1. Renters Beware: Hostile Landlord-Tenant Law in Arkansas

2. Caveat Lessee Recognized Exceptions: Short-term lease for furnished space Duty to repair under the lease Latent defect Common-area maintenance

3. Javins Caveat Lessee doctrine no longer applicable Established Implied Warranty of Habitability in all residential leases Landlords promise to maintain leased residential property in a habitable condition Javins v. First Nat. Realty Corp., 428 F.2d 1071 (DC Cir. 1970) (opinion by Judge Skelly Wright; cert. denied).

4. 2005 and 2007 Acts Arkansas Codified doctrine of Caveat Lessee

5. The Future of Arkansas o Private Right of Action and Sovereign Immunity o Constitutional Challenges to Caveat Lessee o Arkansas’ Criminal Eviction Statute

6. Renters Beware: Unenforced Building Codes

7. Private Rights of Action Through Municipal Codes: The Propst Window “…building codes in force in many localities today have the effect of protecting tenants, to a certain extent, by requiring landlords to keep their buildings within applicable standards” - Justice Glaze, quoting Dapkunas v. Cagle in the Arkansas’ Supreme Court decision of Propst

8. Little Rock Code of Ordinances Section 8-572: the owners, tenants and their invitees “The purpose of this article is to safeguard the stock of decent, safe and sanitary rental housing within the city and to protect the owners, tenants and their invitees by providing for systemic citywide inspections of rental housing and the public areas therein to insure housing code compliance”

9. Limits: Sovereign Immunity “The State of Arkansas shall never be made a defendant in any of her courts.” -Arkansas Constitution, art. 5, § 20 does not include failure of a city officer or city employee to perform an official duty “violation of this Code does not include failure of a city officer or city employee to perform an official duty unless it is provided that failure to perform the duty is to be punished as provided in this section.” -Little Rock Code of Ordinances ch. 1 § 1-9(c)

10. Weiss v. McLemore- Waiver of Immunity (2) where an act of the legislature has created a specific waiver of immunity “This court has recognized only two ways in which a claim of sovereign immunity may be surmounted: (1) where the state is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity ” Where a statute would be unenforceable without a waiver of sovereign immunity, a court may infer that the legislature intended such waiver.

11. Renters Beware: No Tenant Remedy for Injury

12. 2005 and 2007 Acts 2005 Act: ( A.C.A. § 18-16-110) No landlord or agent or employee of a landlord shall be liable to a tenant or a tenant's licensee or invitee for death, personal injury, or property damage proximately caused by any defect or disrepair on the premise... 2007 Act: ( A.C.A. § 18-17-501; § 18-17-601) Landlord obligation: Return Security Deposits. Tenant obligations: (1) Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety...

13. Ark. Const. Art. 2 § 13 “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.”

14. Lucas Test A) Legislature can remove common law right with an adequate substitute remedy B) The legislation can not be arbitrary or unreasonable

15. 2007 Landlord-Tenant Act 1. Only “Landlord-Tenant Act” in the U.S. that places no repair or maintenance obligations on landlords. 2. A.C.A. § 18-17-601 : Tenant shall... comply with all obligations imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety. A.C.A. § 18-17-702: [If tenant does not comply with § 18-17-601, landlord can repair and charge tenant for repair, or evict tenant] 3. Shifted obligations normally imposed on landlords by building and housing codes to no one.

16. Renters Beware: Criminal Eviction http://www.prisonpath.com/wp-content/uploads/2013/02/eviction-notice.jpg

17. Criminal Eviction The Statute What’s criminal eviction? “Arkansas has won another distinction: it is the only state in the nation which imposes criminal sanctions on a person who does not pay his rent on time...The majority has, with all the speed of a crawfish, backed into the 19th century” Duhon v. State, 774 S.W.2d 830 (Ark. Sup. Ct. 1989) (dissenting opinion).

18. Criminal Eviction Pre-2001 Statute Tenant fails to pay rent, forfeits right to occupy. 10 days notice to vacate. No pleading requirements. $1 – 25 fine / day after failure to vacate. Duhon: “Misdemeanor” is a violation only. No penalty of jail time permitted. 2001 Amendment

19. Due Process: Pre-hearing deprivation of property Tenants are required to pay the court the alleged rent owed prior to any hearing. No proof of debt required. U.S. Supreme Court has largely ruled against pre-hearing deprivations of property under 14 th Amendment: Real property in Connecticut v. Doehr Personal property in Fuentes v. Shevin Garnishment of wages in Sniadach v. Family Finance Corp Additionally: Local prosecutor acting for benefit of landlord.

20. Right to Counsel Scott v. Illinois : U.S. Supreme Court held that a term of imprisonment may only be imposed if afforded access to counsel. Any defendant not afforded right to counsel cannot be imprisoned. A RK. R. C RIM. P. 8.2(b) codifies the rule of Scott. However, Calloway held that a plain reading of A RK. R. C RIM. P. 8.2(b) indicates more protection of a defendant’s right to counsel than the Constitutional minimum guaranteed in Scott : If counsel is not afforded, a court must remove the possibility of imprisonment at the outset of the trial.

21. Conclusion Arkansas landlord-tenant law favors landlords Strategies for change include: Enforcement through building codes Challenges to caveat lessee Challenges to criminal eviction

22. References http://www.arktimes.com/arkansas/no-rights-for- tenants-in-arkansas/Content?oid=2681818 http://www.thv11.com/news/article/243295/2/Landl ord-tenant-laws-under-review http://www.prisonpath.com/wp- content/uploads/2013/02/eviction-notice.jpg http://rollingout.com/wp- content/uploads/2013/02/blkfam-eviction.jpg