Shared by Joey Cutchins of West Virginia Case Search on April 15, 2026
Research Question
In West Virginia, can a landlord terminate a residential lease and evict a tenant for repeated late payments if the lease does not explicitly define late payment as a material breach?
Legal Memorandum
Precedent: ModerateUnder West Virginia law, a landlord may terminate a residential lease and evict a tenant for repeated late payments even when the lease does not explicitly define late payment as a material breach, provided the landlord can demonstrate that the late payments constitute a material breach of the lease terms.
The West Virginia Supreme Court of Appeals has established that material breach of lease terms justifies termination and eviction. In Amie Miller v. St. Joseph Recovery Center, LLC, No. 20-0755 (W. Va. 2022), the court recognized that failure to pay wages timely constituted material breach of contract obligations in the employment context. While this case involved employment rather than landlord-tenant law, the court's analysis of material breach principles applies broadly to contractual relationships, including leases.
West Virginia Code § 36-4-15 provides statutory authority for lease termination based on rent default, stating that if a lease provides "the lessor may reenter for default in the payment of rent or for the breach of covenants," then "if the rent reserved, or any part thereof, be unpaid on or after the day specified in the deed for the payment thereof... the lessor, or those entitled in his place, at any time afterwards, into and upon the demised premises, or any part thereof, in the name of the whole, may reenter."
The Supreme Court has also recognized that lease provisions allowing termination for breach need not be explicitly detailed to be enforceable. In Alan K. Vance v. John D. Smallridge Jr., No. 11-0689 (W. Va. 2012), the court upheld late fees for overdue rent as "valid liquidated damages rather than an unenforceable penalty" and enforced lease provisions regarding tenant obligations. Additionally, in Dennis Corporation v. CPB, LLC, No. 16-0928 (W. Va. 2017), the court affirmed a landlord's right to retake premises for non-payment of rent when the lease terms supported such action.
Courts will examine the totality of circumstances to determine whether repeated late payments constitute material breach. In Fernando M. Smith v. Thomas Reel, No. 17-0706 (W. Va. 2019), the Supreme Court affirmed an eviction where the landlord claimed the tenant "failed to pay rent timely," demonstrating that timeliness of rent payment is a enforceable lease obligation even without explicit materiality provisions.
The Intermediate Court of Appeals has provided persuasive guidance suggesting that landlords must still follow proper notice and procedural requirements. In Joseph Keen and Melissa Keen v. Westfall Farms Properties, LLC, No. 23-ICA-342 (W. Va. Ct. App. 2024), the court emphasized that "landlords must follow statutory procedures" and cannot take self-help remedies without proper legal process.
Therefore, while a lease need not explicitly define late payment as material breach, the landlord must demonstrate that the pattern of late payments constitutes a material breach of the lease terms and must follow proper statutory notice and eviction procedures under West Virginia's wrongful occupation statutes.
Precedent Strength: Moderate — relevant WV appellate opinions with some factual distinction, or supported primarily by ICA persuasive authority or tangential statutory text.
The West Virginia Supreme Court of Appeals has established that material breach of lease terms justifies termination and eviction. In Amie Miller v. St. Joseph Recovery Center, LLC, No. 20-0755 (W. Va. 2022), the court recognized that failure to pay wages timely constituted material breach of contract obligations in the employment context. While this case involved employment rather than landlord-tenant law, the court's analysis of material breach principles applies broadly to contractual relationships, including leases.
West Virginia Code § 36-4-15 provides statutory authority for lease termination based on rent default, stating that if a lease provides "the lessor may reenter for default in the payment of rent or for the breach of covenants," then "if the rent reserved, or any part thereof, be unpaid on or after the day specified in the deed for the payment thereof... the lessor, or those entitled in his place, at any time afterwards, into and upon the demised premises, or any part thereof, in the name of the whole, may reenter."
The Supreme Court has also recognized that lease provisions allowing termination for breach need not be explicitly detailed to be enforceable. In Alan K. Vance v. John D. Smallridge Jr., No. 11-0689 (W. Va. 2012), the court upheld late fees for overdue rent as "valid liquidated damages rather than an unenforceable penalty" and enforced lease provisions regarding tenant obligations. Additionally, in Dennis Corporation v. CPB, LLC, No. 16-0928 (W. Va. 2017), the court affirmed a landlord's right to retake premises for non-payment of rent when the lease terms supported such action.
