*1 332 to be under and the victim age of 18 to be over the
the appellant
establish either
case clearly
facts of this
of 14. Since the
age
offenses,
jury
to have the
was entitled
appellant
both
and/or
an offense
held that
have
times
many
both. We
instructed on
less
the same or
by proof
is established
another
it
included
the commission
establish
all the elements required
than
State,
180,
Akins v.
273
S.W.2d
Ark.
644
278
offense.
State,
37,
Rowe
16
(1982);
627 S.W.2d
v.
(1983);
State,
128,
Swaite
Ark.
612 S.W.2d
give
refused to
the court
I would reverse and remand because
first degree.
on carnal abuse in the
instruction
v. Russell RATLIFF
GORMAN
ux
et
Johnny
asked them vacate were not at home while the appellants the rental house entered stored the then Ratliff of their personal property. and removed all stove, beds, childrens’ refrigerator, a which included items. The bassinet, appellants and other personal papers, toys, wrong- constitute his actions claiming Ratliff filed suit eviction, conversion wrongful and constructive ful property. which he claimed and counterclaim in
Ratliff filed answer agreement of the lease had violated the terms that appellants the lease Ratliff relied between parties. *3 of to enter the property rent upon him nonpayment permitting The at premises. left the leased store all personal property and still after charges that if the are unpaid lease also provided arrearage. the rent satisfy can sold stored days, property that Ratliffs alleged appellants In an amended complaint, and To the extent a forcible detainer. actions constitute lease, with the terms of actions were accordance appellee’s and illegal, claim the lease is unconscionable appellants public policy. on was entered into
The that the lease parties stipulated 30, 1984, not has had November that Ratliff and appellants 23, 1985, and that Ratliff since premises April possession then, since property has had of possession appellants’ personal of granting no order has been entered judicial and that to Ratliff. personal property ruled, on hearing The after a preliminary appel- trial court to the lease lants’ motion for relief lite pendente pursuant contract, of repossession Ratliff had peaceable lien found therein. After and a on premises personal property trial, the claim and awarded Ratliff court denied appellants’ counterclaim, $528 rent his that amount representing unpaid and The court further moving, cleaning and storing, expenses. We found conforms to all Arkansas law. that the lease applicable disagree and reverse trial court’s order. provided pertinent part: lease lease of any by any
10. violation of this Any provision lessees, on the with the lessee’s any or premises due, consent, or failure to rent the date shall any pay upon result, lessor, at the the immediate option kind, termination of this lease without notice of and any lessor enter and and may thereupon premises said take retain thereof and exclude lessees therefrom. 12. If lessees leave at time premises any said unoccupied desired, while rent is due and lessor take unpaid, may, immediate thereof and exclude lessee there- from, and storing at the of said lesseesall removing expense property contained therein.
14. The lessor shall have the lien law granted all and rent, baggage of lessees their services, accomodation and and the lessees hereby grant lessor lien all brought into said upon personal property premises, or regardless any of law whether or furnished, not the lessor apartment and enforce said lien as or provided by law said and by entering premises taking either thereof and the con- belongings tained therein for safekeeping, by removing or said prop- erty storing therefrom the same at expense lessees. Said lien may be enforced whenever rent is due and or unpaid regardless of whether not a three (3) day served, notice to rent or shall have pay been quit *4 enforcement the of lien shall not waive other to operate any of rights the lessor in unlawful detainer or otherwise. If rent still due and unpaid thirty (30) after the days lien, enforcement of said then lessor may the sell or all any personal taken of property as herein provided, and may monies apply any received the unpaid rent, ....
In of 1981 legislature the revised the statutes the describing cause of action for forcible and detainer and entry unlawful detainer and the prescribing out procedure carrying rights the and of remedies the affected did legislature parties. so because it found the former in statutes were need of clarifica- and tion revision and it was in the the best interest of that people “an additional be for the procedure specifically prescribed of of rights enforcement the . .” Ark. Stat. Ann. 34- parties. 1985). 1501 (Supp. That additional afforded procedure persons legiti- to heard on legislation affected the by opportunity therefore, outset, At the of Id. objections mate to writs possession, to protection extend evinced a desire to legislature additional could be that in of before property parties them, expedite to provide as well as to for procedures taken from of in unlawfully of who are the removal parties property. will constitute defines those acts
Section 34-1503 as follows: forcible and entry detainer lands, enter or upon any If shall into any person or hold the same other and detain tenements or possessions title, by who shall enter without or claim to or right or of the parts and windows breaking the doors open not, house, threatening in or to by be or any person whether kill, or words by maim beat in such party or fear or tendency and acts have a to excite as natural or by of out of doors danger by putting or apprehension or by of the in away goods possession, carrying party force or turning and then out entering peaceably or of terror the threats other circumstances frightening by so every cases yield possession, in such party entry a forcible offending shall be deemed of guilty of meaning detainer within the this Act.
