Counterclaims Instructions

How to file a counterclaim against your landlord using our form.  A counterclaim is usually filed with an answer. 

General Information
Deciding Between Affirmative Defenses and Counterclaims
Filing Fees
Completing the Caption
Making the Claims

1. Retaliation
2. Illegal Discrimination
3. Health or Safety Violations
4. Illegal Eviction - Shut Off
5. Illegal Eviction - Lock Out
6. Destruction of Property
7. Taking My Property (Also known as Wrongful Distraint)
8. Intentional Infliction of Emotional Distress
9. Other Counterclaims

Claims For Relief
Signatures and Certification
What To Do With Your Counterclaims

General Information

Before you decide to file a counterclaim, you must have already completed your Answer. The court will not accept a counterclaim without an Answer (they can be filed at the same time, however). A counterclaim is a lawsuit brought by the defendant against a plaintiff in an existing lawsuit. These instructions and forms will help you decide whether you can or should file counterclaims against your landlord, and how to do that.

The counterclaims included in this form are listed below. If the category applies to you, read each paragraph and, on the Counterclaims form, check the boxes that apply. If the category does not apply to you, move on to the next category. The categories are as follows:

1. Retaliation
2. Illegal Discrimination
3. Health or Safety Violations
4. Illegal Eviction -Shut Off
5. Illegal Eviction - Lock Out
6. Destruction of Property
7. Wrongful Distraint
8. Intentional Infliction of Emotional Distress
9. Other Counterclaims

Deciding Between Affirmative Defenses and Counterclaims

The first three categories in the list above are the same as the Affirmative Defenses listed in the Answer form. You can make these claims as either a defense, a counterclaim, or both. The difference between a defense and a counterclaim is sometimes confusing. The main difference is in what you can ask for as a result of the landlord's actions. Below are some things to consider when you are deciding whether to file a counterclaim.

For both defenses and counterclaims, the amount your rent is reduced or how much money you are awarded if you win is directly related to the harm you have suffered. This is called your "damages." To be awarded damages you must be able to prove that you have been harmed. If you have strong evidence showing how your landlord has harmed you, you should consider filing a counterclaim.

If you choose to file a counterclaim, you may have to pay a filing fee, which you will lose if you do not prove your case (there is more information on filing fees below).

Filing Fees

If you choose to file a counterclaim, you will be asked to pay a $75.00 filing fee. If you receive public assistance (welfare, SSI, etc.) or you are on a fixed income or in a low paying job, you should ask the court clerk for an "Application to Proceed In Forma Pauperis" (IFP) form. If the Court approves your IFP application, you will be allowed to file without paying the fee or by paying a reduced fee.

You can also get an "IFP Form" at the clerk's office when you file your Answer and Counterclaims.

The IFP Application form asks for information about your income and expenses and can be completed in a few minutes. If you fill out the form online, the Court's website will do the math for you. However, you can't save the form, so you will have to finish filling it out and then print it. You can also print the form and fill it out by hand later.

Submit the IFP Application form with your other papers, and the clerk will make his or her decision about the filing fee at that time. The filing fee is $75.00 no matter how many counterclaims you make.

Completing the Caption

Like all court papers, your counterclaims have a caption at the top so the court knows where to file them.

1. Next to (a), write in the name of the County in which the Complaint was filed.
2. Next to (b), write in the docket number if you know it.
3. Next to (c), write in the your landlord's name as it appears on the Complaint.
4. next to (d), write in your name as it appears on the Complaint.

Making the Claims

Each of the different counterclaims you can bring is identified on the counterclaim form in bold letters with a check box to the left. For each counterclaim that applies to you, check the box next to the title and check any other boxes or fill in the blanks in that section that apply.

There are additional sentences in each counterclaim section. The first sentence is a legal formality. Each counterclaim must state that there has been some harm or damage done. There is also a sentence that states a claim for Consumer Fraud violations. This is because most violations of a tenant's rights are also consumer fraud violations. The consumer fraud laws protect you against unfair or deceptive acts or practices of your landlord.

