Retaliation may be asserted as a defense to a summary eviction proceeding under W. Va. Code § 55-3A-1 et seq., if the landlord's conduct is in retaliation for the tenant's exercise of a right incidental to the tenancy.
The tenant, Danny H. Fout, was employed as a coal miner and rented a house trailer from the landlord, Imperial Colliery Company ("Imperial"), which was allegedly interrelated with Fout's employer. When Imperial filed suit for possession of the premises, Fout asserted that the suit was brought in retaliation for his involvement in a strike by union mine workers. Fout claimed that the alleged retaliatory motive was violative of his First Amendment rights of free speech and assembly and of the National Labor Relations Act. Fout appealed from a summary judgment entered by the Kanawha County Court (West Virginia), which dismissed his retaliatory eviction defense and awarded possession of the premises to Imperial.
Could Fout assert retaliation by Imperial as a defense if Imperial's conduct was not in retaliation for Fout's exercise of a right incidental to the tenancy?
The state supreme court held that retaliation could be asserted as a defense to a summary eviction proceeding only if Imperial's conduct was in retaliation for Fout's exercise of a right incidental to the tenancy. Fout's First Amendment rights that were allegedly violated were unrelated to his property interest and did not arise from the tenancy relationship. Therefore, those rights were not protected under the retaliatory eviction defense.