During the last legislative session, the legislature amended Arkansas’s criminal eviction or “failure to vacate” law. Act 159, the new law, is discussed below and takes effect August 2.
If you don’t have time to read the complete story right now, here’s the summary: Arkansas alone of all the states does not have law that requires landlords to make repairs or keep premises in habitable condition—and Arkansas alone of all the states terminates tenants’ leases for late payment of rent (even only one day) and makes it a crime if they can’t get moved off the premises within ten days after the landlord gives notice. Read on, for more information.
To begin with, there are two types of landlord-tenant law in Arkansas. Tenants who live in federal public housing or Section 8 housing are subject to federal law and have more rights than tenants who do not. This website is about all other residential tenants and discusses state law. For more information about federal housing and tenants’ rights, see here.
Arkansas landlord-tenant law is different from that of all other states in two important ways. First, only in Arkansas is late rent a crime. The Arkansas “failure to vacate” statute says that (1) if a tenant does not pay the rent when it is due and stays in his or her home or apartment, (2) the landlord gives the tenant a “ten-day notice,” and (3) if the tenant is still in the home or apartment at the end of the ten days, landlords may contact city or county prosecutors or law enforcement and file an affidavit stating that the tenant has broken the criminal law. Law enforcement will then usually issue a citation summoning the tenant to a criminal hearing in district court. In no other state is it a crime essentially to be late with rent!
Our law also states that as soon as the tenant is late with the rent, the tenant “forfeits” or loses the rest of the lease term. This actually depends on the landlord—if the tenant offers rent late and the landlord accepts it, then the landlord can’t use the statute. But if the landlord doesn’t like his tenant, he can give her that notice the day after the rent is due, and under Arkansas law, she forfeits the rest of her lease—in other words, her lease is terminated, and she will have to find another place to live and move out within 10 days.
At the hearing, the tenant can plead guilty, not guilty or nolo contendere. Under the new law, if the tenant is found guilty, she can be fined between $1 and $25 for each day she remains on the premises after the 10 days. Each day is a separate offense. (Even though the law states that remaining on premises is a misdemeanor, the statute is incorrect. If the penalty for the crime does not involve any jail time, the crime is an “offense” and not a misdemeanor.) Therefore, if the tenant is in a dispute with the landlord—for example, if the tenant tried to pay rent and the landlord wouldn’t accept it—and the tenant is found guilty, but not until a trial a month later, the tenant could be liable for as much as $750, including court costs.
Why would a tenant pay rent late? Some landlords refuse to accept rent, and then give the tenant a ten-day notice. Some tenants are on disability and don’t receive their checks until the fifth of the month, so if the tenant has had unexpected expenses she may be unable to pay rent due on the first. Maybe the landlord promised that the tenant could pay late, and then breaks the promise. Maybe the landlord promised for months to make repairs and finally the tenant either made the repair and deducted it from the rent, or doesn’t pay the rent in protest. These tenants come to court ready to argue their side, but most judges only ask two questions: are you still living there? and have you paid the rent? If the answer to the first is yes and the second is no, then what happens next depends on the judge. It’s true that some tenants are “bad actors.” We realize that and don’t approve of tenants who could pay rent but don’t. But the problem with Arkansas law is that it assumes that all residential tenants are bad actors and all landlords are good actors. And that’s just not true.
The old statute was unpopular with many judges and prosecuting attorneys and was ruled unconstitutional by circuit courts in Pulaski, Poinsett, and Woodruff Counties. The Arkansas Realtors Association, the entity behind the amendment, is hoping that by rolling back some of the blatantly obvious unconstitutional provisions the new law will pass muster. We disagree. Simply failing to pay rent on time terminates a lease. To us, this sounds like cruel and unusual punishment. There is case law that says late payment of rent may not terminate a lease, depending on the facts. But there are no exceptions set out in the criminal failure to vacate statute.
Beyond the issue of whether the law is unconstitutional, however, it is simply wrong, for many reasons. First, as is said elsewhere on this website, in no other state do taxpayers subsidize landlords. If a landlord wants to evict a tenant the landlord has to go to court and either represent himself or hire a lawyer. But under the Arkansas failure to vacate statute, landlords simply file an affidavit and the prosecuting attorney files the charges. On the other hand, tenants are not entitled to any kind of free legal representation, unless they are so poor that they qualify for legal aid and can find a legal aid attorney who will represent them. Second, the criminal nature of failure to vacate is one most tenants are unaware of until they are charged. If you are a defendant in a civil case and don’t go to court, a “default judgment” is entered against you. But if you are a defendant in a failure to vacate case and can’t get to court for your arraignment—maybe you have no transportation on that day—then a bench warrant will be issued and if you cross paths with the police—for instance, in a traffic stop—you will be jailed. You will also be fined, a criminal fine. Failure to vacate combined with any other type of criminal offense can compound the amount of the fine or result in jail time. Third, it’s not always easy to move in ten days. In fact, unless a tenant has been planning to move for some time, it may be impossible to move within ten days.
