Arkansas Eviction Law by Gimmethebeat

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									                     A Primer on Eviction Law in Arkansas

                                    Dylan H. Potts
                       Gill Elrod Ragon Owen & Sherman, P.A.

                                     Introduction

       Arkansas law provides landlords with three (3) statutory methods to pursue

tenants in default. Two of those statues, the Arkansas’ unlawful detainer statute codified

at Ark. Code Ann. §18-60-301 et seq., and the eviction section of the Arkansas

Residential Landlord-Tenant Act of 2007 codified at Ark. Code Ann. § 18-17-901 et seq.,

provide causes of action for landlords against tenants who have failed to pay rent or have

breached other terms or conditions of the lease agreement. Both statutes are civil in

nature and do not impose criminal sanctions.

       Alternatively, Arkansas’ unique Criminal Eviction statute codified at Ark. Code

Ann. § 18-16-101 et seq., allows a landlord to proceed against a tenant for failing to pay

rent by way of having criminal penalties imposed against such tenant but does not

empower a court to evict the tenant. Instead, this statute gives the court the power to find

a tenant guilty of failure to pay rent and vacate the premises and then impose a fine for

each day the tenant remains in possession of the premises.

       Out the outset of any eviction action, whether residential or commercial, the

landlord’s ultimate objective must be known as the procedural requirements, length of

action and ultimate recovery vary greatly amongst the three (3) statutory eviction

methods.




                                             1
                                         Unlawful Detainer

I.         Introduction & Grounds for the Cause of Action

           Every state has an efficient and economical means for recovery of possession of

leased property from a tenant who remains in wrongful possession. 1 In Arkansas, the

rights and remedies related to the cause of action for unlawful detainer are found at Ark.

Code Ann. §18-60-301 et seq. The statute lists five (5) circumstances under which a

landlord may evict a tenant for unlawful detainer. Specifically, a tenant is deemed guilty

of unlawful detainer when he or she, willfully and without right:


           (1) Hold[s] over any lands, tenements, or possessions after
           the determination of the time for which they were demised or
           let to him or her, or the person under whom he or she claims;

           (2) Peaceably and lawfully obtain[s] possession of any such
           property and hold[s] it willfully and unlawfully after demand
           made in writing for the delivery or surrender of possession
           thereof by the person having the right to possession, his or
           her agent or attorney; or

           (3) Fail[s] or refuse[s] to pay the rent therefore when due,
           and after three (3) days’ notice to quit and demand made in
           writing for the possession thereof by person thereto, his or
           her agent or attorney, shall refuse to quit possession;

           (4) Fail[s] to maintain the premises in a safe, healthy, or
           habitable conditions; or

           (5) Cause[s] or permit[s] the premises to become:

                   (A) A common nuisance subject to abatement under:
                          (i) Section 14-54-1501 et seq.;
                          (ii) The Arkansas Drug Abatement Act of
                          1989, § 16-105-401 et seq.; or
                          (iii) Any other law of this state; or




1
    Rest. 2d Property §14.1 Judicial Remedies


                                                 2
                 (B) A public or common nuisance under § 14-54-
                 1701 et seq. as determined by a criminal nuisance
                 abatement board. 2

        Unlawful detainer is a remedy for the benefit of landlords but may also be

brought by a grantee or assignee of such landlord. 3

                                      II.     Process

A.      Notice to Quit

     The first step in the unlawful detainer action is providing the tenant with a

Notice to Quit. The tenant must be provided with a Notice to Quit adequately

informing him or her in writing of the landlord’s intent to end the tenancy. The

Notice to Quit fixes a time at which a tenant is bound to quit, and the landlord has

the right to enter, and a time at which the rent terminates. 4 If, after three (3) days,

the tenant refuses to comply with the Notice to Quit and return possession to the

landlord, the landlord may proceed with filing a complaint with the clerk of the

circuit court for unlawful detainer. The three days begins to run the day the

written notice is received by the tenant. 5 Service of process as required by Rule 4

of Arkansas’ Rules of Civil Procedure is not required in providing the tenant with

the Notice to Quit and landlords may mail the Notice to Quit, affix the Notice to

Quit to the subject property or hand deliver to the tenant. To ensure the burden of

proof required of the landlord in establishing damages, some record of service is

preferred such as return receipt from certified mail or an affidavit establishing

service.

