18-1-101. Lien holder form.

1. 1. Any attachment, claim, encumbrance, financing statement, lien, mortgage, or security agreement filed of record against any real or personal property and any judgment filed of record against any person, firm, or corporation shall display the name, address, and telephone number of the claim holder, lien holder, or judgment creditor, together with the name and title of the person authorized to release the claim, lien, or judgment, or the person's successor.
   2. If an attachment, a claim, an encumbrance, a financing statement, a lien, a mortgage, a security agreement, or a judgment is filed on or after August 13, 2001, and does not comply with subdivision (a)(1) of this section, notice of an action commenced under § 18-50-101 et seq. shall be given by publication as provided in § 18-50-105.
2. Subdivision (a)(2) of this section shall not be applicable to:
   1. Any claim holder, lien holder, or judgment creditor that is a financial institution insured by the Federal Deposit Insurance Corporation; or
   2. Motor vehicle titles.
3. Clerks responsible for recording the documents enumerated in subsection (a) of this section shall ensure that the documents presented for filing display the information required by subsection (a) of this section.
4. The validity or priority of any attachment, claim, encumbrance, financing statement, lien, mortgage, or security agreement currently on file, or filed of record after August 13, 2001, shall not be affected by the failure of any person to comply with the requirements of this section.

History. Acts 2001, No. 1125, § 1; 2007, No. 1411, § 1.

18-2-101. Purpose.

1. The purpose of this subchapter is to establish a simple and accurate method for computing the present value of both vested life and remainder interests in property through the use of actuarial tables and to make the actuarial tables used in connection therewith current.
2. Nothing contained in this subchapter is intended:
   1. To provide when a court shall order a life interest commuted and so payable in gross; or
   2. To change the existing jurisdiction of the courts under which such a decree requiring commutation may issue.

History. Acts 1981, No. 350, § 1; A.S.A. 1947, § 50-701.

18-2-102. Commutation of single life interest.

In any legal proceeding wherein the court shall decree that a vested right to future income for life from property is to be commuted and an amount payable in gross be substituted for the property right, then the value of the interest shall be computed by use of the table and in the manner described in the example appearing in § 18-2-105 unless parties to the proceeding submit an agreement for a division of the proceeds which the court approves.

History. Acts 1981, No. 350, § 2; A.S.A. 1947, § 50-702.

18-2-103. Choice of age.

The appropriate age for use in the table is that of the person whose life expectancy serves to measure the life interest being valued.

History. Acts 1981, No. 350, § 3; A.S.A. 1947, § 50-703.

18-2-104. Choice of interest.

The court shall determine the interest rate to be used upon the basis of the prevailing interest rates obtainable for investments.

History. Acts 1981, No. 350, § 4; A.S.A. 1947, § 50-704.

18-2-105. Table and example.

1. Table:
2. Example: Joe Doe is entitled to receive the income from a principal sum of ten thousand dollars ($10,000) during the life of one Martha Jones, fifty-five (55) years of age. There is a emainder estate in favor of Timothy Doe. In an appropriate proceeding a court in Arkansas has determined that the life tenant is to be paid a lump sum in commutation of his right to income for the life of Martha Jones; the court has further determined that four percent (4%) is the rate of interest obtainable on an investment of a sum of the size of the principal sum. In the table, follow the left-hand column, which is labeled “age”, down vertically until fifty-five (55) is reached; then move horizontally until the column headed “4%” is intersected. At the intersection is found the figure: 15.6110. This figure is to be multiplied by the yearly income, which is found by multiplying the principal sum by the appropriate rate of interest. In this case that would be ten thousand dollars ($10,000) multiplied by .04 equalling four hundred dollars ($400). Then 15.6110 multiplied by four hundred dollars ($400) equals six thousand two hundred forty-four dollars and forty cents ($6,244.40). This is the sum which the court would direct to be paid to Joe Doe in commutation of his income right. Timothy Doe would be paid three thousand seven hundred fifty-five dollars and sixty cents ($3,755.60). See § 18-2-106: principal sum ten thousand dollars ($10,000) minus commuted life interest six thousand two hundred forty-four dollars and forty cents ($6,244.40) equals commuted remainder three thousand seven hundred fifty-five dollars and sixty cents ($3,755.60).

Age Average Remaining Lifetime Immediate Whole Life Annuity at Various Rates of Interest 4% 6% 8% 10% 12% Years Years Dollars Dollars Dollars Dollars Dollars 1 74.97 23.6260 16.4428 12.4579 9.9913 8.3314 2 75.37 23.6474 16.4480 12.4592 9.9917 8.3315 3 74.47 23.5988 16.4362 12.4562 9.9909 8.3313 4 73.54 23.5467 16.4234 12.4530 9.9901 8.3311 5 72.59 23.4916 16.4095 12.4494 9.9891 8.3308 6 71.63 23.4337 16.3947 12.4455 9.9881 8.3306 7 70.67 23.3736 16.3791 12.4413 9.9869 8.3302 8 69.70 23.3105 16.3623 12.4368 9.9857 8.3299 9 68.73 23.2450 16.3446 12.4319 9.9843 8.3295 10 67.75 23.1763 16.3257 12.4266 9.9827 8.3290 11 66.77 23.1048 16.3057 12.4208 9.9811 8.3285 12 65.80 23.0313 16.2847 12.4147 9.9792 8.3279 13 64.82 22.9542 16.2623 12.4080 9.9772 8.3273 14 63.84 22.8740 16.2385 12.4008 9.9749 8.3266 15 62.87 22.7916 16.2136 12.3931 9.9725 8.3258 16 61.90 22.7059 16.1872 12.3848 9.9699 8.3249 17 60.94 22.6179 16.1597 12.3760 9.9670 8.3240 18 59.97 22.5255 16.1302 12.3664 9.9638 8.3229 19 59.02 22.4316 16.0996 12.3562 9.9603 8.3217 20 58.06 22.3330 16.0670 12.3452 9.9565 8.3204 21 57.10 22.2307 16.0325 12.3333 9.9524 8.3189 22 56.15 22.1256 15.9964 12.3207 9.9479 8.3172 23 55.19 22.0153 15.9579 12.3069 9.9429 8.3154 24 54.24 21.9020 15.9175 12.2923 9.9374 8.3134 25 53.29 21.7844 15.8749 12.2765 9.9315 8.3111 26 52.33 21.6610 15.8293 12.2594 9.9250 8.3085 27 51.38 21.5342 15.7817 12.2412 9.9178 8.3057 28 50.42 21.4012 15.7308 12.2213 9.9100 8.3025 29 49.47 21.2646 15.6775 12.2002 9.9014 8.2990 30 48.52 21.1228 15.6212 12.1774 9.8921 8.2951 31 47.57 20.9756 15.5617 12.1530 9.8819 8.2908 32 46.62 20.8229 15.4988 12.1266 9.8707 8.2860 33 45.68 20.6660 15.4330 12.0986 9.8586 8.2806 34 44.73 20.5015 15.3628 12.0682 9.8452 8.2747 35 43.79 20.3325 15.2894 12.0358 9.8306 8.2681 36 42.86 20.1591 15.2127 12.0014 9.8149 8.2608 37 41.92 19.9773 15.1309 11.9639 9.7976 8.2526 38 40.99 19.7907 15.0454 11.9242 9.7788 8.2437 39 40.07 19.5993 14.9561 11.8819 9.7586 8.2338 40 39.14 19.3987 14.8608 11.8361 9.7362 8.2228 41 38.23 19.1952 14.7625 11.7879 9.7123 8.2107 42 37.31 18.9819 14.6576 11.7356 9.6859 8.1973 43 36.41 18.7657 14.5494 11.6808 9.6578 8.1827 44 35.50 18.5391 14.4341 11.6214 9.6268 8.1663 45 34.60 18.3070 14.3139 11.5584 9.5934 8.1484 46 33.71 18.0693 14.1887 11.4916 9.5574 8.1287 47 32.83 17.8259 14.0583 11.4210 9.5186 8.1073 48 31.95 17.5739 13.9211 11.3454 9.4765 8.0836 49 31.08 17.3162 13.7783 11.2654 9.4313 8.0577 50 30.21 17.0495 13.6281 11.1799 9.3821 8.0291 51 29.35 16.7767 13.4720 11.0896 9.3293 7.9980 52 28.49 16.4946 13.3078 10.9931 9.2720 7.9637 53 27.65 16.2097 13.1393 10.8924 9.2113 7.9267 54 26.80 15.9118 12.9602 10.7838 9.1448 7.8856 55 25.97 15.6110 12.7766 10.6706 9.0744 7.8415 56 25.14 15.3004 12.5838 10.5499 8.9982 7.7930 57 24.31 14.9794 12.3815 10.4212 8.9157 7.7397 58 23.49 14.6519 12.1718 10.2858 8.8276 7.6818 59 22.68 14.3179 11.9545 10.1434 8.7335 7.6192 60 21.88 13.9774 11.7297 9.9938 8.6332 7.5514 61 21.09 13.6305 11.4971 9.8367 8.5263 7.4782 62 20.30 13.2727 11.2536 9.6697 8.4110 7.3981 63 19.53 12.9132 11.0052 9.4969 8.2900 7.3128 64 18.76 12.5426 10.7454 9.3136 8.1598 7.2198 65 18.00 12.1657 10.4773 9.1216 8.0216 7.1196 66 17.25 11.7825 10.2008 8.9209 7.8750 7.0120 67 16.51 11.3933 9.9159 8.7111 7.7197 6.8964 68 15.78 10.9981 9.6225 8.4922 7.5554 6.7724 69 15.06 10.5971 9.3207 8.2638 7.3817 6.6397 70 14.35 10.1903 9.0104 8.0259 7.1984 6.4978 71 13.67 9.7901 8.7010 7.7856 7.0108 6.3508 72 13.01 9.3912 8.3887 7.5399 6.8167 6.1968 73 12.38 9.0007 8.0791 7.2935 6.6197 6.0387 74 11.77 8.6133 7.7684 7.0432 6.4174 5.8744 75 11.18 8.2297 7.4572 6.7897 6.2101 5.7044 76 10.61 7.8506 7.1462 6.5337 5.9986 5.5290 77 10.04 7.4629 6.8247 6.2661 5.7752 5.3418 78 9.48 7.0734 6.4982 5.9916 5.5435 5.1458 79 8.93 6.6825 6.1671 5.7102 5.3037 4.9408 80 8.40 6.2978 5.8377 5.4275 5.0604 4.7308 81 7.90 5.9274 5.5176 5.1500 4.8193 4.5208 82 7.42 5.5649 5.2014 4.8734 4.5768 4.3077 83 6.98 5.2266 4.9036 4.6107 4.3445 4.1018 84 6.57 4.9061 4.6192 4.3578 4.1191 3.9006 85 6.17 4.5884 4.3351 4.1033 3.8906 3.6950 86 5.80 4.2900 4.0664 3.8608 3.6713 3.4964 87 5.43 3.9873 3.7918 3.6112 3.4441 3.2892 88 5.09 3.7052 3.5342 3.3755 3.2282 3.0911 89 4.77 3.4362 3.2870 3.1480 3.0185 2.8975 90 4.47 3.1810 3.0510 2.9296 2.8160 2.7095 91 4.18 2.9314 2.8190 2.7136 2.6146 2.5216 92 3.92 2.7052 2.6076 2.5158 2.4293 2.3478 93 3.69 2.5032 2.4179 2.3375 2.2616 2.1897 94 3.50 2.3350 2.2593 2.1878 2.1201 2.0560 95 3.33 2.1833 2.1159 2.0520 1.9914 1.9339 96 3.18 2.0487 1.9882 1.9307 1.8761 1.8242 97 3.06 1.9404 1.8852 1.8326 1.7827 1.7351 98 2.95 1.8407 1.7901 1.7419 1.6961 1.6523 99 2.85 1.7497 1.7032 1.6588 1.6165 1.5752 100 2.77 1.6766 1.6333 1.5919 1.5524 1.5146

Click to view table.

History. Acts 1981, No. 350, § 5; A.S.A. 1947, § 50-705.

18-2-106. Commutation of remainder interest.

The present value of a remainder interest is found by subtracting from the principal sum the value of the commuted life interest as determined by this subchapter.

History. Acts 1981, No. 350, § 6; A.S.A. 1947, § 50-706.

18-3-101. Statutory rule against perpetuities.

1. A nonvested property interest is invalid unless:
   1. when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or
   2. the interest either vests or terminates within 90 years after its creation.
2. A general power of appointment not presently exercisable because of a condition precedent is invalid unless:
   1. when the power is created, the condition precedent is certain to be satisfied or becomes impossible to satisfy no later than 21 years after the death of an individual then alive; or
   2. the condition precedent either is satisfied or becomes impossible to satisfy within 90 years after its creation.
3. A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:
   1. when the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than 21 years after the death of an individual then alive; or
   2. the power is irrevocably exercised or otherwise terminates within 90 years after its creation.
4. In determining whether a nonvested property interest or a power of appointment is valid under subdivision (a)(1), (b)(1), or (c)(1) of this section, the possibility that a child will be born to an individual after the individual's death is disregarded.
5. If, in measuring a period from the creation of a trust or other property arrangement, language in a governing instrument (i) seeks to disallow the vesting or termination of any interest or trust beyond, (ii) seeks to postpone the vesting or termination of any interest or trust until, or (iii) seeks to operate in effect in any similar fashion upon, the later of (A) the expiration of a period of time not exceeding 21 years after the death of the survivor of specified lives in being at the creation of the trust or other property arrangement or (B) the expiration of a period of time that exceeds or might exceed 21 years after the death of the survivor of lives in being at the creation of the trust or other property arrangement, that language is inoperative to the extent it produces a period of time that exceeds 21 years after the death of the survivor of the specified lives.

History. Acts 2007, No. 240, § 1.

18-3-102. When nonvested property interest or power of appointment created.

1. Except as provided in subsections (b) and (c) of this section and in § 18-3-105(a), the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.
2. For purposes of this chapter, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of (i) a nonvested property interest or (ii) a property interest subject to a power of appointment described in § 18-3-101(b) or § 18-3-101(c), the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.
3. For purposes of this chapter, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.
4. For purposes of this chapter, if a nongeneral power of appointment or a general testamentary power of appointment is used to create another nongeneral power of appointment or general testamentary power of appointment, the nonvested property interest or power of appointment created through the exercise of the other nongeneral power of appointment or general testamentary power of appointment is considered to have been created at the same time the first nongeneral power of appointment or general testamentary power of appointment was created.

History. Acts 2007, No. 240, § 1; 2017, No. 945, § 3.

A.C.R.C. Notes. Acts 2017, No. 945, § 1, provided: “Title. This act shall be known and may be cited as the ‘Dynasty Trust Act’.”

Acts 2017, No. 945, § 2, provided: “Legislative intent. It is the intent of the General Assembly to:

“(1) Join the majority of states that allow the creation of perpetual trusts also commonly known as dynasty trusts;

“(2) Benefit successive generations of beneficiaries by protecting trust assets from federal taxes and the creditors of a beneficiary;

“(3) Amend the current rule against perpetuities so that perpetual trusts may be created in the State of Arkansas, increasing trust business within the state, instead of having a trust grantor create a trust in a foreign state for the sole purpose of ensuring the life of the trust beyond the short period of time granted by Arkansas's rule against perpetuities; and

“(4) Amend the current rule against perpetuities to allow the transfer of trust assets held in trust back to the State of Arkansas without creating a taxable event.”

Amendments. The 2017 amendment added (d).

18-3-103. Reformation.

Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the 90 years allowed by § 18-3-101(a)(2), § 18-3-101(b)(2), or § 18-3-101(c)(2) if:

1. a nonvested property interest or a power of appointment becomes invalid under § 18-3-101;
2. a class gift is not but might become invalid under § 18-3-101 and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
3. a nonvested property interest that is not validated by § 18-3-101(a)(1) can vest but not within 90 years after its creation.

History. Acts 2007, No. 240, § 1.

18-3-104. Exclusions from statutory rule against perpetuities.

Section 18-3-101 does not apply to:

1. a nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of (i) a premarital or postmarital agreement, (ii) a separation or divorce settlement, (iii) a spouse's election, (iv) a similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties, (v) a contract to make or not to revoke a will or trust, (vi) a contract to exercise or not to exercise a power of appointment, (vii) a transfer in satisfaction of a duty of support, or (viii) a reciprocal transfer;
2. a fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;
3. a power to appoint a fiduciary;
4. a discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;
5. a nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;
6. a nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse;
7. a property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this State; or
8. 1. a nonvested property interest or power of appointment provided in a trust created or administered in this state so long as the trust:
      1. has one (1) or more trustees who are able to convey an absolute fee in possession of land, or full ownership of personal property;
      2. has one (1) or more trustees with express or implied power to sell the trust assets; or
      3. vests in one (1) or more persons in being the unlimited power to terminate the trust.
   2. if the power of alienation is suspended during the life of the trust, the rule against perpetuities under § 18-3-101 will begin to run from the date of suspension.
   3. the exception created in this subdivision (8) applies to a trust created in Arkansas on or after August 1, 2017 and to any other trust whose principal place of administration is transferred to Arkansas on or after August 1, 2017, regardless of when the trust was created.

History. Acts 2007, No. 240, § 1; 2017, No. 945, § 4.

A.C.R.C. Notes. Acts 2017, No. 945, § 1, provided: “Title. This act shall be known and may be cited as the ‘Dynasty Trust Act’.”

Acts 2017, No. 945, § 2, provided: “Legislative intent. It is the intent of the General Assembly to:

“(1) Join the majority of states that allow the creation of perpetual trusts also commonly known as dynasty trusts;

“(2) Benefit successive generations of beneficiaries by protecting trust assets from federal taxes and the creditors of a beneficiary;

“(3) Amend the current rule against perpetuities so that perpetual trusts may be created in the State of Arkansas, increasing trust business within the state, instead of having a trust grantor create a trust in a foreign state for the sole purpose of ensuring the life of the trust beyond the short period of time granted by Arkansas's rule against perpetuities; and

“(4) Amend the current rule against perpetuities to allow the transfer of trust assets held in trust back to the State of Arkansas without creating a taxable event.”

Amendments. The 2017 amendment added (8).

18-3-105. Prospective application.

1. Except as extended by subsection (b) of this section, this chapter applies to a nonvested property interest or a power of appointment that is created on or after March 9, 2007. For purposes of this section, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
2. If a nonvested property interest or a power of appointment was created before March 9, 2007, and is determined in a judicial proceeding, commenced on or after March 9, 2007, to violate this State's rule against perpetuities as that rule existed before March 9, 2007, a court upon the petition of an interested person may reform the disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.

History. Acts 2007, No. 240, § 1.

18-3-106. Short title.

This chapter may be cited as the Uniform Statutory Rule Against Perpetuities.

History. Acts 2007, No. 240, § 1.

18-3-107. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

History. Acts 2007, No. 240, § 1.

18-3-108. [Reserved.]

This chapter supersedes the rule of the common law known as the rule against perpetuities.

History. Acts 2007, No. 240, § 1.

Subchapter 1 — General Provisions [Reserved]

18-4-201. Title.

This subchapter shall be known and may be cited as the “Arkansas Slayer Law”.

History. Acts 2013, No. 1351, § 1.

18-4-202. Definitions.

As used in this chapter:

1. “Decedent” means a person whose life is taken by a slayer;
2. “Property” means real or personal property; and
3. “Slayer” means an individual who is:
   1. Convicted by a court of competent jurisdiction of or pleads guilty or nolo contendere to the unlawful killing of the decedent;
   2. Found by a preponderance of the evidence in a civil action to have unlawfully killed the decedent or procured the killing of the decedent, including an individual who has been:
      1. Acquitted by reason of insanity, mental defect or disease, or any other mental incapacity concerning a criminal charge of the unlawful killing of the decedent; or
      2. Found to lack the capacity to understand or effectively assist in a criminal proceeding against himself or herself for the unlawful killing of the decedent; or
   3. A juvenile who is adjudicated delinquent by reason of committing an act that if committed by an adult would constitute the unlawful killing of the decedent.

History. Acts 2013, No. 1351, § 1.

18-4-203. Tolling of civil actions.

If a criminal proceeding is brought against a person to establish the person's guilt concerning the unlawful killing of the decedent, a civil action that involves an issue of whether the person unlawfully killed the decedent may be brought within one (1) year after a final determination is made in the criminal proceeding, including a determination concerning the person's:

1. Mental capacity under § 5-2-312 or § 5-2-313 or similar provisions of another state's law; or
2. Fitness to proceed under § 5-2-309 or a similar provision of another state's law.

History. Acts 2013, No. 1351, § 1.

18-4-204. Slayer barred from testate or intestate succession and other rights.

1. A slayer is deemed to have died immediately before the death of the decedent.
2. A slayer shall not acquire any property or property right or receive any benefit from the estate of the decedent by testate or intestate succession, by common law, or by statutory right, including as the surviving spouse of the decedent.

History. Acts 2013, No. 1351, § 1.

18-4-205. Insurance and annuity benefits.

1. Insurance and annuity proceeds payable to a slayer as the beneficiary or assignee of a policy or certificate of insurance or an annuity contract on the life of the decedent, or in any other manner payable to the slayer by virtue of the slayer having survived the decedent, shall be paid to the decedent's estate.
2. If the decedent is the beneficiary or assignee of any annuity contract, life insurance policy, or certificate of insurance on the life of the slayer, the proceeds shall be paid to the estate of the decedent upon the death of the slayer.
3. An insurance or annuity company that makes payment according to the terms of the annuity contract, life insurance policy, or certificate of insurance is not liable under this subchapter if payment or performance is made without knowledge of circumstances tending to make this subchapter apply.

History. Acts 2013, No. 1351, § 1.

18-4-206. Persons acquiring property from slayer protected.

The provisions of this subchapter do not affect the right of a person who before the interests of the slayer have been adjudicated acquires from the slayer for adequate consideration property that the slayer would have received except for the terms of this subchapter if the person acquired the property without notice of circumstances tending to make this subchapter apply provided, however, that:

1. The consideration received by the slayer shall be held by the slayer in trust for the persons entitled to the property under this subchapter; and
2. The slayer is liable for:
   1. Any portion of the consideration which the slayer may have transferred or dissipated; and
   2. Any difference between the actual value of the property and the amount of the consideration paid for the property.

History. Acts 2013, No. 1351, § 1.

18-4-207. Remedies supplemental.

This subchapter supplements:

1. The common law of the State of Arkansas as it exists on August 16, 2013, unless application of the common law would be inconsistent with this subchapter; and
2. Section 28-11-204.

History. Acts 2013, No. 1351, § 1.

18-4-208. Effect on existing proceedings.

This subchapter applies to a civil or criminal action that is pending at the time of August 16, 2013, in which a final, nonappealable judgment has not been entered.

History. Acts 2013, No. 1351, § 1.

Subchapter 1 — Ownership and Possession

Effective Dates. Acts 1874, No. 16, § 3: effective on passage.

Acts 2019, No. 496, § 3: Mar. 18, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act is necessary to prevent claims of liability against parties that are exempt from liability as a matter of public policy of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

18-11-101. Capacity of aliens to take and transfer lands.

1. All aliens shall be capable of taking, by deed or will, lands and tenements in fee simple, or other less estate, and of holding, aliening, and devising them.
2. Upon the death of any alien having title by purchase or descent, according to this section, to any lands or tenements, the lands and tenements shall descend and pass as if the alien were a citizen of the United States.
3. It shall be no objection to the husband, widow, or kindred of an alien, or any citizen deceased, taking lands and tenements by virtue of the laws of this state regulating the distribution of estates of intestates, that they are aliens.

History. Rev. Stat., ch. 7, § 1; Acts 1874, No. 16, § 1, p. 60; C. & M. Dig., § 258; Pope's Dig., § 272; A.S.A. 1947, § 50-301.

Cross References. Possession, enjoyment, or descent of property, prohibition against distinction by law between resident aliens and citizens, Ark. Const., Art. 2, § 20.

18-11-102. Payment of taxes on unimproved or unenclosed land deemed possession.

Unimproved and unenclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he or she has color of title thereto, but no person shall be entitled to invoke the benefit of this section unless he or she, and those under whom he or she claims, shall have paid the taxes for at least seven (7) years in succession.

History. Acts 1899, No. 66, § 1, p. 117; C. & M. Dig., § 6943; Pope's Dig., § 8920; A.S.A. 1947, § 37-102.

18-11-103. Payment of taxes on wild and unimproved land — Presumption of color of title.

Payment of taxes on wild and unimproved land in this state by any person or his or her predecessor in title for a period of fifteen (15) consecutive years shall create a presumption of law that the person, or his or her predecessor in title, held color of title to the land prior to the first payment of taxes made as stated and that all the payments were made under color of title.

History. Acts 1929, No. 199, § 1; Pope's Dig., §§ 8921, 13601; A.S.A. 1947, § 37-103.

18-11-104. Right of possession not impaired by descent cast.

The right of any person to the possession of any lands or tenements shall not be impaired or affected by a descent cast in consequence of the death of any person in possession of the estate.

History. Rev. Stat., ch. 91, § 3; C. & M. Dig., § 6945; Pope's Dig., § 8923; A.S.A. 1947, § 37-105.

18-11-105. Surface rights of cotenants or tenants-in-common — Waiver.

1. All right or claim of right, title, interest, equity, and estate by a cotenant or tenant-in-common, including minors, to surface rights in real property, which the cotenant or tenant-in-common is not possessing, having been created by intestate descent and distribution or under the testate distribution of those surface rights by the cotenant or tenant-in-common's grantor, shall be conclusively deemed waived, abandoned, and forfeited to the other person or legal entity, holding title as cotenant, or tenant-in-common, and in possession, on the condition that:
   1. The cotenant or tenant-in-common, not in possession, and whose whereabouts are unknown, has made no written demand upon the cotenant or tenant-in-common, in possession, for rents, profits, or possession of the surface rights for a twenty-year period; and
   2. 1. 1. After the expiration of the twenty-year period, whether commencing before or after July 15, 1991, the cotenant or tenant-in-common, in possession, publishes notice in a newspaper of general circulation in the county in which the surface rights are located, of an intent to oust the cotenant or tenant-in-common, not in possession, from the lands described in the notice, as a result of the abandonment and waiver referred to in this subsection.
         2. The notice shall be published once a week for two (2) consecutive weeks.
      2. 1. Not less than ninety (90) days nor more than three hundred sixty-five (365) days following the last date of publication referred to in this section, the cotenant or tenant-in-common, in possession, may maintain an action to quiet title in the county in which the surface rights are situated and located, with the rights or claim of right of the cotenant or tenant-in-common, not in possession, having been conclusively deemed waived, abandoned, and forfeited to the person or legal entity, holding as cotenant, or tenant-in-common, and in possession thereof.
         2. Upon successful prosecution of the action to quiet title, the cotenant, or tenant-in-common, in possession, shall hold the surface rights free and clear of any claim or title in the cotenant or tenant-in-common, including minors, not in possession.
2. The following form of notice shall be sufficient, for purposes of this section:
3. For purposes of the action to quiet title referred to in this section, an affidavit or other evidence denying the receipt of written demand referred to in subdivision (a)(1) of this section, above, and an affidavit or other evidence affirming the publication of notice of intent to oust referred to in subdivision (a)(2) of this section, shall be sufficient evidence to sustain the plaintiff's burden of proof in the action, with no other evidence necessary. It shall not be necessary that the notice or the action to quiet title name the missing or absent cotenant or tenant-in-common, not in possession, as those missing persons may be collectively referred to as “missing or absent claimants” to the lands described in the notice or action.
4. 1. This section shall not apply to mineral rights or other subsurface rights held by cotenants or tenants-in-common.
   2. For purposes of this section, cotenants or tenants-in-common shall include joint tenants.

“ (Name) , the owner and possessor of the surface rights to the real property described below, do hereby state, affirm and give notice to any missing or absent claimants, whose whereabouts are unknown, to said real property of my intent to oust said missing or absent claimant, who has made no written claim for rents, profits or possession of said real property during the last twenty (20) years and intend to institute an action to quiet title to such real property. The real property referred to is described as follows: Subscribed and sworn to before me this day of , . (Seal)”

Click to view form.

History. Acts 1991, No. 660, §§ 1-3.

18-11-106. Adverse possession.

1. To establish adverse possession of real property, the person and those under whom the person claims must have actual or constructive possession of the real property being claimed and have either:
   1. 1. Held color of title to the real property for a period of at least seven (7) years and during that time paid ad valorem taxes on the real property.
      2. For purposes of this subdivision (a)(1), color of title may be established by the person claiming adversely to the true owner by paying the ad valorem taxes for a period of at least seven (7) years for unimproved and unenclosed land or fifteen (15) years for wild and unimproved land, provided the true owner has not also paid the ad valorem taxes or made a bona fide good faith effort to pay the ad valorem taxes which were misapplied by the state and local taxing authority; or
   2. Held color of title to real property contiguous to the real property being claimed by adverse possession for a period of at least seven (7) years and during that time paid ad valorem taxes on the contiguous real property to which the person has color of title.
2. 1. The requirements of subsection (a) of this section with regard to payment of ad valorem taxes shall not apply to a person or entity exempt from the payment of ad valorem taxes by law.
   2. For the person or entity exempt from the payment of ad valorem taxes to establish adverse possession of real property, the person or entity must have:
      1. Actual or constructive possession of the real property being claimed and held color of title to the real property for a period of at least seven (7) years; or
      2. Actual or constructive possession of the real property being claimed and held color of title to the real property contiguous to the real property being claimed by adverse possession for a period of at least seven (7) years.
3. The requirements of this section are in addition to all other requirements for establishing adverse possession.
4. 1. This section shall not repeal any requirement under existing case law for establishing adverse possession but shall be supplemental to existing case law.
   2. This section shall not diminish the presumption of possession of unimproved and unenclosed land created under § 18-11-102 by payment of taxes for seven (7) years under color of title or the presumption of color of title on wild and unimproved land created under § 18-11-103 by payment of taxes for fifteen (15) consecutive years.

History. Acts 1995, No. 776, § 1; 2005, No. 84, § 1.

Amendments. The 2005 amendment inserted present (b); and redesignated the remaining subsections accordingly.

18-11-107. Required disclosure by closing agent — Definitions.

1. As used in this section:
   1. “Agricultural operation” means an agricultural, silvicultural, or aquacultural facility or pursuit conducted, in whole or in part, including:
      1. The care and production of livestock and livestock products, poultry and poultry products, apiary products, and plant and animal production for nonfood uses;
      2. The planting, cultivating, harvesting, and processing of crops and timber; and
      3. The production of any plant or animal species in a controlled freshwater or saltwater environment; and
   2. “Closing agent” means a person that facilitates a closing.
2. A closing agent shall provide a written disclosure statement before or at the time of closing a real estate transaction that makes a buyer of real property aware that:
   1. The real property may be located within or near a rural area; and
   2. Agricultural operations on real property nearby are protected under § 2-4-101 et seq. and shall not be found to be a public or private nuisance if the agricultural operation employs methods or practices that are commonly or reasonably associated with agricultural production.
3. A cause of action shall not arise against and liability shall not be imposed upon a closing agent or a closing agent's employer due to a failure to provide a buyer of real property the written disclosure statement required under subsection (b) of this section.

History. Acts 2019, No. 515, § 1.

18-11-108. Liability for criminal acts.

1. A criminal act committed on real property by a third party is not foreseeable in any circumstance by a person having an interest in the real property, including without limitation:
   1. An owner;
   2. A landlord;
   3. A tenant; or
   4. A lienholder.
2. Except as provided in subsection (c) of this section, a person having an interest in real property shall not be liable to a licensee, invitee, trespasser, employee, agent, or any other person for the unforeseeable criminal acts of a third party committed on his or her real property.
3. This section does not:
   1. Establish or repeal the doctrine of infra hospitium, which means in the care or custody of the innkeeper, or change the liability of an innkeeper or the operator of a public lodging; and
   2. Expand or reduce the obligation or liabilities of an employer or principal for criminal acts committed under the doctrine of respondeat superior, which makes the principal liable to a third party for any loss caused by the principal's agent.

History. Acts 2019, No. 496, § 2.

A.C.R.C. Notes. Acts 2019, No. 496, § 1, provided: “Legislative intent. The General Assembly finds that:

“(1) Owners of real property, landlords, tenants, or others having an interest in real property do not have a duty to protect an employee or tenant on the real property from the criminal acts of third parties as held by the Court of Appeals in Park Plaza Mall CMBS, LLC v. Powell, 2018 Ark. App. 48.;

“(2) Criminal acts committed by third parties are not reasonably foreseeable; and

“(3) The existing public policy of the State of Arkansas is that the owners of real property, landlords, tenants, or others having an interest in real property do not have a duty to protect or safeguard an employee or tenant against the criminal acts of third parties”.

Subchapter 2 — Property of Religious Societies

18-11-201. Trustees to hold in perpetual succession.

All lands and tenements, not exceeding forty (40) acres, that have been, or hereafter may be, conveyed by purchase to any person as trustee in trust for the use of any religious society within this state, either for a meeting house, burying ground, campground, or residence for their preacher, shall descend with the improvements and appurtenances in perpetual succession in trust to the trustee or trustees as shall, from time to time, be elected or appointed by any religious society, according to the rules and regulations of the society.

History. Rev. Stat., ch. 125, § 1; C. & M. Dig., § 8637; Pope's Dig., § 11368; A.S.A. 1947, § 50-201.

Cross References. Rule against perpetuities inapplicable to trust funds for perpetual care of burial lots, § 20-17-904.

18-11-202. Authority of trustees.

The trustee or trustees of any religious society shall have the same power to defend and prosecute suits at law or in equity and do all other acts for the protection, improvement, and preservation of trust property as individuals may do in relation to their individual property.

History. Rev. Stat., ch. 125, § 2; C. & M. Dig., § 8638; Pope's Dig., § 11369; A.S.A. 1947, § 50-202.

Subchapter 3 — Recreational Uses — Owner's Liability

18-11-301. Purpose.

The purpose of this subchapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

History. Acts 1965, No. 51, § 1; A.S.A. 1947, § 50-1101.

18-11-302. Definitions.

As used in this subchapter:

1. “Aviation” means taking off, flying, or landing an airplane or aircraft;
2. “Charge” means an admission fee for permission to go upon or use the land, but does not include:
   1. The sharing of game, fish, or other products of recreational use; or
   2. Contributions in kind, services, or cash paid to reduce or offset costs and eliminate losses from recreational use;
3. “Land” means land, roads, water, watercourses, airstrips, private ways and buildings, structures, and machinery or equipment when attached to the realty;
4. 1. “Malicious” means an intentional act of misconduct that the actor is aware is likely to result in harm.
   2. “Malicious” does not mean negligent or reckless conduct;
5. “Owner” means the possessor of a fee interest, a tenant, lessee, holder of a conservation easement as defined in § 15-20-402, occupant, or person in control of the premises;
6. “Public” and “person” includes the Young Men's Christian Association, Young Women's Christian Association, Boy Scouts of America, Girl Scouts of the United States of America, Boys and Girls Clubs of America, churches, religious organizations, fraternal organizations, and other similar organizations; and
7. “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof:
   1. Hunting;
   2. Fishing;
   3. Swimming;
   4. Boating;
   5. Camping;
   6. Picnicking;
   7. Hiking;
   8. Pleasure driving;
   9. Nature study;
   10. Water skiing;
   11. Winter sports;
   12. Spelunking;
   13. Aviation;
   14. Viewing or enjoying historical, archeological, scenic, or scientific sites; and
   15. Any other activity undertaken for exercise, education, relaxation, or pleasure on land owned by another.

History. Acts 1965, No. 51, § 2; 1983, No. 168, §§ 1, 2; 1985, No. 959, § 1; A.S.A. 1947, § 50-1102; Acts 1991, No. 485, § 1; 2007, No. 677, § 1; 2013, No. 84, § 1; 2015, No. 1112, § 1.

A.C.R.C. Notes. Acts 2015, No. 1112, § 2, provided: “Applicability.

“(a) This act applies to all causes of action that accrue on or after the effective date of this act.

“(b) This act does not apply retroactively to an action filed or a cause of action that accrued before the effective date of this act.”

Amendments. The 2013 amendment inserted (1) and redesignated the remaining subdivisions accordingly; inserted “airstrips” in present (3); and inserted present (6)(M) [now (7)(M)] and redesignated the remaining subdivisions accordingly.

The 2015 amendment added the definition for “Malicious”.

18-11-303. Construction.

Nothing in this subchapter shall be construed to:

1. Create a duty of care or ground of liability for injury to persons or property; or
2. Relieve any person using the land of another for recreational purposes from any obligation which he or she may have in the absence of this subchapter to exercise care in his or her use of the land and in his or her activities thereon or relieve any person from the legal consequences of failure to employ such care.

History. Acts 1965, No. 51, § 7; A.S.A. 1947, § 50-1107.

18-11-304. Duty of care.

Except as specifically recognized by or provided in § 18-11-307, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.

History. Acts 1965, No. 51, § 3; A.S.A. 1947, § 50-1103.

18-11-305. Owner's immunity from liability.

Except as specifically recognized by or provided in § 18-11-307, an owner of land who, either directly or indirectly, invites or permits without charge any person to use his or her property for recreational purposes does not thereby:

1. Extend any assurance that the lands or premises are safe for any purpose;
2. Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed;
3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons; or
4. Assume responsibility for or incur liability for injury to the person or property caused by any natural or artificial condition, structure, or personal property on the land.

History. Acts 1965, No. 51, § 4; 1983, No. 168, § 3; A.S.A. 1947, § 50-1104.

18-11-306. Land leased to state or political subdivision — Conservation easement.

Unless otherwise agreed in writing, the provisions of §§ 18-11-304 and 18-11-305 are applicable to the duties and liability of:

1. An owner of land leased to the state or a political subdivision of the state for recreational purposes;
2. An owner of an interest in the real property burdened by a conservation easement as defined in § 15-20-402; or
3. A holder of a conservation easement as defined in § 15-20-402.

History. Acts 1965, No. 51, § 5; A.S.A. 1947, § 50-1105; Acts 2007, No. 677, § 2.

18-11-307. Exceptions to owner's immunity.

Nothing in this subchapter limits in any way liability which otherwise exists:

1. For malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous; and
2. For injury suffered in any case in which the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state, a subdivision thereof, or to a third person, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section.

History. Acts 1965, No. 51, § 6; 1983, No. 168, § 4; A.S.A. 1947, § 50-1106.

Subchapter 4 — Posted Land

Publisher's Notes. Former subchapter 4, concerning posted land, was repealed by Acts 1989, No. 35, § 9. The former subchapter was derived from the following sources:

18-11-401. Acts 1985, No. 1090, § 6; A.S.A. 1947, §§ 41-2004n, 50-1102n — 50-1107n.

18-11-402. Acts 1985, No. 1090, § 1; A.S.A. 1947, § 41-2060.

18-11-403. Acts 1985, No. 1090, § 3; A.S.A. 1947, § 41-2062.

18-11-404. Acts 1985, No. 1090, § 2; A.S.A. 1947, § 41-2061.

18-11-405. Acts 1985, No. 1090, §§ 4, 5; A.S.A. 1947, §§ 41-2063, 41-2064.

Cross References. Trespass on posted lands, § 5-39-301 et seq.

Unlawful to install or maintain booby traps, § 5-73-126.

18-11-401. Purpose.

It is the intent and purpose of this subchapter to clarify the posting law of this state. However, this subchapter does not set forth the exclusive method by which a property owner or lessee may notify persons to not enter or remain upon their property, nor does this subchapter repeal or modify § 18-11-301 et seq., which limits the liability of landowners to persons gratuitously utilizing their property for recreational purposes, nor does this subchapter repeal or modify § 5-39-203 which is the provision of the Arkansas Criminal Code relating to trespass.

History. Acts 1989, No. 35, § 7.

Publisher's Notes. The Arkansas Criminal Code referred to in this section is codified throughout Title 5. See Publisher's Note to § 5-1-101.

Cross References. Criminal trespass, § 5-39-203.

Recreational uses — owner's liability, § 18-11-301 et seq.

18-11-402. Definition.

For the purposes of this subchapter, the term “recreational purposes” includes, but is not limited to, any of the following, or any combination thereof:

1. Hunting;
2. Fishing;
3. Trapping;
4. Swimming;
5. Boating;
6. Camping;
7. Picnicking;
8. Hiking;
9. Pleasure driving;
10. Nature study;
11. Water skiing;
12. Winter sports; and
13. Viewing or enjoying historical, archeological, scenic, or scientific sites.

History. Acts 1989, No. 35, § 1.

18-11-403. Unlawful entry upon land — Penalty.

1. 1. No person shall enter for recreational purposes upon real property posted pursuant to this subchapter without written permission of the owner or lessee of the real property.
   2. It shall be unlawful for any person to enter upon any real property posted under the provisions of this subchapter without the written consent of the owner or lessee of the real property.
   3. 1. If land posted pursuant to this subchapter becomes flooded above the ordinary high watermark but the signs or paint marks are still visible, it is unlawful for any person to enter within the boundaries of the posted area without the written consent of the owner or lessee of the real property.
      2. For purposes of subdivision (a)(3)(A) of this section, “ordinary high watermark” means the line delimiting the bed of a stream from its bank, i.e., that line at which the presence of water is continued for such length of time as to mark upon the soil and vegetation a distinct character.
   4. However, it shall be an affirmative defense to prosecution under this subchapter that:
      1. Consent was given by a person holding himself or herself out to be the owner, lessee, or agent of the owner or lessee of the property;
      2. The person was a guest or invitee;
      3. The person was required to enter upon the premises for business reasons or for health or safety reasons; or
      4. The person was authorized by law to enter upon land.
2. This section shall not apply to a law enforcement officer in the line of duty.
3. Any person who knowingly enters the real property without written consent shall be guilty of a Class B misdemeanor.

History. Acts 1989, No. 35, §§ 2, 6; 1997, No. 806, § 1; 1999, No. 1029, § 8.

Amendments. The 1999 amendment added (a)(4)(B)-(a)(4)(D); inserted present (b); redesignated former (b) as present (c); and made stylistic and punctuation changes.

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

18-11-404. Methods of posting — Forest lands.

The owner or lessee of any forest land may post the land by any of the following methods:

1. 1. By placing signs around the boundaries of the property at points no more than one hundred feet (100') apart and at each point of entry.
   2. The signs shall bear the words “posted” or “no trespassing”, or both, in letters at least four inches (4") high and shall be so placed as to be readily visible to any person approaching the property;
2. 1. By placing identifying paint marks on trees or posts around the area to be posted.
   2. Each paint mark shall be a vertical line of at least eight inches (8") in length and the bottom of the mark shall be no less than three feet (3') nor more than five feet (5') high.
   3. Such paint marks shall be placed no more than one hundred feet (100') apart and shall be readily visible to any person approaching the property.
   4. 1. The type and color of the paint to be used for posting shall be prescribed by rule by the Arkansas Forestry Commission.
      2. The commission shall not select a color that is presently being used by the timber industry in Arkansas to mark land lines or property lines; or
3. By enclosing the property with a fence sufficient under § 2-39-101 et seq.

History. Acts 1989, No. 35, § 3; 1999, No. 1029, § 9; 2019, No. 315, § 1683.

Amendments. The 1999 amendment substituted “any” for “either” in the introductory language; added (3); and made stylistic changes.

The 2019 amendment substituted “rule” for “regulation” in (2)(D)(i).

18-11-405. Methods of posting — Property other than forest.

The owner or lessee of any real property other than forest land, including cultivated land, orchards, pasture land, impoundments, or other real property, may post such real property by any of the following methods:

1. 1. By placing signs around the boundaries of the property at points no more than one thousand feet (1,000') apart and at each point of entry.
   2. The signs shall bear the words “posted” or “no trespassing”, or both, in letters at least four inches (4") high and shall be so placed as to be readily visible to any person approaching the property;
2. 1. By placing identifying paint marks on posts around the area to be posted.
   2. Each paint mark shall be a vertical line of at least eight inches (8") in length, and the bottom of the mark shall be no less than three feet (3') nor more than five feet (5') high.
   3. Such paint marks shall be placed no more than one thousand feet (1,000') apart and at each point of entry and shall be readily visible to any person approaching the property.
   4. 1. The type and color of the paint to be used for posting shall be prescribed by rule by the Arkansas Forestry Commission.
      2. The commission shall not select a color that is presently being used by the timber industry in Arkansas to mark land lines or property lines; or
3. By enclosing the property with a fence sufficient under § 2-39-101 et seq.

History. Acts 1989, No. 35, § 3; 1999, No. 1029, § 10; 2019, No. 315, § 1684.

Amendments. The 1999 amendment substituted “any” for “either” in the introductory language; substituted “boundaries” for “boundries” in (1); added (3); and made stylistic changes.

The 2019 amendment substituted “rule” for “regulation” in (2)(D)(i).

18-11-406. Color of paint — Unlawful posting — Exception.

1. 1. The color of paint prescribed by the Arkansas Forestry Commission for posting purposes shall not be used on trees or posts for any other purpose.
   2. Any person who knowingly paints such color on any tree or post for any purpose other than posting real property pursuant to this subchapter shall be guilty of a Class B misdemeanor.
2. 1. It shall be unlawful for any person to post any lands which the person does not own or lease except with the written permission of the owner or lessee.
   2. Any person violating this section shall be guilty of a Class B misdemeanor.

History. Acts 1989, No. 35, §§ 4, 5; 2011, No. 271, § 1.

Amendments. The 2011 amendment substituted “Arkansas” for “State” in (a)(1).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

Subchapter 5 — Residential Restrictive Covenants

Effective Dates. Acts 1999, No. 1380, § 7: Apr. 13, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that there is an immediate and urgent need for revision of the current state law concerning enforcement of interior setback restrictions in residential restrictive covenants. Recent court decisions appear to hold that any violation of such an interior setback restriction, no matter how slight, requires that the structure or part thereof built in violation of the setback restriction be removed. Such an interpretation of the law regarding interior setback restrictions in residential restrictive covenants will result in the needless destruction of property, with resultant displacement of homeowners and their families and substantial expenditures to correct setback restriction violations which, in actuality, cause little or no damage to adjacent land owners. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

18-11-501. Discretionary enforcement of residential restrictive covenants.

