Civil Eviction: Unlawful Detainer
The following does NOT constitute legal advice from me to you. The information provided on this website is for information purposes only and does not create an attorney-client relationship between us.
Arkansas law substantially favors landlords. There are two ways to evict a tenant in Arkansas: civil eviction or criminal eviction. Each method has its own benefits and drawbacks.
The civil eviction is known as the unlawful detainer. This method of eviction has long historical roots; it essentially is the same method the British used before America was colonized. Today, it is codified in the Arkansas statutes at Arkansas Code Annotated 18-60-301 et seq. The statutes are at the bottom of this article for your reference.
While the criminal eviction is very limited in scope, the unlawful detainer is the default method. If a tenant is violating a lease in any way or for any reason, then the unlawful detainer is the proper method to evict the tenant. The unlawful detainer eviction applies if the tenant is creating a disturbance, being a nuisance to neighbors, failing to pay the rent, damaging the property or any other violation of the lease agreement.
The civil eviction starts with a three day notice of unlawful detainer. The law requires the tenant to be notified that the tenant must move. I believe it is important to spell out why the tenant is being evicted.
If the tenant fails to move or vacate within those three days, then the landlord may prepare and file a circuit court coversheet, summons, complaint, notice of intent to issue a writ of possession, and affidavit in support of the complaint with the Circuit Court. The filing fee in most counties in Arkansas is $165. Then, those documents must be delivered to the tenant by an acceptable process server. Usually that cost will range from $40 to $80.
The process is then bifurcated, or split into two parts. The first part is a decision on who is entitled to possession of the property, and the second part is a decision on how much money is owed to whom.
A civil eviction has a truncated or expedited procedure to make a quick decision on who is entitled to possession of the property. Within five (5) of being served with the paperwork, the tenant must do two things: 1) file a written answer with the court and 2) pay into the court registry the rent due. If the tenant fails to do either or both of these, then the clerk of the court may issue a writ of possession. A writ of possession is a commandment to the sheriff to lock the tenant out of the property. If the tenant files an answer and pays the rent due into the court registry, then the landlord is likely protected at least from a failure to pay rent. In my experience, it is amazingly rare for a tenant to file an answer and pay the rent into the court registry. More often than not, the landlord or owner would not be rushing into court if the tenant were quick to respond and pay the rent.
Judgment for Damages
After possession has been decided, the next step is to determine damages. This makes sense because the owner of the property cannot know his or her damages until he or she regains possession of the property. Generally speaking, the owner or landlord is entitled to a judgment against the tenant for the following: 1) unpaid rent, 2) late fees, 3) advertising costs to re-rent the property, 4) repair costs for any physical damages, 5) cleaning costs, 6) rent for the time the property is under lease but remains vacant, 7) attorney fees, and 8.) court costs. The amount of the security deposit, if any, should be deducted from this collective amount.
If the tenant fails to file a written answer within 30 days, then the landlord is likely entitled to a default judgment.
Often, cases may never even make it to this stage. The landlord must make a decision on whether it is worth pursuing the case beyond possession. Once the landlord has possession, he or she can re-rent the place and move on. However, if the tenant is employed or owns real estate or has assets, then it may be worth pursuing a judgment. If the landlord knows the tenant not to have assets or garnishable wages, then the landlord may seek to have the case dismissed without pursing it further.
We handle many evictions quickly, efficiently and cost effectively. I represent a number of landlords, property management companies, apartment complexes and real estate agents that collectively manage more than 4,000 rental units.
Our fees are based on three stages of representation. For an initial consultation and drafting and mailing of the three day notice of unlawful detainer, the fee is limited to $175. To prepare the circuit court coversheet, summons, complaint, notice of intent to issue a writ of possession and affidavit of account and handle the case through a decision on possession, the fee is $600 plus out of pocket expenses, such as filing fees and process service fees. If the landlord elects to pursue the case beyond a decision on possession, then the fee is hourly at $195 per hour for an attorney and $75 per hour for a paralegal. If a tenant fails to file an answer and the landlord is entitled to a default judgment, then we charge a flat fee of $250 to prepare and file the motion for default judgment, affidavit of account and draft judgment.
If I can assist you with an eviction, then please email me at Jason@jasonbolden.com or call me at 501-952-8114.
