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Landlord/Tenant Law in Arkansas

Landlord/Tenant Law in Arkansas. Global Impact. Not everyone living in a distressed neighborhood is associated with gang members, parole officers, employers, social workers, or pastors. But nearly all of them have a landlord. – Evicted by Matthew Desmond. Overview.

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Landlord/Tenant Law in Arkansas

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  1. Landlord/Tenant Law in Arkansas

  2. Global Impact Not everyone living in a distressed neighborhood is associated with gang members, parole officers, employers, social workers, or pastors. But nearly all of them have a landlord. –Evicted by Matthew Desmond

  3. Overview Arkansas is recognized as having the most landlord friendly laws in the United States. It has been dubbed “the worst place to rent in America.” Arkansas is the only state to criminalize non-payment of rent. We are also known for having no state law requiring a landlord to maintain rental units. No “implied warranty of habitability.” In 2007, our legislature enacted a new landlord/tenant act that included almost no tenant protections.

  4. What is a Tenancy? A tenancy is a “possessory estate” in land that is granted by permission of the landlord. A tenant has the right to use and enjoy the estate, and this right is protected by the Constitution. A tenancy is governed by a contract (lease agreement) that contains a series of promises by both the landlord and tenant. The lease may be written or oral. Either way, there is ALWAYS a lease. A tenancy is distinguished from other arraignments such as a license, lodging agreement (motel), contract purchaser in possession, and mortgagee.

  5. The Lease Most obligations between a landlord and tenant are governed by the lease. In any dispute, look to the lease first. When representing a tenant (or landlord) always insist on seeing a copy of the lease. While the lease will govern in most instances, beware of illegal terms such as: penalty clauses and attempts to forego statutory eviction procedures. An oral lease is valid but cannot exceed 1 year in length. If no term is specified, a lease is presumed to be month to month.

  6. Security Deposits A.C.A. §§ 18-16-301 to 306 May not exceed 2 months’ rent. Must be returned to the tenant within 60 days of the end of the tenancy. Landlord can withhold for damage that exceeds normal wear and tear. If landlord withholds, he must send the tenant an itemized receipt within 60 days of the end of the tenancy. If landlord wrongfully withholds the deposit, tenant may be entitled to twice the amount of the deposit.

  7. Tenant Obligations - Statutory Paying rent on time; keeping the dwelling unit reasonably safe and clean; disposing of ashes, garbage, rubbish, and other waste in a reasonably clean and safe manner; keeping plumbing fixtures in the unit reasonably clean; not destroying, damaging, or removing any part of the unit or knowingly allowing persons on the premises with the tenant’s permission to do so; not disturbing other tenants’ peaceful enjoyment of the premises.

  8. Landlord’s Obligations - Statutory Comply with security deposit law; Abide by civil rights laws (more on this in a bit); That’s it.

  9. Eviction Unlawful Detainer – ACA 18-60-301 Municipal Court Civil – ACA 18-17-901 Criminal Sanction – ACA 18-16-101 Self-help

  10. Unlawful Detainer Most common method of eviction in Arkansas. 3-day written notice for non-payment of rent; 14 day notice with opportunity to cure for anything else. See 18-17-701. Notice must be given in a way reasonably calculated to get to the tenant. Greene v. Lindsey, 456 U.S. 444 (1982). If tenant does not vacate by the end of the notice period, landlord files a lawsuit in circuit court. $165 filing fee plus service costs.

  11. Unlawful Detainer cont. Once served a tenant has 5 days to file a written objection with the circuit clerk. At the time of the objection, the tenant must also deposit any rent alleged owed into the court’s registry (this requirement is likely unconstitutional). If the tenant does not properly object (and pay), the clerk can automatically issue a writ of possession. If the tenant does object (and pay), the matter is set for a hearing.

  12. Unlawful Detainer cont. Bifurcated hearing process. Possession hearing – substantially likely to win on merits. Final hearing on damages comes later. Bonds – required of landlord and tenant. Damages – actual damages, “liquidated damages”, costs, fees. Tenant wins? Damages and writ of restitution. Final hearing may be tried to jury.

  13. District Court Civil ProcessACA 18-17-901 5 day notice for non-payment; 14 day for anything else. 10-day order to show cause. Does not provide for damages; only a writ of possession. Serious jurisdictional issue - The Arkansas Supreme Court has not given district courts original jurisdiction to hear evictions. Again…There is currently no such thing as a valid eviction filed in district court! Even so, this procedure is heavily used in some parts of the state.

  14. Criminal EvictionACA 18-16-101 We are the only state that criminalizes non-payment of rent. This has given Arkansas a ton of negative attention including drawing the ire of Human Rights Watch. 10 day written notice required. $1-$25 per day fine. No writ of possession.

