All posts by Crittenden

Summing Up the Session

The parking spaces around the Capitol are empty once more; the legislators have gone home. Which of the four bills concerning landlords and tenants were enacted? Let’s sum up.

Act 159 — Failure to Vacate
Supported by the Arkansas Realtors Association, this law revives the failure to vacate statute that three courts declared unconstitutional in 2015 and that about 25 Arkansas counties were already declining to enforce. The new act removes the most unconstitutional portions of the old law and restores it to its pre-2001 state. In that form, the Arkansas Supreme Court ruled it was constitutional, but the ruling was based on facts that are not true today (for example, the fact that tenants could present civil defenses, which the current law does not permit).

Here are the problems with Act 159. First, it does not give a judge the authority to actually evict a tenant. All the judge can do is fine the tenant between $1 and $25 each day the tenant remains on the premises. Thus, it will be perfectly lawful for a judge who finds a tenant guilty to fine the tenant $1 per day. Any eviction authorized under this statute will be an illegal eviction. The judge has no power to authorize the landlord to retake possession under this statute. Arkansas remains the only state to subject a tenant who essentially breaches a lease to criminal sanctions, with the potential for arrest, large criminal fines and jail time for nonpayment or failure to appear in court. We would not be surprised to see the new statute subjected to a lawsuit in the near future. Tenants, read the statute carefully. If you don’t pay your rent when it is due (even if it’s only a day late) this statute takes away the remainder of your lease term. If you then remain for more than ten days, under this statute you’re a criminal. Your landlord is benefiting from the free attorney services of a prosecuting attorney, but there’s no attorney for you. This statute subsidizes landlords at the expense of taxpayers and law enforcement services.

To repeat a comparison used elsewhere, it’s as though if, when you missed a mortgage payment, you immediately lost your ownership interest in your home and had to leave within ten days of when the bank sent you a notice. And if you weren’t out by then, you’d be hauled into criminal court and fined. This law is an embarrassment to the state of Arkansas. It would not be in our books were it not for the Arkansas Realtors Association and our legislature.

Senate Bill 600 — A Civil Eviction Procedure
Drafted late in the session by advocates for fair landlord-tenant laws, this bill would have given Arkansas a faster, simpler civil eviction procedure than the 19th-century unlawful detainer law currently on the books. It would give each party their day in court and would take place quickly, and would lessen a landlord’s need to hire an attorney. It did not make it out of committee. Do you know a realtor? Ask him or her why the Arkansas Realtors Association did not support this bill, and seems to be dead set against fair and balanced landlord-tenant laws in this state. Here’s a shout-out to the legislators who supported this bill.

House Bill 1166 — A Wolf in Sheep’s Clothing
This bill was supported by the Landlords Association of Arkansas. It was hard to tell whether the Arkansas Realtors Association supported it or not, as different people involved in advancing the legislation were getting conflicting information from the Association. HB1166 sailed through the House but ran aground in the Senate Insurance and Commerce Committee. This bill was a misrepresentation. Some of its proponents probably intended to  call it an implied warranty of habitability once it was enacted, but it was really, actually, nothing. It imposed very minimal requirements on landlords, with no consequences at all if the requirements were not met.  If a tenant complained and the landlord didn’t make the repair, the tenant could move out — that was the sole consequence. For several weeks, the bill even contained a provision that would harm tenants even more by denying them a right to damages that they currently have if certain conditions are met.

House Bill 2135 — A Real Implied Warranty of Habitability
This bill was the same as HB1486 from 2015, which was written in part by a landlord, and supported by the Landlords Association of Arkansas. It was introduced late in the session by advocates for fair landlord-tenant laws and died in committee.

It seems clear after this session that the most defiant obstacle to more fair and balanced landlord-tenant laws in Arkansas is the Arkansas Realtors Association. The Association seems not to care that our laws are a blot on Arkansas’s reputation because it is so out of line with other states.

