Habitable Rental Housing

Landlord Responsibilities
All states but Arkansas have what is called an “implied warranty of habitability.” This means that even if the landlord doesn’t promise to make repairs the law requires the landlord to keep residential rental housing in livable condition. In most states, this means, for example:

  • Landlords must keep “common areas” clean and safe.
  • Landlords must provide working plumbing, electricity, heating, and hot and cold water.
  • Landlords must comply with provisions of any local housing codes affecting health and safety.
  • Landlords do not have to repair defects caused by tenants.

If a landlord fails to comply in a major way, and if the problem caused by the failure has a major impact on the tenant’s health or safety, then the tenant must notify the landlord and give the landlord time to repair. If the landlord doesn’t make the repair within the time period, the tenant than typically has a choice of remedies. Landlords can’t force tenants to give up these rights, and can’t retaliate if tenants enforce these rights.

Arkansas’s refusal to require habitable rental housing that tenants can enforce is a public health issue. Mold aggravates asthma and allergies. Sewage problems can endanger health. Structural defects can cause injuries and property damage. Living in unsafe housing increases stress. Renters deserve a law guaranteeing habitable housing, just as laws require food and other products we buy to be safe and free from defects. Arkansas law regulates other types of businesses, but gives landlords a free pass to rent unsafe housing to tenants. Substandard rental housing is bad for property values and for neighborhoods. Arkansas needs an implied warranty of habitability statute.

In 2007, the Arkansas legislature enacted half of a model landlord-tenant statute that many other states have enacted, the Uniform Residential Landlord-Tenant Act. The uniform law was balanced, with both rights and responsibilities of landlords and tenants. But the Arkansas legislature gave rights only to landlords, and responsibilities only to tenants! The legislature needs to fill in the gaps in the original statute and restore the balance.

Tenant Rights
If the above has happened, in most states the tenant can make repairs and deduct them from the rent, within limits. Most states allow tenants to assert the lack of repair as a defense to an eviction action for nonpayment of rent. Virtually all states allow tenants to sue for damages or a court order to make repairs, and in the case of a very serious defect, the tenant can end the lease and move out. Arkansas tenants don’t have these rights.

Example: The plumbing breaks in Tenant’s rental house, causing raw sewage in and under the house. Landlord fails to repair after being notified by Tenant of the problem. Under current Arkansas law, unless Landlord has promised in the lease to make repairs, Tenant has no rights for such repairs to be made, or pay for them themselves and deduct them from the rent, or use Landlord’s failure to make repairs as a defense in a rent nonpayment lawsuit.

Arkansans for Stronger Communities supports the enactment of an implied warranty of habitability. We are proposing legislation that does the following:

  • Requires all landlords who own more than one rental unit to maintain habitable premises, complying with health and safety provisions of housing and building codes.
  • Requires landlords to maintain a sound, weather proof structure, with plumbing, heating, ventilation, and electricity that work.
  • Requires landlords to maintain premises to prevent the accumulation of mold, control vermin, and prevent exposure to unsafe substances like lead.
  • Requires premises to have a working smoke alarm and if needed a working carbon monoxide alarm.
  • Requires working locks on exterior doors and windows.
  • If failure to comply with the above has a material affect on the tenant’s health and safety, and if the landlord fails to repair within 14 days after being notified, the tenant can end the lease and leave, sue for damages and/or repair, or make the repair herself and deduct it from the rent, up to the amount of one month’s rent. If sued for eviction for nonpayment of rent, the tenant can raise a landlord’s failure to repair that has a material effect on health and safety as a defense.
  • It prohibits lease terms that take away these rights, and prohibits landlords from retaliating against tenants who exercise these rights.

Myths and Facts About Arkansas Landlord Tenant Law

  1. MYTH: Arkansas does not need an implied warranty of habitability.
    FACT: Arkansas is the only state in the U.S. where residential landlords are not required by law to provide safe, clean, livable premises for their tenants.
  2. MYTH: Arkansas has fair eviction laws.
    FACT: Arkansas is the only state in the U.S. where it’s a criminal offense to essentially not pay the rent. Did you know your tax dollars subsidize lawyers for landlords? Landlords are the “victims” of this “crime,” which may result in jail time for tenants.
  3. MYTH: Denial of rights to Arkansas tenants allows Arkansas to have the lowest rent in the U.S.
    FACT: West Virginia, Indiana, Iowa, Kentucky, and South Dakota all have rent similar to or lower than Arkansas, depending on where you check. All five of these states have an implied warranty of habitability. None of these states allows tenants to be convicted of a crime for nonpayment of rent. No direct causation has been proved between low rent and lack of tenants’ rights in Arkansas.
  4. MYTH: Proposed legislation will apply to commercial landlords and tenants.
    FACT: Proposed legislation only applies to residential landlords.
  5. MYTH: Tenants do not need an implied warranty of habitability because they can report a landlord to code enforcement.
    FACT: Many areas in Arkansas have no city housing codes or code inspectors. Some parts of Arkansas that do, have only a handful of inspectors and cannot keep up with the calls or resolve violations in a timely manner. And under our current law, if you rent month to month, there is nothing stopping your landlord from terminating your lease or raising your rent if you report him for a code violation.
  6. MYTH: Under the doctrine of “constructive eviction,” tenants can simply terminate their leases if premises are uninhabitable.
    FACT: A tenant must move out to exercise it (sacrificing the security deposit) to use this remedy. If the tenant is sued in court and loses, he or she will owe the rest of the rent. This is an old doctrine and its failure to help residential tenants was one reason why every other state adopted an implied warranty of habitability. Under an implied warranty of habitability, a tenant can stay on the premises and force the landlord to make repairs. In fact, most states allow tenants to make repairs and deduct them from the rent.
  7. MYTH: Adding an implied warranty of habitability will drive up the cost for landlords to do business.
    FACT: Good landlords already provide safe, clean, and livable properties for their tenants and good landlords agree to routine maintenance and repairs in their lease agreements. An implied warranty will simply hold all landlords to the same minimum standard. As a society, we ask for edible food, drinkable water, and safe products. Why not habitable living spaces?
  8. MYTH: Tenants who fail to pay rent but continue to live in a rental property are stealing from the landlord and should be prosecuted.
    FACT: Landlords are business owners and should be able to evict non-paying tenants so that they can re-let to paying tenants. However, treating non-paying tenants like criminals for failing to pay is like making it a crime to default on a mortgage loan or credit card payment.
  9. MYTH: Changing the law will subject landlords to the risk of huge money judgments against them.
    FACT: Arkansas law already limits landlord tort liability to only very narrow circumstances. Our proposed legislation expressly eliminates this type of liability. Landlords could be liable for the reduced value of the premises or could be forced to repair premises under the proposed laws but would not be liable for personal injuries to tenants or damage to their property.