Tenant's Answer, Affirmative Defenses, Counterclaims, and Jury Demand to Petition for Wrongful Occupation (West Virginia)

RESPONDENT TENANT'S VERIFIED ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND DEMAND FOR JURY TRIAL — WEST VIRGINIA

TABLE OF CONTENTS

1. Caption
2. General Denial and Preservation of Defenses
3. Specific Responses to Petition Allegations
4. Affirmative Defenses
5. Counterclaims
6. Demand for Jury Trial
7. Request for Discovery / Removal
8. Prayer for Relief
9. Verification
10. Signature and Service Blocks
11. Certificate of Service
12. West Virginia Practice Notes
13. Sources and References

1. CAPTION

STATE OF WEST VIRGINIA

[COUNTY] COUNTY

IN THE [MAGISTRATE / CIRCUIT] COURT OF [COUNTY] COUNTY

CIVIL ACTION NO. [________________________________]

RESPONDENT'S VERIFIED ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND DEMAND FOR JURY TRIAL

COMES NOW Respondent [TENANT NAME] (the "Tenant"), by and through undersigned counsel, and for Tenant's Answer to the Verified Petition for Summary Relief for Wrongful Occupation of Residential Rental Property (the "Petition"), states as follows:

2. GENERAL DENIAL AND PRESERVATION OF DEFENSES

Tenant denies each and every allegation of the Petition not expressly admitted herein. Tenant denies that Tenant is "wrongfully occupying" the Premises within the meaning of W. Va. Code § 55-3A-1 and demands strict proof at the hearing. Tenant expressly preserves and does not waive any defense available under West Virginia statutory law, common law, or federal law, including the implied warranty of habitability under Teller v. McCoy, 162 W. Va. 367 (1978).

3. SPECIFIC RESPONSES TO PETITION ALLEGATIONS

3.1. Paragraph 1.1 (Petitioner's identity). Tenant [admits / denies / lacks sufficient knowledge to admit or deny] the allegations of paragraph 1.1.

3.2. Paragraph 1.2 (Tenant's identity). Admitted that Tenant resides at the Premises. All other allegations are [admitted / denied].

3.3. Paragraph 1.3 (Other occupants). [Admit / Deny / State as appropriate].

3.4. Paragraph 1.4 (Jurisdiction). Subject-matter jurisdiction is [admitted / disputed because: __________].

3.5. Paragraph 1.5 (Venue). [Admitted / denied].

3.6. Paragraphs 2.1-2.2 (Description of Premises). [Admitted / denied].

3.7. Paragraphs 3.1-3.5 (Tenancy / Lease). [Admit existence of Lease; deny that Lease attached as Exhibit A is the operative agreement / admit; etc.]

3.8. Paragraphs 4.1-4.4 (Pre-Suit Notice). If a pre-suit notice was required by the lease or an applicable law, Tenant disputes its sufficiency on the following supported grounds:

• ☐ The Notice omitted a cure period required by [identify the applicable lease term or law];
• ☐ The Notice was not served by an authorized method;
• ☐ The Notice misstated the rent amount due;
• ☐ The Notice was not signed by the landlord or an authorized agent;
• ☐ Other: [___________________].

3.9. Paragraphs 5.1-5.2 (Grounds for wrongful occupation). DENIED. Tenant specifically denies:

• ☐ That Tenant is in arrears in rent (see ¶ 4.1 below);
• ☐ That Tenant breached any covenant of the Lease;
• ☐ That Tenant deliberately or negligently damaged the Premises;
• ☐ That Tenant has held over after lawful termination.

3.10. Paragraphs 6.1-6.2 (Damages). DENIED. The amounts and categories pleaded are inflated and/or unsupported by competent evidence.

3.11. Prayer for Relief. Tenant denies that Petitioner is entitled to any of the relief requested.

4. AFFIRMATIVE DEFENSES

Without admitting any allegation of the Petition, and reserving the right to amend upon further investigation and discovery, Tenant asserts the following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE — Breach of Implied Warranty of Habitability (Teller v. McCoy)

4.1. The Premises has been, throughout the relevant period, in a condition that materially violates the implied warranty of habitability recognized by Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978), and the statutory duty under W. Va. Code § 37-6-30, including the following defects:

4.2. Petitioner had actual notice and a reasonable opportunity to repair but failed to do so.

4.3. Under Teller, the tenant's duty to pay rent is "mutually dependent" on the landlord's fulfillment of the warranty. Breach of the warranty is a defense to wrongful occupation premised on nonpayment and entitles Tenant to a rent abatement equal to the difference in value between the Premises as warranted and as delivered, plus damages for annoyance and inconvenience.

