Criminal Eviction
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. Arkansas is the only state in the United States with a criminal eviction statute. When a tenant is occupying a property and refusing to pay the rent, the tenant is committing a crime in Arkansas. In all other states, this situation is a civil matter. Arkansas essentially views such behavior as the tenant stealing from the landlord.
The criminal eviction has certain benefits and drawbacks.
First, this method of eviction is very limited. It applies only if the tenant is 1) occupying the property and 2) failing to pay the rent. If the tenant has moved out of the property, then this method does not apply. It does not apply if the tenant is creating a disturbance, being a nuisance, selling drugs out of the property, or anything other than failing to pay the rent.
Second, this method of eviction is NOT going to help you get any money out of the tenant. Rather, it is only going to help you regain possession of the property.
Third, every prosecuting attorney in the state treats the criminal eviction procedure slightly different. Prosecutors have the discretion to decide which cases they wish to prosecute, and often these cases are very low on their priority list. However, there are as many as 20 complaints filed with the prosecuting attorney’s office any given weekday in Pulaski County alone. I suspect there are more than 200 criminal evictions being prosecuted in Arkansas every week.
Fourth, the time that it takes to obtain possession of the rental when using the criminal eviction is longer than that of a civil unlawful detainer. Usually, a criminal eviction will take three to five weeks; the unlawful detainer civil method can get you possession in less than two weeks.
The criminal eviction process is not difficult, but it can be frustrating if you’re not familiar with the system.
The process starts with a 10 day notice to vacate. The forms can vary slightly from county to county; prosecutors often want you to use a form that they have already approved. If you do not use an approved form, then you run the risk of having to start over, thus giving the tenant another 10 days of free rent. If you need a 10 day notice to vacate form, please contact my office.
After the 10 day notice to vacate has been properly served, then the landlord or the landlord’s agent needs to sign an affidavit. The prosecutor uses that affidavit to obtain a warrant for the arrest of the tenant. Once there is a warrant, the police will serve the arrest warrant upon the tenant. After the warrant is served upon the tenant, a court date is scheduled.
The first court date is where the tenant pleads guilty or not guilty. The only substantive defenses to the case are 1) that the tenant has moved or 2) the tenant has paid the rent. Most often, the tenant pleads guilty and the judge orders the tenant to vacate by a certain date and time and grants the landlord permission to change the locks thereafter. Occasionally, the tenant pleads not guilty. In that rare situation, the judge sets the matter for trial, often the same week, sometimes the following week. Then, the tenant must present proof that the tenant has in fact paid the rent. If the tenant is still in the property and has no cancelled checks, receipts or proof of payment of the rent, then it is highly likely that the judge will hold the tenant accountable.
I represent a number of landlords, property management companies, apartment complexes and real estate agents that collectively manage more than 4,000 rental units.
This procedure is used often, in part because it is not expensive. Our fee is based on two stages of representations. For an initial consultation and drafting of the 10 day notice to vacate, the fee is limited to $175. For the second stage, to coordinate with the prosecuting attorney’s office, assist the client in getting the police to serve the warrant and prepare the landlord for court, our fee is $300. If you need assistance, then please do not hesitate to contact my office by emailing me at Jason@jasonbolden.com or calling me at 501-952-8114.
Below is the statute passed by the Arkansas Legislature that governs the criminal eviction procedure for your reference.
Arkansas Code Annotated 18-16-101. Failure to pay rent — Refusal to vacate upon notice — Penalty.
(a) Any person who shall rent any dwelling house or other building or any land situated in the State of Arkansas and who shall refuse or fail to pay the rent therefor when due according to contract shall at once forfeit all right to longer occupy the dwelling house or other building or land.
(b) (1) If, after ten (10) days’ notice in writing shall have been given by the landlord or the landlord’s agent or attorney to the tenant to vacate the dwelling house or other building or land, the tenant shall willfully refuse to vacate and surrender the possession of the premises to the landlord or the landlord’s agent or attorney, the tenant shall be guilty of a misdemeanor.
(2) Upon conviction before any justice of the peace or other court of competent jurisdiction in the county where the premises are situated, the tenant shall be fined twenty-five dollars ($25.00) per day for each day that the tenant fails to vacate the premises.
(c) (1) Any tenant charged with refusal to vacate upon notice who enters a plea of not guilty to the charge of refusal to vacate upon notice and who continues to inhabit the premises after notice to vacate pursuant to subsection (b) of this section shall be required to deposit into the registry of the court a sum equal to the amount of rent due on the premises. The rental payments shall continue to be paid into the registry of the court during the pendency of the proceedings in accordance with the rental agreement between the landlord and the tenant, whether the agreement is written or oral.
(2) (A) If the tenant is found not guilty of refusal to vacate upon notice, the rental payments shall be returned to the tenant.
(B) If the tenant is found guilty of refusal to vacate upon notice, the rental payment paid into the registry of the court shall be paid over to the landlord by the court clerk.
(3) Any tenant who pleads guilty or nolo contendere to or is found guilty of refusal to vacate upon notice and has not paid the required rental payments into the registry of the court shall be guilty of a Class B misdemeanor.