1. Retaliation

Tenants are protected against retaliation from their landlords. Specifically, there are three things that tenants have the right to do that are a defense to eviction: complain to your landlord about unhealthy or unsafe conditions in your home, complain to a government agency about these problems, participate in a tenants' union. If you believe that you are being evicted because you did any of these things, check this box on the Counterclaims form.

If you have suffered harm as a result of your landlord illegally retaliating against you, then check the box next to the type of activity in which you participated. You should be prepared to prove how the landlord's retaliation hurt you. For example, if your landlord caused you mental distress, you can prove that by testifying about how you felt and through witnesses with whom you had conversations at this time.

2. Illegal Discrimination

Not all bad treatment is discrimination, and not all discrimination is illegal. A landlord who treats all tenants badly, but treats them all equally, is not discriminating. Bad treatment is only illegal if the landlord treats you differently because of your race, color, national origin, sex (including sexual harassment), sexual orientation, religion, age, marital status, disability, family status (the fact that you have children), or receipt of public assistance (including housing, ReachUp, SSI, SSDI, Food Stamps or other programs).

Some housing is not subject to all fair housing laws. For example, there is an exception when the building is a duplex or triplex and the landlord or member of his or her immediate family lives in the building. In Burlington, owner-occupied duplexes are exempted from fair housing laws.

To prove a case of discrimination, you will need good evidence. Your word will usually not be enough. Good evidence includes witnesses who saw or heard the discrimination, people who were treated better than you, and complaint letters you wrote and responses from your landlord. Consider the following before you decide to sue your landlord for discrimination.

• Has your landlord or one of his employees treated you differently based on one of the reasons listed in bold in the first paragraph above?
• Is the landlord's or employee's action related to this eviction, your ability to get maintenance done on your apartment, or anything else having to do with your housing situation? If you answered "yes" to the questions above, will you be able to prove this?
• If you answered "yes" to all questions above, check the box in front of Illegal Discrimination, check the box or boxes that best describe the basis for the descrimination , and describe what happened in the blanks.

3. Habitability Violations (Unhealthy or Unsafe Conditions)

There are four questions to consider if you want to sue your landlord because there are bad conditions in your home.

1. Are there conditions in your home that are unsafe or that make it unfit for you to live there? Is your landlord not complying with Vermont's Rental Housing Health Code or other building regulations?

If you have questions about whether a specific bad condition at your home is a health or safety violation, look at our Right to Safe, Healthful Housing page. This page explains your right to safe, healthful housing and has links to Vermont State rules about health and safety and other useful housing health and safety websites. You can also read Renting in Vermont. or call Vermont Tenants at 864-0099 or 1-800-287-7971 or call Vermont Legal Aid at (800) 889-2047 for more information.

2. Have you given your landlord written or verbal notice of the problems?

3. Have the bad conditions at the home you rent seriously affected your family's health or safety?

4. If you answered "yes" to the questions above, do you have evidence, in addition to your own testimony, which will help you to prove these claims in court?

If you answered "yes" to all four numbered questions above, you can check the box next to the habitability counterclaim. You can still check this box and file a counterclaim even if you didn't answer "yes" to all of the questions, but your chances of success will be reduced.

In the space provided on the form, list bad conditions in your home, starting with the worst problem.

4. Illegal Eviction - Shut Off

Check this box if your landlord shut off any or all of your utilities without your permission or told the utility company to shut any of them off. Write a brief description of what the landlord did, which utilities were shut off, and the approximate dates that you were without the utility service.

5. Illegal Eviction - Lock Out

Check this box if the landlord acted to make it impossible for you to get into your home, such as changing locks or nailing the door shut. Write a brief description of the actions the landlord took, giving approximate dates, if you can, that you were not able to enter your home.

6. Destruction of Property

Check this box if your landlord damaged or destroyed any of your property.

7. Taking My Property (Also known as Wrongful Distraint)

Check this box if your landlord tried to prevent you from getting to some of your property, such as by holding it for back rent or by not allowing you onto the property to pick it up. Write a brief description of the property and explain what the landlord did to keep you from getting your property. Give the approximate dates that these events happened.

