ARKANSAS (KNWA/KFTA) — The approaching Centers for Disease Control (CDC) temporary moratorium ending, sluggish job growth in November, and increasing COVID-19 cases, are three reasons more must be done to help tenants during the pandemic, according to retired University of Arkansas Little Rock Law Professor Lynn Foster.
The CDC’s order to halt evictions is set to expire December 31, unless the federal government extends it. It took effect on September 4.
In her November Arkansas Eviction report, she states, “at this point, it’s clear that all the money, which goes directly to landlords, will be spent by the end of this month or soon after,” referring to the state’s legislature $10 million approval for rent assistance.
SOME THINGS STAY THE SAME
According to data collected by Foster, unlawful detainers filed in November 2020 is the same as November 2019. “It can now be said that for three months we’ve returned to the same rate of eviction filing as before the pandemic. But because thousands of more Arkansans are in dire financial straits this year, it must be assumed that when the moratorium ends we will see many more evictions unless tenants receive more assistance, either in the form of direct or indirect rent assistance or the continuance of the moratorium.”
UNLAWFUL DETAINER EXPLAINED
An unlawful detainer is the most common form of eviction. Added by the legislature in 2007, a tenant who seeks a hearing must not only respond to the landlord’s complaint within five days but must also deposit the amount of rent alleged due with the court. The Catch-22 becomes that if a tenant can’t afford to pay rent, how can they afford to pay a court deposit of the rent due? If you don’t pay the rent deposit a judge will not hear your case so you can explain the situation you’re in. “In November, fewer than a quarter of tenants filed responses,” said Foster. “The alternative outcome under our statute is the immediate issuance of a writ of possession to the sheriff, who will evict the tenant,” she said.
Arkansas has two other forms of evictions, civil evictions (Ark. Code Ann. § 18-17-901) and failure to vacate, which is a criminal offense. Arkansas is the only state in the entire country where nonpayment of rent is a criminal offense.
- SEPTEMBER: 514 unlawful detainer cases were filed, and 87 tenants responded. 17%
- OCTOBER: 419 unlawful detainer cases were filed, and 115 tenants responded. 27%
- NOVEMBER: 413 unlawful detainer cases were filed, and 83 tenants responded. 20%
CDC MORATORIUM RESULTS
The CDC moratorium, in theory, should stop court proceedings. Foster reviewed cases with CDC declarations filed since September. Here are some of her findings:
- Of 119 total cases where CDC declarations were filed at some point, or the tenant said they had been delivered, in 70 cases (59%), typically where the declaration was filed early in the proceeding, the eviction proceedings halted and have not resumed.
- Five cases were dismissed.
- Six cases have hearings scheduled before Dec. 31, these have yet to happen.
- Five cases have hearings were set for dates in 2021.
- In six cases where CDC declarations were filed and hearings were then held, a settlement was reached.
- In five cases, the court decided the tenant was not covered by the moratorium, because they had violated the lease in additional ways or the term of the lease had ended.
- In a few cases, tenants filing CDC declarations after writs had already issued were successful in setting them aside, but not always.
- The earlier a CDC declaration is filed with the court the more successful it will be.
- In a few cases, tenants alleged that delivering the CDC declaration to their landlord caused the landlord to file an eviction against them.
OCTOBER TENANT STORIES
Washington County Circuit Court:
“The landlord filed an unlawful detainer action against the tenant at the end of September. The tenant responded timely that she had two disabled children and had to quarantine.UALR WILLIAM H. BOWEN SCHOOL OF LAW PROFESSOR LYNN FOSTER.