4.4. The implied warranty is non-waivable as against public policy.

SECOND AFFIRMATIVE DEFENSE — Retaliatory Eviction (Imperial Colliery v. Fout)

4.5. The Petition is brought in retaliation for Tenant's exercise of rights incidental to the tenancy, specifically:

• ☐ Reporting habitability defects to the landlord on [__/__/____];
• ☐ Contacting [CITY / COUNTY] code enforcement on [__/__/____] (case # [___]);
• ☐ Filing a complaint with the [WV Human Rights Commission / HUD / other agency] on [__/__/____];
• ☐ Joining or organizing a tenant association;
• ☐ Withholding rent in good faith pursuant to Teller;
• ☐ Asserting a security-deposit / consumer-protection claim;
• ☐ Other: [___________________].

4.6. Under Imperial Colliery Co. v. Fout, 179 W. Va. 776, 373 S.E.2d 489 (1988), retaliatory eviction is a valid defense in WV when the tenant's protected activity is "incidental to the tenancy."

THIRD AFFIRMATIVE DEFENSE — Defective Pre-Suit Notice

4.7. The pre-suit notice required by [identify the applicable lease term or law] was defective because [select and support only applicable grounds]:

• The notice period was insufficient;
• The Notice omitted a cure period or remedy required by that term or law;
• The Notice was not properly served;
• The Notice was issued by a person without authority;
• The Notice misstated the amount due or the conduct alleged.

Identify the statute or lease term that required the particular demand or cure opportunity before asserting a notice defect. Section 55-3A-1(a) permits a wrongful-occupation petition based on arrears, breach, or damage without stating a general pre-suit cure-notice requirement.

FOURTH AFFIRMATIVE DEFENSE — Waiver / Acceptance of Rent

4.8. Petitioner waived the alleged default by accepting rent (or partial rent) on [__/__/____] with knowledge of the alleged breach, thereby reinstating the tenancy or estopping the present action.

FIFTH AFFIRMATIVE DEFENSE — Setoff / Recoupment (Habitability + Security Deposit)

4.9. Any sums Tenant is found to owe must be reduced by:

• Rent abatement under Teller and § 37-6-30;
• Out-of-pocket repair-and-deduct costs (where authorized);
• Security deposit wrongfully withheld by Petitioner under § 37-6A-2.

SIXTH AFFIRMATIVE DEFENSE — Discrimination (FHA / WV Human Rights Act)

4.10. The Petition is filed on the basis of, or with intent to discriminate on the basis of, [race / color / religion / national origin / sex / familial status / disability / blindness / ancestry] in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., and W. Va. Code § 16B-18-1 et seq.

SEVENTH AFFIRMATIVE DEFENSE — Failure to Accommodate (FHA)

4.11. Petitioner refused to grant a requested reasonable accommodation under 42 U.S.C. § 3604(f) for Tenant's disability, including [describe — e.g., assistance animal, transfer of unit, modification] requested on [__/__/____].

EIGHTH AFFIRMATIVE DEFENSE — Servicemembers Civil Relief Act

4.12. Tenant is a servicemember in military service or a covered dependent of a servicemember. The Premises are occupied or intended to be occupied primarily as a residence, and monthly rent is within the annually adjusted cap under 50 U.S.C. § 3951(a). Tenant invokes the court-order protection. Because military service materially affects the servicemember's ability to pay the agreed rent, Tenant requests a 90-day stay unless justice and equity require a longer or shorter period, or an adjustment of the lease obligation under § 3951(b). Identify the service/dependent status, rent, residence, and material-effect evidence: [________________________________].

NINTH AFFIRMATIVE DEFENSE — VAWA Protections

4.13. The Premises are housing assisted under a covered housing program, Tenant otherwise qualifies, and the eviction is based on Tenant's protected status or qualifying incidents of domestic violence, dating violence, sexual assault, or stalking against Tenant, in violation of 34 U.S.C. § 12491(b).

TENTH AFFIRMATIVE DEFENSE — Self-Help / Unclean Hands

4.14. Petitioner engaged in unlawful self-help (lockout, utility shut-off, removal of property) on [__/__/____], barring equitable relief and giving rise to the counterclaims pleaded below.

