## Facts

- Residential tenants Glen and Gretchen Murphy rented a house from John D. Smallridge, Jr. and related trust entities under a written lease beginning around May 1, 1990.
- After the written term ended, the tenancy continued month-to-month and could be terminated by the lessor on 30 days’ written notice.
- The tenants alleged the landlord dumped dirty, unsightly trash in the yard during the tenancy, interfering with their ability to keep the premises neat and clean as required by the lease.
- The tenants repeatedly complained to the landlord between December 1990 and September 1991 and asked him to stop, but the dumping continued.
- On September 23, 1991, the tenants anonymously reported the dumping to the West Virginia Department of Natural Resources (DNR).
- On September 26, 1991, a DNR investigator inspected the premises and informed the landlord the dumping was illegal.
- On September 27, 1991, the landlord notified the tenants that their tenancy was being terminated; the tenants alleged the landlord also offered to let them stay only if they accepted a $150 rent increase.
- The tenants vacated and filed suit alleging retaliatory eviction and related claims.

## Issues

1. Whether a residential tenant may bring an affirmative civil action for retaliatory eviction when the landlord acts against the tenant for exercising a right incidental to the tenancy.
2. Whether a tenant must remain in possession to maintain a retaliatory eviction claim, or may vacate and still sue for damages.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the dismissal/summary judgment for the landlord and remanded.
- The court held that West Virginia recognizes an affirmative cause of action for retaliatory eviction when a landlord’s adverse action is taken in retaliation for a tenant’s exercise of a right incidental to the tenancy.
- The court held a tenant need not remain in possession to preserve a retaliatory eviction claim.
- The court concluded the complaint’s allegations (report to DNR followed closely by termination and a demanded rent increase) were sufficient to state a claim; whether the landlord acted with retaliatory motive was a factual question unsuitable for dismissal at the pleading stage.

## Legal Principles

- A residential tenant may state an affirmative cause of action for retaliatory eviction if the landlord’s conduct is in retaliation for the tenant’s exercise of a right incidental to the tenancy.
- Reporting alleged legal violations affecting the leased premises to government authorities may qualify as the exercise of a right incidental to the tenancy.
- A tenant does not have to continue living on the premises to preserve a retaliatory eviction claim; vacating does not bar an action for damages.
- When assessing dismissal at the pleadings stage, allegations supporting a causal link between protected tenant activity and adverse landlord action generally present a fact question.

## Conclusion

West Virginia law permits tenants to sue landlords for retaliatory eviction as an affirmative claim, and tenants may vacate the premises without forfeiting the claim when the alleged adverse action follows the tenant’s exercise of tenancy-related rights such as reporting illegal conduct to authorities.


Murphy v. Smallridge, 468 S.E.2d 167 (W. Va. 1996)