All posts by Hamilton

A Judicial Implied Warranty of Habitability for Arkansas–At Last

On August 9, in a lawsuit filed by Alexander Apartments, LLC against the City of Little Rock, Judge Alice Gray issued an order granting partial summary judgment in favor of tenants who intervened in the lawsuit. The intervenor-tenants sought a ruling by Judge Gray that an implied warranty of habitability exists in Arkansas, either in all residential lease agreements within the state, or in the alternative in residential leases of property in cities with housing codes. The court said “no” to the first argument, but “yes” to the second. This is an exciting development in landlord-tenant law in our state. The court found that the Little Rock Housing Code sets minimum standards of habitability. It stated that “the modern weight of authority” across the U.S. is that such standards within housing codes are intended to be incorporated into residential leases. It also noted that the Arkansas Supreme Court “has long held” that laws in force when and where a contract is entered into enter into the contract and become a part of it.

A trial will follow to determine whether the landlord breached the implied warranty of habitability, presumably by serious violations of the housing code, and if so to determine the amount of damages.

This is a trial court’s ruling, and so could possibly be appealed and overturned. It could also be affirmed on appeal. Conceivably, it applies to residential rental property in Pulaski and Perry Counties located in cities or towns with housing codes, and not just Little Rock. Whatever the future of this decision, it is a historic decision in Arkansas legal history. We applaud this decision and and also Prosecuting Attorney Larry Jegley’s decision not to enforce the bizarre, one-of-its-kind and arguably unconstitutional failure to vacate law. These two actions are in contrast with the Arkansas legislature’s failure to enact any legislation placed before it that would bring Arkansas up to the standards of any other states.

What can you do? Are you a landlord, property manager or realtor that handles residential rentals? Are you ashamed to live in a state with the worst laws for tenants, because you keep up your rental property? Then contact your professional organizations–Landlords Association of Arkansas , National Association of Residential Property Managers, and Arkansas Realtors Association–and urge them to support the repeal of failure to vacate–the enactment of a fair, fast and inexpensive civil eviction procedure–an implied warranty of habitability. Make this an issue in the 2018 elections. Where do your legislators stand?

Contact Senate Judiciary Members NOW to Oppose Senate Bill 25

Arkansas is the only state make it a crime for a renter to be late in making a rent payment. Under the failure to vacate statute, a tenant who is even one day late on a rent payment forfeits any security deposit or prepaid rent and can be convicted of a crime. Several courts have found the law to be unconstitutional, and Senate Bill 25 is an attempt to keep this a crime in Arkansas. Here are just a few more reasons why this bill would make for bad law:

    • SB25 doesn’t even give courts the power to evict tenants. If a tenant misses a rent payment and refuses to leave, the only legal option available is to charge the tenant with more misdemeanor offenses.
    • Arkansas treats all other contract disputes, like late mortgage or car payments, as civil matters.
    • Prosecuting attorneys and law enforcement officials should be able to focus their resources on catching criminals, not enforcing private contracts.
    • Taxpayers should not have to subsidize free lawyers for landlords who use criminal evictions.

Arkansas already has a civil eviction law in place. If landlords want easier, more effective procedures for evicting tenants who don’t pay, this is the law that should be amended. Call or email the members of the Senate Judiciary Committee TODAY to tell them to vote NO on Senate Bill 25:

Jeremy Hutchinson (Chair): 501-773-3760, Jeremy.Hutchinson@senate.ar.gov
Linda Collins-Smith (Vice Chair): 870-378-1434, linda.collins-smith@senate.ar.gov
Will Bond: 501-396-5400, will.bond@senate.ar.gov
Trent Garner: 870-818-9219, Trent.Garner@senate.ar.gov
Bryan King: 870-438-4565, bryan.king@senate.ar.gov
Terry Rice: 479-637-3100, terry.rice@senate.ar.gov
Greg Standridge: 479-968-1562, greg.standridge@senate.ar.gov
Gary Stubblefield: 479-635-4314, gary.stubblefield@senate.ar.gov

House Bill 1166 Assigned to Insurance & Commerce

After lawmakers returned to the Capitol after the MLK holiday, HB 1166–the so-called “Implied Quality Standards” bill–was assigned to the House Insurance and Commerce Committee. Eight of the bill’s sponsors (including lead sponsor Rep. Laurie Rushing) are members of that committee.

