In October, the Arkansas legislature approved $10 million for rent assistance. Although most people who applied are waiting for their applications to be processed, at this point it’s clear that all the money, which goes directly to landlords, will be spent by the end of this month or soon after. Unfortunately, significant numbers of landlords are refusing to take rent assistance and are suing to evict their tenants anyway. Long term more must be done to help tenants, given the approaching end of the moratorium, sluggish job growth in November, and rising pandemic rates that won’t peak until next year.
Approximately the same number of unlawful detainers were filed in November 2020 as in November 2019, so it can now be said that for three months we’ve returned to the same rate of eviction filing as before the pandemic. But because thousands more Arkansans are in dire financial straits this year, it must be assumed that when the moratorium ends we will see many more evictions unless tenants receive more assistance, either in the form of direct or indirect rent assistance or the continuance of the moratorium.
One fifth of tenants sued in unlawful detainer responded to the complaints. The CDC moratorium gives them a legal defense. Arkansas circuit court judges continue to handle eviction cases in a variety of different ways because of the lack of any type of order from the Arkansas Supreme Court. At least one court (and definitely some landlords) appear to be violating the CDC order and federal law. However, a tenant who files a CDC declaration before or during the early stage of an eviction will usually be able to halt the process.
This month’s report leads with tenant stories, followed by a detailed breakdown on how the moratorium has fared in Arkansas courts. Issues arising with some regularity in the eviction filings this month were landlords refusing rent assistance, landlords refusing to accept CDC declarations from tenants, and tenants who are undergoing multiple quarantine periods, which of course affect their income if not causing them to lose their jobs entirely.
It’s important to note what this report does not cover. It doesn’t count all evictions filed in Arkansas, because the state does not collect all such data in electronic form. It doesn’t count illegal self-help evictions, of which we know there are many. It doesn’t count landlords who have been working with their tenants since the start of the pandemic by giving tenants more time to pay and not charging punitive late fees. It doesn’t count landlords who accepted a CDC declaration from a tenant and have not sued to evict the tenant.
The original CARES Act is worth a mention also. Its moratorium expired, but it still requires a 30-day notice period before a landlord can file an eviction case. Our unlawful detainer statute only requires a 3-day notice. No one except the Legal Services attorneys seems to be aware of this, but it’s the law.
CDC Moratorium on Arkansas Evictions
The CDC’s order prohibits landlords or others with equivalent property rights from evicting “covered persons” from residential properties. A “covered person” is one who has met certain conditions. A tenant certifies by signing the declaration that she gives to her landlord that she is telling the truth. A landlord who evicts a tenant after that tenant has given him a declaration is committing a federal crime punishable by fines and/or prison. This order clearly applies to landlords seeking civil evictions, failure to vacate charges, and illegal self-help evictions.
Lawsuits opposing the CDC moratorium that have been filed in other states are ongoing with no significant outcomes yet. A moratorium is not a substitute for rent assistance, which is far more equitable to landlords. But it’s better than nothing. Right now the edge of a cliff is approaching for many Arkansas tenants, with the CDC moratorium in place until January, federal money gone, and state money running out.
A significant number of tenants seem to be unaware of the CDC moratorium or the requirement that tenants file a declaration with their landlord. In September, 42 tenants delivered a CDC form to their landlords. Another 22 tenants alleged facts in their responses that would seem to squarely place them under the protection of the CDC moratorium, but apparently did not deliver the form. In October, the number of tenants in these two categories was 43 and 36 respectively. In November, these two numbers were 46 and 16. The percentage of tenants presumably unaware of the CDC moratorium grew from September to October, but dropped off in November.
