Arkansas law sets out specific rules and procedures for evicting tenants, beginning with the landlord providing notice of termination of a lease agreement in certain circumstances (see the Nolo articles Eviction Notices for Lease Violations in Arkansas and Eviction Notices for Nonpayment of Rent in Arkansas for details). In many cases, a tenant will move out after receiving a termination notice, such as a 10-day notice of termination for nonpayment of rent in an unlawful detainer action. But that is not always the case. After receiving an eviction notice from a landlord, a tenant may attempt to fight the eviction by making a defense argument at the eviction hearing in an attempt to stay in the rental property longer.
This article summarizes defenses a tenant may use to stop or delay an eviction in Arkansas, as well as key information landlords need to know before even starting the eviction process.
The Arkansas Residential Landlord Tenant Act specifies defenses a tenant may raise which may prevent an eviction judgment from being entered by the judge. If, at an eviction hearing, the judge finds any of the following situations to be true, the judge will not enter a judgment in favor of the landlord (this means that the judge will not make the tenant move out of the rental property when the landlord is trying to evict the tenant).
It is illegal for a landlord to evict a tenant in retaliation against the tenant’s attempt to enforce the tenant’s legal rights under the lease or rental agreement, or other laws—for example, if the tenant reported a health or safety violation to authorities. See the Nolo article Arkansas State Laws Prohibiting Retaliation for details.
A landlord may adopt rules and regulations regarding the tenant’s use of the rental property but they must be enforceable—for example, a rule or regulation must promote safety or welfare of the tenants, be related to protecting the rental property from abusive use, or fairly distribute services provided to the tenants. Furthermore, a rule must be relevant to its intended purpose, apply equally to all tenants, and be clear and simple enough to understand—and the tenant must have notice of such rules at the time the tenant enters into the lease or rental agreement with the landlord.
If a judge finds that the landlord is attempting to evict a tenant for violation of a rule or regulation that does not meet the above criteria or finds the rule did not exist at the time the tenant entered into the rental agreement or lease, the judge may deny the eviction. If the landlord adopts a new rule or regulation after the tenant entered into the lease or rental agreement, and the tenant did not have fair notice of the rule, or the rule substantially modified the terms of the rental agreement, the judge may deny the eviction for the tenant’s violation of such a rule.
Examples of how a landlord may attempt to adopt a new rule or regulation include increasing the tenant’s monthly rent under fixed-term lease (without a provision in the lease allowing the landlord to do so), or requiring the tenant to perform certain maintenance or repair responsibilities (without having this responsibility agreed to in the lease or rental agreement).
Finally, a judge may deny a landlord’s request for an eviction of the tenant if the landlord used prohibited self-help measures like changing the locks on the rental property, or causing an interruption of heat, running water, hot water, electric gas, or other essential services to the tenant in an effort to force the tenant to move out. (A.C.A. § 18-60-302).
A judge may also deny a landlord’s request for an eviction if the judge finds the landlord did not provide proper notice to the tenant required by Arkansas law.
If the landlord accepts rent from the tenant after the landlord has knowledge that the tenant has violated the terms of the lease or rental agreement or the landlord’s rules and regulations, then the landlord may have waived the right to terminate the rental agreement for that violation. For example, if the tenant violates the rental agreement by having a pet, when the rental agreement prohibits pets, and the landlord has knowledge the tenant has a pet, yet still accepts rent from the tenant, the landlord has waived the right to terminate the lease or rental agreement due to the tenant having a pet in violation of the lease agreement.
The tenant may ask the judge for more time to prepare a defense or to hire an attorney. Arkansas law provides that once an eviction action is filed in the district court by the landlord or his or her agent, the court must issue an order requiring the tenant to move out of the rental property or to “show cause” why he or she should not be evicted by the court within 10 days. (A.C.A. § 18-17-902(b)). “Show cause” simply means to explain or prove to the court why he or she should not be evicted. The 10-day period is counted as 10 calendar days, counting all seven days of a week. Given the fact that an eviction hearing is scheduled quickly, a judge may grant the tenant extra time to find an attorney to raise appropriate defenses.
In the event the landlord chooses to pursue an unlawful detainer action for the tenant’s failure to pay rent, the landlord may end up losing the rent money if the tenant is found not guilty. Once an unlawful detainer action begins, the tenant may choose to plead not guilty and remain living in the rental property. The tenant will then be ordered to pay the rent due under the lease or rental agreement to the court during the length of the unlawful detainer case. If the court finds the tenant is not guilty of the landlord’s alleged failure to pay rent, all of the rental payments made to the court will be released back to the tenant. Thus, the tenant will end up living rent free during the time of the criminal action. It is important the landlord keep accurate rent accounting records and be sure the tenant has violated the lease or rental agreement regarding nonpayment of rent before moving forward with an unlawful detainer action against the tenant. (A.C.A. § 18-16-101).
There may come a time when the landlord is better off stopping the eviction process to work with the tenant. If the tenant has a valid legal defense to the eviction, the landlord may need to continue the lease until he or she has a valid reason to evict the tenant or until the lease term ends. A landlord who pushes an improper eviction too far may end up being held responsible for violating discrimination or housing laws and may be required to pay the tenant’s attorney fees.
It may also be possible for a landlord and tenant to agree to sign a new lease or rental agreement reflecting a new understanding between the parties, such as a reduced monthly rental rate or a shorter lease term. In some situations, a tenant may agree to move out if the landlord helps the tenant relocate to a new rental property or negotiates a financial settlement. Arkansas law specifically provides that a claim or right arising out of the Arkansas Residential Landlord Tenant Act may be settled by agreement. (A.C.A. § 18-17-104).
In many cases, landlords will want to hire an attorney, particularly if a tenant is not only fighting an eviction but also claiming damages against the landlord. It will be important for the landlord to hire an Arkansas attorney who can present evidence and question the landlord on the stand so the judge is able to hear the landlord’s side of the facts.
Tenants who have questions about their eviction case or defense or are dealing with a landlord who has already retained a lawyer, should probably also contact a lawyer. A lawyer can handle the whole case or give a tenant advice on how to proceed. A lawyer can also let a tenant know how likely he or she is to win their case. Tenants may especially want to hire an attorney if they have a complicated case or if they have been charged with unlawful detainer since the charge may result in a criminal conviction.
For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.
Landlord-tenant law is not always straightforward or simple and advanced legal knowledge may be needed in many unique situations. Nolo’s Lawyer Directory includes landlord-tenant lawyers in Arkansas who may be helpful in this regard.
The Arkansas Legal Services Partnership is a useful website for landlords and tenants and is provided by the Center for Arkansas Legal Services and Legal Aid of Arkansas. Another useful site 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 and Eviction Notices for Nonpayment of Rent in Arkansas.