- Lynn Foster
When it comes to the rights of tenants, Arkansas has among the most imbalanced laws in the nation, according to University of Arkansas at Little Rock law professor Lynn Foster. Foster served on a commission on landlord-tenant laws that recommended various reforms earlier this year.
Not everyone was happy with the report — despite having a member serve on the commission, the Arkansas Realtors Association fired off a letter last October to Michael Schwartz, Dean of the UALR William H. Bowen School of Law, complaining about Foster's work on the commission and other activities. Schwartz quickly determined that Foster had done nothing wrong. So why did the realtors lobby send a heavy-handed letter to the law school expressing "grave concerns" and alleging "a serious breach of the public trust"?
The Arkansas Non-Legislative Commission on the Study of Landlord-Tenant Laws was created by the 2011 General Assembly to analyze landlord-tenant laws in Arkansas and other states and make recommendations. Foster was a vice chair of the commission and the primary author of its final report, which was submitted in January of this year. The report found that "Arkansas's residential landlord-tenant law is significantly out of balance" and that "Arkansas residential tenants have significantly fewer rights than tenants in any other state."
For example, Arkansas is the only state in the nation that makes failure to pay rent a criminal violation and the only state in the nation that does not require landlords to maintain safe, sanitary and fit premises for tenants to live in. The report made 15 recommendations, suggesting reforms to address those failings, as well as improving the civil eviction procedure, disallowing certain "unconscionable" provisions in leases, prohibiting "retaliatory evictions" when landlords evict a tenant who exercises legal rights and other suggestions for reform.
The 10 members of the commission were, broadly speaking, split five-five between members with a background in the interests of landlords and members inclined to create additional protections for tenants. The commission's 15 recommendations, and the report as a whole, were unanimously approved by all 10 commissioners.
"It was a really diverse task force," said commission member Jay Barth, a political science professor at Hendrix (and a columnist with Arkansas Times). "By the end everybody learned a lot. We worked together well. Those of us who were concerned about the potential abuse of tenants gained a lot of knowledge about how frustrating it can be for a landlord in terms of folks not paying their rent and there's no good process in Arkansas for getting that done. Conversely, I think some of the landlord folks in the room came to see some concerns about the potential abuse of tenants and the reality that in certain cases there are bad actors in the landlord community."
Barth said that, after the eight-month process, he believed the commission, despite some areas of disagreement, had found common ground. "There was a lot of consensus," he said. "Everybody was giving up a little something and the system was going to be a lot better for everybody."
Commission Chair Stephen Giles, a Little Rock real estate attorney, agreed: "We got that cooperation from everybody. Everyone had a chance to chime in, object, or offer suggestions."
However, just a few weeks after the report was delivered to the governor and leaders in the House and Senate, five of the commission members released a "letter of clarification," stating that "we have found it necessary to write a separate letter, as we do not believe the final report clearly reflected all viewpoints."
Foster said she was taken aback by this follow-up letter — which was not discussed with the other members of the commission — since all members had voted on the recommendations after a great deal of discussion. Everyone, she said, had seen the final language in the report, which had been tweaked multiple times after suggestions from commission members, including from members who signed the new letter. Foster kept the relevant e-mails confirming that the report's recommendations were unanimous and that all members had voted to approve.
"Everybody was willing to work together in that room," Barth said. "I think when things got out of that room, something happened."
One of the signatories of the "letter of clarification" was Howard Warren, of the Landlords Association of Arkansas. Warren, in a comment on the Arkansas Blog a little more than a week prior to the release of the follow-up letter, wrote of the commission report: "The bottom line is that this document, while not perfect, is one that was unanimously agreed to by members both pro-tenant and pro-landlord. It is not actual legislation ... it is still possible for bad legislation to be run. But it is a good place to start from."
So did Warren have a change of heart?
"The recommendations were unanimously passed, yes," Warren said in an interview for this article. But he said there were subtle disagreements about word choice. "The reason for the letter of clarification was that we wanted people to understand that we voted unanimously on the recommendations but we may have slightly different opinions about the implementation of those recommendations."
Warren said that he was comfortable with what had been turned in but "we began getting questions from outside entities ... we went back and looked at the language and realized some of the language was vague ... the letter of clarification states yes, the five of us agreed with the commission recommendations but here are further details that did not make it into the report."
