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No rights for tenants in Arkansas 

Study panel wants landlords to fix properties, end retaliatory eviction.

In early October, Petrice Howard noticed hundreds of tiny water droplets beading the ceiling of her daughters' bedroom in her rented Baring Cross home. Soon after, black mold spread across the walls, ceiling and baseboards of the bedroom and then spread to the bathroom and an adjoining room, her sons' bedroom. Howard notified her landlord immediately.

A month later, when nothing had been done, she reported the problem to North Little Rock code enforcement. Two days after the city's inspection, Howard received a warning from Big Dog Homes LLC that because her house wasn't "in order," she had broken her year-long lease, and no more rent would be accepted until she rectified the situation. Two weeks after that, Howard received a 10-day notice to vacate.

"I wrote the owner a letter and asked what policy has she violated? You just can't go in and evict a person because their house isn't set up the way you want it," said Alicia Walton-Middleton, Howard's neighbor and a criminal and family attorney. Walton-Middleton, who learned of Howard's predicament through the Baring Cross Neighborhood Association, believes the eviction notice was retaliation against Howard for calling code officers.

Arkansas renters have fewer rights than those in any other state. For example: Arkansas is the only state in the nation without an implied warranty of habitability, which means Arkansas landlords are not required to make repairs or maintain their properties. Arkansas is one of only 10 states that don't prohibit retaliatory eviction.

The Non-Legislative Commission on the Study of Landlord-Tenant Laws, created in 2011 by the legislature, released a report Dec. 31 recommending 15 tenant-landlord law reforms.

"Ninety percent of landlords are good people, and 90 percent of tenants are good people, and we take care of our places to start with," said Howard Warren, who represents the Landlords Association of Arkansas on the commission. "The warranty of habitability is something the landlords would actually support, because it would make it harder for the bad landlords to make us all look bad."

Lynn Foster, professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock and a member of the study commission, said, "If you're on a month to month lease, maybe it says the landlord makes repairs, maybe it doesn't — but if you report something to code, the first thing the landlord is going to do is try and evict you. That's why it's imperative that if we adopt a warranty of habitability, we also adopt a statute prohibiting retaliatory eviction."

Erin O'Leary with Arkansas Legal Services, a nonprofit that provides legal aid to low-income plaintiffs, says that a large part of the agency's business is helping tenants. "If your heat breaks, you can't withhold your rent or use your rent money to fix the heat. No matter what your living conditions, your responsibility to pay your rent on time and in full is never removed. For our clients of very limited means, they're choosing to get their heat fixed or to pay their rent on time. ... If they have to pay to get the heat fixed, the only mechanism to get that money back is to file in small claims court. But that's a lengthy process, and our clients can't wait a long time to get back $700."

The commission calls for changes in state law rather than relying on municipal codes, which are lacking in smaller towns and which are slow to be enforced where they do exist. They also don't cover all circumstances: While mechanical issues are covered by code, in cities where code exists, there are no guidelines for problems such as mold. "For me to prosecute you, as a landlord, I have to show you where you are violating the law," said Tom Wadley, North Little Rock Code Enforcement director. He refers mold calls to the state Department of Health.

It didn't take long for the mattresses, blankets and clothes — anything Petrice Howard kept in those back rooms — to mildew. Howard moved her eight children into the one remaining bedroom and the living room.

The city found three code violations in Howard's house — leaking pipes, a leaking toilet and broken windows. The code report notes a fourth phenomenon: "rear bedroom walls and ceiling sweating and would cause a molding problem." All related repairs were to be made by Dec. 18, but the final repair was not completed until Jan. 24, according to the city. The landlord had insulation installed in the attic above the sweating bedroom — a step beyond what the law requires, said Wadley, since there's no provision for insulation or mold. This slowed the condensation, but it didn't entirely remedy the problem. Water beads remained in one corner of the room and large patches of mold remained on the walls.

Howard pays $575 a month for the roughly 1,200-square-foot house that she moved into Sept. 27, 2012. The water heater has visible damage, and according to Howard, hot water has been inconsistent. When it began to get cold, Howard realized that the heater in the living room didn't work at all — a major problem, since she and her family were already living in only the front bedroom and living room. She reported this to her landlord in mid-November. A secondhand heater was installed within a few days, but that heater didn't work properly either. It wasn't repaired until Jan. 17, after Walton-Middleton repeatedly called Cassandra Hilton, the property manager for Big Dog Homes, and Joi Whitfield, the owner, on Howard's behalf. According to tax records, Big Dog owns 54 properties in North Little Rock.