If enacted, HB1166 would NOT create a warranty of habitability. In other words, it would not require a rental property to even be fit for human habitation. The standards it establish  fall far below what reputable landlords routinely provide for their rental properties.

The bill’s sponsors and members of the House Insurance and Commerce Committee need to know that HB1166 does not make things better for Arkansas renters. Below is the contact information for committee members, as well as a sample email or letter that you can write to your own legislators, to the sponsors, or to the members of the committee that will take up the bill.

Sample Email:

Re: Please Fix HB1166

Dear Rep. ________:

I am writing to about House Bill 1166, which is supposed to put quality standards in place for rental homes and apartments. This bill leaves out some of the most basic standards that all other states require for residential rental properties. Most concerning to me is that it doesn’t require landlords to make any repairs, even if the tenant’s health or safety are at risk. There are several other major problems with this bill:

    • It doesn’t require the rental property to be safe, structurally sound, or even livable.
    • It doesn’t require common areas to be kept safe or fit for use.
    • A tenant’s only remedy if a landlord doesn’t follow the law is to to ask for termination of the lease and move out. They cannot withhold rent to make repairs, seek damages from a court, or even ask a court to require the landlord to make repairs.
    • It doesn’t protect tenants from landlords who might retaliate against a tenant for complaining about the condition of the property or making a report to housing code enforcement officials, increasing rent, decreasing services, or even evicting the tenant.

I believe that most landlords and property managers provide rental properties that far exceed what HB 1166 requires. I would urge you to consider adding provisions to provide minimum standards that good landlords already provide.

Sincerely,

_______________________

For a list of contact information of the bill’s cosponsors, click here and scroll to the bottom of the post.

Below is the contact information for the members of the House Insurance & Commerce Committee:

Rep. Charlie Collins, Chair, email, 479-283-9303
Rep. Robin Lundstrum, Vice Chair, email, 479-957-1959
Rep. Eddie Armstrong, email, 866-980-9438
Rep. Les Eaves, email, 501-827-1344
Rep. Joe Farrer, email, 501-743-6855
Rep. Deborah Ferguson, email, 870-735-7098
Rep. Ken Henderson, email, 479-970-4850
Rep. Grant Hodges, email, 479-381-9513
Rep. Joe Jett, email, 870-276-5319
Rep. Mark Lowery, email, 501-837-5221
Rep. John Maddox, email, 479-394-6060
Rep. Austin McCollum, email, 479-426-4141
Rep. Reginald Murdock, email, 870-295-3208
Rep. John Payton, email, 501-362-5815
Rep. Chris Richey, email, 870-995-2499
Rep. Marcus E. Richmond, email, 479-299-4416
Rep. Laurie Rushing (primary sponsor), email, 501-545-6066
Rep. Jim Sorvillo, email, 501-551-9571
Rep. DeAnn Vaught, email, 870-832-2638
Rep. Les Warren, email, 501-623-5165

Arkansas Can Do Better Than House Bill 1166

House Bill 1166 filed by Rep. Laurie Rushing says that it creates “implied quality standards” for residential rental properties. Such standards come nowhere close to the bare minimum that all other states require. These standards also fall fall short of what good landlords routinely provide. So what’s missing? Here are just a few examples of the most glaring problems.

  • First, and most important, the bill does not require the rental property to be safe, structurally sound, or even livable.
  • The bill does not require landlords to comply with building and housing codes that materially affect health or safety.
  • The bill fails to provide for common areas to be kept safe and fit for use.
  • The landlord has no obligation to make any repairs.
  • A tenant’s sole remedy if a landlord doesn’t follow the law is to to ask for termination of the lease and move out. She cannot withhold rent to make repairs, seek damages from a court, or even ask a court to require the landlord to make repairs.
  • A landlord is free to retaliate against a tenant who complains to the landlord about the condition of the property or makes a report to housing code enforcement officials by increasing rent, decreasing services, or even evicting the tenant.