We were pleased to hear that the Pulaski County Prosecuting Attorney agrees with us as to the questionable constitutionality of the failure to vacate law and has announced that Pulaski County will not be accepting affidavits or prosecuting cases.
In addition, the statute is being litigated by the ACLU in federal district court in Mountain Home.
Prior to the 2017 amendment to failure to vacate, more than a third of the courts in the state, including Pulaski County courts, refused to hear these cases. Landlords in those counties must file unlawful detainer actions to evict tenants. Unfortunately, some landlords use self help to evict tenants. Self help is when a landlord changes your locks, or removes the doors, without an order from a court. Self help is illegal everywhere in Arkansas. A short list of actions constituting self help can be found here. A handful of district courts use a third different eviction statute that, even though it was enacted by the legislature in 2007, was never approved by the Arkansas Supreme Court for district courts. So they have no jurisdiction to use it, but. . . they do. Eviction law in Arkansas is a crazy quilt of four different types of evictions, two invalid and one arguably unconstitutional. Arkansas needs a simple, fast, fair eviction bill!
A simple, fast, fair civil eviction bill (SB 600) was introduced in the Senate, sponsored by Sen. Will Bond and Rep. Sarah Capp, and cosponsored by Sen. Jeremy Hutchinson, Rep. Warwick Sabin, and Rep. Jimmy Gazaway. It died in committee, voted down by at least one of the same senators who only days before had expressed regret, when voting for the failure to vacate bill, that there wasn’t a better civil eviction bill. When they had their chance to vote for a better civil eviction bill, they voted no. We attribute this to private manipulations by the Arkansas Realtors Association, which publicly took no stand but had the ears of some of the senators who voted no.
What’s the second way that Arkansas law is different from any other state? All other states require landlords to offer premises that are fit and habitable at the beginning of the lease term, and to maintain those premises. In other words, landlords have a legal duty to repair, even if the landlord doesn’t make that promise in the lease. This duty of landlords that is the law everywhere else is called the implied warranty of habitability. “Implied” means the law puts it in every residential lease, even if the landlord has not included such a promise in writing. “Warranty” is another word for promise. “Habitability” is just that, premises that are fit, sanitary and safe. For example, a wiring problem that could cause a home to catch on fire would be a defect making the home uninhabitable. Lots of toxic mold in a bedroom or throughout an apartment, or a severe bedbug infestation, would make rented premises uninhabitable.
Where does this leave tenants? If a tenant has an oral lease, or signs a written lease that doesn’t contain a promise that the landlord will make repairs, and the landlord doesn’t make repairs, basically the tenant is out of luck. The law books are full of cases where tenants made repairs and then deducted the repairs from the rent, only to have the courts rule against them. If you are a tenant, it’s illegal to deduct repairs from your rent, unless your landlord approves and you should always get such an approval in writing.
What difference would an implied warranty of habitability make? For example, if you moved into a rented house and:
- the furnace broke in January, or
- the air conditioning broke in June, or
- it was infested with bedbugs, or
- the electricity didn’t work, or
- it flooded every time there was a big storm, or
- there was raw sewage in it because the plumbing didn’t work right
and your landlord refused to make repairs, you could terminate the lease, or get a court to force the repairs, or (in most states) if the repairs wouldn’t cost much, you could pay for them and deduct the cost from your rent.
The implied warranty of habitability doesn’t extend to small things, like a dishwasher that doesn’t work. In most states, the tenant’s right to sue or terminate the lease only arises if the landlord’s failure to repair significantly affects the tenant’s health and safety.
Why doesn’t Arkansas have an implied warranty of habitability? A coalition of landlord and realtor groups has been opposed in the past, although in 2015 the Landlords Association of Arkansas helped draft and supported an implied warranty of habitability. In 2017, the 2015 bill was reintroduced as House Bill 1166, but it was so watered down and gutted that it was actually more harmful than helpful to tenants. Also during 2017, the original 2015 bill was introduced by Reps. Warwick Sabin and Greg Leding (House Bill 2135) but died in committee.