Tenants’ Stories – November
Pulaski County. In September the landlord filed an unlawful detainer action against the tenant, alleging she had not paid rent in June and had been ordered to vacate by July 31. The tenant responded timely, attaching a CDC declaration dated four days prior. She responded that she had tried to pay rent ($700 in July, which the landlord refused to accept because the rent was $750, and $750 in August, which the manager refused to accept because the landlord had directed her to refuse all rent payments from the tenant). The tenant explained she had been off work for 59 days because of COVID. She stated that two agencies had approved rent assistance for her: River City Ministry and CADC. However, the landlord refused to accept rent assistance, refusing even to speak with the representatives. This tenant managed to scrape together two months of payment, along with her rent assistance, and tried to reach both the landlord and the landlord’s attorney, none of whom would speak to her. “I know I owe a debt and am more than willing to repay it however, the apartment manager and property manager have made it impossible for me to get the balance down as they continue to avoid me, refuse to return my calls, and refuse my payments as well as payments from rental assistance agencies.” In October, on two occasions the landlord asked the court to order a writ of possession, falsely stating that the tenant had not filed an answer. The court ordered a writ to be issued on November 3, also stating that the tenant had not filed an answer. However, then the court noted its error and set aside the writ, scheduling a hearing and noting that its policy was to schedule a hearing even if no deposit was paid, if the tenant filed the response on time. At this time, Court Connect notes the hearing was to be held December 1 but does not indicate any outcome.
Pulaski County. In September the landlord filed an unlawful detainer action against the tenant, alleging she had not paid September rent. The tenant responded that she had been unemployed for eight months with no benefits, and that she had received rent assistance from CADC of $500 and could pay the rest, but that the landlord had told her that additional charges would in effect double her rent for the month, and that she could not pay those. She did not receive a hearing. Instead, even though the attorney for the landlord asked for a hearing, the judge ordered a writ of possession to be issued, because she had not made a deposit of the amount the landlord alleged was due (because, obviously, if she had it she would have paid it to the landlord.) As of this writing, the writ has not been issued by the clerk. This example illustrates two things: the unwillingness of some landlords to meet tenants halfway during the pandemic by refraining from charging obviously punitive fees, and the unfairness of the unlawful detainer deposit requirement.
Pulaski County. In September, the landlord filed an unlawful detainer action against the tenant, alleging that the tenant had paid only $500 in August (out of $650 owed), and no rent in September. The landlord also noted that the tenant owed $225 in late fees, with additional fees accruing each day. The tenant did not respond and the judge ordered a writ issued. It was served on the tenant on Oct. 21, and the same day the tenant filed a handwritten answer alleging she had applied for rent assistance and just needed more time. She was not represented by any lawyer. The deputy sheriff reported on October 27th that he had evicted her and “all other occupants” (her newborn and her two-year-old) on that day. The diligent attorney for the landlord followed up on Nov. 3, by asking the court to ignore the tenant’s letter, but clearly, the court already had. One may ask why the tenant was so late with her letter to the court. But one could also ask why Arkansas law gives tenants such a short time in which to answer, and how much of this tenant’s exigent circumstances was due to the pandemic. The pandemic has caused many tenants who have never been late with rent in their lives to find themselves defendants in eviction cases. They are struggling to find rent assistance and to pay rent, car payments, utilities, and grocery bills. Our unlawful detainer statute, on the other hand, is designed to force tenants out as quickly as possible and to deny them a hearing.
Pulaski County. In a similar case, a landlord filed an unlawful detainer action against the tenant, alleging no rent and utilities were paid in September and October. The tenant replied timely, alleging he had lost both his job and his vehicle because of COVID. He stated that he had two children under two living with him, and did not receive either a stimulus payment or an income tax refund. He had applied for rent assistance and PUA, although had not yet received PUA payments. He appeared to meet the CDC requirements, although he did not file a CDC declaration. He had tried to agree on a payment plan with his landlord, but the terms were too onerous. This tenant also received no hearing, from the same judge, because he paid no money into the court’s registry, and was turned out less than three weeks after he wrote the letter to the court. Perhaps a CDC declaration would have made the difference. However, if a tenant asserts facts that would suffice for a declaration, shouldn’t our law allow him at least a hearing?