We handle evictions in Pulaski County, Alexander, Jacksonville, Little Rock, Maumelle, North Little Rock, Sherwood, Wrightsville; Saline County, Bauxite, Benton, Bryant, Haskell, Shannon Hills, Traskwood; Lonoke County, Austin, Cabot, Carlisle, Lonoke, Jefferson County, Pine Bluff, Redfield, Whitehall; Garland County, Hot Springs, Hot Springs Village; Faulkner County, Conway, Vilonia, Greenbrier, Mayflower. Essentially, we handle evictions in all of Central Arkansas.
Below are the Arkansas statutes that govern the civil eviction method for your reference.
18-60-301. Legislative intent.
(a) Acts 1875, No. 85 [repealed], as amended by Acts 1875 (Adj. Sess.) No. 56; Acts 1891, No. 8 [repealed] and Acts 1947, No. 373 [repealed], which declare and describe the cause of action for forcible entry and detainer and unlawful detainer and prescribe the procedure for carrying out the rights and remedies granted to affected parties thereunder, is in need of clarification and revision in order that persons affected thereby may be afforded reasonable opportunity to be heard on legitimate objections to writs of possession entered in accordance with the provisions of this law.
(b) It is, therefore, found to be to the best interest of the people of this state that an additional procedure be specifically prescribed for the enforcement of the rights of parties claiming a cause of action by reason of forcible entry and detainer or unlawful detainer of real property and those persons against whom such causes of action are brought.
18-60-302. Improper entry prohibited.
No person shall enter into or upon any lands, tenements, or other possessions and detain or hold them except when an entry is given by law, and then only in a peaceable manner.
18-60-303. Actions constituting forcible entry and detainer.
A person shall be guilty of a forcible entry and detainer within the meaning of this subchapter if the person shall:
(1) Enter into or upon any lands, tenements, or other possessions and detain or hold them without right or claim to title;
(2) Enter by breaking open the doors and windows or other parts of the house, whether any person is in it or not;
(3) Threaten to kill, maim, or beat the party in possession or use words and actions as have a natural tendency to excite fear or apprehension of danger;
(4) Put out of doors or carry away the goods of the party in possession; or
(5) Enter peaceably and then turning out by force or frightening by threats or other circumstances of terror the party to yield possession.
18-60-304. Actions constituting unlawful detainer.
A person shall be guilty of an unlawful detainer within the meaning of this subchapter if the person shall, willfully and without right:
(1) Hold over any land, tenement, or possession after the determination of the time for which it was demised or let to him or her, or the person under whom he or she claims;
(2) Peaceably and lawfully obtain possession of any land, tenement, or possession and hold it willfully and unlawfully after demand made in writing for the delivery or surrender of possession of the land, tenement, or possession by the person having the right to possession or his or her agent or attorney;
(3) Fail or refuse to pay the rent for the land, tenement, or possession when due, and after three (3) days’ notice to quit and demand made in writing for the possession of the land, tenement, or possession by the person entitled to the land, tenement, or possession or his or her agent or attorney, shall refuse to quit possession;
(4) Fail to maintain the premises in a safe, healthy, or habitable condition; or
(5) Cause or permit the premises to become:
(A) A common nuisance subject to abatement under:
(i) Section 14-54-1501 et seq.;
(ii) The Arkansas Drug Abatement Act of 1989, § 16-105-401 et seq.; or
(iii) Any other law of this state; or
(B) A public or common nuisance under § 14-54-1701 et seq. as determined by a criminal nuisance abatement board.
18-60-305. Applicability to all estates.
Sections 18-60-303 and 18-60-304 shall extend to and comprehend all estates, whether freehold or less than freehold.
(a) Forcible entries and detainers and unlawful detainers are cognizable before the:
(1) Circuit court of any county in which the offenses may be committed; and
(2) District court with jurisdiction concurrent with the jurisdiction of the circuit court, if permitted by rule or order of the Supreme Court.
(b) As used in this subchapter, “court” means:
(1) A circuit court; and
(2) If permitted by rule or order of the Supreme Court, a district court.
18-60-307. Proceedings in court.
