Appeal of Possession in an Eviction Case
Most eviction cases take place in magistrate court. Can a losing tenant file an appeal to circuit court? Yes. 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, deciding whether the tenant is entitled to remain in the property or not. The magistrate’s ruling “grants possession” 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.
CAN A TENANT APPEAL AN ORDER OF POSSESSION ISSUED BY A MAGISTRATE?
The short answer is Yes. Every issue in 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.
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 this must be done within 90 days of the magistrate court order.]
CAN A TENANT REMAIN IN THE RENTAL PREMISES WHILE THE APPEAL IS PENDING?
Usually, yes, unless (1) the lease has already expired, or (2) the rental agreement is over for reasons that have nothing to do with the grounds claimed in the lawsuit.
The relevant sentence in the 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.
For example, suppose the landlord files the eviction case arguing that the tenant has been disturbing neighbors. While the case is pending, the lease runs out. At this point it doesn't matter whether the tenant was causing disturbances or not. The lease has expired. If the tenant files an appeal from magistrate court she will not be able to stay in the premises, because the lease has expired.
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 55-5-12(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 A MAGISTRATE 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 A 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.
- Finally, you can go above the magistrate court and file your appeal directly in the office of the Circuit Court Clerk in your county. 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.
Keywords: landlord tenant LL/T LL-T evict magistrate
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