Circuit judges are authorized to exercise their discretion to balance the equities between or among parties when considering whether to award injunctions or damages in cases involving encroachment of interior setback lines in residential subdivision restrictive covenants.

History. Acts 1999, No. 1380, § 1.

18-11-502. Attorney's fees.

If the trial judge makes a finding that the violation of an interior setback restriction is de minimis, no attorney's fees shall be awarded to any party seeking to enforce the setback restriction.

History. Acts 1999, No. 1380, § 2.

18-11-503. Applicability of subchapter.

The provisions of this subchapter shall apply to cases currently pending in the courts of Arkansas as well as those filed subsequent to April 13, 1999.

History. Acts 1999, No. 1380, § 3.

Subchapter 6 — Municipal Water Supply Purposes — Owner's Immunity

Effective Dates. Acts 2005, No. 1977, § 2: Apr. 11, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is nothing currently in the law that grants immunity from liability to persons who make property available for municipal water supply purposes; that this act provides sound public policy for the State of Arkansas; and that this act is immediately necessary because the state should encourage property owners to make property available for municipal water supply purposes. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

18-11-601. Purpose.

The purpose of this subchapter is to encourage owners of land to make land and water areas available to municipal governments for municipal water supply purposes by limiting the liability of landowners toward persons entering on the land and water areas.

History. Acts 2005, No. 1977, § 1.

18-11-602. Definitions.

As used in this subchapter:

1. “Land” means real property, roads, water, watercourses, private ways, and buildings, structures, and machinery or equipment when attached to the real property;
2. “Municipal water supply purpose” includes, but is not imited to, any of the following, separately or in any combination:
   1. Construction or maintenance of a water intake structure;
   2. Maintenance of a water intake source;
   3. Research concerning a water intake source or structure; and
   4. Other activity associated with a water intake source or structure; and
3. “Owner” means the possessor of a fee interest or a tenant, lessee, occupant, or person in control of the land.

History. Acts 2005, No. 1977, § 1.

18-11-603. Construction.

Nothing in this subchapter shall be construed to:

1. Create a duty of care or a basis for liability for injury to persons or property; or
2. Relieve any person using the land of another for a municipal water supply purpose from any obligation that he or she may have in the absence of this subchapter to exercise care in his or her use of the land and in his or her activities on the land or relieve any person from the legal consequences of failure to employ such care.

History. Acts 2005, No. 1977, § 1.

18-11-604. Duty of care.

Except as specifically provided in § 18-11-607, an owner owes no duty of care to:

1. Keep his or her land safe for entry or use by another for a municipal water supply purpose; or
2. Give any warning of a dangerous condition, use, structure, or activity on his or her land to a person entering for a municipal water supply purpose.

History. Acts 2005, No. 1977, § 1.

18-11-605. Owner's immunity from liability.

Except as specifically provided in § 18-11-607, an owner who, either directly or indirectly, invites or permits any person to use his or her land for a municipal water supply purpose does not:

1. Extend any assurance that the land is safe for any purpose;
2. Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed;
3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of the person; or
4. Assume responsibility for or incur liability for injury to the person or property caused by any natural or artificial condition, structure, or personal property on the land.

History. Acts 2005, No. 1977, § 1.

18-11-606. Land leased to municipality.

Unless otherwise agreed to in writing, the provisions of §§ 18-11-604 and 18-11-605 shall be deemed the sole source of the duties and liability of an owner who leased or otherwise provided land to a municipality for a municipal water supply purpose.

History. Acts 2005, No. 1977, § 1.

18-11-607. Exceptions to owner's immunity.

Nothing in this subchapter limits in any way liability that otherwise exists for malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous.

History. Acts 2005, No. 1977, § 1.

Subchapter 1 — General Provisions

Cross References. Deeds recorded in recorder's office, § 14-15-401 et seq.

Records where multiple judicial districts, § 14-15-901.

Validation of deeds, § 16-47-108.

Effective Dates. Acts 1917, No. 332, § 2: Mar. 24, 1917. Emergency declared.

18-12-101. Definition and applicability.

1. The term “real estate” as used in this act shall be construed as co-extensive in meaning with “lands, tenements, and hereditaments” and as embracing all chattels real.
2. This act shall not be construed so as to embrace last wills and testaments.

History. Rev. Stat., ch. 31, §§ 7, 8; C. & M. Dig., §§ 1501, 1502; Pope's Dig., §§ 1810, 1811; A.S.A. 1947, §§ 50-409, 50-410.

Meaning of “this act”. Rev. Stat., ch. 31, codified as §§ 16-47-101, 16-47-103 — 16-47-106, 16-47-110, 18-12-101, 18-12-102, 18-12-104, 18-12-105, 18-12-201, 18-12-203 — 18-12-206, 18-12-209, 18-12-301, 18-12-402, 18-12-501, 18-12-502, 18-12-601 — 18-12-603.

18-12-102. Transfer by deed — Warranty.

1. All lands, tenements, and hereditaments may be aliened and possession thereof transferred by deed without livery of seizin.
2. The words, “grant, bargain and sell” shall be an express covenant to the grantee, his or her heirs, and assigns that the grantor is seized of an indefeasible estate in fee simple, free from encumbrance done or suffered from the grantor, except rents or services that may be expressly reserved by the deed, as also for the quiet enjoyment thereof against the grantor, his or her heirs, and assigns and from the claim and demand of all other persons whatever, unless limited by express words in the deed.
3. The grantee, his or her heirs, or assigns, may, in any action, assign breaches as if such covenants were expressly inserted.
4. As between the grantor and grantee, neither the statutory nor general express covenant of warranty against encumbrances shall be held to cover any taxes or assessments of any improvement district of any kind, whether formed under general statutes authorizing the assessment of lands for local improvements of any kind or whether the improvement district is formed by public or private act of the General Assembly. The lien for any such local assessment or tax shall run with the land and be assumed by the grantee, and the grantee shall pay any and all installments of the tax or assessment becoming due after the execution and delivery of the deed, unless otherwise expressly provided.

History. Rev. Stat., ch. 31, §§ 1, 2; Acts 1917, No. 332, § 1, p. 1671; C. & M. Dig., §§ 1495, 1496; Pope's Dig., §§ 1795, 1796; A.S.A. 1947, §§ 50-401, 50-402.

18-12-103. Restrictive covenants — Definition.

1. As used in this section, “restrictive covenant” means a restriction on the use or development of real property regardless of whether the restriction is created by a covenant in a deed or bill of assurance, or by any other instrument.
2. An instrument creating a restrictive covenant is not effective to restrict the use or development of real property unless the instrument purporting to restrict the use or development of the real property is executed by the owners of the real property and recorded in the office of the recorder of the county in which the property is located.
3. If the instrument creating a restrictive covenant contains separate sections stating the duration of the covenant and the requirements for amending the covenant, the section or sections stating the duration of the covenant shall be read independently of the section or sections stating the requirements for amending the covenant so that the duration of the covenant does not limit the ability to amend a restrictive covenant at any time.

History. Acts 1965, No. 395, § 1; A.S.A. 1947, § 50-427; Acts 2011, No. 185, § 2.

A.C.R.C. Notes. Acts 2011, No. 185, § 1, provided:

“Findings and legislative intent.

“(a) The General Assembly finds that:

“(1) The decision of the Arkansas Court of Appeals in Rausch Coleman Homes, LLC v. Brech, 2009 Ark. App. 225, 303 S.W.3d 456 (Ark. App. 2009) unduly restricts the use and development of real property; and

“(2) It is in the best interests of the people of the State of Arkansas to foster the ability of landowners to amend private covenants to obtain the best possible use of the landowners' real property.

“(b) It is the intent of the General Assembly by passing this act to encourage and promote the use and economic development of land in the State of Arkansas by clarifying the requirements for amending covenants restricting the use or development of real property.”

Amendments. The 2011 amendment rewrote the section.

18-12-104. Execution of deeds.

Deeds and instruments of writing for the conveyance of real estate shall be executed in the presence of two (2) disinterested witnesses or, in default thereof, shall be acknowledged by the grantor in the presence of two (2) such witnesses, who shall then subscribe the deed or instrument in writing for the conveyance of the real estate. When the witnesses do not subscribe the deed or instrument of writing as described in this section at the time of the execution thereof, the date of their subscribing it shall be stated with their signatures.

History. Rev. Stat., ch. 31, § 12; C. & M. Dig., § 1515; Pope's Dig., § 1824; A.S.A. 1947, § 50-417.

18-12-105. Estate of fee simple presumed.

The term “heirs”, or other words of inheritance, shall not be necessary to create or convey an estate in fee simple, but all deeds shall be construed to convey a complete estate of inheritance in fee simple unless expressly limited by appropriate words in the deed.

History. Rev. Stat., ch. 31, § 3; C. & M. Dig., § 1497; Pope's Dig., § 1797; A.S.A. 1947, § 50-403.

18-12-106. Joint tenants with right of survivorship.

1. Interests in real property may be conveyed to two (2) or more persons, regardless of their relationship to each other, as joint tenants with right of survivorship.
2. Any person who owns an interest in real property may convey that interest or any portion thereof to himself or herself and one (1) or more other persons, regardless of their relationship to each other, as joint tenants with right of survivorship.
3. Furthermore, all conveyances of real property made prior to July 15, 1991, and which clearly intended that the interests were conveyed as joint tenancy with right of survivorship even though the grantees were not husband and wife shall be deemed to have created joint tenancies with right of survivorship.

History. Acts 1991, No. 56, § 1.

18-12-107. Transfer fee covenants prohibited — Definitions.

1. As used in this section:
   1. “Association” means a nonprofit, mandatory-membership organization:
      1. Comprised of owners of homes, condominiums, units in a horizontal property regime, cooperatives, manufactured homes, or any other interest in real property; and
      2. Created pursuant to declaration, covenant, bill of assurance, master deed, or other applicable law;
   2. “Licensee” means a licensee as defined in § 17-42-103;
   3. “Transfer” means the sale, gift, grant, conveyance, assignment, inheritance, or other transfer of an ownership interest in real property located in this state;
   4. 1. “Transfer fee” means a fee or charge that obligates a transferee or transferor of real property to pay a fee or charge to a third person:
         1. Upon a transfer of an interest in the real property; or
         2. For permitting the transfer.
      2. “Transfer fee” does not include a tax, assessment, fee, or charge imposed by a governmental authority under applicable law; and
   5. 1. “Transfer fee covenant” means a provision in a recorded document or an unrecorded document imposing a transfer fee that purports to run with the land or bind current owners or successors in title to real property located in this state.
      2. “Transfer fee covenant” includes a lien or claim of lien to secure payment of a transfer fee.
      3. “Transfer fee covenant” does not include a provision:
         1. Of a purchase contract, option, mortgage, security agreement, real property listing agreement, or other agreement that obligates a party to the agreement to pay another party to the agreement as full or partial consideration for the agreement or for a waiver of rights under the agreement an amount determined by the agreement if the amount is:
            1. Payable on a one-time basis only upon the next transfer of an interest in the specified real property and, once paid, shall not bind successors in title to the property;
            2. A loan assumption fee or other fee charged in connection with a transfer by a lender holding or obtaining a lien on the transferred real property; or
            3. A fee or commission paid to a licensee for services rendered in connection with a transfer of the property for which the fee or commission is paid;
         2. In a deed, memorandum, or other document recorded for the purpose of providing record notice of an agreement described in subdivision (a)(5)(C)(i) of this section;
         3. Of a document requiring payment of a fee or charge to an association to be used exclusively for the purposes authorized in the document, as long as no portion of the fee is required to be passed through to a third party designated or identifiable by description in the document or another document referenced in the document; or
         4. Of a document affecting real property that requires payment of a fee or charge to an organization described in § 501(c)(3) or § 501(c)(4) of the Internal Revenue Code as it existed on January 1, 2011, to be used exclusively to support:
            1. Cultural, educational, charitable, recreational, environmental, conservational, or other similar activities benefiting the real property; or
            2. The community in which the property is located.
2. 1. A transfer fee covenant recorded with respect to real property in this state after July 27, 2011:
      1. Does not run with the title to the real property; and
      2. Is not binding upon or enforceable at law or in equity against:
         1. The real property; or
         2. A subsequent owner, purchaser, or mortgagee of an interest in the real property.
   2. This section does not validate a transfer fee covenant recorded in this state before July 27, 2011.

History. Acts 2011, No. 145, § 1.

U.S. Code. Sections 501(c)(3) and 501(c)(4) of the Internal Revenue, referred to in this section, are codified as 26 U.S.C. § 501(c)(3) and (4).

18-12-108. Scrivener's affidavits — Definition.

1. As used in this section, “scrivener's affidavit” means a sworn and acknowledged affidavit relating to:
   1. The identification, marital status, heirship, relation, death, or the time of death of a person who is a party to an instrument affecting the title to real property;
   2. The identification of a corporation or other legal entity that is a party to an instrument affecting the title to real property; or
   3. The legal description to real property.
2. A scrivener's affidavit may be executed and recorded by a:
   1. Licensed attorney who prepared the original instrument;
   2. Licensed attorney who represents a party to the original instrument;
   3. Party to the original instrument if the party prepared the original instrument; or
   4. Current employee of a title company that completed the form of the original instrument.
3. A scrivener's affidavit shall:
   1. Be sworn to and acknowledged before a person authorized to administer an oath under the laws of this state;
   2. Conspicuously identify in its title that it is a “Scrivener's Affidavit”; and
   3. Contain the following information concerning the original instrument:
      1. The name of the person or entity that completed or prepared the original instrument;
      2. The names of all parties to the original instrument;
      3. The recording information, including the recording date of the original instrument; and
      4. A brief description of each error that the scrivener's affidavit is designed to correct.
4. A scrivener's affidavit may be prepared in substantially the following form:
5. A scrivener's affidavit that complies with this section in substantially the form provided by subsection (d) of this section or in a custom form shall be:
   1. Recorded by the county recorder in the land records of the county where the real property is located;
   2. Indexed by the county recorder in the general index under the names of the original parties to the instrument as they are identified in the scrivener's affidavit; and
   3. Admissible as evidence to the same extent as a deed or other instrument recorded pursuant to § 18-12-201 et seq. in an action involving the instrument to which it relates or the title to the real property affected by the instrument.
6. 1. Except as provided in subdivisions (f)(2) and (3) of this section, notice of the corrective information provided by the scrivener's affidavit is effective at the time the scrivener's affidavit is recorded.
   2. If an error contained in a scrivener's affidavit is of an obvious nature, notice of the corrective information provided by the scrivener's affidavit is effective at the time the original instrument being corrected was recorded.
   3. Subdivision (f)(2) of this section does not apply to a bona fide purchaser for value of real property.

“SCRIVENER'S ERROR AFFIDAVIT KNOW ALL PERSONS BY THESE PRESENTS that: [Name] prepared or completed the form of a [Type of instrument] with regard to a conveyance from [Name(s)] as [grantor, mortgagor, etc.] to [Name(s)] as [grantee, mortgagee, etc.] . The [Type of instrument] which was recorded in the records of County, Arkansas, on [Date] , as Instrument Number [in Book at Page ] contained a scrivener's error with regard to the [reason for correction(s)] . The aforementioned [Type of instrument] should reflect that the [Type of instrument] read as follows: [Insert correction(s)] . Further affiant sayeth naught. WITNESS my hand and seal on this day of , 20 . [Signature] Name printed: ACKNOWLEDGMENT STATE OF } }ss. COUNTY OF } On this day of day of , 20 , before me, a Notary Public in and for the said county and state, personally appeared , to me well known, and acknowledged that [he/she] had executed the foregoing document for the consideration, uses, and purposes therein mentioned and set forth. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public My Commission Expires:

Click to view form.

History. Acts 2013, No. 1045, § 1.

Subchapter 2 — Acknowledgment and Proof of Instruments

Publisher's Notes. This subchapter and § 16-47-201 et seq. provide alternative methods of taking acknowledgments; therefore, acknowledgments taken under either this subchapter or § 16-47-201 et seq. are valid. See Rumph v. Lester Land Co., 205 Ark. 1147, 172 S.W.2d 916 (1943).

The provisions of this subchapter are also codified as §§ 16-47-101 — 16-47-108, 16-47-110.

Cross References. Uniform act constitutes an alternative method of taking acknowledgments, § 16-47-217.

Effective Dates. Acts 1874, No. 13, § 3: effective on passage.

Acts 1887, No. 91, § 2: effective on passage.

Acts 1899, No. 150, § 3: effective on passage.

Acts 1921, No. 233, § 2: effective on passage.

Acts 1923, No. 464, § 3: effective on passage.

Acts 1955, No. 101, § 5: Feb. 23, 1955. Emergency clause provided: “The General Assembly finds it to be a fact, and so declares, that many instruments contain defective acknowledgments due to errors in the preparation thereof, without fault upon the part of the person, firm or corporation so executing said instruments; that these defective acknowledgments hamper the sale of real estate throughout the State and retard the development of industries and other businesses in the State of Arkansas; that this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 2013, No. 999, § 6: Apr. 8, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that many instruments affecting title to real estate are being found to not provide constructive notice because of defects in the certificates of acknowledgment; and that this act is immediately necessary to protect property rights and interests. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

18-12-201. Proof or acknowledgment as prerequisite to recording real estate conveyances.

All deeds and other instruments in writing for the conveyance of any real estate, or by which any real estate may be affected in law or equity, shall be proven or duly acknowledged in conformity with the provisions of this act before they or any of them shall be admitted to record.

History. Rev. Stat., ch. 31, § 22; C. & M. Dig., § 1525; Pope's Dig., § 1835; A.S.A. 1947, § 49-211.

Publisher's Notes. Rev. Stat., ch. 31, § 22, is also codified as § 16-47-101.

Meaning of “this act”. Rev. Stat., ch. 31, codified as §§ 16-47-101, 16-47-103 — 16-47-106, 16-47-110, 18-12-101, 18-12-102, 18-12-104, 18-12-105, 18-12-201, 18-12-203 — 18-12-206, 18-12-209, 18-12-301, 18-12-402, 18-12-501, 18-12-502, 18-12-601 — 18-12-603.

18-12-202. Forms of acknowledgments — Validity — Acknowledgments of married persons.

1. 1. Either the forms of acknowledgments now in use in this state or any other forms may be used in the case of all deeds and other instruments in writing for the conveyance of real or personal property which:
      1. Specify, in the caption or otherwise, the state and county or other place where the acknowledgment is taken;
      2. Set out the name of the person acknowledging and, in instances in which he or she acknowledges otherwise than in his or her own right, the name of the person, association, or corporation for which he or she acknowledges; and
      3. Recite in substance or the equivalent that the execution of the instrument was acknowledged by the person so named as acknowledging, or any other form of acknowledgment provided by law.
   2. These forms may also be used when the property is to be affected in law or equity and also in any other case in which such an acknowledgment is for any purpose required or authorized by law.
   3. An acknowledgment in any of these forms shall be sufficient to entitle the instrument to be recorded and to be read in evidence.
2. The acknowledgment of a married person, both as to the disposition of his or her own property and as to the relinquishment of dower, curtesy, and homestead in the property of a spouse, may be made in the same form as if that person were sole and without any examination separate and apart from a spouse, and without necessity for a specific reference therein to the interest so conveyed or relinquished.

History. Acts 1937, No. 44, § 1; Pope's Dig., § 1831; Acts 1981, No. 714, § 3; A.S.A. 1947, § 49-201.

18-12-203. Officers authorized to take proof or acknowledgment of real estate conveyances.

1. The proof or acknowledgment of every deed or instrument of writing for the conveyance of any real estate shall be taken by one (1) of the following courts or officers:
   1. When acknowledged or proved within this state, before the Supreme Court, the circuit court, or any justices or judges thereof, the clerk of any court of record, any county judge, or before any notary public;
   2. When acknowledged or proved outside this state, and within the United States or its territories, or in any of the colonies or possessions or dependencies of the United States, before any court of the United States, or any state or territory, or colony or possession or dependency of the United States, having a seal, or a clerk of any such court, or before any notary public, or before the mayor of any incorporated city or town, or the chief officer of any city or town having a seal, or before a commissioner appointed by the Governor; and
   3. When acknowledged or proved outside the United States, before any:
      1. Court of any state, kingdom, or empire having a seal;
      2. Mayor or chief officer of any city or town having an official seal; or
      3. Officer of any foreign country who by the laws of that country is authorized to take probate of the conveyance of real estate of his or her own country if the officer has, by law, an official seal.
2. The acknowledgment of any deed or mortgage, when taken outside the United States, may be taken and certified by a United States consul.

History. Rev. Stat., ch. 31, § 13; Acts 1874, No. 13, § 1, p. 58; 1887, No. 91, § 1, p. 142; 1897, No. 26, § 1, p. 33; 1899, No. 150, § 1, p. 276; C. & M. Dig., § 1516; Acts 1921, No. 233, § 1; 1923, No. 464, §§ 1, 2; Pope's Dig., § 1825; A.S.A. 1947, §§ 49-202, 49-203; Acts 2003, No. 1185, § 252.

Publisher's Notes. As to validation of prior acknowledgments, see Acts 1873, No. 36, § 2; Acts 1874, No. 13, § 2; Acts 1897, No. 26, § 2; Acts 1899, No. 150, § 2.

Rev. Stat., ch. 31, § 13, as amended, is also codified as § 16-47-103.

Amendments. The 2003 amendment, in (a), deleted “the chancery court,” following “the circuit court,” deleted “or probate” following “any county” and deleted “justice of the peace or” preceding “notary public.”

Cross References. Commissioners in other states may take acknowledgments, § 25-16-204.

18-12-204. Attestation of acknowledgments.

1. In cases of acknowledgment or proof of deeds or conveyances of real estate taken within the United States or territories thereof, when taken before any court or officer having a seal of office, the deed or conveyance shall be attested under the seal of office. If the officer has no seal of office, then it shall be attested under the official signature of the officer.
2. In all cases of deeds and conveyances proved or acknowledged outside the United States or their territories, the acknowledgment or proof must be attested under the official seal of the court or officer before whom the probate is had.

History. Rev. Stat., ch. 31, §§ 14, 15; C. & M. Dig., §§ 1517, 1518; Pope's Dig., §§ 1826, 1827; A.S.A. 1947, §§ 49-204, 49-205.

Publisher's Notes. Rev. Stat., ch. 31, §§ 14 and 15, are also codified as § 16-47-104.

18-12-205. Certificate of acknowledgment.

1. Any court or officer that takes a proof or an acknowledgment of any instrument affecting real property shall grant a certificate of the proof or acknowledgment.
2. The court or officer shall cause the certificate of the proof or acknowledgment to be endorsed on the instrument affecting real property.
3. The certificate of the proof or acknowledgment shall be signed by the clerk of the court or by the officer if he or she has a seal of office.

History. Rev. Stat., ch. 31, § 16; C. & M. Dig., § 1519; Pope's Dig., § 1828; A.S.A. 1947, § 49-206; Acts 2007, No. 827, § 142.

Publisher's Notes. Rev. Stat., ch. 31, § 16, is also codified as § 16-47-105.

18-12-206. Manner of making acknowledgment — Proof of deed or instrument — Proof of identity of grantor or witness.

1. The acknowledgment of deeds and instruments of writing for the conveyance of real estate, or whereby such real estate is to be affected in law or equity, shall be by the grantor appearing in person before a court or officer having the authority by law to take the acknowledgment and stating that he or she had executed the deed or instrument for the consideration and purposes therein mentioned and set forth.
2. When a deed or instrument referred to in subsection (a) of this section is to be proved, it shall be done by one (1) or more of the subscribing witnesses personally appearing before the proper court or officer and stating on oath that he or she saw the grantor subscribe the deed or instrument of writing or that the grantor acknowledged in his or her presence that he or she had subscribed and executed the deed or instrument for the purposes and consideration therein mentioned, and that he or she had subscribed the deed or instrument as a witness at the request of the grantor.
3. If any grantor has not acknowledged the execution of a deed or instrument referred to in subsection (a) of this section and the subscribing witnesses are dead or cannot be had, then the deed or instrument may be proved by the evidence of the handwriting of the grantor and of at least one (1) of the subscribing witnesses. This evidence shall consist of the deposition of two (2) or more disinterested persons, swearing to each signature.
4. 1. When any grantor in any deed or instrument that conveys real estate or whereby any real estate may be affected in law or equity, or any witness to any like instrument, shall present himself or herself before any court or other officer for the purpose of acknowledging or proving the execution of the deed or instrument, if the grantor or witness shall be personally unknown to the court or officer, his or her identity and his or her being the person he or she purports to be on the face of such instrument of writing shall be proved to the court or officer.
   2. Proof may be made by witnesses known to the court or officer or by the affidavit of the grantor or witness if the court or officer shall be satisfied therewith. The proof or affidavit shall also be endorsed on the deed or instrument of writing.

History. Rev. Stat., ch. 31, §§ 17-20; C. & M. Dig., §§ 1520-1523; Pope's Dig., §§ 1829, 1830, 1832, 1833; A.S.A. 1947, §§ 49-207 — 49-210.

Publisher's Notes. Rev. Stat. ch. 31, §§ 17-20, are also codified as § 16-47-106.

18-12-207. [Repealed.]

Publisher's Notes. This section, concerning acknowledgment by corporations, was repealed by Acts 2013, No. 999, § 1. The section was derived from Acts 1919, No. 45, § 1; C. & M. Dig., § 1526; Pope's Dig., § 1836; A.S.A. 1947, § 49-212.

18-12-208. Defects.

1. All deeds, conveyances, deeds of trust, mortgages, marriage contracts, and other instruments in writing affecting or purporting to affect the title to any real estate or personal property situated in this state, which have been recorded and which are defective or ineffectual because:
   1. Of failure to comply with § 18-12-403;
   2. The officer who certified the acknowledgment or acknowledgments to such instruments omitted any words required by law to be in the certificate or acknowledgments;
   3. The officer failed or omitted to attach his or her seal to the certificate;
   4. The officer attached to any such certificate a seal not bearing the words and devices required by law;
   5. The officer was a mayor of a city or an incorporated town in the State of Arkansas and as such was not authorized to certify to executions and acknowledgments to such instruments, or was the deputy of an official duly authorized by law to take acknowledgments but whose deputy was not so authorized;
   6. The notary public failed to state the date of the expiration of his or her commission on the certificate of acknowledgment, or incorrectly stated it thereon;
   7. The officer incorrectly dated the certificate of acknowledgment or failed to state the county wherein the acknowledgment was taken; or
   8. The acknowledgment was certified in any county of the State of Arkansas by any person holding an unexpired commission as notary public under the laws of the state who had, at the time of the certification, ceased to be a resident of the county within and for which he or she was commissioned, shall be as binding and effectual as though the certificate of acknowledgment or proof of execution was in due form, bore the proper seal, and was certified to by a duly authorized officer.
2. A deed, conveyance, deed of trust, mortgage, marriage contract, and other instrument in writing, affecting or purporting to affect the title to any real estate or personal property situated in this state, which is executed after August 13, 1993, shall not be deemed defective or ineffectual because:
   1. The officer failed or omitted to attach his or her seal to the certificate;
   2. The officer attached to any such certificate a seal not bearing the words and devices required by law;
   3. The notary public failed to state the date of the expiration of his or her commission on the certificate of acknowledgment, or incorrectly stated it thereon;
   4. The officer incorrectly dated the certificate of acknowledgment or failed to state the county wherein the acknowledgment was taken; or
   5. The acknowledgment was certified in any county of the State of Arkansas by any person holding an unexpired commission as notary public under the laws of the state who had, at the time of the certification, ceased to be a resident of the county within and for which he or she was commissioned.
3. A deed, conveyance, deed of trust, mortgage, marriage contract, and any other instrument in writing, affecting or purporting to affect the title to any real estate or personal property situated in this state, whether executed before, on, or after April 8, 2013, shall not be found insufficient to satisfy the requirements of § 18-12-202:
   1. Because the acknowledgment thereof does not strictly comply with the form contained in § 16-47-107 or omits the words “for the consideration, uses, and purposes therein mentioned or set forth” or uses similar words;
   2. Because the gender listed in the acknowledgment thereof does not match the gender of the person acknowledging the instrument;
   3. Because the acknowledgment thereof does not identify the title or position of the person acknowledging the instrument on behalf of a corporation, partnership, company, trust, association, or other entity; or
   4. Where a good faith attempt at material compliance with § 16-47-107(a), (b), or (c), as applicable, has been made and there is no factual dispute as to the authenticity of the signature of the person making acknowledgement thereof.
4. Notwithstanding an acknowledgment to a deed or other instrument which may contain one (1) or more of the defects set forth in this section, if a deed or other instrument is recorded, it shall:
   1. Provide constructive notice thereafter to all parties of the matters contained in the deed or other instrument; and
   2. Be treated as any other deed or instrument in writing under § 16-47-110, and may be read into evidence in any court in this state without further proof of execution.
5. A valid jurat may act as a substitute for a certificate of acknowledgment for instruments recorded on or after April 8, 2013.

History. Acts 1955, No. 101, § 1; A.S.A. 1947, § 49-213; Acts 1993, No. 1081, §§ 1, 2; 2013, No. 999, § 4.

Publisher's Notes. For prior validating acts, see Acts 1873, No. 11, §§ 5, 6, p. 13; Acts 1873, No. 17, §§ 1, 2, p. 25; Acts 1873, No. 41, §§ 1, 2, p. 83; Acts 1883, No. 69, § 6, p. 106; Acts 1883, No. 80, § 1, p. 128; Acts 1885, No. 117, § 1, p. 191; Acts 1893, No. 43, § 1, p. 66; Acts 1893, No. 172, § 1, p. 303; Acts 1895, No. 33, § 1, p. 37; Acts 1897 (Ex. Sess.), No. 21, § 1, p. 58; Acts 1899, No. 56, § 1, p. 107; Acts 1899, No. 175, § 1, p. 313; Acts 1901, No. 41, § 1, p. 79; Acts 1903, No. 87, § 1, p. 150; Acts 1903, No. 87, § 2, p. 150; Acts 1907, No. 147, § 1, p. 354; Acts 1911, No. 24, § 1; Acts 1913, No. 148, § 1; Acts 1915, No. 54, § 1; Acts 1917, No. 142, § 1, p. 765; Acts 1917, No. 142, § 2, p. 765; Acts 1919, No. 333, § 1; Acts 1919, No. 524, § 1; Acts 1923, No. 80, § 1; Acts 1923, No. 185, § 1; Acts 1935, No. 72, § 1; Acts 1937, No. 352, § 1; Acts 1941, No. 422, § 1; Acts 1949, No. 291, § 1.

Amendments. The 2013 amendment changed the section heading without markup and added (c), (d), and (e).

18-12-209. Recorded deed or written instrument affecting real estate.

1. Every deed or instrument in writing which conveys or affects real estate and which is acknowledged or proved and certified as prescribed by this act may, together with the certificate of acknowledgment, proof, or relinquishment of dower, be recorded by the recorder of the county where such land to be conveyed or affected thereby is located, and when so recorded may be read in evidence in any court in this state without further proof of execution.
2. If it appears at any time that any deed or instrument duly acknowledged or proved and recorded as prescribed by this act is lost or not within the power and control of the party wishing to use the deed or instrument, the record thereof, or a transcript of the record certified by the recorder, may be read in evidence without further proof of execution.
3. Neither the certificate of acknowledgment nor the probate of any such deed or instrument, nor the record or transcript thereof, shall be conclusive, but it may be rebutted.

History. Rev. Stat., ch. 31, §§ 26-28; C. & M. Dig., §§ 1530-1532; Pope's Dig., §§ 1840-1842; A.S.A. 1947, §§ 28-919 — 28-921.

Publisher's Notes. Rev. Stat., ch. 31, §§ 26-28, are also codified as § 16-47-110.

Meaning of “this act”. See note to § 18-12-201.

Subchapter 3 — Fee Tail

Preambles. Acts 1957, No. 163 contained a preamble which read:

“Whereas, the estate tail is a relic of medieval times and seldom desirable in view of the current necessity for credit and for transfer of title incident to the growth of communities, but nevertheless such an estate is often created without a realization of the delay and difficulty imposed on a conveyance of the land involved, which imposition is later sought to be dissolved; and

“Whereas, the common law remedy of fine and common recovery for dissolution of said estates is no longer available as a method dissolving same and a substitute therefore should be provided;

“Now, therefore….”

18-12-301. Considered life estate.

In cases when, by common law, any person may become seized in fee tail of any lands or tenements, by virtue of any devise, gift, grant, or other conveyance, the person, instead of being, or becoming, seized thereof in fee tail, shall be adjudged to be, and become, seized thereof for his or her natural life only. The remainder shall pass in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law by virtue of the devise, gift, grant, or conveyance.

History. Rev. Stat., ch. 31, § 5; C. & M. Dig., § 1499; Pope's Dig., § 1799; A.S.A. 1947, § 50-405.

18-12-302. Dissolution.

1. 1. Any estate which under the common law would be deemed an estate tail or a fee tail estate or any estate created by reason of a conveyance to a grantee or grantees and the heirs of his or her body or to other contingent remaindermen may be dissolved by the grantor creating such an estate and all life tenants and all of the other persons then living who might be remaindermen in event of the death of the life tenant or tenants executing a conveyance of the fee.
   2. The conveyance shall vest in the grantee the fee simple title to the lands therein conveyed.
2. The method of extinguishing the estates mentioned in subsection (a) of this section shall apply equally to those estates now in existence and to those which may hereafter come into existence.
3. The rights and privileges provided by this section are permissive and cumulative to the rights and remedies now existing under the laws of this state.

History. Acts 1957, No. 163, §§ 1-3; A.S.A. 1947, §§ 50-405.1 — 50-405.3.

Publisher's Notes. Acts 1957, No. 163, § 4, provided that the act would not affect law suits pending in the courts on the effective date of the act.

18-12-303. Rule in Shelley's Case abolished.

1. 1. The Rule in Shelley's Case is abolished and shall not be recognized by any court of this state.
   2. This section is intended to annul the application or effect of the Rule in Shelley's Case on any instrument or interest in real property.
2. When any instrument prepared or executed after July 16, 2003, conveys an interest in any real property to be given to the heirs or issue of any person in words which, under the rule of construction known as the “Rule in Shelley's Case” would have operated to give to that person an interest in fee simple, those words shall operate as words of purchase and not of limitation.

History. Acts 2003, No. 1030, § 1.

Subchapter 4 — Husband and Wife

Cross References. Married woman's separate property, right of disposition, Ark. Const., Art. 9, § 7.

Effective Dates. Acts 1887, No. 64, § 3: effective on passage.

Acts 1919, No. 324, § 2: Mar. 21, 1919. Emergency declared.

Acts 1919, No. 325, § 2: Mar. 21, 1919. Emergency declared.

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

18-12-401. Deed between spouses.

1. A deed of conveyance of real property located in this state executed after the passage of this act by an individual to his or her spouse shall convey to the grantee named in the deed the entire interest of the grantor in the property conveyed, or the interest specified in the deed, as if the spousal relation did not exist between the parties to the deed.
2. 1. All deeds of conveyance of real property in this state executed before the passage of this act by an individual to his or her spouse shall convey to the respective grantees in the deeds the full and entire interests of the respective grantors in the deeds, or the interests specified in the deeds respectively, as if the spousal relation had not existed between the parties to the deeds.
   2. This subsection does not apply to a deed that has been construed by a court of competent jurisdiction.
3. The word “deed” as used in this section includes instruments of writing affecting, or purporting to affect, the title to real property, either by way of conveyance or encumbrance.
4. The purpose of this section is to empower an individual to contract with his or her spouse in regard to real property in the same manner and to the same effect as if the spousal relation did not exist between the parties to the deed.

History. Acts 1935, No. 86, §§ 1-3; Pope's Dig., §§ 1866-1868; A.S.A. 1947, §§ 50-413, 50-413n, 50-414; Acts 2019, No. 387, § 1.

Publisher's Notes. In reference to the term “passage of this act,” Acts 1935, No. 86, was signed by the Governor on March 2, 1935, and took effect on June 13, 1935.

Amendments. The 2019 amendment, in (a), substituted “an individual to his or her spouse” for “a married man directly to his wife or by a married woman directly to her husband, substituted “convey” for “be construed as conveying”, deleted “as fully and to all intents and purposes” preceding “as if”, and substituted “spousal” for “marital”; in (b)(1), substituted “convey” for “be construed as conveying”, and deleted “as fully and to all intents and purposes” following “respectively”; substituted “does not apply” for “shall not be construed as applying” in (b)(2); substituted “includes” for “shall be construed to include any and all” in (c); in (d), substituted “an individual to contract with his or her spouse” for “married men to contract with their wives and married women to contract with their husbands”, substituted “the same” for “like”, and substituted “the spousal relation did not exist between the parties to the deed” for “married men and married women were unmarried”; and made stylistic changes.

18-12-402. Relinquishment of dower or curtesy in spouse's land.

A married person may relinquish dower or curtesy in any of the real estate of a spouse by joining with the spouse in the deed of conveyance thereof, or by a separate instrument executed to spouse's grantee or anyone claiming title under the spouse, and acknowledging it in the manner prescribed by law.

History. Rev. Stat., ch. 31, § 11; Acts 1919, No. 324, § 1; C. & M. Dig., § 1506; Pope's Dig., § 1815; Acts 1981, No. 714, § 5; A.S.A. 1947, § 50-416.

18-12-403. Conveyance, etc., of homestead.

No conveyance, mortgage, or other instrument affecting the homestead of any married person shall be of any validity, except for taxes, laborers' and mechanics' liens, and purchase money, unless his or her spouse joins in the execution of the instrument, or conveys by separate document, and acknowledges it.

History. Acts 1887, No. 64, § 1, p. 90; C. & M. Dig., § 5542; Pope's Dig., § 7181; Acts 1981, No. 714, § 4; A.S.A. 1947, § 50-415; Acts 1993, No. 1164, § 1.

A.C.R.C. Notes. Acts 1993, No. 1164, § 2, provided:

“Conveyances, mortgages and other instruments affecting the homestead of married persons which were executed prior to the effective date of this act shall not be deemed invalid solely because the spouses failed to sign and acknowledge the same document.”

Cross References. Validation of instruments not complying with this section, § 16-47-108.

18-12-404. Conveyance of interest of husband with mental illness and guardian appointed — Relinquishment of dower.

In all cases under § 20-47-103 whereunder a husband is duly adjudged to be with mental illness and a guardian appointed and wherein the guardian makes a sale of the husband's interest in any of the real estate belonging to his ward, and the wife of the husband with mental illness is entitled to dower, it shall be sufficient to pass the dower interest of the wife, if she shall duly join in the petition of the guardian for the sale, and by separate instrument, duly acknowledged, convey all her interest in the lands.

History. Acts 1919, No. 325, § 1.

Subchapter 5 — Power of Attorney

Cross References. Durable power of attorney, § 28-68-201 et seq.

Effective Dates. Acts 1939, No. 27, § 3: approved Jan. 31, 1939. Emergency clause provided: “It is hereby found and declared that many titles to lands, timber, oil and gas leases, and mineral rights, within the state of Arkansas are clouded, and that much confusion exists on account thereof, by reason of doubt as to the validity and effect of a married woman's power of attorney to relinquish her dower and homestead rights in her husband's land and as to the validity and effect of the act of her agent and attorney in fact in so relinquishing her dower and homestead according thereto, thus retarding development of the resources of the state in many instances, and an emergency is hereby declared to exist, and it being necessary for the preservation of public peace, health and safety, that this measure become effective without delay; it shall take effect and be in force from and after its passage.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

18-12-501. Acknowledgment and recording.

1. Every letter of attorney, containing a power to convey any real estate as agent or attorney for the owner thereof or to execute as agent or attorney for another any deed or instrument in writing, that shall convey any real estate, or whereby any real estate shall be affected in law or equity, shall be acknowledged or proved and certified and recorded with any deed that the agent or attorney shall make in virtue of the letter of attorney.
2. Letters of attorney shall be proved or acknowledged before the same courts or officers that are authorized by this act to take probate of deeds conveying real estate.

History. Rev. Stat., ch. 31, §§ 23, 24; C. & M. Dig., §§ 1527, 1528; Pope's Dig., §§ 1837, 1838; A.S.A. 1947, §§ 50-422, 50-423.

Meaning of “this act”. Rev. Stat., ch. 31, codified as §§ 16-47-101, 16-47-103 — 16-47-106, 16-47-110, 18-12-101, 18-12-102, 18-12-104, 18-12-105, 18-12-201, 18-12-203 — 18-12-206, 18-12-209, 18-12-301, 18-12-402, 18-12-501, 18-12-502, 18-12-601 — 18-12-603.

18-12-502. Revocation.

1. 1. No letter of attorney, duly acknowledged or proved and certified as prescribed by this act, shall be revoked but by the maker of the letter of attorney or his or her legal representatives.
   2. The revocation shall be in writing acknowledged or proved before the proper court or officer and filed for record in the county or counties where the letter of attorney was intended to operate.
2. All such letters of attorney shall be revoked and deemed void from the time of filing revocations for record.

History. Rev. Stat., ch. 31, § 25; C. & M. Dig., § 1529; Pope's Dig., § 1839; A.S.A. 1947, § 50-424.

Meaning of “this act”. See note to § 18-12-501.

18-12-503. Relinquishment of dower, curtesy, and homestead rights.

1. By joining with his or her spouse in the execution of power of attorney, or by separate instrument, a married person may appoint an agent or attorney in fact and authorize him or her, for and in the person's name and stead, to relinquish all rights and possibility of dower, curtesy, and homestead to a spouse's grantee, lessee, or mortgagee in any lands, oil, gas, mineral, or timber and to execute for the person such relinquishment of dower, curtesy, and homestead in any oil and gas lease or assignment thereof, mineral deed, timber deed, royalty contract, mortgage, or contract for the sale of any land, timber, or minerals, or any interest therein, owned by a spouse and conveyed by the spouse to the grantee.
2. 1. The act of an agent or attorney in fact, when authorized by properly executed and recorded power of attorney, in so relinquishing dower, curtesy, and homestead of a married person by joining in any deed, lease, conveyance of minerals, royalty contract, or other contract for the sale of any lands or lease of any lands for developing its minerals, or any interest therein, or the assignment of any oil and gas lease or interest therein shall be as effectual and binding as if the instrument or instruments had been executed in the first instance by the married person.
   2. The relinquishment by the attorney in fact may be by separate instrument or by the attorney in fact joining with the spouse in the execution of one (1) or more conveyances.

History. Acts 1939, No. 27, § 1; 1981, No. 714, § 7; A.S.A. 1947, § 50-425.

Publisher's Notes. As to validation of prior powers of attorney authorizing relinquishment of dower and homestead rights, see Acts 1939, No. 27, § 2.

Subchapter 6 — Miscellaneous Conveyances

Effective Dates. Acts 1853, p. 207, § 3: effective on passage.

Acts 1919, No. 444, § 2: Mar. 27, 1919. Emergency declared.

Acts 1927, No. 224, § 2: approved Mar. 23, 1927. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared and all laws and parts of laws in conflict herewith are hereby repealed and this act shall take effect from and after its passage.”

Acts 2005, No. 2270, § 2: Apr. 14, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the titles to real property rights purchased at delinquent tax sales are not marketable; that the inability to receive marketable title to real property is an unreasonable alienation of real property and harmful to the economy; and that this act will permit the marketability of real property rights purchased at delinquent tax sales for the good of the state and its citizens. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

18-12-601. After-acquired title.

If any person shall convey any real estate by deed purporting to convey it in fee simple absolute, or any less estate, and shall not at the time of the conveyance have the legal estate in the lands, but shall afterwards acquire it, then the legal or equitable estate afterwards acquired shall immediately pass to the grantee and the conveyance shall be as valid as if the legal or equitable estate had been in the grantor at the time of the conveyance.

History. Rev. Stat., ch. 31, § 4; C. & M. Dig., § 1498; Pope's Dig., § 1798; A.S.A. 1947, § 50-404.

18-12-602. Land in adverse possession.

Any person claiming title to any real estate, notwithstanding there may be an adverse possession thereof, may sell and convey his or her interest in the same manner and with like effect as if he or she were in the actual possession of the real estate.

History. Rev. Stat., ch. 31, § 6; C. & M. Dig., § 1500; Pope's Dig., § 1809; A.S.A. 1947, § 50-408.

18-12-603. Grants to two or more as tenancy in common.

Every interest in real estate granted or devised to two (2) or more persons, other than executors and trustees as such, shall be in tenancy in common unless expressly declared in the grant or devise to be a joint tenancy.

History. Rev. Stat., ch. 31, § 9; C. & M. Dig., § 1503; Pope's Dig., § 1812; A.S.A. 1947, § 50-411.

18-12-604. Deed to trustee or agent.

1. 1. The appearance of the words “trustee”, “as trustee”, or “agent” following the names of the grantee in any deed of conveyance of land executed, without other language showing a trust, shall not be deemed to give notice to, or put on inquiry, any person dealing with the land that a trust or agency exists or that there are other beneficiaries of the conveyance except the grantee named therein.
   2. The conveyance shall vest the title to the land in the grantee.
2. A conveyance of land by the grantee, whether followed by the words “trustee”, “as trustee”, or “agent” or not, shall vest title in his or her grantee free from any claims of all persons or corporations.

History. Acts 1919, No. 444, § 1; C. & M. Dig., § 1504; Pope's Dig., § 1813; A.S.A. 1947, § 50-412.

18-12-605. Deeds of administrators, executors, guardians, commissioners, and sheriffs.

1. 1. All deeds of conveyance made by an administrator, an executor, a guardian, or a commissioner, deeds of real estate sold under an execution made and executed by a sheriff, and deeds made and executed by a trustee or an attorney pursuant to a foreclosure of a deed of trust or mortgage, duly made and executed, acknowledged, and recorded, as now required by law and purporting to convey real estate, shall vest in the grantee and his or her heirs and assigns a good and valid title, both in law and in equity.
   2. 1. The deeds shall be evidence of the facts recited in the deeds and of the legality and regularity of the sale of the real estate so conveyed.
      2. However, the deeds do not warrant title to a subsequent grantee, and any subsequent grantee may not assert or claim any warranty of title deriving from the deeds.
2. Nothing in this section shall prohibit a deed made under subdivision (a)(1) of this section from warranting title by express use of warranty language.
3. Every deed so made, executed, acknowledged, and recorded, or a certified copy of the deed, under the seal of the recorder of the proper county shall be received in evidence in any court in this state without further proof of its execution.