Pulaski County. In September, the landlord filed an unlawful detainer action against the tenant, alleging that he had not paid part of August and all of September’s rent. The tenant disagreed alleging that he had paid all of August’s rent and fees (and he filed his receipts), but had contracted COVID at the end of August, causing him to be laid off. He was unable to pay September rent when it was due but was prepared to pay it. No one responded to this tenant’s answer and he received no hearing, because he did not pay the deposit into the court’s registry. Instead, he was ordered to leave on October 22d. Why did this tenant not file a CDC declaration? It’s impossible to say, but it’s not inconceivable that he did not realize this option was available. In their answers this month, some tenants made statements indicating they thought there was simply a blanket moratorium with automatic protections.
Pulaski County. In one case, a tenant responded timely alleging facts that clearly would avail her of the moratorium, but she did not file a CDC declaration. She deposited $15 into the Pulaski County Circuit Court registry. This wasn’t enough for the judge, who declared that the “requisite” amount had not been deposited and ordered a writ issued. The writ was issued but the tenant then moved to set it aside, and this time included the CDC declaration. As of this writing, there is no indication that the writ was served, so the CDC declaration may have stopped the eviction from proceeding. Who decides whether the amount of the deposit, if there is one, is enough to entitle the tenant to a hearing? The judge.
Pulaski County. In October, the landlord filed an unlawful detainer action against the tenants, alleging they were late with rent in March through July, paid only partial rent in August, and paid no rent in September and October. They owed late fees as well. The tenants replied, saying they always paid rent on time until August, often paying a month in advance. As time went on the landlord refused to give them rent receipts but also required payment in cash and refused to take money orders. When the landlord’s brother mowed their lawn, he cracked the tenants’ car windshield and bedroom window. They never received reimbursement. The tenants included the rent receipts they did have. The tenants filed their answer timely, although they did not pay a deposit, and several weeks later filed a CDC declaration. As most judges have been doing since the pandemic began, because the tenants responded this judge scheduled a hearing and at it declared that the tenants met the CDC requirements, so were entitled to stay until at least Jan. 1, although they must meet all other lease terms, and ultimately would be responsible for the rent. The judge dismissed the complaint with prejudice.
Pulaski County. At the beginning of November, the landlord filed an unlawful detainer action against the tenant, alleging she had not paid October’s rent (and presumably also not November’s). She responded stating that she lost income because of COVID. She had been using her savings to pay her rent, but it ran out in October. She listed multiple agencies from whom she had sought rent assistance including Fresh Start and River City Ministry. She had given the landlord a CDC form, which she also filed with the court, but he filed for eviction anyway. The tenant requested a hearing, and the landlord filed for a dismissal, which was granted. It’s impossible to tell from the record why the case was dismissed. They may have reached an agreement, or the tenant may have moved out.
Washington County. The landlord filed an unlawful detainer action against the tenant at the end of September. The tenant responded timely that she had two disabled children and had had to quarantine. First, the court set a hearing date for Nov. 2. Then, the court changed its mind and, noting that no deposit had been filed, directed the clerk to issue a writ of possession, but also directed the sheriff not to lock the tenant out before Dec. 16. Two weeks later, the court changed the lockout date to Nov. 16. The writ was issued on Nov. 17, and served on Nov. 23, but Washington County, unlike most other counties, allows tenants to place a bond and delay physical eviction. This tenant paid over $800 into the court as a bond. However, on Dec. 1, another writ of possession was issued. Through all of this time, the tenant has never received an opportunity to tell her story to a judge.
How the Courts are Handling the Moratorium
Two variables are most important here—1) the particular judge’s approach to unlawful detainers during the pandemic, and 2) whether the tenant filed a CDC declaration with the court.
