By: Macey Rogers
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 Roc
Currently, Arkansas is the only state in the United States that has not adopted the implied warranty of habitability in regard to rental properties. The implied warranty of habitability is a landlord-tenant law that requires minimum living requirements so that the rental property is safe and habitable to live in. Some of the minimum living requirements include having heat, running water, and plumbing.
The policy behind the implied warranty of habitability is to prevent landlords from renting uninhabitable properties to renters who are unable to afford better housing. Supporters believe that the implied warranty of habitability can protect poor tenants while those against believe that it risks higher rental prices and makes landlords public utilities.
As of now, the habitability requirement that Arkansas landlords must follow is Arkansas’ version of the Uniform Residential Landlord-Tenant Act. The only obligation that was placed on the landlord when the Arkansas legislature adopted the Uniform Act was regarding security deposits. The legislature failed to place any responsibilities on the landlord regarding the habitability or the repairs of the property. Landlords must also comply with building, health and safety codes. There is a presumption that the landlord is not required to make repairs on the property unless the landlord and tenant form a contract that discusses maintenance and repairs. The tenant has the burden to make sure the property is habitable and to ensure that the property has the necessary services in it in order to make it habitable. Therefore, this leaves tenants renting properties “as-is”.
Withholding rent is never an option for the tenant. There is a legal obligation to pay your rent and failure to do so, despite the lack of attention the landlord is giving the property, could result in eviction proceedings against the tenant. However, there are a few courses of action that a tenant can take if they believe their rental property is uninhabitable or if they believe repairs should be made. The first option is to repair and deduct where the tenant pays for the repair themselves and then that cost is deducted from the rent. This option does require the tenant to be able to pay for the cost upfront. There is also no guarantee the landlord will accept the cost of the repair, potentially leading to the tenant eating the cost or filing an expensive lawsuit.
Another option is to file a lawsuit against the landlord. As mentioned above, this is a potentially expensive option and also not a quick option for the property. Lawsuits can be expensive and go on for years. There is also an option to report the property to public officials for any code violations. Just the same as a lawsuit, there is a risk that this option is drawn out over a longer length of time and does not provide an immediate fix that the tenant might be seeking. There is also a tenant protection against retaliation, so the landlord may not ask the tenant to leave the property for the report.
Lastly, there is the option to move out. The tenant has the right to terminate the lease and leave the property if repairs are being made. However, this is not an option for all people, as some individuals do not have the money or the means to afford to live somewhere else.
None of these courses of action are able to provide the tenant with a habitable place to rent, a quick fix for the tenant, or an affordable option. Adoption of the implied warranty of habitability would require landlords to maintain a habitable rental property and provide tenants with a better fix for the necessary repairs. This would also alleviate the cost concerns of repairs for the tenant because the landlord would be legally obligated to maintain the property and make the necessary repairs in order to ensure that it remains habitable. Ultimately, the failure to adopt the implied warranty of habitability poses a safety and health threat in the state by failing to maintain properties in habitable conditions. Therefore, Arkansas should adopt the implied warranty of habitability to protect the tenants in the state.