Arkansas renters deserve better than this. Call HB 1166’s sponsors and tell them to fix the bill so that these most basic protections are included:

Rep. Laurie Rushing (primary sponsor), email, 501-545-6066
Rep. Rick Beck, email, 501-912-1441
Rep. Mary Bentley, email, 501-333-2297
Rep. Ken Bragg, email, 870-942-5269
Rep. David Branscum, email, 870-448-2408
Rep. Charlie Collins, email, 479-283-9303
Rep. Dan Douglas, email, 479-619-9231
Rep. Andy Davis, email, 501-837-5109
Rep. Jim Dotson, email, 479-644-0740
Rep. R. Trevor Drown, email, 479-857-2498
Rep. Les Eaves, email, 501-827-1344
Rep. David Fielding, email, 870-234-6143
Rep. Mickey Gates, email, 501-623-1100
Rep. Ken Henderson, email, 479-970-4850
Rep. Mike Holcomb, email, 870-489-7177
Rep. Joe Jett, email, 870-276-5319
Rep. Jack Ladyman, email, 870-340-7280
Rep. Tim Lemons, email, 501-605-7565
Rep. Mark Lowery, email, 501-837-5221
Rep. Milton Nicks, email, 870-739-5360
Rep. Rebecca Petty, email, 479-621-3464
Rep. Johnny Rye, email, 870-919-3690
Rep. Jim Sorvillo, email, 501-551-9571
Rep. Nelda Speaks, email, 870-421-2552
Rep. James Sturch, email, 870-612-7589
Rep. Dwight Tosh, email, 870-926-0423
Rep. Les Warren, email, 501-623-5165

Tell Senate Judiciary to Vote NO on SB 25

As we’ve detailed here and as reported here, Senate Bill 25 is an attempt to keep criminal evictions alive in Arkansas, even though the law authorizing this practice has been declared unconstitutional. You can read the bill for yourself here. SB25 has been assigned to the Senate Judiciary Committee; you can voice your opposition by calling or emailing members of that committee. A sample email and contact information follows.

Sample Email:

RE: Please Vote Against Senate Bill 25

Dear Senator ____________,

I am opposed to Senate Bill 25, which amends Arkansas’s failure to vacate statute in two ways by (1) removing the requirement that tenants make payments into a court registry or face greater criminal penalties upon conviction; and (2) adding a provision to allow a criminal court to issue a writ of possession or a “court order to evict the tenant from the leased premises.”

If SB 25 is enacted, Arkansas will remain the only state to criminalize nonpayment of rent.  Our limited law enforcement resources should be used to fight crime, not to enforce civil contracts.  Just as Arkansas does not criminally prosecute individuals who miss a mortgage payment or a car note payment, criminal prosecution is not appropriate for missed rent payments.  This statute effectively subsidizes landlords, who don’t have to hire attorneys to sue to evict. Taxpayers foot the bill for prosecuting attorneys who handle these cases.

Civil contract disputes should be resolved by civil courts.  Arkansas already has a civil eviction law—the unlawful detainer statute—that allows a civil judge to issue a writ of possession.  For cases of nonpayment, a writ of possession can be ordered less than ten days from the date of the missed payment.  In contrast, a failure to vacate case cannot begin until at least eleven days after a missed payment.  Using civil courts for evictions is more efficient because the court can resolve all the issues between the landlord and tenant in one case.

SB 25 does not fix the problems with Arkansas’s eviction laws.  If enacted as written, SB 25 will likely face legal challenges that would leave Arkansas with a patchwork eviction system for another two years.  Three Arkansas judges have said that the existing failure to vacate statute is entirely unconstitutional.  Amending just one part of the statute will not fix this.  Adding a process for eviction to a criminal law may create new problems, because an eviction is not a criminal sanction.

I urge you to oppose this bill.  Thank you for your attention and consideration.

Very truly yours,
____________________

Sen. Jeremy Hutchinson, Chair, (501) 773-3760, email
Sen. Linda Collins-Smith, Vice Chair, (870) 378-1434, email
Sen. Will Bond, (501) 396-5400, email
Sen. Trent Garner, (870) 818-9219, email
Sen. Bryan King, (870) 438-4565, email
Sen. Terry Rice, (479) 637-3100, email
Sen. Greg Standridge, (479) 968-1562, email
Sen. Gary Stubblefield, (479) 635-4314, email