History. Acts 1853, §§ 1, 2, p. 207; C. & M. Dig., §§ 1534, 1535; Pope's Dig., §§ 1844, 1845; A.S.A. 1947, §§ 50-419, 50-420; Acts 2005, No. 1884, § 1.

Amendments. The 2005 amendment redesignated former (a) as present (a)(1) and (a)(2)(A); added present (a)(2)(B) and (b); redesignated former (b) as present (c); inserted “and deeds made and executed by a trustee or an attorney pursuant to a foreclosure of a deed of trust or mortgage” in present (a)(1); and deleted “until the contrary is made to appear” from the end of present (a)(2)(A).

18-12-606. Deed or patent by Governor.

1. In all cases in which, by the laws of this state, the Governor is required to execute any deed of conveyance or patent for any lands sold or granted by the state, the deed of conveyance or patent, when executed by the Governor and countersigned by the Secretary of State, and when the seal of the state shall be affixed thereto, shall convey all the right and title of the state in and to the lands to the purchaser.
2. 1. The deed may be recorded in the office of the recorder of the proper county and shall have the same effect as evidence.
   2. A duly certified transcript of the deed or patent taken from the record thereof shall have the same effect as evidence in all the courts in this state as if the deed or patent had been acknowledged and recorded under the existing laws of this state.

History. Acts 1850, § 1, p. 65; C. & M. Dig., § 1533; Pope's Dig., § 1843; A.S.A. 1947, § 50-421.

Publisher's Notes. The power to dispose of state lands is now vested in the Commissioner of State Lands pursuant to § 22-5-206.

18-12-607. Sales of real estate by defunct corporations ratified.

1. All sales of real estate which was the property of any corporation organized under the laws of the State of Arkansas, when the corporation has expired or ceased to exist, either by limitations, judgment of court, forfeiture of its charter, legislative act, or by surrender of charter, are ratified and declared to be binding and to pass to the purchaser at the sales all the right, title, and interest the corporation has in the real estate at the time of its dissolution and to pass to the purchaser all the right, title, and interest in the State of Arkansas, as trustee, as now provided by law.
2. 1. The deed of conveyance shall have been executed by the proper officers of the corporation at the time of its dissolution or, in the event of their death, absence from the state, or inability to act, the resident stockholders of the corporation shall have a right to select a president and secretary for the purpose of executing and delivering the deed of conveyance.
   2. When so executed, the deed shall have the same force and effect as if executed by the proper officers of the corporation prior to the dissolution thereof.

History. Acts 1927, No. 224, § 1; Pope's Dig., § 1865; A.S.A. 1947, § 50-426.

18-12-608. Beneficiary deeds — Terms — Recording required.

1. 1. 1. A beneficiary deed is a deed without current tangible consideration that conveys upon the death of the owner an ownership interest in real property other than a leasehold or lien interest to a grantee designated by the owner and that expressly states that the deed is not to take effect until the death of the owner.
      2. 1. A beneficiary deed transfers the interest to the designated grantee effective upon the death of the owner, subject to:
            1. All conveyances, assignments, contracts, leases, mortgages, deeds of trust, liens, security pledges, oil, gas, or mineral leases, and other encumbrances made by the owner or to which the real property was subject at the time of the owner's death, whether or not the conveyance or encumbrance was created before or after the execution of the beneficiary deed; and
            2. A claim for reimbursement of federal or state benefits by the Department of Human Services from the estate of the grantor or the interest acquired by a grantee of the beneficiary deed under § 20-76-436.
         2. No legal or equitable interest shall vest in the grantee until the death of the owner prior to revocation of the beneficiary deed.
   2. 1. The owner may designate multiple grantees under a beneficiary deed.
      2. Multiple grantees may be joint tenants with right of survivorship, tenants in common, holders of a tenancy by the entirety, or any other tenancy that is otherwise valid under the laws of this state.
   3. 1. The owner may designate one (1) or more successor grantees, including one (1) or more unnamed heirs of the original grantee or grantees, under a beneficiary deed.
      2. The condition upon which the interest of a successor grantee vests, such as the failure of the original grantee to survive the grantor, shall be included in the beneficiary deed.
2. 1. If real property is owned as a tenancy by the entirety or as a joint tenancy with the right of survivorship, a beneficiary deed that conveys an interest in the real property to a grantee designated by all of the then surviving owners and that expressly states the beneficiary deed is not to take effect until the death of the last surviving owner transfers the interest to the designated grantee effective upon the death of the last surviving owner.
   2. 1. If a beneficiary deed is executed by fewer than all of the owners of real property owned as a tenancy by the entirety or as joint tenants with right of survivorship, the beneficiary deed is valid if the last surviving owner is a person who executed the beneficiary deed.
      2. If the last surviving owner did not execute the beneficiary deed, the beneficiary deed is invalid.
3. 1. A beneficiary deed is valid only if the beneficiary deed is recorded before the death of the owner or the last surviving owner as provided by law in the office of the county recorder of the county in which the real property is located.
   2. A beneficiary deed may be used to transfer an interest in real property to a trustee of a trust estate even if the trust is revocable and may include one (1) or more unnamed successor trustees as successor grantees.
4. 1. A beneficiary deed may be revoked at any time by the owner or, if there is more than one (1) owner, by any of the owners who executed the beneficiary deed.
   2. To be effective, the revocation shall be:
      1. Executed before the death of the owner who executes the revocation; and
      2. Recorded in the office of the county recorder of the county in which the real property is located before the death of the owner as provided by law.
   3. If the revocation is not executed by all the owners, the revocation is not effective unless executed by the last surviving owner and recorded before the death of the last surviving owner.
   4. A beneficiary deed that complies with this section may not be revoked, altered, or amended by the provisions of the owner's will.
5. If an owner executes more than one (1) beneficiary deed concerning the same real property, the recorded beneficiary deed that is last signed before the owner's death is the effective beneficiary deed, regardless of the sequence of recording.
6. 1. This section does not prohibit other methods of conveying real property that are permitted by law and that have the effect of postponing enjoyment of an interest in real property until the death of the owner.
   2. This section does not invalidate any deed otherwise effective by law to convey title to the interests and estates provided in the deed that is not recorded until after the death of the owner.
7. A beneficiary deed is sufficient if it complies with other applicable laws and if it is in substantially the following form:
8. The instrument of revocation shall be sufficient if it complies with other applicable laws and is in substantially the following form:

“Beneficiary Deed CAUTION: THIS DEED MUST BE RECORDED PRIOR TO THE DEATH OF THE GRANTOR IN ORDER TO BE EFFECTIVE. KNOW ALL PERSONS BY THESE PRESENTS THAT: For a non-monetary, intangible consideration, of value to the Grantor, I (we) hereby convey to (grantee) effective on my (our) death the following described real property: (Legal description) (Signature of grantor(s)) (acknowledgment)”

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“Revocation of Beneficiary Deed CAUTION: THIS REVOCATION MUST BE RECORDED PRIOR TO THE DEATH OF THE GRANTOR IN ORDER TO BE EFFECTIVE. The undersigned hereby revokes the beneficiary deed recorded on (date), in docket or book at page , or instrument number , records of County, Arkansas. Dated: Signature (acknowledgment)”

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History. Acts 2005, No. 1918, § 1; 2007, No. 243, § 1.

18-12-609. Marketability of real property sold at tax sales.

1. The title to any real property located within the State of Arkansas based upon a deed resulting from a delinquent tax sale is marketable if:
   1. The tax deed has been of record for more than fifteen (15) years;
   2. Any taxes due have been paid by the tax deed grantee or the heirs or successors of the tax deed grantee for more than fifteen (15) years;
   3. No claim of adverse possession of the real property has been asserted or filed of record since the recording of the tax deed; and
   4. The taxes for which the tax deed was issued had not been paid before the tax deed was executed and delivered to the tax deed grantee.
2. This section shall not be subject to the additional time to challenge a tax deed given to minors, persons suffering a mental incapacity, or persons serving in the United States Armed Forces during a time of war under § 26-37-203(b).
3. 1. Nothing in this section shall preclude a judicial action to confirm a tax sale or quiet the title to any real property located within this state prior to the time that the title to the real property is considered marketable under subsection (a) of this section.
   2. A judicial action to confirm the tax sale or quiet title to real property located in this state eliminates any additional time to redeem the real property or challenge a tax deed under § 26-37-203 or § 26-37-305.
4. This section shall not apply to a tax sale of a severed mineral interest.

History. Acts 2005, No. 2270, § 1; 2015, No. 683, § 1.

Amendments. The 2015 amendment added the (c)(1) designation; inserted “confirm a tax sale or” in (c)(1); and added (c)(2).

Subchapter 7 — Disbursement of Funds as Part of Real Estate Closing and Settlement Services Act

18-12-701. Title.

This subchapter shall be known and may be cited as the “Disbursement of Funds as Part of Real Estate Closing and Settlement Services Act”.

History. Acts 1991, No. 1110, § 1.

18-12-702. Definitions.

As used in this subchapter:

1. “Available for immediate withdrawal as a matter of right” means the following:
   1. For any item or draft, when the item or draft has been submitted for collection and payment received; and
   2. For any deposited item or draft, when final settlement has occurred;
2. “Closing and settlement services” means those services which benefit the parties to the sale, lease, encumbrance, mortgage, or creation of a secured interest in and to real property, and the receipt and disbursement of money in connection with any sale, lease, encumbrance, mortgage, or deed of trust; and
3. “Financial institution” means an entity that is authorized under the laws of this state, another state, or the United States of America to make loans and receive deposits and has its deposits insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund.

History. Acts 1991, No. 1110, § 1.

18-12-703. Closing and settlement services — Disbursement of funds — Penalties.

1. 1. No person, firm, partnership, corporation, or other entity that provides closing and settlement services for a real estate transaction shall disburse funds as a part of such services until those funds have been received and are available for immediate withdrawal as a matter of right from the financial institution in which the funds have been deposited.
   2. However, the person, firm, partnership, corporation, or other entity providing closing and settlement services may advance funds, not to exceed five hundred dollars ($500), on behalf of interested parties for the transaction, to pay incidental fees and charges pertaining to the closing and settlement of the transaction.
2. Any person, firm, partnership, corporation, or other entity who knowingly and willfully violates the provisions of this subchapter shall be guilty of a Class A misdemeanor.
3. In addition to the criminal penalty imposed by this section, the prosecuting attorneys of this state shall have the authority to file a petition in circuit court in any county in which a violation of the provisions of this subchapter occurred, for civil enforcement of the provisions of this subchapter by seeking an injunction prohibiting any person, firm, partnership, corporation, or other entity from disbursing funds in violation of this subchapter.

History. Acts 1991, No. 1110, § 1.

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

18-13-101. Title.

This chapter shall be known as the “Horizontal Property Act”.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 1; A.S.A. 1947, § 50-1001.

18-13-102. Definitions.

As used in this chapter:

1. “Apartment” means a part of the property intended for residential, commercial, industrial, or any other type of independent use consisting of one (1) or more rooms or spaces occupying all or part of one (1) or more floors in a building or buildings of one (1) or more floors designated as an apartment in the master deed and delineated on the plans provided for in § 18-13-105;
2. “Co-owner” means a person, firm, corporation, partnership, association, trust, or other legal entity, or any combination thereof, who owns an apartment within the building;
3. 1. “Council of co-owners” means all the co-owners as defined in subdivision (2) of this section.
   2. However, except as otherwise provided in this chapter, a majority of co-owners, as defined in subdivision (6) of this section, shall constitute a quorum for the adoption of decisions;
4. “General common elements” means:
   1. The land on which the building stands;
   2. The foundations, main walls, roofs, halls, lobbies, stairways, and entrance and exit or communication ways;
   3. The basements, flat roofs, yards, and gardens, except as otherwise provided or stipulated;
   4. The premises for the lodging of janitors or persons in charge of the building, except as otherwise provided or stipulated;
   5. The compartments or installations of central services such as power, light, gas, cold and hot water, refrigeration, reservoirs, water tanks and pumps, and the like;
   6. The elevators, garbage incinerators, and, in general, all devices or installations existing for common use; and
   7. All other elements of the building rationally of common use or necessary to its existence, upkeep, and safety;
5. “Limited common elements” means those common elements which are agreed upon by all the co-owners to be reserved for the use of a certain number of apartments to the exclusion of the other apartments, such as special corridors, stairways, and elevators, sanitary services common to the apartments of a particular floor, and the like;
6. “Majority of co-owners” means fifty-one percent (51%) or more of the basic value of the property as a whole, in accordance with the percentages computed in accordance with the provisions of § 18-13-112;
7. “Master deed” means the deed establishing the horizontal property regime;
8. “Person” means an individual, firm, corporation, partnership, association, trust, or other legal entity, or any combination thereof;
9. “Property” means the land, the building, all improvements and structures thereon, and all easements, rights, and appurtenances belonging thereto;
10. “To record” means to record in accordance with the provisions of §§ 14-15-402, 14-15-404, 14-15-407 — 14-15-417, and 16-46-101 or other applicable recording statutes; and
11. All pronouns include the male, female, and neuter genders and include the singular or plural numbers, as the case may be.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 2; 1969, No. 216, § 1; A.S.A. 1947, § 50-1002.

18-13-103. Establishment of horizontal property regimes.

Whenever a sole owner or the co-owners of a building already constructed or the owners of property upon which a building is to be constructed expressly declare, through the recordation of a master deed setting forth the particulars enumerated in § 18-13-104, their desire to submit their property to the regime established by this chapter, there shall be established a horizontal property regime.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 3; 1975, No. 731, § 1; A.S.A. 1947, § 50-1003.

18-13-104. Master deed.

1. The master deed creating and establishing the horizontal property regime shall be executed by the owner or owners of the real property making up the regime and shall be recorded in the office of the clerk and ex officio recorder of the county where the property is located.
2. The master deed shall express the following particulars:
   1. The description of the land and the building, expressing their respective areas;
   2. The general description and number of each apartment, expressing its area, location, and any other data necessary for its identification;
   3. The description of the general common elements of the building and, in proper cases, of the limited common elements restricted to a given number of apartments, expressing which are those apartments; and
   4. The value of the property and of each apartment and, according to these basic values, the percentage appertaining to the co-owners in the expenses of, and rights in, the elements held in common.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 9; A.S.A. 1947, § 50-1009.

18-13-105. Plans to be attached to master deed.

1. 1. There shall be attached to the master deed, at the time it is filed for record, a full and exact copy of the plans of any existing building on the property or the plans for the building or buildings to be constructed thereon. The copy of the plans shall be entered of record along with the master deed.
   2. The plans shall show graphically all particulars of the building constructed or to be constructed, including, but not limited to, the dimensions, area, and location of each apartment therein and the dimensions, area, and location of common elements affording access to each apartment. Other common elements, both limited and general, shall be shown graphically, insofar as possible, and shall be described in detail in words and figures.
   3. The plan shall be certified by an engineer or architect authorized and licensed to practice his or her profession in this state.
2. Each apartment in a building shall be designated, on the plans referred to in subsection (a) of this section, by letter or number or other appropriate designation.

History. Acts 1961 (1st Ex. Sess.), No. 60, §§ 10, 11; 1975, No. 731, § 2; A.S.A. 1947, §§ 50-1010, 50-1011.

18-13-106. Additional units in excess of those described in master deed.

1. The sole owner or co-owners of property constituted and established under this chapter as a horizontal property regime may, by description of their intentions in the master deed provided for in § 18-13-104, provide for the addition of apartments or units in the horizontal property regime in excess of those for which specific plans are initially recorded with the master deed.
2. With reference to any such additional buildings, the plans recorded with the master deed shall reflect:
   1. The area of the property within which the additional apartments or units will be constructed;
   2. The maximum and minimum number of square feet and the maximum and minimum number of additional apartments or units to be constructed;
   3. A general description of any rights in the common elements to be enjoyed by the owners of any additional units or apartments;
   4. The date prior to which final detailed plans for the additional units or apartments will be recorded, with the amendment to the master deed reflecting the revised information to be included in the master deed pursuant to § 18-13-104; and
   5. A covenant and warranty extending to each and all of the owners of individual units or apartments in the regime that any such construction would be of similar quality, in a workmanlike manner, and in the same architectural style as the original buildings in the regime and that the construction will conform, generally, with the specifications set forth in the master deed as required in § 18-13-104.
3. 1. Any property purportedly established as a horizontal property regime pursuant to this chapter and otherwise complying with it, but which at the time of the recording of the master deed called for in § 18-13-104 did not have one (1) or more completed buildings thereon or which provided for additional or future construction of one (1) or more buildings in addition to those for which plans were initially recorded with the master deed, shall for all purposes be considered and treated as a horizontal property regime in accordance with this chapter.
   2. All mortgages thereof or conveyances thereof as such heretofore occurring shall, likewise, for all purposes be deemed as effective mortgages and conveyances of the same as against any claim that the regime was improperly established at the time thereof.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 24; 1975, No. 731, §§ 4, 5; A.S.A. 1947, §§ 50-1024, 50-1025.

18-13-107. Waiver and reestablishment of regimes.

1. All of the co-owners or the sole owner of a building or property constituted into a horizontal property regime may waive this regime and regroup or merge the records of the individual apartments, or anticipated apartments, with the principal property if the individual apartments are unencumbered or, if encumbered, if the creditors in whose behalf the encumbrances are recorded agree to accept as such security the undivided portions of the property owned by the debtors.
2. The merger provided for in subsection (a) of this section shall in no way bar the subsequent constitution of the property into another horizontal property regime whenever so desired and upon observance of the provisions of this chapter.

History. Acts 1961 (1st Ex. Sess.), No. 60, §§ 12, 13; 1975, No. 731, § 3; A.S.A. 1947, §§ 50-1012, 50-1013.

18-13-108. Bylaws.

1. The administration of every building constituted into horizontal property shall be governed by bylaws which shall be inserted in, or appended to, and recorded with the master deed.
2. The bylaws must necessarily provide for at least the following:
   1. Form of administration, indicating whether this shall be in charge of an administrator or of a board of administration, or otherwise, and specifying the powers, manner of removal, and, where proper, the compensation thereof;
   2. Method of calling or summoning the co-owners to assemble, that a majority of at least fifty-one percent (51%) is required to adopt decisions, who is to preside over the meeting, and who will keep the minute book wherein the resolutions shall be recorded;
   3. Care, upkeep, and surveillance of the building and its general or limited common elements and services;
   4. Manner of collecting from the co-owners for the payment of the common expenses; and
   5. Designation and dismissal of the personnel necessary for the works and the general or limited common services of the building.

History. Acts 1961 (1st Ex. Sess.), No. 60, §§ 14, 15; A.S.A. 1947, §§ 50-1014, 50-1015.

18-13-109. Modification of administration.

1. The sole owner of the building or, if there is more than one (1), the co-owners representing two-thirds (2/3) of the total value of the building may, at any time, modify the system of administration, but each one of the particulars set forth in § 18-13-108 shall always be embodied in the bylaws.
2. No such modification may be operative until it is embodied in a recorded instrument, which shall be recorded in the same office and in the same manner as was the master deed and original bylaws of the horizontal property regime involved.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 15; A.S.A. 1947, § 50-1015.

18-13-110. Book of receipts and expenditures — Examination.

1. The administrator, the board of administration, or other form of administration specified in the bylaws shall keep a book with a detailed account, in chronological order, of the receipts and expenditures affecting the building and its administration and specifying the maintenance and repair expenses of the common elements and any other expenses incurred.
2. Both the book and the vouchers accrediting the entries made thereupon shall be available for examination by all the co-owners at convenient hours on working days that shall be set and announced for general knowledge.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 16; A.S.A. 1947, § 50-1016.

18-13-111. Status of individual units.

Once the property is submitted to the horizontal property regime, an apartment in the building may be individually conveyed and encumbered and may be the subject of ownership, possession, or sale and of all types of juridic acts intervivos or causa mortis as if it were sole and entirely independent of the other apartments in the building of which it forms a part, and the corresponding individual titles and interests shall be recordable.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 4; A.S.A. 1947, § 50-1004.

18-13-112. Ownership and valuation of separate units and common elements.

1. 1. An apartment owner shall have the exclusive ownership of his or her apartment and shall have a common right to a share, with the other co-owners, in the common elements of the property.
   2. 1. This share is equivalent to the percentage representing the value of the individual apartment with relation to the value of the whole property.
      2. This percentage shall be computed by taking as a basis the value of the individual apartment in relation to the value of the property as a whole.
2. The percentage shall be expressed at the time the horizontal property regime is constituted, shall have a permanent character, and shall not be altered without the acquiescence of the co-owners representing all the apartments of the building.
3. The basic value, which shall be fixed for the sole purpose of this chapter and irrespective of the actual value, shall not prevent each co-owner from fixing a different circumstantial value to his or her apartment in all types of acts and contracts.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 6; A.S.A. 1947, § 50-1006.

18-13-113. Types of joint ownership.

Any apartment may be held and owned by more than one (1) person as joint tenants, as tenants in common, as tenants by the entirety, or in any other real estate tenancy relationship recognized under the laws of this state.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 5; A.S.A. 1947, § 50-1005.

18-13-114. Common elements.

1. The common elements, both general and limited, shall remain undivided and shall not be the object of an action for partition or division of the co-ownership. Any covenant to the contrary shall be void.
2. Each co-owner may use the elements held in common in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other co-owners.

History. Acts 1961 (1st Ex. Sess.), No. 60, §§ 7, 8; A.S.A. 1947, §§ 50-1007, 50-1008.

18-13-115. Conveyances.

1. Any conveyance or other instrument affecting title to an apartment which describes the apartment by using the plan letter or number followed by the words “in Horizontal Property Regime” shall be deemed to contain a good and sufficient description for all purposes.
2. Any conveyance of an individual apartment shall be deemed to also convey the undivided interest of the owner in the common elements, both general and limited, appertaining to the apartment without specifically or particularly referring to it.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 11; A.S.A. 1947, § 50-1011.

18-13-116. Liability for expenses and assessments.

1. 1. The co-owners of the apartments are bound to contribute pro rata, in the percentages computed according to § 18-13-112, toward the expenses of administration and of maintenance and repair of the general common elements and, in the proper case, of the limited common elements of the building, and toward any other expense lawfully agreed upon.
   2. 1. However, the administrator, board of administration, or other form of administration of a horizontal property regime may establish additional assessments to be collected from any co-owner who makes his or her apartment available for rent or lease either directly or through an agent.
      2. Such additional assessments shall not exceed the amount reasonably calculated to cover expenses for additional security, wear and tear on buildings, additional trash pickup, and other additional costs occasioned by such units being available for rent or lease.
2. No co-owner may exempt himself or herself from contributing toward such expenses by waiver of the use or enjoyment of the common elements or by abandonment of the apartment belonging to him or her.
3. Upon the sale or conveyance of an apartment, all unpaid assessments against a co-owner for his or her pro rata share in the expenses to which subsection (a) of this section refers shall first be paid out of the sales price or by the acquirer in preference over any other assessments or charges of whatever nature except the following:
   1. Assessments, liens, and charges for taxes past due and unpaid on the apartment; and
   2. Payments due under mortgage instruments of encumbrance duly recorded.
4. The purchaser of an apartment shall be jointly and severally liable with the seller for the amounts owing by the latter under subsection (a) of this section up to the time of the conveyance, without prejudice to the purchaser's right to recover from the other party the amounts paid by him or her as the joint debtor.

History. Acts 1961 (1st Ex. Sess.), No. 60, §§ 17-19; A.S.A. 1947, §§ 50-1017 — 50-1019; Acts 1993, No. 434, § 1.

18-13-117. Insurance generally.

The co-owners may, upon resolution of a majority, insure the building against risk, without prejudice to the right of each co-owner to insure his or her apartment on his or her own account and for his or her own benefit.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 20; A.S.A. 1947, § 50-1020.

18-13-118. Application of insurance proceeds to reconstruction.

1. In case of fire or any other disaster, the insurance indemnity shall, except as provided in subsection (b) of this section, be applied to reconstruct the building.
2. Reconstruction shall not be compulsory when it comprises the whole or more than two-thirds (2/3) of the building. In such case, and unless otherwise unanimously agreed upon by the co-owners, the indemnity shall be delivered pro rata to the co-owners entitled to it in accordance with provision made in the bylaws or in accordance with a decision of three-fourths (¾) of the co-owners if there is no bylaw provision.
3. Should it be proper to proceed with the reconstruction, the provisions for such eventuality made in the bylaws shall be observed, or in lieu thereof the decision of the council of co-owners shall prevail.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 21; A.S.A. 1947, § 50-1021.

18-13-119. Sharing of reconstruction costs when building not insured or indemnity insufficient.

1. When the building is not insured or when the insurance indemnity is insufficient to cover the cost of reconstruction, the new building costs shall be paid by all the co-owners directly affected by the damage in proportion to the value of their respective apartments, or as may be provided by the bylaws.
2. If any one (1) or more of those composing the minority shall refuse to make such payment, the majority may proceed with the reconstruction at the expense of all the co-owners benefited thereby, upon proper resolution setting forth the circumstances of the case and the cost of the works, with the intervention of the council of co-owners.
3. The provisions of this section may be changed by unanimous resolution of the parties concerned adopted subsequent to the date on which the fire or other disaster occurred.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 22; A.S.A. 1947, § 50-1022.

18-13-120. Taxation.

1. 1. Taxes, assessments, and other charges of this state, of any political subdivision, of any special improvement district, or of any other taxing or assessing authority shall be assessed against and collected on each individual apartment.
   2. Each tax, assessment, or other charge on the apartment shall be carried on the tax books as a separate and distinct entity for that purpose and not on the building or property as a whole.
2. No forfeiture or sale of the building or property as a whole for delinquent taxes, assessments, or charges shall ever divest or in any way affect the title to an individual apartment so long as taxes, assessments, and charges on the individual apartment are currently paid.

History. Acts 1961 (1st Ex. Sess.), No. 60, § 23; A.S.A. 1947, § 50-1023.

Subchapter 1 — General Provisions

Effective Dates. Acts 1983, No. 294, § 6-106: Mar. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the protection of the residents of this State that provision be made for the sale and regulation of Time-Share Intervals by the Real Estate Commission; that this Act is designed to provide for such regulation and should be given effect at the earliest possible date. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 765, § 8: Mar. 24, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that various provisions of Act 294 of 1983 relating to the regulation of real estate time-share intervals by the Arkansas Real Estate Commission are in urgent need of revision to enable the Commission to effectively and efficiently administer the provisions of the Act; that this Act is designed to make the necessary revisions and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

18-14-101. Title.

This chapter shall be known and may be cited as the “Arkansas Time-Share Act”.

History. Acts 1983, No. 294, Art. 1, § 1-101; A.S.A. 1947, § 50-1301; Acts 2013, No. 710, § 1.

Amendments. The 2013 amendment made stylistic changes.

18-14-102. Definitions.

As used in this chapter:

1. “Accommodation” means an apartment, condominium or cooperative unit, cabin, lodge, hotel or motel room, or other private or commercial structure that:
   1. Is affixed to real property;
   2. Is designed for occupancy or use by one (1) or more individuals; and
   3. Is part of a time-share plan;
2. “Acquisition agent” means a person that by telephone, inducement, solicitation, or otherwise in the ordinary course of business directly tries to encourage a person in this state to attend a sales presentation for a time-share plan;
3. “Amenities” means a recreational facility made available to purchasers in a time-share plan;
4. “Association” means a council or an association composed of the owners of time-share interests in a time-share plan;
5. 1. “Broker” means a person that sells or offers to sell in the ordinary course of business, time-share interests in a time-share plan to a purchaser.
   2. A broker and a sales agent conducting business from a location in this state, whether on a temporary or ongoing basis, are subject to the Real Estate Law, § 17-42-101 et seq.
   3. A violation that results from a time-share activity is not subject to the Real Estate Law, § 17-42-401 et seq.;
6. 1. “Component site” means a specific geographic location where accommodations that are part of a multisite time-share plan are located.
   2. Separate phases of a single time-share property in a specific geographic location under common management are considered a single component site;
7. 1. “Developer” means:
      1. A person who establishes a time-share plan, or is in the business of selling time-share interests or that uses a broker to sell time-share interests; or
      2. A person that succeeds in the developer's interest by sale, lease, assignment, mortgage, or other transfer, if the person:
         1. Offers at least twelve (12) time-share interests in a particular time-share plan; and
         2. Is in the business of selling time-share interests or uses a broker to sell time-share interests.
   2. “Developer” does not include a broker who is in the business of selling time-share interests;
8. “Exchange agent” means a person that owns or operates an exchange program;
9. “Exchange program” means a method, arrangement, or procedure for the voluntary exchange of time-share interests among time-share owners;
10. “Managing agent” means a person responsible for operating and maintaining a time-share property or time-share plan on behalf of the association;
11. 1. “Offering” means an offer to sell, a solicitation, an inducement, or an advertisement made in this state, whether directly or indirectly or by radio, television, newspaper, magazine, mail, or electronic media, in which a person is given an opportunity or encouraged to acquire a time-share interest.
    2. “Offering” does not include a time-share owner that may refer a person to a developer if the time-share owner's activities are limited to the referral of a prospective purchaser to the developer, the time-share owner receives nominal consideration, and does not refer more than twenty (20) prospective purchasers to the developer annually;
12. “Person” means one (1) or more natural persons, corporations, partnerships, associations, trusts, other entities, or any combination thereof;
13. “Project instrument” means a time-share instrument or other applicable document that establishes a time-share plan that contains restrictions or covenants to regulate the use, occupancy, or disposition of a time-share plan, including a declaration, rule, or an amendment thereto, of a condominium, and the articles of incorporation, bylaws, rules of an association, or an amendment thereto;
14. “Public offering statement” means the statement under § 18-14-404;
15. “Purchaser” means a person other than a developer or lender who acquires an interest in a time-share plan;
16. 1. “Reservation system” means the method, arrangement, or procedure where a purchaser is required to compete with other purchasers to reserve an accommodation of a multisite time-share plan for one (1) or more time-share periods regardless of whether the reservation system is operated and maintained by the multisite time-share plan, a managing entity, an exchange company, or other person.
    2. If a purchaser is required to use an exchange program as the principal means of reserving an accommodation and facility of the plan, the arrangement is a reservation system.
    3. If the exchange company uses a mechanism to exchange time-share periods among members of the exchange program, the use of the mechanism is not a reservation system in a multistate time-share plan;
17. 1. “Time-share estate” means an arrangement by which the purchaser receives a right to occupy a time-share property, together with a real estate interest in the time-share property.
    2. “Time-share estate” includes real property interests held in a trust in which the owners or the owners' association of the time-share plan are the express beneficiaries of that trust and the trustee is independent of the developer.
    3. If the real property interests are held in a trust, the conveyance of the real property to the trust shall be free of financial liens and encumbrances or include a recorded nondisturbance agreement;
18. “Time-share instrument” means a master deed, master lease, declaration, or other instrument used to establish a time-share plan;
19. “Time-share interest” means a time-share estate or a time-share use;
20. 1. “Time-share plan” means an arrangement, plan, scheme, or similar method, excluding an exchange program but including a membership agreement, sale, lease, deed, license, or right-to-use agreement, in which a purchaser, in exchange for consideration, receives an ownership right in or the right to use the accommodations for a period of time less than a year during a given year, but not necessarily consecutive years, regardless of whether the period of time is determined in advance.
    2. A time-share plan may be either a:
       1. “Single site time-share plan” which is the right to use an accommodation at a single time-share property; or
       2. “Multisite time-share plan” which includes:
          1. A “specific time-share interest” which is the right to use an accommodation at a specific time-share property, together with the use rights in accommodations at one (1) or more other component sites established by or acquired through the reservation system of the time-share plan; or
          2. A “nonspecific time-share interest” which is the right to use accommodations at more than one (1) component site established by or acquired through the reservation system of the time-share plan but does not include the specific right to use any particular accommodations;
21. “Time-share property” means:
    1. One (1) or more accommodations and related amenities that are subject to a time-share instrument; and
    2. Any other property or property rights appurtenant to the accommodations and amenities; and
22. “Time-share use” means any arrangement under which the purchaser receives a right to occupy a time-share property but does not receive a time-share estate.

History. Acts 1983, No. 294, Art. 1, § 1-103; A.S.A. 1947, § 50-1303; Acts 1989, No. 45, § 1; 2013, No. 710, § 1.

Publisher's Notes. Acts 1989, No. 45, § 3, provided that the Arkansas Real Estate Commission may promulgate such regulations as it deems necessary for the implementation of this act.

Amendments. The 2013 amendment rewrote the section.

18-14-103. Applicability.

1. This chapter applies to a time-share plan established after February 25, 1983, under § 18-14-201 et seq., § 18-14-401 et seq., and § 18-14-501 et seq.
2. This chapter does not apply to the offer or sale of a time-share interest if the use extends over a period of three (3) years or less, whether or not the accommodation is located in this state.

History. Acts 1983, No. 294, Art. 1, § 1-102; 1983, No. 765, § 1; A.S.A. 1947, § 50-1302; Acts 2013, No. 710, § 1.

Amendments. The 2013 amendment, in (a), substituted “applies to a time-share plan established” for “shall apply to any time-share program created or commenced”, and “under” for “and ninety (90) days thereafter as to any time share program heretofore created or commenced with respect to the requirements of”; and added (b).

18-14-104. Legal status of time-share estates.

1. 1. A time-share estate is an estate in real property and has the character and incidents of an estate in fee simple at common law, including an estate for years with a remainder over in fee simple or an estate for years with no remainder if a leasehold.
   2. This section supersedes any contrary rule at common law.
2. A document transferring or encumbering a time-share estate in real property shall not be rejected for recordation because of the nature or duration of that estate or interest.
3. For purposes of title, a time-share estate constitutes a separate estate or interest in property, except for real property tax purposes.

History. Acts 1983, No. 294, Art. 1, §§ 1-104, 1-105; A.S.A. 1947, §§ 50-1304, 50-1305; Acts 2013, No. 710, § 1.

Amendments. The 2013 amendment redesignated (a) as (a)(1) and (2); substituted “including” for “It may include” in (a)(1); substituted “This section supersedes” for “The foregoing shall supersede” in (a)(2); substituted “shall not” for “may not” in (b); and, in (c), deleted “Each time-share estate constitutes” from the beginning and inserted “time-share estate constitutes a”.

18-14-105. Regulatory discrimination prohibited.

A zoning, subdivision, or other ordinance or regulation shall not discriminate against the establishment of time-share interests or impose a requirement upon a time-share plan that it would not impose upon a similar development under a different form of ownership.

History. Acts 1983, No. 294, Art. 1, § 1-106; A.S.A. 1947, § 50-1306; 2013, No. 710, § 1.

Amendments. The 2013 amendment substituted “shall not” for “may not”, “establishment” for “creation”, “interests” for “intervals”, and “plan that” for “program which”.

Subchapter 2 — Administration and Registration

Effective Dates. Acts 1983, No. 294, § 6-106: Mar. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the protection of the residents of this State that provision be made for the sale and regulation of Time-Share Intervals by the Real Estate Commission; that this Act is designed to provide for such regulation and should be given effect at the earliest possible date. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 765, § 8: Mar. 24, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that various provisions of Act 294 of 1983 relating to the regulation of real estate time-share intervals by the Arkansas Real Estate Commission are in urgent need of revision to enable the Commission to effectively and efficiently administer the provisions of the Act; that this Act is designed to make the necessary revisions and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

18-14-201. Powers and duties of the Arkansas Real Estate Commission.

1. The Arkansas Real Estate Commission may:
   1. Set fees;
   2. Adopt, amend, and repeal rules;
   3. Issue orders consistent with this chapter;
   4. Prescribe forms and procedures for submitting information to the commission;
   5. Accept grants-in-aid from any governmental source;
   6. Contract with agencies charged with similar functions in this or other jurisdictions;
   7. Cooperate with agencies performing similar functions in this and other jurisdictions to develop uniform filing procedures and forms, uniform disclosure standards, and uniform administrative practices;
   8. Develop information that may be useful in the discharge of the duties of the commission;
   9. Initiate private investigations within or without this state;
   10. After notice and a hearing under this chapter and the Arkansas Administrative Procedure Act, § 25-15-201 et seq.:
       1. Issue a notice of suspension;
       2. Impose a civil penalty of no more than five thousand dollars ($5,000) per occurrence; and
       3. Assess costs against the person if:
          1. A representation in any document or information filed with the commission is false or misleading;
          2. A developer or agent of a developer has engaged or is engaging in any unlawful act or practice;
          3. A developer or agent of a developer has distributed, caused to be distributed, or is distributing, orally or in writing, false or misleading promotional materials concerning a time-share plan;
          4. A developer or agent of a developer has concealed, diverted, or disposed of any funds or assets of a person in a way that impairs rights of purchasers of time-share interests in the time-share plan;
          5. A developer or agent of a developer has failed to perform a stipulation or agreement made to induce the commission to issue an order relating to that time-share plan; or
          6. A developer or agent of a developer has otherwise violated this chapter or the rules or orders of the commission;
   11. Issue a cease and desist order if the developer has not registered the time-share plan under this chapter; and
   12. After notice and hearing, issue an order revoking the registration of a time-share plan upon a determination that a developer or agent of a developer has failed to comply with a notice of suspension issued by the commission, which order affects the time-share plan.
2. In addition to the civil penalties under subdivision (a)(10) of this section, the commission may require the person found to have violated this chapter or the rules or orders of the commission to reimburse any compensation, fees, or other remuneration collected during the activity that resulted in the violation.

History. Acts 1983, No. 294, Art. 4, § 4-101; A.S.A. 1947, § 50-1325; Acts 2013, No. 710, § 2.

Amendments. The 2013 amendment rewrote the section.

18-14-202. Registration required.

1. 1. 1. A developer shall not offer or dispose of a time-share interest unless the time-share plan is registered with the Arkansas Real Estate Commission.
      2. However, a developer may accept a reservation together with a deposit if the deposit is:
         1. Placed in an escrow account with an institution having trust powers; and
         2. Refundable to the purchaser at any time.
   2. A reservation requires a subsequent affirmative act by the purchaser via a separate instrument to establish a binding obligation.
   3. A developer shall not dispose of or transfer a time-share interest while an order revoking or suspending the registration of the time-share plan is in effect.
2. 1. An acquisition agent shall register the time-share plan for which it is providing prospective purchasers with the commission unless there is an effective registration of the plan filed with the commission by the developer.
   2. An acquisition agent if other than the developer shall furnish to the commission:
      1. Its principal office address and telephone number;
      2. The name of its designated responsible managing employee; and
      3. Any additional information the commission requires including evidence that a bond in an amount determined by the commission but not to exceed twenty-five thousand dollars ($25,000) has been placed with a surety company, corporate bond acceptable to the commission, or a cash bond with the commission to cover a violation of any solicitation ordinances, zoning ordinances, building codes, or other regulations governing the use of the premises in which the time-share plan is promoted.
   3. Each acquisition agent shall renew the registration annually and pay a filing fee not to exceed one hundred fifty dollars ($150) for the registration and each renewal of the registration.
3. 1. A real estate principal broker shall register with the commission the time-share plan that it is selling unless there is an effective registration of the plan filed with the commission by the developer.
   2. The real estate principal broker if other than the developer shall furnish to the commission:
      1. Its principal office address and telephone number;
      2. The name of its designated responsible managing employee;
      3. Any special escrow accounts set up for the deposit and collection of purchasers' funds; and
      4. Any additional information the commission requires, including evidence that a bond in an amount determined by the commission but not to exceed twenty-five thousand dollars ($25,000) has been placed with a surety company, corporate bond acceptable to the commission, or a cash bond with the commission to cover any defalcations of the real estate principal broker and any of its sales agents.
   3. Each real estate principal broker shall renew its registration annually and pay a filing fee not to exceed one hundred fifty dollars ($150) for the registration and each renewal of the registration.
4. 1. A managing agent shall register with the commission the time-share plan that it is managing unless there is an effective registration of the plan filed with the commission by the developer.
   2. The managing agent shall furnish to the commission:
      1. Its principal office address and telephone number;
      2. The name of its designated responsible managing employee; and
      3. Any additional information the commission requires, including evidence that a bond in an amount determined by the commission but not to exceed twenty-five thousand dollars ($25,000) has been placed with a surety company, corporate bond acceptable to the commission, or a cash bond with the commission to cover any default of the managing agent of his or her duties and responsibilities.
   3. Each managing agent shall renew the registration annually and pay a filing fee not to exceed one hundred fifty dollars ($150) for the registration and each renewal of the registration.
5. 1. If the acquisition agent, real estate principal broker, or management agent is under the control of, a subsidiary of, or affiliate of the developer , the bond of the broker or agent whether one (1) or more, can be consolidated and reduced to an amount determined by the commission but not to exceed seventy-five thousand dollars ($75,000) if there is a disclosure of the affiliation to the commission.
   2. If the developer registers an additional time-share plan, including additional phases, in the existing time-share plan with the commission, the developer is not required to furnish an additional bond or increase the existing bond for the additional registration if the initial bond remains in effect.
6. 1. An exchange agent shall file a statement with the commission containing:
      1. A list of the time-share plans or properties that it is offering exchange services for;
      2. Its principal office address and telephone number; and
      3. The name of its designated responsible managing employee or its contact person.
   2. Each exchange agent shall renew his or her registration annually and pay a filing fee not to exceed one hundred fifty dollars ($150) for the registration and each renewal thereof of the registration.
7. The acquisition agent and real estate principal broker shall each maintain their respective records of any employees or independent contractors employed by them, their addresses, and the commissions paid for the immediately preceding two (2) calendar years.
8. Any interest earned on a bond or a bond substitute, whether cash, certificate of deposit, bank account, security, or other instrument, while on deposit with or for the benefit of the commission becomes the separate property of the commission and is deposited into the Real Estate Recovery Fund in § 17-42-403.
9. A filing fee may be discounted for an applicant that submits the required filings using the Association of Real Estate License Law Officials' web-based document management program.

History. Acts 1983, No. 294, Art. 4, § 4-102; 1983, No. 765, § 2; A.S.A. 1947, § 50-1326; Acts 1989, No. 44, § 1; 2013, No. 710, § 2.

Publisher's Notes. Acts 1989, No. 44, § 4, provided that the Arkansas Real Estate Commission may promulgate such regulations as it deems necessary for the implementation of this act.

Amendments. The 2013 amendment rewrote the section.

18-14-203. Abbreviated registration — Exemptions.

1. An abbreviated registration with the Arkansas Real Estate Commission may be accepted if the developer is registered and has issued a public offering statement or similar disclosure document that is provided to purchasers under any of the following:
   1. Securities Act of 1933, 15 U.S.C. § 77a et seq.;
   2. Arkansas Securities Act, § 23-42-101 et seq.;
   3. Federal Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq., if the time-share plan is made a part of the subdivision that is being registered; and
   4. Any federal or state act that requires a federal or state agency to review a public offering statement or similar disclosure document that must be distributed to purchasers if the commission determines that the federal or state public offering statement is substantially equivalent to that required by this chapter.
2. Annually or when a public offering statement is amended, the public offering statement shall be submitted to the commission for recertification.
3. An applicant filing an abbreviated registration shall pay:
   1. A filing fee not to exceed five hundred dollars ($500);
   2. Any necessary investigation expenses as stated in § 18-14-204(d); and
   3. A fee not to exceed three hundred dollars ($300) for each request for recertification under subsection (b) of this section.
4. A registration with the commission is not required in the case of:
   1. A transfer of a time-share interest by any time-share interest owner other than the developer or its agent unless the transfer is made to evade this chapter;
   2. Any disposition under a court order;
   3. A disposition by a government or governmental agency;
   4. A disposition by foreclosure or deed in lieu of foreclosure;
   5. A developer's offer of additional time-share interests in a time-share plan located outside this state to owners that have previously purchased from the developer or a developer under common ownership or control with the developer, if the developer has had a registration or amendment approved by the commission within the preceding seven (7) years;
   6. A gratuitous transfer of a time-share interest;
   7. A time-share property that consists of a single accommodation and related amenities for which the developer or a person under the control of, a subsidiary of, or affiliate of the developer operates as the acquisition agent, broker, or exchange agent; or
   8. A disposition of a time-share interest owned by an owners' association of which the time-share interest is a part.

History. Acts 1983, No. 294, Art. 4, § 4-107; 1983, No. 765, § 5; A.S.A. 1947, § 50-1331; Acts 2013, No. 710, § 2.

Amendments. The 2013 amendment substituted “Abbreviated registration — Exemptions” for “Exemptions from registration” in the section heading; and rewrote the section.

18-14-204. Application for registration.

1. An application for registration of a time-share plan shall contain:
   1. The public offering statement;
   2. A brief description of the time-share property;
   3. Copies of time-share instruments;
   4. Financial statements prepared according to generally accepted accounting principles and fully and fairly disclosing the current financial condition of the developer;
   5. Any other documents referred to in the registration application; and
   6. Other information as required by the Arkansas Real Estate Commission.
2. 1. If the accommodation in the time-share plan is in a condominium development or other common-interest subdivision, the application for registration shall contain evidence that the use of the accommodation for time-share purposes is not prohibited by the project instruments.
   2. If the project instruments do not expressly authorize time-sharing, the application for registration shall contain evidence that purchasers in the condominium development or other common-interest subdivision were given written notice at least sixty (60) days before the application for registration was submitted that the accommodation would be used for time-share purposes.
   3. If the project instruments contain a prohibition against time-sharing, the board of directors of the association shall certify that the amendment procedures in the project instruments were followed and that the project instruments have been amended to permit time-sharing.
3. The application shall be accompanied by a filing fee not to exceed one thousand dollars ($1,000).
4. 1. The commission shall thoroughly investigate matters relating to the application and may require a personal inspection of the time-share property by a person designated by it.
   2. All direct expenses incurred by the commission in inspecting the time-share property are paid by the applicant, and the commission may require a deposit sufficient to cover the direct expenses before incurring them.
5. An application for registration shall be renewed, annually, and the renewal filing fee shall not exceed five hundred dollars ($500).