 

 

 

HB1166 NO!

HB1166 was assigned today to the Senate Insurance and Commerce Committee, which has a very short bill list–so it could be heard tomorrow and could be voted on early next week in the Senate.

On its face HB1166 looks good. It requires landlords to do certain things to benefit tenants. No one could argue with that, correct? Well–here is all a landlord has to do.

  1. Supply heat and air to the same degree they existed at the beginning of the lease.
  2. Supply a “functioning floor and building envelope.” This is not defined.
  3. Supply water, plumbing and electricity.

At “common law” or case law, a landlord must supply livable premises, and if the landlord fails to do so, the tenant can sue and terminate the lease but must move out to do so–the tenant has no right to repair. This bill gives the landlord the duty to repair but leaves the tenant with the right only to move out. The tenant cannot sue but in fact must under the bill wait 30 days, because a landlord has 30 days to repair.

Let’s say an apartment is badly infested with mold (a BIG problem in Arkansas). That’s not covered by this bill.

Or let’s say an apartment has raw sewage in it. This would be covered by HB1166. Now under current law, a tenant would have to notify the landlord and allow reasonable time for repair (almost certainly less than 30 days, as this is health-threatening) and move out. A tenant could sue for property damages and moving costs. If the landlord’s conduct was particularly malicious a tenant could sue for punitive damages.

Under HB1166 all the tenant can do is move out, after waiting for 30 days. HB doesn’t do anything to protect the tenant from future retaliation by the landlord.

Is this really a step forward? Good landlords already provide these things. This bill gives bad landlords lots of ways around it.

Here’s who is on the Senate Insurance and Commerce Committee. Please tell them to VOTE NO on HB1166. It’s a wolf in sheep’s clothing.

Senator Jason Rapert
Senator Greg Standridge
Senator Cecile Bledsoe
Senator Joyce Elliott
Senator Stephanie Flowers
Senator Jeremy Hutchinson
Senator David J. Sanders
Senator Larry Teague

 

3/14 Update–Landlords, Who Has Your Backs?

SB600, the civil eviction bill that would bring affordable, quick yet fair eviction proceedings to all Arkansas counties, was heard by the Senate Judiciary Committee on Monday of this week. Although weeks ago when voting in favor of the criminal eviction bill, several senators on this committee said words to the effect that they knew a civil eviction bill would be much better–they just didn’t have one to vote on–now the narrative changed to–what was this bill? They didn’t know anything about it–they couldn’t vote on it now. The bill was explained–it sounds good. Quick but fair. Tenants are advised of rights and have three days to cure late rent. Not good enough for our legislators, though.  The Arkansas Realtors Association lobbyists, who stated to tenant advocates that the Association was neutral on the bill, quickly left the room when the bill was called so that they were not there when the senators asked what the position of the Association was. Our guess-in secret, they are telling senators the eviction proceeding will be bad.

Folks, eviction in Arkansas is a MESS. There are currently three procedures being used in Arkansas and all are defective. And lots of self-help evictions, which are ILLEGAL, are taking place as well. Don’t the realtors understand this? Why don’t they want to give the landlords a fair, quick procedure that doesn’t make tenants criminals? What’s up with them?

If you can, thank Senators Will Bond and Reps. Capp and Sabin for sponsoring this bill. We’re hoping it comes up again, although the session is close to ending. We are told Sen. Hutchinson is sponsoring the bill as well, although his name does not appear on the official website as a cosponsor.

HB1166, explained in detail elsewhere, will make things worse for tenants. It looks like it’s a good first step to require landlords to provide better housing, but there’s no enforcement! If tenants don’t like it–they can move out. Seriously, that’s the solution to our housing and tenants’ rights problems. And if a landlord gets angry with a tenant who complains, or reports to Code Enforcement the landlord can simply evict the tenant if she’s month-to-month. And the bill doesn’t require landlords to do anything at all about problems like mold, rats, roaches, bedbugs, safety features like door locks, smoke detectors. . . you get the idea. Rep. Laurie Rushing, a realtor (hmm, is there a connection here?) is sponsoring this bill, along with many other representatives who have doubtless been sold the goods that it is a good first step. Beware–it’s not a good first step. This bill has not yet left the House Insurance and Commerce Committee. Judiciary would have been the logical committee for it. No votes yet.