Included in this list is action taken the landlord this goods possession”. case: “carrying away party us read this statute as only people asks Appellee prohibiting goods or carrying away “without claim to title” from We do position not find his possession. persuasive party statute, legislature guidelines however. In this has embodied conduct, one of constitutes a forcible any which prohibited Act, giving within the thus entry meaning detainer protection conduct, delineating
In addition to prohibited with holdover tenants legislature for landlords provided remedy forcible and detainer and unlawful guilty others *5 is detainer. a the unlawfully possession property, Once party under this file a complaint with cause action will then be and an affidavit in circuit court and complaint to issue a writ of served with notice intention defendant
337 possession. If the 34-1507. defendant does not within respond § five days the writ of is issued. If party responds objects, a will hearing be held. At the if the court decides hearing, the plaintiff is to succeed and the likely plaintiff provides adequate security, court then orders the clerk to issue the writ. Id. For the defendant to retain he must property, provide Id. adequate security.
Although a landlord’s to evict a holdover self-help use act, tenant is not addressed 34-1502 specifically by does § provide: lands,
No person tenements, shall enter into or upon any same, and detain or possessions, hold the where but law, entry given by and then in a only peaceable manner.
No entry by a landlord onto property by occupied another is given Act by resorting first except legal process. Accordingly, action is self-help prohibited. finding
This
is in
with
keeping
long
standing policy
behind
statutes,
the forcible
entry
detainer
which were first
enacted to prevent landlords
retaking
their land
force.
Vinson Flynn,
v.
Other
courts addressing this same
have held
question
although the real owner of the property may
ultimately
entitled to possession of the
detainer
action is designed to
of actual
compel
party out
respect
present possessionof the other
and resort to
party
legal
Parker,
channels to obtain
See
possession.
Floro v.
205 So.2d
e.g.,
(Fla. 1968);
Talbot,
597, 12
Jordan v.
2d
55 Cal.
Cal. Rptr.
*6
733, 217
Co.,
Neb.
Bass v. Boetel
488, 361
20 (1961);
P.2d
Co., Investment
C.N.
and Edwards
(1974);
N.W.2d 804
intention to prohibit too, landlords, rights have that statutory authority. Recognizing face, they and the problems to with their respect tenants, the same legislature with holdover particularly to evict them expeditiously to enable establishes procedures tenants. clearly lease agreement terms of the
Although actions, did not waive their the appellants Ratliff’s permitted executing and detainer statutes under the forcible rights several kinds of 34-1503 prohibits the lease Section agreement. find that the tenant asking is us to conduct and the appellee be 34-1503 cannot of them. The provisions waived one statute. Nor can to of a of the permit portion isolated so as waiver waived, conceivably to so would entire statute be since do kill, maim or beat the party to threaten “to permit are absolutely prohibited. actions which possession,” authorizing For these of the lease reasons those and the trial court’s remedy the landlord’s are invalid self-help reversed. granting of relief is appellee include a for actual punitive Appellants prayer that, if the in this Section 34-1509 damages provides appeal. tenant, should for judgment give judgment court costs and be assessed favor “any damages can found in defendant.” The evidence of which only damages the record is the claim that the taken appellants’ $1,000. was worth has now been them Much that property claim of There was returned pursuant appellants’ exemption. damages. no evidence as to presented punitive court to we remand this matter the trial Accordingly, what, determine have been suffered damages any, Reversed remanded. JJ., concur. Newbern,
Hickman Justice, Newbern, concurring. The result reached David However, by majority is correct. I believe the majority opinion *7 does not correctly address central issue in issue the case. That lessee, contract, is whether a in lease confer provision which, upon the lessor the “right” to enter according to Ark. Stat. Ann. 1985), 34-1503 (Supp. the landlord from exempts liability § for forcible entry.
The majority opinion describes the adequately policies behind the forcible and unlawful detainer statutes. How- ever, in applying those policies invalidating provisions of the lease which are contrary to them the only discussion is about whether one part of the statute bemay “waived” and not the issue, others. If that were the I believe a strong argument could be contract, made might create a parties landlord’s “right” to enter but might not be able to create a commit the criminal acts stated disjunctively 34-1503.
We should say
that the
simply
General Assembly has stated
a strong
landlord,
public policy against forcible
and a
entry by
contract by which the
seek to
parties
avoid that
policy invalid.
Ladd,
725,
In Ladd v.
265 Ark.
580 S.W.2d
(1979)
we held
an agreement invalid for violation of public
See also
policy.
Carroll,
432, 6 S.W.2d
Hultsman v.
(1928); Swann
Swann,
Hickman,