Beginning with those most pro-tenant judges (and remember our law is biased against the tenant), an earlier report mentioned a Pulaski County judge who afforded every tenant threatened with a writ of possession a hearing, even if the tenant did not respond at all. A judge in northwest Arkansas has now begun the same practice. Therefore, if you’re a tenant in the courts of these two judges, you will be afforded a hearing before a sheriff’s deputy removes you from your home. A landlord in one of these cases petitioned the Arkansas Supreme Court to require either the Pulaski County judge to order a writ of possession or the clerk to issue a writ, and in December the Supreme Court obliged. (In some counties, the clerks follow the wording of the statute and will issue writs under their own authority prior to a hearing, but in most counties now, including Pulaski, clerks are unwilling to issue writs without the order of a judge, adding an additional step to the process that the statute does not require.)
One central Arkansas judge requires landlords to aver in their pleadings that they have not been given a CDC declaration by their tenants.
Numerous judges around the state will schedule a hearing if the tenant files a response without making a deposit into the registry of the court. This is irrespective of whether the tenant filed a CDC declaration, and usually irrespective of whether the tenant’s response is timely.
At the other end of the spectrum is one judge who strictly follows our unfair statute, ordering a writ of possession even if the tenant responds timely but doesn’t deposit the requisite amount of rent into the registry of the court. This judge generally has not honored CDC declarations without a deposit. Although so far the judge has ordered the clerk to issue writs, most have not been issued. But presumably the judge’s order is sent to the tenant. Are tenants so well versed in the law that they would realize the writ has not been issued? I would argue that ordering a writ violates the spirit of the CDC’s order, as does, clearly, requiring a deposit into the registry.
What is the effect of a CDC declaration timely filed by the tenant? In theory, it should stop the proceedings. A review of all cases with such CDC declarations filed since September reveals that of 119 total cases where CDC declarations were filed at some point or the tenant said they had been delivered, in 70 cases (59%), typically where the declaration was filed early in the proceeding, the eviction proceedings halted and have not resumed. Five cases were dismissed. In six cases, hearings that have not yet occurred have been scheduled before Dec. 31, and in five cases, hearings were set for dates in 2021. In six cases where CDC declarations were filed and hearings was then held, a settlement was reached. In five cases the court decided the tenant was not covered by the moratorium, because they had violated the lease in additional ways or the term of the lease had ended. In a few cases, tenants filing CDC declarations after writs had already issued were successful in setting them aside, but not always. In one case, a CDC declaration filed late with a court failed to reverse a dispossession that had already occurred, even though the tenant alleged the landlord had received it previously.
The earlier a CDC declaration is filed with the court the more successful it will be. On the other hand, in a few cases tenants alleged that delivering the CDC declaration to their landlord caused the landlord to file an eviction against them.
The power of an early filing of a CDC declaration can also be seen when compared to cases where tenants alleged similar facts but did not file a declaration at all or allege they had delivered one. In those 70 cases, tenants were evicted in 24%. Only in 29% of the cases did the tenant’s response halt further proceedings.
The Many Ways to Evict Tenants in Arkansas
Three types of legal eviction proceedings are in use in Arkansas:
- Unlawful detainers, the most common form of eviction, which are all reported on Court Connect. This statute is fundamentally unfair to tenants and arguably unconstitutional. Because of a Kafkaesque “Catch-22 provision” added by the legislature in 2007, a tenant who seeks a hearing must not only respond to the landlord’s complaint within five days, but must also deposit the amount of rent alleged due with the court. Obviously, this is impossible for most tenants. In November, fewer than a quarter of tenants filed responses. Tenants who don’t meet these unfair requirements don’t get a hearing, a chance to tell their side of the story. And oftentimes they do have a legitimate reason for not paying rent, or they actually have paid the rent. The alternative outcome under our statute is the immediate issuance of a writ of possession to the sheriff, who will evict the tenant. One November writ of possession was served seven days after the tenants received notice of the lawsuit. Needless to say, they received no hearing.