2
  Ark. Code Ann. §18-60-304. In 2005 the state Legislature amended §18-60-304, adding the fourth and
fifth causes under which a landlord may evict a tenant for unlawful detainer.
3
  Cherry v. Kirkland, 138 Ark. 33, 210 S.W. 344 (1919).
4
  Peel v. Lane, 148 Ark. 79, 229 S.W. 20 (1921).
5
  Whitner v. Thompson, 188 Ark. 240, 65 S.W.2d 28 (1933).


                                                  3
B.         Filing the Complaint and Serving Tenant with Notice

           A landlord bringing a cause of action for unlawful detainer begins the

official process by filing with the office of the clerk of the court a complaint

signed by him or her, or his or her agent or attorney, specifying the lands,

tenements, or other possessions unlawfully detained and by whom and when

done. 6 With the complaint, the landlord is also required to file an affidavit of

himself or herself or some other credible person stating that the plaintiff

(landlord) is lawfully entitled to the possession of the property in question and

that the defendant (tenant) unlawfully detained them after a lawful demand by the

landlord (i.e. the Notice to Quit). At this point, the clerk of the court will issue a

summons upon the complaint and a Notice of Intention to Issue a Writ of

Possession. Ark. Code Ann. § 18-60-307(a) states the specific form and language

to be used by the clerk of the court in fashioning this notice. The Complaint,

Summons, and Notice of Intention to Issue a Writ of Possession must be served

upon the tenant in compliance with Rule 4 of Arkansas’ Rules of Civil Procedure.

Although each jurisdiction differs slightly, between filing fees and service of

process expense, the landlord will typically incur approximately $200 in costs at

this juncture, aside from attorneys’ fees.

C.         Writ of Possession

           The Notice of Intention to Issue a Writ of Possession notifies the

defendant/tenant that a complaint has been filed against him or her. The notice

informs the defendant/tenant that he or she has five (5) days, excluding Sundays

and legal holidays, from the date of service of the notice to file a written objection
6
    Ark. Code Ann. § 18-60-307(a).


                                              4
with the court clerk. If no such objection is filed in a timely manner, the clerk

will issue a writ of possession directed to the sheriff and ordering the sheriff to

remove the defendant/tenant from the property in question.7

        Contrarily, if an objection is filed by the defendant/tenant, a hearing will

be scheduled by the court to determine whether or not a writ of possession is

appropriate. 8 The court typically provides notice of the date, time, and place of

the hearing either to the defendant/tenant or to his or her counsel of record. 9

While most courts attempt to schedule these hearings in a punctual manner, thirty

(30) days can be expected from the date the hearing is set until the matter

proceeds to hearing.

        In the event that the defendant/tenant continues to possess the property

during the pendency of the proceedings, he or she is required by law to deposit

into the registry of the court at the time of filing the written objection a sum equal

to the amount of rent due on the property and continue paying rent into the

registry of the court in accordance with the rental agreement. 10 The failure of the

defendant/tenant to deposit said funds is grounds for the court to immediately

grant the writ of possession. 11 When damages have finally been assessed in the

matter, the court will distribute any money paid by the defendant into the registry

first toward the satisfaction of the plaintiff’s judgment, if any, and the remainder

to the defendant. 12



7
  Ark. Code Ann. § 18-60-307(b).
8
  Ark. Code Ann. § 18-60-307(c)(1).
9
  Ark. Code Ann. § 18-60-307(c)(1).
10
   Ark. Code Ann. § 18-60-307(c)(2).
11
   Ark. Code Ann. § 18-60-307(c)(3).
12
   Ark. Code Ann. § 18-60-309(f).