History. Acts 1983, No. 294, Art. 4, § 4-103; 1983, No. 765, § 3; A.S.A. 1947, § 50-1327; Acts 2013, No. 710, § 2.

Amendments. The 2013 amendment rewrote the section.

18-14-205. Material changes.

1. A developer shall amend or supplement its registration to report a material change in the information required by § 18-14-204.
2. 1. If there is a material change in a registration document, the developer shall file an amendment with the Arkansas Real Estate Commission to report the material change no later than forty-five (45) days after the developer knows or reasonably should have known of the change.
   2. The developer may continue to offer and dispose of time-share interests under the existing registration pending review of the amendments by the commission if the developer discloses the material change to prospective purchasers.
   3. The commission may charge a fee not to exceed three hundred dollars ($300) to process an amendment.

History. Acts 1983, No. 294, Art. 4, § 4-106; A.S.A. 1947, § 50-1330; Acts 2013, No. 710, § 2.

Amendments. The 2013 amendment added (b)(1) through (3).

18-14-206. Effectiveness of registration or amendment.

1. 1. Except as otherwise provided, the effective date of the registration or any amendment is forty-five (45) days after its filing or such earlier date as the Arkansas Real Estate Commission may determine, having regard for the public interest and the protection of purchasers.
   2. If an amendment to a registration is filed before the effective date, the registration is considered to have been filed when the amendment was filed.
2. 1. If it appears to the commission that the application for registration or an amendment to the registration is on its face incomplete or inaccurate in any material respect, the commission shall so advise the developer by listing each deficiency in writing before the date the registration would otherwise be effective.
   2. The notification of the deficiency serves to suspend the effective date of the filing until ten (10) days after the developer files the additional information as required by the commission.
   3. 1. Any developer, upon receipt of the notice of deficiencies, may request a hearing.
      2. The hearing shall be held within thirty (30) days of receipt of the request.

History. Acts 1983, No. 294, Art. 4, § 4-105; 1983, No. 765, § 4; A.S.A. 1947, § 50-1329; Acts 2013, No. 710, § 2.

Amendments. The 2013 amendment rewrote the section.

18-14-207. Regulation and use of public offering statement.

1. 1. The Arkansas Real Estate Commission may require a developer to alter or supplement the form or substance of a public offering statement to assure adequate and accurate disclosure to prospective purchasers.
   2. The commission may require that certain disclosures contained in the public offering statement be in boldface type to protect the purchaser.
2. 1. The public offering statement shall not be used for promotional purposes before registration and may be used afterwards only in its entirety.
   2. A person shall not advertise that the commission has approved or recommended the time-share plan, the disclosure statement, or any of the documents contained in the application for registration.

History. Acts 1983, No. 294, Art. 4, § 4-104; A.S.A. 1947, § 50-1328; Acts 2013, No. 710, § 2.

Amendments. The 2013 amendment subdivided (a) and (b); substituted “Arkansas Real Estate Commission” for “agency” in (a)(1); in (a)(2), substituted “The commission” for “In order to ensure adequate protection of the purchaser through disclosure, the agency”, deleted “placed” preceding “in boldface” and added “to protect the purchaser” to the end; in (b)(1), substituted “shall not” for “may not”, deleted “any” preceding “promotional”, “the statement” preceding “may be used”, and “if it is used” following “only”; and, in (b)(2), substituted “A person shall not advertise that the commission” for “No person may advertise or represent that the agency” and “plan” for “program”.

Subchapter 3 — Creation, Termination, and Management

Effective Dates. Acts 1983, No. 294, § 6-106: Mar. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the protection of the residents of this State that provision be made for the sale and regulation of Time-Share Intervals by the Real Estate Commission; that this Act is designed to provide for such regulation and should be given effect at the earliest possible date. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

18-14-301. Time-share plans permitted.

A time-share plan may be established in any accommodation unless expressly prohibited by the project instruments.

History. Acts 1983, No. 294, Art. 2, § 2-101; A.S.A. 1947, § 50-1308; Acts 2013, No. 710, § 3.

Amendments. The 2013 amendment substituted “plans” for “programs” in the section heading; and substituted “plan” for “program”, “established” for “created” and “accommodation” for “unit”.

18-14-302. Contents of instruments establishing time-share estates.

A project and time-share instrument that establishes a time-share estate located or offered in this state shall contain:

1. The name of the county in which the property is situated;
2. The legal description, street address, or other description sufficient to identify the property;
3. Identification of time periods by letter, name, number, or combination thereof;
4. Identification of time-share estates and, when applicable, the method by which additional time-share estates may be established;
5. The formula, fraction, or percentage of the common expenses and any voting rights assigned to each time-share estate and, when applicable, to each accommodation in a project that is not subject to the time-share plan;
6. Restrictions on the use, occupancy, alteration, or alienation of time-share interests;
7. The ownership interest, if any, in personal property and for care and replacement;
8. Any other matters the developer considers appropriate; and
9. 1. Provisions concerning the establishment of a lien against an owner's time-share interest in favor of the association of time-share estate owners to secure payment of common expenses.
   2. This lien when provided for in the time-share instrument is enforceable and foreclosable in the way other statutory liens are enforceable and foreclosable under the laws of this state.

History. Acts 1983, No. 294, Art. 2, § 2-102; A.S.A. 1947, § 50-1309; Acts 2013, No. 710, § 3.

Amendments. The 2013 amendment substituted “establishing” for “creating” in the section heading; rewrote the introductory language; in (4), substituted “when” for “where”, “by which” for “whereby”, and “established” for “created”; in (5), substituted “when” for “where”, “accommodation” for “unit”, and “plan” for “program”; in (6), substituted “Restrictions” for “Any restrictions” and “interests” for “intervals”; substituted “considers” for “deems” in (8); subdivided (9) as (9)(A) and (9)(B); substituted “Provisions concerning” for “Any provisions pertaining to” in (9)(A); and, in (9)(B), substituted “is” for “shall be” and “way” for “same manner in which”.

18-14-303. Provisions for management and operation of time-share estate plans.

The time-share instruments for a time-share estate plan offered in this state shall prescribe reasonable arrangements for management and operation of the time-share plan or time-share property and for the maintenance, repair, and furnishing of accommodations including:

1. Establishment of an association of time-share estate owners;
2. Adoption of bylaws for organizing and operating the association;
3. Payment of costs and expenses of operating the time-share plan or time-share property and owning and maintaining the accommodations;
4. Employment and termination of employment of the managing agent for the association;
5. Preparation and dissemination to owners of information concerning the time-share plan or property, including:
   1. An annual budget;
   2. Operating statements; and
   3. Other financial information;
6. Procedures for establishing the rights of owners for the use of accommodations by prearrangement or under a first-reserved, first-served system;
7. Adoption of standards and rules of conduct for the use and occupancy of accommodations by owners;
8. Collection of assessments from owners to defray the expenses of management of the time-share plan or time-share property and maintenance of the accommodation and amenities of the time-share plan or time-share property;
9. Comprehensive general liability insurance for death, bodily injury, and property damage arising out of, or in connection with, the use of the accommodations by owners, their guests, and other users;
10. Methods for providing compensating use periods or monetary compensation to an owner if an accommodation cannot be made available for the period to which the owner is entitled by schedule or by confirmed reservation; and
11. 1. Procedures for imposing a monetary penalty or suspension of an owner's rights and privileges in the time-share plan for failure of the owner to comply with the time-share instruments or the rules of the association concerning the use of the accommodations and amenities.
    2. Under these procedures an owner shall be given notice and the opportunity to refute or explain the charges against him or her in person or in writing to the governing body of the association before a decision to impose discipline is rendered.
    3. A monetary penalty may be secured by the lien in § 18-14-302.

History. Acts 1983, No. 294, Art. 2, § 2-103; A.S.A. 1947, § 50-1310; Acts 2013, No. 710, § 3.

Amendments. The 2013 amendment rewrote the section.

18-14-304. Developer control period.

1. The time-share instruments for a time-share estate plan may provide for a length of time, known as the “developer control period”, during which the developer, or a managing agent selected by the developer, may manage the time-share plan and the accommodations in the time-share plan.
2. If the time-share instruments for a time-share estate plan provide for the establishment of a developer control period, the procedure shall ordinarily include:
   1. Termination of the developer control period by action of the association or by operation of the time-share instruments;
   2. Termination of contracts for goods and services for the time-share plan or for accommodations in the time-share plan during the developer control period; and
   3. A regular accounting by the developer to the association concerning matters that significantly affect the interests of owners in the time-share plan.

History. Acts 1983, No. 294, Art. 2, § 2-104; A.S.A. 1947, § 50-1311; Acts 2013, No. 710, § 3.

Amendments. The 2013 amendment substituted “plan” for “program” and “accommodations” for “units” throughout the section; in (a), substituted “length” for “period” and “known” for “hereafter referred to”; substituted “the procedure shall ordinarily include” for “they shall ordinarily include provisions for the following” in (b); added “or by operation of the time-share instruments” in (b)(1); deleted “entered into” preceding “during” in (b)(2); and substituted “concerning” for “as to all” in (b)(3).

18-14-305. Instruments establishing time-share uses.

A project instrument or time-share instrument that establishes time-share uses containing accommodations located or offered in this state shall contain:

1. Identification by name of the time-share plan and street address where the time-share plan is situated;
2. Identification of the time periods, type of accommodations, the accommodations that are in the time-share plan and the length of time that the accommodations are committed to the time-share plan;
3. In case of a time-share plan, identification of which accommodations are in the time-share plan and the method for adding, deleting, or substituting other accommodations; and
4. Any other matters that the developer considers appropriate.

History. Acts 1983, No. 294, Art. 2, § 2-105; A.S.A. 1947, § 50-1312; Acts 2013, No. 710, § 3.

Amendments. The 2013 amendment substituted “establishing” for “creating” in the section heading; substituted “plan” for “project” or “program” and “accommodations” for “units” throughout the section; rewrote the introductory language; substituted “for adding, deleting, or substituting other accommodations” for “whereby any other units may be added, deleted, or substituted” in (3); and substituted “considers” for “deems” in (4).

18-14-306. Provisions for management and operation of time-share use plans.

The time-share instruments for a time-share use plan containing accommodations offered in this state shall prescribe reasonable arrangements for the management and operation of the time-share plan and for the maintenance, repair, and furnishing of accommodations including:

1. Standards and procedures for upkeep, repair, and interior furnishing of accommodations and for maid, cleaning, linen, and similar services to the accommodations during use periods;
2. Adoption of standards and rules of conduct governing the use and occupancy of accommodations by owners;
3. Payment of the costs and expenses of operating the time-share plan and owning and maintaining the accommodations;
4. Selection of a managing agent;
5. Preparation and dissemination to owners of an annual budget, operating statements, and other financial information concerning the time-share plan or time-share property;
6. Procedures for establishing the rights of owners to the use of accommodations by prearrangement or under a first-reserved, first-served priority system;
7. Organization of a management advisory board consisting of time-share use owners, including an enumeration of rights and responsibilities of the board;
8. Procedures for imposing and collecting assessments or use fees from time-share use owners as necessary to defray costs of management of the time-share plan and providing materials and services to the accommodations;
9. Comprehensive general liability insurance for death, bodily injury, and property damage arising out of, or in connection with, the use of accommodations by time-share use owners, their guests, and other users;
10. Methods for providing compensating use periods or monetary compensation to an owner if an accommodation cannot be made available for the period to which the owner is entitled by schedule or by a confirmed reservation; and
11. 1. Procedures for imposing a monetary penalty or suspension of an owner's rights and privileges in the time-share plan for failure of the owner to comply with the time-share instruments or the rules established by the developer concerning the use of the accommodations.
    2. The owner shall be given notice and the opportunity to refute or explain the charges, in person or in writing, to the management advisory board before a decision to impose discipline is rendered.

History. Acts 1983, No. 294, Art. 2, § 2-106; A.S.A. 1947, § 50-1313; Acts 2013, No. 710, § 3.

Amendments. The 2013 amendment substituted “plans” for “programs” in the section heading; substituted “accommodations” for “units” and “plan” for “program” throughout the section; rewrote the introductory language; deleted “providing of” preceding “maid” in (1); in (5), deleted “and of” following “budget” and substituted “plan or time-share property” for “program”; redesignated (11) as (11)(A) and (B); in (11)(A), deleted “provisions of the” following “comply with the” and substituted “concerning” for “with respect to”; and deleted (12).

18-14-307. Partition of accommodations.

An action for partition of an accommodation shall not be maintained unless permitted by the time-share instrument.

History. Acts 1983, No. 294, Art. 2, § 2-107; A.S.A. 1947, § 50-1314; Acts 2013, No. 710, § 3.

Amendments. The 2013 amendment substituted “accommodations” for “units” in the section heading; substituted “an accommodation shall not” for “a unit may”; and “unless” for “except as”.

18-14-308. Records.

1. The association or managing agent shall maintain among its records a list of the names and post office addresses of the owners of time-share interests in the time-share plan.
2. The list shall:
   1. Be updated every six (6) months; and
   2. Not be published or provided to owners or a third person to use or sell the list for commercial purposes.
3. 1. If an owner of a time-share interest in the time-share plan provides a written request to the association to communicate with its membership, the association shall determine within thirty (30) days of the date of the request whether the communication advances legitimate association business and if so, provide a method to grant the request without disclosing the association membership list to the requesting owner.
   2. 1. The association shall notify the requesting owner of the costs to make the communication before the communication is made to the owners.
      2. The requesting owner shall pay the costs to the association before the association makes the communication.
   3. An alternative method that accomplishes the original purpose of the request made under subdivision (c)(1) of this section is a reasonable alternative.
   4. 1. If the association determines that a communication does not advance legitimate association business, the association shall notify the requesting owner in writing within thirty (30) days of the reasons for the rejection.
      2. An owner that is denied a request for information under subdivision (c)(4)(A) of this section may appeal the denial to the court in whose jurisdiction the association lies.
      3. If the court determines that the communication does advance legitimate association business, the court may order the association to pay the requesting owner's costs, including attorney's fees reasonably incurred to enforce the requesting owner's rights.

History. Acts 2013, No. 710, § 3.

18-14-309. Supervisory authority.

1. Notwithstanding the obligations imposed on other persons by this chapter, the developer shall supervise, manage, and control the aspects of the offering of a time-share plan, including the promotion, advertising, contracting, and closing.
2. A violation of this section during the offering is a violation by the developer and the person that committed the violation.

History. Acts 2013, No. 710, § 3.

18-14-310. Out-of-state time-share plan.

1. A single site time-share plan and component sites of a multisite time-share plan that are located outside the state are to be established and governed by the applicable laws of the state in which the time-share property or component site is located.
2. If there is a conflict between the affirmative standards stated in the laws of the state or jurisdiction that governs an out-of-state time-share plan and this subchapter, the law of the state or jurisdiction in which the time-share property is located controls.
3. If the association and the time-share instruments provide for the matters contained in §§ 18-14-302 — 18-14-306, as applicable, the developer or association is considered to be in compliance with these sections and is not required to revise the time-share instruments to comply with this subchapter.

History. Acts 2013, No. 710, § 3.

Subchapter 4 — Protection of Purchasers

Effective Dates. Acts 1983, No. 294, § 6-106: Mar. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the protection of the residents of this State that provision be made for the sale and regulation of Time-Share Intervals by the Real Estate Commission; that this Act is designed to provide for such regulation and should be given effect at the earliest possible date. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

18-14-401. Penalties.

A developer or any other person subject to this chapter that offers or disposes of a time-share interest without complying with this chapter or that violates this chapter is guilty of a misdemeanor punishable by a fine not to exceed five thousand dollars ($5,000) per occurrence or by imprisonment not to exceed one (1) year, or both.

History. Acts 1983, No. 294, Art. 3, § 3-108; A.S.A. 1947, § 50-1322; Acts 2013, No. 710, § 4.

Amendments. The 2013 amendment rewrote the section.

18-14-402. Civil remedies.

1. 1. If a developer or any other person subject to this chapter violates this chapter or a project instrument, a person or class of persons adversely affected by the violation has a claim for appropriate relief.
   2. Punitive damages or attorney's fees, or both, may be awarded for willful violation of this chapter.
2. Section 17-42-401 et seq. does not apply to any claims arising from or damages caused by a violation of this chapter, the Real Estate License Law, § 17-42-101 et seq., or rules by a licensee while engaged in a time-share activity.

History. Acts 1983, No. 294, Art. 3, § 3-108; A.S.A. 1947, § 50-1322; Acts 1989, No. 45, § 2; 1991, No. 786, § 27; 2013, No. 710, § 4.

Publisher's Notes. Acts 1989, No. 45, § 3, provided that the Arkansas Real Estate Commission may promulgate such regulations as it deems necessary for the implementation of this act.

Acts 1991, No. 786, § 37, provided:

“The enactment and adoption of this Act shall not repeal, expressly or impliedly, the acts passed at the regular session of the 78th General Assembly. All such acts shall have full effect and, so far as those acts intentionally vary from or conflict with any provision contained in this Act, those acts shall have the effect of subsequent acts and as amending or repealing the appropriate parts of the Arkansas Code of 1987.”

Amendments. The 2013 amendment subdivided (a) as (a)(1) and (a)(2); in (a)(1), substituted “this chapter or a project instrument, a” for “any provision thereof or any provision of the project instruments, any” and deleted “or violations” following “violation”; and rewrote (b).

18-14-403. Statute of limitations.

1. A judicial proceeding in which the accuracy of the public offering statement or validity of a contract of purchase is in issue and a rescission of the contract or damages is sought shall be commenced not later than four (4) years after the date of the contract of purchase, notwithstanding that the purchaser's terms of payment may extend beyond the period of limitation.
2. If the enforcement of provisions in the contract of purchase requires the continued furnishing of services and the reciprocal payments to be made by the purchaser, the period of bringing a judicial proceeding will continue for a period of four (4) years for each breach, but the parties may agree to reduce the period of limitation to not less than two (2) years.

History. Acts 1983, No. 294, Art. 3, § 3-109; A.S.A. 1947, § 50-1323; Acts 2013, No. 710, § 4.

Amendments. The 2013 amendment redesignated the paragraph as (a) and (b); substituted “shall be commenced not later than” for “must be commenced within” in (a); and substituted “If the enforcement of provisions in the contract of purchase requires” for “However, with respect to the enforcement of provisions in the contract of purchase which require” in (b).

18-14-404. Required contents of public offering statements for time-share interests.

1. A public offering statement shall be provided to each purchaser of a time-share interest and may be delivered by hard copy or electronically, including a CD, DVD, thumb drive, or other electronic media agreeable to the purchaser. The public offering statement shall fully and accurately disclose:
   1. The name of the developer, its principal address, and the time-share plan offered in the statement;
   2. A general description of the accommodations, including, without limitation, the developer's schedule of commencement and completion of all buildings, accommodations, and amenities or, if completed, that the buildings, accommodations, and amenities have been completed;
   3. As to the accommodations offered by the developer in the time-share plan:
      1. The types and number of accommodations by location, if applicable;
      2. Identification of accommodations that are subject to time-share interests; and
      3. The estimated number of accommodations that may become subject to time-share interests;
   4. A brief description of the time-share plan;
   5. 1. If applicable, the current budget and a projected budget for the time-share interests for one (1) year after the date of the first transfer to a purchaser.
      2. The budget shall include, without limitation:
         1. A statement of the amount included in the budget as a reserve for repairs and replacement;
         2. The projected common expense liability, if any, by category or expenditures for the time-share interests;
         3. The total annual projected common expense liability for all time-share interests in the time-share plan; and
         4. A statement of any services not shown in the budget that the developer provides or expenses that it pays;
   6. Any initial or special fee due from the purchaser at closing with a description of the purpose and method of calculating the fee;
   7. A description of any liens, defects, or encumbrances on or affecting the title to any of the time-share interests;
   8. A description of any financing offered by the developer;
   9. A statement that within five (5) days after execution of a contract of purchase a purchaser may cancel any contract for purchase of time-share interests from the developer;
   10. A statement of any pending suits material to the time-share interests of which the developer has actual knowledge;
   11. Any restraints on alienation of any number or part of any of the time-share interests;
   12. A description of the insurance coverage that is for the benefit of the owners of time-share interests;
   13. Any current or expected fees or charges to be paid by time-share interest owners for the use of any facilities related to any of the time-share property;
   14. The extent to which financial arrangements have been provided for completion of the promised improvements; and
   15. The extent to which a time-share accommodation may become subject to a tax or other lien arising out of claims against other owners of the accommodation.
2. 1. If a purchaser is offered the opportunity to subscribe to any program that provides exchanges of time-shares among purchasers in either the same time-sharing plan or other time-sharing plans, or both, the developer shall deliver to the purchaser before the execution of a contract between the purchaser and the company offering the exchange program, written information concerning the exchange program, which information may be delivered by hard copy or electronically.
   2. The purchaser shall certify in writing to the receipt of the information that includes:
      1. The name and address of the exchange program;
      2. The names of the officers and directors;
      3. Whether the exchange program, or any of its officers or directors, has a legal or beneficial interest in any developer or managing agent for a time-share plan participating in the exchange program and, if so, the name and location of the time-share plan and the nature of the interest;
      4. Unless otherwise stated, a statement that the purchaser's contract with the exchange program is a contract separate and distinct from the purchaser's contract with the developer;
      5. Whether the purchaser's participation in the exchange program is dependent upon the continued affiliation of the time-share project with the exchange program;
      6. Whether the purchaser's membership or participation, or both, in the exchange program is voluntary or mandatory;
      7. A complete and accurate description of the terms and conditions of the purchaser's contractual relationship with the exchange program and the procedure by which changes may be made;
      8. A complete and accurate description of the procedure to qualify for and carry out exchanges;
      9. A complete and accurate description of the limitations, restrictions, or priorities used in the operation of the exchange program, including limitations on exchanges based on seasonality, accommodation size, or levels of occupancy that are expressed in bold-faced type and if limitations, restrictions, or priorities are not uniformly applied by the exchange program, a clear description of the way in which they are applied;
      10. Whether exchanges are arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for exchanges are made by the exchange program;
      11. Whether and under what circumstances, a purchaser, in dealing with the exchange program, may lose the use and occupancy of his or her time-share in any exchange properly applied for without his or her being provided with substitute accommodations by the exchange program;
      12. The fees or range of fees for participation by purchasers in the exchange program, a statement whether such fees may be altered by the exchange company, and the circumstances under which alterations may be made;
      13. The name and address of the site of each accommodation or facility included in the time-share properties that are participating in the exchange program as of the last annual review or audit;
      14. The number of time-share accommodations in each time-share property that are available for occupancy, under the last annual review or audit, and that qualify for participation in the exchange program, expressed in numerical groupings: 1-5, 6-10, 11-20, 21-50, and 51 and over;
      15. The number of purchasers enrolled for each time-share plan participating in the exchange program, under the last annual review or audit, expressed in numerical groupings: 1-100, 101-249, 250-499, 500-999, and 1,000 and over, and a statement of the criteria used to determine those purchasers that are enrolled with the exchange program;
      16. The disposition made by the exchange company of time-shares deposited with the exchange program by purchasers enrolled in the exchange program and not used by the exchange company in making changes;
      17. The information required in this subdivision (b)(2)(Q) shall be independently reviewed or audited by a certified public accountant or accounting firm according to the standards of the Financial Accounting Standards Board and annually reported:
          1. The number of purchasers currently enrolled in the exchange program;
          2. The number of accommodations and facilities that have current written affiliation agreements with the exchange program;
          3. The percentage of confirmed exchanges that are the number of exchanges confirmed by the exchange program divided by the number of exchanges properly applied for, together with a complete and accurate statement of the criteria used to determine whether an exchange request was properly applied for;
          4. The number of time-share periods for which the exchange program has an outstanding obligation to provide an exchange to a purchaser who relinquished a time-share during the year in exchange for a time-share in any future year; and
          5. The number of exchanges confirmed by the exchange program during the year; and
      18. 1. A statement in boldface type to the effect that the percentage described in subdivision (b)(2)(Q)(iii) of this section is a summary of the exchange requests entered with the exchange program in the period reported.
          2. The percentage does not indicate a purchaser's probabilities of being confirmed to a specific choice or range of choices, since availability at individual locations may vary.
3. Each exchange company offering an exchange program to purchasers in this state shall include the statement in subdivision (b)(2)(R) of this section on all promotional brochures, pamphlets, advertisements, or other materials distributed by the exchange company that contains the percentage in subdivision (b)(2)(Q)(iii) of this section.
4. 1. A developer may satisfy the requirements of this section by delivery to purchasers of materials furnished to the developer by the exchange program if the exchange program has certified to the developer that the materials satisfy the requirements of this section.
   2. A developer has no liability to a person if the materials furnished by the exchange program fail to comply with this section.

History. Acts 1983, No. 294, Art. 3, § 3-101; A.S.A. 1947, § 50-1315; Acts 2013, No. 710, § 4.

Amendments. The 2013 amendment rewrote the section.

18-14-405. Material changes.

1. The developer shall amend or supplement the public offering statement to report any material change in the information required by § 18-14-404.
2. The developer shall use the written materials that are supplied to it by an exchange program for distribution to the time-share interest owners as the materials are received.

History. Acts 1983, No. 294, Art. 3, § 3-106; A.S.A. 1947, § 50-1320; Acts 2013, No. 710, § 4.

Amendments. The 2013 amendment redesignated the paragraph as (a) and (b); and, in (b), inserted “by an exchange program”, deleted “As to any exchange program” from the beginning, deleted “current” preceding “written”, and substituted “interest owners as the materials are” for “interval owners as it is”.

18-14-406. Other statutes not applicable.

1. A time-share plan in which a public offering statement is prepared under this chapter does not require registration under any of the following:
   1. Arkansas Securities Act, § 23-42-101 et seq.; or
   2. Any other Arkansas statute that requires a public offering statement or substantially similar document for distribution to purchasers.
2. 1. A time-share plan that fails to restrict the price at which an owner may sell or exchange his or her time-share interest does not by that failure cause the time-share interest to become a security under the Arkansas Securities Act, § 23-42-101 et seq.
   2. An exchange agent offering a time-share interest for exchange is not considered to be offering a security under the Arkansas Securities Act, § 23-42-101 et seq.

History. Acts 1983, No. 294, Art. 3, § 3-105; A.S.A. 1947, § 50-1319; Acts 2013, No. 710, § 4.

Amendments. The 2013 amendment substituted “plan” for “program” throughout the section; deleted “the preparation of” preceding “a public offering statement” in (a)(2); redesignated (b) as (b)(1) and (b)(2); in (b)(1), substituted “interest does not by that” for “interval shall not by virtue of such” and “interest” for “interval”; and, in (b)(2), substituted “interest” for “interval”, “is not considered” for “shall not be construed” and “the Arkansas Securities Act, § 23-42-101 et seq.” for “such act”.

18-14-407. Escrow accounts — Other financial assurances.

1. Any deposit made with the purchase or reservation of a time-share interest from a developer shall be placed in a noninterest-bearing escrow account and held in this state, or other jurisdiction that is acceptable to the Arkansas Real Estate Commission, in a designated account by an independent bonded escrow company or in an institution whose accounts are insured by a governmental agency or instrumentality until:
   1. Delivered to the developer at the end of the time for rescission or a later time specified in a contract or sale;
   2. Delivered to the developer because of the purchaser's default under a contract to purchase the time-share interest; or
   3. Refunded to the purchaser.
2. 1. In lieu of any escrows required by this section, the commission has the discretion to accept other financial assurances, including a surety bond, or a cash deposit in an amount equal to the escrow requirements of this section.
   2. Interest earned on a surety bond or other deposit while deposited with, or for the benefit of, the commission becomes the property of the commission and is deposited into the Real Estate Recovery Fund in § 17-42-403.

History. Acts 1983, No. 294, Art. 3, § 3-102; A.S.A. 1947, § 50-1316; Acts 1989, No. 44, § 2; 2013, No. 710, § 4.

Publisher's Notes. Acts 1989, No. 44, § 4, provided that the Arkansas Real Estate Commission may promulgate such regulations as it deems necessary for the implementation of this act.

Amendments. The 2013 amendment substituted “Other” for “or other” in the section heading; substituted “interest” for “interval” throughout the section; in (a), deleted “in connection” following “Any deposit made” and substituted “or other jurisdiction that is acceptable to the Arkansas Real Estate Commission in a designated account” for “in an account designated solely for the purpose”; substituted “end” for “expiration” in (a)(1); in (b)(1), substituted “commission has” for “agency shall have”, deleted “but not limited to” preceding “a surety bond”, and deleted “an irrevocable letter of credit” following “surety bond”; and, in (b)(2), substituted “a surety bond” for “any such bond”, “commission becomes” for “agency shall become”, “commission” for “agency”, substituted “is deposited into” for “shall be deposited in” and deleted “created” preceding “in § 17-42-203”.

18-14-408. Guarantees for completion of time-share properties.

1. 1. If a developer contracts to sell a time-share interest and the construction, furnishings, and landscaping of the time-share property have not been substantially completed according to the representations made by the developer in the disclosures under this chapter, the developer shall pay into an escrow account established and held in this state, in an account designated solely for the purpose, by an independent bonded escrow company, or in an institution whose accounts are insured by a governmental agency or instrumentality, a payment received by the developer from the purchaser towards the sale price until the time-share property is substantially complete.
   2. The escrow agent may invest the escrow funds in securities for the United States, any agency thereof, or in savings or time deposits in institutions insured by an agency of the United States.
   3. Funds are released from escrow as follows:
      1. If a purchaser properly terminates the contract under its terms or this chapter, the funds shall be paid to the purchaser, together with any interest earned;
      2. If the purchaser defaults in the performance of his or her obligations under the contract of purchase and sale, the funds shall be paid to the developer, together with any interest earned; or
      3. If the funds of a purchaser have not been previously disbursed under subdivision (a)(1) of this section, they may be disbursed to the developer by the escrow agent upon substantial completion of the time-share property.
   4. 1. The developer is not required to comply with subdivision (a)(1) of this section if the commission is satisfied that all of the following conditions are met:
         1. The developer is an Arkansas corporation or a foreign corporation qualified to do business in Arkansas;
         2. The corporation has been in existence and operated in this state for at least three (3) years; and
         3. The corporation has net assets within this state of at least three (3) times the cost to complete the time-share property.
      2. The commission may require other assurances as may reasonably be required either to assure completion of the time-share property or to reimburse the purchaser the funds paid to the developer, together with any interest earned.
   5. 1. In lieu of the escrow required by subdivision (a)(1) of this section, the commission may accept other financial assurances, including a performance bond equal to the cost to finish the time-share property.
      2. Interest earned on the performance bond under subdivision (a)(5)(A) of this section, deposit, or other instrument while deposited with or for the benefit of the commission shall become the separate property of the commission and be deposited into the Real Estate Recovery Fund under § 17-42-403.
2. For the purpose of this section, “substantially completed” means that the amenities, furnishings, appliances, and structural components and mechanical systems of buildings on the real property dedicated to the time-share plan and subject to the project instruments are completed and provided as represented in the public offering statement, that the premises are ready for occupancy, and that the proper governmental authority has issued a certificate of occupancy or its equivalent.

History. Acts 1983, No. 294, Art. 3, § 3-103; A.S.A. 1947, § 50-1317; Acts 1989, No. 44, § 3; 2013, No. 710, § 4.

Publisher's Notes. Acts 1989, No. 44, § 4, provided that the Arkansas Real Estate Commission may promulgate such regulations as it deems necessary for the implementation of this act.

Amendments. The 2013 amendment rewrote the section.

18-14-409. Mutual rights of cancellation.

1. 1. Before transfer of a time-share interest and no later than the date of the sales contract, the developer shall provide the intended purchaser with a copy of the public offering statement and any amendments and supplements to the statement.
   2. The contract is voidable by the purchaser until he or she has received the public offering statement.
   3. The contract is voidable by the purchaser for five (5) days after execution of the contract of sale.
   4. Cancellation is without penalty, and all payments made by the purchaser before cancellation shall be refunded within a reasonable time after receipt of the notice of cancellation under subsection (c) of this section.
2. Up to five (5) days after execution of the contract of sale, the developer may cancel the contract of purchase without penalty to either party and shall return all payments made within a reasonable time.
3. If either party elects to cancel a contract under subsection (a) or subsection (b) of this section, he or she may do so by hand-delivering the notice to the other party or by mailing the notice by regular mail to the other party or to his or her agent for service of process, which notice is considered given when deposited in the mail.

History. Acts 1983, No. 294, Art. 3, § 3-104; A.S.A. 1947, § 50-1318; Acts 2013, No. 710, § 4.

Amendments. The 2013 amendment redesignated (a) as (a)(1) through (4); in (a)(1), substituted “interest” for “interval” and “purchaser” for “transferee”; deleted “In addition” from the beginning of (a)(3); substituted “and shall return all payments made within a reasonable time” for “The developer shall return all payments made and the purchaser shall return all materials received in good condition, reasonable wear and tear excepted. If the materials are not returned, the developer may deduct the cost of them and return the balance to the purchaser” in (b); in (c), substituted “regular” for “prepaid United States”, substituted “is considered” for “shall be deemed”, and deleted “United States” preceding “mail” at the end; and made stylistic changes.

18-14-410. Liens.

1. 1. Before a transfer of a time-share interest, the developer shall record or furnish to the purchaser releases of all liens affecting that time-share interest or shall provide a surety bond or other insurance against the lien from a company acceptable to the Arkansas Real Estate Commission; or
   2. An underlying lien shall contain a provision in which the lienholder subordinates its rights to that of a time-share purchaser who fully complies with the contract of sale.
2. 1. If a lien other than a mortgage or deed of trust becomes effective against more than one (1) time-share interest in a time-share property, a time-share interest owner may get a release of his or her time-share interest from the lien upon payment of the amount of the lien attributable to his or her time-share interest unless a time-share interest owner or his or her predecessor in title agrees otherwise with the lienor.
   2. The payment shall be proportionate to the ratio that the time-share interest owner's liability bears to the liabilities of all time-share interest owners whose interests are subject to the lien.
   3. Upon receipt of payment, the lienholder shall promptly deliver to the time-share interest owner a release of the lien covering that time-share interest.
   4. After payment, the managing entity shall not assess or have a lien against that time-share interest for any part of the expenses incurred with that lien.

History. Acts 1983, No. 294, Art. 3, § 3-107; A.S.A. 1947, § 50-1321; Acts 2013, No. 710, § 4.

Amendments. The 2013 amendment rewrote the section.

18-14-411. Financial records — Examination.

1. The person or entity responsible for making or collecting common expense assessments or maintenance assessments shall keep detailed financial records.
2. All financial and other records shall be made reasonably available for examination by any time-share interest owner and his or her authorized agents.

History. Acts 1983, No. 294, Art. 3, § 3-110; A.S.A. 1947, § 50-1324; Acts 2013, No. 710, § 4.

Amendments. The 2013 amendment substituted “interest” for “interval” in (b).

Subchapter 5 — Advertising

Effective Dates. Acts 1983, No. 294, § 6-106: Mar. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the protection of the residents of this State that provision be made for the sale and regulation of Time-Share Intervals by the Real Estate Commission; that this Act is designed to provide for such regulation and should be given effect at the earliest possible date. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 765, § 8: Mar. 24, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that various provisions of Act 294 of 1983 relating to the regulation of real estate time-share intervals by the Arkansas Real Estate Commission are in urgent need of revision to enable the Commission to effectively and efficiently administer the provisions of the Act; that this Act is designed to make the necessary revisions and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

18-14-501. Filing of advertising materials.

1. All advertising materials proposed for use or used in this state by a person with the offer or sale of a time-share property are subject to the review of the Arkansas Real Estate Commission upon its request.
2. Advertising materials include:
   1. Promotional brochures, pamphlets, advertisements, or other materials to be distributed to the public concerning the sale of time-shares;
   2. Transcripts of all radio and television advertisements;
   3. Offers of travel, accommodations, meals, or entertainment at no cost or reduced cost;
   4. Direct mail solicitation;
   5. Advertising, including testimonials or endorsements;
   6. Scripts or standardized narrative for use in making telephone solicitations; and
   7. Websites or other electronic media.

History. Acts 1983, No. 294, Art. 6, § 6-102; 1983, No. 765, § 6; A.S.A. 1947, § 50-1335; Acts 2013, No. 710, § 5.

Amendments. The 2013 amendment rewrote (a); deleted former (b) and redesignated (c) as present (b); deleted “but are not limited to, the following” from the end of the introductory language of (b); substituted “distributed to the public concerning” for “disseminated to the public in connection with” in (b)(1); and added (b)(7).

18-14-502. False advertising declared unlawful.

1. It is unlawful for a person with intent, directly or indirectly, to offer for sale or sell time-shares in this state or to authorize, use, direct, or aid in the publication, distribution, or circulation of an advertisement, radio broadcast, telecast, or other electronic media concerning the time-share plan in which the time-share properties are offered that contains a statement, pictorial representation, or sketch that is false or misleading.
2. This section does not hold the publisher or employee of a newspaper, a job printer, a broadcaster or telecaster, or a magazine publisher, or an employee thereof, liable for the publication referred to in this section unless the publisher, employee, or printer has actual knowledge of its falsity or has an interest as an owner or agent in the time-share plan advertised.

History. Acts 1983, No. 294, Art. 6, § 6-101; A.S.A. 1947, § 50-1334; Acts 2013, No. 710, § 5.

Amendments. The 2013 amendment rewrote the section.

18-14-503. Prohibited advertising.

An advertisement for the offer or sale of time-shares shall not:

1. Contain a representation concerning the availability of a resale program or rental program offered by or on behalf of the developer or its affiliate unless the resale program or rental program has been made a part of the offering and submitted to the Arkansas Real Estate Commission;
2. Contain an offer or inducement to purchase that limits the quantity or time of availability, unless the numerical quantity or time applicable to the offer or inducement is clearly and conspicuously disclosed;
3. Contain a statement concerning the investment merit or profit potential of the time-share, unless the commission has determined that the representation is neither false nor misleading;
4. Make a prediction of or imply specific or immediate increases in the price or value of the time-share property, nor shall a price increase of a time-share property be promoted unless the developer has authorized and announced the price increase;
5. Contain statements concerning the availability of time-share interests at a particular minimum price if the number of time-share interests available at that price comprises less than ten percent (10%) of the unsold inventory of the developer, unless the number of time-share interests then for sale at the minimum price is stated in the advertisement;
6. Contain a statement that the time-share interest being offered for sale can be further divided, unless a full disclosure is included concerning the legal requirements for further division of the time-share interest;
7. Contain an asterisk or other reference symbol as a means of contradicting or changing the ordinary meaning of a previously made statement in the advertisement;
8. Misrepresent the size, nature, extent, qualities, or characteristics of the accommodations or facilities that comprise the time-share plan;
9. Misrepresent the nature or extent of a service incident to the time-share project;
10. Misrepresent or imply that a facility or service is available for the exclusive use of purchasers or owners if a public right of access or of use of the facility or service exists;
11. Make a misleading or deceptive representation concerning the contents of the time-share permit, the purchase contract, the purchaser's rights, privileges, benefits, or obligations under the purchase contract or this chapter;
12. Misrepresent the conditions under which a purchaser or owner may participate in an exchange program; or
13. Describe a proposed or unfinished private facility over which the developer has no control, unless the estimated date of completion is stated and evidence has been presented to the commission that the completion and operation of the facilities are reasonably assured within the time represented in the advertisement.

History. Acts 1983, No. 294, Art. 6, § 6-103; A.S.A. 1947, § 50-1336; Acts 2013, No. 710, § 5.

Amendments. The 2013 amendment substituted “commission” for “agency” and “time-share interests” for “time-shares” throughout the section; substituted “Arkansas Real Estate Commission” for “agency” in (1); rewrote (2); deleted “from evidence submitted on behalf of the developer” following “determined” in (3); in (4), substituted “time-share property” for “time-shares” and substituted “property be promoted unless the developer has authorized and announced the price increases” for “be announced more than sixty (60) days prior to the date that the increase will be placed into effect”; substituted “plan” for “project” in (8); substituted “unfinished” for “uncompleted” in (13); and made stylistic changes.

18-14-504. Unfair acts or practices.

1. It is unlawful for a person to offer by mail, telephone, electronic media, or in person a prize or gift, with the intent to offer a sales presentation for a time-share plan, without also disclosing in a clear and unequivocal way that there will be a sales presentation when making the offer of the prize or gift.
2. The following unfair acts or practices undertaken by, or omissions of, a person in the operation of a prize or gift promotional offer for a time-share plan are prohibited:
   1. Failing to clearly and conspicuously disclose the rules, terms, and conditions of the promotional program, a description of the prizes offered, if any, and the date that the prize or gift offer will terminate or expire;
   2. 1. Failing to disclose the retail value of the gift or prize and the odds of winning.
      2. The person making the offer shall maintain a sufficient inventory of the gift or prize to be able to equal the reasonable response to the offer;
   3. Failing to obtain the express written or oral consent of individuals before their names are used for a promotional purpose with a mailing to a third person;
   4. 1. Failing to award and distribute at least one (1) of each prize or gift of the value and type represented in the promotional program by the day and year specified in the promotion.
      2. If a promotion promises the award of a prescribed number of each prize, this number of prizes shall be awarded by the date and year specified in the promotion; or
   5. Misrepresenting in any way the odds of receiving a prize or gifts or the rules, terms, or conditions of participation in the promotional program.

History. Acts 1983, No. 294, Art. 6, § 6-104; A.S.A. 1947, § 50-1337; Acts 2013, No. 710, § 5.

Amendments. The 2013 amendment rewrote (a); substituted “plan” for “project” in (b); in (b)(1), deleted “regulations” following “rules” and substituted “that” for “on or before which”; redesignated (b)(2) as (b)(2)(A) and (b)(2)(B); deleted “in connection” following “purpose” in (b)(3); redesignated (b)(4) as (b)(4)(A) and (b)(4)(B); substituted “any way” for “any manner” in (b)(5); and made stylistic changes.

18-14-505. Enforcement.

If the Arkansas Real Estate Commission determines that a person is violating or failing to comply with the requirements of this subchapter, the commission may order the person to cease and desist from the violations and may take enforcement action under § 18-14-201 et seq.

History. Acts 1983, No. 294, Art. 6, § 6-105; A.S.A. 1947, § 50-1338; Acts 2013, No. 710, § 5.

Amendments. The 2013 amendment rewrote the section.

Subchapter 6 — Financing

Effective Dates. Acts 1983, No. 294, § 6-106: Mar. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the protection of the residents of this State that provision be made for the sale and regulation of Time-Share Intervals by the Real Estate Commission; that this Act is designed to provide for such regulation and should be given effect at the earliest possible date. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

18-14-601. Financing of time-share plans.

1. In the financing of a time-share plan, the developer and its successors in interest shall retain financial records of the schedule of payments required to be made and the payments made to a person or entity that is the lienholder of an underlying blanket mortgage, deed of trust, contract of sale, or other lien or encumbrance.
2. Any transfer of the developer's interest in the time-share plan to a third person is subject to the obligations of the developer to the extent the obligations were originally established in written documents recorded in the real estate records and not existing solely from the offering of materials or filings with a governmental authority.

History. Acts 1983, No. 294, Art. 5, § 5-101; A.S.A. 1947, § 50-1332; Acts 2013, No. 710, § 6.

Amendments. The 2013 amendment substituted “plans” for “programs” in the section heading; and “plan” for “program” throughout the section; designated the existing paragraph as (a) and (b); inserted “and its successors in interest” in (a); and added “to the extent the obligations were originally established in written documents recorded in the real estate records and not existing solely from the offering of materials or filings with a governmental authority” at the end of (b).

18-14-602. Protection of purchasers from subsequent underlying lien.

The developer whose project is subjected to an underlying blanket lien or encumbrance subsequent to the transfer of a time-share interest shall protect nondefaulting purchasers from foreclosure by:

1. Obtaining from the lienholder a nondisturbance clause, subordination agreement, or partial release of the lien for those time-share interests sold; or
2. Providing a surety bond or insurance against the lien from a company acceptable to the Arkansas Real Estate Commission.

History. Acts 1983, No. 294, Art. 5, § 5-102; A.S.A. 1947, § 50-1333; Acts 2013, No. 710, § 6.

Amendments. The 2013 amendment rewrote the section.

Subchapter 7 — Camping Sites

A.C.R.C. Notes. References to “this chapter” in subchapters 1-6 may not apply to this subchapter which was enacted subsequently.

18-14-701. Definition.

As used in this subchapter, “time-share plan” shall have the same meaning as used in § 18-14-102.

History. Acts 1991, No. 619, § 1; 2013, No. 710, § 7.

Amendments. The 2013 amendment substituted “plan” for “program” and “used” for “provided”.

18-14-702. Camping site — Buyer's right to cancel.

1. In addition to any other right to revoke an offer, the buyer has the absolute right to cancel a contract or offer for the purchase of a camping site under a time-share plan until midnight of the fifth calendar day after the day that the buyer signs an agreement, excluding Sundays and the holidays under § 1-5-101.
2. Cancellation occurs if the buyer returns to the seller the notice of cancellation provided by the seller.
3. The notice of cancellation may be sent by registered mail.

History. Acts 1991, No. 619, § 2; 2013, No. 710, § 7.

Amendments. The 2013 amendment added “Camping site” to the section heading; in (a), substituted “plan” for “program”, deleted “excluding Sundays and holidays as declared in § 1-5-101” preceding “after the day”, and added “excluding Sundays and the holidays under § 1-5-101”; substituted “provided by” for “the notice having been provided for the buyer” in (b); and rewrote (c).

18-14-703. Seller to provide notice of cancellation — Form.

1. The seller of a camping site under a time-share plan shall furnish to the buyer at the time the buyer signs the sales contract or otherwise agrees to buy the camping site a complete form in duplicate captioned “NOTICE OF CANCELLATION”, which is attached to the contract or receipt, is easily detachable, and contains in 10-point bold-face type, the following information and statements:
2. If seller fails to give both oral and written notice of the buyer's right to cancellation, the cooling-off period does not begin to run until actual notice is given.

