Repeated Eviction From a Rental With Habitability Defects

Attorney Answer

You may have a claim for money damages — but because you have already been evicted, the habitability defense that could have kept you in the home is no longer available to you for evictions that are finished.

West Virginia does require what you were not getting. W. Va. Code § 37-6-30 obligates a residential landlord to "at the commencement of a tenancy, deliver the dwelling unit and surrounding premises in a fit and habitable condition, and shall thereafter maintain the leased property in such condition"; to "maintain the leased property in a condition that meets requirements of applicable health, safety, fire and housing codes"; to "maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities"; and to "supply running water and reasonable amounts of hot water at all times, and reasonable heat between October 1, and the last day of April." No running water and no working bathroom or kitchen go straight to the plumbing and running-water duties. Mold implicates the health and housing code duty. Missing kitchen cabinets that were removed and never replaced go to the maintenance duty.

Those duties are enforceable in court. In Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (W. Va. 1978), the Supreme Court of Appeals adopted the implied warranty of habitability in residential leases and treated the lease covenants as mutually dependent, holding that breach of the implied warranty is a material covenant on which the duty to pay rent depends and may be raised as a defense in a landlord's action for rent, and expressly holding that it is a defense to an action for unlawful detainer. Damages are measured by the difference between the fair market value of the premises as warranted and the fair rental value of the premises as they actually were during your occupancy, and you may additionally recover damages for annoyance and inconvenience proven to have resulted from the breach.

But read the limits, because they are the part that decides real cases. The breach must be of a substantial nature rendering the premises uninhabitable and unfit — minor code violations do not entitle a tenant to a rent reduction. You must have given the landlord notice of any defect he did not already know about. A landlord is not liable for a defect caused by the tenant's own wrongful conduct. West Virginia does not allow repair-and-deduct. And where only part of the rent obligation is suspended, the tenant must be given the chance to pay the balance or judgment goes to the landlord.

On timing, Jaroush v. Cook, 170 W. Va. 714, 296 S.E.2d 544 (W. Va. 1982), applied Teller in the eviction posture: where a landlord bases the right to repossess on nonpayment and the tenant defends by alleging breach of the implied warranty, the tenant must not be immediately dispossessed but must be given an opportunity to prove the allegations; if the breach is proved, the tenant may elect to retain possession, and if it is not, he can be dispossessed. That is a defense in a pending case. It does not reverse an eviction that has already happened. What remains for you is an affirmative damages claim under Teller and § 37-6-30 — and, if a case is still pending or an appeal window is open, the defense itself.

What you can do

1. Find out whether either eviction case is still open or still within an appeal period. Call the magistrate court clerk and ask for the status of each case. This is the first call to make, because the answer changes what is possible. 2. Gather your proof of the conditions: photos and videos with dates, the removed cabinets, the mold, the non-working bathroom and kitchen. 3. Find your notice to the landlord — texts, emails, letters, or the maintenance requests you made. Under Teller, notice of defects he did not already know about is required, so this evidence is essential. 4. Get any inspection or code enforcement records. Contact the local health or code enforcement office and ask whether the unit was ever cited. 5. Add up what you paid in rent for each period the unit lacked running water and a working bathroom or kitchen. That total is the basis of the damages measure Teller sets. 6. Take all of it to a legal aid office or a landlord-tenant lawyer. Ask specifically about an affirmative claim for the difference between the rent you paid and what the place was actually worth, plus annoyance and inconvenience.