All states but Arkansas have an “implied warranty of habitability.” Act 1052 of 2021 provides for implied residential quality standards, but the law does not include all the legal elements of an “implied warranty of habitability.” The standards require landlords to provide a sound structure, running, and drinkable water, “available” electricity, heating and air conditioning that is available at the beginning of the lease term, and plumbing. However, if the landlord fails to provide or repair any of these provisions, the tenant’s only remedy is to move out. Additionally, a landlord must comply with any stricter applicable housing standards of a local government with jurisdiction. Act 1052 includes a nonwaiver clause but no additional remedies or anti-retaliation provisions.
It is essential to have meaningful remedies for tenants whose landlords breach the implied residential quality standards. Without such remedies, inhabitable rental housing can become a public health issue. For example, the presence of mold aggravates asthma and allergies. 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 neighborhoods.
The legislature is encouraged to continue filling in the gaps in the original statute and restore the fairness and balance that benefits both tenants and landlords.
A tenant can make repairs and deduct them from the rent within limits in most states. Most states also 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. Finally, in the case of a significant defect, the tenant can end the lease and move out. Arkansas tenants don’t have these rights. Example: The plumbing breaks in the tenant’s rental house, causing raw sewage in and under the house. The landlord failed to repair it after being notified by the tenant of the problem. Under current Arkansas law, unless the landlord has promised in the lease to make repairs, the tenant has no rights for such repairs to be made. Neither has the tenant the right to pay for the improvements and deduct them from the rent or use the landlord’s failure to make repairs as a defense in a rent nonpayment lawsuit.
Arkansans for Stronger Communities supports enacting enhanced implied residential quality
standards and proposes legislation that includes provisions:
- Requiring premises to have a working smoke alarm and, if needed, a working carbon monoxide alarm.
- Providing for a tenant’s right to rent abatement as compensation for damages to the premises, or the difference between the rental value and the fair rental value given the defective premises when the landlord fails to make repairs.
- Allowing tenants to end the lease and vacate the rental, sue for damages, and/or repair and deduct up to a certain amount if the landlord’s failure to comply with the implied residential quality standards has a material effect on the tenant’s health and safety, and if the landlord fails to repair within 30 days after being notified in writing.
- Additionally, 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.
- Prohibits lease terms from waiving these rights and prohibits landlords from retaliating against tenants who exercise rights recognized by law.
Myths and Facts About Arkansas Landlord Tenant Law
- 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.
- 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.
- 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.
- MYTH: Proposed legislation will apply to commercial landlords and tenants.
FACT: Proposed legislation only applies to residential landlords.
- 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.
- 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.
- 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?
- 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.
- 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.