"Ms. Whitfield, she told me, 'I'm not going to spend $6,000 on that house, in that neighborhood,' " Walton-Middleton said. "In our last conversation, I discussed with her that at some point I'm going to fade into the background, and Ms. Howard needs to be assured that her concerns as a tenant are going to be answered without the threat of litigation. We shouldn't have to say 'we're going to sue you' to get you to do what needs to be done. Ms. Howard pays her rent. She needs heat."

Walton-Middleton's persistence with Big Dog Homes eventually paid off. On Jan. 30, a crew gutted Howard's back bedroom and insulated the walls, in addition to adding insulation under the house. While the repairs were made, Whitfield put Howard and her children up in Motel 6. "It's great that she's finally doing the repairs, but things should never have come to this," said Walton-Middleton. "Ms. Howard and her kids, they had to live with that for October, November, December, January. They shouldn't have had to do that."

Whitfield declined to comment except to note the repairs.

Nearly one in three Arkansans lives in a rental property.

Human Rights Watch, an organization that follows rights violations worldwide, issued on its website Feb. 5 the report "Pay the Rent or Face Arrest: Abusive Impacts of Arkansas's Draconian Evictions Law."

"Arkansas's criminal eviction law is absolutely unique," said Chris Albin-Lackey, a senior researcher for HRW and author of the report. "There's no other law in the country that deals with failure to pay rent as a criminal matter. It seems like an issue that's very much under the radar, that hasn't gotten the attention it deserves inside and outside of Arkansas."

Albin-Lackey based his report on interviews with tenants charged under the state's criminal evictions law, landlords, a district judge, lawyers and independent legal experts, including members of the study commission, in Little Rock, North Little Rock, Cabot and West Memphis.

Like other states, Arkansas has a civil eviction process — a clunky and expensive affair that the commission recommends streamlining. Based on data HRW gathered from 11 district courts, it's safe to assume that criminal evictions are vastly more common. Those courts alone heard more than 1,200 criminal eviction cases in 2012.

"Arkansas's criminal evictions law is a strange blend of archaic lawmaking, modern day lobbying and shoddy drafting," reads the HRW report. Some portion of the criminal failure-to-vacate statute has been on the books since 1901. In 1989, the state Supreme Court upheld the statute, and in 2001, the legislature increased the penalties for tenants choosing to plead not guilty. Under the statute, a tenant who is just a day late on rent can be served a 10-day notice to vacate. A tenant who doesn't vacate is automatically guilty of a general misdemeanor that bumps up to a Class B misdemeanor upon a guilty plea or court ruling. In some cases, the tenant is arrested and detained. In other cases, the tenant is simply served with a summons, or is arrested, given a court date and released. Ultimately, what happens to the defendant has nothing to do with the details of the case, and everything to do with where the eviction occurred. "One of the reasons this law is so problematic is that it's enforced differently in different counties," said Foster. "Some prosecutors refuse to enforce the law at all, presumably because they find the law unfair." The federal government forbids criminal eviction of tenants receiving federally-subsidized housing.

Albin-Lackey's research in Arkansas last summer included attending court proceedings and learning how the evictions process works. "There are at least one or two [cities] where the police go to peoples' houses and actually arrest them ... and they have to make bail if they're going to be released. Otherwise, they have to stay in pretrial detention," he said.

In Jacksonville, for example, he found that most tenants are detained until they come up with $250 bail (though Jacksonville Police Officer Jessica Hartfield-Lee said the department's standard bail for failure-to-vacate is higher, $750). In Little Rock and North Little Rock, tenants are merely served with a summons. According to Will Jones, supervisor over Pulaski County district courts, the county processes anywhere from 10 to 30 criminal evictions a day.

Pine Bluff Assistant City Attorney Daryl Taylor handles a criminal eviction roughly every other week. The defendants are never arrested. "An arrest is a traumatic experience, and we balance the weight of the crime with the potential outcome. If the potential outcome is a fine, that's just not the type of offense we arrest for," she said.

