National Housing Law Project Housing Law Bulletin

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Arkansas Appellate Court Upholds Lower Court's Refusal to Evict Under "One-Strike" Rule

The Housing Authority of Trumann, Arkansas, brought an unlawful detainer action against one of its residents for failing to pay rent and for violating her lease on the grounds that the father of her two minor children, a Mr. Stracener, who was not listed as a resident of the unit, sold drugs from the residence to an undercover police agent on two occasions. The two incidents occurred one month before the authority amended its lease to incorporate the so-called "one-strike and you’re out" policy, which authorizes lease terminations for criminal or drug activity on or near the premises, and four months before the tenant actually signed the lease incorporating that policy. Apparently, the authority did not become aware of the criminal activity until eight months after it occurred and four months after the tenant signed the new lease. Moreover, it did not commence the eviction proceedings until nearly five months later, after the tenant failed to pay her rent. The notice of termination to the tenant did not specify whether the authority was seeking to evict her under the old or new lease provisions.

By the time of the trial, the tenant had paid all her past due rent and the issue of nonpayment was not pursued by the authority. However, it did present evidence that Mr. Stracener regularly listed the apartment as his residence. The tenant testified that Mr. Stracener stayed with her periodically up to a week at a time, and that she often left him alone on the premises, but that he did not reside at the apartment. She also denied any knowledge of the incidents at the time they occurred and there was no evidence introduced that she knew of or participated in any of the drug offenses. The Authority did submit rebuttal evidence that on one occasion she informed an officer serving subpoenas that Mr. Stracener lived at her apartment.

After trial without a jury, the trial court held that the authority had failed in its burden of proof and dismissed the unlawful detainer. The authority filed an appeal challenging the sufficiency of the evidence to support the judgment.

The appellate court affirmed the decision on the grounds that the lower court’s decision was not clearly erroneous when the evidence is viewed in the light most favorable to the tenant. Housing Authority of Trumann v. Lively, No. CA 99-543, 1999 WL 1203731 (Ark. App., Dec. 8, 1999). The appellate court noted that the trial court did not elaborate on its finding; however, based on the evidence viewed in the light most favorable to the tenant, the perpetrator of the crime was not a resident of the premises and the tenant had no knowledge of the activity taking place on the premises. Moreover, the court noted that once she became aware of the crimes, she no longer allowed Mr. Stracener to remain unsupervised on the premises or to remain overnight. Furthermore, the court noted that the authority did not serve the eviction notice until after the tenant became delinquent in her rent, nearly five months after it became aware of the criminal activity. Under these circumstances, the court of appeals could not conclude that the decision of the trial court was clearly erroneous and affirmed the decision.