(a) When any person to whom any cause of action shall accrue under this subchapter shall file in the office of the clerk of the court a complaint signed by him or her, his or her agent or attorney, specifying the lands, tenements, or other possessions so forcibly entered and detained, or so unlawfully detained over, and by whom and when done, and shall also file the affidavit of himself or herself or some other credible person for him or her, stating that the plaintiff is lawfully entitled to the possession of the lands, tenements, or other possessions mentioned in the complaint and that the defendant forcibly entered upon and detained them or unlawfully detains them, after lawful demand therefor made in the manner described in this subchapter, the clerk of the court shall thereupon issue a summons upon the complaint. The summons shall be in customary form directed to the sheriff of the county in which the cause of action is filed, with direction for service thereof on the named defendants. In addition, he or she shall issue and direct the sheriff to serve upon the named defendants a notice in the following form:
“NOTICE OF INTENTION TO ISSUE WRIT OF POSSESSION”
(b) If, within five (5) days, excluding Sundays and legal holidays, following service of this summons, complaint, and notice seeking a writ of possession against the defendants named therein, the defendant or defendants have not filed a written objection to the claim for possession made by the plaintiff in his or her complaint, the clerk of the court shall immediately issue a writ of possession directed to the sheriff commanding him or her to cause the possession of the property described in the complaint to be delivered to the plaintiff without delay, which the sheriff shall thereupon execute in the manner described in § 18-60-310.
(c) (1) If a written objection to the claim of the plaintiff for a writ of possession shall be filed by the defendant or defendants within five (5) days from the date of service of the notice, summons, and complaint as provided for in this section, the plaintiff shall obtain a date for the hearing of the plaintiff’s demand for possession of the property described in the complaint at any time thereafter when the matter may be heard by the court and shall give notice of the date, time, and place of the hearing by certified mail, postage prepaid, either to the defendant or to his or her or their counsel of record.
(2) If the defendant continues to possess the property described in the plaintiff’s complaint during the pendency of the proceedings under this subchapter, the defendant is required to deposit into the registry of the court at the time of filing the written objection a sum equal to the amount of rent due on the property and continue paying rent into the registry of the court in accordance with the written or verbal rental agreement.
(3) The failure of the defendant to deposit into the registry of the court the rent due or any rent subsequently due during the pendency of the proceeding under this subchapter without justification is grounds for the court to grant the writ of possession.
(d) (1) (A) If a hearing is required to be held on the demand of the plaintiff for an immediate writ of possession, the plaintiff shall there present evidence sufficient to make a prima facie case of entitlement to possession of the property described in the complaint. The defendant or defendants shall be entitled to present evidence in rebuttal thereof.
(B) (i) If the court decides upon all the evidence that the plaintiff is likely to succeed on the merits at a full hearing and if the plaintiff provides adequate security as determined by the court, then the court shall order the clerk forthwith to issue a writ of possession to the sheriff to place the plaintiff in possession of the property described in the complaint, subject to the provisions of subsection (e) of this section.
(ii) No such action by the court shall be final adjudication of the parties’ rights in the action.
(2) A plaintiff demanding an immediate writ of possession who is a housing authority and who claims in its complaint that the defendant or defendants are being asked to surrender possession as a result of the defendant or defendants having been convicted of a criminal violation of the Uniform Controlled Substances Act, §§ 5-64-101 — 5-64-608, shall be entitled to receive an expedited hearing before the court within ten (10) days of the filing of the objection by the defendant or defendants.
(e) If the defendant desires to retain possession of the property, the court shall allow the retention upon the defendant’s providing, within five (5) days of issuance of the writ of possession, adequate security as determined by the court.
18-60-308. Title to premises not adjudicated.
In trials under the provisions of this subchapter, the title to the premises in question shall not be adjudicated upon or given in evidence, except to show the right to the possession and the extent thereof.
18-60-309. Judgment for plaintiff — Assessment of damages — Writs of possession and restitution.
(a) If upon the trial of any action brought under this subchapter the finding or verdict is for the plaintiff, the court or jury trying it shall assess the amount to be recovered by the plaintiff for the rent due and agreed upon at the time of the commencement of the action and up to the time of rendering judgment or, in the absence of an agreement, the fair rental value.
(b) In addition thereto in all cases the court shall assess the following as liquidated damages:
(1) When the property sought to be recovered is used for residential purposes only, the plaintiff shall receive an amount equal to the rental value for each month, or portion thereof, that the defendant has forcibly entered and detained or unlawfully detained the property; and
(2) When the property sought to be recovered is used for commercial or mixed residential and commercial purposes, the plaintiff shall receive liquidated damages at the rate of three (3) times the rental value per month for the time that the defendant has unlawfully detained the property.
(c) (1) Thereupon the court shall render judgment in favor of the plaintiff for the recovery of the property and for any amount of recovery that may be so assessed with costs.
(2) If possession of the premises has not already been delivered to the plaintiff, the court shall cause a writ of possession to be issued commanding the sheriff to remove the defendant from possession of the premises and to place the plaintiff in possession thereof.