Mike Murphy, Conway city attorney, can't remember the last time he prosecuted a criminal eviction. "Usually when we point out to folks that the criminal statute can be used to fine the person, but that there's no equitable remedy in the statute to order the people to leave, most folks opt to go through the civil eviction process," he said. "It's much faster in terms of getting an order to vacate."

State law penalizes defendants for pleading not guilty, which Albin-Lackey said is a denial of due process. "The law says if you plead guilty, you don't have to put up the money that you allegedly owe your landlord," said Albin-Lackey. "You'll just be convicted and fined [$25 a day, for every day that you occupied the premise illegally] or handed down whatever sentence the district court wants to give you. If you plead not guilty, you're required to pay all of the money that you allegedly owe your landlord to the court registry. So you're basically asked to put up money that you didn't have in the first place just to exercise your right to have a trial. If you don't have that money and still want to plead not guilty, you end up facing much harsher sentencing if you're actually convicted, than had you just pled guilty."

Commission member Foster compares this system to forcing an assault victim to pay a fee in order to bring charges against the assailant. "It's the taxpayers subsidizing the landlords, allowing the landlord to use the prosecutor as their own personal lawyer. It's an inappropriate use of the criminal justice system," she said.

HRW found numerous instances of misuse or abuse of the failure-to-vacate statute. Some landlords refuse to accept rent and then evict for nonpayment. In one case, a West Memphis woman, Charlotte Morton, was in a rent-to-own situation. When her husband died, she lacked one payment in receiving the deed to her house. Since the contract was in his name, the seller refused to recognize it, refused to accept the final payment, and on more than one occasion, has attempted to criminally evict her. Morton has appeared before the court twice. Both times, the charges were dropped, but now Morton fears unexpected knocks at her door.

"The landlord just has to go to the prosecutor with an affidavit, and the county prosecutor looks at them and says, well, if the landlord is telling the truth, this is a violation of the law, so we're going to go ahead and file these charges. ... I don't know why, I assume because most of these offices are overworked and don't have the time to scrutinize these things," Albin-Lackey said.

What tenants don't understand, according to Albin-Lackey, is that under the law, the judge isn't allowed to hear counterclaims. The judge is only allowed to ask if they have paid their rent or if they've moved. Albin-Lackey saw tenants arrive in court with documents supporting their side of the story, not realizing that the judge wouldn't be able to hear it. In one instance, an elderly tenant pleaded no contest and was sentenced to probation, despite having never received her 10-day notice because she was hospitalized following a stroke.

Often the statute seems to function as an intimidation tactic. According to prosecutors and aid workers, most of these cases never make it to court. "What we find is, people are so confused and so scared, they end up moving out, whether or not they actually owe money," said O'Leary.

The commission and HRW criticize the statute for criminalizing poverty. "I think there's a general misconception on the part of landlords, on the part of judges, on the part of legislators, that this law only affects deadbeats. ... The main thing that we're trying to do with this [HRW] report is highlight the number of people who don't fit that profile," said Albin-Lackey. The commission's report reads: "There is really no difference between this statute and a statute that would criminalize persons who default on their mortgages and remain on the premises."

Albin-Lackey interviewed one Little Rock couple who were arrested on their way to Bible study. When Steve (who wants to be known only by his first name) and his wife found the police at their door, the wife, a recent heart transplant recipient, fainted on the spot. Steve, 60, had lived in the same apartment complex for nearly nine years, but that month, August 2012, they were two weeks behind on rent. They met with the property manager and offered to pay half of the rent then and half before the month ended, but were refused. After receiving their 10-day notice, they immediately began looking for a new home. Steve also asked his brother for help. But when the money arrived, the property manager refused to accept even the full rent.

In district court, his wife clutched a bag of anti-rejection meds, just in case their locks were changed while they were away. The clerk asked her to face him for a mug shot, and she began weeping. "Are we going to jail? I don't want to go to jail!" she said.

The judge asked Steve how long they had been in the apartment and allowed him to explain their situation. According to Steve, "She said, 'OK, well, I'm going to give you another week. And if you're not out in a week, you'll have to come back to court, and we'll have to charge you.' " The judge didn't fine them or require them to pay the missed rent. Her action was "a mercy the law does not actually allow judges to extend to the accused," the HRW report notes.

