## Facts

- Imperial Colliery Company leased a trailer lot in Burnwell, West Virginia to Danny H. Fout under a written lease beginning in June 1983.
- The lease had a one-month primary term, was terminable by either party on one month’s notice, and set annual rent at $1.00 payable each January 1.
- On February 14, 1986, Imperial notified Fout by certified letter that the lease would terminate March 31, 1986.
- After correspondence from Fout’s attorney describing family and financial problems, Imperial agreed to a two-month extension; later, Fout sought a further extension and tendered $1.00, to which Imperial did not respond.
- On June 11, 1986, Imperial filed a statutory summary eviction action seeking possession under W. Va. Code §§ 55-3A-1 et seq.
- Fout defended on the ground of retaliatory eviction and counterclaimed for injunctive relief and damages for annoyance and inconvenience.
- Fout alleged Imperial terminated the lease in retaliation for his membership in the United Mine Workers of America and participation in a selective strike against Milburn Colliery Company, an allegedly related company.
- Fout did not allege the termination was prompted by complaints about premises conditions, habitability, repairs, or housing-code enforcement.

## Issues

1. Whether a residential tenant sued for possession under W. Va. Code §§ 55-3A-1 et seq. may assert retaliatory eviction as a defense.
2. Whether, to be cognizable, the alleged retaliatory motive must relate to the tenant’s exercise of a right incidental to the tenancy.

## Decision

- The Supreme Court of Appeals of West Virginia held that retaliatory eviction may be asserted as a defense to a summary eviction proceeding under W. Va. Code § 55-3A-3(g).
- The court limited the defense to retaliation for the tenant’s exercise of rights incidental to the tenancy (i.e., tenant rights arising from the landlord-tenant relationship, including protections tied to habitability and related enforcement).
- The court ruled that retaliation alleged to stem from union membership or strike activity, unrelated to the leased premises or tenant protections, is not “incidental to the tenancy” and does not support the defense.
- The court affirmed summary judgment for the landlord dismissing Fout’s retaliatory-eviction claim and permitting possession to be awarded to Imperial.

## Legal Principles

- A tenant may assert retaliatory eviction as a defense in a summary eviction action when the landlord’s conduct is in retaliation for the tenant’s exercise of a right incidental to the tenancy.
- “Incidental to the tenancy” refers to rights and activities tied to the tenant’s status and interests as a tenant, including enforcement of statutory and common-law protections aimed at securing fit and habitable housing.
- The retaliatory-eviction defense does not extend to all constitutionally or statutorily protected activity; it excludes activity not arising from the tenancy relationship, such as off-premises union or strike activity unrelated to habitability or tenant protections.
- When the alleged retaliatory motive falls outside rights incidental to the tenancy, the defense fails as a matter of law, and summary judgment may be appropriate.

## Conclusion

West Virginia recognizes retaliatory eviction as a defense in summary eviction proceedings, but only when the alleged retaliation targets tenant conduct tied to rights arising from the tenancy; retaliation based on unrelated union and strike activity does not bar eviction.


Imperial Colliery Co. v. Fout, 179 W. Va. 776, 373 S.E.2d 489 (W. Va. 1988)