HB2135, on the other hand, is a great first step. It requires landlords to do meaningful things, like provide doors and bedroom windows that lock, smoke and carbon monoxide alarms, safe common areas (hallways, stairs, elevators, parking lots), a roof that doesn’t leak, heat, working plumbing, electricity and water–and several more things, most of which are not required by HB1166. And in addition to moving out, a tenant can sue for repairs, forcing them to be made, and is protected from retaliation by the landlord. Best of all, at the beginning of the lease the tenant and landlord must sign a list of defects so there’s agreement at the outset as to the quality of the premises. Reps. Warwick Sabin and Greg Leding are sponsors. Thanks to them! This bill is also currently in the House Insurance and Commerce Committee. No votes yet.

 

Oppose HB1166! Update 3/6

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.
  • This bill only requires a landlord to supply heating and air conditioning if they worked at the beginning of the lease. This bill only requires landlords to supply electricity, water and sewage that complied with the code when they were installed. This bill only requires landlords to supply a “functioning roof and building envelope,” whatever that is.
  • This bill would do nothing to address problems such as a carbon monoxide leak, toxic black mold, broken door locks, or an infestation of rats or cockroaches.
  • 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, make repairs and deduct them from the rent, or even ask a court to require the landlord to make repairs. All these other remedies are available to tenants in most states.
  • 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.
  • Oppose this bill! Contact your representative and ask him/her to oppose HB1166.

Cliff’s Notes for Landlord-Tenant Bills/Acts

Right now there are three landlord-tenant bills and one act, and activity is about to pick up.

You may recall that Arkansas enacted a criminal failure to vacate bill that is identical to the pre-2001 law. It is now Act 159.

In addition, Rep. Laurie Rushing has introduced a bill, HB1166, requiring “implied quality standards” of landlords. This bill sounds as though it will bring about more fairness, but it won’t. More information coming on the next post. This bill will come up Wednesday in the House Insurance and Commerce Committee. It will almost certainly pass, so its opponents will concentrate on the Senate. For now: read the post on 1166 to see why it is not a good idea.

SB600, introduced 3/3, and sponsored/cosponsored by Sen. Will Bond, Rep. Sarah Capp, and Rep. Warwick Sabin, is a streamlined, simplified, civil eviction bill that will make it easier for individual landlords and tenants to proceed pro se (without attorneys) and ensure both sides a hearing. This bill will create a fairer eviction procedure and will benefit both landlords and tenants!

HB2135, introduced 3/6, and sponsored/cosponsored by Reps. Greg Leding and Warwick Sabin, is an implied warranty of habitability that will provide habitable premises for tenants, give them remedies of lease termination or injunctions to force repairs, and prevent landlords from retaliating against tenants who exercise their rights. This, too, would be a significant improvement in Arkansas law.

A Civil Eviction Bill!

Please check out SB600, sponsored by Senator Will Bond and cosponsored by Representatives Capp and Sabin. The bill creates a streamlined civil eviction procedure, for possession only (landlords are free to sue in small claims court or circuit court for rent; most don’t). Landlords may only bring the action for nonpayment of rent–the grounds for virtually all evictions. Why is this bill so great?

First–It gives tenants the right to cure. If a tenant is late with rent the tenant has three days to pay. Neither the unlawful detainer statute nor the criminal failure to vacate statute give tenants a right to cure.

Second–These complaints can be filed either in circuit court or (if permission has been given by the Supreme Court) in district court. And the form of the complaint is so simple that no attorney will be needed (unless the landlord is an entity like an LLC).

