Realty Check: The General Assembly’s Opportunity to Pass Much-Needed Renters’ Rights Legislation

By: Colin Boyd

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

Some are surprised to learn of the true extent of the iniquities in Arkansas’s residential landlord-tenant law; however, too many tenants have the misfortune of firsthand experience. From evictions brought as criminal prosecutions to senseless loss of life and property in poorly maintained apartments, the undesirable outcomes of our system have long demonstrated the necessity of reform. House Bills 1563 and 1798, now before the 93rd General Assembly, offer a crucial step in the right direction.

HB1563, introduced by Rep. Jimmy Gazaway (R-Paragould), would introduce a new eviction system and establish minimum habitability standards for rental properties. HB1798, introduced by Rep. Nicole Clowney (D-Fayetteville), would repeal Arkansas’s criminal eviction statute.

Warranty of Habitability

Arkansas remains the only state which does not imply basic livability standards in the terms of residential leases. Such standards, imposed in other states through the implied warranty of habitability, require that landlords install and maintain basic, minimum safety features like temperature-controlled water, hygiene services like pest control and garbage removal, locks on doors accessible from outside, smoke alarms, and carbon monoxide detectors.

We have already witnessed the tragic, avoidable consequences of this warranty’s absence. A 2017 study by the Arkansas Community Institute and Central Arkansas Re-Entry Coalition found that 7% of surveyed tenants reported health problems attributable to the condition of their rental units. Mold, mildew, and pests were the most common complaints among interviewees. Beyond these health concerns, fire and carbon monoxide deaths demonstrate what should already be obvious – whatever financial windfall this gap in the law provides for landlords is not worth its cost in human welfare.

HB1563 imposes a “duty to maintain habitable premises,” enumerates what that duty specifically entails, and provides remedies for the tenants of noncompliant landlords.

Registry Deposit Requirement

As it stands today, Arkansas’s unlawful detainer law (the most commonly used method of eviction) requires tenants to make a difficult choice at the outset of an eviction case – either pay what the landlord claims they owe into the court’s registry or leave the premises prior to the case’s hearing.

This requirement gives the landlord a strong position right at the outset of litigation. Tenants who may have legitimate defenses against the eviction must pass an initial hurdle of fronting what the landlord claims they owe. If unwilling or unable to produce the disputed amount, the residential tenant must find somewhere else to live before the hearing. Of course, this alternative of relocation defeats the purpose of contesting the eviction at all. This prerequisite is sometimes characterized as an “emergency” provision; however, in practice, it operates to discourage tenants from defending themselves in court.

Disputing the alleged grounds for eviction in court is a daunting enough prospect for most tenants. The registry deposit requirement stands as a barrier between the tenant and their day in court. HB1563 proposes a new eviction process without this requirement, promising a system more protective of renters’ due process rights than Arkansas’s current unlawful detainer statute.

Failure to Vacate

Despite the unlawful detainer statute’s deficiencies, it is not the state’s most unusual and harsh eviction process. That dubious honor belongs to the failure to vacate statute, under which a tenant can be found guilty of a misdemeanor for failing to leave rental property after the landlord accuses them of failing to pay rent.

The failure to vacate statute has rightfully faced no shortage of scholarly, journalistic, and political criticism. The bottom line is as follows: since the statute’s passage in 1901, Arkansas has remained the only state which lends the weight of its prosecutorial and police resources to one party of what is, in all other jurisdictions, a civil dispute. Whatever the purported benefit of this novelty is, all other states have managed without it.

The failure to vacate statute’s tenure has been bitterly controversial. In court, statue faces ongoing constitutional challenge. In prosecutor’s offices, many officials criticize or simply refuse to enforce it. In most counties, it is as though this law does not exist. Despite the statute’s unpopularity, however, tenants do still suffer under this inconsistent regime. Recent reporting from ProPublica has exposed that, despite the statute’s supposedly light penalties, defendants in failure to vacate actions can find themselves facing steep fines and even jail time.

Though the failure to vacate statute is enforced rarely – it is enforced with unpredictable effect against the state’s most vulnerable renters. A 2013 study of the prior year’s cases conducted by Professor Lynn Foster found that 62% of cases brought in Little Rock were against Black women. ProPublica reported the stories of tenants who discovered with horror that they faced criminal charges in addition to the usual challenges which accompany eviction.

HB1798 would repeal the failure to vacate statute and finally bring an end to this cruel, bizarre feature of Arkansas’s landlord-tenant law.

House Bills 1563 and 1798 provide the opportunity to make Arkansas a significantly fairer and safer place to rent. Arkansan tenants, alongside those across the nation, already face the possible discontinuation of COVID-19 rent/eviction relief programs. It is more pressing now than ever for Arkansas to standardize, modernize, and humanize its landlord-tenant law.

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