  15. Criminal Eviction cont. Serious constitutional issues. 4 Courts have found the current statute unconstitutional. Due Process Right to Trial Debtor’s Prison Legal Aid has litigated this issue several times. 2014-2016, statute declared unconstitutional in 13 counties – including Pulaski. Unenforced in many other counties. Still used in Springdale. Not used in Fayetteville or Bentonville. Heavily used in Fort Smith. Legislative amendments in 2017

  16. Self-Help Eviction Changing locks, cutting power or water, taking out heat/air, threats, guns, bodyguards. ILLEGAL. Don’t do it! Forcible Entry and Detainer Damages, Liquidated Damages, Torts, Criminal Sanctions.

  17. Breaking the Lease Very difficult in Arkansas. Negotiation – Get release in writing! Constructive Eviction – lets a tenant leave when housing conditions are awful. Allows for damages. Arkansas Realtors Assoc. is currently trying to degrade this limited protection. HB 1166 Abandonment – A.C.A. § 18-16-108 deals with abandoned property and creates a landlord’s lien on personal property located at the leased premises.

  18. Breaking the Lease cont. Landlord has three options: 1) Let the property sit empty and sue for rent as it becomes due. 2) Retake property and use it himself. Cuts off damages. 3) Re-rent property and credit the rent received to the previous tenant’s account. Special damages – costs of re-renting are recoverable.

  19. Domestic Abuse Protections Ark. Code Ann. § 18-16-112 Protections for domestic violence victims were added to the Arkansas state landlord-tenant code in 2007 Enacted as an Act to Assist Residential Tenants that Are Victims of Domestic Abuse, Sex Crimes, or Stalking Slight revisions made to the law in 2009 and 2013 Failed revision in 2019.

  20. Protecting Survivors under AR Law • When there has been a documented incident of domestic abuse, a landlord cannot: • terminate or fail to renew a lease • refuse to enter into a lease • or otherwise retaliate in the leasing of a residence because of domestic abuse • A landlord or tenant other than the offender may change the locks to the residence • at the tenant’s expense • with the landlord’s prior consent • the landlord or tenant shall furnish the other a copy of the new key immediately after changing the locks.

  21. Restricting Offenders under AR Law • If a domestic abuse offender is ordered by the court to stay away from a survivor’s residence: • The offender may enter the residence only to the extent permitted by a court order, • A landlord may refuse access by the offender unless access is permitted by a court order, and • The landlord may pursue legal remedies against the offender, including: • Terminating the offender’s lease • Evicting the offender (even when the offender is not on the lease) • Bringing an action in court to terminate the lease as it pertains to the offender, to evict the offender, and/or to obtain any damages due to the landlord for unpaid rent owed by the offender and resulting from a documented incident of domestic abuse.

  22. Fair Housing • FairHousing Act42 U.S.C. § 3601 et seq. • April 11, 1968 • The FHA was enacted just days after the Martin Luther King assassination (April 4, 1968). • The FHA had a broader reach than the Civil Rights Act of 1866, which dealt with racial discrimination only. • The FHA originally covered Race, Color, and National Origin, and Religion.

  23. Fair Housing Act Amendments Sex discrimination was added in 1974 Handicap was added in 1988 Familial Status was added in 1988

  24. Protected Classes Race Color Religion National Origin Sex Familial Status Disability (Handicap) https://www.youtube.com/watch?v=84k2iM30vbY

  25. Race 42 U.S.C. 3604 Race involves treating someone unfavorably because of their race OR Personal characteristics associate with race

  26. Color Involves treating someone unfavorably because of skin color or complexion An example would be to discriminate against a dark skinned, but not a light skinned Asian person

  27. Religion Involves treating someone unfairly because of their religious observance, practices, and beliefs

  28. National Origin Involves treating someone unfairly because of their place of origin or ancestry OR Because the person has the physical, cultural, or linguistic characteristics of a specific or particular national origin group

  29. Sex • Involves treating a person unfavorably because of gender • Sexual Harassment is included • Deliberate or repeated unsolicited verbal comments, gestures, or physical contact creating a hostile environment or when sexual favors are sought in return for housing “quid pro quo.” • Sexual Orientation • HUD assisted housing or covered by FHA loan • -24 C.F.R § 5.100 et. seq. • Defines sexual orientation-homosexuality, heterosexuality, or bisexuality • -77 Fed. Reg. 5662

  30. Sexual Harassment: two types • Quid pro quo • A provider, employee, or agent conditions access to or retention of housing on a victim’s submission to sexual conduct • Hostile Environment • A provider, employee, agent, or, in certain circumstances, another tenant, engages in sexual behavior of such severity or pervasiveness that it alters the terms or conditions of tenancy and results in an environment that is intimidating, hostile, offensive, or otherwise significantly less desirable • Hostile environment is based upon the perspective of a reasonable person in the tenant’s position