"We had to rush and get what we can get. What's bad about it, when you try to get another apartment, the application's going to tell that you were evicted," Steve said. Their new apartment had a carbon monoxide leak due to improper stove fittings, no heat and only two outlets, problems that Steve has had to call code about, since his landlord has little interest in remedying them.

Even in straightforward circumstances, failure-to-vacate is preferred by landlords because it is cheaper and easier than civil eviction. "The landlords' position is, we want a simple, effective way to evict an intentionally nonpaying tenant," said commission member Warren. "When a tenant intentionally occupies my property without paying for its use, they're stealing from me. I've never evicted grandma. I've evicted people who blow their money on iPhones or dressing up an old car or buying expensive furniture from rent-a-center."

Arkansas has two civil eviction statutes on the book, but one of them is contradictory and unusable. Foster outlines the other, called unlawful detainer: "A landlord would have to file a complaint with the circuit court. The form is complex, most likely requiring a lawyer, and you have to pay court fees of $165. By using the criminal statute, the landlord becomes a victim of a crime and doesn't have to pay court fees."

According to Warren, civil evictions can cost landlords up to $2,000, in addition to any uncollected rent. He's heard horror stories from landlords unable to force tenants to leave. "You get down in the Delta and the poor sections of Arkansas, and you have no way to get any form of eviction. Neither the 10-day failure-to-vacate works, nor does the civil, because attorneys won't take the cases. They're unpopular. You're throwing somebody out," he said.

The commission recommends several statute changes that should make the civil process more attractive to landlords. Among them: having standard forms available so that neither landlords nor tenants need to hire attorneys; giving district courts, with cheaper filing fees and faster dockets, the power to hear civil evictions, and establishing a week or less time frame between the tenant's written response and a possession hearing. Repealing the criminal failure-to-vacate is only recommended when a better civil eviction procedure is in place.

HRW recommends repealing failure-to-vacate in its entirety during the 2013 legislative session, and until repeal, requiring courts to report these cases and their verdicts and sentences to the Administrative Office of the Courts.

In addition to a lack of protection from retaliatory eviction, tenants are not protected from undue landlord access to the space (entering with no notice). The commission would address that by limiting landlord access to the premises. Other recommendations made by the commission: adding stronger protections against discrimination and for domestic violence victims, and adding the missing portions of the Uniform Residential Landlord and Tenant Act (URLTA). URLTA is a sample law, essentially a recommendation to all states, adopted in 1972 by uniform law commissioners from each state. Twenty-one states have enacted the URLTA, but Arkansas is not among them. That's because, in 2007, the Arkansas legislature enacted only half of the act — the half that provides landlord protections. Arkansas didn't enact any of the tenant protections, which is why landlords don't have to keep up common spaces, provide waste receptacles or maintain basic sanitary conditions, and can continue to enforce a tenant's lease even if the premise becomes uninhabitable due to natural disaster. Under URLTA, asking tenants to give up legal rights is punishable by requiring the landlord to cover the cost of the tenant's attorney fees and three months' waived rent.

Landlords often do credit, background and reference checks on tenants, sometimes at the tenant's expense. But beyond word of mouth, tenants have little guidance on which landlords to avoid. The attorney general's office doesn't keep a comprehensive record of tenant complaints, and the Arkansas Real Estate Commission only investigates complaints against realtors who manage other people's properties. There is no oversight for landlords who manage their own property, since the Arkansas Landlords Association doesn't have any system of processing or verifying complaints.

Withholding rent for any reason is immediate grounds for eviction. You can sue if evicted and to get out of the lease, Foster said, "But how many renters have the resources to sue? ... You'll hear from landlords that there were pro-tenant people on the commission, but I'm not pro-tenant. I'm pro-fairness. We are so far out of line from other states. Are Arkansas tenants so different? What makes Arkansas tenants so bad that we have to take away their rights?"

There's a chance the legislature could act on the reforms during this legislative session. The study commission has asked that a bill be drafted and "a number of legislators have expressed interest," Foster said. She thinks the recommendations will have a better chance of passing if they are divided into separate pieces of legislation.

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