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D.      The Hearing

        If a hearing is held on the plaintiff/landlord’s demand for a writ of

possession, the plaintiff/landlord will have an opportunity to present evidence of

entitlement to possession of the property. The defendant/tenant is also given an

opportunity to rebut such evidence. 13 Entitlement of possession typically includes

evidence of a lease agreement, whether written or not, together with the grounds

of default evidenced by the general ledger in circumstances where the tenant has

refused to pay rent, or by other documents or testimony when necessary. If the

court decides upon all evidence that the plaintiff is likely to succeed on the merits

at a full hearing and if the plaintiff provides adequate security as determined by

the court, then the court will order the clerk to issue a writ of possession to the

sheriff to place the plaintiff/landlord in possession of the property. 14                  If the

defendant/tenant desires to retain possession of the property, the court will allow

the retention upon the defendant/tenant’s providing, within five (5) days of

issuance of the writ of possession, adequate security as determined by the court.15

This initial hearing on the right to possession represents the first judicial step in

the two-step process of unlawful detainers. While the court determines the right

to whether a writ of possession is appropriate or not, the question of damages is

typically reserved for a subsequent hearing. 16 Further, the title to the premises in




13
   Ark. Code Ann. § 18-60-307(d)(1)(A).
14
   Ark. Code Ann. S 18-60-307(d)(1)(B)(i).
15
   Ark. Code Ann. § 18-60-307(e).
16
   Coleman’s Sev. Ctr., Inc. v. Southern Inns Mgt., Inc., 44 Ark. App. 45, 866 S.W.2d 427 (1993).


                                                    6
question is not an issue that will be heard by the court in the initial hearing. 17

Only the right to possession can be adjudicated at this stage. 18

E.      Execution of the Writ of Possession

        Upon the receipt of a writ of possession from the clerk, the sheriff will

immediately proceed to execute the writ and eject the defendant/tenant. Once

again, the landlord will incur costs at this juncture including a nominal fee for the

issuance of the writ if possession and approximately $50 in fees for the sheriff.

The sheriff is required to notify the defendant of the issuance of the writ by

delivering to him or her a copy of said writ. If, within eight (8) hours of receipt of

the writ the sheriff is unable to find the defendant/tenant at his or her normal place

of residence, a copy of the writ may be conspicuously placed on the front door or

other structure described in the complaint. If, within twenty-four (24) hours from

the service of the writ, either by delivery in person or by conspicuously placing a

copy on the door, the defendant/tenant remains in possession of the property or

possession has not been returned to the plaintiff/landlord, the sheriff will notify

the plaintiff or his or her attorney of that fact and shall be provided with all labor

and assistance required by him or her in removing the possessions and belongings

of the defendant from the property to a place of storage in a public warehouse or

in some other reasonable safe place of storage under the control of the plaintiff

until a final determination by the court. 19 The plaintiff/landlord will subsequently

be notified that the property has been vacated by the defendant/tenant.


17
   See Ark. Code Ann. § 18-60-308.
18
   Wall v. Robling, 207 Ark 987, 183 S.W.2d 605; Prioleau v. Williams, 104 Ark. 322, 149 S.W. 101
(1912).
19
   Ark. Code Ann. § 18-60-310.


                                                   7
F.         Assessment of Damages

            (a) Judgment for Plaintiff/Landlord

           Damages under the unlawful detainer statute can be significant. Following

the issuance of a writ of possession, a second hearing will be held for determining

the plaintiff/landlord’s recoverable damages. Such damages will include rent due

to the plaintiff at the time of the commencement of the action and up to the time

of rendering judgment, or in the absence of a rental agreement, the fair rental

value. In addition, the court will assess the following as liquidated damages: (1)

for residential property, the plaintiff/landlord shall receive an amount equal to the

rental value for each month that the defendant/tenant has unlawfully detained the

property; and (2) for commercial property, the plaintiff/landlord shall receive

liquidated damages at the rate of three (3) times the rental value per month for the

time that the defendant/tenant has unlawfully detained the property. 20

           If, in carrying out the writ, the plaintiff removed and stored any of

defendant’s possessions and belongings, such may be sold in a commercially

reasonable manner with the proceeds of the sale applied first to the cost of

storage, second to any monetary judgment in favor of the plaintiff, and third any

excess to be remitted to the defendant. 21

           While damages are certainly available to landlords in unlawful detainer

actions, such damages may prove cost prohibitive. Typically, a tenant who fails to

pay rent cannot satisfy a judgment and, therefore, landlords may choose to

dismiss the action once obtaining possession of the subject property.