However, the substantive points raised in the letter of clarification don't conflict with the report at all and are explicitly addressed in the report's language. For example: The letter of clarification states that the five signatories would only be open to ending the criminal eviction statute if the process of civil eviction was reformed first. But the report, while acknowledging that five of the commissioners thought that criminal evictions could be eliminated immediately, clearly states that their unanimous recommendation is dependent on precisely that timing: "the Commission recommends the failure to vacate statute should not be repealed until a valid, satisfactory civil eviction statue for residential landlords is in place."
When asked about the fact that the issues raised in the letter of clarification merely echo what's already in the original report, Warren said that his hope was to emphasize certain aspects of the report that people might have misinterpreted.
"The letter of clarification is not a minority report or an opposition report," he said. "From my perspective, it was to reinforce certain points that might have been buried in the 38-page document."
The Arkansas Realtors Association, however, seems to have stronger disagreement with the commission's findings. In their letter to Dean Schwartz they wrote, "Professor Foster, in her report, said the Task Force's conclusions were 'unanimous.' In fact, five members of the ten member task force had such strong opposition to the commission's 'unanimous' findings, they wrote and signed their own 'Letter of Clarification.' "
The letter accuses Foster of taking "what ARA believes to be inappropriate actions to promote her viewpoint over other Task Force members." The ARA had a representative on the commission — Robin Miller — who approved the original recommendations along with other commission members. Miller declined to be interviewed for this article.
The letter to the law school was signed by Wally Loveless, chairman of the ARA's legislative committee, and Bill Olson, president of the ARA. In addition to complaints about the commission, the letter states that "we believe it is improper for a state employee to use state time, state resources and state facilities to promote a personal policy agenda" and claims that Foster "has actively engaged in lobbying against legislative positions of ARA." Loveless and Olson complain about a symposium held at the law school on landlord-tenant law and claim that "Foster has recently been involved with Representative Jim Nickels' attempt to repeal Arkansas's non-judicial foreclosure laws." The letter requests "that appropriate action be taken to ensure that the citizens of Arkansas can be confident their tax dollars are not funding activities to advance personal agendas of a state employee."
Schwartz replied to the ARA with his own letter, writing that "your letter reflects a misunderstanding of the idea of academic freedom and of the job expectations of law professors" and, noting that Foster had e-mail records of the commission's deliberations, stated that "it appears you have been misinformed about the process and interactions of the ... [Commission]. ... The errors concern me greatly because, based on those errors, your letter wrongly impugns Professor Foster's character." The ARA has not replied.
ARA members declined to be interviewed for this article but Loveless sent the following statement by e-mail: "We have a fundamental disagreement on this issue and will continue to work to ensure that tenants in Arkansas enjoy among the lowest rental rates in the nation. We will also continue to support local option rules for cities and communities and will oppose any statewide mandates that are not in the best interests of tenants and landlords."
For her part, Foster said that she found the notion that she was some kind of rogue lobbyist "incredible." She said she was not directly involved in the bills in the 2013 legislative session based on the commission's findings.
Amy Johnson, executive director of Arkansas Access to Justice (not a member of the commission), worked with Sen. Jon Woods (R-Springdale) to bring forward those bills, which ended up going nowhere. According to Warren, of the Landlords Association of Arkansas, the Woods bills were "absolutely unacceptable" to landlords and went beyond what had been agreed upon by the commission. Foster, Johnson, Warren, and others worked together on possible alternatives before eventually deciding there wasn't time to complete a bill during the session.
Foster said she wasn't surprised that no legislation came out of the commission's recommendations in 2013. "To rush into bills when we didn't get our work finished until the eve of the session, it's just too fast," she said.
As for the Nickels bills on non-judicial foreclosure laws, which are unrelated to the commission's work and were referred to interim study, Foster said that she was approached by Nickels after the session because of an article she had written on the subject. In fact, Foster said, she doesn't even oppose non-judicial foreclosure laws. "I think it's possible that you could tweak the procedures but anything like that would need to studied and examined," she said.
The letter to the law school is not the first time that the ARA has used aggressive tactics and language regarding landlord-tenant laws. A recent KATV news item reported on an internal fundraising letter penned by Loveless regarding the Woods bills: "We have won the battle of 2013 Landlord Tenant engagement. All three bills will not make it out of committee. However, one of the big movers and shakers has issued a call to action to get more organized and funded for the 2015 session. If there was ever any question we are in a war — not a battle."
Foster said that the real issue when it comes to the commission on landlord-tenant law is whether the state will bring balance to the law. "Do we want to take a look at our law and have a serious discourse about whether it should be changed and how?" she asked. "The commission was the first step. That's the question for Arkansas, do we want to take the next step?"