in the lawsuit. The most common situation is that the time period of the lease has run out. There can be situations where reasons ”other than” the grounds of the lawsuit cause the lease to end.

If the only reasons the landlord wants the tenant out are the grounds set forth in the lawsuit, then the tenant has the right to remain in the premises during the appeal.  The purpose of the appeal is to ask the Circuit Judge to determine which side was correct about whether the rental agreement was violated.  That’s how the court system works.

As long as the period of the tenancy has NOT "otherwise expired," then the tenant is allowed to remain in possession.

Does a tenant have to make a special request to stay in the premises?

No. The West Virginia statute creating the right to appeal says that “the filing or granting of an appeal shall automatically stay further proceedings.”  WV Code 50-5-12(a).

The word "shall" means "shall."  It does not mean "maybe" or "sometimes" or "if more papers are filed" or "if the magistrate agrees."

The word "stay" means "suspend."  The magistrate's order and any enforcement of the magistrate's order are suspended until the circuit judge decides whether it was correct or incorrect.

The Magistrate Court Rules of Civil Procedure say the same thing.  Magistrate Civil Procedure Rule 18A says that “Upon timely filing of an appeal ..., execution of the judgment shall be stayed until the appeal or motion has been decided.” 

These general rules apply in all landlord-tenant cases, unless “the period of the tenancy has otherwise expired.”

Can the Magistrate Court write on the court order "No Appeal of Possession"? 

No.  In one case a magistrate tried to do this.  The circuit court took the appeal anyway, and said the following:

“the notation ‘no appeal of possession’ added by the magistrate to the Order ... is beyond the jurisdiction and authority of the magistrate, and is totally unsupported by the law.  It is void on its face, and will not be enforced by this Court.” 

Quoted from Sines v. Hale, Civil No. 96-C-AP-155 (Circuit Court of Kanawha County, 1996).

What should I do if the Magistrate Court will not let me file an appeal of possession order?

There are several options you can try.

In larger counties in West Virginia the circuit court may have a "court administrator."  You can go to the circuit court administrator's office and ask for their assistance in getting your appeal filed.

If there is no circuit court administrator in your county, you can contact the Administrative Office of the West Virginia Supreme Court of Appeals at 304-558-0145.  Ask for the person who handles magistrate court matters.  Explain your situation and ask for their assistance in getting your appeal filed.

You can go directly to the office of the Clerk of the Circuit Court in your county, and file your own appeal there.  It isn't as easy as the magistrate court procedure, because the Circuit Clerk does not have fill-in-the-blank forms like the magistrate clerk.  You will have to follow all the procedures and use all the papers that lawyers use.  But you have the legal option of filing your appeal directly with the Circuit Court Clerk's office in your county.

Finally, you can get a lawyer to help you with the appeal. You can apply for help from Legal Aid or try these other legal resources.

This is general legal information. For guidance about your situation, talk to a lawyer.