Arkansas has a reputation as the “worst state to be a renter.”  I hear this regularly from my clients who are facing eviction or who are otherwise embroiled in a conflict with their landlord.  What makes Arkansas a bad state for renters?  The major reason Arkansas is a bad state to be a renter is that Arkansas is the only state that does not recognize in law—either through legislation or the courts--an “implied warranty of habitability.”

What Is an Implied Warranty of Habitability?

Let’s take this phrase apart in reverse order.  First, habitability refers to the conditions of the home being rented.  Is the home habitable, i.e. can humans live in the home safely and comfortably?  A warranty is a guarantee.  You get a home warranty when you purchase a home to give you peace of mind that, if something goes wrong, you have a guarantee from the seller that the home will be fixed at a minimal cost to you.  Finally, implied means that this warranty of habitability does not have to be written or bargained for at the time of purchase (or rental), it is implied in the very purchase.

Most states recognize that when someone rents a home, they expect the home to be habitable.  In those states, even if the lease agreement does not say so, the landlord is responsible for making any repairs and performing all maintenance necessary to keep the home in a habitable condition.  In those states, this guarantee that the home is habitable is implied in the lease agreement.  It does not need to be stated explicitly.  But not in Arkansas.

This is legally significant for two reasons: (1) maintenance and repair must be bargained for in your lease agreement; (2) you cannot withhold rent simply because you live in a dump.

The Lease Controls

Since the warranty of habitability is not implied, there is no law or legal mechanism to compel your landlord to make repairs unless you bargain for that in the lease.  The lease agreement is a contract between you and the landlord.  As such, the lease agreement spells out everything expected of the renter and everything expected of the landlord to fulfill the lease.  A very simple lease agreement like “Landlord agrees to rent the property; Tenet agrees to pay $600.00 a month to rent the property” would mean the landlord only breaks the lease agreement if they do not rent the property to the tenant.  Without an implied warranty of habitability, the landlord is not expected to provide a livable home. If something is not in the lease contract, it is not an expectation that can be enforced through legal action.  In that simple contract, for example, the tenant is expected to pay the $600 per month rent.  If the tenant does not pay the full $600 every month, then the tenant is breaking the lease, and the landlord can bring an eviction lawsuit against them. 

Many times when landlords refuse to make repairs, a tenant’s first thought is, “then I won’t pay the rent until you do.”  This is understandable. Why should you pay to live in a dump?  Why should you pay to live in an apartment without air conditioning in a sweltering Arkansas July?  Why pay for a home that is flooded with raw sewage.  Unfortunately, under the lease, you are expected--and have agreed--to pay the rent regardless of the condition of the home.  Under Arkansas law, there is a strong assumption that the tenant takes the property “as is” unless the lease states otherwise.  If you withhold the rent, hoping that will motivate your landlord to make repairs, your landlord can evict you for nonpayment of rent and never make any repairs.  Without the implied warranty of habitability, the poor condition of the home is never a defense against eviction for non-payment of the rent.

Most—but certainly not all—lease agreements contain a provision that the landlord is responsible for maintaining the property and that the tenant is responsible for notifying the landlord of needed repairs and maintenance.  A provision like this gives the renter a foundation for a legal argument that the landlord has breached the lease by not making repairs.  The foundation, however, is not enough in itself.  You build on that foundation with evidence.

What to do if your landlord won’t fix things that need fixing.

First, pay your rent.  If you withhold the rent to try and force your landlord to make repairs, you could very likely end up evicted for non-payment of rent.   If you are behind on your rent, the best thing you can do to avoid eviction is to get current on your rent.  You cannot avoid eviction for non-payment of rent by arguing that the landlord did not properly maintain the property.

Second, check your lease agreement.  What does the lease say about repairs and maintenance?  Ideally, you already know what your lease agreement says because when you moved in you negotiated for a provision that includes habitability standards.  But, you also want to check the lease to see if it says anything about what happens when the landlord is not making repairs.  Some lease agreements will provide a process that the tenant must follow before the tenant is allowed to break the lease.  For example, the lease may state that you must notify the landlord of the needed repair and that the landlord has a reasonable amount of time to make the repair.  If the landlord does not make the repair, the lease might say you must notify the landlord that you intend to break the lease after 30 days because of their lack of repair and then give the landlord an additional period of time to cure their lease violation, i.e. make the repair and restore the lease.  Not every (or even most) lease agreement will spell out a process like this, but you will want to check the agreement to make certain.

Third, document everything.  Take pictures of the things in need of repair.  Take pictures of damages that result from a lack of maintenance.  Pictures are good evidence that a repair is needed, but remember what you need to prove is that it is your landlord’s duty to repair the issue and that they have refused to do so.  Communicate in writing to your landlord and save all those communications.  Email or text maintenance requests to establish a digital paper trail.  This will have more evidentiary value than a phone record or your testimony about a conversation you had with your landlord.  You do not have to be overly formal, but if you have written proof that your landlord is aware of an issue and refuses to do anything about it, you can build a stronger legal argument that your landlord has breached the lease.

Finally, contact the city or county building inspectors in your area.  Although landlords do not have an implied duty to their tenants to maintain a habitable home, if the home is within the limits of a city or county that has adopted a residential building code, then your landlord must maintain the property up to those code standards.  If the conditions of your home endanger the health or safety of you or other residents, then the home is likely not up to code.  Reporting your landlord for code violations will not necessarily serve to keep you in the home, but a code inspection is an official written record that would be good evidence for you in court.

Implied Warranty of Quiet Enjoyment

Although Arkansas does not recognize the Implied Warranty of Habitability, they do recognize its cousin, the Implied Warranty of Quiet Enjoyment.  While habitability refers directly to the conditions of the home, “quiet enjoyment”-- a legal phrase with a somewhat squishy definition—refers to the use of the home.  The idea is that when you rent a home to live in it, you should be able to use and enjoy the home without interference or annoyance.  If the conditions of your home are so bad that you cannot use and enjoy the space as you intended when you rented it, then you may be able to argue that your landlord has breached the implied warranty of quiet enjoyment.  This will not likely motivate your landlord to make repairs for your continued use of the home, but it can provide you with a legal tool to break your lease without penalty and move somewhere habitable.

Change on the Horizon???

In the 2021 session of the Arkansas General Assembly, the Arkansas legislature passed Act 1052.  This law amended the Arkansas Residential Landlord-Tenant Act of 2007, adding a set of six “implied residential quality standards:” 

1.     An available source of hot and cold running water.

2.     An available source of electricity

3.     A source of potable drinking water

4.     A sanitary sewer system and plumbing that conforms to building and housing codes at the time of installation.

5.     A functioning roof and building envelope

6.     A functioning heating and air conditioning system.

This law goes into effect on November 1, 2021, and as part of the new law, Landlords will have to provide to the tenant at the time of rental with a form certifying that these 6 standards are met, which the tenant will sign off on.  This is much like a move-in inspection form.  In practice, rather than implying habitability in any residential rental agreement, the new law mandates that landlords include these six standards in their lease agreements.

The standards that are set are good for renters, and are the first step for Arkansas to heal its reputation as the “worst state to be a renter.”  However, these standards do not include the full range of habitability issues that Arkansas renters face or that are normally encompassed in an implied warranty of habitability.  Moreover, the new law specifically states that tenants cannot withhold rent when repairs are not being made.  The only remedy for a tenant whose landlord is not maintaining the home to these standards is to break the lease without penalty, and this remedy was already available with the implied warranty of quiet enjoyment.

AUTHOR: CHAD POLLOCK, STAFF ATTORNEY FOR THE CENTER FOR ARKANSAS LEGAL SERVICES