by Max Brantley
This bill states that it establishes "implied quality standards" in residential leases. At first glance, people may think that this is an implied warranty of habitability bill, similar to the one introduced last session. Unfortunately, that is not true. This bill is a very pared-down version of last session's bill, and not similar to the versions of the implied warranties of habitability enacted by most states.Many Arkansas legislators, in other words, want to preserve the status quo to the extent possible in the face of some recent court rulings against their interest. Status quo in Arkansas is the worst landlord tenant law in the country.
What responsibilities does this bill impose on landlords?
They have to provide functioning heat and air conditioning BUT only "to the extent the heating and air conditioning system served the premises" at the time the lease began. The way most people would read that, if there's no heat at the beginning of the lease term, the landlord doesn't have to provide heat.
They have to provide "functioning electricity, potable water, and sanitary systems that conform" to the housing and building codes in force when they were originally installed.
Landlords have to provide a "functioning roof and building envelope." What does this mean?
And that is the extent of the landlord's duty. In most other states, landlords must provide housing that complies with building and housing code provisions affecting health and safety. They have to keep common areas clean and safe. They have to make all repairs to put and keep premises in fit and habitable condition. None of those requirements are in this bill.
So, if you are a tenant and your landlord has not promised in the lease to make repairs and your door locks don't work, or you have toxic mold, or radon seeping into your house, or cockroaches or bedbugs, you're out of luck. This statute doesn't apply.
The other part of the bill deals with what rights tenants have in case the premises are defective in one of the three ways the bill covers. The answer is simple, and again, not fair. Tenants have the right to move out, period. They will get their security deposit back, if they are entitled to it. In most states, tenants can also 1) make the repair and deduct the cost from the rent, if the repair cost is below a certain amount; 2) get a court order requiring the landlord to make the repair; and 3) get damages from the landlord based on a difference in value measure. Fourth, if a landlord in another state sues to evict a tenant, most states allow the tenant to raise the landlord's breach of the implied warranty of habitability as a defense. None of those remedies is available in this bill.
What this bill is, is really the case law doctrine of "constructive eviction," turned into statutory law. The implied warranty of habitability replaced the law of constructive eviction. It was much more fair to tenants because it allowed them to get repairs and damages without having to move.
I believe one unintended consequence of this bill if passed will be that some landlords will simply delete their promise to repair from their leases, figuring that now the law will take care of it, and leave tenants worse off than they were before.
Hopefully, the sponsors of this bill will add the above missing provisions, and correct the imbalance in the present law. Unfortunately the bill as it now exists doesn't do that.