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.