Courts will examine the totality of circumstances to determine whether repeated late payments constitute material breach. In Fernando M. Smith v. Thomas Reel, No. 17-0706 (W. Va. 2019), the Supreme Court affirmed an eviction where the landlord claimed the tenant "failed to pay rent timely," demonstrating that timeliness of rent payment is a enforceable lease obligation even without explicit materiality provisions.
The Intermediate Court of Appeals has provided persuasive guidance suggesting that landlords must still follow proper notice and procedural requirements. In Joseph Keen and Melissa Keen v. Westfall Farms Properties, LLC, No. 23-ICA-342 (W. Va. Ct. App. 2024), the court emphasized that "landlords must follow statutory procedures" and cannot take self-help remedies without proper legal process.
Therefore, while a lease need not explicitly define late payment as material breach, the landlord must demonstrate that the pattern of late payments constitutes a material breach of the lease terms and must follow proper statutory notice and eviction procedures under West Virginia's wrongful occupation statutes.
Precedent Strength: Moderate — relevant WV appellate opinions with some factual distinction, or supported primarily by ICA persuasive authority or tangential statutory text.
Reasoning: I weighted the SCA opinions as binding precedent, particularly the material breach analysis from Miller and the lease enforcement principles from Vance and Dennis Corporation. The statutory text from W. Va. Code § 36-4-15 provides direct support for landlord reentry rights for rent default. However, most of the directly applicable SCA cases involve different factual scenarios (employment contracts, commercial leases, or general eviction procedures) rather than specifically addressing repeated late payments in residential leases. The ICA opinion from Keen provides relevant but only persuasive guidance on landlord procedures. The confidence is moderate due to the need to extrapolate from related but not identical legal contexts.
Cited Opinions (15)
State of West Virginia ex rel., Patrick Morrisey, Attorney General v. Copper Beech Townhome Communities Twenty-Six, LLC, et al.
No. 17-0228 · Filed Oct 12, 2017
SCA
Majority
Certified Question Answered
The West Virginia Consumer Credit and Protection Act, including its debt collection provisions (W.Va. Code §§ 46A-2-122 to -129a) and deceptive practices provisions (W.Va. Code §§ 46A-6-101 to -106), does not apply to and regulate the fees a landlord may charge to a tenant pursuant to a lease of residential real property. When a statute is ambiguous, courts cannot arbitrarily read into it provisions the Legislature purposely omitted, particularly where the subject matter is already extensivel...
Fernando M. Smith v. Thomas Reel
No. 17-0706 · Filed May 31, 2019
SCA
Majority
Affirmed
The circuit court properly provided the tenant adequate opportunity to be heard despite his late arrival to trial, satisfying due process requirements. Credibility determinations are exclusively within the province of the trial court, and an appellate court may not reweigh evidence or substitute its judgment for that of the trier of fact when conflicting testimony exists.
Jeffery C. Wiles, William Talbot, and Cowen Auto Parts, Inc., d/b/a WBC Enterprises v. Work4WV-Region 1, Inc.
No. 17-0557 · Filed May 14, 2018
SCA
Majority
Affirmed
A lease provision allowing the lessee to cancel upon thirty days' notice does not contradict a separate provision governing renewal timing when both provisions can be given effect without rendering either meaningless. Contract language must be construed as a whole, giving effect to all parts if possible, and where provisions are unambiguous, their plain meaning controls without resort to extrinsic evidence.
Mark C. Busack v. West Rentals, Inc.
No. 16-0718 · Filed Nov 17, 2017
SCA
Majority
Affirmed
A tenant in default under a lease has no right to retrieve personal property left on the premises when the lease expressly provides that property not removed becomes the landlord's property upon abandonment. Contract formation can be established through the parties' conduct even without a fully executed written agreement, as demonstrated by occupancy, rent payments, and acceptance of lease terms.
Amie Miller v. St. Joseph Recovery Center, LLC, A Delaware Limited Liability Company; St. Joseph's Operating Company, LLC, A Delaware Limited Liability Company; and Siltstone Holdings, LLC, A Delaware Limited Liability Company
No. 20-0755 · Filed Apr 26, 2022
SCA
Majority
Reversed and Remanded
Where an employment agreement clearly defines 'Good Reason' for resignation as employer's material breach of contract obligations, and the employer materially breaches by failing to pay wages timely, the employee's resignation constitutes resignation for Good Reason entitling them to severance pay regardless of other concurrent motivations stated in the resignation letter. Severance packages that constitute fringe benefits under employment agreements are wages subject to the West Virginia Wag...