20
     Ark. Code Ann. § 18-60-309(b).
21
     Ark. Code Ann. § 18-60-310(c)(3).


                                              8
        (b) Judgment for Defendant/Tenant

        In the event that the court finds in favor of the defendant/tenant, the court

will give judgment in favor of the defendant with costs and for any damages that

may be assessed in favor of the defendant. 22 If the defendant/tenant has already

returned the property in question to the plaintiff/landlord, the court will also issue

a writ of restitution directed to the sheriff to cause the defendant to be repossessed

of the property. 23 Further, any belongs removed from the property in carrying out

the writ will be immediately restored to the defendant/tenant with the cost of

storage assessed against the plaintiff. 24 A tenant is not entitled to attorney’s fees

in the event that he or she has been wrongfully evicted. 25

        Neither the first hearing on the right to possession nor the second hearing

on damages will bar or preclude the party injured from bringing any cause of

action for trespass or ejectment, or any other action, against the offending party.26

                                     III.     Defenses

A.      Procedural Issues

        There are procedural defects that may arise is an unlawful detainer action

that the defendant could potentially use to his or her advantage. One common

procedural defect arises when the clerk fails to stamp or attach the requisite

summons or Notice of Intention to Issue a Writ of Possession that is served upon

the tenant. Service of the summons and the Notice of Intention to Issue a Writ of

Possession is an unlawful detainer procedural requirement, and failure to do so

22
   Ark. Code Ann. § 18-60-309(d)(1).
23
   Ark. Code Ann. § 18-60-309(d)(2).
24
   Ark. Code Ann. § 18-60-310(c)(2).
25
   Woods v. Kirby, 238 Ark 382, 382 S.W.2d 4 (1964).
26
   Ark. Code Ann. § 18-60-312.


                                                  9
may result in dismissal of the action pursuant to Rule 12 of the Arkansas Rules of

Civil Procedure.

B.     Substantive Defenses

       The substantive defenses that a tenant may raise will depend on the facts

of each case.      The substantive defenses potentially available in an unlawful

detainer case include the following:

       (1) Waiver: the acceptance of late rent after service of notice often acts a
       a waiver of the landlord’s cause of action for unlawful detainer;

       (2) Estoppel/Waiver: the landlord’s habitual acceptance of late rent may
       act as a modification of the lease agreement through course of conduct,
       thereby waiving his right to a cause of action for unlawful detainer;

       (3) Retaliatory Action: the landlord’s action is motivated by retaliation
       against the tenant; and

       (4) Unconscionable Lease Provision: if the tenant’s alleged breach is
       founded on an unconscionable (unfair) lease provision, the landlord’s may
       not have a cause of action for unlawful detainer.

While defenses do exist and are typically raised, tenants rarely prevail in unlawful

detainer actions. To avoid those “waiver” circumstances, landlords must not

deviate from requirements under the subject lease as to create a pattern or course

of conduct that modifies the terms under the lease.




