When a tenant fails to pay rent in Arkansas, a landlord must follow specific procedures under the Arkansas Residential Landlord Tenant Act to end the tenancy: either “failure to vacate” (a civil procedure) or “unlawful detainer” (a criminal procedure). Both result in termination of the lease or rental agreement for failure to pay rent.
Arkansas law prohibits “self-help” eviction remedies; this means the landlord cannot take personal action to remove the tenant from the rental property, such as entering the home and changing the locks, without obtaining a court order. (A.C.A. § 18-60-302)).
This article explains the basics of terminating a tenancy in Arkansas for nonpayment of rent, including the required notices and timelines.
If the tenant does not pay rent on the day rent is due according to the lease or rental agreement, the landlord may wait five days from the rent due date and then terminate the lease or rental agreement under the failure to vacate method. (A.C.A. § 18-17-701).
Once the notice to vacate is drafted by the landlord, the landlord must serve the notice on the tenant by delivering it to the tenant using one of the following methods:
The tenant is considered “notified,” according to Arkansas law, at the time the notice is mailed without having to wait for proof of the tenant’s receipt of the mailing. (A.C.A. § 18-17-303(C)(ii)).
Once the lease or rental agreement is terminated, the landlord has the right to file an eviction action with the local district court in Arkansas if the tenant has not moved out of the property. No notice is needed in this situation, the fact that the tenant has not paid rent within five days of rent becoming due under the lease or rental agreement is sufficient notice to the tenant that the landlord has the right to begin eviction proceedings in court. (A.C.A. § 18-17-901(b)).
If the tenant does not pay rent on the day rent is due according to the lease or rental agreement, the landlord may terminate the lease or rental agreement immediately under the unlawful detainer method. (A.C.A. § 18-16-101(a)). The tenant loses all rights to stay in the rental property.
The landlord must then provide to tenant in writing a notice to vacate the rental property within 10 days. (A.C.A. § 18-16-101(b)(1)). Although Arkansas does not provide any pre-approved forms for such notice, it would be useful to include the following information in the notice to vacate:
The landlord should keep a copy of the notice to vacate and make a note of the exact time and date and method by which the notice was served to the tenant.
If the tenant does not move out of the rental property within the 10 days, the tenant will be guilty of a criminal misdemeanor charge. If the tenant is found guilty of staying in the rental property on purpose past the 10 day notice deadline, the tenant will be fined $25 per day for each day the tenant stayed past the 10 days. (A.C.A. § 18-16-101(b)(2)).
The tenant may choose to enter a plea of not guilty to the unlawful detainer criminal charge and continue to stay in the rental property. If the tenant decides to stay under this circumstance, the tenant must pay the rent, typically due to the landlord, to the clerk of the court until the criminal action comes to an end. (A.C.A. § 18-16-101(c)(1)). If the tenant fails to pay the required rent due to the court the tenant will be guilty of a misdemeanor criminal charge. (A.C.A. § 18-16-101(3)).
If the tenant is found not guilty of refusal to move out of the rental property upon notice, the rental payments will be returned from the clerk of the court to the tenant. However, if the tenant is found guilty, the rental payments will be turned over to the landlord. (A.C.A. § 18-16-101(2)).
A landlord has a choice to make when terminating a tenancy for nonpayment of rent between the failure to vacate process or the unlawful detainer process. The biggest difference is the fact that the failure to vacate process is a civil action while the unlawful detainer method is a criminal action. The failure to vacate method requires a shorter notice period of only five days, while the unlawful detainer requires 10 days’ notice before any action takes place. Failure to vacate does not require a written notice be served upon the tenant whereas unlawful detainer does.
Most landlords are looking for the quickest way to remove the tenant from the rental property. Assuming the tenant does not move out after the notice deadline, either process – the failure to vacate or the unlawful detainer – may take some time. Failure to vacate allows a landlord to immediately begin an eviction action in the district court. The landlord will attend a hearing and depending on any tenant defenses the landlord may be awarded possession of the property the same day as the hearing. On the other hand, using the unlawful detainer method, the landlord will be subject to the tenant being charged with the crime and a possible trial on the charge.
Depending on the landlord’s relationship with the tenant, how likely the tenant is to take either civil or criminal action seriously, and the landlord’s experience with the court system, one process may be faster than the other. The landlord may consider consulting an Arkansas landlord tenant attorney for legal advice.
The Arkansas Legal Services Partnership is a useful website for landlords and tenants provided by the Center for Arkansas Legal Services and Legal Aid of Arkansas. Another useful resource is the Arkansas Attorney General Consumer Protection Division website. For more articles on landlord-tenant laws in Arkansas, including illegal eviction procedures in Arkansas, see the Overview of Landlord-Tenant Laws in Arkansas on the Nolo site. For more eviction-related articles, see the Evicting a Tenant or Ending a Lease section of the Nolo site, including Eviction Notices for Lease Violations in Arkansas.