The Implied Warranty of Habitability: Arkansas Stands Alone in Landlord Tenant Law

In February 2023, Senator Leding and Representative Richardson of the Arkansas General Assembly proposed an Amendment to the Arkansas Constitution to create an implied warranty of habitability.  An implied warranty of habitability defines each party’s responsibilities when it comes to a lease agreement – responsibilities that often cannot be waived.

What Is an Implied Warranty of Habitability?

The implied warranty of habitability is a duty that all states, aside from Arkansas, enforce on landlords. The warranty legally recognizes that when a lease agreement is made between a landlord and a tenant, it is implied that the landlord has made the property, at the very least, habitable. Under the warranty of habitability, landlords are generally responsible for repairing problems on their property that have the potential to threaten the life, health, and safety of the tenant. The duty applies to both commercial and residential properties and can sometimes be implied in the sale of property.

Implied warranty of habitability standards vary from state to state, with some states evaluating on a case-by-case basis and others laying out specific lists of extensive responsibilities. Many of the standards that landlords are responsible for under the implied warranty of habitability are often what tenants expect to be functional on the property – things like running water, working heating and cooling units, and access to trash disposal, among others.  The maintenance of these items is frequently addressed in lease agreements.  Some states allow tenants to waive certain habitability standards, but almost all states enforce habitability standards that, if not upkept, would impose a great risk of danger.

Why doesn’t Arkansas have Implied Warranty of Habitability?

Arkansas is the only state that does not recognize the implied warranty of habitability.  This means that landlords in Arkansas are not obligated to make repairs to their property unless there is a violation of local health and safety codes or the responsibility for repairs was delegated to the landlord in the lease agreement. With approximately 34% of housing units in Arkansas being rental units, many Arkansans encounter clauses in their lease agreements disclaiming any warranty of habitability.

Some cities, such as Fayetteville, protect properties from endangering the public welfare due to unsafe or hazardous conditions through building codes, but local building codes don’t often address the health and safety of private residences.  Preemption prevents localities from enforcing regulations in this area, making the state the only legal authority able to create habitability standards.

Do landlords in Arkansas really fail to meet habitability standards?

A 2016 survey published by Frontiers in Public Health reported that one in three Arkansans surveyed have had trouble getting repairs for their rental units, and one in four Arkansans have experienced health complications, such as headaches, increased stress levels, and breathing problems, due to the lack of maintenance in their rental units.

Supporters for the warranty of habitability raise concerns about the uneven power dynamic between tenants and landlords, making it difficult for tenants to negotiate warranty of habitability language into their lease agreements.  This is a rising problem in Arkansas, particularly as the demand for housing is on the rise.  According to the National Low Income Housing Coalition, there is a shortage of over 50,000 rental homes for low-income earners alone.  Rent in Arkansas is also increasing at a staggering rate: seven times higher than the national average.  Without the legal authority to hold landlords responsible, tenants may be subjected to health and safety concerns in their home with no recourse as many leases contain provisions that explicitly prohibit improvements to the property without the owner’s consent.

Those who oppose the warranty of habitability contend that having no implied warranty is in the best interest of tenants, especially low-income tenants.  Arkansas rental prices are far lower than the national average.  Opposers argue that because there is no obligation to make repairs, monthly rates will stay low.  If landlords have to spend extra to make repairs, they would need to increase rent rates to cover extra costs, impacting prices across the state. In turn, those who currently have a place to live may otherwise be pushed into homelessness if landlords have to abide by an implied warranty of habitability.

How would an Implied Warranty of Habitability change Arkansas landlord tenant law?

Arkansas legislators have proposed bills and constitutional amendments to create an implied warranty of habitability, including the Constitutional Amendment to Create an Implied Warranty of Habitability and Provide Protections to Arkansas Tenants proposed by Senator Leding in the last legislative session.  Ultimately, these measures have never been successful, but if an implied warranty of habitability ever became law in Arkansas, it would likely follow a scheme similar to implied warranties of habitability in other states.  These laws may allow tenants to engage in self-help remedies such as withholding rent, making repairs to the property with reimbursement, and terminating lease agreements.  Additionally, failure to pay rent and refusal to vacate would likely no longer be a criminal offense.  Landlords could have the responsibility to provide:

• Written notice to prospective tenants about potential threats to health and safety on the property,
• Safe and clean premises fit for human habitation,
• Access to hot and cold running water that is safe to drink,
• Proper sewage drainage systems,
• Heating and cooling units,
• Weather-proofed roofs, walls, windows, and exterior doors,
• Electricity,
• Garbage receptacles,
• Floors, walls, ceilings, stairways, and railings in good repair, and
• Smoke and carbon monoxide alarms.

With the conclusion of the 2023 regular legislative session, the possibility of an implied warranty of habitability being legally recognized in Arkansas in the near future is slim.  However, our attorneys at The Law Group of Northwest Arkansas PLLC are here to advise our clients on how to comply with current law.  Whether you’re a landlord or a tenant, it is important to understand your responsibilities and rights before agreeing to any lease of property.  Call us at 479-316-3760 or contact our office to ensure that you feel confident before signing your next lease agreement.