What happens if I don't leave after eviction? A look at Failure to Vacate or “Criminal Eviction”
What happens if I don't leave after eviction?
A look at Failure to Vacate or “Criminal Eviction”
Ever wanted to dabble on the dark side? Want to build up that bad-boy image, but the thought of actually committing a crime makes you somewhat queasy?
Well, there is a really easy way to add a criminal offense to your record. First, come to Arkansas.
Second, rent a home.
Third, don’t pay rent.
Fourth, stay in the home after receiving an eviction notice.
Note: Please don’t actually do this.
For this to work, you’ll need to make sure your landlord is frugal or does not care enough to find out the legally proper way to evict you. Your landlord could have filed a civil or non-criminal “unlawful detainer” case to remove you from the home faster and probably could have been awarded money from you for the unpaid rent too. Most evictions in Arkansas are now handled through the civil, unlawful detainer process.
However, Arkansas is still the only state in the country that treats nonpayment of rent as a crime.
In every other state, evictions are only a civil or non-criminal matter. Arkansas tenants can be charged with a crime called “failure to vacate” for remaining in the home after getting a 10-day eviction notice for nonpayment of rent. Failure to vacate is still enforced in a handful of Arkansas cities.
This is often called “criminal eviction,” although it is technically not an eviction. In practice, the process allows landlords to evict tenants through prosecutors without hiring their own attorneys. The State of Arkansas foots the bill instead (or the city if you live within city limits and the case is filed by a city attorney).
The funny thing is that the failure to vacate law does not allow a judge to evict you. A tenant that is found guilty can be charged $1 to $25 a day for each day they remain in the home after the 10 days are up.
The failure to vacate statute does not allow courts to remove the tenant from the property. They can only fine the tenant. Jail time is no longer allowed for failure to vacate. It may be allowed if the tenant commits a related crime like failing to appear in court.
Keep in mind that even judges disagree about the law and have different practices. Some courts get around the non-eviction rule in failure to vacate cases by ordering No Contact Orders (“NCOs”) between tenants and their homes.
Criminal courts can issue NCOs to order criminal defendants to stay away from the victim, the victim’s home, and the victim’s job. It is a separate crime to violate an NCO. NCOs are normal for criminal cases but are strange in this context. The tenant’s home is usually the landlord’s investment property—not the landlord’s home. The home itself is often listed as the “victim” on the NCO. However, the landlord seems to be the actual victim. It is unclear if an inanimate object can even be a crime victim.
Process:
The tenant falls behind on rent, and then the landlord serves a 10-day notice. The notice must be served “by the landlord or the landlord’s agent or attorney.” The notice can be served by posting it on the front door or by giving it to the tenant or by mailing it to the tenant, whatever is considered reasonable. The 10 days begin to run when the tenant receives the notice, NOT necessarily from the date the landlord signed the notice.
A police officer can issue a citation to the tenant if the tenant remains in the home after the 10 days are up. Usually, the landlord must go to the police station or prosecutor’s office and file a failure to vacate report.
The citation will have a court date, usually within a week or two. The court date on the citation is MANDATORY whether the tenant stays in the home or not. The court may issue an arrest warrant and charge the tenant with failure to appear if the tenant misses court.
The first hearing is a plea and arraignment where the tenant must enter a plea, such as guilty, not guilty, or no contest. Most cases are settled at this point. The prosecutor or the judge will usually ask the tenant how long until they can move out. They will agree to nolle prosequi or dismiss the case if the tenant moves out before the next hearing. Some courts will issue NCOs between tenants and their homes at this point.
The tenant has the right to raise any defenses that would apply in a civil eviction case, obtain counsel, engage in discovery, and take the case to trial.
If the tenant is found guilty at trial, the court can issue fines of $1-$25 per day that the tenant stayed in the home after the 10-day notice was up. Some courts will issue NCOs if they have not already.
Failure to vacate is rarely enforced in Arkansas. Some courts that hear failure to vacate cases view their role as resolving a valid dispute by getting the tenant to agree to move out, then dismissing or nolle prossing the charges. That way, the landlord is happy, and the tenant does not have a criminal conviction. Others feel compelled to enforce the law as long as it is on the books. The Sixth Circuit Court of Arkansas (which covers Perry and Pulaski counties) has declared the last version of the failure to vacate statute unconstitutional. In many areas, the prosecutors refuse to press charges for failure to vacate.
There is one advantage of failure to vacate for tenants. Civil cases are generally public and cannot be hidden. If you are evicted in civil court, it will probably appear online where anyone could see it. However, many criminal cases can be sealed. Once your failure to vacate case is over, you should seal or expunge it. If you were convicted or the case was dismissed, then you can immediately file a petition to seal. If your case was nolle prossed, then you must wait one (1) year from the entry of the nolle prosequi order to file a petition to seal.
Hopefully, this will help you navigate and understand the failure to vacate process. Remember that “criminal eviction” is not really an eviction. Once people understand this, maybe they will be persuaded to use the civil eviction process. The Center for Arkansas Legal Services represents low-income tenants in failure to vacate and eviction cases for free. People with questions about their legal rights and responsibilities can apply for free legal help on this website or by calling 501-376-3423 (toll-free 1-800-950-5817) on Monday – Friday between 9-11 AM or 1-4 PM.
To learn more about Sealing Your Record, read the blog “Sealing your Criminal Record- From Start to Finish.”
AUTHOR: RYAN HILL, STAFF ATTORNEY FOR THE CENTER FOR ARKANSAS LEGAL SERVICES