“NOTICE OF CANCELLATION Enter date of transaction You are entitled to cancel the agreement or offer at any time before midnight of the fifth day, excluding Sundays and holidays, after the day you signed the agreement or offer. If you cancel, the seller must return to you (1) any payments made; (2) any goods or other property (or a sum equal to the amount of the trade-in allowance given therefore); and (3) any note or other evidence of indebtedness, given by you to the seller under or with the agreement or offer. TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE TO (Name of seller) (Address of seller's place of business) NOT LATER THAN MIDNIGHT OF (Date) I HEREBY CANCEL THIS TRANSACTION (Date) (Buyer's signature)”.

Click to view form.

History. Acts 1991, No. 619, § 3; 2013, No. 710, § 7.

Amendments. The 2013 amendment in the first paragraph of (a), substituted “plan shall” for “program must”, “camping site” for “campsite” and substituted “contains” for “which shall contain”; and in the second paragraph of (a), substituted “offer at any time before midnight” for “offer referred to above at any time prior to midnight”, “If” for “in the event”, and “under or” for “pursuant to or in connection”.

Subchapter 1 — General Provisions

Cross References. Relocation assistance and payments to persons displaced due to project financed with federal funds, § 22-9-701 et seq.

Right of eminent domain, Ark. Const., Art. 17, § 9.

State's ancient right of eminent domain conceded, Ark. Const., Art. 2, § 23.

Taking without just compensation prohibited, Ark. Const., Art. 2, § 22.

Preambles. Acts 1893, No. 149 contained a preamble which read:

“Whereas, the constitution provides that no property or right-of-way shall be appropriated to the use of any corporation until full compensation therefor shall be first made, or secured to the owner, which compensation shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as prescribed by law, and

“Whereas, the statutes of this state provide no remedy for the owner to obtain damages for property taken for public use….”

Effective Dates. Acts 1893, No. 149, § 2: effective on passage.

18-15-101. Deduction from compensation of taxes due on real property.

1. When the State of Arkansas or any of its agencies or departments shall purchase or take by eminent domain any real property for any purpose and any ad valorem taxes are due, or will become due, during the calendar year in which the purchase or taking occurs, then the state or its agencies or departments purchasing or taking the real property shall withhold from the compensation therefor the amount of the taxes so due, or to become due, during the calendar year and shall remit them to the tax collector of the county in which the real property is located.
2. If the state or any of its agencies or departments shall fail to withhold and pay the tax upon real property as required pursuant to this section, the county in which the property is located shall be entitled to file a claim with the Arkansas State Claims Commission and to recover the amount of taxes on property purchased or taken by eminent domain as provided in this chapter from the state or its agency or department failing to comply with this section.

History. Acts 1969, No. 54, § 1; A.S.A. 1947, § 35-102.1.

Cross References. State purchasing generally, § 19-11-101 et seq.

18-15-102. Actions against corporations appropriating private property.

1. Whenever any corporation authorized by law to appropriate private property for its use shall have entered upon and appropriated any real or personal property, the owner of the property shall have the right to bring an action against the corporation in the circuit court of the county in which the property is situated for damages for the appropriation at any time before an action at law or in equity for the recovery of the property so taken, or compensation therefor, would be barred by the statute of limitations.
2. The measure of recovery in the action shall be the same as that governing proceedings by corporations for the condemnation of property.
3. Proceedings instituted under this section shall be governed by the rules of pleading and practice prescribed for the government of proceedings in the circuit court.
4. The defendant shall have the right to bring in all parties having or claiming an interest in the property in controversy.
5. The court shall make the proper orders of the distribution of the compensation recovered in the action among the parties as may be entitled thereto and shall include in the judgment in the proceedings an order condemning the property for the public use to which it may have been appropriated.

History. Acts 1893, No. 149, §§ 1, 2, p. 261; C. & M. Dig., §§ 3930-3932; Pope's Dig., §§ 4931-4933; A.S.A. 1947, §§ 35-101, 35-102.

Cross References. Foreign corporations have no power to condemn or appropriate private property, Ark. Const., Art. 12, § 11.

Taking of property by corporations, Ark. Const., Art. 12, § 9.

18-15-103. Bill of rights — Property owner.

1. The principles expressed in subsection (b) of this section shall serve as standards to be followed in any proceeding that involves an entity authorized by law to exercise the power of eminent domain.
2. An owner of property subject to a proceeding to condemn private property under the right of eminent domain shall have the following bill of rights:
   1. A property owner is entitled to receive just compensation when private property is taken for a public use;
   2. Private property may only be taken for public use;
   3. Private property may only be taken by a governmental entity or a private entity authorized by law to exercise the power of eminent domain;
   4. A property owner has the right to receive reasonable notification of an entity's interest in taking the property owner's private property;
   5. 1. A property owner shall receive from the government or private entity an assessment of the just compensation the entity estimates for the property owner's private property before or contemporaneously with a good faith offer of just compensation.
      2. However, when a property owner cannot be located and must be served by warning order, a filing of the assessment with the complaint for condemnation shall be sufficient compliance with subdivision (b)(5)(A) of this section;
   6. An entity shall make a written good faith offer to buy the property owner's private property before initiating a condemnation proceeding;
   7. A property owner has the right to hire an appraiser or other independent professional to determine the value of the private property or to assist the property owner in a condemnation proceeding;
   8. A property owner has the right to hire an attorney to represent the property owner in a condemnation proceeding and negotiate on behalf of the property owner with the entity;
   9. In a proceeding to condemn private property under the right of eminent domain, the circuit court shall impanel a jury of twelve (12) persons as in civil cases to determine the just compensation the government or private entity owes the property owner;
   10. Any party has the right to appeal a decision entered by the circuit court under subdivision (b)(9) of this section; and
   11. 1. Except as provided in subdivision (b)(11)(B) of this section, in a condemnation brought under the laws of this state, a property owner shall be entitled to an award of the property owner's costs, expenses, and reasonable attorney's fees incurred in preparing and conducting the final hearing and adjudication, including without limitation the cost of appraisals and fees for experts if the compensation ultimately awarded exceeds the condemning entity's written good faith offer required under subdivision (b)(6) of this section by twenty percent (20%) or more.
       2. An award of costs, expenses, and attorney's fees in a condemnation action brought by a county or municipality is governed by the laws that authorize the condemnation action.

History. Acts 2015, No. 1101, § 1; 2017, No. 731, §§ 1, 2.

Amendments. The 2017 amendment inserted “written” in (b)(6); and substituted “written good faith offer required under subdivision (b)(6) of this section” for “initial assessment of the just compensation owed” in (b)(11)(A).

Subchapter 2 — Counties and Municipal Corporations Generally

Cross References. Eminent domain extended to counties, flood control, § 14-16-112.

School districts, § 6-13-103.

Suburban improvement districts, § 14-92-222.

Effective Dates. Acts 1913, No. 85, § 2: Feb. 21, 1913. Emergency declared.

Acts 1985, No. 991, § 4: Apr. 16, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that under present laws including Act 85 of 1913, as amended, the powers of counties to exercise the power of eminent domain to acquire property for public purposes is severely limited; that the present limitations on the authority of counties to exercise the power of eminent domain severely restricts the counties' ability to provide essential public services and facilities; that this Act is designed to expand such authority and thereby enable counties to better serve the public and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

18-15-201. Power to condemn for parks, boulevards, and public buildings — Improvement districts.

1. 1. The right of eminent domain is granted to municipal corporations and to counties to condemn property for the purpose of parks, boulevards, and public buildings.
   2. In case of municipal corporations, the parks and boulevards may be situated at a distance of not exceeding five (5) miles from the corporate limits and shall remain under the jurisdiction of the municipal corporation.
2. 1. Improvement districts may be organized under § 14-88-201 et seq. to aid the municipal corporations to acquire the parks and boulevards.
   2. 1. The improvement districts may embrace the whole or any part of the territory of such municipal corporations.
      2. The improvement districts may embrace territory benefited outside of the municipal corporations if a majority in value of the owners of real property in the adjacent territory and a majority in value of the owners of real property in that portion of the district within the municipal corporation shall file with the city or town council a petition thereof in the manner provided by Acts 1889, No. 18, § 2 [repealed].
3. The proceedings for the condemnation shall be in accordance with §§ 18-15-301 — 18-15-307.

History. Acts 1913, No. 85, § 1; C. & M. Dig., § 4008; Pope's Dig., § 5010; A.S.A. 1947, § 35-901.

18-15-202. Counties — Power to condemn for water and sewer facilities.

1. 1. In addition to the purposes for which counties are now authorized to exercise the power of eminent domain, counties are authorized to exercise that power for the purpose of acquiring property for water facilities and sewer facilities.
   2. The counties shall exercise their power of eminent domain only as a last resort, and they shall make use of existing easements and rights-of-way to the extent practicable.
2. Counties shall exercise the power of eminent domain for the purposes set forth in subsection (a) of this section in accordance with the same procedures and methods by which municipalities are authorized to acquire property by exercising the power of eminent domain for municipal water works purposes, as set forth in §§ 18-15-401 — 18-15-410.

History. Acts 1985, No. 991, §§ 1, 2; A.S.A. 1947, §§ 35-919, 35-920.

Subchapter 3 — Municipal Corporations Generally

Cross References. Condemnation of land in border cities and towns, § 14-54-106.

Municipal improvement districts generally, § 14-91-104.

Port authorities in cities and towns, § 14-186-210.

Effective Dates. Acts 1875, No. 1, § 95: effective on passage.

Acts 1935, No. 155, § 2: Mar. 20, 1935. Emergency clause provided: “The provisions contained in this act being immediately necessary before municipalities in Arkansas may avail themselves to the fullest extent of loans and grants from the United States of America, and being immediately necessary to permit municipalities in Arkansas to furnish water to their inhabitants of a quantity and quality necessary for the health and safety of said communities, an emergency is hereby declared to exist and this act shall be in force and take effect from and after the date of its passage and approval.”

Acts 1953, No. 201, § 2: Mar. 3, 1953. Emergency clause provided: “The General Assembly is cognizant of the fact that the furnishing of water by municipalities to their inhabitants, and for fire protection, is of the utmost importance, therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its passage and approval.”

Acts 1955, No. 53, § 3: Feb. 11, 1955. Emergency clause provided: “The General Assembly finds and determines that the ability of a municipality to furnish an adequate supply of water to its inhabitants and for fire protection is an absolute necessity; that the Act which this Act amends, providing for the exercise of the power of eminent domain to secure such a supply, may not be sufficiently definite to accomplish its intended purpose in all cases, and that by reason of said facts an emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in force from and after the day of its passage and approval.”

Acts 1961, No. 55, § 2: July 1, 1961.

Acts 1988 (4th Ex. Sess.), No. 22, § 4: July 15, 1988. Emergency clause provided: “It is hereby found and determined by the General Assembly that present laws do not clearly authorize and prescribe the procedure whereby cities of the first and second class may exercise the power of eminent domain to acquire property necessary for flood control projects; that it is essential to the proper operations of cities of the first and second class that they be given such authority and that such authority should be granted them at the earliest possible date to enable such cities to protect residents of the city from flooding; that this Act is designed to specifically grant such authority and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

18-15-301. Municipal corporations — Power to condemn generally — Definitions.

1. The right and power of eminent domain is conferred upon municipal corporations to enter upon, take, and condemn private property for the construction of wharves, levees, parks, squares, market places, or other lawful purposes.
2. 1. For waterworks systems, it shall be no objection to the exercise of power that the property to be condemned is located in a different county from the municipal corporation.
   2. In addition, for electric transmission systems and electric distribution systems, it shall be no objection to the exercise of power that the property to be condemned is located outside the corporate limits of the municipal corporation or in a county other than the one wherein the municipal corporation is located.
   3. A municipal corporation shall have the power of eminent domain for its electric transmission system and electric distribution system, outside of its corporate limits without annexation of such territory, regardless of whether the territory has been allocated to an electric public utility or electric cooperative corporation, pursuant to a certificate of convenience and necessity or other authority from the Arkansas Public Service Commission, as long as the electric transmission system or electric distribution system being constructed by the municipal corporation is only for the purpose of serving customers of the municipal corporation and not for the purpose of serving electric public utility customers or electric cooperative customers at retail inside the territory allocated to an electric public utility or electric cooperative corporation pursuant to a certificate of convenience and necessity or other authority from the commission.
   4. 1. Before a municipal corporation exercises the power of eminent domain under this section, the municipal corporation shall provide written notice to any electric public utility or electric cooperative corporation that has received a certificate of convenience and necessity or other authority from the commission to serve retail customers in any area in which the power of eminent domain is to be exercised.
      2. 1. The municipal corporation shall also file a copy of the written notice required under subdivision (b)(4)(A) with the commission.
         2. The notice shall contain information regarding the facilities to be constructed by the municipal corporation in conjunction with the exercise of eminent domain, including without limitation routing, size, and voltage, in sufficient detail to reasonably allow the electric public utility or electric cooperative corporation to fully evaluate the impact of the facilities on public safety, reliability of the system of the electric public utility or electric distribution cooperative, or future system expansion plans of the electric public utility or electric cooperative corporation.
      3. 1. A municipal corporation shall not exercise the power of eminent domain under this section without obtaining a certificate of convenience and necessity from the commission if the electric public utility or electric cooperative corporation notifies the municipal corporation in writing within forty-five (45) days of its receipt of such notice that the exercise of the power of eminent domain would specifically endanger public safety, negatively impact reliability, or conflict with future construction plans of the electric public utility or electric cooperative corporation.
         2. 1. The written notice shall be in sufficient detail to reasonably allow the municipal corporation to fully evaluate the problems identified.
            2. In such event, the municipal corporation may seek from the commission, in accordance with law, a certificate of convenience and necessity and exercise the power of eminent domain as may be required by the municipal corporation.
            3. 1. It shall be no objection to the exercise of power that the property to be condemned is a cemetery, if the purpose for which the cemetery is being taken is for an impounding lake for a supply of water or to supplement a supply of water for the waterworks system of the municipality, including land occupied by the cemetery adjacent to the impounding lake taken to prevent pollution of the supply or for an impounding dam to create the impounding lake.
               2. The power of a municipality to condemn a cemetery for those purposes shall extend to all cemeteries except those owned by the United States of America, the State of Arkansas, a county of the State of Arkansas, or a municipality of the State of Arkansas.
            4. 1. In case of water pipelines, electric transmission facilities, or electric distribution facilities, a right-of-way or easement therefor may be condemned, and rights-of-way and easements for the pipelines, electric transmission facilities, or electric distribution facilities may be condemned along and under railroad rights-of-way, if the ordinary use of the railroad rights-of-way are not obstructed thereby.
               2. The water pipelines, electric transmission facilities, or electric distribution facilities may be constructed and maintained across and under lands and waters of the state, but the ordinary use of the lands and waters shall not be unduly obstructed thereby.
               3. 1. The water pipelines, electric transmission facilities, or electric distribution facilities may be constructed and maintained under, across, and along public highways, roads, streets, and alleys, but the ordinary use of the public highways, roads, streets, and alleys shall not be unduly obstructed thereby.
                  2. At its own expense, the municipality constructing the water pipelines, electric transmission facilities, or electric distribution facilities shall properly backfill the trench in which the pipeline, electric transmission lines, or electric distribution lines are laid and shall restore any sidewalks, curbs, gutters, pavements, or surfacing cut or damaged by the construction or maintenance.
            5. As used in this section:
               1. “Electric distribution system”, “electric distribution facilities”, and “electric distribution lines” mean electric utility properties and facilities necessary for distributing electricity below sixty-nine kilovolts (69 kV) phase-to-phase to a municipal corporation's retail customers within its corporate limits or within any other area served by the municipal corporation pursuant to any grant of authority by the commission or any other contiguous municipal corporation pursuant to a franchise agreement or other grant of authority for retail electric service;
               2. “Electric transmission system or systems”, “electric transmission facilities”, and “electric transmission lines” mean electric utility properties and facilities necessary for transmitting electricity at sixty-nine kilovolts (69 kV) phase-to-phase or higher and not for service to a directly tapped, retail, end-use customer or customers or any wholesale customer or customers except municipal corporations. Any electric utility properties and facilities necessary for transmitting electricity at sixty-nine kilovolts (69 kV) phase-to-phase or higher constructed on lands acquired in whole or in part by the municipal corporation utilizing the power of eminent domain granted in this section may be connected only with the following defined entities for the life of the properties and facilities and no others:
                  1. The municipal corporation's electric generation or transmission or distribution system;
                  2. Any electric utility or an independent transmission system operator, independent transmission company, independent regional transmission group, or other independent transmission entity operating transmission facilities in this state; and
                  3. The electric generation or transmission or distribution system owned by other municipal corporations owning an electric system;
               3. “Municipal corporations” includes consolidated municipal utility improvement districts owning an electric system; and
               4. “Or other lawful purposes” includes a waterworks system, an electric transmission system, or an electric distribution system in its entirety or any integral part thereof or any extension, addition, betterment, or improvement to an existing waterworks system, an electric transmission system, or an electric distribution system owned or operated by a municipal corporation.

History. Acts 1875, No. 1, § 74, p. 1; C. & M. Dig., § 4009; Acts 1935, No. 155, § 1; Pope's Dig., § 5011; Acts 1953, No. 201, § 1; 1955, No. 53, § 1; A.S.A. 1947, § 35-902; Acts 2001, No. 1795, § 1; 2003, No. 366, § 4; 2009, No. 418, § 1; 2011, No. 271, §§ 2, 3.

Amendments. The 2001 amendment inserted “or electric transmission” twice in (a); in (b), substituted “For water works systems, it” for “It” in the beginning and added the second sentence; substituted “the State of Arkansas, a county of the State of Arkansas” for “or the State of Arkansas, or a county of the State of Arkansas” in the second sentence of (c); in (d), inserted “or electric transmission facilities” throughout, redesignated the former introductory language of (d) as present (d)(1), redesignated the remaining subdivisions accordingly, and rewrote present (d)(3); added (e) through (g), and made grammatical changes.

The 2003 amendment, in (e)(1)(B), deleted “as defined by § 23-19-102(9)” following “Any electric utility” and “under § 23-19-103(g)” following “facilities in this state.”

The 2009 amendment, inserted “or an electric distribution” twice in (a)(2); in (b), inserted “systems and electric distribution” in (b)(2), and inserted (b)(3) and (b)(4); in (d), inserted “or electric distribution facilities” in five places, and inserted “lines, or electric distribution” in (d)(3)(B); in (e)(2), inserted “‘electric distribution facilites’”, and “‘electric distribution lines’” and substituted “contiguous municipal corporation pursuant to a franchise agreement or other grant of authority for retail electric service” for “municipality”; deleted (f) and redesignated the subsequent subsection accordingly; and made related and minor stylistic changes.

The 2011 amendment deleted (a)(2); deleted (e)(1) and redesignated (e)(2) as (e)(1); deleted “As used in this subsection” at the beginning of present (e)(1); added present (e)(2); redesignated (f) as (e)(3); deleted “For purposes of this section” at the beginning of present (e)(3); and added (e)(4).

18-15-302. Municipal corporations — Power to condemn — Compensation for condemnation — Taking cemetery land.

1. There shall be included in the award of compensation and damages for taking land occupied by a cemetery the reasonable cost of a new site of at least equal size. The new site shall be approved by the State Board of Health and also by the circuit court in which the condemnation proceedings are instituted.
2. 1. The order and judgment condemning a cemetery shall require the municipality, at its own expense, to remove all bodies, tombstones, and markers from the site of the original cemetery, to reinter the bodies in the new site, and to properly reset the tombstones and markers in the new site.
   2. The court may require the municipality to deposit into the registry of the court a sum found by the court to be sufficient to ensure the performance of the obligation by the municipality.
   3. Nothing contained in this section shall prevent a surviving spouse or next of kin of a person buried in the cemetery from removing the body to another cemetery selected by him or her, the municipality paying the reasonable cost thereof, provided that the cost under this section, if demanded by the next of kin, shall not be less than the amount paid by the municipality for the same service when bodies are removed to a cemetery selected by the municipality.
3. If any power, oil, gas, or any other public utility facilities shall be flooded by such an impounding lake, the lines may be likewise condemned, and the award of compensation and damages shall include the reasonable cost of relocating the power, oil, gas, or other public utility facility.
4. If any portion of any county road will be flooded by an impounding lake, the municipality shall pay to the county the cost of relocating that portion of road.

History. Acts 1875, No. 1, § 74, p. 1; 1955, No. 53, § 1; A.S.A. 1947, § 35-902.

18-15-303. Municipal corporations — Power to condemn — Proceedings — Controversy.

1. 1. When it shall be deemed necessary by any municipal corporation to enter upon or take private property for a permitted purpose, an application in writing shall be made to the circuit court of the proper county, or the judge thereof in vacation, describing as correctly as may be the property to be taken, the object proposed, and the name of the owner of each lot or parcel thereof.
   2. Notice of the time and place of the application shall be given either personally in the ordinary manner of serving process or by publishing a copy of the application with a statement of the time and place at which it is to be made. Notice shall be published for three (3) weeks preceding the time of the application in some newspaper of general circulation in the county.
2. 1. When the determination of questions in controversy in the proceedings is likely to retard the progress of construction, the court, or judge in vacation, shall designate an amount of money to be deposited by the municipal corporation, subject to the order of the court and for the purpose of making the compensation and paying damages when the amount thereof has been assessed. The court or judge shall designate the place of the deposit.
   2. Whenever a deposit has been made in compliance with the order of the court or judge, it shall be lawful for the municipal corporation to enter upon the lands in controversy and proceed with its work of construction prior to the assessment and payment of damages and compensation.

History. Acts 1875, No. 1, § 74, p. 1; C. & M. Dig., § 4009; Acts 1935, No. 155, § 1; Pope's Dig., § 5011; Acts 1953, No. 201, § 1; 1955, No. 53, § 1; A.S.A. 1947, § 35-902.

18-15-304. Hearing.

1. If it appears to the court or judge that notice has been served ten (10) days before the time of application, or has been published as provided, and that the notice is reasonably specific and certain, then the court or judge may set a time for the inquiry into and assessment of compensation by a jury before the court or judge.
2. A jury shall be summoned for the purpose of making inquiry in the same manner that petit jurors are summoned in the circuit court for other purposes. The inquiry and assessment shall be made at the time appointed unless, for good cause, continued to another day to be specified.
3. If, at the time of the application, it appears that any of the owners of property sought to be condemned are infants or of unsound mind, a guardian ad litem shall be appointed.
4. The municipal corporation may be required to file a more full and accurate description of the property to be taken and the object proposed and maps, plats, and surveys if the court or judge deems them necessary or proper.

History. Acts 1875, No. 1, § 74, p. 1; C. & M. Dig., §§ 4010-4012; Pope's Dig., §§ 5012-5014; A.S.A. 1947, § 35-903.

18-15-305. Payment of assessment — Disputes.

1. The assessment shall be made on each lot or parcel of land separately and distributed to the owner of each tract, according to their true interest and ownership, on the order of the court.
2. 1. In case of dispute as to interest, title, or ownership, the money allowed therefor shall be held subject to the order of the court until the dispute is amicably settled between the disputants or determined by due course of law.
   2. The inquiry and assessment in all other respects shall be made by the jury under such rules and restrictions as shall be given by the court.

History. Acts 1875, No. 1, § 74, p. 1; C. & M. Dig., §§ 4013, 4014; Pope's Dig., §§ 5015, 5016; A.S.A. 1947, § 35-904.

18-15-306. Verdict by jury.

1. The jury shall be sworn to make the whole inquiry and assessment but may be allowed to return a verdict, as to part, and be discharged as to the rest, at the discretion of the court.
2. In case the jury shall be discharged from rendering a judgment in whole or in part, another jury shall be impaneled at the earliest convenient time, who shall take the whole inquiry and assessment, or the part not made, as the case may be.

History. Acts 1875, No. 1, § 74, p. 1; C. & M. Dig., §§ 4015, 4016; Pope's Dig., §§ 5017, 5018; A.S.A. 1947, § 35-905.

18-15-307. Compensation for and possession of property.

1. As soon as the amount of compensation that may be due to the owners of the property taken, or to any of them, shall have been ascertained by the jury, the court shall make such order as to its payment or deposit as shall be deemed right and proper in respect to the time and place of payment and the proportion to which each owner is entitled and may require adverse claimants of any part of the money or property to interplead, so as to fully settle and determine their rights and interests according to equity and justice.
2. The court may direct the time and manner in which possession of the property condemned shall be taken or delivered and may, if necessary, enforce any order giving possession.
3. The costs occasioned by the assessment shall be paid by the corporation, and, as to the other costs which may arise, they shall be charged or taxed as the court may direct.
4. 1. No delay in making an assessment of compensation or in taking possession shall be occasioned by any doubt which may arise as to ownership of the property, or any part thereof, or as to the interests of the respective owners.
   2. However, in cases in which ownership of the property is doubted, the court shall require a deposit of the money allowed as compensation for the whole property in dispute.
5. In all cases, as soon as the corporation has paid the compensation assessed or secured the payment by a deposit of money under the order of the court, possession of the property may be taken and the public work or improvement progress.

History. Acts 1875, No. 1, § 75, p. 1; C. & M. Dig., §§ 4017-4019; Pope's Dig., §§ 5019-5021; A.S.A. 1947, § 35-906.

18-15-308. Amount of award.

1. In the event of the condemnation by a competent authority, for any public use or purpose, of all or substantially all of any land, buildings, or facilities acquired or constructed in whole or in part with the proceeds of revenue bonds issued under the provisions of the Municipalities and Counties Industrial Development Revenue Bond Law, § 14-164-201 et seq., the condemnation award must be at least sufficient in amount to cover the expenses of the condemnation proceeding and to cover the principal of all of the revenue bonds then outstanding and interest to the next interest payment date thereafter that all the bonds may be called for redemption prior to maturity, together with redemption premiums, if any, paying agent's fees, and all other costs of redemption of the revenue bonds.
2. For the purposes of this section, the words “all or substantially all” shall be deemed to mean a taking of all of the land, buildings, or facilities or a taking of such a portion thereof that the manufacturing operations being conducted on and in the land, buildings, or facilities cannot, after the taking, be conducted in the remainder in substantially the same manner as before.

History. Acts 1961, No. 55, § 1; A.S.A. 1947, § 35-918.

18-15-309. Flood control improvements.

1. In addition to the purposes for which municipalities are now authorized to exercise the power of eminent domain, cities of the first class and cities of the second class are authorized to exercise such power for the purpose of acquiring real property or interests in real property necessary for the construction, operation, repair, or maintenance of flood control improvements including, but not limited to, dams, levees, reservoirs, spillways, floodways, and other related improvements.
2. Cities of the first class and cities of the second class shall exercise the power of eminent domain for the purposes prescribed in subsection (a) of this section in accordance with the procedures and methods prescribed in §§ 18-15-303 — 18-15-307 or in accordance with the procedures and methods prescribed in § 18-15-401 et seq.

History. Acts 1988 (4th Ex. Sess.), No. 22, §§ 1, 2.

Subchapter 4 — Municipal Corporations — Waterworks Systems

Publisher's Notes. Acts 1957, No. 269, § 12, provided that this subchapter would apply to all actions then pending as well as to future actions if the requirements of this subchapter are met.

Effective Dates. Acts 1957, No. 269, § 15: Mar. 14, 1957. Emergency clause provided: “The General Assembly hereby finds, declares and determines that existing laws of eminent domain do not furnish sufficient authority for condemnation of lands for municipal waterworks systems; that the furnishing of an adequate supply of water to its inhabitants by a municipality is an absolute necessity; that there is municipal waterworks construction underway in this State at the present time which requires immediately the additional authority granted by this Act, without which construction of waterworks facilities will be seriously hampered and delayed to the detriment of the citizens of this State and to the detriment of the public health and general welfare, and that by reason of said facts an emergency is declared to exist and this Act, being necessary for the immediate preservation of the public peace, health, safety and welfare, shall take effect from and after its passage and approval.”

18-15-401. Right to acquire property.

1. A municipality operating a waterworks system under the provisions of this subchapter shall have the right to acquire any property useful for municipal waterworks purposes by following the eminent domain proceedings set forth in this subchapter.
2. A municipality's right of eminent domain shall be exercised by the operating authority of the municipal waterworks system.
3. This subchapter shall be cumulative to any other laws of eminent domain in favor of municipalities operating municipal waterworks systems.

History. Acts 1957, No. 269, §§ 2, 14; A.S.A. 1947, §§ 35-908, 35-908n.

18-15-402. Authority to enter property — Liability.

For the purpose of making investigations, surveys, tests, and measurements, a municipality is authorized to enter upon any property by its agents, employees, or contractors. However, the municipality shall be liable for any damages to the owner's property resulting from its acts.

History. Acts 1957, No. 269, § 3; A.S.A. 1947, § 35-909.

18-15-403. Preliminary proceedings for condemnation.

1. 1. When the operating authority determines to condemn property, it shall file an application in the circuit court of the county where any portion of the property to be condemned is situated, and proceedings had in the court shall apply to all property described in the application.
   2. The applicant shall describe the property to be taken and shall name as defendants all persons shown by public records as having any interest therein.
   3. Both residents and nonresidents of the state shall be summoned as in other civil proceedings.
   4. 1. However, if a verified affidavit is filed in behalf of the applicant stating that all or a number of the persons who might be claiming an interest in the property are unknown to the applicant, then unknown owners may be named as defendants.
      2. If the affidavit is filed or if a verified affidavit is filed in behalf of the applicant stating that the address of any known defendant cannot be determined after diligent inquiry by the applicant, then any defendant described in either affidavit shall be summoned by publication of notice as in the case of nonresident defendants in other civil actions, except that an attorney ad litem shall not be appointed for any defendant whose name or whose address is unknown.
2. Answers may be filed, but none shall be required of any defendant.
3. 1. The matter may proceed to trial after the lapse of twenty (20) days from the date of personal service of summons on residents and after the lapse of thirty (30) days from the date of first publication of notice on defendants constructively summoned.
   2. The suits shall receive precedence over other matters and shall be advanced for trial at the request of the applicant.
   3. The trial date shall be fixed by the court, and when fixed, the applicant shall give notice of the trial date by registered or certified mail to any defendant who was personally summoned. No notice of trial is required for any defendant whose address is unknown.

History. Acts 1957, No. 269, § 4; A.S.A. 1947, § 35-910.

18-15-404. Assessment and payment of damages.

1. At the trial of the cause, a jury shall assess the amount of damages the applicant shall pay for the property taken in the proceedings.
2. Thereafter, a judgment shall be entered stating that title to the property shall vest in the applicant upon payment to the clerk of the court of the amount of damages so assessed.
3. 1. If there is only one (1) defendant, the clerk of the court shall pay the proceeds of the judgment to the defendant upon demand.
   2. If there is more than one (1) defendant, the lower court shall retain jurisdiction of the matter solely for the purpose of making a division of the proceeds and shall determine the division sitting without a jury and without further notice to any defendant.
   3. The court shall then enter an order making a division of the proceeds and shall direct the clerk of the court to make payment to the various defendants in the amounts which shall be specified in the order. The payment shall be made by the clerk to each defendant upon his or her demand.
   4. The applicant shall not be a party to proceedings for the division of the damages.

History. Acts 1957, No. 269, § 5; A.S.A. 1947, § 35-911.

18-15-405. Power, oil, and gas lines, etc.

If any power, oil, or gas line or other public utility facility shall be flooded by an impounding lake, the property may be condemned if the operating authority of the municipal waterworks system determines the existence of the facility is inconsistent with the waterworks' requirements.

History. Acts 1957, No. 269, § 6; A.S.A. 1947, § 35-912.

18-15-406. Water pipelines and appurtenances.

Water pipelines, with appurtenances, may be constructed and maintained:

1. Across and under lands and waters of the state, but the ordinary use of the lands and waters shall not be unduly obstructed thereby; and
2. 1. Under, across, and along public highways, roads, streets, and alleys.
   2. However, the ordinary use of these public highways, roads, streets, and alleys shall not be unduly obstructed thereby, and the municipality constructing the water pipelines shall at its own expense properly backfill the trench in which the pipeline is laid and shall at its own expense restore any sidewalks, curbs, gutters, pavements, or surfacing cut or damaged by the construction or maintenance.

History. Acts 1957, No. 269, § 7; A.S.A. 1947, § 35-913.

18-15-407. State or county roads.

1. If any portion of a state or county road will lie below the high-water mark of an impounding lake, the operating authority of the municipal waterworks system shall have the right to flood the road.
2. However, if the state or the county determines that a replacement road is required, the municipality shall be obligated to pay the cost of replacing the flooded road with another road of the same type and width. The road shall be the shortest reasonable distance consistent with good engineering practice.
3. 1. The Arkansas Department of Transportation, hereinafter called “state”, shall make all necessary determinations for the state highways.
   2. The county judges, hereinafter called “county”, shall make all determinations for county roads.
4. If the county or state determines that a road need not be replaced, the operating authority is authorized to pay to the county or to the state a reasonable sum in lieu of relocating the road. Any sum so paid shall be used by the state or county for road purposes elsewhere in the state or county, as the case may be.
5. The county or state may permit the municipality to construct the relocated road, and in that event the operating authority shall be entitled to condemn rights-of-way for the roads in its own name under this subchapter or under any eminent domain act available to the county or state.
6. After acquiring the rights-of-way, title thereto shall be transferred to the county or state.
7. If any part of the road replaced or paid for as authorized in this section lies upon property owned by the municipality, title to that part of the replaced road shall vest in the municipality.

History. Acts 1957, No. 269, § 8; A.S.A. 1947, § 35-914; Acts 2017, No. 707, § 39.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (c)(1).

18-15-408. Cemeteries and graves.

1. 1. An operating authority of a municipal waterworks system shall file a notice of intent to condemn in the circuit court of the county where a cemetery or graves are situated if the operating authority determines that:
      1. Land occupied by the cemetery or by the graves will be flooded by an impounding lake;
      2. The water level of the lake will affect the graves underground;
      3. The lake may be contaminated by the graves; or
      4. The lands will be useful for waterworks purposes.
   2. The notice of intent to condemn shall set out the:
      1. Commonly known name of the cemetery, if any;
      2. Descriptions of the quarter sections of land upon which the cemetery or graves are situated;
      3. Description of a proposed new location of the cemetery or graves; and
      4. Name of the owner of the existing cemetery, if known.
   3. The notice shall take the place of the application to condemn which would be otherwise required under this subchapter.
   4. Service of process upon the owner, if known, shall be as specified in this subchapter. Service upon all other interested parties shall be as follows:
      1. The notice shall be published one (1) time a week for four (4) consecutive weeks in some newspaper having a general circulation throughout the state in order to give the widest publicity to the municipality's intention;
      2. In addition, a printed copy of the notice shall be posted in three (3) conspicuous public places in the cemetery or immediately surrounding the graves;
      3. The notice shall be posted within three (3) days of filing the notice with the court; and
      4. The municipality shall, by affidavit filed with the court, give proof of posting of the notice.
   5. 1. Before filing the notice with the court, the municipality shall be required to select a tract of land at least equal in size to the cemetery to be condemned and shall describe the tract in the notice.
      2. The municipality shall be required to file with its notice a statement from the Department of Health approving the proposed new location.
   6. After the notice of intent has been published for four (4) weeks, as required by this section, the circuit court sitting without a jury shall determine if the proposed new location is suitable, and, if the court so finds, it shall enter an order to that effect. The owner of the cemetery or of the lands where the existing cemetery is located and the next of kin of any person buried in the cemetery or in the graves shall be entitled to appear in the proceeding and object to the proposed location and suggest other locations.
2. 1. Thereafter, the municipality may file an application under the provisions of this subchapter for condemnation of the site so approved by the court, within a radius of four (4) miles of the existing cemetery.
   2. It is declared that the acquisition of the site shall be for public purposes and that the site may be condemned by the operating authority of a municipal waterworks system.
3. 1. After judgment has been entered vesting title to the new site in the applicant, as set out in § 18-15-404, the court shall enter an order in the proceedings mentioned in subsection (a) of this section, vesting title to the new cemetery site in the persons owning the lands of the cemetery or graves to be relocated and vesting title in the municipality to the lands where the old cemetery or graves are located.
   2. The order vesting title to the new cemetery site in the owners of the old cemetery or grave sites shall be the compensation and damages to which the owners of the old sites are entitled.
4. 1. Thereafter, the municipality, at its own expense, shall be required to remove all bodies, tombstones, and markers from the site of the original graves and to reinter the bodies in the new site, properly resetting tombstones and markers, if any, at the new site.
   2. The court may require the municipality to deposit with the clerk of the court a sum found by the court to be sufficient to ensure the performance of the obligation by the municipality.
   3. However, any surviving spouse or next of kin of a person whose grave is to be relocated may demand, prior to removal from the old grave site, that the municipality pay the expense of removing the body of the decedent to a cemetery selected by the surviving spouse or next of kin, the municipality paying the reasonable cost of the removal and reinterment.
5. If the old cemetery site was fenced, the municipality shall be required to install a fence of similar type around the new cemetery site and shall be required to construct within the cemetery such hard-surfaced roads as may be necessary to give access to grave sites. The roads shall be of at least equal quality with the roads in the original cemetery site.

History. Acts 1957, No. 269, § 9; A.S.A. 1947, § 35-915.

18-15-409. Controversy.

1. 1. When the determination of questions in controversy in the eminent domain proceedings authorized in this subchapter is, in the opinion of the operating authority of the municipal waterworks, likely to retard the progress of the project, the municipality shall so state in its application or in a separate pleading.
   2. The municipality shall also designate a sum which, in its opinion, is the reasonable value of the property to be taken and shall deposit that sum in the registry of the court for the purpose of making compensation and paying any damages which may be assessed against the municipality.
   3. The court shall thereupon immediately enter an order giving the municipality possession of the property and may enforce the order, if necessary.
   4. A copy of the order of possession shall be served upon any person of adult age found residing upon the premises, but only one (1) person need be served.
   5. However, at any time after the order is entered, any defendant may file a motion for a hearing on the amount of the deposit, giving notice of the motion to the applicant, and at the hearing the court may affirm the amount of the original deposit or may order it increased.
   6. No motion for hearing shall delay the applicant's right to possession.
2. 1. Any person named as a defendant in the action and claiming to be an owner of the property being condemned shall be entitled to apply to the court for a withdrawal of all or a part of the funds so deposited upon giving reasonable notice of his or her motion to withdraw funds to the applicant. The defendant shall also notify all other defendants whose addresses are known of his motion.
   2. 1. Before entering an order permitting a withdrawal of any portion of the deposit, the court shall determine the ownership of the property to be condemned, and no defendant shall be permitted to withdraw any greater portion of the deposit than is equal to his or her interest in the property to be condemned.
      2. In no event shall the aggregate amount of the withdrawal for all defendants be greater than the amount originally deposited by the municipality on its own motion.
   3. If any defendant claims that the amount withdrawn by any other defendant was wrongful or was excessive, the dispute shall be solely between the defendants.
   4. In any judgment against the municipality, the municipality shall receive full credit against all defendants for the amount deposited with the clerk or paid to the clerk after judgment.

History. Acts 1957, No. 269, § 10; A.S.A. 1947, § 35-916.

18-15-410. Rights of property owner upon entry by municipality.

1. If a municipality shall enter upon property which it has the right to acquire by condemnation proceedings without commencing condemnation proceedings, the owner of the property shall have the right to commence condemnation proceedings against the municipality at any time before an action for the recovery of the property or compensation therefor would be barred by the statute of limitations.
2. The measure of recovery in the action shall be the fair market value of the property at the time it was entered upon by the municipality.

History. Acts 1957, No. 269, § 11; A.S.A. 1947, § 35-917.

Subchapter 5 — Electric Companies Generally

Cross References. Eminent domain for transmission lines, treble compensation, § 23-18-108.

Effective Dates. Acts 1907, No. 120, § 17: effective on passage.

Acts 1929, No. 246, § 2: approved Mar. 27, 1929. Emergency clause provided: “Immediate construction of hydro-electric dams in the State of Arkansas being necessary for the preservation of the public peace, health and safety, an emergency is declared to exist and this act shall be in force and effect immediately after its passage.”

18-15-501. Right-of-way construed.

The right-of-way provided for under this section and §§ 18-15-502 — 18-15-509 shall be construed to include all lands necessary for dams and the backwater resulting therefrom, levees, approaches, abutments, canals, reservoirs, powerhouses, and other purposes incident to the business of generating, transmitting, distributing, or supplying electricity to or for the public for compensation or for public use by an electric utility, as defined in § 18-15-512.

History. Acts 1907, No. 120, § 16, p. 303; C. & M. Dig., § 4057; Pope's Dig., § 5059; A.S.A. 1947, § 35-316; Acts 2001, No. 1291, § 1; 2013, No. 1130, § 1.

Amendments. The 2001 amendment substituted “distributing, or supplying … § 18-15-512” for “and supplying electricity for public use.”

The 2013 amendment made no change to this section.

18-15-502. Exception.

No action to condemn the right-of-way over, upon, or along any street or alley in any city or incorporated town shall be instituted or maintained by an electric utility as against any city or incorporated town.

History. Acts 1907, No. 120, § 5, p. 303; C. & M. Dig., § 4047; Pope's Dig., § 5049; A.S.A. 1947, § 35-305; Acts 2001, No. 1291, § 2; 2013, No. 1130, § 2.

Amendments. The 2001 amendment substituted “an electric utility” for “a corporation.”

The 2013 amendment made no change in this section.

18-15-503. Powers.

1. 1. 1. An electric utility organized or domesticated under the laws of this state for the purpose of generating, transmitting, distributing, or supplying electricity to or for the public for compensation or for public use may construct, operate, and maintain such lines of wire, cables, poles, or other structures necessary for the transmission or distribution of electricity and broadband services:
         1. Along and over the public highways and the streets of the cities and towns of the state;
         2. Across or under the waters of the state;
         3. Over any lands or public works belonging to the state;
         4. On and over the lands of private individuals or other persons;
         5. Upon, along, and parallel to any railroad or turnpike of the state; and
         6. On and over the bridges, trestles, and structures of railroads.
      2. In constructing such dams as the electric utility may be authorized to construct for the purpose of generating electricity by water power, the electric utility may flow the lands above the dams with backwater resulting from construction.
   2. 1. However, the ordinary use of the public highways, streets, works, railroads, bridges, trestles, or structures and turnpikes shall not be obstructed, nor the navigation of the waters impeded, and just damages shall be paid to the owners of such lands, railroads, and turnpikes.
      2. The permission of the proper municipal authorities shall be obtained for the use of the streets.
2. 1. In the event that an electric utility, upon application to the individual, railroad, turnpike company, or other persons, should fail to secure by consent, contract, or agreement, a right-of-way for the purposes enumerated in subsection (a) of this section, then the electric utility shall have the right to proceed to procure the condemnation of the property, lands, rights, privileges, and easements in the manner prescribed in this subchapter.
   2. However, an electric utility shall not be required to secure by consent, contract, or agreement or to procure by condemnation the right to provide broadband services over its own lines of wire, cables, poles, or other structures that are in service at the time that the electric utility provides broadband services over the lines of wire, cables, poles, or other structures.
3. Whenever an electric utility desires to construct its line on or along the lands of individuals or other persons or on the right-of-way and the structures of any railroad or upon and along any turnpike, the electric utility, by its agent, shall have the right to enter peacefully upon the lands, structures, or right-of-way and survey, locate, and lay out its line thereon, being liable, however, for any damage that may result by reason of the acts.

History. Acts 1907, No. 120, §§ 1-3, p. 303; C. & M. Dig., §§ 4043-4045; Pope's Dig., §§ 5045-5047; A.S.A. 1947, §§ 35-301 — 35-303; Acts 2001, No. 1291, § 3; 2007, No. 739, § 3; 2013, No. 1130, § 3.

Amendments. The 2001 amendment substituted “electric utility” for “corporation” in (a)(1), (b), and (c); in (a)(1), inserted “or domesticated,” inserted “distributing, or,” inserted “to or for the public for compensation or,” inserted “or other structures,” and inserted “or distribution”; inserted “or other structures” in (a)(1), (b), and (c); and made minor stylistic changes throughout.

The 2013 amendment, in (b)(2), substituted “an” for “no” and inserted “not”.

18-15-504. Petition for assessment of damages.

1. If an electric utility, having surveyed and located its line under the power conferred by this section, §§ 18-15-501 — 18-15-503, and §§ 18-15-505 — 18-15-509, fails to obtain, by agreement with the owner of the property through which the line may be located, the right-of-way over the property, it may apply by petition to the circuit court of the county in which the property is situated to have the damages for the right-of-way assessed, giving the owner of the property at least ten (10) days' notice in writing by certified mail, return receipt requested, of the time and place where the petition will be heard.
2. In case property sought to be condemned is owned by any individual or corporation and is located in more than one (1) county, the petition may be filed in the circuit court of any county in which the whole or a part of the property may be located, and proceedings had therein will apply to all property designated in the petition.
3. If the owners of the property are nonresidents of the state, infants, or persons of unsound mind, the notice shall be given as follows:
   1. 1. By publication in any newspaper in the county which is authorized by law to publish legal notices.
      2. The notices shall be published for the same length of time as may be required in other civil causes;
   2. If there is no such newspaper published in the county, then the publication shall be made in some newspaper designated by the circuit clerk and one (1) written or printed notice thereof posted on the door of the courthouse of the county; and
   3. In writing by certified mail, return receipt requested, to the address of the owners of the property as it appears on the records in the office of the county sheriff or county tax assessor for the mailing of statements of taxes, as provided in § 26-35-705.
4. As nearly as may be, the petition shall describe the lands over which the right-of-way is located and for which damages are asked to be assessed, whether improved or unimproved, and be sworn to.
5. 1. An electric utility shall not be required to petition a court in order to provide broadband services over its own lines of wire, cables, poles, or other structures that are in service at the time that the electric utility provides broadband services over the lines of wire, cables, poles, or other structures.
   2. An owner of property upon which an electric utility's lines of wire, cables, poles, or other structures are located may petition the circuit court of the county in which the property is situated for any compensation to which it might be entitled under this subchapter.

