Renters Beware: Hostile Landlord-Tenant Law in Arkansas.

Renters Beware: Hostile Landlord-Tenant Law in Arkansas

Caveat Lessee

Recognized Exceptions:Short-term lease for furnished spaceDuty to repair under the leaseLatent defectCommon-area maintenance

Javins

Caveat Lessee doctrine no longer applicable

Established Implied Warranty of Habitability in all residential leases

Landlords promise to maintain leased residential property in a habitable condition

Javins v. First Nat. Realty Corp., 428 F.2d 1071 (DC Cir. 1970) (opinion by Judge Skelly Wright; cert. denied).

2005 and 2007 Acts

Arkansas Codified doctrine of Caveat Lessee

The Future of Arkansas

o Private Right of Action and Sovereign Immunity

o Constitutional Challenges to Caveat Lessee

o Arkansas’ Criminal Eviction Statute

Renters Beware: Unenforced Building Codes

Private Rights of Action Through Municipal

Codes:The Propst Window

“…building codes in force in many localities today have the effect of protecting tenants, to a certain extent, by requiring landlords to keep their buildings within applicable standards”

- Justice Glaze, quoting Dapkunas v. Cagle in the Arkansas’ Supreme Court decision of Propst

Little Rock Code of Ordinances

Section 8-572: “The purpose of this article is to safeguard the stock of decent, safe and sanitary rental housing within the city and to protect the owners, tenants and their invitees by providing for systemic citywide inspections of rental housing and the public areas therein to insure housing code compliance”

Limits: Sovereign Immunity

“The State of Arkansas shall never be made a defendant in any of her courts.”

-Arkansas Constitution, art. 5, § 20

“violation of this Code does not include failure of a city officer or city employee to perform an official duty unless it is provided that failure to perform the duty is to be punished as provided in this section.”

-Little Rock Code of Ordinances ch. 1 § 1-9(c)

Weiss v. McLemore- Waiver of Immunity“This court has recognized only two ways in which a claim of sovereign immunity may be surmounted: (1) where the state is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity”

Where a statute would be unenforceable without a waiver of sovereign immunity, a court may infer that the legislature intended such waiver.

Renters Beware: No Tenant Remedy forInjury

2005 and 2007 Acts

2005 Act: (A.C.A. § 18-16-110)

No landlord or agent or employee of a landlord shall be liable to a tenant or a tenant's licensee or invitee for death,

personal injury, or property damage proximately caused by

any defect or disrepair on the premise. . .

2007 Act: (A.C.A. § 18-17-501; § 18-17-601)

• Landlord obligation: Return Security Deposits.

• Tenant obligations: (1) Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety . . .

Ark. Const. Art. 2 § 13

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.”

Lucas TestA) Legislature can remove

common law right with an adequate substitute remedy

B) The legislation can not be arbitrary or unreasonable

2007 Landlord-Tenant Act

1. Only “Landlord-Tenant Act” in the U.S. that places no repair or maintenance obligations on landlords.

2. A.C.A. § 18-17-601: Tenant shall . . . comply with all obligations imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety. A.C.A. § 18-17-702: [If tenant does not comply with § 18-17-601, landlord can repair and charge tenant for repair, or evict tenant]

3. Shifted obligations normally imposed on landlords by building and housing codes to no one.

Renters Beware: Criminal Eviction

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Criminal Eviction

The Statute

What’s criminal eviction?

“Arkansas has won another distinction: it is the only state in the nation which imposes criminal sanctions on a person who does not pay his rent on time...The majority has, with all the speed of a crawfish, backed into the 19th century”

Duhon v. State, 774 S.W.2d 830 (Ark. Sup. Ct. 1989) (dissenting opinion).

Criminal Eviction Pre-2001 Statute

Tenant fails to pay rent, forfeits right to occupy.

10 days notice to vacate.

No pleading requirements.

$1 – 25 fine / day after failure to vacate.

Duhon: “Misdemeanor” is a violation only. No penalty of jail time permitted.

2001 Amendment

Tenant fails to pay rent, forfeits right to occupy.

10 days notice to vacate.

To plead not guilty: must pay alleged rent due the landlord.

$25 fine / day after failure to vacate.

Reclassified as a “Class B Misdemeanor,” carrying up to 90 day jail sentence.

Due Process: Pre-hearing deprivation

of propertyTenants are required to pay the court the alleged rent owed prior to any hearing. No proof of debt required.

U.S. Supreme Court has largely ruled against pre-hearing deprivations of property under 14th Amendment:

Real property in Connecticut v. Doehr

Personal property in Fuentes v. Shevin

Garnishment of wages in Sniadach v. Family Finance Corp

Additionally: Local prosecutor acting for benefit of landlord.

Right to CounselScott v. Illinois: U.S. Supreme Court held that a term of imprisonment may only be imposed if afforded access to counsel.

Any defendant not afforded right to counsel cannot be imprisoned.

ARK. R. CRIM. P. 8.2(b) codifies the rule of Scott.

However, Calloway held that a plain reading of ARK. R. CRIM. P. 8.2(b) indicates more protection of a defendant’s right to counsel than the Constitutional minimum guaranteed in Scott:

If counsel is not afforded, a court must remove the possibility of imprisonment at the outset of the trial.

Conclusion

Arkansas landlord-tenant law favors landlords

Strategies for change include:Enforcement through building codesChallenges to caveat lesseeChallenges to criminal eviction

References

http://www.arktimes.com/arkansas/no-rights-for-tenants-in-arkansas/Content?oid=2681818

http://www.thv11.com/news/article/243295/2/Landlord-tenant-laws-under-review

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