8. Intentional Infliction of Emotional Distress

Check this box if your landlord did outrageous things that caused you distress. Examples of this include changing your locks, repeatedly confronting you in an abusive or threatening way, sexually harassing you, or not fixing serious health or safety hazards for long periods of time. This could even include a utility shut-off or lock-out if it was done in a manner which is especially mean-spirited.

List the specific things the landlord did, including approximate dates, along with a description of the effects of these actions on you and your family. For example, did you seek counseling, did you have physical symptoms because of them (trouble sleeping or eating, etc.).

9. Other Counterclaims

These instructions and the Counterclaims form include specific information on the most common counterclaims in a landlord-tenant case. It is possible that you have another counterclaim against your landlord. One example is a claim for "betterments." If you did substantial work on the rental property and this work improved the value of the property (for instance, you added a deck), you may ask the court to require your landlord to reimburse you.

Another example of an "other counterclaim" would be a claim for personal injury. You should raise this as a counterclaim if you wish to try to collect damages from your landlord as a result of your injury. If you suffered serious personal injuries you should consult with an experienced personal injury attorney.

If you wish to bring a counterclaim that falls in the category of "other," describe your claim here, including how your landlord harmed you and what you want the court to do.

Claims For Relief

This is the section of your Counterclaim form where you tell the court what you want. In deciding which boxes to check, you need to think about what kind of outcome would satisfy you.

"Compensatory damages" is what the court awards you to make up for the actual amount of money that you are owed back from the landlord because of his actions. You should be ready to prove that he owes you this amount with receipts, or other documents or testimony.

You can also ask for an amount to compensate you for "pain and suffering." It may not be easy to put a dollar value on things like "distress"; however, the more accurate you are in estimating the value of your loss, the more likely you are to recover that amount.

"Judgement for triple damages for my landlord's violation of the Consumer Fraud Act" If the court finds that the landlord violated the Consumer Fraud Act the Court may award you triple damages. If you would like the court to consider this, check the box.

"The Court does not award attorneys' fees to the Plaintiff"
You should check this box to ask the court not to order you to pay for your landlord's attorney's fees and court costs.

"Order the landlord to repair any defective conditions in my apartment and decrease past and/or future rent to reflect the true value of the premises until all repairs are made"
If your home has serious health and safety violations and you would like to ask the court to order your landlord to fix these problems and reduce your rent until the problems are fixed, check this box.

"Any other relief the Court decides is necessary and just under the circumstances"
Checking this box gives the Court the power to grant any other relief that would be just under the circumstances, not limited to the specific relief you are asking for. Check this box.

Signatures and Certification

It is very important that you sign and date your Counterclaims. If you are filing on behalf of your family, only the person filling it out needs to sign. Be sure to fill in the date you are filing your Answer, sign and print your name. Make it easy for the Court to reach you by including your mailing address and a phone number where you can be reached. If the Court cannot get in touch with you easily, you may miss important deadlines or hearings.

The certification is the proof that you have mailed or delivered a copy of your completed Answer to the person named in the summons. This is typically the landlord's lawyer or the landlord herself if she doesn't have a lawyer. Fill in that person's name and full address in the spaces provided.

What To Do With Your Counterclaims

You should follow the same filing directions for your counterclaims form as with your answer form. Make two copies of your counterclaims. File the original form (the one that you signed) with the clerk of the Superior Court for the county in which the case was brought within 20 days from the day you were served with the Summons and Complaint (although if you miss the deadline you should still file the papers as soon as possible). (Check the top of the landlord's Complaint to see in what court the papers were filed.)

The papers may be mailed or delivered in person, as long as they reach the clerk's office by the end of the day on the 20th day from the date of service. Mail or hand-deliver a copy to the landlord's lawyer, or to the landlord if he or she does not have a lawyer, within this 20-day period. You can file both the Answer and the Counterclaims with the court at the same time. You can also mail them both to the other party.