History. Acts 1907, No. 120, §§ 5-7, 9, p. 303; C. & M. Dig., §§ 4047-4049, 4051; Pope's Dig., §§ 5049-5051, 5053; A.S.A. 1947, §§ 35-305 — 35-307, 35-309; Acts 1999, No. 1236, § 1; 2001, No. 1291, § 4; 2007, No. 739, § 4; 2013, No. 1130, § 4.

Amendments. The 1999 amendment added (c)(2) and added the (c)(1) and (c)(3) designations; inserted “by certified mail return receipt requested” following “in writing” in (a); added “as follows” at the end of the introductory language in (c); and made stylistic changes.

The 2001 amendment substituted “If any electric utility” for “Any corporation” in (a); deleted “owned by any individual or corporation and is” following “be condemned is” in (b); and made minor stylistic changes.

The 2013 amendment changed “any” to “and” in (a); inserted “is owned by any individual or corporation and” in (b); and in (e)(1), substituted “An” for “No” and inserted “not”.

18-15-505. Appointment of guardian ad litem.

In case of infants or persons of unsound mind, when no legal representative or guardian appears in their behalf at the hearing, it shall be the duty of the court to appoint a guardian ad litem who shall represent their interests for all purposes.

History. Acts 1907, No. 120, § 8, p. 303; C. & M. Dig., § 4050; Pope's Dig., § 5052; A.S.A. 1947, § 35-308.

18-15-506. Trial by jury.

It shall be the duty of the court to impanel a jury of twelve (12) persons, as in other civil cases, to ascertain the amount of compensation which the electric utility shall pay, and the matter shall proceed and be determined as other civil causes.

History. Acts 1907, No. 120, § 10, p. 303; C. & M. Dig., § 4052; Pope's Dig., § 5054; A.S.A. 1947, § 35-310; Acts 2001, No. 1291, § 5; 2013, No. 1130, § 5.

Amendments. The 2001 amendment substituted “electric utility” for “corporation.”

The 2013 amendment made no change in this section.

18-15-507. Damages.

1. 1. The amount of damages to be paid the owner of the lands for the right-of-way for the use of the electric utility shall be determined and assessed irrespective of any other benefit that the owner may receive from any improvement proposed by the electric utility.
   2. 1. If an owner of property petitions a court under § 18-15-504(e), the amount of damages, if any, payable to the owner for the use of preexisting lines of wire, cables, poles, or other structures by an electric utility to provide broadband services shall be limited to an amount sufficient to compensate the property owner for the increased interference, if any, with the owner's use of the property caused by any new or additional physical attachments to the preexisting facility for the purpose of providing broadband services.
      2. Evidence of revenues or profits derived by an electric utility from providing broadband services is not admissible for any purpose in a proceeding under § 18-15-504(e).
2. In all cases in which damages for the right-of-way for the use of the electric utility shall have been assessed in the manner provided, it shall be the duty of the electric utility to deposit with the court or pay to the owners the amount so assessed and pay such costs as may be in the discretion of the court be adjudged against it within thirty (30) days after the assessment. Whereupon, it shall and may be lawful for the electric utility to enter upon, use, and have the right-of-way over the lands forever.
3. In all cases in which the electric utility shall not pay or deposit the amount of damages assessed pursuant to this section, §§ 18-15-501 — 18-15-506, § 18-15-508, and § 18-15-509 within thirty (30) days after the assessment, the electric utility shall forfeit all rights in the premises.

History. Acts 1907, No. 120, §§ 11, 12, 15, p. 303; C. & M. Dig., §§ 4052, 4053, 4056; Pope's Dig., §§ 5054, 5055, 5058; A.S.A. 1947, §§ 35-311, 35-312, 35-315; Acts 2001, No. 1291, § 6; 2007, No. 739, § 5; 2013, No. 1130, § 6.

Amendments. The 2001 amendment twice substituted “electric utility” for “company” in (a); in (b), substituted “electric utility shall” for “electric power corporation shall,” substituted “electric utility to deposit” for “corporation to deposit,” and substituted “electric utility to enter” for “company to enter”; substituted “electric utility” for “corporation” in (c); and made minor punctuation changes.

The 2013 amendment deleted “§” following “15-15-506” and “18-15-508” in (c).

18-15-508. Deposit in case of controversy.

1. When the determination of questions in controversy in the proceedings is likely to retard the progress of work on or the business of the electric utility, the court or judge in vacation shall designate an amount of money to be deposited by the electric utility, subject to the order of the court, and for the purpose of making compensation when the amount thereof has been assessed, as provided in § 18-15-507, and the judge shall designate the place of deposit.
2. Whenever the deposit has been made in compliance with the order of the court or judge, it shall be lawful for the electric utility to enter upon the land and proceed with its work, through and over the lands in controversy, prior to the assessment and payment of damages for the use and right to be determined as provided in this section, §§ 18-15-501 — 18-15-507, and § 18-15-509.

History. Acts 1907, No. 120, §§ 13, 14, p. 303; C. & M. Dig., §§ 4054, 4055; Pope's Dig., §§ 5056, 5057; A.S.A. 1947, §§ 35-313, 35-314; Acts 2001, No. 1291, § 7; 2013, No. 1130, § 7.

Amendments. The 2001 amendment substituted “electric utility” for “corporation” in (a) and (b).

The 2013 amendment deleted “§” following “18-15-507, and” in (b).

18-15-509. Destruction or injury to company property.

A person who destroys or injures the wire, cable, pole, dam, reservoir, canal, power house, machinery, or appliances therein of the electric utility is guilty of a misdemeanor and upon conviction shall be fined in any sum not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000) and imprisoned in the county jail for a period of not less than ten (10) days nor more than six (6) months.

History. Acts 1907, No. 120, § 4, p. 303; C. & M. Dig., § 4046; Pope's Dig., § 5048; A.S.A. 1947, § 35-304; Acts 2001, No. 1291, § 8; 2013, No. 1130, § 8.

Amendments. The 2001 amendment substituted “electric utility” for “corporation.”

The 2013 amendment, substituted “destroys or injures” for “shall destroy or injure” and “is” for “shall be”.

18-15-510. Construction of hydroelectric dams — Rights-of-way for railroad in connection with use or construction of dam.

1. Every company authorized to construct hydroelectric dams in the State of Arkansas, when it becomes expedient or necessary to acquire a right-of-way for the purpose of constructing a railroad for use in connection with or to facilitate the construction of the dam, the companies shall have the power to enter upon, condemn, and appropriate the lands, rights-of-way, easements, and property of persons, firms, or corporations.
2. The method or manner of making its survey, laying out its right-of-way, acquiring its right-of-way, either by contract or condemnation, shall be the same as now provided by law in case of the exercise of the right of eminent domain by telegraph, telephone, and railroad companies.
3. It shall be subject to the same duties and liabilities and shall have the same rights as prescribed by law with reference to railroads.
4. This section shall not be so construed as to authorize the condemnation of public streets or highways.

History. Acts 1929, No. 246, § 1; Pope's Dig., § 5060; A.S.A. 1947, § 73-2017.

Publisher's Notes. Acts 1929, No. 246, § 1, is also codified as § 23-18-407.

Cross References. Dam construction, permits, § 15-22-210.

18-15-511. Declaration of public interest.

The business of generating electricity, transmitting electricity, distributing electricity, or supplying electricity to or for the public for compensation or for public use is declared to be in the public interest.

History. Acts 2001, No. 1291, § 9.

18-15-512. Definition of “electric utility”.

1. 1. As used in this subchapter, “electric utility” means a public utility, as defined in § 23-1-101, that owns or operates for compensation in this state equipment or facilities for producing, generating, transmitting, distributing, selling, or furnishing electricity or another agent for the production of light or electric power to or for the public in this state.
   2. “Electric utility” does not include:
      1. An exempt wholesale generator as defined in § 23-1-101;
      2. Any person not otherwise an electric utility or a business unit of an electric utility that:
         1. Is a power broker who acts as an agent or intermediary on behalf of another person for the purpose of facilitating the sale or purchase of electricity;
         2. Is a power marketer who acquires, purchases, or generates electric energy on its own behalf with the intent of reselling the electric energy to another person at wholesale;
         3. Is a qualifying facility that is a cogeneration or small power production facility entitled to the rights and privileges of a qualifying facility under the Public Utility Regulatory Policies Act of 1978, 16 U.S.C. § 2601 et seq.; or
         4. Is a municipal corporation owning a municipal electric utility; or
      3. An independent transmission system operator, independent transmission company, independent regional transmission group, or other independent transmission entity operating transmission facilities in this state as an independent transmission company, an independent regional transmission group, or other independent transmission entity that is not a public utility, as defined in § 23-1-101.
2. As used in this section, “person” means an individual or entity, including without limitation a partnership, corporation, cooperative association, trust, business trust, limited liability company, or governmental entity.

History. Acts 2001, No. 1291, § 10; 2013, No. 1130, § 9.

Amendments. The 2013 amendment redesignated and rewrote the former introductory language as (a)(1); and added (a)(2) and (b).

Subchapter 6 — Municipal Corporations — Water and Water-Generated Electric Companies

Cross References. Acquiring property for waterworks system by city, § 14-234-215.

Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq.

Water power companies' right to eminent domain, § 23-18-406.

Effective Dates. Acts 1895, No. 126, § 9: effective on passage.

Acts 1907, No. 130, § 2: effective on passage.

Acts 1931, No. 154, § 3: approved Mar. 20, 1931. Emergency clause provided: “The immediate operation of this act is necessary for the preservation of the public peace, health and safety, and this act shall take effect and be in force and effect from and after its passage.”

Acts 1995, No. 1207, § 7: Apr. 11, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that the supplying of water to the citizens of the state shall be expedited by this act; that there are numerous cities, villages and rural areas desiring to immediately expand their water works facilities to meet the demands of their customers and potential customers; that numerous citizens of the state of Arkansas currently have no stable source of water and can obtain such only through the immediate passage and effectiveness of this act; that the supplying of water and expansion of water facilities shall be expedited by this act; and that this act is necessary for the public health, safety and welfare of the citizens of the state. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

18-15-601. Power of eminent domain.

1. All municipal corporations in this state and all corporations, including not-for-profit corporations and water associations, which supply any town, city, or village in this state, or the inhabitants thereof, with water, or which supply water to rural customers or consumers, are authorized to exercise the power of eminent domain to condemn, take, and use private property for the use of the corporations when necessary to carry out the purposes and objects of the corporations including, without limitation, the condemnation of easements in which water transmission or water distribution lines shall be constructed and located and the condemnation of real property for the construction and location of water storage tanks, water treatment facilities, master metering facilities, pump stations, and other necessary appurtenances needed for water production, transmission, and distribution, regardless of whether or not the private property is located within or outside of the boundaries of the city, town, or village which the municipal or other corporation, including not-for-profit corporations and water associations, serves.
2. Whenever the municipal or other corporation, including not-for-profit corporations and water associations, in the construction of its waterworks, or in enlarging or extending the waterworks, or water distribution or water transmission lines, shall deem it desirable to condemn, take, use, or occupy private property in the construction of its water treatment or storage facilities, water transmission or distribution lines, or other appurtenances thereto, the corporation may condemn, take, and use the private property, first making just compensation therefor, and proceed as provided in this subchapter.
3. The corporations and water associations shall exercise the powers of eminent domain only as a last resort, and they shall make use of existing easements and rights-of-way to the extent practicable.
4. No municipal or other corporation, including not-for-profit corporations and water associations, exercising eminent domain powers under this subchapter shall provide water service to any existing customer of any incorporated city or town absent the express written approval of the incorporated city or town.

History. Acts 1895, No. 126, §§ 1, 2, p. 183; 1907, No. 130, § 1, p. 322; C. & M. Dig., §§ 4034, 4035; Pope's Dig., §§ 5035, 5037; A.S.A. 1947, §§ 35-401, 35-402; Acts 1995, No. 1207, § 1.

18-15-602. Right to draw, control, etc., water.

1. When a corporation in the construction of its waterworks, in extending its waterworks, or in making new lines of work shall deem it necessary, it may, as provided in this subchapter, draw water from any river, lake, creek, spring branch, or spring by means of pipes, ditches, drains, conduits, aqueducts, or other means of conducting water so as to connect the rivers, lakes, creeks, spring branches, or springs with its works.
2. The corporation may also erect and construct dams, bulkheads, gates, and other needed structures and means of controlling the water and its protection and in general do any other act necessary or convenient in accomplishing the purpose contemplated by this subchapter.

History. Acts 1895, No. 126, § 3, p. 183; C. & M. Dig., § 4036; Acts 1931, No. 154, § 1; Pope's Dig., § 5038; A.S.A. 1947, § 35-403.

18-15-603. Survey and map required.

Whenever a corporation proposes to construct or extend the work or proposes to extend its line of works so as to connect with any river, lake, creek, spring branch, or spring and direct the water of any river, lake, creek, spring branch, or spring or body of water within its waterworks, it shall proceed as follows:

1. 1. That corporation shall cause to be made a survey of the line along which it proposes to construct or extend the waterworks, and of all lands and other property to be affected by flowage, drainage, or by the construction of ditches, drains, conduits, aqueducts, or otherwise.
   2. For that purpose the corporation by its officers and agents may enter any land for the purpose of making the surveys and measurements or for obtaining any other necessary information relative to the construction or extension of the waterworks, doing no unnecessary damage to the real estate; and
2. 1. After the survey has been made and the line located, the corporation shall cause to be made a map showing the location of the line, extension, and improvements and the lands necessary to be taken for the construction, extension, or improvement, and all lands or other property to be affected by flowage, drainage, or otherwise.
   2. The map shall be verified under oath by the surveyor making the map as just and correct, as he or she verily believes.
   3. The map shall also be acknowledged by the mayor, clerk, or recorder or other proper officer of the city, town, or village seeking to condemn and take the real estate, or by the president, secretary, or director of the corporation seeking to condemn and take the real estate.

History. Acts 1895, No. 126, § 4, p. 183; C. & M. Dig., § 4037; Acts 1931, No. 154, § 2; Pope's Dig., § 5039; A.S.A. 1947, § 35-404.

18-15-604. Petition.

1. 1. The municipal corporation or other corporation so intending and desiring to condemn, take, and use the real estate may present to the circuit court in and for the county in which the lands so proposed to be taken, condemned, and used are situated, a petition signed by the president and secretary of the corporation or water association or by the mayor, recorder, or other executive officer of the city, town, or village.
   2. This petition shall set forth a description of the enterprise to be prosecuted by them and describe with reasonable certainty and by reference to the map or plat, or otherwise, the lands, property, and estate which it will be necessary to appropriate, take, use, overflow, drain, or otherwise affect, setting forth the name of each and every owner, encumbrancer, or other person interested in the lands, property, or estate or any part thereof, so far as it can be ascertained by the public records and by view of the premises or other inquiry touching the occupation thereof.
2. In case the property sought to be condemned is owned by any individual or corporation and is located in more than one (1) county, the petition may be filed in any circuit court having jurisdiction in any county in which the whole or a part of the property may be located, and proceedings had in the circuit court will apply to all the property designated in the petition.
3. The notice of the filing of the petition and the presentation thereof shall be given to the owners and parties interested as is now prescribed by law for the condemnation of property by railroad, telegraph, and telephone corporations.
4. The written notice to the landowner shall include a statement that the owner may request, within twenty (20) days of receipt of the notice, that the corporations or associations shall mark and identify the proposed area of the easement on the landowner's property which is the subject of the eminent domain action, and which shall be done at the expense of the corporation or association.

History. Acts 1895, No. 126, §§ 5, 6, p. 183; C. & M. Dig., §§ 4038, 4039; Pope's Dig., §§ 5040, 5041; A.S.A. 1947, §§ 35-405, 35-406; Acts 1995, No. 1207, § 2.

18-15-605. Damages — Deposits.

1. The further proceedings in the matter of assessment of damages and the making of deposits to secure the owner shall be the same as is now prescribed by law in reference to condemnation proceedings by railroad, telegraph, and telephone corporations, except that the measure of damages shall be the fair market value of the condemned property at the time of the filing of the petition by the corporation or water association as may be determined by law.
2. In the case of application for orders of immediate possession by the corporation or water association, if the amount awarded by the jury exceeds the amount deposited by the corporation or water association in an amount which is more than twenty percent (20%) of the sum deposited, the landowner shall be entitled to recover the reasonable attorney's fees and costs.

History. Acts 1895, No. 126, § 6, p. 183; C. & M. Dig., § 4039; Pope's Dig., § 5041; A.S.A. 1947, § 35-406; Acts 1995, No. 1207, § 3; 1999, No. 55, § 1.

Amendments. The 1999 amendment substituted “determined by law” for “determined by a jury based on the opinion of a licensed appraiser” in (a).

18-15-606. Appeals.

Appeals may be taken by any party interested from the assessment and allotment of damages under the provisions of this subchapter.

History. Acts 1895, No. 126, § 8, p. 183; C. & M. Dig., § 4041; Pope's Dig., § 5043; A.S.A. 1947, § 35-408.

18-15-607. Tapping of mains and supply pipes, nuisance, and pollution prohibited.

A person shall be guilty of a violation and fined for each and every offense in any sum not exceeding one thousand dollars ($1,000) if the person shall:

1. Tap the main or supply pipe of any water plant or company without first obtaining the permission of the proper city authorities, corporation, or owner of the water plant;
2. Commit nuisance in or near the impounding dam or reservoir of any water plant; or
3. Pollute the water or affect its wholesome qualities.

History. Acts 1895, No. 126, § 7, p. 183; C. & M. Dig., § 4040; Pope's Dig., § 5042; A.S.A. 1947, § 35-407; Acts 1997, No. 315, § 1; 2005, No. 1994, § 93.

Amendments. The 2005 amendment substituted “violation” for “misdemeanor” in the introductory paragraph.

Subchapter 7 — Dams, Mills, Etc.

18-15-701. Findings no bar to prosecution or action under other law — Exception.

The inquest of the jury or the order and permission of the court founded thereupon shall not bar any prosecution or action, which any person would have had in law, had this subchapter not been passed, except for such injuries as were actually foreseen and estimated by the jury.

History. Rev. Stat., ch. 98, § 22; C. & M. Dig., § 3964; Pope's Dig., § 4966; A.S.A. 1947, § 35-522.

18-15-702. Penalty.

Any person who shall build or raise any dam or any other stoppage or obstruction in or across any watercourse without first obtaining permission from the proper court, according to law, and shall thereby work any material injury to any other person by overflowing his or her lands, shall forfeit to the party injured double damages for the injury, to be recovered in a civil action.

History. Rev. Stat., ch. 98, § 23; C. & M. Dig., § 3965; Pope's Dig., § 4967; A.S.A. 1947, § 35-523.

18-15-703. Nuisance.

All dams, stoppages, or obstructions not made according to law shall be deemed to be public nuisances and shall be dealt with accordingly.

History. Rev. Stat., ch. 98, § 24; C. & M. Dig., § 3966; Pope's Dig., § 4968; A.S.A. 1947, § 35-524.

18-15-704. Erection of certain dams permitted.

By proceeding as provided in this subchapter, any person may erect a dam across any watercourse not being a navigable stream if the person is the proprietor of the land through which the watercourse runs at the point where he or she proposes to erect his or her dam.

History. Rev. Stat., ch. 98, § 1; C. & M. Dig., § 3943; Pope's Dig., § 4944; A.S.A. 1947, § 35-501.

18-15-705. Petition required.

1. If a dam is proposed to be erected pursuant to § 18-15-704, the person proposing to erect the dam, if it is likely to overflow any lands on the stream belonging to other persons, shall file his or her petition for that purpose in the circuit court of the county in which he or she proposes to erect his or her mill or other machinery connected with the dam.
2. If a mill or other dam is proposed to be erected near a county line so as to overflow lands in an adjoining county, then the person proposing to erect the dam shall apply to the circuit court of both counties for the relief provided in this subchapter.
3. The petitioner shall set forth:
   1. A description of the land and an abstract of the title thereto;
   2. The name of the watercourse;
   3. A description of the point at which he or she proposes to erect his or her dam;
   4. The altitude of the dam which he or she proposes to erect; and
   5. The kind of mill and other machinery which he or she proposes to connect with the dam.

History. Rev. Stat., ch. 98, §§ 3-5; C. & M. Dig., §§ 3945-3947; Pope's Dig., §§ 4946-4948; A.S.A. 1947, §§ 35-503—35-505.

18-15-706. Issuance of writ — Inquiry by jury.

1. 1. On filing the petition, it shall be the duty of the court to cause a writ of ad quod damnum to be issued under the seal of the court.
   2. The writ shall be directed to the sheriff, commanding him or her to summon twelve (12) fit persons of his or her county to meet at the place where the mill is proposed to be erected or the land overflowed, on a day named in the writ.
   3. Then and there, it shall be the duty of the court to inquire by the jury, touching the matter contained in the petition, a copy of which shall accompany the writ.
2. It shall be the duty of the sheriff to attend with the jury on the day and at the place appointed, and upon full examination and inquiry by the jury, it shall find:
   1. What will be the amount of damage to each proprietor by reason of inundation consequent upon the erection of the dam as proposed;
   2. Whether the dwelling of any proprietor or the outhouses, curtilages, or gardens thereunto immediately belonging, or orchard, will be overflowed thereby;
   3. Whether, and to what extent, ordinary navigation and the passage of fish will be obstructed by the erection, and whether and by what means the obstructions may be prevented or diminished; and
   4. Whether the health of the neighborhood will be materially endangered in consequence of the erection.
3. The inquest of the jury shall be reduced to writing and, after being signed by each member of the jury, shall be returned by the sheriff together with the writ, and a statement of the manner in which he or she executed it, into the court which issued it, without delay.

History. Rev. Stat., ch. 98, §§ 7, 8,11; C. & M. Dig., §§ 3949, 3950, 3953; Pope's Dig., §§ 4951, 4952, 4955; A.S.A. 1947, §§ 35-507, 35-508, 35-511.

18-15-707. Summons.

1. Upon the return of the inquest, the court shall cause the proprietor of the land, one (1) acre of which shall have been prayed for, and the several persons, who may be proprietors of the land found by the inquest returned to be liable to damage, to be summoned to appear in the same court on a day to be named in the summons and show cause, if any they can, why the person petitioning should not have permission to erect his or her dam.
2. 1. If the proprietor resides in the county in which the lands lie, the service of the summons shall be as in ordinary cases.
   2. If the proprietor is not a resident in the county, then the service shall be by setting up a copy at the house of the tenant on the land, or if there is no tenant there, at some conspicuous place on the land.

History. Rev. Stat., ch. 98, §§ 12, 13; C. & M. Dig., §§ 3954, 3955; Pope's Dig., §§ 4956, 4957; A.S.A. 1947, §§ 35-512, 35-513.

18-15-708. Refusal of permit.

If upon a view of the inquest returned by the sheriff and other evidence, if any shall be produced, it shall appear to the court that the dwelling of the proprietor, or outhouses, curtilages, or gardens thereunto belonging, or orchards, or fields will be overflowed, or that the health of the neighborhood will be materially annoyed by the stagnation of the waters consequent upon the erection of the proposed dam, then the court shall not permit the dam to be erected.

History. Rev. Stat., ch. 98, § 14; C. & M. Dig., § 3956; Pope's Dig., § 4958; A.S.A. 1947, § 35-514.

18-15-709. Order.

1. If upon view it shall appear to the court that none of the evils provided against in § 18-15-708 are likely to ensue, the court shall then consider whether, all circumstances weighed, it is reasonable that the permission to erect the dam as prayed for should be given, and thereupon make an order, giving permission or not accordingly.
2. The order and decree authorized by subsection (a) of this section and § 18-15-712 and the rights and privileges thereby granted shall, in all cases, be upon and subject to the following conditions:
   1. Such conditions in reference to the obstructions of the passage of fish as the court shall think proper to impose;
   2. That all damages and valuations made and assessed by the jury shall be paid; and
   3. That the dam and mills or other machinery shall be commenced within one (1) year, and they shall be finished and ready for business within three (3) years from the date of the order of permission.

History. Rev. Stat., ch. 98, §§ 15, 17, 18; C. & M. Dig., §§ 3957, 3959, 3960; Pope's Dig., §§ 4959, 4961, 4962; A.S.A. 1947, §§ 35-515, 35-517, 35-518.

18-15-710. Rebuilding or repairing dam and mill.

Whenever the dam and mill or other machinery has been destroyed or materially impaired, they shall be rebuilt or repaired within three (3) years thereafter, but if the owner of the dam and mill is an infant, then the usual saving in favor of infants shall be effective.

History. Rev. Stat., ch. 98, § 19; C. & M. Dig., § 3961; Pope's Dig., § 4963; A.S.A. 1947, § 35-519.

18-15-711. Raising of dam.

Any owner of any dam and mill, or other machinery erected by virtue of this subchapter, may raise his or her dam by permission of the court, under and by the same proceedings, rules, and conditions provided in this subchapter.

History. Rev. Stat., ch. 98, § 21; C. & M. Dig., § 3963; Pope's Dig., § 4965; A.S.A. 1947, § 35-521; Acts 2019, No. 315, § 1685.

Amendments. The 2019 amendment substituted “rules” for “regulations”.

18-15-712. Erection of dam by owner of land on one side of watercourse.

1. Any person being the owner in fee simple of the land on one (1) side of a watercourse, including part of the bed of the watercourse at the point where he or she proposes to erect a dam, may erect the dam by proceeding as provided in this subchapter.
2. 1. The person proposing to erect a dam shall also file his or her petition, and in addition to the requisitions of § 18-15-705, shall set forth the name and place of residence of the proprietor of the land on the other side of the watercourse whereon he or she would abut his or her dam and on what side of the watercourse he or she proposes to erect his or her mill or other machinery in connection with his or her dam.
   2. The petition shall be filed in the county wherein he or she proposes to erect the mill or other machinery.
3. In this case, the sheriff shall further find by the jury the value of one (1) acre of ground on the opposite side of the watercourse, to include the place where the petitioner would abut his or her dam or build his or her mill or other machinery. The sheriff with the assistance of the jury shall set this one (1) acre of ground apart by metes and bounds.
4. 1. The sheriff shall notify the proprietor of the land, whereof one (1) acre is prayed for, of the time and place when and where he or she will take the inquest of the jury, if the proprietor is in his or her county, and, if not, the sheriff shall set up the notice at the house of the tenant of the land. If there is no tenant thereof, then the sheriff shall set up the notice at some conspicuous place on the land.
   2. In discharging duties pursuant to this subchapter, the sheriff shall have power with the jury to go into and act in an adjoining county when necessary.
5. When the party petitioning shall have prayed for one (1) acre of ground whereupon to abut his or her dam, the court shall include in its order granting permission to erect the dam, a decree vesting the acre of land and the title thereof in the party petitioning and his or her heirs and assigns, forever.
6. In case of noncompliance with any of the conditions concerning building, rebuilding, or repairing, when the land of another has been decreed by the court for the purpose of an abutment, the land shall revert to and revest in the original owner or his or her legal representatives.

History. Rev. Stat., ch. 98, §§ 2, 6, 9, 10, 16, 20; C. & M. Dig., §§ 3944, 3948, 3951, 3952, 3958, 3962; Pope's Dig., §§ 4945, 4950, 4953, 4954, 4960, 4964; A.S.A. 1947, §§ 35-502, 35-506, 35-509, 35-510, 35-516, 35-520.

18-15-713. Cutting canal through another's land.

Where mills or other machinery are proposed to be built, so as to be propelled by water drawn from lakes through canals cut therefrom, and the intended canal will be cut to pass through the land of other persons, the same procedure shall be pursued as in cases of streams.

History. Rev. Stat., ch. 98, § 26; C. & M. Dig., § 3968; Pope's Dig., § 4970; A.S.A. 1947, § 35-526.

18-15-714. Right of third person to build.

If any person or his or her legal representatives to whom permission to erect a dam in virtue of this subchapter has been given shall fail to build, rebuild, or repair the dam, together with the mill or other machinery connected therewith, according to the requisitions of this subchapter or the conditions of the permission, it shall be lawful for any other person owning the land on one (1) side of the watercourse at the point where the dam was erected or was intended to be erected, or owning the land below or above, to build a dam and mill or other machinery thereon, as if no permission had been given, without incurring any liability on account of taking off or backing the water on the dam.

History. Rev. Stat., ch. 98, § 25; C. & M. Dig., § 3967; Pope's Dig., § 4969; A.S.A. 1947, § 35-525.

Subchapter 8 — Navigation, Coal, and Stone Companies

Effective Dates. Acts 1869 (Adj. Sess.), No. 48, § 12: effective on passage.

Acts 1909, No. 309, § 4: effective on passage.

18-15-801. Navigation companies connecting streams by railroad — Private purchases permitted.

Nothing in §§ 18-15-802 — 18-15-806 shall prevent a company from making private contracts and purchases of lands from such owners as may be most agreeable to both parties.

History. Acts 1869 (Adj. Sess.), No. 48, § 10, p. 102; C. & M. Dig., § 1756; A.S.A. 1947, § 35-710.

18-15-802. Navigation companies connecting streams by railroad — Power of eminent domain.

1. 1. Any company formed for the purpose of buying or building and owning one (1) or more steamboats, barges, and flatboats to be used in transporting freight and passengers on any river, lake, bayou, or other navigable stream, shall have the right-of-way, not exceeding two hundred feet (200') in width, over any strip of land connecting two (2) navigable streams, lakes, or bodies of water.
   2. The strip of land shall not be more than five (5) miles in width for the purpose of erecting thereon dirt, plank, or horse railroads, and such other improvements as may be necessary for the convenience and business of the company.
2. No other company shall have right-of-way within a less distance than three (3) miles of the way claimed by the company first availing itself of the provisions of this section, § 18-15-801, and §§ 18-15-803 — 18-15-806.

History. Acts 1869 (Adj. Sess.), No. 48, § 4, p. 102; C. & M. Dig., § 1750; A.S.A. 1947, § 35-704.

18-15-803. Navigation companies connecting streams by railroad — Petition.

Any company desiring to avail itself of the benefits of the right-of-way provided for in this subchapter shall petition the county court, or the judge thereof in vacation, of the county in which any lands are situated and over which a right-of-way is desired to appoint a jury of twelve (12) persons, qualified under the laws of this state to serve on juries, whose duties it shall be to appraise and ascertain the value of any lands over which a right-of-way is desired by any company petitioning, and provided for in this section.

History. Acts 1869 (Adj. Sess.), No. 48, § 5, p. 102; C. & M. Dig., § 1751; A.S.A. 1947, § 35-705.

18-15-804. Navigation companies connecting streams by railroad — Jury.

1. When any company shall petition according to the requirements of § 18-15-803, the county court, or the judge thereof in vacation, shall make an order appointing the jury immediately.
2. In the order, the jury shall be directed to ascertain and report to the court or judge, within thirty (30) days from the date of their appointments, the value of any lands which, under the provisions of this subchapter, they may be directed to ascertain.
3. The jury, before entering upon the discharge of their duties, shall take an oath that they will, as nearly as may be, ascertain the number of acres of land by them to be appraised, and report the numbers to the court or judge, together with the average value per acre of the land in cash.

History. Acts 1869 (Adj. Sess.), No. 48, § 6, p. 102; C. & M. Dig., § 1752; A.S.A. 1947, § 35-706.

18-15-805. Navigation companies connecting streams by railroad — Jury report — Payment.

1. 1. When any jury reports, as provided in § 18-15-804, it shall be the duty of the judge to cause the company to be notified that the report has been made.
   2. If the company shall deposit, within fifteen (15) days after receiving the notice, with the county clerk the full amount of money at which any lands may have been appraised or valued by the jury appointed for that purpose, then the company shall be entitled to the use and possession of the appraised and valued lands.
2. However, before the company shall be entitled to the use or possession of any lands as provided in this section, the judge shall make an order that the amount deposited with the clerk shall be paid to the owner or owners of the lands.

History. Acts 1869 (Adj. Sess.), No. 48, § 7, p. 102; C. & M. Dig., § 1753; A.S.A. 1947, § 35-707.

18-15-806. Navigation companies connecting streams by railroad — Order to vest land in petitioner.

1. When any lands shall have been so appraised and valued, when a due report of the appraisement has been made, and when the amount of money has been deposited with the clerk and ordered to be paid as provided in § 18-15-805, it shall be the duty of the judge to make an order upon the records of his or her court that the lands so appraised shall vest in and belong to the company petitioning, as provided in § 18-15-803.
2. The order shall contain a description of the lands, the amount at which they were valued by the appraisers, the fact that the amount was deposited with the clerk and ordered to be paid over to the original owner or owners, the date of the deposit and order, the names of the original owner or owners, and the corporate name of the company.
3. 1. When so made and certified by the judge, the order shall be recorded as other deeds of conveyance.
   2. When so made, certified, and recorded, the order shall operate as, and have in law the effect of, conveyance in fee simple from the original owner or owners to the company of the lands named and described in the order.

History. Acts 1869 (Adj. Sess.), No. 48, §§ 8, 9, p. 102; C. & M. Dig., §§ 1754, 1755; A.S.A. 1947, §§ 35-708, 35-709.

18-15-807. Packet, coal, and stone companies — Power of eminent domain.

1. 1. Any packet company organized under the laws of this state for the purpose of running boats as common carriers upon its navigable waters is given the right of eminent domain to establish landings and loading places upon any of the navigable streams of this state, or upon any creek or bayou emptying thereinto, with the right to deepen and widen the creeks and bayous for a distance not exceeding three (3) miles from their mouths, in order that they may become suitable harbors.
   2. The landing and loading places shall not exceed ten (10) acres in extent at any one (1) place. All steamboats shall have the right to land, load, and unload at the landing places.
2. Packet companies and also all coal and stone companies are also given the right of eminent domain to condemn a right-of-way not exceeding fifty yards (50 yds.) in width for roads or tram roads, to be built from any navigable stream or creek, or bayou emptying thereinto, to any coal mine or stone quarry, in order that the products of the mines or quarries may be transported to the banks of the navigable rivers or to the creeks or bayous, and the right-of-way may be carried across the right-of-way of any railroad company.
3. The proceedings for the condemnation of the landing and loading places and rights-of-way shall be, in all things, the same as provided in §§ 18-15-1202 — 18-15-1207.

History. Acts 1909, No. 309, §§ 1-3, p. 925; C. & M. Dig., §§ 3973-3975; Pope's Dig., §§ 4975-4977; A.S.A. 1947, §§ 35-701 — 35-703.

Subchapter 9 — Public Landings

Effective Dates. Acts 1909, No. 307, § 21: effective on passage.

18-15-901. Establishment.

1. All public landings shall be laid out, opened, and established in a manner agreeable to the provisions of this subchapter.
2. The county court of each county shall have full power and authority to make and enforce all orders necessary for the establishment of public landings.

History. Acts 1909, No. 307, § 1, p. 916; C. & M. Dig., § 4058; Pope's Dig., § 5061; A.S.A. 1947, § 35-1001.

18-15-902. Notice of petition.

1. 1. Previous to any petition being presented for a public landing, notice shall be given by publication in some newspaper published in the county, if there is one.
   2. If there is no newspaper published in the county, then notice shall be given by advertisement set up in three (3) public places in the township wherein it is sought to establish the public landing, stating the time when the petition is to be presented to the county court and the substance thereof.
2. The notice shall be duly authenticated and presented with the petition to the county court.

History. Acts 1909, No. 307, § 4, p. 916; C. & M. Dig., § 4061; Pope's Dig., § 5064; A.S.A. 1947, § 35-1004.

18-15-903. Landing and cotton yard.

1. Any five (5) or more freeholders residing in any county bordering on the Mississippi River or any other navigable river, bayou, bay, or inlet may petition the county court of that county to cause a lot of ground on the bank of the river, bayou, bay, or inlet to be designated and set apart as a steamboat landing and cotton yard for the use of the public, stating in the petition the name of the owner of the landing proposed to be so taken.
2. Any one (1) or more of the signers to the petition shall enter bond, with sufficient security, payable to the State of Arkansas for the use of the county, conditioned that the person or persons making application for the establishment of a public landing shall pay into the treasury of the county the amount of all costs and expenses accruing on the petition and the proceedings thereon.
3. 1. In cases in which the prayer of the petitioners shall not be granted or when proceedings had in pursuance thereof shall not be finally confirmed and established, and on neglect or refusal of the persons so bound, after a liability shall have accrued, to pay into the treasury, according to the tenor of the bond, all costs and expenses that shall have accrued, the clerk of the county court shall deliver the bond to the prosecuting attorney of the district, whose duty it shall be to collect and pay over the bond to the county treasury.
   2. In all cases of contest, the court having jurisdiction of the case shall have power to render judgment for costs according to justice between the parties.

History. Acts 1909, No. 307, § 2, p. 916; C. & M. Dig., § 4059; Pope's Dig., § 5062; A.S.A. 1947, § 35-1002.

18-15-904. Petition to specify land.

All petitions for the laying out and establishment of public landings shall specify the land which is sought to be made a public landing.

History. Acts 1909, No. 307, § 3, p. 916; C. & M. Dig., § 4060; Pope's Dig., § 5063; A.S.A. 1947, § 35-1003.

18-15-905. Appointment and function of viewers.

1. On presentation of the petition and proof of notice of publication as provided in § 18-15-902, and the county court being satisfied that proper notice has been given in accordance with the provisions of § 18-15-907, the court shall appoint three (3) disinterested citizens of the county as viewers.
2. The viewers shall be a jury to assess and determine the compensation to be paid in money for the property sought to be appropriated without deduction for benefits to any property of the owner. They shall also assess and determine what damage the owner of the land where the public landing is to be established shall suffer by the establishment of the landing.

History. Acts 1909, No. 307, § 5, p. 916; C. & M. Dig., § 4062; Pope's Dig., § 5065; A.S.A. 1947, § 35-1005.

18-15-906. Order for viewers to proceed.

The county court shall issue its order directing viewers to proceed on the day to be named in the order or, on their failure to meet on that date, within five (5) days thereafter, to:

1. View, survey, lay out, and establish the public landing;
2. Determine whether the public convenience requires that the public landing shall be established; and
3. Report what amount of land is required for the public landing, not exceeding three (3) acres.

History. Acts 1909, No. 307, § 7, p. 916; C. & M. Dig., § 4064; Pope's Dig., § 5067; A.S.A. 1947, § 35-1007.

18-15-907. Notice of viewers' meeting.

1. 1. It shall be the duty of one (1) of the petitioners to give at least five (5) days' notice in writing to the owners or their agents, if residing within the county.
   2. If the owner is a minor, an individual with intellectual disabilities, or an individual with mental illness, then a petitioner shall give notice to the guardian of the person, if a resident of the county, on whose land the public landing is proposed to be laid out and established, and also five (5) days' notice to the viewers named in the order of the county court of the time and place of meeting as specified in the order.
2. It is further made the duty of the petitioners, if the public landing is proposed to be laid out or established on any land owned by nonresidents of the counties, to cause notice to be given to the nonresidents of the county by publication for two (2) consecutive weeks in some newspaper published in the county. If there is no newspaper published in the county, then notice shall be given to the nonresidents by posting a notice of the time and place of the meeting of the viewers as specified in the order of the county court. Also the substance of the petition for the public landing shall be posted upon the door of the office of the clerk of the county court for at least two (2) weeks before the time fixed for the meeting of the viewers.

History. Acts 1909, No. 307, § 8, p. 916; C. & M. Dig., § 4065; Pope's Dig., § 5068; A.S.A. 1947, § 35-1008.

18-15-908. Proceedings and report of viewers.

1. 1. It shall be the duty of the viewers to meet at the time and place specified in the order or within five (5) days thereafter.
   2. 1. After taking an oath or affirmation faithfully and impartially to discharge the duties of their appointments respectively, the viewers shall take to their assistance a surveyor and proceed to view, survey, lay out, and establish the public landing as prayed for in the petition, or as near the same as in their opinion a good public landing can be established and maintained at reasonable expense.
      2. The viewers shall take into consideration the ground, convenience and inconvenience, and expense which will result to individuals as well as to the public if the public landing shall be established as petitioned.
2. The viewers shall assess and determine the damages sustained by any person on whose premises the public landing is proposed to be established.
3. The viewers shall make and sign a report, in writing, stating their opinion in favor of or against the establishment of the public landing, which shall set forth the reason for their opinion. The report shall:
   1. Give a description and boundaries of the public landing, so that it can be readily found and located;
   2. State the value of the property sought to be appropriated for the establishment of the public landing; and
   3. State the amount of damages if any, and to whom due, which by them have been assessed and which would accrue by the establishment of the public landing.

History. Acts 1909, No. 307, §§ 9-11, p. 916; C. & M. Dig., §§ 4066-4068; Pope's Dig., §§ 5069-5071; A.S.A. 1947, §§ 35-1009 — 35-1011.

18-15-909. Assistance of viewers by surveyor.

The viewers may call a surveyor to assist them in laying out and surveying any public landing that they may be ordered by the court to lay out and establish.

History. Acts 1909, No. 307, § 6, p. 916; C. & M. Dig., § 4063; Pope's Dig., § 5066; A.S.A. 1947, § 35-1006.

18-15-910. Consequences of viewers' report.

1. On receiving the report of the viewers, the county court shall cause the report to be read publicly upon the second day of the term.
2. If no objection shall be made to the report and the court is satisfied that the public landing will be of sufficient importance to the public as to cause the damages and the compensation which have been assessed to be paid by the county, that the assessment is reasonable and just, and that the report of the viewers is favorable thereto, then the court shall order the compensation for the property to be paid to the person entitled thereto from the county treasury, and thenceforth the property shall be considered a public landing.
3. But if the court shall be of the opinion that the public landing is not of sufficient public utility for the county to pay the assessed compensation and damages and the petitioners refuse to pay the compensation and damages, then the public landing shall not be declared a public landing, and the costs accruing by reason of the application shall be paid by the petitioners as provided in this subchapter.
4. 1. If the report of the viewers is against the proposed public landing or, if in the opinion of the court, the proposed public landing is not of public utility, then no further proceedings shall be had thereon.
   2. The obligor in the bond securing costs and expenses shall be liable for the full amount of the costs and expenses.

History. Acts 1909, No. 307, § 12, p. 916; C. & M. Dig., § 4069; Pope's Dig., § 5072; A.S.A. 1947, § 35-1012.

18-15-911. Order to open and maintain landing.

After any public landing as provided in this subchapter has been established and declared to be a public landing, the county court shall cause an order to be issued to the overseer of the road district in which the landing is located to open and maintain the landing as a public landing.

History. Acts 1909, No. 307, § 13, p. 916; C. & M. Dig., § 4070; Pope's Dig., § 5073; A.S.A. 1947, § 35-1013.

18-15-912. Review and appeal.

The right to have the county court review the proceedings to establish the public landing and the right to appeal from the final decision of the county court shall:

1. Be the same as provided by law; and
2. Be exercised in the same manner as provided by the statutes and laws of Arkansas for public roads and highways.

History. Acts 1909, No. 307, § 15, p. 916; C. & M. Dig., § 4072; Pope's Dig., § 5075; A.S.A. 1947, § 35-1015.

18-15-913. Public entry, use, and occupation upon order of payment.

In all cases in which damages for land proposed to be taken for the establishment of a public landing have been assessed in the manner provided in this subchapter and an order has been made for the payment to the owners of the amount so assessed, then it shall and may be lawful for the public to enter upon, use, and occupy the landing as a public landing.

History. Acts 1909, No. 307, § 16, p. 916; C. & M. Dig., § 4073; Pope's Dig., § 5076; A.S.A. 1947, § 35-1016.

18-15-914. Deposit upon controversy.

1. When the determination of questions in controversy in these proceedings is liable to inconvenience the public, the county court or the county judge, in vacation, shall designate an amount of money to be deposited by the petitioners, subject to the order of the court, for the purpose of making compensation and paying such damages as may be sustained when the amount thereof shall have been assessed as provided in this subchapter.
2. The court shall designate the place of the deposit, but the sum shall be refunded to the petitioners if the public landing is established and paid for out of county funds.
3. Whenever deposits have been made in compliance with the order of the court or judge, it shall be lawful for the public, prior to the assessment and payment of damages for the land, to enter upon and use the land as a public landing.

History. Acts 1909, No. 307, §§ 17, 18, p. 916; C. & M. Dig., §§ 4074, 4075; Pope's Dig., §§ 5077, 5078; A.S.A. 1947, §§ 35-1017, 35-1018.

18-15-915. Lease.

1. The county court may lease a public landing for a term not exceeding three (3) years and the lessee shall transact there only a general receiving and forwarding business.
2. In case of a lease, the county court shall fix, with power to alter, the schedules of rates and charges for receiving and forwarding freight. The court shall require of the lessee a bond, payable to the county, in a penalty of not less than five hundred dollars ($500) as shall be proper, conditioned to observe the terms of the lease and to perform the duties imposed on the lessee by law.
3. 1. The lessee shall keep a schedule of rates conspicuously posted on the premises and shall allow all boats to land at the landing and to receive and discharge freight.
   2. Any failure on the part of the lessee to comply with his or her duties as public landing keeper, or any overcharge of rates, shall subject the lessee and his or her sureties to a penalty of twenty dollars ($20.00) in favor of the party injured, to be recovered in any court having jurisdiction.
4. The lease provided in this section shall not abridge the right of any person to forward and receive his or her own freight at the public landing, free of charge.
5. Any funds arising from lease of public landings shall be paid into the county treasury and constitute a part of the public road fund for the road district wherein the landing is located.

History. Acts 1909, No. 307, §§ 14, 19, p. 916; C. & M. Dig., §§ 4071, 4076; Pope's Dig., §§ 5074, 5079; A.S.A. 1947, §§ 35-1014, 35-1019.

18-15-916. Fees and expenses.

