Amid COVID-19, Arkansas tenant-landlord law expected to get new look in 2021 legislative session

September 14-20, 2020

By Daily Record Staff


During the 2019 Arkansas General Assembly, legislation to revamp Arkansas’ tenant-landlord law died in the House Insurance and Commerce Committee after weeks of back-and-forth between lawmakers, housing advocates, policymakers, and the influential Arkansas Realtors Association.


That bill, House Bill 1410 by Rep. Jimmy Gazaway, R-Paragould, was introduced to the powerful House panel on Feb. 7 with high hopes of passage amid criticisms that Arkansas had the weakest protections from rental tenants. One of the frequent asides during the House debate was that Arkansas is the only state in the U.S. that provides for the criminal prosecution of tenants who are late on rent payments.


Eventually, after spending more than two months in the House committee, HB1410 died on the House calendar at sine die of the General Assembly, which officially adjourned on April 10, 2019. Under Gazaway’s bill, the Arkansas Residential Landlord-Tenant Act of 25 2007 would have been amended to require minimum habitability standards for tenants of residential rental properties.


Among many things, HB1410 would have required all residential rental properties to be structurally sound and have working locks, plumbing, electricity and heat, along with a few other basic living standards. After several rounds of private meetings with ARA officials, the bill was retooled several times to omit certain noncompliance references concerning landlords in the eight-page bill.


Lynn Foster, a retired UA Little Rock Law School professor and authority on landlord-tenant law, told The Daily Record there is a good chance that legislation similar to the HB1410 will be filed ahead of the upcoming 93rd General Assembly that begins in January 2021 at the Arkansas State Capitol.


“I fully expect some proposed legislation to come up in the next session,” said Foster, one of the drafters of the failed 2019 measure. “This is a policy issue the vast majority of Arkansans support and several new organizations have added their support during the last session.”


Under current Arkansas law, the landlord of a tenant who is one day late on rent may order the tenant to vacate the premises within 10 days. If the tenant fails to do so, they are guilty of a separate misdemeanor offense for each day they fail to vacate the premises following the expiration of the 10-day notice and must pay a fine of up to $25 per day or offense.


Foster said the COVID-19 pandemic has drawn new attention to Arkansas’ 2007 tenant-landlord law, which the former UALR law school professor and other housing advocates have characterized in past legislative hearings and committee meetings as the worst in the nation. She said once the Trump eviction ban ends on Dec. 31, 2020, evictions could skyrocket at the same time Arkansas lawmakers head to Little Rock for the biennial assembly.


“The moratorium is half-a-loaf, and what should have been done and was done until unemployment ran out was that tenants should have received money to pay the rent,” Foster said of failed congressional talks to pass a new $1 trillion stimulus package in early August. “This would have helped the tenants and would have helped the landlords, but Congress has not seen fit to pass anything. The rent assistance being past by Arkansas is very hard to obtain and in all of the cases that I’ve heard about, you are lucky enough if it pays a month’s worth of rent that is due.”


ARA spokeswoman Julie Mullenix told The Daily Record that Arkansas’ largest real estate trade group, which includes 28 independent local realtor boards and associations across the state, has not fully established a legislative agenda for 2021 session, which convenes on Jan. 11, 2021.


Besides efforts to pass new tenant-landlord bill in the 2019 session, there have been several attempts over the last decade to revamp the Arkansas Residential Landlord and Tenant Act of 2007 that hold landlords mostly immune from tort liability. The Arkansas law is also notable for the lack of an implied warranty of habitability for residential leased premises.


During the 2011 general session, Act 1198 created the non-Legislative Commission on the Study of Landlord-Tenant Laws to study, review and report on the landlord-tenant laws in Arkansas and other states. Two years later, the commission issued a report to the legislature that recommended reforming state law. 


Specifically, the commission recommended repealing the criminal eviction statute, in conjunction with implementation of a streamlined civil eviction process, and enactment of an implied warranty of habitability. Other recommendations include changes that would bring existing law more in line with the federal Uniform Residential Landlord Tenant Act.


In the 2015 session, legislation sponsored by Rep. Greg Leding, D-Fayetteville, would have required “a minimum habitability standard” for tenants of resident property in Arkansas. That bill died in committee when the 90th General Assembly adjourned.


Prior to the beginning of that 2015 session, Pulaski County Circuit Court Judge Herbert Wright, Jr. issued an order finding the statute “wholly unconstitutional.” That ruling in January 2015 occurred after Center for Arkansas Legal Services and its sister organization, Legal Aid of Arkansas, filed motions attacking the constitutionality of the criminal eviction statute in a Pulaski County case.


Over the next few months, Legal Aid was able to obtain similar rulings in cases in the First and Second Judicial Districts, which includes Craighead County. However, ahead of the 2017 legislative session, state Attorney General Leslie Rutledge asked a federal judge to issue a temporary stay on a case before the U.S. District Court in Harrison questioning the constitutionality of the state’s landlord tenant rules.


At the time, Rutledge’s office told federal U.S. District Court Judge Timothy Brooks that the constitutionality of the state’s tenant-landlord law would soon be a moot issue because the legislature was expected to debate and potentially enact a new law during the 2017 session.


In that regular session, ARA supported House Bill (HB) 1166 by Rep. Laurie Rushing, R-Hot Springs, which included affirmative rights for tenants. However, that 2017 bill also died in the Senate near the end of the regular session when a hostile amendment was added that disrupted the balance of rights between landlords and tenants.


More recently, the ACLU of Arkansas, the Bowen Legal Clinic, the Center for Arkansas Legal Services and Legal Aid of Arkansas filed suit in federal court in June challenging the constitutionality of the state’s criminal eviction statute. The legal coalition represented a local renter facing eviction and potential criminal penalties after losing their job due to COVID-19.


The lawsuit, which was filed before the President Trump’s moratorium went into place last week, asserts that Arkansas’ criminal eviction law denies people their right to due process and violates both the state and federal constitutions. 


“Arkansas is the only state where being late on the rent can result in a criminal prosecution – purely on the basis of a landlord’s say-so,” said Holly Dickson, ACLU of Arkansas interim executive director and legal director. “This law allows landlords to use the criminal process to get the upper hand in a matter for civil court, and it disproportionately impacts Black and brown communities who already suffer from over-policing and systemic discrimination in housing, health care, and employment. Poverty is not a crime and it is long past time for this cruel and unconstitutional law to be struck down.”  


“We’re suing to make sure no tenant is ever again prosecuted for not being able to afford the rent,” Kendall Lewellen of the Center for Arkansas Legal Services. “With rents continuing to rise and thousands of Arkansans experiencing job losses and furloughs due to COVID-19, we’ve seen first-hand how this law is forcing tenants to live in fear that a late rent payment could land them in criminal court.”


Lewellen also noted that Arkansas is he only state in the nation that adopted only the recommended protections for landlords and none of the recommendations for tenants from the Uniform Residential Landlord and Tenant Act, a sample law governing residential landlord and tenant interactions.


Under Arkansas law, Nov. 15 is the earliest date that Arkansas lawmakers file new bills for the 2021 session. Arkansas House and Senate leaders have also set Oct. 13 to begin budget hearings of the Arkansas Legislative Council.