                                            10
          Arkansas Residential Landlord-Tenant Act of 2007

I.      Grounds for Beginning Eviction Proceedings

        Under the eviction section of the Arkansas Residential Landlord-Tenant

Act of 2007 codified at Ark. Code Ann. § 18-17-901 et seq., a landlord or his or

her agent is entitled to begin eviction proceedings against a tenant under the

following circumstances:

        (1) The tenant fails or refuses to pay the rent when due or when
        demanded;

        (2) The term of tenancy or occupancy had ended; or

        (3) The terms or conditions of the lease have been violated 27

        For residential agreements, nonpayment of rent within five (5) days of the

date due constitutes legal notice to the tenant that the landlord has the right to

begin eviction proceedings. 28

II.     Process

        A.       Filing Affidavit of Eviction

        Upon the occurrence of one of the aforementioned events, the landlord or

his or her agent may begin eviction proceedings by filing with a court having

jurisdiction an affidavit of eviction that specifies the grounds for eviction. 29 In

Arkansas, the fee for filing an affidavit of eviction is twenty-five dollars ($25.00).

Once the affidavit has been filed, the court will issue an order requiring the tenant

to vacate the premises or to show cause for why he or she should not be evicted

before the court within ten (10) days after service of a copy of the order upon the


27
   Ark. Code Ann. § 18-17-901(a).
28
   Ark. Code Ann. § 18-17-901(b).
29
   Ark. Code Ann. § 18-17-902(a)(1).


                                                11
tenant. 30 A copy of the order may be served in the manner as provided by law for

the service of the summons in actions pending in the circuit court.31 Service of

summons is governed by Rule 4 of Arkansas’ Rules of Civil Procedure. When no

person is found is possession of the premises, the copy of the notice and order

may be served by leaving it affixed to the most conspicuous part of the

premises. 32

        B.       Eviction or Trial on Issues

        Upon receipt of the order, if the tenant fails to appear and show cause

within ten (10) days, the court will issue a writ of eviction and the tenant can be

evicted by the sheriff of the county. 33 If, however, the tenant appears and contests

the eviction, the court will hear and decide the case as any other civil case. 34

Similar to unlawful detainer hearings, thirty (30) days can be expected from the

date the hearing is set until the matter proceeds to hearing.

        At the hearing, if the court finds in favor of the plaintiff/landlord, the court

will, within three (3) days, issue a writ of eviction and the tenant will be evicted

by the sheriff of the county. 35 If the verdict is for the defendant/tenant, then the

tenant may remain in possession until: (1) the termination of his or her tenancy by

agreement or operation of law; (2) failure or neglect to pay rent; or (3) eviction in

another proceeding according to the rules stated above. 36




30
   Ark. Code Ann. § 18-17-902(b).
31
   Ark. Code Ann. § 18-17-903(a).
32
   Ark. Code Ann. § 18-17-903(b).
33
   Ark. Code Ann. § 18-17-904.
34
   Ark. Code Ann. § 18-17-905.
35
   Ark. Code Ann. § 18-17-907.
36
   Ark. Code Ann. § 18-17-908.


                                               12
        Either party is entitled to appeal an eviction case. 37 An appeal in an

eviction case will not stay eviction unless at the time of appealing the tenant gives

an appeal bond for an amount to be fixed by the court and conditioned for the

payment of all costs and damages that the landlord may sustain. 38 If the tenant

fails to file the bond within five (5) days after service of the notice of appeal, the

appeal should be dismissed. 39

        C.       Execution of a Writ of Eviction

        In executing a writ of eviction, the sheriff will proceed to the premises,

present to the occupants a copy of the writ, and give the occupants twenty-four

(24) hours to vacate voluntarily. 40 If the occupant or occupants refuse to vacate

or the premises appears unoccupied the sheriff may then enter the premises by

force, using the least destructive means possible, in order to effectuate the

eviction. 41 This process is almost identical to the procedure involved in unlawful

detainers.

III.    Accrual of Rent Following the Institution of Proceedings

        After the commencement of eviction proceedings by a ruling for tenant to

vacate or to show cause, the rent will continue to accrue so long as the tenant

remains in possession of the premises. The acceptance by the landlord of any rent

does not operate as a waiver on the landlord’s right to insist upon eviction, nor as

a renewal or extension of the tenancy. 42



37
   Ark. Code Ann. § 18-17-909.
38
   Ark. Code Ann. § 18-17-910(a).
39
   Ark. Code Ann. § 18-17-910(b).
40
   Ark. Code Ann. § 18-17-913.
41
   Ark. Code Ann. § 18-17-913(c).
42
   Ark. Code Ann. § 18-17-911.


