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View Diary: A day late with the rent? Eviction and prison may be in your future in Arkansas (80 comments)

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  •  This diary overstates the problem (4+ / 0-)
    Recommended by:
    misslegalbeagle, erush1345, MGross, VClib

    by giving the impression (the reference to "prison" in the title) that you are hauled off to jail for not paying rent.

    So, I did some research on the law.  (I'm a lawyer, I do things like that.)  The law at issue is Title 18 of the Arkansas Code, Section 18-16-101.  It can be found here.

    Basically, "failure to vacate" -- the problem here -- does not involve "prison," as the diary title states.  The statute says that "failure to vacate" after the tenant has failed to pay rent, and after the landlord has given the tenant 10 days' notice to vacate, is a misdemeanor.  

    Here's the pertinent provision:  

    (a) Any person who shall rent any dwelling house or other building or any land situated in the State of Arkansas and who shall refuse or fail to pay the rent therefor when due according to contract shall at once forfeit all right to longer occupy the dwelling house or other building or land.

    (b) (1) If, after ten (10) days' notice in writing shall have been given by the landlord or the landlord's agent or attorney to the tenant to vacate the dwelling house or other building or land, the tenant shall willfully refuse to vacate and surrender the possession of the premises to the landlord or the landlord's agent or attorney, the tenant shall be guilty of a misdemeanor.

    (2) Upon conviction before any justice of the peace or other court of competent jurisdiction in the county where the premises are situated, the tenant shall be fined twenty-five dollars ($25.00) per day for each day that the tenant fails to vacate the premises.

    So, if you don't pay rent, you immediately lose your right to live there.  And the landlord can give you a 10 day notice to vacate.  And if you don't vacate in 10 days, you go before a Court, where if the Court finds that (1) you failed to pay rent; (2) you were given the 10 day notice; (3) you didn't vacate by the end of 10 days, you are guilty of a misdemeanor and can be fined an additional $25 a day.  

    No being hauled off to jail, no prison time.  

    I think we need more information as to why there was a "warrant for arrest" for these people.  If all they did was fail to vacate, it's a misdemeanor.  On the other hand, if they failed to show up for the Court hearing, for example, THAT could perhaps result in a warrant for their arrest.  

    •  In addition, the statute says that (3+ / 0-)
      Recommended by:
      erush1345, MGross, VClib

      you can challenge the 10 day notice by coming to Court and paying your rent into the registry of the Court:  

      (c) (1) Any tenant charged with refusal to vacate upon notice who enters a plea of not guilty to the charge of refusal to vacate upon notice and who continues to inhabit the premises after notice to vacate pursuant to subsection (b) of this section shall be required to deposit into the registry of the court a sum equal to the amount of rent due on the premises. The rental payments shall continue to be paid into the registry of the court during the pendency of the proceedings in accordance with the rental agreement between the landlord and the tenant, whether the agreement is written or oral.

      (2) (A) If the tenant is found not guilty of refusal to vacate upon notice, the rental payments shall be returned to the tenant.

      (B) If the tenant is found guilty of refusal to vacate upon notice, the rental payment paid into the registry of the court shall be paid over to the landlord by the court clerk.

    •  WOW (0+ / 0-)

      Your interest in this subject is amazing.

      Would your last name be Scrooge by any chance?

      •  My interest is because I am a lawyer (5+ / 0-)

        and we have represented some tenants on a pro bono basis through the New Orleans pro bono project so I have some familiarity with landlord-tenant laws.  That's why I was interested in the Arkansas law.  While it is more favorable to landlords than other states, by limiting the ability of the tenant to essentially stay in the property rent free while he/she is contesting the eviction (a tactic that is often abused), it is not as draconian as the diary would indicate.  

        •  "a tactic that is often abused" (2+ / 0-)
          Recommended by:
          Horace Boothroyd III, koseighty

          Yes, I hate those abusive tenants. They hold ALL the cards.

          :eyeroll:

          I'd like to start a new meme: "No means no" is a misnomer. It should be "Only 'Yes' means yes." Just because someone doesn't say "No" doesn't mean they've given consent. If she didn't say "Yes", there is no consent.

          by second gen on Fri Jun 07, 2013 at 07:21:39 AM PDT

          [ Parent ]

          •  I haven't seen an owner operator (2+ / 0-)
            Recommended by:
            jfromga, second gen

            Landlord in over a decade. So what this really protects is the banks.

            BTW for some real entertainment from this "lawyer" look at the comments in the early Occupy posts. I'm still waiting for an apology regarding DHS colluding in the arrests.

            •  I've seen on numerous occasions what this (2+ / 0-)
              Recommended by:
              jfromga, Horace Boothroyd III

              commenter thinks about a lot of things. I'm guessing corporate lawyer, but I could be wrong.

