Effort to preserve punishing landlord-tenant law continues | Arkansas Blog

Thursday, January 26, 2017

Effort to preserve punishing landlord-tenant law continues

Posted By on Thu, Jan 26, 2017 at 12:52 PM

As readers of this blog know, Arkansas has the worst landlord-tenant laws in the nation in terms of the treatment tenants (the Vice video is above is dated but demonstrates the horrors of the current law).

Sen. Blake Johnson is sponsoring a bill this session, SB25, that does little to improve things and appears designed to keep as much of the the ugly status quo in place as possible. Three circuit courts have found the state's criminal statute for failure to vacate unconstitutional; Johnson's remedy would keep criminal eviction in place. The bill, set to run in the Senate Judiciary committee this afternoon, was amended on Monday; however, tenants rights advocates say that the amendments do little to improve the underlying problems with the bill.

UPDATE: The Judiciary Committee advanced the bill to the full Senate.

A little backstory: Arkansas is the only state in the nation that allows landlords to file criminal failure-to-vacate charges against a renter in arrears. In 2011, the legislature created a study commission on landlord-tenant laws, which included both representatives of landlords and tenants-rights advocates. It submitted a report in 2013 that concluded that "Arkansas's residential landlord-tenant law is significantly out of balance" and that "Arkansas residential tenants have significantly fewer rights than tenants in any other state." It made 15 recommendations, including repealing the criminal statute for failure to vacate (as well as requirements for landlords to maintain safe, sanitary and fit premises for tenants to live in; improvements to the civil eviction procedure; disallowing certain "unconscionable" provisions in leases; prohibiting "retaliatory evictions" when landlords evict a tenant who exercises legal rights; and other suggestions for reform).

The legislature, swayed by lobbyists from the Arkansas Realtors Association, failed to act upon these recommendations. Following the legislature's refusal to adopt the decriminalization proposal, legal action was taken and lower-level courts have held the current criminal law unconstitutional, including in Northeast Arkansas, where Johnson lives. Johnson's bill is an attempt to use something closer to a civil eviction procedure, but it ultimately maintains the regime of making nonpayment of rent a crime.

Johnson's bill smells like an effort to dodge court challenges without actually fixing the underlying problem. Tenants-rights advocates argue that while it might be incrementally less harsh than current law, it does little more than maintain the current harsh system heavily weighted against renters (and of course it does nothing to address minimum habitability standards for rental premises, which the Realtors Association lobby fiercely opposes).

As Amy Johnson at Arkansans for Fair Landlord Tenant Laws wrote:
This news from the legislature on a landlord-tenant bill filed by Senator Blake Johnson is decidedly NOT good. It is an attempt to resurrect the practice of criminal evictions in judicial districts where the law has been struck down. Under Senate Bill 25, failure to vacate is still a misdemeanor offense, meaning the landlord gets a taxpayer-funded lawyer to enforce a private contract.
The bill was amended on Monday, but it appears that it was just more window dressing as Johnson and the realtors' lobby tries to maintain the state's unconstitutional approach. We asked Lynn Foster of the UALR Bowen Law School faculty, an expert in the field who served on the landlord-tenant commission, for her take on the latest changes. Her response:

SB 25, as now amended, states that a tenant who doesn't pay the rent on time loses her property interest and must leave. It allows the landlord to issue a 10-day notice. If after the 10 days the tenant is still on the premises, the tenant is guilty of a misdemeanor. The bill states that after conviction, the tenant can be fined between $1 and $25 per day for each day the tenant remains on the premises. The tenant has no right to a jury trial, and the judge has no power to evict the tenant. The landlords behind this bill are doing their best to make a criminal statute function as a civil statute, but again it falls short. It's also extremely harsh in some ways. You can be ordered to leave for being one day late with your rent, once. There's no opportunity to cure. If you have a legitimate dispute with your landlord, perhaps over repairs, and remain on the premises, now you are guilty of a crime. The statute is designed with one aim in mind—to allow landlords to get tenants out as easily as possible, never mind what legitimate arguments a tenant might have. The amendments do nothing to change that.

No other state makes failure to vacate a crime. Arkansas is unique in this regard. All other states have at least one civil eviction statute. Arkansas has the unlawful detainer statute but many landlords don't like to use it. They have to hire an attorney (hard to find in some rural counties, and sometimes hard to afford) to write the pleadings; sometimes it is slow; and there is a filing fee of $165.

The failure to vacate statute was declared unconstitutional by three Arkansas circuit courts in 2015. Instead of following the unanimous recommendations of the 2012 Arkansas Landlord-Tenant Study Commission and drafting a streamlined civil procedure action, the landlords behind this bill are still hanging on to their free legal assistance and perpetuating Arkansas's dubious distinction as the state with the least tenants' rights.
click to enlarge WORST IN THE NATION: Johnson aims to maintain the state's shameful approach to landlord-tenant law.
  • WORST IN THE NATION: Johnson aims to maintain the state's shameful approach to landlord-tenant law.

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