1. For each day necessarily employed, to be charged as costs and expenses and paid out of the county treasury, all persons required to render services under the provisions of this subchapter shall receive:
   1. As viewers or reviewers, one dollar and fifty cents ($1.50) per day;
   2. As chain carriers or markers, one dollar and fifty cents ($1.50) per day; and
   3. As surveyors, five dollars ($5.00) per day.
2. The amount due to each person and the number of days employed shall be certified under oath by the viewers or reviewers.
3. The county shall be reimbursed for the payments so made and for all other necessary expenses incident to proceedings by the petition, as provided in this subchapter.
4. The clerk of the county court shall receive the fees as by law he or she may be entitled to, the fees to be taxed as costs and paid as provided in this subchapter.

History. Acts 1909, No. 307, § 20, p. 916; C. & M. Dig., § 4077; Pope's Dig., § 5080; A.S.A. 1947, § 35-1020.

Subchapter 10 — Levee and Drainage Districts

Cross References. Condemnation of lands beyond district, § 14-121-808.

Consent of state to right of United States for flood control purposes, § 14-120-220.

Lateral ditches by landowners in district, right of eminent domain, § 14-121-804.

Effective Dates. Acts 1939, No. 83, § 3: approved Feb. 15, 1939. Emergency clause provided: “And it appearing that many levee and drainage districts in this state have been delayed in carrying out the objects and purposes for which they were created, which has in many instances worked a hardship on the landowners and taxpayers of said district due to the delay in the acquisition of easements and other agreements concerning the flowage and storage rights, all of which is detrimental to the public peace, health and safety, which is hereby ascertained, an emergency is hereby declared, and this act shall take effect and be in force from and after its passage.”

Acts 1945, No. 177, § 13: approved Mar. 2, 1945. Emergency clause provided: “It is ascertained and hereby declared that the provisions of this act are necessary to aid the levee or drainage districts, or levee and drainage districts, of this state to obtain and receive the benefits of national flood control legislation to protect the people and properties of this state from floods, and this act being necessary for the protection of the public health and safety of the people of this state, an emergency is therefore declared, and this act shall take effect and be in force from and after its passage.”

18-15-1001. Purpose.

It is expressly declared to be the purpose of this section and §§ 18-15-1002 — 18-15-1010 to enable levee and drainage districts in the State of Arkansas to acquire rights-of-way, borrow pits, and such other lands or rights as may be necessary for the purpose of extending, relocating, or draining any additional canal or ditch in any existing drainage district and for the purpose of extending, relocating, resetting, and enlarging any levee constructed by any levee district in the State of Arkansas without extending the boundaries of the district and without subjecting the lands of any drainage or levee district to taxation or special assessments because of the benefits that will accrue to the district and the lands therein by reason of the additional improvement contemplated, especially with funds of the United States Government, except such additional assessments as may be required on the lands of the district for the purpose of obtaining money with which to meet the requirements of the federal government in providing rights-of-way, borrow pits, and such other rights as the local agencies may be required to provide or furnish.

History. Acts 1945, No. 177, § 11; A.S.A. 1947, § 35-1111.

18-15-1002. Power of eminent domain.

1. The board of directors or commissioners of any levee or drainage district organized under the laws of the State of Arkansas are authorized and empowered to enter upon, take, and hold any lands or premises whatever, located either within or without the boundaries of the district, whether by purchase, grant, donation, devise, or otherwise, that may be necessary and proper for the location, relocation, construction, repair, or maintenance of any line of levees, drains, canals, or ditches, which may be authorized or necessary for any levee or drainage district to construct or make for the purpose of relieving any levee or land adjacent thereto from injury, want of drainage, or for the construction of any drain, ditch, or canal authorized to be constructed.
2. Any district having the authority to construct levees, ditches, drains, or canals is authorized and empowered to cut and remove trees, timber, and other material that may fall or otherwise encumber or endanger the levees, ditches, canals, drains, or any part thereof.
3. All levee and drainage districts shall have power to acquire by compromise or by agreement with the owner, or if the owner is a minor, an individual with mental illness, or if the lands belong to the estate of a deceased person, then with the guardian, curator, executor, or administrator, all property and right-of-way required by them.
4. 1. Levee and drainage districts may settle all claims for compensation or damages on account of right-of-way for the construction of levees, ditches, canals, or drains or material for the construction, maintenance, or repair of any levee, drain, canal, or ditch. The executor, administrator, or curator shall be responsible, on his or her bond, for the money or other things received in the settlement.
   2. In case of a settlement, the owner, curator, administrator, or executor shall have the power to convey to the levee or drainage district the right-of-way, material, or other property so required. This conveyance shall vest the levee or drainage district with the title to the right-of-way or property acquired pursuant to this section.

History. Acts 1945, No. 177, § 1; A.S.A. 1947, § 35-1101.

18-15-1003. Appraisers.

1. 1. Circuit judges of all counties in which it becomes necessary to condemn right-of-way for the purpose of constructing levees, ditches, drains, or canals, upon the application of the president or secretary of any levee or drainage district, shall appoint three (3) disinterested resident landholders of the county, to be known as appraisers, to assess damages for the appropriation of land for levee and drainage purposes.
   2. The appraisers shall hold their offices for the term of one (1) year and until their successors are duly appointed and qualified. In the event of a vacancy in the office or the removal by an appraiser from the county for which he or she was appointed, then it shall be the duty of the circuit judge, as soon as notified of the vacancy, to fill the unexpired term of the office by appointment.
   3. The appointment shall be made in writing by the circuit judge of the county in which it is necessary to construct a levee, ditch, canal, or drain and shall be filed with the circuit court clerk by the judge, who shall record the appointment in a book to be kept by him or her for that purpose.
2. 1. The appraisers shall each take an oath before the clerk of the circuit court in their respective counties that they will make a just and true award of the compensation to be paid any landholder, or other person.
   2. The oath shall be recorded in the book provided for the record of the appointment of the appraisers and shall authorize the appraisers severally to enter upon the discharge of their respective duties.
3. The compensation shall be:
   1. The cash market value of the lands appropriated or intended to be appropriated for either levee, drain, ditch, or canal purposes;
   2. The damage resulting to other lands of the same tract or obstruction to natural drainage, not exceeding the cost of artificial drainage, and the inconvenience, if any, of crossing either the levees, ditches, canals, or drains, from one (1) portion of the tract of land to the other; and
   3. The value of crops and houses on the right-of-way, or the cost of moving the houses.
4. 1. In the event one (1) or more of the appraisers who may be appointed under the provisions of this section shall be interested in any property to be condemned, the interested appraisers shall not act in the condemnation of the property.
   2. If one (1) or more of the appraisers shall refuse or neglect to act, it shall be the duty of the circuit judge to appoint another appraiser, whose appointment shall be recorded the same as the regular appraiser and who shall take the same oath of office.

History. Acts 1945, No. 177, § 2; A.S.A. 1947, § 35-1102.

18-15-1004. Petition — Appraisal — Summons.

1. Whenever any levee or drainage district deems it necessary to take, use, or appropriate any right-of-way, land material, or other property for levee, drain, ditch, or canal purposes pursuant to this section, §§ 18-15-1001 — 18-15-1003, and §§ 18-15-1005 — 18-15-1010, or when the right-of-way, land material, or other property has already been entered upon by it or has already been used, taken, or appropriated, then the levee or drainage district, by its president, secretary, attorney, or other authorized agent, may file a petition with the clerk of the circuit court of the county in which the property is situated, describing as near as may be practical the property taken or proposed to be taken and asking that the appraisers make an award to the owners of land or property.
2. 1. When the petition is filed, a copy of it shall be delivered to each of the appraisers. It shall then be the duty of the appraisers to assemble at some convenient time, enter upon the land or property which has been appropriated or is intended to be appropriated, and ascertain:
      1. The fair market value of the land appropriated, or intended to be appropriated;
      2. The damage which the construction of the levee will cause by the obstruction of natural drainage, not to exceed the cost of artificial drainage; and
      3. The inconvenience of passing over the levee, ditch, drain, or canal or the cost of removing the houses.
   2. 1. The appraisers shall reduce their findings to writing, giving the amount they award:
         1. Per acre for the land appropriated;
         2. For inconvenience of crossing the levee, ditch, canal, or drain; and
         3. For the destruction of crops and houses or the cost of removing the houses upon the right-of-way.
      2. The appraisers shall sign the report and file it with the clerk of the circuit court.
   3. However, any levee or drainage district may have the appraisers go on the land and make the appraisal as provided in this section prior to filing its petition in court. Thereafter, if it becomes necessary to file the petition with the clerk of the circuit court of the county, the report of the appraisers may then be filed.
3. 1. The clerk shall immediately issue a summons directed to the sheriff of the county, together with a copy of the award attached to the summons, commanding him or her to serve the owner if he or she resides in the county or, if the land belongs to a minor, an individual with mental illness, or an estate, to serve the summons upon the guardian, curator, executor, or administrator of the owner and make return thereof.
   2. However, if the owner is a nonresident of the county or is unknown to the officers of the levee or drainage district, it shall be the duty of the clerk to publish a warning order in some newspaper published in the county for four (4) insertions. The warning order may be in the following form and shall be dated and signed by the clerk:

“To (name of supposed owner) and all other persons having any claim or interest in and to the following described land, situated in County, Arkansas, namely: (here describe the land over which the levee or drainage passes according to U.S. Surveys). You are hereby warned to appear in this court within thirty (30) days, and file exceptions to the award which has been filed in this office by the levee and drainage appraisers of this county for the appropriation of the portion of the hereinbefore described land, for the construction or intended construction of a levee, ditch, canal, or drain, as the case may be, over and across the same.”

Click to view form.

History. Acts 1945, No. 177, § 3; 1957, No. 100, § 1; A.S.A. 1947, § 35-1103.

Publisher's Notes. It was held in Staub v. Mud Slough Drainage Dist. No. 1, 216 Ark. 706, 227 S.W.2d 140 (1950), that the provisions of §§ 18-15-1004 and 18-15-1005 limiting damages for obstruction of drainage to the cost of constructing artificial drainage were unconstitutional.

18-15-1005. Exception — Trial — Injunction.

1. 1. If no exception is filed by the owner within ten (10) days after service of summons or within ten (10) days of the last date of the publication of the warning order, or by the levee or drainage district within ten (10) days after award is filed, then it shall be the duty of the clerk of the circuit court to call the court's attention to the award, and failure to file exception thereto after notice having been given as provided.
   2. Upon this information, the court shall proceed to enter a judgment condemning the property and land for the right-of-way purposes and a judgment in favor of the owner of the land against the levee or drainage district for the amount awarded by the appraisers.
2. However, in case exceptions are filed by either party within the time prescribed in this section, it shall be the duty of the clerk to docket the cause.
3. The petition originally filed by the levee or drainage district and the award of the appraisers shall constitute all necessary pleadings in the proceedings, and, in case a trial is demanded or requested by either party, the question shall be tried as other common law cases are tried.
4. 1. The owner of the land shall be entitled to recover the:
      1. Value of the land appropriated or intended to be appropriated;
      2. Obstruction to natural drainage not to exceed the amount necessary to construct artificial drainage;
      3. Damage occasioned by the inconvenience of crossing the levee, ditch, canal, or drain from one (1) portion of the land to the other; and
      4. Value of any crops or houses on the right-of-way or the cost of removing the crops or houses.
   2. However, whenever any levee or drainage district shall cause any land or property to be appraised, as provided in this section, §§ 18-15-1001 — 18-15-1004, and §§ 18-15-1006 — 18-15-1010, it may enter upon the land and construct the levee, ditch, canal, or drain over and across it without paying the award until such time as the court in any term time shall so order or direct.
5. 1. It shall be the duty of the court or any county, circuit, or district judge to enjoin any owner of land from interfering with the construction of any levee, drain, ditch, or canal after an award has been made for the value of the land until such time as the court having proper jurisdiction shall render a final judgment.
   2. In case of an appeal from any judgment rendered by the circuit court, the levee or drainage district, upon filing a supersedeas bond with the Clerk of the Supreme Court, shall be entitled to have the owner of the land enjoined from interfering with the construction of any levee, ditch, drain, or canal until the cause can be heard in the Supreme Court.

History. Acts 1945, No. 177, § 3; 1957, No. 100, § 1; A.S.A. 1947, § 35-1103.

Publisher's Notes. It was held in Staub v. Mud Slough Drainage Dist. No. 1, 216 Ark. 706, 227 S.W.2d 140 (1950), that the provisions of §§ 18-15-1004 and 18-15-1005 limiting damages for obstruction of drainage to the cost of constructing artificial drainage were unconstitutional.

18-15-1006. Payment of award — Adjudication of claim.

1. 1. If no exception shall be taken to the award of the appraisers and no appeal taken from any judgment rendered by the circuit court, then the levee or drainage district seeking to condemn the right-of-way shall pay the award to the person in whose favor the award is made, taking duplicate receipts therefor, one (1) of which shall be attached to the award and filed with the proceedings in the cause.
   2. However, in the event the owner of the land, material, or property is unknown, or if it is uncertain who he or she is, or if there are conflicting claims to the land or to the award, or any part thereof, then the levee or drainage district shall pay the award to the clerk of the circuit court of the proper county for the owner and take the clerk's receipt from the owner and have it recorded in the book provided for the recording of petitions. The clerk and his or her sureties shall be answerable for the safekeeping of the money.
2. 1. Any claimants to the land may file an application in the circuit court and set up title to the land or property, and after giving notice to all adverse claimants by summons if they are residents of the county, and by warning order if nonresidents of the county or unknown, then the claimants shall have their claim to the money adjudicated and tried as other cases are tried under the rules and practice of the circuit court. Upon a final hearing, the circuit court shall direct a proper disposition of the money.
   2. The judgment shall be a bar to recovery against the levee or drainage district for any other or further compensation or damages for the construction or maintenance of the levee, ditch, drain, or canal.

History. Acts 1945, No. 177, § 4; A.S.A. 1947, § 35-1104.

18-15-1007. Refusal to pay award upon abandonment of line.

Any levee or drainage district may refuse to pay the award which may have been made by any board or appraisers provided for in this section, §§ 18-15-1001 — 18-15-1006, and §§ 18-15-1008 — 18-15-1010, or the judgment of any court assessing the damages for right-of-way and may abandon the line and relocate the levee, drain, ditch, or canal without being liable for any award or judgment rendered in any proceeding for the condemnation of right-of-way, except as to the costs.

History. Acts 1945, No. 177, § 5; A.S.A. 1947, § 35-1105.

18-15-1008. Appropriation of land without owner's consent.

1. Whenever the board of directors or commissioners of any levee or drainage district may have appropriated, or shall appropriate, any land for right-of-way for the construction and maintenance of either levees, ditches, canals, or drains, and constructed levees or drains thereon without having procured the consent of the owner of the land to construct the levees or drains or without having procured the right-ofway, either by purchase, donations, or condemnation, the owner, when his or her cause of action has not been barred by the statute of limitations, shall have a cause of action against the board of directors or commissioners for the market value of the land at the time it was actually occupied.
2. The owner may also claim such damages for inconveniences of crossing from one (1) portion of the tract, then owned by the party seeking to recover, to the other portion of the tract, as he or she has sustained, and such damages as the owner may have sustained on account of obstruction of natural drainage to the tract of land over which the levee or drain may have been or shall be constructed, not to exceed the cost of constructing artificial drainage.

History. Acts 1945, No. 177, § 8; A.S.A. 1947, § 35-1108.

Publisher's Notes. The limitation on the amount of damages for the obstruction of a landowner's natural drainage contained in this section was held to be unconstitutional in Staub v. Mud Slough Drainage Dist. No. 1, 216 Ark. 706, 227 S.W.2d 140 (1950).

18-15-1009. Limitation on actions and damages.

1. All actions for the recovery of damages against any levee or drainage district for the appropriation of land or the construction or maintenance of either levees or drains shall be instituted within one (1) year after the construction of the levees or drains, and not thereafter.
2. The recovery of damages on account of the construction or maintenance of levees or drains shall be limited and confined to the elements of damage mentioned and provided for in this section, §§ 18-15-1001 — 18-15-1008, and § 18-15-1010.

History. Acts 1945, No. 177, §§ 9, 10; A.S.A. 1947, §§ 35-1109, 35-1110.

18-15-1010. Fees.

1. The appraisers provided for in this section and §§ 18-15-1001 — 18-15-1009 shall be entitled to receive as compensation for viewing and appraising the land and property and making award of the damage therefor the sum of five dollars ($5.00) per day for each day in which the appraisers are actually engaged in this service. The sum shall be paid by the levee or drainage districts, as the case may be.
2. 1. In the event that there are exceptions filed to the award of any board or appraisers, the fees for conducting a trial of the cause shall be the same as are prescribed in ordinary proceedings in the common law court.
   2. The fees shall be paid by the levee or drainage district in all cases in which the judgment of the circuit court is in excess of the award made by the appraisers. The landowners shall pay the cost accruing when the judgment of the circuit court does not exceed the amount awarded by the appraisers.

History. Acts 1945, No. 177, §§ 6, 7; A.S.A. 1947, §§ 35-1106, 35-1107.

18-15-1011. Acquisition of flowage and storage rights and other servitudes.

1. 1. Whenever it becomes necessary for any levee or drainage district, or levee and drainage district organized under the laws of the State of Arkansas, to acquire flowage and storage rights and other servitudes upon, over, and across any lands in the construction, operation, and maintenance of any floodway, reservoir, emergency reservoir, spillway, or diversion, then the district shall have the full power and authority to acquire the rights by compromise, settlement, or other agreement with the owner.
   2. If the owner is a minor or an individual with mental illness or if the land belongs to the estate of a deceased person, then the curator, guardian, executor, or administrator with the approval of the probate division of circuit court shall have the right and power to make the compromise or settlement and to convey to the levee or drainage district the easements or other instruments or agreements covering the flowage and storage rights upon, over, and across any lands embraced in the floodway, reservoir, emergency reservoir, spillway, or diversion. The easements, contracts, or agreements, when so executed, shall vest in the districts the right to use the land for the purposes mentioned and set forth in the easement or contract.
2. 1. If it becomes necessary for any levee or drainage district, or levee and drainage district, to institute condemnation proceedings under Acts 1905, No. 53, and § 14-120-217, to acquire flowage and storage rights and other rights of servitudes over, upon, and across any lands embraced in any floodway, reservoir, emergency reservoir, spillway, or diversion, then all suits shall be prosecuted in the name of the district. If the district so elects, all lands sought to be condemned for these purposes may be embraced and included in one (1) suit.
   2. All of the several and respective owners thereof, or other person, firm, or corporation having an interest therein, shall be made parties defendant. It shall not be necessary or required that the district institute independent and separate suits against the several and respective owners of the land and rights sought to be condemned for these purposes.

History. Acts 1939, No. 83, §§ 1, 2; A.S.A. 1947, §§ 35-1112, 35-1113.

Publisher's Notes. Acts 1905, No. 53, referred to in this section, may have been superseded by §§ 18-15-1001 — 18-15-1010.

Subchapter 11 — Irrigation Companies

Effective Dates. Acts 1909, No. 87, § 10: effective on passage.

18-15-1101. Private property generally.

1. All corporations organized in this state for the purpose of furnishing water to the public for irrigation of any lands or crops are authorized to exercise the right of eminent domain and to condemn, take, and use private property for the use of the corporations when necessary to carry out the purposes and objects of the corporations.
2. Whenever a corporation, in the construction of its canals, ditches, drains, conduits, aqueducts, dams, bulkheads, or water gates, or in laying pipes, shall deem it necessary or convenient to condemn, take, use, or occupy private property in the construction of its works or in making new lines of canals or other necessary works, the corporation may condemn, take, and use the private property, first making just compensation for the property, and proceeding as provided in this subchapter.

History. Acts 1909, No. 87, §§ 1, 2, p. 234; A.S.A. 1947, §§ 35-1201, 35-1202.

18-15-1102. Drawing or directing water from watercourse.

1. Whenever a corporation, in the construction of its system of canals, ditches, drains, conduits, aqueducts, or other means of conducting water, shall deem it necessary, it may, as provided in this subchapter, draw water from any river, lake, or creek by any means which the corporation may provide and, in general, do any act necessary or convenient in accomplishing the purpose contemplated by this subchapter.
2. Whenever a corporation shall propose to construct or extend its canals or works, or shall prepare to extend its system of canals or works, so as to connect with any river, lake, creek, or other watercourse, and to direct the water of the river, lake, creek, or other watercourse within or through its system of canals or works, it shall proceed as follows:
   1. 1. The corporation shall cause to be made a survey of the lines along which it proposes to construct its canals or other works and of all lands or other property to be affected by the canals or other works, or by flowage, drainage, or otherwise.
      2. For that purpose, the corporation by its officers or agents may enter upon any land for the purpose of making surveys and measurements or for obtaining any other necessary information relative to the construction or extension of the system of canals or other works, doing no unnecessary damage to the property; and
   2. After the survey is made and the lines located it shall cause to be made a map showing the location of the lines extension, or improvements, and the lands necessary to be taken for the construction, extension, or improvements, and all lands or other property to be affected by flowage, drainage, or otherwise. The map shall be verified under oath by the surveyor making it as being just and correct as he or she verily believes.

History. Acts 1909, No. 87, §§ 3, 4, p. 234; A.S.A. 1947, §§ 35-1203, 35-1204.

18-15-1103. Condemnation of property upon failure to obtain by consent, contract, or agreement.

In the event a corporation fails, upon application to individuals, corporations, or railroad companies to secure rights-of-way for the canals, drains, or other works by consent, contract, or agreement, then the corporation shall have the right to proceed to procure the condemnation of the property, lands, privileges, and easements in the manner prescribed by law for railroads, as provided by §§ 18-15-1201 — 18-15-1207.

History. Acts 1909, No. 87, § 5, p. 234; A.S.A. 1947, § 35-1205.

18-15-1104. Construction across or under railroad.

A corporation shall have the right to construct its canals, ditches, drains, conduits, aqueducts, or pipelines across or under any railroad in this state, provided that it does not interfere with the traffic or business of the railroad company or corporation or in any way lessen the safety of transportation over the railroad.

History. Acts 1909, No. 87, § 6, p. 234; A.S.A. 1947, § 35-1206.

18-15-1105. Right-of-way and construction in city and town.

1. The city council of any city of the first class or city of the second class and the town councils of any incorporated towns shall have power to grant an irrigation corporation the right-of-way through the streets of the city or town, with the right to construct any canal, ditch, drain, conduit, aqueduct, pipeline, dam, bulkhead, water gate, or any other necessary works or improvements in the city or town.
2. However, if any property is damaged thereby, the irrigation corporation shall be liable in damages to the owner of the property, and the damages shall be assessed in the manner provided by law for assessing damages for the appropriation of the right-of-way through lands by railroad companies.

History. Acts 1909, No. 87, § 7, p. 234; A.S.A. 1947, § 35-1207.

18-15-1106. Construction and repair of bridges across canals.

1. 1. Whenever any irrigation corporation in this state constructs its canals, ditches, conduits, aqueducts, pipeline, or any of its works across any public road or highway, or where any public road or highway crosses any irrigation canal or branches thereof, the irrigation corporation shall be required to build a good and sufficient bridge across the canal or branches thereof. The bridge shall be built under the direction of the county judge of the county in which the road crosses the canal or branch thereof.
   2. The irrigation corporation shall keep in good repair all approaches to the bridge so that the elevation or depression of the approaches shall be no greater than one perpendicular foot (1') for every five feet (5') of horizontal distance.
2. This subchapter shall not apply to the following counties: Ashley, Bradley, Benton, Boone, Carroll, Chicot, Clark, Clay, Columbia, Conway, Crawford, Crittenden, Cross, Dallas, Desha, Drew, Franklin, Garland, Greene, Hempstead, Hot Spring, Howard, Independence, Izard, Johnson, Lafayette, Logan, Lonoke, Madison, Marion, Miller, Mississippi, Monroe, Montgomery, Newton, Ouachita, Phillips, Pike, Polk, Pope, Pulaski, Saline, Scott, Searcy, Sebastian, Union, Van Buren, Washington, White, Woodruff, and Yell.

History. Acts 1909, No. 87, § 8, p. 234; 1953, No. 159, § 1; 1953, No. 407, § 1; A.S.A. 1947, § 35-1208.

18-15-1107. Supply of water to adjacent landowners.

1. Water shall be supplied to the owners of all lands adjacent to any canal constructed or operated by any such corporation, whenever practicable, upon equal terms and at uniform rates, which shall always be equitable and fair.
2. However, this subchapter shall not apply to Arkansas County, and Sections 20, 21, 25, 26, 27, 29, 32, 33, 34, 35, and 36, all in Township Two (2) South, Range Six (6) West, of the Fifth Principal Meridian in Prairie County, Arkansas.

History. Acts 1909, No. 87, § 9, p. 234; A.S.A. 1947, § 35-1209.

Subchapter 12 — Railroad, Telegraph, and Telephone Companies

Effective Dates. Acts 1873, No. 123, § 11: effective on passage.

Acts 1885, No. 107, § 14: effective on passage.

18-15-1201. Definition.

The words “right-of-way”, as used in this subchapter, shall mean all grounds necessary for side tracks, turnouts, depots, workshops, water stations, and other necessary buildings.

History. Acts 1873, No. 123, § 8, p. 290; C. & M. Dig., § 4003; Pope's Dig., § 5005; A.S.A. 1947, § 35-207.

18-15-1202. Petition for condemnation.

1. 1. Any railroad, telegraph, or telephone company, organized under the laws of this state, after having surveyed and located its lines of railroad, telegraph, or telephone, in all cases in which the companies fail to obtain the right-of-way over the property by agreement with the owner of the property through which the lines of railroad, telegraph, or telephone may be located, shall apply to the circuit court of the county in which the property is situated.
   2. Application shall be made by petition to have the damages for the right-of-way assessed, giving the owner of the property at least ten (10) days' notice in writing by certified mail, return receipt requested, of the time and place where the petition will be heard.
2. 1. In case the property sought to be condemned is owned by any individual or corporation and is located in more than one (1) county, the petition may be filed in any circuit court having jurisdiction in any county in which the whole or a part of the property may be located.
   2. Proceedings had in the circuit court will apply to all property designated in the petition.
3. However, if the owner of the property is a nonresident of the state, an infant, or person of unsound mind, notice shall be given as follows:
   1. 1. By publication in any newspaper in the county which is authorized by law to publish legal notices.
      2. The notice shall be published for the same length of time as may be required in other civil causes.
   2. If there is no such newspaper published in the county, then the publication shall be made in some newspaper designated by the circuit clerk, and one (1) written or printed notice thereof shall be posted on the door of the courthouse of the county; and
   3. In writing by certified mail, return receipt requested, to the address of the owners of the property as it appears on the records in the office of the county sheriff or county tax assessor for the mailing of statements of taxes as provided in § 26-35-705.
4. The petition shall, nearly as may be, describe the lands over which the road is located and for which damages are asked to be assessed, whether improved or unimproved, and be sworn to.

History. Acts 1873, No. 123, §§ 3, 5, p. 290; 1885, No. 107, § 13, p. 176; C. & M. Dig., §§ 3992-3994, 3996; Pope's Dig., §§ 4994-4996, 4998; A.S.A. 1947, §§ 35-201, 35-203; Acts 1999, No. 1236, § 2.

Amendments. The 1999 amendment added (c)(3); inserted “by certified mail return receipt requested” following “in writing” in (a)(2); added “as follows” at the end of the introductory language in (c); and made stylistic changes.

18-15-1203. Appointment of guardian ad litem.

In all cases of infants or persons with mental illness, when no legal representative or guardian appears in their behalf at the hearing, it shall be the duty of the court to appoint a guardian ad litem, who shall represent their interests for all purposes.

History. Acts 1873, No. 123, § 4, p. 290; C. & M. Dig., § 3995; Pope's Dig., § 4997; A.S.A. 1947, § 35-202.

18-15-1204. Assessment of damages by jury.

1. It shall be the duty of the court to impanel a jury of twelve (12) persons, as in other civil cases, to ascertain the amount of compensation which the company shall pay. The matter shall proceed and be determined as other civil causes.
2. The amount of damages to be paid the owner of the lands for the right-of-way for the use of the company shall be determined and assessed irrespective of any benefit the owner may receive from any improvement proposed by the company.

History. Acts 1873, No. 123, § 5, p. 290; C. & M. Dig., §§ 3997, 3998; Pope's Dig., §§ 4999, 5000; A.S.A. 1947, § 35-204.

18-15-1205. Payment or deposit of damages and costs.

1. In all cases in which damages for the right-of-way for the use of any railroad company have been assessed in the manner provided in this subchapter, it shall be the duty of the railroad company to deposit with the court or pay to the owners the amount so assessed and pay such costs as, in the discretion of the court, may be adjudged against it, within thirty (30) days after the assessment.
2. After payment, it shall be lawful for the railroad company to enter upon, use, and have the right-of-way over the lands forever.

History. Acts 1873, No. 123, § 6, p. 290; C. & M. Dig., § 3999; Pope's Dig., § 5001; A.S.A. 1947, § 35-205.

18-15-1206. Deposit upon controversy.

1. In cases in which the determination of questions in controversy in the proceedings is likely to retard the progress of work on or the business of the railroad company, the court, or judge in vacation, shall designate an amount of money to be deposited by the company, subject to the order of the court, for the purpose of making the compensation, when the amount thereof has been assessed and the judge shall designate the place of the deposit.
2. Whenever the deposit has been made, in compliance with the order of the court or judge, it shall be lawful for the company to enter upon the lands and proceed with the company's work through and over the lands in controversy prior to the assessment and payment of damages for the use and right.

History. Acts 1873, No. 123, § 7, p. 290; C. & M. Dig., §§ 4000, 4001; Pope's Dig., §§ 5002, 5003; A.S.A. 1947, § 35-206.

18-15-1207. Failure to pay or deposit.

In all cases in which the company shall not pay or deposit the amount of damages assessed within thirty (30) days after the assessment the company shall forfeit all rights in the premises.

History. Acts 1873, No. 123, § 7, p. 290; C. & M. Dig., § 4002; Pope's Dig., §§ 5004; A.S.A. 1947, § 35-206.

Subchapter 13 — Mineral Oil, Petroleum, Natural Gas, and Lumber Companies

Effective Dates. Acts 1905, No. 228, § 5: effective on passage.

Acts 1925, No. 103, § 3: approved Feb. 24, 1925. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this act shall be in full force from and after its passage.”

18-15-1301. Pipelines and logging and tram roads.

1. Any corporation organized by virtue of the laws of this state for the purpose of developing and producing mineral oil, petroleum, or natural gas in this state, and marketing it, or transporting or conveying it by means of pipes from the point of production to any other point, either to refine or to market the oil or to conduct the gas to any point to be used for heat or lights and any corporation organized under the laws of this state for the purpose of manufacturing lumber, and which may find it necessary or expedient to lay out and build a logging railroad or tram road at least five (5) miles in length in order to reach its timber may:
   1. Construct, operate, and maintain a line of pipe for that purpose along and under the public highways and streets of cities and towns with the consent of the authorities thereof; and
   2. Construct logging roads or tramways over and across the lands of any individual or corporation, or across and under the waters and over any lands of the state and on the lands of individuals, and along, under, or parallel with the rights-of-way of railroads and the turnpikes of this state.
2. The ordinary use of the highways, turnpikes, and railroad rights-of-way shall not be obstructed thereby, nor the navigation of any waters impeded. Just compensation shall be paid to the owners of the land, railroad rights-of-way, or turnpikes, by reason of the occupation of the lands, railroads rights-of-ways, or turnpikes by the pipeline or by the log roads.
3. The right-of-way for any logging railroad or tram road shall not exceed in width fifty feet (50').

History. Acts 1905, No. 228, §§ 1, 3, p. 577; C. & M. Dig., §§ 3969, 3971; Acts 1925, No. 103, §§ 1, 2; Pope's Dig., §§ 4971, 4973; A.S.A. 1947, §§ 35-601, 35-603.

18-15-1302. Right to enter, survey, etc. — Plat or map.

1. 1. Whenever a corporation desires to construct a pipeline or build a logging railway upon or under the lands of individuals, or right-of-way of any railroad, or any turnpike, the corporation, by its agents, shall have the right to enter peacefully upon the lands or rights-of-way and survey, locate, and lay out its pipeline, thereon, or tram road or logging road.
   2. However, the corporation shall be liable for any damages that may result by reason of such acts.
2. The corporation shall designate on a plat or map to be made and filed with the county clerk of the county the width of the strip of land needed to be condemned for its purposes, the land's location, and the depth to which the pipes are to be laid.

History. Acts 1905, No. 228, § 3, p. 577; C. & M. Dig., § 3971; Acts 1925, No. 103, § 2; Pope's Dig., § 4973; A.S.A. 1947, § 35-603.

18-15-1303. Procedure for condemnation.

In the event any company fails, upon application to individuals, railroads, or turnpike companies, to secure the right-of-way by consent, contract, or agreement, then the corporation shall have the right to proceed to procure the condemnation of the property, lands, rights, privileges, and easements in the manner provided by law for taking private property for right-of-way for railroads as provided by §§ 18-15-1201 — 18-15-1207, including the procedure for providing notice by publication and by certified mail in § 18-15-1202.

History. Acts 1905, No. 228, § 2, p. 577; C. & M. Dig., § 3970; Pope's Dig., § 4972; A.S.A. 1947, § 35-602; Acts 1999, No. 1236, § 3.

Amendments. The 1999 amendment added “including the procedure for providing notice by publication and by certified mail in § 18-15-1202” at the end.

18-15-1304. Abandonment of logging railroad or tram road.

When a logging railroad or tram road is abandoned, the right-of-way shall revert to the owners of the lands over which it crosses.

History. Acts 1905, No. 228, § 3, p. 577; C. & M. Dig., § 3971; Acts 1925, No. 103, § 2; Pope's Dig., § 4973; A.S.A. 1947, § 35-603.

Subchapter 14 — Cemeteries

A.C.R.C. Notes. References to “this subchapter” in §§ 18-15-1401 — 18-15-1407 may not apply to § 18-15-1408 which was enacted subsequently.

Effective Dates. Acts 1935, No. 163, § 8: approved Mar. 21, 1935. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in force from and after its passage.”

18-15-1401. Right of eminent domain to take land for burial purposes.

1. All cities of the first class and cities of the second class and incorporated towns, cemetery or burial associations, and persons owning land used for public burial purposes in the State of Arkansas are given and granted the right of eminent domain to condemn, take, and use land for public burial purposes.
2. Power of eminent domain granted by this section may also be used to acquire land for the burial of veterans of the United States Armed Forces and their dependents, and the land may be transferred to the United States Department of Veterans Affairs, any other agency of the federal government, or to any other entity for use as a cemetery for veterans of the United States Armed Forces and their dependents.
3. All entities granted the power of eminent domain under this section may accept donations from individuals or other legal entities for the purpose of compensating landowners for property acquired by eminent domain.
4. The right of eminent domain granted by this section shall be exercised as provided in this subchapter.

History. Acts 1935, No. 163, § 1; Pope's Dig., § 9965; A.S.A. 1947, § 35-801; Acts 1989, No. 542, § 1.

18-15-1402. Consent of two-thirds of members or owners required.

No property shall be condemned and taken for public burial purposes by any city of the first class or city of the second class or incorporated town, cemetery or burial association, or persons owning land used for public burial purposes without the concurrence in the bylaws, resolutions, or ordinances directing the same of two-thirds (2/3) of the whole number of members elected to the council of the city or town, or without the consent of two-thirds (2/3) of the members of the cemetery or burial association, and persons owning land used for public burial purposes.

History. Acts 1935, No. 163, § 2; Pope's Dig., § 9966; A.S.A. 1947, § 35-802.

18-15-1403. Application.

1. When it shall be deemed necessary by the city or town, cemetery or burial association, or persons owning land used for public burial purposes to take private property for burial purposes, an application in writing shall be made to the circuit court of the proper county or the judge thereof in vacation, describing as correctly as may be, the property to be taken and the name of the owner of the land proposed to be condemned and taken.
2. 1. Notice of the time and place of the application shall be given, either personally in the ordinary manner of serving process on the owner of the property or by publishing a copy of the application with a statement of the time and place at which it is to be made for three (3) weeks next preceding the time of application in some newspaper of general circulation in the county.
   2. The personal service as provided for in this section shall be made at least ten (10) days before the time of application when the owner is a resident of the county where the property is situated.
   3. The publishing of the notice of application in some newspaper of general circulation in the county where the property is situated shall be legal notice to the owner of the property when the owner is not a resident of the county where the property is situated.

History. Acts 1935, No. 163, § 3; Pope's Dig., § 9967; A.S.A. 1947, § 35-803.

Cross References. Application to Department of Health necessary, § 20-17-901 et seq.

18-15-1404. Setting of time for inquiry.

If it shall appear to the court or judge that notice has been served ten (10) days before the time of application, or has been published, and that the notice is reasonably specific and certain, then the court or judge shall set a time for the inquiry into the assessment of compensation by a jury before the court or judge.

History. Acts 1935, No. 163, § 4; Pope's Dig., § 9968; A.S.A. 1947, § 35-804.

18-15-1405. Summoning of jury for inquiry.

1. A jury shall be summoned for the purpose of making the inquiry in the same manner that petit jurors are summoned in the circuit court for other purposes when the circuit court is regularly in session. If the hearing is before the judge out of term time, then the jury shall be summoned on order of the judge by the sheriff of the county.
2. The inquiry and assessment shall be made at the time appointed unless for good cause it is continued to another day to be specified.

History. Acts 1935, No. 163, § 5; Pope's Dig., § 9969; A.S.A. 1947, § 35-805.

18-15-1406. Determination of compensation — Dispute.

1. The jury shall hear the evidence and determine the amount of compensation to be paid to the owners of the property so condemned.
2. 1. In case of dispute as to the ownership, title, or interest of the property condemned, the amount of compensation determined by the jury may be paid into the court by the city or town, cemetery or burial association, or persons owning land used for public burial purposes.
   2. The right to the funds so paid in may be determined between the parties making claim thereto and the city or town, cemetery or burial association, or persons owning land used for public burial purposes may proceed to actually take the property after the payment into court as provided in this section.

History. Acts 1935, No. 163, § 6; Pope's Dig., § 9970; A.S.A. 1947, § 35-806.

18-15-1407. Costs.

The cost of the condemnation proceedings provided for in this subchapter shall be paid by the city or town, cemetery or burial association, or persons owning land used for public burial purposes instituting the condemnation proceeding, except costs of review or appeal or any other proceeding taken by the owner of the property after the assessment of compensation is made by the jury as provided for in this subchapter.

History. Acts 1935, No. 163, § 7; Pope's Dig., § 9971; A.S.A. 1947, § 35-807.

18-15-1408. Public property.

1. If a cemetery located on land of a private landowner has been open to public use for a period of at least fifty (50) years, then the cemetery shall be deemed to be public property unless:
   1. The property has been enclosed by the landowner for at least one (1) year prior to an order of the quorum court providing for the care and management of the cemetery as provided for under subsection (b) of this section; or
   2. The cemetery has been operated by the landowner for at least one (1) year prior to an order of the quorum court providing for the care and management of the cemetery as provided for under subsection (b) of this section.
2. 1. If, upon the petition of any person, the quorum court determines that a cemetery is public property under this section, the quorum court may issue an order providing for the management and care of the cemetery. The county may manage and care for the cemetery or may enter into an agreement allowing a nonprofit association or corporation to provide for the management and care of the cemetery.
   2. Upon issuing an order for the management and care of the public property, the quorum court shall notify the landowner of its order, based on the quorum court's finding that the property has become public property, and shall include a copy of the provisions of this section. The notice shall be by certified mail.
   3. No person or his or her heirs shall have, sue, or maintain any action or suit, either in law or equity, for any cemetery lands more than six (6) months after the person receives the notice required under this section.
3. The rights of the public to cemetery property under this section shall be in the nature of an adverse possession. No additional conditions for adverse possession shall be imposed in addition to those provided by this section.

History. Acts 1995, No. 716, § 1.

A.C.R.C. Notes. References to “this subchapter” in §§ 18-15-1401 — 18-15-1407 may not apply to this section which was enacted subsequently.

Subchapter 15 — Housing and Urban Renewal

Cross References. Participation in federal programs, § 14-169-901 et seq.

Effective Dates. Acts 1935, No. 177, § 5: approved Mar. 21, 1935. Emergency clause provided: “It is determined and declared that the existence of unsanitary and unsafe dwelling accommodations in the State cause an increase in and spread of disease and crime and that it is necessary for the preservation of the public peace, health and safety that this act become effective without delay. This act, therefore, will take effect and be in full force from and after its passage.”

Acts 1937, No. 298, § 31: approved Mar. 23, 1937. Emergency clause provided: “It is determined and declared that unemployment and the existence of unsafe, insanitary and congested dwelling accommodations have produced an alarming economic condition in the State and constitute an emergency and that it is necessary for the preservation of the public peace, health and safety that this act become effective without delay. This act, therefore, shall take effect and be in full force from and after its passage.”

Acts 1971, No. 542, § 3: Apr. 6, 1971. Emergency clause provided: “Whereas, urban renewal agencies in order to receive federal assistance must be able to acquire real property to carry out plan objectives and, whereas, the power of eminent domain of urban renewal agencies needs to be clarified and affirmed in order that urban renewal plan objectives not be jeopardized, an emergency is hereby declared to exist and this Act being necessary for the immediate protection of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

18-15-1501. Federal housing projects — Legislative declarations.

1. It is declared that:
   1. Unsanitary and unsafe dwelling accommodations exist in various areas of the state and that consequently many persons of low income are forced to reside in such dwelling accommodations;
   2. These conditions cause an increase in, and spread of, disease and crime and constitute a menace to the health, safety, morals, and welfare of the citizens of the state and impair economic values;
   3. The clearance, replanning, and reconstruction of the areas in which unsanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which private property may be acquired; and
   4. It is in the public interest that work on the projects be instituted as soon as possible in order to relieve unemployment which now constitutes an emergency.
2. The necessity in the public interest for the provisions of this subchapter is declared as a matter of legislative determination.

History. Acts 1935, No. 177, § 1; Pope's Dig., § 5083; A.S.A. 1947, § 35-1301.

18-15-1502. Federal housing projects — Definition.

1. The term “housing project” whenever used in this section, § 18-15-1501, and § 18-15-1503 shall mean any undertaking:
   1. To demolish, clear, remove, alter, or repair unsafe or unsanitary housing; or
   2. To provide dwelling accommodations for persons of low income.
2. The term may also include such buildings and equipment for recreational or social assemblies for educational, health, or welfare purposes and such necessary utilities as are designed primarily for the benefit and use of the occupants of the dwelling accommodations.

History. Acts 1935, No. 177, § 2; Pope's Dig., § 5084; A.S.A. 1947, § 35-1302.

18-15-1503. Federal housing projects — Right of eminent domain.

1. 1. Any corporation which is an agency of the United States of America shall have the right to acquire by eminent domain any real property, including improvements and fixtures thereon, which it may deem necessary for a housing project being constructed, operated, or aided by it or the United States of America.
   2. Any corporation borrowing money or receiving other financial assistance from the United States of America, or any agency thereof, for the purpose of financing the construction or operation of any housing project, the operation of which will be subject to public supervision or regulation, shall have the right to acquire by eminent domain any real property, including fixtures and improvements thereon, which it may deem necessary for the project.
   3. A housing project shall be deemed to be subject to public supervision or regulation within the meaning of this section, § 18-15-1501, and § 18-15-1502 if the rents to be charged are in any way subject to the supervision, regulation, or approval of the United States of America, the state or any of their subdivisions or agencies, or by a housing authority, city, municipality, or county, whether the right to supervise, regulate, or approve is by virtue of any law, statute, contract, or otherwise.
2. Any corporate agency of the United States of America or any such corporation, upon the adoption of a resolution declaring that the acquisition of the property described therein is in the public interest and necessary for public use, may exercise the power of eminent domain:
   1. In the manner now provided for taking private property for rights-of-way for railroads as provided by §§ 18-15-1202 — 18-15-1207;
   2. In the manner provided for condemnation by municipal corporations and counties as provided by §§ 18-15-301 — 18-15-307; or
   3. Pursuant to any other applicable statutory provision enacted for the exercise of the power of eminent domain.

History. Acts 1935, No. 177, § 3; Pope's Dig., § 5085; A.S.A. 1947, § 35-1303.

18-15-1504. Housing authorities — Power of eminent domain.

1. A housing authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it may deem necessary for its purposes under this subchapter after the adoption by it of a resolution declaring that the acquisition of the real property described in it is necessary for those purposes.
2. An authority may exercise the power of eminent domain in the manner prescribed in §§ 18-15-1202 — 18-15-1207 for condemnation by railroad corporations in this state, or it may exercise the power of eminent domain in the manner provided by any other applicable statutory provisions for the exercise of the power of eminent domain.
3. 1. Property already devoted to a public use may be acquired in like manner.
   2. However, no real property belonging to the city, the county, the state, or any political subdivision thereof may be acquired without its consent.

History. Acts 1937, No. 298, § 12; Pope's Dig., § 10070; A.S.A. 1947, § 19-3015.

Publisher's Notes. Acts 1937, No. 298, § 12, is also codified as § 14-169-219.

18-15-1505. Urban renewal agencies.

1. 1. 1. From and after the passage of this act, any urban renewal agency in this state created pursuant to the provisions of §§ 14-169-601 — 14-169-609, 14-169-701 — 14-169-713, and 14-169-801 shall have the power of eminent domain to carry out urban renewal plan objectives.
      2. The procedure to be followed by the urban renewal agency to acquire property by eminent domain shall be that the board of commissioners shall, by resolution, declare that:
         1. The acquisition of certain real property is necessary for urban renewal plan objectives which have been approved by the governing body of the municipal government after a public hearing;
         2. Negotiations for acquisition have been unsuccessful; and
         3. Suit is authorized to condemn the property.
   2. 1. An urban renewal agency may exercise the power of eminent domain in the manner prescribed by law for condemnation by railroad corporations in this state as prescribed by §§ 18-15-1202 — 18-15-1207 and acts amendatory thereof or supplementary thereto.
      2. The urban renewal agency may exercise the power of eminent domain in the manner provided by any other applicable statutory provisions for the exercise of the power of eminent domain.
2. It is the intent of this section to affirm the power of urban renewal agencies to exercise the power of eminent domain to acquire real property to carry out urban renewal plan objectives.