                                             13
IV.     Commercial Leases

        In any action involving a commercial lease in which the landlord sues for

possession and the tenant raises defenses or counterclaims the tenant is obligated

to pay the landlord all rent that becomes due after the issuance of a written rule

requiring the tenant to vacate or show cause as rent becomes due and the landlord

is required to provide the tenant with a written receipt for each payment, except

when the tenant pays by check. 43 Further, the tenant is obligated to pay the

landlord all rent allegedly owed before the issuance of the rule. 44 If a trial is

requested by either party and the amount of rent is in controversy, the court will

preliminarily determine the amount of rent to be paid to the landlord. 45

V.      Comments

        Having only been enacted in 2007, the eviction section of the Arkansas

Residential Landlord-Tenant Act is an infant in terms of application with very

little interpretive case law. Until further direction from the Arkansas Supreme

Court or Arkansas Legislature, this statute and associated procedure are open to a

wide range of interpretation and enforceability.




43
   Ark. Code Ann. § 18-17-912.
44
   Ark. Code Ann. § 18-17-912(a)(2)(A).
45
   Ark. Code Ann. § 18-17-912(b)(2).


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                             Criminal Eviction Statute

        Arkansas law provides a criminal penalty for any tenant who refuses to

vacate after failing to pay rent. Unlike the civil eviction statutes, Arkansas’

criminal eviction statute applies only when non-payment of rent is at issue. 46

Upon failing to pay rent, a tenant forfeits his or her right to occupy the premises. 47

If the landlord provides the tenant with written notice to vacate and, after ten (10)

days, the tenant refuses to vacate and surrender possession of the premises to the

landlord, the tenant shall be guilty of a misdemeanor. 48 Upon conviction by a

court, the tenant will be fined twenty-five dollars ($25.00) per day for each day

that he or she failed to vacate the premises. 49

        In the event that a tenant charged with refusal to vacate upon notice enters

a plea of not guilty and continues to inhabit the premises after notice to vacate, he

or she is legally obligated to deposit into the registry of the court a sum equal to

the amount of rent due on the premises. 50 Thereafter, the rental payments are

required to be paid into the registry of the court during the pendency of the

proceedings. If the tenant is found not guilty, the rental payments will be returned

to the tenant. 51 If the tenant is found guilty, the rental payments will be turned

over to the landlord. 52 A tenant who pleads guilty or nolo contendere to or is



46
   Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1982).
47
   Ark. Code Ann. § 18-16-101(a).
48
   Ark. Code Ann. § 18-16-101(b)(1).
49
   Ark. Code Ann. § 18-16-101(b)(2).
50
   Ark. Code Ann. § 18-16-101(c)(1).
51
   Ark. Code Ann. § 18-16-101(c)(2)(A).
52
   Ark. Code Ann. § 18-16-101(c)(2)(B).


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found guilty of refusal to vacate upon notice and has not paid the required rental

payments into the registry of the court is guilty of a Class B misdemeanor. 53

           Note that Arkansas’ criminal eviction statute does not empower a court to

evict a tenant. The statute gives the court the power to find a tenant guilty of

failure to pay rent and vacate the premises and then impose a fine for each day the

tenant remains in possession of the premises. Also, the Arkansas Supreme Court

has stated that a conviction under the statute requires that a tenant willfully refuse

to vacate the premises and possess the criminal intent to deprive the owner of the

property. 54

           Finally, the criminal eviction statute is typically enforced by local

prosecutors or city attorneys subject to their respective schedules. This can and

typically does slow this process down to the point where landlords have no degree

of certainty as to how long the process will take.




53
     Ark. Code Ann. § 18-16-101(c)(3).
54
     Poole v. Sate, 244 Ark. 1222, 428 S.W.2d 628 (1968).


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