All posts by Crittenden

An Email from the Realtors Association–and Our Response

Recently a realtor friend passed on this email to us. It’s true that not all realtors support the extreme anti-tenant position taken by the Arkansas Realtors Association. We have realtor friends who agree that Arkansas law is the most anti-tenant law in the United States. You may hear that the legislation proposed this session will correct this. It won’t. And we predict it will make life harder for landlords as well, because as it stands now, under the new failure to vacate statute a judge can’t even order a tenant to leave.

In the near future, we’ll write something for landlords. But for now, here is an email sent to all members of the Arkansas Realtors Association, the most powerful opponent of fair landlord-tenant laws in Arkansas. On Feb. 1 at the House committee hearing on SB 25, their counsel testified. Their lobbyist testified before the Senate committee last week. Our guess is they’ve spend thousands of dollars to deny tenants rights they have in every other state. Why? It’s a good question.

Word for word, this is the email in bold type. We’ve numbered the points. Our responses are in italics. Do you know any realtors? Are you a realtor yourself? Is your Association being candid about the state of the law, and what it is doing with your dues?

  1. The current single remedy eviction results from a Pulaski County court decision declaring a decades old statute unconstitutional.

Three circuit courts including Pulaski County have declared the failure to vacate statute, sought to be amended by SB 25, unconstitutional. Two have declared the entire statute to be unconstitutional, and one of the two held that it was unconstitutional in five different ways. In addition, more than 1/3 of state courts refuse to hear failure to vacate procedures. SB 25 seeks to amend this seriously flawed statute. A simplified civil remedy that is fair to both landlords and tenants makes sense over trying to revive and antiquated criminal statute that may still not pass judicial review and will leave landlords without a the best remedy for evicting violating tenants.

  1. Currently, landlords who have properties occupied by tenants that refuse to pay rent have only one available remedy, the civil eviction process.

The available civil process is the unlawful detainer statute, although some counties hear yet a third type of eviction case, found at Ark. Code Ann. 18-17-901 et seq. District courts do not have jurisdiction to hear this third type of case. Yet they continue to be heard. The point is, eviction law across the state of Arkansas is a mess. A streamlined civil procedure, fair to both landlords and tenants, is the only way to fix this. 

  1. These civil eviction actions must be filed in Circuit court, which have base filings fees of $150.00 per case, plus additional fees for service of process in most cases.

The base fee is actually $165 ($185 if an attorney is filing) and$35-$50 for service of process.

  1. Additionally, these civil eviction cases require some landlords to hire an attorney, an additional expense that will ultimately increase the cost of housing in Arkansas.

Correct. However, clogging the criminal justice system with landlord-tenant cases also inflicts a cost on taxpayers, and takes valuable time of prosecutors and judges who otherwise would be dealing with real crimes.

  1. Tenants who are in violation of the terms of their lease will have a civil judgment entered against them, and could have their wages and bank accounts garnished as a result of the action.

In fact, most tenants move out when the original notice is served, and so none of these outcomes come to pass. Most tenants are so poor that none of these outcomes would affect them in any meaningful way. And most landlords don’t pursue further measures anyway, once a tenant has left. But a criminal verdict can affect a tenant much more seriously. Failure to pay a criminal fine (which is what they would receive under SB 25) may lead to additional fines, court costs and restitution, and jail time. Criminal convictions may stay on a tenant’s record. 

  1. The municipal eviction process is much easier on both landlords and tenants. It is less costly and does not result in a civil judgment on the tenant’s record or the garnishment of their bank accounts and wages.  Most of the time, once the tenant is notified of the municipal eviction commencement suit they simply move out and the process stops, much easier on all parties.

First, let’s call this by its true name. It is a criminal procedure. Failure to pay rent on time by even one day, even only once, robs a tenant of her rental property—her place to live. She must move, and if the landlord gives her notice and she doesn’t, it’s a violation offense. A tenant who fails to make a criminal court date can be charged with Failure to Appear and be arrested. And the last sentence is misleading, because most of the time under the unlawful detainer statute, once the tenant is notified she simply moves out and the process stops.

