3.12 Counterclaim

If the landlord files an eviction suit, the tenant may file a suit against the landlord, called a counterclaim. One reason a tenant may file a counterclaim is if the landlord has not maintained the rental property in a fit and habitable condition at all times. Serious violations would include lack of adequate heat and hot water, faulty wiring and other fire and safety hazards, and roach or rat infestations. For more information on the Warranty of Habitability see Section 2.

The tenant may also file a counterclaim for other reasons, including retaliation. For example, if the landlord started the eviction proceedings in retaliation for the tenant making a complaint about the conditions of the property or in retaliation for a civil rights discrimination complaint made by the tenant. W. Va. Code §55-3A-3(g).

The tenant may sue for money damages for not maintaining the property in fit and habitable condition and for annoyance and inconvenience as a result of the unlawful housing conditions. In magistrate court, the law allows the tenant to ask for damages, but only up to $10,000 (see new law WV Code §50-2-1, effective June 2016 increasing maximum case jurisdiction from $5,000 to $10,000). If the tenant has asked to have the eviction suit moved to circuit court, there is no limit on the amount of damages the tenant can legally ask for from the landlord in a counterclaim.

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