ELEVENTH AFFIRMATIVE DEFENSE — Federal Housing Program Notice or Procedure (IF APPLICABLE)

4.15. The Premises is assisted under [IDENTIFY PROGRAM]. Petitioner failed to satisfy [DESCRIBE SPECIFIC NOTICE OR PROCEDURE AND FACTS]. For a project covered by 24 C.F.R. Part 247, identify the termination-notice defect under § 247.4; that section does not itself require a grievance procedure. For public housing, identify any applicable PHA grievance right under Part 966, subject to its exceptions. For a tenant-based Housing Choice Voucher, identify the owner's notice duty under § 982.310; Part 247 does not apply to that tenancy.

TWELFTH AFFIRMATIVE DEFENSE — Statute of Limitations / Laches

4.16. Petitioner's claims are barred in whole or in part by applicable statutes of limitation and the doctrine of laches.

THIRTEENTH AFFIRMATIVE DEFENSE — Reservation

4.17. Tenant reserves the right to assert additional defenses as discovery proceeds.

5. COUNTERCLAIMS

Subject to the rules governing counterclaims in [Magistrate / Circuit] Court, Tenant asserts the following counterclaims:

COUNTERCLAIM I — Breach of Implied Warranty of Habitability and W. Va. Code § 37-6-30

5.1. Counterclaim Plaintiff (Tenant) realleges paragraphs 4.1-4.4 above.

5.2. Counterclaim Defendant (Landlord) breached the warranty and § 37-6-30 by failing to maintain the Premises in fit and habitable condition despite notice.

5.3. Tenant has suffered damages, including:

• Diminution in value of the leasehold (rent abatement) of $[____];
• Out-of-pocket costs (repairs, hotel, food, medical) of $[____];
• Damaged personal property of $[____];
• Annoyance, inconvenience, and emotional distress.

COUNTERCLAIM II — Wrongful Withholding of Security Deposit (W. Va. Code §§ 37-6A-2, 37-6A-5)

5.4. Tenant paid a security deposit of $[____] on [__/__/____].

5.5. The tenancy terminated (or will terminate) on [__/__/____]. Landlord has failed to deliver the security deposit, less only lawful itemized deductions, within the applicable notice period (60 days of termination of tenancy or 45 days of subsequent occupation, whichever is shorter).

5.6. If the failure to comply was willful or not in good faith, Tenant seeks the remedies in W. Va. Code § 37-6A-5(a):

• The amount of any unreturned security deposit; and
• Damages for annoyance or inconvenience equal to one and one-half (1.5) times the amount wrongfully withheld, subject to the statutory rent-credit rule.

Tenant requests court costs or attorney fees for this counterclaim only if a separate, applicable authority permits them: [IDENTIFY AUTHORITY, IF ANY].

COUNTERCLAIM III — Unlawful Self-Help / Trespass / Conversion

5.7. On [__/__/____], Landlord engaged in unlawful self-help by [changing locks / removing tenant property / shutting off utilities / forcibly entering] without a court order.

5.8. Tenant has suffered actual damages (lost / damaged property, alternate housing, emotional distress) and is entitled to compensatory and (where willful and wanton) punitive damages.

COUNTERCLAIM IV — Retaliation (Common-Law per Imperial Colliery v. Fout)

5.9. Realleging paragraphs 4.5-4.6, Tenant is entitled to compensatory damages for the harms caused by the retaliatory eviction proceeding, including legal fees and emotional distress.

COUNTERCLAIM V — Fair Housing / Discrimination

5.10. Realleging paragraphs 4.10-4.11, Tenant seeks relief available under 42 U.S.C. § 3613 and W. Va. Code § 16B-18-14.

COUNTERCLAIM VI — Consumer Credit and Protection Act (W. Va. Code § 46A-1-101 et seq.) — IF APPLICABLE

5.11. Landlord's collection practices and notices constitute violations of the WV Consumer Credit and Protection Act, entitling Tenant to actual damages, civil penalties, and attorney fees.

6. DEMAND FOR JURY TRIAL

Pursuant to Article III, Section 13 of the West Virginia Constitution, Tenant hereby demands a TRIAL BY JURY on all issues so triable, both as to the Petition and Tenant's Counterclaims.

