What if you lived in a world in which you could go to jail for being one day late with your rent? The very question seems almost preposterous at face, but this scenario is a theoretical possibility in the state of Arkansas. According to Lynn Foster, a professor at the William H. Bowen School of Law at the University of Arkansas Little Rock, “a tenant who is just a day late on rent can be served a 10-day notice to vacate. A tenant who doesn’t vacate is automatically guilty of a general misdemeanor that bumps up to a Class B misdemeanor upon a guilty plea or court ruling. In some cases, the tenant is arrested and detained. In other cases, the tenant is simply served with a summons, or is arrested, given a court date and released.”1 As a former tenant and landlord, I found the possibility of a tenant being criminally convicted for being one-day late on rent to be outrageous, but – somehow – this law has been on the books dating back to the early 1900’s, and further reinforced and upheld by a Supreme Court ruling in 1989.
Arkansas also lacks an implied warranty of habitability. This means landlords are under no obligation to maintain or repair their properties. In most states, a tenant can legally withhold rent from a landlord if the property is unsafe or inhabitable, but this is not a valid reason to withhold rent in Arkansas. In fact, a tenant withholding rent for any reason is immediate grounds for eviction. Erin O’Leary of Arkansas Legal Services puts it best: “If your heat breaks, you can’t withhold your rent or use your rent money to fix the heat. No matter what your living conditions, your responsibility to pay your rent on time and in full is never removed. For our clients of very limited means, they’re choosing to get their heat fixed or to pay their rent on time. If they have to pay to get the heat fixed, the only mechanism to get that money back is to file in small claims court. But that’s a lengthy process, and our clients can’t wait a long time to get back $700.”2
Just when I thought it couldn’t get any worse for tenants in Arkansas, I discovered that landlords can leverage the criminal justice system in such a way that the local prosecutor essentially works on behalf of the landlord. There are several documented instances where landlords have refused to accept a tenant’s timely rental payment in order to evict the tenant for nonpayment of rent. In this situation, the landlord refuses to cash the check or money order with the sole intent of initiating the eviction process through the local court system — all on the taxpayer’s dime. This process is both cheaper and more time-efficient for the landlord. The tenant can fight the eviction proceedings, but the penalties for pleading not-guilty are steep, especially since the legislature voted to increase the penalties in 2001. If you couple that prospect with the legal fees the tenant would incur and the possibility of criminal conviction, it is easy to see why many tenants, especially those of particularly limited means, will plead out regardless of veracity of the landlord’s claim as prosecuted by the state.
As a landlord, I have often gripped about some laws being lopsided toward the tenant, but the laws in Arkansas seem to be almost entirely in favor of the rights of the landlord to such an extreme that I cannot help but question the ethical implications. I am all for landlords being able to make a profit – and, yes, I have even remarked that some extreme examples of tenant damage should be considered criminal, but being late on rent should not be considered criminal; and, using the criminal justice system as a weapon against the tenant – well, that should be what is criminal.