Challenging a Subsidized-Housing Eviction and Its Record

Attorney Answer

There is no West Virginia procedure I can point you to for sealing or expunging an eviction record. Court files are public. Your realistic path is to attack the judgment itself, not the record of it — and that window is short.

Which federal rules protected you depends on what kind of subsidy you had, and this is where most people go wrong. If you held a Housing Choice Voucher and rented from a private apartment complex, 24 C.F.R. § 982.310 governs: the owner may terminate only for serious or repeated lease violations, violation of law relating to occupancy, or other good cause, must give you written notice specifying the grounds before starting eviction, and must give the housing authority a copy. There is no pre-eviction grievance hearing in that situation. If instead the complex was public housing owned by the housing authority, 24 C.F.R. § 966.50 et seq. applies, and you were entitled to written notice of lease termination and a grievance hearing before eviction proceedings could be filed. Find out which one you had before you argue anything.

On the state side, the landlord had to use the summary procedure in W. Va. Code § 55-3A-1 et seq. Under W. Va. Code § 55-3A-1(c), notice of the hearing must be served on the tenant under Rule 4 of the West Virginia Rules of Civil Procedure or by certified mail, and W. Va. Code § 55-3A-2 sets out the defenses available.

One case you should know about because it cuts against tenants: Dunbar Housing Authority v. Nesmith, 184 W. Va. 288, 400 S.E.2d 296 (1990). The tenant there won below on the argument that the housing authority waived the lease breach by accepting rent after the termination notice, and lost that ruling on appeal. The Court held that acceptance of rent does not automatically waive a forfeiture where the landlord is actively pursuing eviction, that waiver turns on the landlord's intent as a question of fact, and that a nonwaiver clause can prevent acceptance of rent from being a waiver. It is also a public-housing case, so its regulatory background does not transfer to a voucher tenancy.

What you can do

1. Call the housing authority and ask one question: was I a Housing Choice Voucher holder, or a public housing tenant? Everything else follows from the answer. 2. Get the complete court file from the clerk — the petition, the notice, proof of service, the judgment, and the date the judgment was entered. 3. Check whether you were actually served as W. Va. Code § 55-3A-1(c) requires, under Rule 4 or by certified mail. 4. Check whether you received written notice specifying the grounds before eviction was filed, as 24 C.F.R. § 982.310 requires for a voucher tenancy — or notice plus a grievance hearing if it was public housing under 24 C.F.R. § 966.50 et seq. 5. If the unauthorized occupant was in someone else's unit and was never your guest, write out exactly that, with names and dates. Good cause under 24 C.F.R. § 982.310 has to be about your tenancy. 6. If the judgment is recent, get to a legal aid office or housing lawyer this week about appealing or moving to set it aside. That is the only realistic way to change what shows up. 7. Ask the housing authority in writing what the eviction means for your voucher and what review it offers.

⏱ Time limits apply. The period to appeal or to move to set aside an eviction judgment entered under W. Va. Code § 55-3A-1 et seq. is short and runs from entry of judgment. It is fixed by court rule rather than by that section, and the exact date depends on your case. Get the judgment date from the clerk and ask a lawyer immediately.