7. REQUEST FOR DISCOVERY / REMOVAL

7.1. Discovery. Tenant requests leave to conduct limited discovery, including production of:

• The complete rent ledger;
• Maintenance records and work orders for the Premises for the prior 24 months;
• All communications between Petitioner and Tenant;
• Inspection reports and photographs;
• Code-enforcement correspondence; and
• Insurance claim files relating to alleged damage.

7.2. Removal to Circuit Court (IF APPLICABLE). Pursuant to W. Va. Code § 50-4-8, Tenant moves (or will move by separate motion) to remove this action to the Circuit Court of [COUNTY] County because Tenant's counterclaims exceed the magistrate jurisdictional limit of $20,000, exclusive of interest and costs, and/or involve issues of equitable or constitutional dimension beyond the magistrate's authority.

8. PRAYER FOR RELIEF

WHEREFORE, Tenant respectfully prays that the Court:

• A. Deny the Petition in its entirety and dismiss with prejudice;
• B. Enter judgment for Tenant on each counterclaim, awarding compensatory, statutory, and (where appropriate) punitive damages;
• C. If the statutory willfulness or bad-faith condition is proved, award the unreturned security deposit and 1.5x damages under W. Va. Code § 37-6A-5; award costs or attorney fees on this claim only under an identified separate authority;
• D. Award attorney fees and costs under the Fair Housing Act, the WV Human Rights Act, the WV Consumer Credit and Protection Act, and any other applicable fee-shifting authority;
• E. Grant a trial by jury on all issues so triable;
• F. Stay execution of any order of possession pending appeal;
• G. Grant such other and further relief as the Court deems just and equitable.

9. VERIFICATION

STATE OF WEST VIRGINIA

COUNTY OF [_______________]

I, [TENANT NAME], being first duly sworn, depose and say that I am the Respondent / Counterclaim Plaintiff in the foregoing action; that I have read the foregoing Verified Answer, Affirmative Defenses, Counterclaims, and Demand for Jury Trial; and that the matters and facts stated therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]

[TENANT NAME]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public — State of West Virginia

(My Commission Expires: [_______________])

10. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME] (or "Pro Se")

By: [________________________________]

[ATTORNEY NAME], W. Va. State Bar No. [####]

Counsel for Respondent / Tenant

[STREET ADDRESS]

[CITY, WV ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

11. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [_______________], 20[____], I served a true and correct copy of the foregoing VERIFIED ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND DEMAND FOR JURY TRIAL upon the Petitioner / Petitioner's counsel by:

• ☐ Hand delivery
• ☐ U.S. First-Class Mail, postage prepaid
• ☐ U.S. Certified Mail, Return Receipt Requested
• ☐ Electronic mail (with consent / pursuant to court rule)
• ☐ E-filing through the West Virginia Unified Court System portal

addressed to:

[PETITIONER / COUNSEL NAME AND ADDRESS]

[________________________________]

[ATTORNEY / TENANT NAME]