Third–The bill requires the court to schedule the hearing within 21 days of the filing of the complaint. This is similar to the short time period of the current criminal failure to vacate statute and may be even faster in some cases.

Fourth–The tenant gets a real hearing! In an unlawful detainer action, if the tenant can’t understand the archaically-worded form and doesn’t respond, or doesn’t deposit the amount of rent the landlord claims is due into court, the tenant will be evicted. In a criminal failure to vacate hearing the tenant gets a hearing but usually has no right to tell her story, because all the judge asks is whether she has paid the rent and if not whether she is still on the premises. Unlike in unlawful detainer, the tenant can appear in court without having to file anything first.

One objection to unlawful detainer is that tenants could be billed for attorney’s fees. This will only be the case in this procedure if the tenant can’t prove they paid rent or doesn’t assert a defense–in other words, if the tenant is acting in bad faith.

This is a civil procedure, not a criminal one. If the tenant doesn’t appear, a default judgment will simply be issued, unlike in criminal failure to vacate where the judge will swear out a bench warrant, which will result in arrest. Any costs will be civil costs–they will not be criminal fines which carry severe consequences if they are not paid.

The new bill is fairer to both tenants and landlords. Once it has been assigned to a committee, we will post again.

SB25 is now Act 159

We take back our thanks to the governor for now! After being held in the governor’s office for a week, SB25 became Act 159 on Valentine’s Day. There is conflicting information as to whether the governor signed and we will update this post when we know. We would also include a link to the Act but it is not yet posted on the official General Assembly website, one week later after enactment.

We agree that Arkansas landlords need a quick, inexpensive eviction procedure. But it also needs to be fair. Act 150 is neither fair nor responsive to landlords’ needs. Let’s consider the act.

First, in a civil eviction proceeding, the judge issues an order evicting the tenant, and a writ of possession to law enforcement that authorizes it to physically remove a tenant and her belongings. Act 159 does not authorize a judge to issue an order of eviction, and the judge of a criminal proceeding doesn’t have any authority to evict anyone anyway. Act 150 does not authorize a judge to issue a writ of possession. Act 159 does not authorize a judge to permit the landlord to change the locks. Any  eviction of a tenant ordered by a judge under this act will be an illegal eviction.

Second, prosecutors and judges may still refuse to hear these cases. According to research carried out in 2012, 30% of Arkansas district courts did not hear failure to vacate cases. We will be surprised if those courts change what they are doing. If we were the judge and political pressure were brought to bear on us to enforce the law (because district court judges are elected), we would simply follow the letter of the statute–exactly what it says–and fine the tenant $1 per day. That adds up to a rent of $30 or $31 per month–not a bad deal! The statute calls for a fine of between $1 and $25 per day for every day the tenant remains on the premises. That is the only penalty allowed by the statute. Again, under this statute the judge has no authority to order the locks changed, the tenant to move out or a writ of possession to be served.

Third, in our opinion the law, declared unconstitutional in 2015 by three courts, is still unconstitutional even with the changes. Supporters of this bill argued (and the bill declares) that two courts declared it to be constitutional. Let’s look a little more closely at these two cases. The first one, Munson v. Gilliam, a 1976 federal Eighth Circuit Court of Appeals decision, ruled not on the constitutionality of the failure to vacate statute, but on whether an injunction could be justified. The question the court was answering was whether Little Rock could continue to prosecute failure to vacate cases while the statute was being litigated, or whether an injunction ordering the city to hold off would be enforced. The test in such a case was whether the tenants were likely to succeed, and whether failure to affirm the injunction would cause them irreparable harm. The court stated in what is called “dictum” its opinion that the statute was valid. But, and this is important, the prosecutor testified that landlords were “questioned extensively, under oath,” before a criminal information was prepared. That doesn’t happen in most courts today. The prosecutor or city attorney simply rubber-stamps what the landlord says. The court also said that tenants were allowed to raise civil defenses. That usually doesn’t happen either and even if it does, this law doesn’t allow it! The Munson court read words into the statute that aren’t there to reach its conclusion.