  31. Familial Status • Involves treating someone unfavorable because they have children, are pregnant, or are tying to adopt • Occupancy Standards must be reasonable • HUD considers the number and size of bedrooms and other special circumstances • Burden will be on the occupancy standard creator to establish reasonability • Families with children cannot be segregated from other families. 24 C.F.R § 100.70 (c)(4)

  32. Disability • Involves treating a person unfavorably because of their physical or mental disability • Disability also includes a failure to properly design and construct a dwelling in a manner consistent with ADA or Fair Housing Act Design Standards which would allow a person with a physical disability to enjoy the full use and benefit of a property. • 42 U.S.C. 3602(h) Handicap [disabled] is defined as: • Physical or mental impairment which substantially limits one or more of such person’s major life activities • A record of having such an impairment, or • Being regarded as having such an impairment • But such term does not include current, illegal use of or addiction to a controlled substance

  33. What is Covered? • Covers all dwellings, except: • An owner-occupied dwelling with four or fewer units • A single family home owned by an owner who owns fewer than four units • Dwellings • Defined as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence.” • public housing, homeless shelters, hotels, and nursing homes are all considered dwellings for purposes of the FHA.

  34. Types of Discrimination • The Act recognizes two types of discrimination: • Discriminatory treatment: overt discrimination • Disparate impact: a facially neutral rule has the effect of discrimination against a protected group

  35. Prohibited Conduct Refusal to rent, sell, or make housing available, 3604(a); Discriminate in the terms, conditions, or privileges for sale or rental, 3604(b); Discriminatory statements and advertising, 3604(c); False representations of unavailability, 3604(d); Blockbusting, 3604(e); Disability discrimination, 3604(f)

  36. LENDING(42 U.S.C.§3605) Examples: 1. Imposing a higher interest rate because of race. 2. Not making loans to blacks for homes in majority white neighborhoods. 3. Taking a longer time to process a loan because of the borrower’s race. 4. “Redlining” an area that is predominantly black and refusing to make loans within that area regardless of qualifications for the loan. 5. “Reverse redlining” an area that is predominantly black in order to offer loans that the lender is aware borrowers will be unable to repay with disadvantageous terms and conditions attached.

  37. THREATS, INTIMIDATION, COERCION - - (42 U.S.C.§3617) Examples: 1. Graffiti written on or about the individual’s property. 2. Acts of vandalism or violence against an individual or their home, such as fire bombing or cross burning. 3. Retaliatory conduct against an agent who will not discriminate against prospective homeseekers because of class membership, at the direction of the employer.

  38. Filing a Complaint • Individuals can file FHA complaints with HUD or the Arkansas Fair Housing Commission • 1 year statute of limitations • 100 days to investigate • Individuals can also file private lawsuits under the Fair Housing Act • 2 year statute of limitations

  39. Types of Relief • Court Complaint • Compensatory and Punitive Damages • A.C.A § 16-123-338(1) • 42 U.S.C. § 3613(c)(1) • Reasonable Attorney Fees • A.C.A. § 16-123-338(2) • 42 U.S.C. § 3613(c)(2) • Court Costs • A.C.A. § 16-123-338(3) • 42 U.S.C. § 3613(c)(2) • Injunctions • A.C.A. § 16-123-338(4) • 42 U.S.C. § 3613(c)(1)

  40. Reasonable Accommodation A reasonable accommodation is a change in a rule, policy, practice, or service that may be necessary to allow a person with a disability the equal opportunity to use and enjoy a dwelling. When a qualified person with a disability makes a request that is: NECESSARY + REASONABLE = THE HOUSING PROVIDER MUST GRANT ACCOMMODATION

  41. How to Make a Reasonable Accommodation Request • Requests may be oral or written. • If possible, it is always best to make them in writing, but doing so is not necessary. • The reasonable accommodation process begins once a tenant tells a housing provider that they are disabled and need something changed in order to accommodate that disability. • If the disability is not apparent, the landlord may ask for verification. • There must be a nexus between the disability and the requested accommodation • The request must be reasonable

  42. Reasonable Accommodation • A landlord must provide a requested accommodation unless the landlord can show that doing so will: • Impose an “undue burden” or • Result in a “fundamental alteration” in the service provided by the landlord. • The need for an accommodation may arise at anytime: • when applying • during the tenancy • to avoid an eviction

  43. Reasonable Modifications A housing provider must permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied by such person, if the modifications are necessary to allow the person full enjoyment of the premise If the housing is federally funded, it is the owner’s responsibility to pay for reasonable modifications (Section 504 of the Rehabilitation Act of 1973).

  44. Questions? Contact us! Jason Auer Legal Aid of Arkansas (870) 972-9224 ext. 6318 jauer@arlegalaid.org

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