Tenants and Criminal Trespassing- A Basic Breakdown

As a tenant, a person who occupies land or property rented from a landlord, you have certain rights when it comes to being a renter and how a landlord handles the eviction process and something as simple as having guests or friends over to your place.

Is it criminal trespassing if I stay in my home after my landlord gives me an eviction notice?  

No. Arkansas courts have made it clear that criminal trespass laws do not apply to landlord-tenant disputes. The offense of criminal trespass requires that a person enter and remain unlawfully in the premises of another, as a tenant you entered the living space lawfully. Landlords must go through a civil (non-criminal) eviction process to have tenants legally removed from their properties. An eviction notice is just an early step in that process. The tenant must then be served with a lawsuit and given an opportunity to respond with any relevant defenses before the court can give the landlord written permission to evict the tenant in the form of a “writ” or “order.” However, tenants could trespass if they remain in the home past the time allowed in the court order. Generally, an Arkansas tenant who has failed to pay rent and remains in the home may not be arrested for criminal trespass or forcibly removed from the property without a court order.  If you have received an eviction notice, we strongly recommend speaking to an attorney for assistance.

Tenants who fail to pay rent may still face prosecution under Arkansas’ failure to vacate law. This is often called “criminal eviction” although it does not actually allow the landlord to evict the tenant. A landlord may serve the tenant with a ten-day notice to vacate when a tenant fails to pay rent when it is due. The tenant is guilty of a misdemeanor and fined up to $25 per day if the tenant remains in the home after the ten-day period ends. However, the tenant can raise any defense that would be a defense to a civil eviction case such as protection under the U.S. Centers for Disease Control and Prevention’s “Temporary Halt in Residential Evictions to Stop the Further Spread of COVID-19” Order. Many prosecutors in Arkansas choose not to enforce the failure to vacate law.  

Can my landlord ban my guests from the rental property?  

It depends. Landlords generally cannot ban guests from a rental property. Tenants have the right to entertain guests at their homes. However, a landlord could ban or remove guests if the landlord and tenant have agreed to that in their lease agreement. Arkansas law also requires tenants to make sure that their guests do not disturb other tenants’ “peaceful enjoyment of the premises.” It is in a tenant’s best interest to make sure that guests behave themselves.   

Public housing agencies often try to stop non-residents from entering the property to reduce crime. They have “banning-and-trespass” policies with local police departments in which the property owner or manager adds people to a “ban” or “barment” list, the police notify people that they have been placed on the list, then the police arrest those people for trespassing if they return to the property. However, complex issues can arise when the alleged trespasser is actually a guest of a current tenant. At a minimum, the property must follow its own policy which may require notice and an informal hearing before someone can be placed on the list. Anyone arrested under such a “banning-and-trespassing” policy should seek the advice of an attorney(s) with experience in criminal defense and landlord-tenant law.

For more answers to tenant questions:

Learn more about eviction protections and rental assistance here-

Learn more about the eviction moratorium update and what it means for you here- 

If you are in need of legal assistance for a non-criminal matter, give us a call at 501-376-3423 or toll-free at 800-950-5817, Mon-Fri., 9-11 am & 1-3 pm.

AUTHOR: KENDALL LEWELLEN AND SARAH COWAN, STAFF ATTORNEYS FOR THE CENTER FOR ARKANSAS LEGAL SERVICES