First, the court set a hearing date for Nov. 2. Then, the court changed its mind and, noting that no deposit had been filed, directed the clerk to issue a writ of possession, but also directed the sheriff not to lock the tenant out before Dec. 16. Two weeks later, the court changed the lockout date to Nov. 16. The writ was issued on Nov. 17 and served on Nov. 23, but Washington County, unlike most other counties, allows tenants to place a bond and delay physical eviction. This tenant has paid over $800 into the court as a bond. However, on Dec. 1, another writ of possession was issued. Through all of this time, the tenant has never received an opportunity to tell her story to a judge.“
Pulaski County Circuit Court:
“In September the landlord filed an unlawful detainer action against the tenant, alleging she had not paid rent in June and had been ordered to vacate by July 31. The tenant responded timely, attaching a CDC declaration dated four days prior. She responded that she had tried to pay rent ($700 in July, which the landlord refused to accept because the rent was $750, and $750 in August, which the manager refused to accept because the landlord had directed her to refuse all rent payments from the tenant). The tenant explained she had been off work for 59 days because of COVID. She stated that two agencies had approved rent assistance for her: River City Ministry and CADC. However, the landlord refused to accept rent assistance, refusing even to speak with the representatives. This tenant managed to scrape together two months of payment, along with her rent assistance, and tried to reach both the landlord and the landlord’s attorney, none of whom would speak to her. “I know I owe a debt and am more than willing to repay it however, the apartment manager and property manager have made it impossible for me to get the balance down as they continue to avoid me, refuse to return my calls, and refuse my payments as well as payments from rental assistance agencies.” In October, on two occasions the landlord asked the court to order a writ of possession, falsely stating that the tenant had not filed an answer. The court ordered a writ to be issued on November 3, also stating that the tenant had not filed an answer. However, then the court noted its error and set aside the writ, scheduling a hearing and noting that its policy was to schedule a hearing even if no deposit was paid if the tenant filed the response on time. At this time, Court Connect notes the hearing was to be held on December 1 but does not indicate any outcome.”UALR WILLIAM H. BOWEN SCHOOL OF LAW PROFESSOR LYNN FOSTER
Pulaski County Circuit Court:
“In September the landlord filed an unlawful detainer action against the tenant, alleging she had not paid September rent. The tenant responded that she had been unemployed for eight months with no benefits, and that she had received rent assistance from CADC of $500 and could pay the rest, but that the landlord had told her that additional charges would in effect double her rent for the month and that she could not pay those. She did not receive a hearing. Instead, even though the attorney for the landlord asked for a hearing, the judge ordered a writ of possession to be issued, because she had not made a deposit of the amount the landlord alleged was due (because, obviously, if she had it she would have paid it to the landlord.) As of this writing, the writ has not been issued by the clerk. This example illustrates two things: the unwillingness of some landlords to meet tenants halfway during the pandemic by refraining from charging obviously punitive fees, and the unfairness of the unlawful detainer deposit requirement.”UALR WILLIAM H. BOWEN SCHOOL OF LAW PROFESSOR LYNN FOSTER
Pulaski County Circuit Court:
“In October, the landlord filed an unlawful detainer action against the tenants, alleging they were late with rent in March through July, paid only partial rent in August, and paid no rent in September and October. They owed late fees as well. The tenants replied, saying they always paid rent on time until August, often paying a month in advance. As time went on the landlord refused to give them rent receipts but also required payment in cash and refused to take money orders. When the landlord’s brother mowed their lawn, he cracked the tenants’ car windshield and bedroom window. They never received reimbursement. The tenants included the rent receipts they did have. The tenants filed their answer timely, although they did not pay a deposit, and several weeks later filed a CDC declaration. As most judges have been doing since the pandemic began, because the tenants responded this judge scheduled a hearing and at it declared that the tenants met the CDC requirements, so they were entitled to stay until at least Jan. 1, although they must meet all other lease terms, and ultimately would be responsible for the rent. The judge dismissed the complaint with prejudice.”UALR WILLIAM H. BOWEN SCHOOL OF LAW PROFESSOR LYNN FOSTER
Pulaski County Circuit Court:
“At the beginning of November, the landlord filed an unlawful detainer action against the tenant, alleging she had not paid October’s rent (and presumably also not November’s). She responded stating that she lost income because of COVID. She had been using her savings to pay her rent, but it ran out in October. She listed multiple agencies from whom she had sought rent assistance including Fresh Start and River City Ministry. She had given the landlord a CDC form, which she also filed with the court, but he filed for eviction anyway. The tenant requested a hearing, and the landlord filed for a dismissal, which was granted. It’s impossible to tell from the record why the case was dismissed. They may have reached an agreement, or the tenant may have moved out.”UALR WILLIAM H. BOWEN SCHOOL OF LAW PROFESSOR LYNN FOSTER
Federal and state assistance is set to expire at the end of 2020 unless Congress issues another package.
In Arkansas, the legislature approved $10 million of CARES Act money for rent help. ARFreshStart is a website that helps tenants to apply for assistance. The money was dispersed to 15 Community Action Agencies in Arkansas. By the beginning of December, 12 agencies reported 900 applications had been paid, about 7,000 had been assigned to caseworkers (pending), and 3,000 were in the first step of applying.
ARFreshStart, as of Monday, December 7, due to the demand, most of the state’s Community Action Agencies are not accepting new applications at this time, according to its website.
In eight months — April through November — the Court Connect database number of evictions and failure to vacate charges filed against residential tenants for nonpayment of rent totaled 2,692. Of the eight months, September had the most with 547. The county with the most filings was PUlaski (974) followed by Washington County with 306.
The Aspen Institute Financial Security Program and the COVID-19 Eviction Defense Project estimates that 29 million renters n 12.6 million households could be evicted at the end of 2020. The projections were based on renter perceptions by the Pulse Survey. In Arkansas, there are 80,000-139,000 households at risk of eviction, The number of people impacted is between 184,000-320,000 — 20% to 39%, per the Aspen Institute.