The later case, Duhon v. State, an Arkansas Supreme Court case, came right out and said that the Munson court did not declare the statute to be constitutional. Duhon repeats the same reason from Munson that a tenant can raise a civil defense and a court will hear it. Again, the statute doesn’t say that. Arkansas judges have been observed asking tenants only these two questions: are you still living there? And, have you paid the rent? The statute doesn’t allow the tenant to raise any other issues. A kind judge might allow this, but the statute does not. The law isn’t supposed to depend on kind judges to work.

The Arkansas Supreme Court has said that this law is in the public’s interest. Perhaps that was true thirty or forty or one hundred years ago, but it is not now. It is not in the public’s interest for landlords to be subsidized by taxpayers while tenants may end up victims of the criminal justice system for breaching a contract.

Despite the fact that one of this bill’s sponsors stated that this bill was not the best solution, and that a civil procedure would be better, none of the landlords’ groups has taken the time to draft one. However, a quick, inexpensive, fair civil procedure is in the works!  When we have more information we’ll post it.

On the Governor’s Desk–Feb. 9

SB 25, which preserves the crime of failure to vacate, is now on the governor’s desk. If signed, will it do all the Arkansas Realtors Association hopes it will do? We think not. Even before the existing law was declared unconstitutional, 1/3 of the counties did not permit landlords to file affidavits under this statute. It’s hard to believe they will reverse course. If signed, the law will not legally permit district court judges to order tenants to actually vacate premises. Therefore, any court-ordered evictions under this new law will be illegal. We may see more cases filed to set aside these illegal evictions. One judge has told us that if forced to hear these cases, he will fine tenants $1 per day and refuse to evict them or to allow landlords to change locks.  It may be that landlords don’t find their lives much easier than they were before.

What is needed? As lobbyists and attorneys for the Arkansas Realtors Association testified, if landlords sue under the current civil unlawful detainer statute, there is often a significant delay before cases are heard. Landlords must pay for the services of an attorney. If the tenant is found liable for unlawful detainer, the tenant will probably be saddled with significant court costs and attorney’s fees. On the other hand, the failure to vacate statute can cause a poor, down-on-her-luck tenant who fails to appear at the arraignment or fails to pay the fine to be hit with even larger criminal fines and even possible jail. And contrary to assertions of folks representing the Arkansas Realtors Association, numerous people have been jailed under the failure to vacate statute–records clearly show this. We guess these folks don’t write a letter to the realtors afterwards, and that’s why the realtors don’t know.

What is needed? A civil statute that allows tenants who have no money to pay to be evicted quickly, but allows tenants who have a legitimate complaint against the landlord their day in court. A civil statute that allows both parties to proceed without attorneys if they wish at the preliminary stages. Such a bill is being drafted now. Legislators paid lip service to the idea that a civil statute would be the best solution, but supported the failure to vacate statute because they said it was the only alternative available. What will they say when asked to sponsor or vote on a better civil statute? We’ll see.

In the meantime we see as in today’s  newspaper that the governor hasn’t yet signed the bill because he is reviewing the bill. Thank you, Governor Hutchinson. We hope you will ask why none of our legislators in the majority party are introducing a civil eviction bill. And we’re not even going to respond to Representative Laurie Rushing’s statement that “Arkansas is progressive” for being the only state that criminalizes failure to vacate. Her comment speaks for itself.

No Vote Yet, So Not Too Late–Feb. 7 the Day

The House did not get to landlord-tenant law today. We are told it was discussing blue and white lights on Christmas trees and the potential for confusion with law enforcement–but we’re sure that can’t be true.

SB 25 remains scheduled for a vote. The House convenes tomorrow at 1:30 according to the Meetings and Events Calendar. So, it’s not too late to contact your representative tonight!