NOTE: This has been updated to reflect the most current developments. Originally introduced in December by Senator Blake Johnson and Representative Brandt Smith, this bill removes the harshest provisions from the failure to vacate statute but still keeps the basis of the statute–that failure to pay rent when due causes a tenant to forfeit or lose her lease. It returns the failure to vacate statute to its pre-2001 state. The pre-2001 statute was litigated several times in the courts, and we’ve gone back to read those decisions. They haven’t changed our mind about the unconstitutionality of the FTV statute, but they do raise some new issues.
Under the new amended bill, if you are just one day late with rent and your landlord wants you gone, he can refuse to accept the rent and file a notice against you, requiring you to be moved out in 10 days. Then if you are not gone in that time, he can file a form with the prosecutor or city attorney, a “citizen warrant,” and a summons or warrant is served on you. The statute states if the tenant doesn’t leave in 10 days, she is guilty of a misdemeanor. But another statute, Ark. Code Ann. 5-1-108, states that if the only penalty under a statute is a fine, it can’t be a misdemeanor. It’s a “violation.” That’s why you will hear some legislators say this is like not cutting your grass. You don’t go to jail if you don’t cut your grass, right?
Our response to that: you don’t LOSE your grass if you don’t cut your grass. You don’t lose your house. Imagine a statute that says if you don’t pay your mortgage payment when it’s due, you lose your house. And once the bank sends you a 10-day notice, you have to be out in 10 days. Does this sound like cruel and unusual punishment? A tenant owns a leasehold. That’s a property interest, like ownership of a home although with fewer rights. We believe that the state doesn’t have the right to take away the place where you live for one late rent payment, and criminalize a tenant who remains on the premises.
If you have a legitimate argument with your landlord (your landlord won’t accept your rent payments, or told you to pay for repairs and then refused to let you pay out of rent), the statute doesn’t allow that as a defense.
Landlords will still receive taxpayer-funded attorneys because it is prosecuting attorneys and city attorneys who will be bringing these actions against tenants. The original bill would have given judges the right to evict tenants from their homes. That provision is gone.
The amended bill now mentions two cases that it says held the pre-2001 statute constitutional, Munson v. Gilliam, 543 F.2d 48 (8th Cir. 1976) and Duhon v. State, 299 Ark. 503 (1989). Munson did not hold the statute constitutional. It simply struck down an injunction against the Pulaski County prosecutor. Duhon did hold the statute constitutional but it was based on facts that are not true today.
In no other state do landlords receive free legal service from the government, and in no other state does failure to pay rent, once, cause you to lose your leasehold and failure to leave in 10 days constitute a crime. Oppose this bill? Contact your own legislators–See What You Can Do to get a link to find out who they are. Contact sponsor Senator Blake Johnson, 870-323-1766. Contact sponsor Representative Brandt Smith, 870-351-7459. Tell them Arkansas tenants deserve the same rights tenants have in other states, and that you oppose this bill. UPDATE: The House Insurance and Commerce Committee voted “do pass” on this bill today, so it has only two more hurdles before it becomes law: the vote of the full House and the Governor’s signature. Contact your representative if you oppose this bill! In every other state, landlords go to civil court to remove tenants, and tenants aren’t charged with a crime!
Representative Laurie Rushing is the chief sponsor of this bill, which says it establishes “implied quality standards” in residential leases. Compared with the implied warranty of habitability that most other states have, this bill pales in comparison. Landlords have to provide functioning heat and air conditioning only “to the extent the heating and air conditioning system served the premises” at the time the lease began. Landlords have to provide “functioning electricity, potable water, and sanitary systems that conform” to the housing and building codes in force when they were originally installed. Landlords have to provide a “functioning roof and building envelope.”
And that’s it! In other states, landlords must provide housing that complies with building and housing code provisions affecting health and safety. They have to keep common areas clean and safe.
Does your apartment have black mold that’s causing you asthma? That’s not covered by this bill. Bedbug infestation that your landlord refuses to treat properly? That’s not covered either.
Under implied warranties of habitability, tenants have a variety of remedies. They can, in most states, make the repair themselves and deduct the repair from the rent if the landlord fails to repair and the repair is minor. They can receive damages if the landlord doesn’t repair. They can sue so that a court will order the landlord to repair the premises. But none of those remedies are available in this bill. The only remedy tenants have is to leave (after they’ve given notice to the landlord) and get their security deposit back.
Under implied warranties of habitability in most states, a landlord can’t ask a tenant to sign a lease that gives up the tenant’s right to enforce the warranty. This bill doesn’t contain that provision, so your landlord could hand you such a lease to sign. In most states, a landlord can’t retaliate against a tenant who asks for repairs or reports a landlord who refuses to repair to Code Enforcement. This bill doesn’t contain that provision.
Don’t mistake this bill for an implied warranty of habitability. The title promises “quality” but it’s an empty promise. Hopefully its many sponsors will amend it to make it more balanced. Update: This bill has been referred to the House Insurance and Commerce Committee. Many of the bill’s cosponsors are members of this Committee, which means that if they decide to vote on it, they will definitely vote it onto the House floor for vote.