(d) (1) In case the finding or verdict is for the defendant, the court shall give judgment thereon with costs and for any damages that may be assessed in favor of the defendant.
(2) If the property described in the complaint has been turned over to the possession of the plaintiff, the court shall also issue a writ of restitution directed to the sheriff to cause the defendant to be repossessed of the property.
(e) Any monetary judgments awarded either to the plaintiff or the defendant may be recovered upon in any manner otherwise authorized by law.
(f) Upon final disposition of the action, the court shall distribute any money paid by the defendant under § 18-60-307(c) into the registry of the court first toward satisfaction of the plaintiff’s judgment, if any, and the remainder to the defendant.
18-60-310. Execution of writ of possession.
(a) Upon receipt of a writ of possession from the clerk of the court, the sheriff shall immediately proceed to execute the writ in the specific manner described in this section and, if necessary, ultimately by ejecting from the property described in the writ the defendant or defendants and any other person or persons who shall have received or entered into the possession of the property after the issuance of the writ, and thereupon notify the plaintiff that the property has been vacated by the defendant or defendants.
(b) (1) Upon receipt of the writ, the sheriff shall notify the defendant of the issuance of the writ by delivering a copy thereof to the defendant or to any person authorized to receive summons in civil cases and in like manner.
(2) If, within eight (8) hours of receipt of the writ of possession, the sheriff shall not find any such person at their normal place of residence, he or she may serve the writ of possession by placing a copy conspicuously upon the front door or other structure of the property described in the complaint, which shall have like effect as if delivered in person pursuant to the terms of this section.
(c) (1) If, at the expiration of twenty-four (24) hours from the service of the writ of possession in the manner indicated, the defendants or any or either of them shall be and remain in possession of the property or possession has not been returned to the plaintiff, the sheriff shall notify the plaintiff or his or her attorney of that fact and shall be provided with all labor and assistance required by him or her in removing the possessions and belongings of the defendants from the affected property to a place of storage in a public warehouse or in some other reasonable safe place of storage under the control of the plaintiff until a final determination by the court.
(2) If the determination is in favor of the defendant, then the possessions and belongings of the defendant shall be immediately restored to the defendant with the cost of storage assessed against the plaintiff.
(3) If the determination is in favor of the plaintiff, and it includes a monetary judgment for the plaintiff, then the court shall order the possessions and belongings of the defendant sold by the plaintiff in a commercially reasonable manner with the proceeds of the sale applied first to the cost of storage, second to any monetary judgment in favor of the plaintiff, and third any excess to be remitted to the defendant.
(d) In executing the writ of possession, the sheriff shall have the right forcibly to remove all locks or other barriers erected to prevent entry upon the premises in any manner which he or she deems appropriate or convenient and, if necessary, physically to restrain the defendants from interfering with the removal of the defendants’ property and possessions from the property described in the writ of possession.
(e) The plaintiff shall not be required to give any bond, unless ordered to do so by the court, as a condition to the execution of the writ by the sheriff.
(f) The sheriff shall return the writ at or before the return date of the writ and shall state in his or her return the manner in which he or she executed the writ and whether or not the properties described therein have been delivered to the plaintiff and, if not, the reason for his or her failure to do so.
18-60-311. Judgment for defendant.
(a) In all cases of forcible entry and detainer and unlawful detainer, when the defendant disputes the plaintiff’s right of possession, it shall be lawful for the defendant to introduce before the court or the jury trying the main issue in the action evidence showing the damage he or she may have sustained in being dispossessed of the lands and premises mentioned in the complaint.
(b) The jury, if they find for the defendant, shall at the same time find what damage the defendant has sustained by being dispossessed, if he or she has been so dispossessed, under the provisions of this subchapter, for all of which the court shall render judgment restoring the property to the defendant, as provided for in this subchapter, and shall render judgment against the plaintiff and any surety on any bond posted by the plaintiff for damages as found by the jury, as well as the costs of the suit.
18-60-312. Other causes of action not precluded.
(a) Neither the judgment to be rendered by the court in matters brought pursuant to the provisions of this subchapter nor anything in this subchapter shall bar or preclude the party injured from bringing any cause of action for trespass or ejectment, or any other action, against the offending party.
(b) All claims, causes of action, and actions which have accrued, occurred, or been filed prior to March 23, 1981, and arising under acts repealed shall be, and remain, in full force and effect, but shall be governed by the terms of this subchapter.