              I'd like to start a new meme: "No means no" is a misnomer. It should be "Only 'Yes' means yes." Just because someone doesn't say "No" doesn't mean they've given consent. If she didn't say "Yes", there is no consent.

              by second gen on Fri Jun 07, 2013 at 07:41:11 AM PDT

              [ Parent ]

          •  Sometimes it happens. (3+ / 0-)
            Recommended by:
            erush1345, annominous, VClib

            Sometimes a tenant will contest an eviction, and remain in the property without paying rent for six months, and delaying the proceedings (asking for continuances, for example) until he/she is finally evicted by Court order.  Not all tenants do it, but almost all landlords have seen it happen.  That is because the state laws are written in a way to allow that. Laws like that can sometimes be too favorable to tenants, because the landlord never recovers the six months' rent he/she lost while trying to evict the person.  An that can jeopardize the landlord's ability to pay his or her bills, including the mortgage on the rental property, and force the landlord into default on his/her financial obligations.  

            This law seems designed to prevent that kind of thing from happening.  A tenant can contest eviction, but during the time it takes to contest the eviction, the tenant has to pay the rent money to the registry of the Court.  That way, if the tenant loses, the landlord is "made whole" for the time that the tenant stayed in the property.  Further, there's no built in incentive for the tenant to delay the proceedings, as there is in states where the tenant can sometimes remain in the property without paying rent during the time the eviction proceeding is pending.  

            Clearly, this state law is more favorable to landlords than many, by giving them that ability not to lose rent during the months it can take to contest an eviction.  But it's not as draconian as the diary indicates.  

            •  Almost all states require an escrow if (2+ / 0-)
              Recommended by:
              myboo, jfromga

              tenants are going to contest an eviction. So, no, I'm not impressed. We have the laws we do because landlords have historically been the abusers.

              I'd like to start a new meme: "No means no" is a misnomer. It should be "Only 'Yes' means yes." Just because someone doesn't say "No" doesn't mean they've given consent. If she didn't say "Yes", there is no consent.

              by second gen on Fri Jun 07, 2013 at 07:47:15 AM PDT

              [ Parent ]

              •  Not all states do. (3+ / 0-)
                Recommended by:
                erush1345, annominous, VClib

                It is true that in all states, the landlord can institute a civil proceeding to get the rent for the months the tenant remained in the property while contesting the eviction.  But often, if the tenant could not pay the rent in the first place, the tenant has no money to pay the rent after a judgment.  

                It is also true that, recently, some states have been modifying laws so as to give more protection to landlords. I suspect the Arkansas law is an example of that.  

                I also agree that in economic hard times, it is a sad event when people are evicted for the non-payment of rent.  It is often the result of the tenant falling on economic hard times.  The problem is that you can't assume that the landlord should be the one to bear the financial burden of the tenant's economic hard times by allowing someone to remain in his property without paying rent.  The landlord must continue to pay the mortgage, insurance, taxes (and, depending on the lease, utilities) on that property regardless of the tenant's economic hard times.  Assuming that people should be allowed to remain in rental properties without paying rent simply shifts the burden of the tenant's economic difficulties to the landlord.  

                •  Me: "Almost all states" You: "Not all states do." (0+ / 0-)

                  Where is this incongruent?

                  I don't doubt that more states are giving landlords more protections. Just like they're giving big banks, big corporations and big oil more protections.

                  Doesn't make it right.

                  I'd like to start a new meme: "No means no" is a misnomer. It should be "Only 'Yes' means yes." Just because someone doesn't say "No" doesn't mean they've given consent. If she didn't say "Yes", there is no consent.

                  by second gen on Fri Jun 07, 2013 at 08:12:04 AM PDT

                  [ Parent ]

                  •  So, someone who owns a few (4+ / 0-)
                    Recommended by:
                    erush1345, annominous, VClib, nextstep

                    houses and rents them out, or someone whose small business is that he owns and runs a 10 unit apartment building, is the same as Bank of America, Wal-Mart, or Exxon?  

                    I don't doubt that more states are giving landlords more protections. Just like they're giving big banks, big corporations and big oil more protections.
        •  it is criminal, not civil (0+ / 0-)

          with no prior civil determination that the money is due.   The law itself is draconian and abusive.  The landlords prefer it to a civil process where they have to wait for the day in court.   Laws aren't enforced in a vacuum, this is a process of intimidation and threat well beyond the civil laws that allow summary eviction and enforcement, including dumping property on the street, after an adjudication of the debt.

          •  Yes, it is a criminal misdemeanor, no it is not (3+ / 0-)
            Recommended by:
            Pi Li, annominous, VClib

            "without prior determination that the money is due."

            Read the statute.  There is no finding of a criminal misdemeanor under the statute unless and until you've had your day in court.

            It's sort of like trespass in that way.  If I think you are on my property without my permission, I call the police.  You may be cited for simple trespass.  But you aren't found criminally liable for trespass until you have your day in court, where you can contest whether you had my permission or not.   If you are found guilty of a misdemeanor trespass, you pay likely pay a fine.  It's kind of the same thing here.  The landlord essentially files a complaint saying, "they didn't pay rent so they no longer had permission to be there, I told them to leave and they didn't."  The Court brings you in.  If it is true that (1) you did not pay rent; and (2) you remained after the expiration of the 10 day notice to vacate, THEN the Court finds you guilty of a criminal misdemeanor and you pay an extra $25 a day for the days you remained after the 10 day notice and you have to vacate immediately.

            I agree that the statute is unusual in the way that it makes remaining after a notice to vacate a criminal misdemeanor, like a misdemeanor trespass.  

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