Arthur Deras v. Prime Capitol Properties
No. 20-0946 · Filed Oct 13, 2021
SCA
Majority
Affirmed
A landlord's violation of the Residential Rental Security Deposits Act's notice requirements does not entitle a tenant to damages if the violation was not willful or not in good faith. Circuit court factual findings regarding the manner of delivery disputes and landlord's good faith efforts to comply with statutory requirements are reviewed for clear error and will not be disturbed absent clear error.
BLACKROCK ENTERPRISES, LLC v. BB LAND, LLC, and JB EXPLORATION 1, LLC
No. 22-0407 · Filed Jun 6, 2024
SCA
Majority
Reversed in Part
The general rule that a breaching party's uncured, material failure of performance discharges the other party's duty to perform does not apply when the non-breaching party, with knowledge of the facts, either performs or indicates a willingness to do so despite the breach or insists that the breaching party continue to render future performance. A first material breach may be waived by continued performance, and special verdict forms must fairly submit all material issues raised by the pleadi...
Stephen Howell v. Charles Everhart
No. 16-0106 · Filed Mar 24, 2017
SCA
Majority
Affirmed
A tenant who fails to appear for trial in a wrongful occupation action and cannot establish good cause for their absence is not entitled to have the resulting judgment set aside. The circuit court did not abuse its discretion in requiring the tenant to demonstrate good cause before considering monetary counterclaims when the tenant failed to provide evidence supporting their claim of postal service delivery problems.
Robert Owens and Melody Merva v. Courtney Axline and Dominique Johnson
No. 24-ICA-290 · Filed Apr 29, 2025
ICA
Majority
Affirmed
The ICA held that landlords breach the implied warranty of habitability when a defective septic system renders rental premises unsafe, unsanitary, and uninhabitable, relieving tenants of their rent payment obligation. The court also held that damages for breach of the warranty of habitability are properly measured by the difference in fair rental value plus annoyance and inconvenience damages, and that appellate courts will not reweigh evidence or second-guess credibility determinations made ...
MARY CATHERINE LEHMAN AND PATRICIA ANN POWELL v. UNITED BANK, INC.
No. 101486 · Filed Nov 10, 2011
SCA
Majority
Affirmed
The term 'laid off' as used in West Virginia Code § 21-5-4(d) applies to any situation involving the lay-off of an employee, whether the lay-off is temporary or permanent in duration. The distinction between a lay-off and a discharge under the West Virginia Wage Payment and Collection Act depends on the reason for termination, not its duration - if termination is not related to the quality of employee performance or other employee-related reason, it constitutes a lay-off requiring payment by ...
Joseph Keen and Melissa Keen v. Westfall Farms Properties, LLC
No. 23-ICA-342 · Filed Dec 6, 2024
ICA
Majority
Affirmed in Part
The ICA held that landlords who constructively evict tenants by changing locks and denying access cannot recover rent for the entire period following the eviction, even when property appears abandoned. Under W. Va. Code § 37-6-6(a), landlords must follow statutory procedures for abandonment claims, and rent recovery is limited to the period before the landlord takes possession. The court also noted that corporations and LLCs must be represented by licensed attorneys in courts of record, thoug...
Alan K. Vance v. John D. Smallridge Jr. as Successor Trustee under the Last Will and Testament of Horace H. Smallridge, deceased
No. 11-0689 · Filed Jun 22, 2012
SCA
Majority
Affirmed
The circuit court properly awarded attorney's fees and costs based on a valid lease provision that was not unconscionable where both parties were experienced businessmen represented by counsel in an arms-length transaction. Late fees for overdue rent constituted valid liquidated damages rather than an unenforceable penalty. A tenant who causes property damage during lease operations remains liable for repair costs despite authorization to operate the business.
SER Rhonda Bay v. Hon. Brenda K. Marshall, Magistrate
No. 35736 · Filed May 3, 2011
SCA
Majority
Affirmed
A tenant found to be in wrongful occupation of residential rental property, whose tenancy has expired, may not remain in possession of the rental property during the pendency of appeal. The Wrongful Occupation Act's specific provision in W.Va. Code § 55-3A-3(g) overrides the general automatic stay provision, prohibiting continued possession when the tenancy period has expired.