- Civil evictions pursuant to Ark. Code Ann. § 18-17-901, most of which are not tracked on Court Connect, because most district courts are not in the Court Connect data base. These types of evictions are listed below as “2007 Act evictions.” This procedure is more fair because tenants automatically receive a hearing, but many if not most counties don’t hear these cases, and district courts actually have no jurisdiction under the Arkansas Constitution to hear them.
- Failure to vacate criminal offenses, heard by district courts, most of which are not tracked on Court Connect, because most district courts are not on Court Connect. Not all district courts allow this type of charge to be brought. ProPublica has endeavored to determine which do, and hopefully this information will be available in the next report. Arkansas is the only state that makes what is essentially nonpayment of rent to be a crime. In October, ProPublica published an excellent report on failure to vacate in Arkansas and the effect it has on tenants.
The Catch-22 Unlawful Detainer Statute
Most tenants don’t respond when an unlawful detainer is filed against them, meaning that the statute deprives them of a hearing. In September, 514 unlawful detainer cases were filed, but tenants responded to complaints in only 87 cases (17%). This number rose in October (419 cases filed and 115 responses, or 27%), possibly due to the CDC moratorium but perhaps not, as it fell in November (413 cases filed and 83 responses, or 20%).
Ark. Code Ann. § 18-60-307 requires the eviction notice served on the tenant to have certain wording. It’s hard to understand. Tenants receive a summons that says they have 30 days in which to respond. But landlords also ask for a writ of possession, which requires tenants to respond (and pay) within 5 days, not 30, to receive a hearing. In the time of COVID, when tenants can’t pay the rent, the statute has the effect of making it almost impossible to get a hearing.
A tenant who has filed a CDC declaration should not have to pay the court—that’s the point of the declaration. And yet at least two judges routinely order writs of possession to be issued against such tenants. CDC declarations aside, often the tenant alleges that she has paid her rent. Also frequently, the tenant alleges that the landlord told her not to worry about paying rent late, and then the tenant received an eviction notice.
Experts in landlord-tenant law believe the deposit requirement is unconstitutional (see the September report for the analysis). Some judges grant hearings even if a tenant doesn’t pay the rent into the registry. But a tenant who carefully reads and understands the notice won’t know that! And in a few cases, even if the judge sets a hearing date, the landlord’s attorney has argued that the objection is not “responsive,” and seeks an immediate writ of possession. Sometimes the judge will grant the writ and cancel the hearing.
To sum up, our unlawful detainer law is designed to deny tenants the right to a hearing. And only a few tenants are able to obtain legal representation, either because they don’t realize they need it or don’t know about Legal Services or don’t qualify for assistance.
Illegal Self Help Evictions
The fourth type of eviction, self help, occurs when landlords change locks, turn off utilities, remove doors, or resort to other actions to remove tenants without a court order. Many such calls involve utilities that are in the landlord’s name. Some utility companies appear to be cooperating with these illegal acts by landlords by not allowing tenants to switch utilities into their own names to get them back on. In order to fix that, the tenant usually has to get a lawyer to obtain an emergency temporary restraining order, which is time intensive.
In October and November, a Jefferson County attorney sued a landlord for forcible entry and detainer in the case of three tenants. The landlord attempted to deny them of electricity by both ordering the utility to turn it off, and when that was unsuccessful, removing the electrical connections with the meters. Needless to say, this is illegal and punitive damages should be awarded because the landlord has done this repeatedly and willfully.
April through November Evictions Filed
The following table shows the Court Connect data base number of evictions and failure to vacate charges filed against residential tenants for nonpayment of rent by county during the months of April through November. The master spreadsheet containing this data is at https://docs.google.com/spreadsheets/d/1_KAoef-EUk9Fubz4rlhyjx7mZuGefIn5eUOM6Jp7IfA/edit?usp=sharing. All evictions listed are unlawful detainers unless otherwise specified.
|Craighead 2007 Act||2||1||11||12||26||12||18||17|
|Crawford 2007 Act||1||10||17||17||8||26||14||6|
|Hot Spring FTV||4||1||1||1||7||2||2||2|
|Perry 2007 Act||1|
|Poinsett 2007 Act||2||1|
|Sebastian 2007 Act||1|
*These counties do not have electronic filing so the full text of pleadings are not available on Court Connect. However, since the vast majority of evictions are filed for nonpayment of rent, they are listed here. Beginning in July, Crittenden County’s filings came online.