 Why subject tenants to criminal charges, when no other state does this? Why rob the tenant of her place to live for one late rent payment? Nothing in the failure to vacate statute requires the landlord to accept a rent payment, even if it’s only one day late. There’s no “opportunity to cure” the breach of the lease.

The realtors’ explanation above, and the failure to vacate statute, assume the tenant is guilty. But to be fair and balanced, the law must protect the few tenants who are being taken advantage of by their landlord in the same way the law should protect landlords whose tenants who are taking advantage of them.

  1. Many landlords use their rental houses as a source of income. Failure to pay rent coupled with failure to vacate robs the landlord of his property.

This is true in every other state and yet in those states these actions are treated as a civil offense, breach of a lease, requiring a landlord to go to court to get a civil order requiring the tenant to leave. It is not “theft,” any more than paying a mortgage payment late is theft. Landlords should be encouraged to do a better job vetting tenants.  When the state is expected to pay for the cost of eviction, this provides landlords with no incentive to rent to responsible tenants.

Some landlords abuse the failure to vacate statute.  The way the process is set up, even if tenants are current on rent payments, or if the landlord has also violated the terms of the lease, the tenant does not get a chance to be heard.  

  1. It is in the best interests of the people of the State of Arkansas for property owners to continue to have remedies against tenants who fail to pay rent for a dwelling house or other building but refuse to surrender possession of the dwelling house or other building.

True, and the people already have a civil remedy (like every other state) in the unlawful detainer statute. Work is also in progress on a streamlined procedure that landlords and tenants can use without attorney assistance. It is not in the best interest of Arkansans to have a law that favors one group of people over another and treats tenants as though they are criminals.  The people of Arkansas deserve a law that gives everyone equal access to the courts an equal opportunity to present their case.  A law that treats breaching a civil contract as a crime does not do that. 

  1. Again, it is the intent of this legislation to amend Arkansas Code 18-16-101 so that the language is exactly the same as was previously in effect when 18-16-101 was upheld as constitutional in decision of the United States Circuit Court of Appeals, in Munson v. Gilliam, and the decision of the Arkansas Supreme Court in Duhon v. State.

Even if the law is passed and is taken back to the pre-2001 amendments, there is no guarantee that it will be found to be constitutional.  The law has evolved since the previous cases (Duhon and Munson) were decided. Munson did not hold the failure to vacate statute constitutional; it simply struck down an injunction. Duhon’s holding is based on different key facts. Failure to vacate cases are not tried the same way today in most courts.

Tell House to Vote NO on Senate Bill 25

Sample email:

RE: Please Vote NO on Senate Bill 25

Dear Representative ____________,

I am opposed to Senate Bill 25, which amends Arkansas’s failure to vacate statute.

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.  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. The bill causes a tenant who is just one day late with the rent to lose her housing, if her landlord wants her out and gives her a 10-day notice. If she doesn’t leave, she’s guilty of a criminal violation, resulting in a fine, and much more serious consequences if the fine is not paid. No other state has a law like this.

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. In a failure to vacate case, the tenant cannot raise any issues such as the landlord’s failure to keep promises.

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.  Two 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,
____________________

SB 25 Now in the House–Jan. 30

Senate Bill 25 passed the Senate today. For a record of who voted, click here. The powers behind this bill (largely the Arkansas Realtors Association, we believe) are in a big hurry. It’s only week 4 of the legislative session, and they are pushing this bill through the General Assembly as quickly as possible. We noted something odd today. The bill originated in the Senate and was heard by the Senate Judiciary Committee. But on the House side, the bill has been routed to the House Insurance and Commerce Committee, and not the House Judiciary Committee. Why? Do the realtors believe that the House Insurance and Commerce Committee will be more favorable? And did they persuade the person who assigns bills to committees to agree with them? This identical bill was introduced in 2015, and it was heard by the House Judiciary Committee.

It’s certainly on the fast track. It’s scheduled to be heard by Insurance and Commerce on Wednesday. Come to the hearing, if you can. It’s scheduled for 10 am in Room 149 of the Capitol. House hearings are recorded, so if you don’t attend you can watch/listen to the hearing later.

This is bad news, and will not really help landlords, for reasons we will explain in a subsequent post.

