More on the continuing effort to preserve punishing landlord-tenant law | Arkansas Blog

Tuesday, December 13, 2016

More on the continuing effort to preserve punishing landlord-tenant law

Posted By on Tue, Dec 13, 2016 at 9:08 AM

I wrote yesterday of legislation
filed by Sen. Blake Johnson to modify existing Arkansas landlord-tenant law that allows misdemeanor arrests for failure to pay rent.

After an initial error on my part, I updated the post to reflect the assessment of tenants' rights advocates that the Johnson bill is little improvement on the worst rental law in the country and meant mainly to preserve the old practice, imperiled by a series of court rulings.

(Though dated, the YouTube I've embedded illustrates the shame of Arkansas law.)

I ask Lynn Foster of the UALR Bowen Law School faculty and an expert in the field, about the new legislation. She explained in detail:

Arkansas is the only state that criminalizes a tenant's failure to pay rent (which in essence is the breach of a contract). In all other states, if a tenant remains on the premises and fails to pay rent that is due, a landlord must sue and get a court order to remove the tenant from the premises. Some states make this easier than others, with special housing courts or simplified procedures that landlords and tenants proceed without attorneys and high court costs that allow landlords to proceed quickly and relatively inexpensively. The Landlord-Tenant Study Commission of 2012 recommended this route to speed up our current civil eviction procedures.

Arkansas, however, made a different choice. The statute currently on the books, Ark. Code Ann. 18-16-101, states that on affidavit from a landlord, a tenant who has not paid the rent and remained on the premises for ten days after having received a notice may be charged with a misdemeanor and penalized $25/day for each day the tenant remains on the premises. Then the statute adds a newer, harsher subsection enacted in 2001, upping the penalties in certain cases and making jail time a possibility (see for a summary of the current statute).

The current statute does not allow judges to evict tenants — eviction does not fall under the jurisdiction of a district court unless the circuit court hands down such a civil eviction case, and the Arkansas circuit courts haven't been doing that — but even so, some district judges in failure to vacate cases order tenants to leave anyway.

The new bill, Senate Bill 25, repeals the harshest part of the statute. It expressly gives judges the power to issue writs of possession and orders of eviction. I'm not sure the legislature can confer this power on district courts, at least not without a super-majority vote. Other than these new provisions, the bill takes the law back to its pre-2001 state, when the thinking seemed to be that the pressure of the $25/day fine would indirectly force tenants to leave.

In 2015 courts in four counties, including Craighead County, ruled the current statute to be unconstitutional, rightfully so. The Pulaski County Circuit Court decision, the first, held the statute to be unconstitutional in five different ways. The senator who has introduced this bill represents part of Craighead County. The representative who is also listed as sponsor represents Jonesboro, which briefly adopted a property maintenance code in 2015 that was rejected by voters several months later.

Enactment of this bill would, I believe, enable landlords to exert increased pressure on Craighead and Pulaski courts, as well as courts in other counties, to begin to hear these cases again. Proponents of the legislation will state that the bill renders the statute constitutional.

Many would disagree. The bill still criminalizes nonpayment of rent, an act that is a crime only in Arkansas. Unconstitutionality aside, it still subsidizes landlords by in essence providing them with free counsel, the prosecuting attorneys. It still denies tenants with legitimate grievances against landlords their day in court, since the statute allows for no counterclaims by tenants, which our existing civil statute does allow. In 2012 the Landlord-Tenant Study Commission set out a plan for fast, inexpensive civil eviction procedure. Landlords should support such an approach rather than continuing to depend on taxpayers and government to subsidize them.
I learned separately yesterday that the decision in Pulaski has moved a big load of cases into the civil divisions of circuit court and produced some headaches for all concerned. Some landlords are representing themselves, not always a smooth process. Also, many rental units are owned by LLCs and they can't participate in court, theoretically, without hiring a lawyer.

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