Judge: Code im­plied in lease

Rul­ing puts onus put on Lit­tle Rock land­lords

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - BRAN­DON MUL­DER

A Pu­laski County cir­cuit judge has is­sued a rul­ing stat­ing that be­cause min­i­mum stan­dards of safety and hab­it­abil­ity are set by Lit­tle Rock city code, those stan­dards are im­plied in any lease agree­ment in the city.

Ten­ants’ rights at­tor­neys said the rul­ing will al­low ten­ants to sue their land­lords if their rental prop­er­ties don’t meet those stan­dards, but the city at­tor­ney said that would be a ma­jor shift in the law and he isn’t cer­tain yet whether that in­ter­pre­ta­tion is cor­rect.

In a par­tial judg­ment granted in a case in­volv­ing an apart­ment com­plex, the city of Lit­tle Rock and a ten­ant ad­vo­cacy group, Gray said there is an “im­plied war­ranty of hab­it­abil­ity” in any lease agree­ment be­tween ten­ant and land­lord in the city.

Be­cause all dwelling units must con­form to the city’s hous­ing code — which sets min­i­mum stan­dards for hab­it­abil­ity in things like san­i­ta­tion, heat­ing and cool­ing ameni­ties, and safety de­vices — those same stan­dards are im­plied in lease agree­ments, Gray’s rul­ing said.

There is no state law re­quir­ing land­lords to keep their prop­er­ties hab­it­able, mak­ing Arkansas the only state in the na­tion with­out such ten­ant pro­tec­tions. Gray’s rul­ing only per­tains to prop­er­ties leased in Lit­tle Rock.

As Gray’s rul­ing points out, Arkansas ap­pel­late courts have con­sis­tently up­held the doc­trine of caveat lessee, or “ten­ant be­ware,” mean­ing the ten­ant alone is re­spon­si­ble for mak­ing sure a dwelling is safe to re­side in.

Her rul­ing also said the state’s higher courts had never ad­dressed whether an im­plied war­ranty of hab­it­abil­ity is cre­ated by a city’s hous­ing code.

The rul­ing would al­low ten­ants to file law­suits against land­lords whose prop­er­ties fail to meet the stan­dards set by city code, said at­tor­ney Dustin Duke of Arkansas Le­gal Ser­vices, which is rep­re­sent­ing ten­ants in the case Gray ruled on Wed­nes­day.

But Lit­tle Rock’s city at­tor­ney said he isn’t yet cer­tain whether the rul­ing would al­low ten­ants to file suits against land­lords.

The rul­ing is “such a shift in Arkansas law” that “we’re go­ing to have to look at more closely,” City At­tor­ney Tom Car­pen­ter said.

“It’s an opin­ion that’s go­ing to have to be looked at care­fully and thought about in terms of Arkansas law, and then we’ll have to fig­ure out where to go from there,” he said.

Prior to the rul­ing, a ten­ant’s only re­course was to sub­mit com­plaints to the city’s code en­force­ment di­vi­sion, which can take re­me­dial ac­tion against ne­glect­ful land­lords through en­vi­ron­men­tal court.

But Lit­tle Rock’s rental in­spec­tion team, which is com­posed of five code en­force­ment of­fi­cers, is stretched thin in a city with 35,000 rental units. By the end of this year, the five-of­fi­cer team ex­pects to in­spect 3,500 units.

A city or­di­nance that re­quires ev­ery rental unit to be in­spected at least once ev­ery two years is “vir­tu­ally im­pos­si­ble to ac­com­plish,” Code En­force­ment Di­vi­sion Man­ager Ed­ward Gar­land said.

The di­vi­sion is craft­ing changes to that or­di­nance, which will be pre­sented to the city Board of Di­rec­tors later this year, Gar­land said.

But Gray’s rul­ing will al­low ten­ants to take en­force­ment into their own hands, Duke said.

“Code en­force­ment does a pretty good job … but the prob­lem is they just don’t have enough work­ers, con­sid­er­ing the num­ber of rental units in the city,” Duke said.

“I think this [ rul­ing] is a great thing for the city of Lit­tle Rock and all the folks that are renters in Lit­tle Rock,” Duke said. “I think it gives them an op­por­tu­nity to make sure that land­lords are fol­low­ing Lit­tle Rock code, and make sure that land­lords are keep­ing their units up to min­i­mum stan­dards.”

Gray’s Wed­nes­day rul­ing was the lat­est de­vel­op­ment in a years­long fight be­tween Alexan­der Apart­ments — a 141-unit, 17-build­ing com­plex on Colonel Glenn Road — and the city.

In De­cem­ber 2015, the city or­dered all res­i­dents to move out of the com­plex af­ter in­spec­tors re­ported find­ing numer­ous fire code and build­ing vi­o­la­tions that of­fi­cials said put the res­i­dents’ lives in dan­ger.

Ex­posed wiring, raw sewage, bro­ken smoke alarms, pos­si­ble mold, a dead cat, and plumb­ing and me­chan­i­cal is­sues were re­ported by the Lit­tle Rock Fire De­part­ment at the time. The res­i­dents, who num­bered more than 100, were given a week to re­lo­cate, which caused con­cern among res­i­dents at the time, given that Christ­mas was only a few days away.

Gray soon halted the re­lo­ca­tions in re­sponse to a law­suit filed by apart­ment own­ers, rul­ing that the city could not evict ten­ants and take ac­tion against the com­plex un­til the law­suit is re­solved. A week­long trial is now set for De­cem­ber, two years af­ter the suit’s fil­ing.

Af­ter the suit was filed, Arkansas Le­gal Ser­vices in­ter­vened in the case on be­half four ten­ants — two of whom have since set­tled with the land­lords out of court — and Arkansas Com­mu­nity Or­ga­ni­za­tions, a ten­ant ad­vo­cacy group.

The pro bono le­gal aid or­ga­ni­za­tion is su­ing the city for fail­ing to prop­erly no­tify ten­ants of their evic­tion and for not giv­ing ten­ants the right to due process, Duke said. It also is su­ing the apart­ment own­ers for the “de­plorable con­di­tions of the prop­erty,” Duke said.

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