Arne Moltis v. Aleisha Adams
No. 13-0920 · Filed Mar 14, 2014
SCA
Majority
Affirmed
A circuit court does not abuse its discretion in finding rental property uninhabitable when there is a water leak causing excessive utility bills and a non-functioning refrigerator causing food spoilage, justifying tenant's withholding of rent under the implied warranty of habitability. A motion for judicial recusal filed after judgment is untimely under Rule 17.01 and lacks merit when based solely on the judge ruling against the moving party.
Dennis Corporation v. CPB, LLC
No. 16-0928 · Filed Oct 20, 2017
SCA
Majority
Affirmed
The parties mutually assented to renew their entire lease agreement, not merely the three terms referenced in email correspondence. When parties exchange communications about lease renewal and one party begins paying increased rent as agreed, this demonstrates mutual assent to continue the full lease terms. Summary judgment is appropriate when no genuine issues of material fact exist regarding the parties' intent to renew the lease in its entirety.
Cited Statutes (4)
W. Va. Code § 37-6-8
Tenant's right to recover possession
Chapter 37: REAL PROPERTY
· Article 6: LANDLORD AND TENANT
If the landlord shall have elected to continue to hold the tenant liable upon his lease, as provided in the preceding section, the tenant shall be entitled, upon the payment of all arrears of rent, and the satisfaction of any liabilities which shall have accrued upon the covenants or agreements contained in his lease, and any other liabilities with which he is chargeable by virtue of his lease, to the possession of the premises, except to the extent that some other person is already in possession of the premises, or is entitled to such possession, by virtue of a lease made by the landlord to such other person pursuant to the notice given under the preceding section, before the tenant shall have notified the landlord in writing of his intention to resume possession of the premises, and shall have satisfied, or tendered an amount sufficient to satisfy, his liabilities under his lease as aforesaid. No tenant whose lease has been lawfully forfeited, under the second preceding section, s...
W. Va. Code § 37-6-11
Persons liable for rent; termination of lease upon death
Chapter 37: REAL PROPERTY
· Article 6: LANDLORD AND TENANT
(a) Rent may be recovered from the lessee, or other person owing it, or the heir, personal representative, devisee or assignee, who has succeeded to the lessee's estate in the premises. But no assignee shall be liable for rent which became due before his or her interest began. Subject to the provisions of subsection (b), nothing herein shall change or impair the liability of heirs, personal representatives, or devisees, for rent, to the extent and in the manner in which they are liable for other debts of the ancestor or testator; nor shall the mere merger of the reversion to which a rent is incident affect the liability for such rent.
(b) (1) Notwithstanding any other provision of this code to the contrary, upon the death of a lessee of a residential premises, an heir, personal representative, devisee or assignee of the deceased lessee may terminate a lease prior to its expiration.
(2) Termination of a residential lease, as provided in this subsection, shall become effective o...
W. Va. Code § 37-6-7
Reletting by landlord
Chapter 37: REAL PROPERTY
· Article 6: LANDLORD AND TENANT
The landlord, or other person entitled to the rent may, however, at his election, incorporate, in the notice provided for in the preceding section, the further notice that he will, after he shall have taken possession of the demised premises, lease the premises to some other person, in which case the tenant will still remain liable upon his lease, for the unexpired portion of his term, for the difference between the amount of rent received by the landlord from the new tenant, and the amount payable under the lease of the original tenant, and upon any other covenants or agreements contained in the original lease.
W. Va. Code § 36-4-15
Covenant for reentry for default of lessee
Chapter 36: ESTATES AND PROPERTY
· Article 4: COVENANTS
If in a lease it be provided that "the lessor may reenter for default in the payment of rent or for the breach of covenants," or if the lease contains words of like import, such words shall have the effect of an agreement that if the rent reserved, or any part thereof, be unpaid on or after the day specified in the deed for the payment thereof, or if any of the other covenants on the part of the lessee, his personal representatives or assigns, be broken, then, in either of such cases, the lessor, or those entitled in his place, at any time afterwards, into and upon the demised premises, or any part thereof, in the name of the whole, may reenter and the same again have, repossess and enjoy, as of his or their former estate.
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