12. WEST VIRGINIA PRACTICE NOTES

• Written Answer not strictly required. Magistrate Court permits oral defense at the hearing. However, a written verified Answer:
• preserves affirmative defenses for appeal;
• documents the jury demand;
• frames counterclaims (including security-deposit penalties); and
• signals seriousness for settlement.
• Hearing in 5-10 judicial days. § 55-3A-1(b) requires fast scheduling after filing. Prepare evidence (photos, dated communications, code reports) immediately upon receipt of the petition.
• Habitability defense (Teller v. McCoy). Plead specific defects, dates of notice to landlord, and the demand for rent abatement. Witness testimony from neighbors, code officers, and contractors is highly persuasive.
• Retaliation defense (Imperial Colliery v. Fout). Connect the protected activity to the eviction with TIMING (e.g., notice issued 14 days after code complaint). The activity must be "incidental to the tenancy."
• Security deposit counterclaim. Section 37-6A-2 governs return and lawful deductions; § 37-6A-5(a) provides the unreturned deposit and 1.5x damages if noncompliance was willful or not in good faith. Confirm the return deadline has passed and plead the facts supporting that condition. The deposit statute itself does not award attorney fees.
• Removal to Circuit Court. Where counterclaims exceed $20,000, exclusive of interest and costs, removal may be appropriate under W. Va. Code § 50-4-8. Circuit Court provides full discovery (interrogatories, depositions) and reduces the "rocket-docket" pressure.
• Jury demand. Article III § 13 of the WV Constitution preserves jury trial in qualifying common-law suits when either party requires it. Confirm the qualifying issues and applicable demand procedure with the court.
• Appeal. Section 50-5-12(a) sets the 20-day period to request appeal from a magistrate judgment or a decision on a motion to set it aside, with bond and prepayment-waiver provisions. Although that section stays further enforcement on filing or granting appeal, § 55-3A-3(g) says an appealing tenant is not entitled to remain in possession if the tenancy period has otherwise expired. Seek case-specific advice on possession pending appeal.
• Payment in nonpayment cases. Bring proof of any payment or tender and any written agreement to continue the tenancy. Article 3A does not make payment before the hearing an automatic way to defeat possession. Check the lease and any applicable housing-program cure rule; for a project covered by 24 C.F.R. § 247.4(c), the landlord may not file a nonpayment eviction if the tenant pays the alleged rent within the 30-day notification period.
• Self-help countersuit. Lockouts and utility shut-offs by a WV landlord without a court order are tortious. Conversion, trespass, and (in egregious cases) IIED claims are viable.
• Subsidized housing. Identify the program first. Part 247 applies to the projects described in § 247.1, not to tenant-based Housing Choice Vouchers. Public housing grievance rules are in Part 966, with exceptions; voucher owner termination and notice rules are in § 982.310. Plead the particular unmet requirement and facts.
• Federal Servicemembers protection. For premises occupied or intended primarily as a residence with rent within the annually adjusted cap, 50 U.S.C. § 3951 requires a court order to evict a servicemember or covered dependent during the servicemember's military service. On the qualifying servicemember request and material effect on ability to pay agreed rent, the court must grant a 90-day stay unless justice and equity require a longer or shorter period, or adjust the lease obligation. Confirm coverage and the required facts; the section does not create an automatic stay for every military household.
• VAWA. Covered tenants cannot be evicted solely because they were victims of domestic violence, dating violence, sexual assault, or stalking.
• Charleston / Morgantown. Check current local ordinances and their geographic reach before pleading any city-specific defense.

13. SOURCES AND REFERENCES

• W. Va. Code § 55-3A-1 — https://code.wvlegislature.gov/55-3A-1/
• W. Va. Code § 55-3A-2 — https://code.wvlegislature.gov/55-3A-2/
• W. Va. Code § 55-3A-3 — https://code.wvlegislature.gov/55-3A-3/
• W. Va. Code § 37-6-5 — https://code.wvlegislature.gov/37-6-5/
• W. Va. Code § 37-6-30 — https://code.wvlegislature.gov/37-6-30/
• W. Va. Code § 37-6A-1 et seq. — https://code.wvlegislature.gov/37-6A/
• W. Va. Code § 37-6A-2 (Security deposit return and deductions) — https://code.wvlegislature.gov/37-6A-2/
• W. Va. Code § 37-6A-5 (Noncompliance remedy) — https://code.wvlegislature.gov/37-6A-5/
• W. Va. Code § 16B-18-1 et seq. (West Virginia Fair Housing Act)
• W. Va. Code § 50-4-8 (Removal)
• W. Va. Code § 50-5-12 (Magistrate appeals)
• W. Va. Code § 46A-1-101 et seq. (Consumer Credit and Protection Act)
• W. Va. Const. art. III, § 13 (Jury trial)
• Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978)
• Imperial Colliery Co. v. Fout, 179 W. Va. 776, 373 S.E.2d 489 (1988)
• Fair Housing Act, 42 U.S.C. § 3601 et seq.
• Servicemembers Civil Relief Act, 50 U.S.C. § 3901 et seq.
• Violence Against Women Act, 34 U.S.C. § 12491
• 24 C.F.R. §§ 247.1, 247.4 (termination of covered HUD-assisted project tenancies)
• 24 C.F.R. § 966.51 (public housing grievance procedure)
• 24 C.F.R. § 982.310 (Housing Choice Voucher owner termination)
• Legal Aid of West Virginia — Court Eviction Process: https://legalaidwv.org/legal-information/court-eviction-process/
• Legal Aid of West Virginia — Appealing an Eviction: https://legalaidwv.org/legal-information/appealing-an-eviction-case-to-circuit-court/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in West Virginia must review and customize this document before filing. The 5-10 judicial-day hearing window in § 55-3A-1(b) makes prompt legal review especially urgent for tenants.