Columns » Jay Barth

Landlord-tenant laws need change



The big political news of last week was, of course, the speech by new Gov. Asa Hutchinson in which he supported continuation of the unique Arkansas private option Medicaid expansion plan for at least two additional years. The Hutchinson speech, monster news in Arkansas, was also a major national story because of its potential implications for health care policy in other conservative states still seeking a path to Medicaid expansion. As the Washington Post noted, most surprising was how Gov. Hutchinson framed the issue. Yes, continuing the program is about dollars and cents — for the state budget and for hospitals, like the University of Arkansas for Medical Sciences, where he spoke — but it is also about creating fairness for over 200,000 Arkansans, as Hutchinson emphasized in telling the stories of individuals now relying on the program. Moreover, for now the Arkansas tradition of non-ideological pragmatism remains alive in state government despite the dramatic change in partisan makeup of the state's political leaders.

Overshadowed by the "AsaCare" speech was a Tuesday decision by a circuit court judge in Little Rock that also promotes fundamental fairness. Judge Herb Wright shot down the 1901 Arkansas statute criminalizing a tenant's "failure to vacate" a landlord's property without paying rent. As landlord-tenant law is properly an aspect of civil law, the Arkansas "criminal eviction" statute was unique in the United States. In a case brought by Central Arkansas Legal Services on behalf of a tenant, Wright quadruple-punched the archaic law in ruling it simultaneously violated the constitutional principles of due process, equal protections and cruel and unusual punishment as well as the Arkansas Constitution's bar against debtors' prisons. While Judge Wright was clear in his analysis of the law, until the state Supreme Court rules on the issue the constitutionality of the law in other judicial circuits across the state remains up in the air.

Correcting the warped playing field for Arkansas's tenants and landlords is something I became passionate about through service on a state Commission for the Study of Landlord-Tenant Laws in 2012. That task force's job was to evaluate the laws of the state and to recommend legislation for the 2013 session of the General Assembly. As has been reported previously, while the compromise-filled report issued by the Commission was unanimously adopted, the work of the Commission was pulled off track after several pro-landlord members later issued a "letter of clarification" that the final report — for which they had voted — did not accurately state their views. No action on the issue has yet to occur in the legislature.

While Wright promoted fairness in setting the stage for elimination of the embarrassing law, the end of "criminal eviction" does not solve all the problems in a state that Vice News has called "the worst place to rent in America." As the 2012 report clearly notes, the landlord-tenant laws of Arkansas are thoroughly broken. First, because there is no affordable and efficient civil law process for removing scofflaw tenants through district courts, landlords are left without a clean process for regaining their property. Out of frustration, some engage in so-called "self-help" evictions such as changing locks or moving tenants' belongings onto the street, a practice illegal in all but a few states. On the other hand, because there is no implied warranty of habitability laid out in the state's laws, there is no duty for landlords to maintain the basic safety of their properties. If a heating system goes out in the winter or plumbing becomes unusable, the tenant is still expected to pay rent even if a landlord refuses to act. While the vast majority of landlords work hard to maintain their properties and positive rapport with tenants, renters have no protection against those (often absentee) landlords who do not.

Following the expression of fundamental fairness by Judge Wright in his ruling, it is now time for the Arkansas General Assembly to move forward with remedying both these major problems with Arkansas landlord-tenant law with an overhaul of the law. To do so would be a continuation of the sort of Arkansas pragmatism — meeting the problems facing the public with balanced approaches that supersede ideology — that we saw again in Gov. Hutchinson's support for the continuation of the Medicaid expansion.

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