In November, of the 461 evictions filed for nonpayment of rent and tracked on Court Connect, 413 were unlawful detainer cases, 24 were 2007 Act cases, and 24 were failure to vacate criminal cases.
Comparing apples to almost-apples, the total number of unlawful detainer cases filed in November 2019 was 433, as compared to the total number of unlawful detainers for nonpayment of rent filed in November 2020 of 413. Estimating the number of unlawful detainers filed for other reasons, it would appear that evictions in November of 2020 were filed at the same rate as in 2019.
Evictions disproportionately affect female tenants and thus also children. The following table shows the percentage of evictions and failure to vacate charges filed against female tenants, as opposed to male tenants and heterosexual couples.
Why so many evictions of women, when we would expect the number to be around a third? It may be because presumably more female tenants than male tenants have children living with them. Matthew Desmond, head of the Princeton Eviction Lab, reports that tenants with children are three times more likely to be evicted than those without.
The state should track all evictions. We can’t make informed policy choices without knowing how many tenants are losing their homes.
Navigating the Justice System Alone
As some have phrased it, a right to counsel in an eviction proceeding is a right to a fighting chance. Landlords are represented by attorneys in almost all unlawful detainer cases filed. In September, only 17 tenants were either represented or assisted by attorneys, in October, again 17, and in November, 20. Unfortunately, lack of counsel means that tenants do not spot weaknesses or deficiencies in the landlord’s case. As an example of what can go wrong, in October a Crittenden County tenant timely filed an answer and CDC declaration. And yet the judge apparently was not aware of the answer, because the next day he ordered a writ issued on the basis that no answer had been filed, and two days later, three days after he had filed his answer, the tenant was served with the writ. An attorney would have at the very least petitioned to have the writ set aside.
The Coming Crisis
The pandemic is creating an eviction crisis. There are millions of tenants who, through no fault of their own, cannot pay their rent. They do not have the money, and the reason is the pandemic. Who should bear this cost?
The U.S. Census Pulse Survey for the week ending November 18 shows that of 425,000+ Arkansans renter households, 20% are not caught up with rent. Of those, roughly half or 10% have zero confidence that they can pay next month’s rent. Of the 20% of tenant households not current on rent payments, more than half believed themselves to be strongly or somewhat likely to be evicted in the next two months.
The number of COVID cases and deaths in Arkansas continues to accelerate. Ending a moratorium in January, before the cases even peak, without rent assistance will be a disaster of catastrophic proportions.
Aid for Tenants
Federal and State Sources of Rent Assistance
Congress provided stimulus checks, extra unemployment insurance and unemployment for the self-employed during 2020. Those benefits not already ended will expire at the end of 2020. No one knows yet the parameters of the kind of aid Congress will next enact.
At the state level, in October the legislature approved $10 million of CARES money for rent assistance. ARFreshStart.com directs tenants to this and other sources of rent assistance. The $10 million was allocated to the 14 community action agencies that serve the 75 Arkansas counties. Response was immediate and demand enormous.
By the beginning of December, with 12 of 15 agencies reporting, 900 applications had been paid, almost 7000 had been assigned to caseworkers and were pending, and another 3000 had taken the first steps to apply. It’s safe to say that this money will run out in December. At this time, only four community action agencies serving thirteen counties are still accepting applications. Central and northwest Arkansas agencies are not.The latest unemployment statistics at this time are from October, and they showed that unemployment rates dropped to 6.2% statewide, with lowest unemployment (4.7%) in northwest Arkansas and highest (9.9%) in the West Memphis area. But nationwide, the economy added fewer new jobs in November since recovery began.