SB 25 Update–Jan. 27

Yesterday the Senate Judiciary Committee voted “do pass” on amended SB 25. The bill is scheduled for a vote by the full Senate Monday, Jan. 30. Contact your Senator and urge them to vote NO! Arkansas tenants deserve a civil eviction statute so that if worst comes to worst and a landlord has to evict the tenant won’t be guilty of a crime!

In the Thursday Committee session no testimony was heard. The Chair of the Committee inaccurately characterized the bill as imposing consequences similar to those would get for letting your grass grow too high. No mention was made of the unfairness of landlords using the prosecutorial and law enforcement mechanisms of the State to get tenants off premises by use of criminal procedures, and of the fact that tenants almost never have lawyers to represent their interests. No one mentioned the fact that the amended bill grants no power to criminal courts to actually evict tenants. All they can do is fine them with criminal fines.

Work is being done now on a civil eviction bill. Contact your Senator and urge them to support the civil eviction bill. This week several Senators stated they knew a civil procedure is what is really needed. Let’s see if they really believe this. Will they be willing to sponsor a good civil eviction bill? Let’s see what they say.

SB 25 Hearing

Today the Senate Judiciary Committee heard testimony on amended Senate Bill 25, which would repeal part of the failure to vacate statute but leave part of it in place. Under the amended bill, once the due date for even one rent payment passes without payment of rent, the tenant loses the right to remain on the premises. If a landlord then tells the tenant in writing to leave within 10 days, a tenant who does not leave is guilty of a misdemeanor. If the tenant is convicted after a hearing in district court, the tenant can be fined between $1 and $25 a day for each day the tenant remains on the premises.

Neither this bill nor the original statute sought to be amended allow judges to evict tenants, but many criminal judges do order tenants to leave, even though the judges don’t have the power to do this.

Under the current law and under this amendment if passed, landlords still will be able to file a criminal complaint against a tenant and get free, taxpayer-subsidized legal assistance from the prosecutor or city attorney who prosecutes the tenant.

Tenants have no right to a jury trial under this statute.

In all other states, a landlord must file a civil (not a criminal) complaint to evict a tenant. Many states have “housing courts” where streamlined procedures are followed. In some states, forms for landlords and tenants to use are available on the Internet and neither side needs an attorney. This is what the Landlord-Tenant Study Commission recommended for Arkansas in 2012. Instead of working on such a procedure, landlords did nothing.

In 2015, three courts declared the failure to vacate statute unconstitutional. So now, instead of working on a streamlined civil procedure, the landlords are asking for a watered-down criminal statute, thinking that it will pass a constitutionality test. Meanwhile, landlords still get taxpayer-subsidized legal assistance, the “offense” is still a crime, and criminal judges still have no power to evict a tenant.

Several folks in the hearing room today said that they know a civil procedure is what is needed but “in the meantime” the landlords need a way to get tenants out. Arkansas already has an unlawful detainer statute, which is a fair civil procedure. Landlords don’t like to use it because the pleadings are so technical that an attorney is necessary, some landlords feel it is slower, and it costs $165 to file. A few courts are also using a newer, faster civil eviction statute which was enacted in 2007. These courts don’t have the jurisdiction to use this procedure because the Arkansas Supreme Court has never okayed it, but they use it anyway.

Ultimately, two Senators voted to abstain, one voted against and the others voted for. There weren’t enough votes to pass. Not all Senators were present. Senate procedures allow the sponsor to keep asking for a new vote. That should happen tomorrow, when more Senators will be present. It’s looking like the bill will come out of committee with a “do pass” recommendation.

Our concern? This expressed support for a better civil procedure is just lip service. Landlords have had four years to come up with a streamlined eviction procedure. This SB 25 isn’t a stop gap. It’s a way to continue to block tenants’ rights and keep the playing field slanted towards landlords. Any time drafters representing only landlord groups, including the Arkansas Realtors Association, draft statutes they are unfairly biased against tenants.  The bills and laws that result have caused Arkansas to have the most unfair landlord-tenant laws in the United States. SB 25 does nothing to change that statement.

Please urge Senate Judiciary Committee members and your Senator to vote NO on SB 25, as amended.

If you have, thank you! And a big thanks to the Citizens First Congress representatives who were at the hearing, as well as to the people who testified against SB 25 and most of all to the Senator who voted against it.