History. Acts 1971, No. 542, §§ 1, 2; A.S.A. 1947, §§ 19-3075, 19-3076.

Publisher's Notes. Acts 1971, No. 542, §§ 1 and 2, are also codified as § 14-169-802.

In reference to the term “passage of this act,” Acts 1971, No. 542, was signed by the Governor and became effective on April 6, 1971.

Subchapter 16 — Traction Companies

Effective Dates. Acts 1901, No. 90, § 6: effective on passage.

18-15-1601. Authority to condemn.

1. 1. Every traction company shall have the right to survey its lines, lay out its road, acquire its right-of-way not exceeding two hundred feet (200') in width, and, where necessary to acquire the right-of-way, shall have the power to enter upon, condemn, and appropriate the lands, rights-of-way, easements, and property of persons, firms, or corporations.
   2. The method and manner of making the traction company's surveys, laying out its railways, or acquiring its right-of-way, either by contract or condemnation, shall be the same as provided by law in case of the exercise of the right of eminent domain by telegraph, telephone, and railroad companies, under §§ 18-15-1201 — 18-15-1207, and it shall be subject to the same duties and liabilities and have the same rights as prescribed in those sections with reference to railroads.
2. However, this section shall not be construed so as to authorize the condemnation of public streets or highways.

History. Acts 1901, No. 90, § 3, p. 155; C. & M. Dig., §§ 1759, 4042; Pope's Dig., § 5044; A.S.A. 1947, § 35-208.

Publisher's Notes. Pursuant to the remainder of Acts 1901, No. 90, which was superseded by § 4-26-101 et seq., “traction companies” were corporations formed for the purpose of operating interurban electric roads and furnishing light and power to consumers.

Subchapter 17 — Private Property Protection Act

A.C.R.C. Notes. Acts 2015, No. 1002, § 1, provided: “Legislative findings.

The General Assembly finds that:

“(1) From time to time, state and local regulatory programs have the effect of reducing the market value of private property;

“(2) When state and local regulatory programs reduce the market value of private property and do not abate through their implementation a public nuisance affecting the public health, safety, morals, or general welfare, it is fair and appropriate that the state or the locality compensate the property owner for the loss in market value of the property caused by the implementation of the regulatory program;

“(3) Compensation to the property owner is also fair and appropriate in cases involving regulatory programs that abate a public nuisance when the property owner did not contribute to the public nuisance, did not acquire the property knowing of the public nuisance, or did not acquire the property under circumstances in which the property owner should have known about the public nuisance based upon prevailing community standards; and

“(4) In order to establish a fair and equitable compensation system to address these stated public policy concerns and findings, the General Assembly should establish a compensation system.”

Effective Dates. Acts 2015, No. 1002, § 4: Apr. 2, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that some actions by a governmental unit reduce the value of real property; that the property owners now are not being compensated for that reduction in value; and that this act is immediately necessary because the inequity needs to be eliminated as soon as possible. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

18-15-1701. Title.

This subchapter shall be known and may be cited as the “Private Property Protection Act”.

History. Acts 2015, No. 1002, § 2.

18-15-1702. Definitions.

As used in this subchapter:

1. “Fair market value” means the price a willing buyer would pay a willing seller after considering all factors in the marketplace that influence the price of private real property;
2. “Governmental unit” means the state and any of its agencies or political subdivisions;
3. “Owner” means a person with legal or equitable title to affected private real property at the time a taking occurs;
4. “Real property” means real property, the use of which is directly controlled or regulated by a regulatory program;
5. 1. “Regulatory program” means a rule, regulation, law, or ordinance that affects the fair market value of real property.
   2. “Regulatory program” includes without limitation moratoriums on growth, aesthetic or scenic districts, environmental districts, overlay districts, green space ordinances, landscape ordinances, tree ordinances, land use planning programs, and zoning programs by a governmental unit when the regulatory program is not designed to carry out or protect the adopted plans of a governmental unit that are designed to protect the health, safety, or welfare of the citizens.
   3. “Regulatory program” does not include a moratorium enacted to give a municipality time to adopt or amend plans and ordinances; and
6. “Territorial jurisdiction” means the territorial jurisdiction of a municipality as described in § 14-56-413.

History. Acts 2015, No. 1002, § 2.

18-15-1703. Taking — Application.

1. 1. An owner of real property asserting a taking under this subchapter shall bring a cause of action in circuit court claiming that the implementation of a regulatory program by a governmental unit has permanently reduced by at least twenty percent (20%) the fair market value of the real property.
   2. The reduction in the fair market value of the real property shall be determined by comparing the fair market value of the real property as if the regulatory program is not in effect and the fair market value of the real property determined as if the regulatory program is in effect.
   3. To assert that a taking has occurred, the regulatory program must have been implemented at the time the owner acquired title or after April 2, 2015, whichever is later.
   4. Upon a preponderance of the evidence, the real property shall be deemed to have been taken for the use of the public.
2. A jury shall determine the amount of the difference in fair market value.
3. 1. Upon a finding that real property has been taken for the use of the public, the governmental unit may either:
      1. Pay compensation for the reduction in fair market value caused by the regulatory program; or
      2. Invalidate all or part of the regulatory program.
   2. Compensation is required under this section only when the fair market value of the real property is reduced by at least twenty percent (20%).
   3. If a governmental unit elects to pay compensation to the private real property owner under subdivision (c)(1)(A) of this section:
      1. The court that rendered the judgment in the lawsuit or the state agency that issued the final order or decision in the case shall withdraw the part of the judgment or final decision or order rescinding the regulatory program;
      2. The governmental unit shall pay to the owner the damages determined in the judgment or final order by the thirtieth day after the date the judgment is rendered or the final decision or order is issued; and
      3. When more than one (1) governmental unit is involved, the court shall determine the proportion each governmental unit shall be required to contribute to the compensation.
4. When a regulatory program resulting from a zoning ordinance operates to change a permitted use and the fair market value of the affected real property is the same or greater than the fair market value was before the effective date of the implementation of the regulatory program, compensation shall not be paid under this subchapter.
5. This subchapter does not apply to:
   1. An owner of real property if the real property is not the direct subject of the regulatory program;
   2. Laws or rules within the jurisdiction of the State Health Officer or regulatory activities of the Arkansas Pollution Control and Ecology Commission, the Division of Environmental Quality, the Arkansas Livestock and Poultry Commission, the Arkansas Public Service Commission, or the State Plant Board under delegated or authorized programs or approved plans under federal law;
   3. An eminent domain proceeding to which the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq., as in effect on January 1, 2015, applies;
   4. An eminent domain proceeding undertaken by a governmental unit under applicable law;
   5. A lawful forfeiture or seizure of contraband under Arkansas Code, Title 5;
   6. A lawful seizure of property as evidence of a crime or violation of law;
   7. An action, including an action of a governmental unit, that is reasonably taken to fulfill an obligation mandated by federal law or an action of a governmental unit that is reasonably taken to fulfill an obligation mandated by state law;
   8. The discontinuance or modification of a program, rule, or regulation that provides a unilateral expectation that does not rise to the level of a recognized interest in private real property;
   9. An action taken to prohibit or restrict a condition or use of private real property if the governmental entity reasonably determines that the condition or use constitutes a public or private nuisance as determined by background principles of nuisance and property law of this state;
   10. An action taken out of a reasonable good faith belief that the action is necessary to prevent an immediate threat to life or property;
   11. A rule, regulation, or proclamation adopted for the purpose of regulating water safety, hunting, fishing, or control of nonindigenous or exotic aquatic resources;
   12. An action taken by a governmental unit:
       1. To regulate construction in an area designated under law as a floodplain;
       2. To regulate on-site sewage facilities;
       3. To prevent waste of or protect rights of owners of interest in groundwater;
       4. To prevent subsidence; or
       5. Under its police power to make laws, rules, and regulations for the benefit of its communities;
   13. The appraisal of property for purposes of ad valorem taxation;
   14. An action that is taken in response to a threat to public health and safety that is designed to advance the health and safety purpose; or
   15. An action by a municipality unless the regulatory program has effect in the territorial jurisdiction of the municipality, excluding annexation, and that enacts or enforces a regulatory program that does not impose identical requirements or restrictions in the entire territorial jurisdiction of the municipality.

History. Acts 2015, No. 1002, § 2; 2019, No. 315, §§ 1686, 1687; 2019, No. 910, § 3186.

Amendments. The 2019 amendment by No. 315 inserted “rule” in (e)(8) and “rules” in (e)(12)(E).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (e)(2).

18-15-1704. Statute of limitations.

1. 1. A lawsuit under this subchapter shall be filed by the one-hundred-eightieth day after the date the private real property owner knew or should have known that the regulatory program restricted or limited the owner's right in the private real property.
   2. The statute of limitations begins upon the final administrative decision implementing the regulatory program affecting the owner's or user's property.
2. A program is implemented with respect to an owner's or user's property when actually applied to that property.

History. Acts 2015, No. 1002, § 2.

18-15-1705. Cumulative remedies.

1. The remedies provided under this subchapter are not exclusive and are in addition to other procedures or remedies provided by law.
2. A person shall not recover under this subchapter and also recover under another law or in an action at common law for the same economic loss.

History. Acts 2015, No. 1002, § 2.

18-15-1706. Appeals.

An appeal from the final judgment of the cause of action in § 18-15-1703 may be taken according to law.

History. Acts 2015, No. 1002, § 2.

Subchapter 1 — General Provisions

Cross References. Contracts for lease of lands or tenements for more than one year must be written, § 4-59-101.

Effective Dates. Acts 1901, No. 122, § 2: effective on passage.

Acts 2009, No. 815, § 3: Apr. 3, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the traditional deadline for notice of the termination of a lease for the next crop year is June 30; that farmers operating under an oral lease are currently vulnerable to a demand for the surrender of their land; that the certainty of a farm lease of lands is necessary before the purchase of seed, fertilizer, equipment replacement, determination of the amount of a production loan, and advanced planning required for farming operations; and that this act will provide the necessary certainty to permit efficient farming operations. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

18-16-101. Failure to pay rent — Refusal to vacate upon notice — Penalty.

1. 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.
2. 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. 1. 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 in any sum not less than one dollar ($1.00) nor more than twenty-five dollars ($25.00) for each offense.
      2. Each day the tenant shall willfully and unnecessarily hold the dwelling house or other building or land after the expiration of notice to vacate shall constitute a separate offense.

History. Acts 1901, No. 122, § 1, p. 193; C. & M. Dig., § 6569; Acts 1937, No. 129, § 1; Pope's Dig., § 8599; A.S.A. 1947, § 50-523; Acts 2001, No. 1733, § 1; 2017, No. 159, § 2.

A.C.R.C. Notes. Acts 2017, No. 159, § 1, provided: “Findings and legislative intent.

“(a) The General Assembly finds that:

“(1) The decision of the United States Court of Appeals, Eighth Circuit, in Munson v. Gilliam, 543 F.2d 48 (8th Cir. 1976), and the decision of the Arkansas Supreme Court in Duhon v. State, 299 Ark. 503, 774 S.W.2d 830 (Ark. 1989), upheld the constitutionality of Ark Code § 18-16-101;

“(2) The General Assembly amended Ark. Code § 18-16-101 in 2001;

“(3) In January 2015, the Circuit Court of Pulaski County, in State of Arkansas v. Artoria Smith, Case No. CR 2014-2707, ruled that Ark. Code § 18-16-101, as amended, is unconstitutional; and

“(4) It is in the best interests of the people of the State of Arkansas for property owners to continue to have remedies against tenants who fail to pay rent for a dwelling house or other building but refuse to surrender possession of the dwelling house or other building.

“(b) It is the intent of the General Assembly by this act to amend Ark. Code § 18-16-101 so that the language of Ark. Code § 18-16-101 is exactly as was previously in effect when Ark. Code § 18-16-101 was upheld as constitutional in the Munson and Duhon decisions, and to eliminate the amendments to Ark. Code Ann. § 18-16-101 that were found to be unconstitutional in the Smith decision.”

Amendments. The 2001 amendment, in (b), deleted “in any sum not less than one dollar ($1.00) nor more than” preceding “twenty-five dollars ($25.00),” and substituted “per day for … the premises” for “for each offense. Each day the tenant shall willfully and unnecessarily hold the dwelling house or other building or land after the expiration of notice to vacate shall constitute a separate offense”; added (c); and made gender neutral and grammatical changes throughout.

The 2017 amendment redesignated (b)(2) as (b)(2)(A); substituted “in any sum not less than one dollar ($1.00) nor more than twenty-five dollars ($25.00) for each offense” for “twenty-five dollars ($25.00) per day for each day that the tenant fails to vacate the premises for each offense”; added (b)(2)(B); and deleted (c).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

18-16-102, 18-16-103. [Repealed.]

Publisher's Notes. These sections, concerning lessee unlawfully collecting from subtenant, penalty and rent collection by personal representative of life tenant, were repealed by Acts 2007, No. 1004, §§ 2, 3. The sections were derived from the following sources:

18-16-102. Acts 1883, No. 21, § 1, p. 32; 1893, No. 131, § 1, p. 228; C. & M. Dig., §§ 6894-6896; Pope's Dig., §§ 8850-8852; A.S.A. 1947, §§ 50-521, 50-522.

18-16-103. Rev. Stat., ch. 88, § 1; C. & M. Dig., § 6549; Pope's Dig., § 8579; A.S.A. 1947, § 50-501.

18-16-104. [Repealed.]

Publisher's Notes. This section, concerning the penalty for enticing a renter away, was repealed by Acts 2005, No. 1994, § 560. The section was derived from Acts 1883, No. 96, § 8, p. 176; 1905, No. 298, § 1, p. 726; C. & M. Dig., § 6570; Acts 1923 (1st. Ex. Sess.), No. 34, § 1; Pope's Dig., § 8600; A.S.A. 1947, § 50-524.

18-16-105. Termination of oral lease of farmlands.

The owner of farmlands that are rented or leased under an oral rental or lease agreement may elect not to renew the oral rental or lease agreement for the following calendar year by giving written notice by certified mail to the renter or lessee on or before June 30 that the oral rental or lease agreement will not be renewed for the following calendar year.

History. Acts 2009, No. 190, § 1; 2009, No. 815, §§ 1, 2.

Publisher's Notes. Former § 18-16-105, concerning termination of oral lease of farmlands, was repealed by Acts 2007, No. 1004, § 4. The section was derived from the following sources: Acts 1981, No. 866, § 1; A.S.A. 1947, § 50-531.

18-16-106, 18-16-107. [Repealed.]

Publisher's Notes. These sections, concerning holding over after termination of term, and failure to quit after notice of intention, were repealed by Acts 2007, No. 1004, §§ 5-6. The sections were derived from the following sources:

18-16-106. Rev. Stat., ch. 88, §§ 9, 10; C. & M. Dig., §§ 6557, 6558; Pope's Dig., §§ 8587, 8588; A.S.A. 1947, §§ 50-509, 50-510.

18-16-107. Rev. Stat., ch. 88, §§ 7, 8; C. & M. Dig., §§ 6555, 6556; Pope's Dig., §§ 8585, 8586; A.S.A. 1947, §§ 50-507, 50-508.

18-16-108. Property left on premises after termination of lease.

1. Upon the voluntary or involuntary termination of any lease agreement, all property left in and about the premises by the lessee shall be considered abandoned and may be disposed of by the lessor as the lessor shall see fit without recourse by the lessee.
2. All property placed on the premises by the tenant or lessee is subject to a lien in favor of the lessor for the payment of all sums agreed to be paid by the lessee.

History. Acts 1987, No. 577, § 2.

Cross References. Landlord's liens, § 18-41-101 et seq.

18-16-109. [Transferred.]

A.C.R.C. Notes. This section has been renumbered as § 18-28-101.

18-16-110. Landlord's liability arising from alleged defects or disrepair of premises.

No landlord or agent or employee of a landlord shall be liable to a tenant or a tenant's licensee or invitee for death, personal injury, or property damage proximately caused by any defect or disrepair on the premises absent the landlord's:

1. Agreement supported by consideration or assumption by conduct of a duty to undertake an obligation to maintain or repair the leased premises; and
2. Failure to perform the agreement or assumed duty in a reasonable manner.

History. Acts 2005, No. 928, § 2.

A.C.R.C. Notes. Acts 2005, No. 928, § 1 provided:

“(a) The General Assembly finds that the Arkansas Supreme Court has requested its guidance regarding the law pertaining to a landlord's liability to tenants and tenants' licensees and invitees for death, injuries, or property damage suffered on the leased premises that are proximately caused by defects or disrepair on the premises.

“(b) As the Supreme Court recognized in Thomas v. Stewart, 347 Ark. 33, 60 S.W.3d 415 (2001) and Probst v. McNeill, 326 Ark. 623, 932 S.W.2d 766 (1996), for more than a century, Arkansas law has adhered to the common law principle under which a landlord has no liability to a tenant or tenant's guests absent the landlord's:

“(1) Agreement supported by consideration or assumption by conduct of a duty to undertake repair and maintenance; and

“(2) Failure to perform the agreement or assumed duty in a reasonable manner.

“(c)(1) The General Assembly further finds that the Supreme Court has properly and correctly interpreted and applied the law and that existing law should not be altered or extended.

“(2) The purpose and intent of Section 2 of this act is to codify this rule of law as it exists under Arkansas common law.”

18-16-111. Manufactured homes and mobile homes on leased land — Definitions.

1. As used in this section:
   1. “Lessee” means the person or persons leasing the property, site, or lot where a manufactured home or mobile home is located;
   2. “Lessor” means the owner or manager of the property, site, or lot where a manufactured home or mobile home is located; and
   3. “Unoccupied” means that a manufactured home or mobile home has ceased to be a customary place of habitation or abode and no person is living or residing in it.
2. 1. When a manufactured home or mobile home on a leased site is unoccupied and the lease or rental payment for the leased site where the mobile home or manufactured home is located is sixty (60) days or more past due, the lessor shall notify the lessee and the lienholder, if the lienholder is not the lessee or occupant of the manufactured home or mobile home, that the manufactured home or mobile home is unoccupied and that the lease or rental payment is past due.
   2. The notice shall be in writing and delivered by certified mail and shall include the following information if known or readily available to the lessor:
      1. The lessor's name and mailing address;
      2. The lessee's name and last known mailing address;
      3. The lienholder's name and mailing address;
      4. The street address or physical location of the manufactured home or mobile home;
      5. The monthly lease payment amount;
      6. The serial number of the manufactured home or mobile home; and
      7. A description of the manufactured home or mobile home, including the make, model, year, dimensions, and any identification numbers or marks.
   3. In the notice required in subdivision (b)(1) of this section, the lessor shall notify the lienholder that unless the manufactured home or mobile home is removed from the leased site within thirty (30) days from the date the lienholder receives the notice, the manufactured home or mobile home shall be subject to a lien in favor of the lessor for the payment of all lease or rental payments accruing from the date the lienholder received the notice.
3. 1. Unless the lienholder is prevented by law from removing the manufactured home or mobile home, the lienholder has thirty (30) days to remove the manufactured home or mobile home before the lienholder shall be held responsible for lease or rental payments accruing from the date the lienholder received the notice.
   2. If the lienholder fails to remove the manufactured home or mobile home within thirty (30) days, the manufactured home or mobile home shall be subject to a lien in favor of the lessor for the payment of all lease or rental payments beginning on the date that the notice is received by the lienholder in an amount equal to the monthly lease or rental payments contained in the notice.
4. Nothing in this section shall obligate the lienholder for any lease or rental payments owed while the lessee occupied the manufactured home or mobile home or any other lease or rental payments due prior to the notification of the lienholder, as required by subsection (b) of this section.
5. Nothing in this section shall prevent the lessor from holding the lessee responsible for any unpaid lease or rental payments.

History. Acts 2005, No. 2228, § 1.

18-16-112. Protection for victims of domestic abuse — Definitions.

1. As used in this section:
   1. “Documented incident of domestic abuse” means evidence of domestic abuse contained in an order of a court of competent jurisdiction;
   2. “Domestic abuse” means:
      1. The infliction of physical injury or the creation of a reasonable fear that physical injury or harm will be inflicted upon a member of a household by a member or former member of the household; or
      2. The commission of a sex crime or act of stalking upon a member of a household;
   3. “Domestic abuse offender” means a person identified in a documented incident of domestic abuse as performing any act of domestic abuse;
   4. “Sex crime” includes without limitation:
      1. The following offenses:
         1. Rape, § 5-14-103;
         2. Sexual indecency with a child, § 5-14-110;
         3. Sexual assault in the first degree, § 5-14-124;
         4. Sexual assault in the second degree, § 5-14-125;
         5. Sexual assault in the third degree, § 5-14-126;
         6. Sexual assault in the fourth degree, § 5-14-127;
         7. Incest, § 5-26-202;
         8. Engaging children in sexually explicit conduct for use in visual or print medium, § 5-27-303;
         9. Transportation of minors for prohibited sexual conduct, § 5-27-305;
         10. Employing or consenting to the use of a child in a sexual performance, § 5-27-402;
         11. Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child, § 5-27-304;
         12. Producing, directing, or promoting a sexual performance by a child, § 5-27-403;
         13. Promoting prostitution in the first degree, § 5-70-104;
         14. Indecent exposure, § 5-14-112, if a felony level offense;
         15. Exposing another person to human immunodeficiency virus when a person who has tested positive for human immunodeficiency virus was ordered by the sentencing court to register as a sex offender, § 5-14-123;
         16. Kidnapping pursuant to § 5-11-102(a) when the victim is a minor and the offender is not the parent of the victim;
         17. False imprisonment in the first degree and false imprisonment in the second degree, §§ 5-11-103 and 5-11-104, when the victim is a minor and the offender is not the parent of the victim;
         18. Permitting abuse of a minor pursuant to § 5-27-221;
         19. Computer child pornography, § 5-27-603;
         20. Computer exploitation of a child, § 5-27-605;
         21. Permanent detention or restraint when the offender is not the parent of the victim, § 5-11-106; and
         22. Distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, § 5-27-602;
      2. An attempt, solicitation, or conspiracy to commit any offense enumerated in subdivision (a)(4)(A) of this section; and
      3. An adjudication of guilt for an offense of the law of another state, for a federal offense, for a tribal court offense, or for a military offense:
         1. That is similar to any offense enumerated in subdivision (a)(4)(A) of this section; or
         2. When that adjudication of guilt requires registration under another state's sex offender registration laws;
   5. “Stalking” means following or loitering near a person with the purpose of annoying, harassing, or committing an assault or battery against the person; and
   6. “Victim of domestic abuse” means a person or a member of the person's household who is identified in a documented incident of domestic abuse within:
      1. The immediately preceding sixty (60) days; or
      2. Sixty (60) days of the termination of a residential tenancy by the person, a member of the person's household, or landlord because of domestic abuse.
2. If a residential tenant, an applicant for a residential tenancy, or a member of the tenant or applicant's household is a victim of domestic abuse as evidenced by a documented incident of domestic abuse:
   1. With respect to the victim of domestic abuse, a landlord shall not terminate or fail to renew a residential tenancy, refuse to enter into a residential tenancy, or otherwise retaliate in the leasing of a residence because of the domestic abuse; and
   2. 1. At the residential tenant's expense and with the landlord's prior consent, a landlord or a residential tenant other than a domestic abuse offender may change the locks to the residential tenant's residence.
      2. The landlord or residential tenant shall furnish the other a copy of the new key to the residential tenant's residence immediately after changing the locks or as soon after changing the locks as possible if either the landlord or residential tenant is unavailable.
3. Notwithstanding a conflicting provision in a domestic abuse offender's residential tenancy agreement, if a domestic abuse offender is under a court order to stay away from a co-tenant residing in the domestic abuser's offender's residence or the co-tenant's residence:
   1. The domestic abuse offender under the court order may access either residence only to the extent permitted by the court order or another court order;
   2. A landlord may refuse access by a domestic abuse offender to the residence of a victim of domestic abuse unless the domestic offender is permitted access by court order; and
   3. A landlord may pursue all available legal remedies against the domestic abuse offender, including without limitation an action:
      1. To terminate the residential tenancy agreement of the domestic abuse offender;
      2. To evict the domestic abuse offender whether or not a residential tenancy agreement between the landlord and domestic abuse offender exists; and
      3. For damages against the domestic abuse offender:
         1. For any unpaid rent owed by the domestic abuse offender; and
         2. Resulting from a documented incident of domestic abuse.
4. A landlord is entitled to a court order terminating the residential tenancy agreement of a person or evicting a person, or both, under subdivision (c)(3)(A) or (c)(3)(B) of this section upon proof that the person is a domestic abuse offender under this section.
5. A landlord is immune from civil liability if the landlord in good faith:
   1. Changes the locks under subdivision (b)(2) of this section; or
   2. Acts in accordance with a court order under subsection (c) of this section.
6. A residential tenant may not waive in a residential tenancy the residential tenant's right to request law enforcement assistance or other emergency assistance.

History. Acts 2007, No. 682, § 1; 2009, No. 482, § 1.

Amendments. The 2009 amendment substituted “§ 5-27-605” for “in the first degree, § 5-27-605(a)” in (a)(4)(A)(xx); deleted (a)(4)(A)(xxiii), which read: “Computer child pornography, § 5-27-603”; deleted (a)(4)(A)(xxiv), which read: “Computer exploitation of a child, § 5-27-605”; and made related changes.

18-16-113. Hunting and fishing rights — Leased farmland.

1. 1. A tenant of leased or rented farmland shall have no right to hunt or fish or grant the right to hunt or fish on the farmland that he or she leases or rents unless the right to hunt or fish or to grant the right to hunt or fish is expressly granted in writing by the owner of the farmland.
   2. The right to hunt or fish or to grant the right to hunt or fish on farmland shall reside solely with the owner of the farmland.
2. The farmland owner's right to hunt or fish on his or her farmland includes without limitation the right to:
   1. Travel by foot or by any type of vehicle or boat, and by any means on, over, across, and through the farmland, and by any roads, waterways, ditches, levies, rights of way, or easements on or appurtenant to the farmland;
   2. Move, remove, use, pump, or impound water on, upon, and about the farmland;
   3. Erect, maintain, and operate permanent or temporary structures, facilities, utilities, pumping systems, blinds, docks, decks, and other similar structures and facilities on the farmland; and
   4. Grant other persons, natural or artificial, the right, concurrently or exclusively, to engage in and undertake any manner or means of hunting or fishing on, upon, and about the farmland that is leased or rented, whether orally or in writing, and to exercise any and all of the foregoing rights attendant thereto.

History. Acts 2011, No. 869, § 1.

Subchapter 2 — Actions Against Tenants

18-16-201 — 18-16-205. [Repealed.]

Publisher's Notes. These sections, concerning ejectment for nonpayment of rent, duty of tenant to notify landlord, actions for use and occupation, remedy when lease for life, and recovery of rent in arrears due decedent, were repealed by Acts 2007, No. 1004, §§ 7-11. The sections were derived from the following sources:

18-16-201. Rev. Stat., ch. 88, §§ 15-21; C. & M. Dig., §§ 6562-6568; Pope's Dig., §§ 8592-8598; A.S.A. 1947, §§ 50-514 – 50-520.

18-16-202. Rev. Stat., ch. 88, § 6; C. & M. Dig., § 6554; Pope's Dig., § 8584; A.S.A. 1947, § 50-506.

18-16-203. Rev. Stat., ch. 88, §§ 11-13; C. & M. Dig., §§ 6559-6561; Pope's Dig., §§ 8589-8591; A.S.A. 1947, §§ 50-511 – 50-513.

18-16-204. Rev. Stat., ch. 88, § 4; C. & M. Dig., § 6552; Pope's Dig., § 8582; A.S.A. 1947, § 50-504.

18-16-205. Rev. Stat., ch. 88, §§ 2, 3, 5; C. & M. Dig., §§ 6550, 6551, 6553; Pope's Dig., §§ 8580, 8581, 8583; A.S.A. 1947, §§ 50-502, 50-503, 50-505.

Subchapter 3 — Security Deposits

18-16-301. Definitions.

As used in this subchapter:

1. “Dwelling unit” means a structure or the part of the structure that is used as a home, residence, or sleeping place by one (1) person who maintains a household or by two (2) or more persons who maintain a common household;
2. “Landlord” means the owner, lessor, or sublessor of the dwelling unit or the building of which it is a part;
3. “Owner” means one (1) or more persons, jointly or severally, in whom is vested:
   1. All or part of the legal title to property; or
   2. All or part of the beneficial ownership and a right to present use and enjoyment of the premises. The term includes a mortgagor in possession;
4. “Person” means any individual, firm, partnership, corporation, association, or other organization;
5. “Premises” means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and facilities held out for the use of tenants generally or whose use is promised to the tenant;
6. “Rent” means all payments to be made to the landlord under the rental agreement;
7. “Rental agreement” means all written or oral agreements and valid rules embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises; and
8. “Tenant” means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.

History. Acts 1979, No. 531, § 1; A.S.A. 1947, § 50-525; Acts 2019, No. 315, § 1688.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (7).

18-16-302. Transferee, etc., bound.

The transferee, assignee, or other holder of the landlord's interest in the premises at the time of the termination of the tenancy is bound by this subchapter.

History. Acts 1979, No. 531, § 5; A.S.A. 1947, § 50-529.

18-16-303. Exemptions.

1. This subchapter shall not apply to dwelling units owned by an individual, if the individual, his or her spouse and minor children, and any and all partnerships, corporations, or other legal entities formed for the purpose of renting dwelling units and of which they are officers, owners, or majority shareholders own, or collectively own, five (5) or fewer dwelling units.
2. This exemption does not apply to units for which management, including rent collection, is performed by third persons for a fee.

History. Acts 1979, No. 531, § 6; A.S.A. 1947, § 50-530.

18-16-304. Maximum amount.

A landlord may not demand or receive a security deposit, however denominated, in an amount or value in excess of two (2) months periodic rent.

History. Acts 1979, No. 531, § 2; A.S.A. 1947, § 50-526.

18-16-305. Refund required — Exceptions.

1. 1. Within sixty (60) days of termination of the tenancy, property or money held by the landlord as security shall be returned to the tenant.
   2. However, the money may be applied to the payment of accrued unpaid rent and any damages which the landlord has suffered by reason of the tenant's noncompliance with the rental agreement, all as itemized by the landlord in a written notice delivered to the tenant, together with the remainder of the amount due sixty (60) days after termination of the tenancy and delivery of possession by the tenant.
2. 1. The landlord shall be deemed to have complied with subsection (a) of this section by mailing via first class mail the written notice and any payment required to the last known address of the tenant.
   2. If the letter containing the payment is returned to the landlord and if the landlord is unable to locate the tenant after reasonable effort, then the payment shall become the property of the landlord one hundred eighty (180) days from the date the payment was mailed.

History. Acts 1979, No. 531, § 3; A.S.A. 1947, § 50-527; Acts 2009, No. 559, § 1.

Amendments. The 2009 amendment substituted “sixty (60)” for “thirty (30)” in (a)(1) and (a)(2).

18-16-306. Remedies.

1. 1. If the landlord fails to comply with this subchapter, the tenant may recover:
      1. The property and money due him or her;
      2. Damages in an amount equal to two (2) times the amount wrongfully withheld;
      3. Costs; and
      4. Reasonable attorney's fees.
   2. However, the landlord shall be liable only for costs and the sum erroneously withheld if the landlord shows by the preponderance of the evidence that his or her noncompliance:
      1. Resulted from an error which occurred despite the existence of procedures reasonably designed to avoid such errors; or
      2. Was based on a good faith dispute as to the amount due.
2. This section does not preclude the landlord or tenant from any other relief to which either may be lawfully entitled.

History. Acts 1979, No. 531, § 4; A.S.A. 1947, § 50-528.

Subchapter 4 — Self-Service Storage Facilities

Effective Dates. Acts 2017, No. 738, § 2: Mar. 29, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the current law concerning the sale of a vehicle by a self-service storage facility does not authorize the issuance of a new certificate of title to the vehicle purchaser and, accordingly, self-service storage facilities are unable to sell abandoned vehicles resulting in irreparable harm to these businesses by causing a loss of income and storage space; and that this act is immediately necessary to allow the sale of abandoned vehicles. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

18-16-401. Definitions.

As used in this subchapter:

1. “Default” means the failure to timely perform an obligation of a rental agreement;
2. “Electronic mail” means an electronic message, a file, data, or other information that is transmitted:
   1. Between two (2) or more computers, computer networks, or electronic terminals; or
   2. Within or between computer networks;
3. “Electronic mail address” means a destination commonly expressed as a string of characters to which electronic mail may be sent or delivered;
4. “Last known address” means the address or electronic mail address provided by the occupant in:
   1. The rental agreement; or
   2. A subsequent written notice of a change of address;
5. “Leased space” means individual storage space at a self-service storage facility that is rented to an occupant under a rental agreement;
6. “Net proceeds” means the proceeds from the sale authorized upon a default under this subchapter after deduction for:
   1. Expenses incurred by the operator to exercise its rights under this subchapter, including without limitation attorney's fees, auctioneers' fees, postage, and publication costs;
   2. The debt owed by the occupant to the operator for leased space; and
   3. Charges related to preserving, assembling, advertising, and selling personal property under this subchapter;
7. “Occupant” means a person or entity entitled to the use of leased space at a self-service storage facility under a rental agreement;
8. 1. “Operator” means:
      1. The owner, operator, lessor, or sublessor of a self-service storage facility;
      2. An agent of the owner operator, lessor, or sublessor of a self-service storage facility; or
      3. Any other person authorized to manage a self-service storage facility.
   2. “Operator” does not include a warehouseman, unless the operator issues a warehouse receipt, bill of lading, or other document of title for storing personal property;
9. 1. “Personal property” means movable property not affixed to land.
   2. “Personal property” includes without limitation goods, wares, merchandise, motor vehicles, watercraft, and household items and furnishings;
10. “Rental agreement” means a written agreement that establishes or modifies the terms, conditions, or rules concerning the use and occupancy of a self-service storage facility; and
11. “Self-service storage facility” means real property used for renting or leasing leased space in which an occupant stores and removes personal property on a self-service basis.

History. Acts 1987, No. 576, § 1; 2013, No. 364, § 1.

Amendments. The 2013 amendment rewrote the section.

18-16-402. Operator's lien on stored property.

1. 1. An operator of a self-service storage facility has a lien on all personal property stored within each leased space for rent, labor, or other charges and for expenses reasonably incurred in its sale or removal from a self-service storage facility under this subchapter.
   2. If the personal property is a motor vehicle, trailer, or watercraft, the lien shall include fees and expenses reasonably incurred by an operator to remove the personal property from a self-service storage facility under this subchapter.
2. The lien provided for in this section attaches as of the date the personal property is brought to the self-service storage facility and shall be superior to any other lien or security interest except the following:
   1. A lien which is perfected and recorded in Arkansas in the name of the occupant, either in the county of the occupant's last known address or in the county where the self-service storage facility is located, prior to the date of the rental agreement;
   2. Any tax lien; and
   3. Any lienholder with a perfected security interest in the property.
3. Nothing in this subchapter shall be construed to prohibit the occupant, operator, lienholder, or any other person or entity claiming an interest in the property stored in the leased space from applying to a court of competent jurisdiction to determine the validity of the lien or its priority.

History. Acts 1987, No. 576, §§ 3, 7; 2015, No. 348, § 1.

Amendments. The 2015 amendment redesignated (a) as (a)(1) and added (a)(2); in (a)(1), substituted “An” for “The”, inserted “or removal from a self-service storage facility” and substituted “under” for “as provided in”.

18-16-403. Use for residential purposes.

1. An operator may not knowingly permit a leased space at a self-service storage facility to be used for residential purposes.
2. An occupant may not use a leased space for residential purposes.

History. Acts 1987, No. 576, § 2.

18-16-404. Notice of lien.

A rental agreement shall contain a statement in bold type advising the occupant:

1. Of the existence of the lien; and
2. That property stored in the leased space may be sold or removed to satisfy the lien if the occupant is in default.

History. Acts 1987, No. 576, § 3; 2015, No. 348, § 2.

Amendments. The 2015 amendment substituted “A” for “The” in the introductory language; and inserted “or removed” in (2).

18-16-405. Access to leased space — Care of property.

1. If an occupant is in default, the operator may deny the occupant access to the leased space.
2. 1. The exclusive care, custody, and control of all personal property stored in the leased self-service storage space remains vested in the occupant unless:
      1. The rental agreement specifically provides otherwise;
      2. A lien sale is conducted by the operator under this subchapter; or
      3. The personal property is a motor vehicle, trailer, or watercraft that is removed from the self-service storage facility by an operator of a tow vehicle.
   2. Entry of the leased space by the operator for the purpose of complying with this subchapter shall not constitute conversion nor impose any responsibility for the care, custody, and control of any of the personal property stored.

History. Acts 1987, No. 576, §§ 4, 5; 1991, No. 786, § 28; 2015, No. 348, § 3.

A.C.R.C. Notes. Acts 1987, No. 576, § 6, provided:

“All rental agreements, entered into before the effective date of this act, which have not been extended or renewed after that date, shall remain valid and may be enforced or terminated in accordance with their terms or as permitted by any other statute or law of this state.”

Publisher's Notes. Acts 1991, No. 786, § 37, provided:

“The enactment and adoption of this Act shall not repeal, expressly or impliedly, the acts passed at the regular session of the 78th General Assembly. All such acts shall have full effect and, so far as those acts intentionally vary from or conflict with any provision contained in this Act, those acts shall have the effect of subsequent acts and as amending or repealing the appropriate parts of the Arkansas Code of 1987.”

Amendments. The 2015 amendment, in (b)(1), deleted “Unless the rental agreement specifically provides otherwise and until a lien sale under this subchapter” at the beginning, and added “unless” at the end; and added (b)(1)(A)-(C).

18-16-406. Default — Right to sell or remove property.

1. If the occupant is in default for more than forty-five (45) days, the operator may enforce the lien by selling the personal property stored in the leased space at a public sale for cash.
2. 1. If the personal property subject to the lien is a motor vehicle, trailer, or watercraft, and the occupant is in default for at least sixty (60) days, the operator may remove the personal property instead of selling the property under subsection (a) of this section.
   2. If a motor vehicle, trailer, or watercraft is removed by a towing operator, the operator is not liable for the personal property or any damages to the personal property once the towing operator takes possession of the personal property.

History. Acts 1987, No. 576, § 4; 2015, No. 348, § 4.

Amendments. The 2015 amendment inserted “or remove” in the section heading; redesignated the existing language as (a); in (a), deleted “a period of” following “default for” and inserted “personal” preceding “property”; and added (b).

18-16-407. Sale and removal procedure.

1. Before conducting a sale or removal of personal property under § 18-16-406, the operator shall:
   1. 1. Notify the occupant in writing of the default.
      2. Except as provided in subdivision (a)(1)(D) of this section, notice shall be sent by first class mail with certificate of mailing to the occupant at the occupant's last known address.
      3. The notice shall include:
         1. A statement that the contents of the occupant's leased space are subject to the operator's lien;
         2. A statement of the operator's claim, indicating the charges due on the date of the notice, the amount of any additional charges that shall become due before the date of sale, and the date the additional charges shall become due;
         3. A demand for payment of the charges due within a specified time, not less than fourteen (14) days after the date that the notice is sent;
         4. A statement that unless the claim is paid within the time stated, the contents of the occupant's space will be sold at a specified time and place or removed from the self-service storage facility on a specified date;
         5. The name, street address, and telephone number of the operator or his or her designated agent whom the occupant may contact to respond to the notice; and
         6. Designation of the date, time, and place where the contents will be sold or removed from the self-service storage facility unless the default is remedied before the sale or removal of the personal property.
      4. If an occupant provides an electronic mail address and gives permission to the storage facility to use the electronic mail address as a legal notification for the occupant's last known address, then the operator may use the electronic mail address to send the notice required by subdivision (a)(1)(C) of this section instead of sending the notice by first class mail with certificate of mailing;
   2. Publish one (1) advertisement in a newspaper of general circulation in the county in which the storage facility is located at least seven (7) days before the sale or removal of personal property; and
   3. 1. Contact the circuit clerk in the county where the personal property is stored to determine the name and address of any holder of liens or security interests in the personal property being sold or removed.
      2. 1. The operator shall notify by first class mail with certificate of mailing each holder of a lien or security interest of the time and place of the proposed sale or removal of the personal property at least ten (10) days before conducting the sale or removing the personal property.
         2. The operator shall be required to notify the holder of a lien or security interest only if the lien or security interest is filed under the name of the occupant.
2. At any time before a sale or removal of personal property under this section, the occupant may pay the amount necessary to satisfy the operator's lien and redeem the occupant's personal property.
3. The sale under this subchapter shall be held at the self-service storage facility where the personal property is stored.
4. A purchaser in good faith of any personal property sold under this subchapter takes the property free and clear of any rights of:
   1. Persons against whom the lien was valid; and
   2. Other lienholders.
5. If the operator complies with the provisions of this subchapter, the operator's liability:
   1. To the occupant shall be limited to the net proceeds received from the sale of the personal property; and
   2. To other lienholders shall be limited to the net proceeds received from the sale of any personal property covered by the other liens or the amount owed to such lienholders, whichever is less.
6. The operator shall retain a copy of all notices and return receipts required by subsection (a) of this section for six (6) months following the date of the lien sale or removal of the personal property from the self-service storage facility.

History. Acts 1987, No. 576, § 4; 2011, No. 189, § 1; 2013, No. 364, § 2; 2015, No. 348, § 5.

Amendments. The 2011 amendment substituted “first class mail with certificate of mailing” for “certified mail, return receipt requested” in (a)(1) and (a)(3)(B)(i); and subdivided former (a)(3)(B) as present (a)(3)(B)(i) and (a)(3)(B)(ii).

The 2013 amendment rewrote (a).

The 2015 amendment inserted “and removal” in the section heading; inserted “or removal of personal property” in the introductory language of (a); inserted similar references to removal of personal property throughout the section; and changed the reference in (a)(1)(B) from “(2)(D)” to “(a)(1)(D)”.

18-16-408. Disposition of sale proceeds.

1. Proceeds from the sale shall be applied to satisfy the lien, and any surplus shall be disbursed as provided in subsection (b) of this section.
2. If a sale is held under this subchapter, the operator shall:
   1. Satisfy the lien from the proceeds of the sale; and
   2. Hold the balance, if any, for delivery on demand to the occupant or any other recorded lienholders. If demand is not made within two (2) years after the date of the sale, the surplus shall escheat to the county.

History. Acts 1987, No. 576, § 4.

18-16-409. Notices — Method of delivery.

1. Unless otherwise specifically provided, all notices required by this subchapter shall be sent by first class mail with certificate of mailing.
2. 1. Notices sent to the operator shall be sent to the self-service storage facility where the occupant's property is stored.
   2. Notices to the occupant shall be sent to the occupant at the occupant's last known address.
   3. Notices shall be deemed delivered when deposited with the United States Postal Service, properly addressed as provided in § 18-16-407(a) with postage prepaid.

History. Acts 1987, No. 576, § 4; 2011, No. 189, § 2.

Amendments. The 2011 amendment substituted “first class mail with certificate of mailing” for “certified mail, return receipt requested” in (a).

18-16-410. Limits on value of stored property.

If the rental agreement contains a specified limit on the value of property allowed to be stored in an occupant's storage space, the operator is not liable for a loss or damages to the property stored in the occupant's storage space that exceeds the specified limit.

History. Acts 2013, No. 364, § 3.

18-16-411. Conditions and limitations for imposing late fees.

1. If the amount of a late fee and the conditions for imposing a late fee are stated in the rental agreement or in an addendum to the rental agreement, the operator may impose a late fee on the occupant for each month the occupant does not pay rent when due that does not exceed the greater of:
   1. Thirty dollars ($30.00) per month; or
   2. Twenty percent (20%) of the amount of monthly rent.
2. Expenses incurred as a result of rent collection or lien enforcement by an operator may be charged to the occupant in addition to the late fees permitted by this section.

History. Acts 2013, No. 364, § 3.

18-16-412. Disposal of personal information — Definition.

1. 1. As used in this section, “personal information” means information relating to a client, a customer, or a person with whom the occupant does business that readily identifies that person or is closely associated with the person, including without limitation a person's:
      1. Social Security number;
      2. Credit or debit card information;
      3. Bank account number;
      4. Medical information; or
      5. Passport information.
   2. “Personal information” does not include information that readily identifies or is closely associated with the occupant of the leased self-service storage space.
2. If the operator has a reasonable belief that the leased self-service storage space contains personal information relating to clients, customers, or others with whom the occupant does business, the operator may, after an occupant is in default for a period of more than forty-five (45) days, inspect the contents of a leased self-service storage space to investigate for the presence of personal information without any liability to the occupant or any other person who claims an interest in the personal information.
3. The operator:
   1. Shall not sell the personal information under § 18-16-406; and
   2. Shall destroy the personal information.
4. An operator who complies with subsections (b) and (c) of this section is not liable to the occupant or any other person who claims an interest in the personal information.

History. Acts 2017, No. 628, § 1.

18-16-413. Sale of a vehicle.

A self-service storage facility may sell a vehicle of a type subject to registration under the laws of this state using the procedure for the sale of a vehicle as provided in §§ 27-50-1202 and 27-50-1208 — 27-50-1210.

History. Acts 2017, No. 738, § 1.

Subchapter 5 — Tenant Liability — Eviction

Publisher's Notes. A former subchapter 5, concerning tenant liability and eviction, was repealed by Acts 2007, No. 1004, § 12. The subchapter was derived from the following sources:

18-16-501. Acts 2001, No. 1758, § 1.

18-16-502. Acts 2001, No. 1758, § 2.

18-16-503. Acts 2001, No. 1758, § 3.

18-16-504. Acts 2001, No. 1758, § 4.

18-16-505. Acts 2001, No. 1758, § 5.

18-16-506. Acts 2001, No. 1758, § 6.

18-16-507. Acts 2001, No. 1758, § 7.

18-16-508. Acts 2001, No. 1758, § 8.

18-16-501. Common nuisance — Criminal offense.

Any tenant who uses or allows another person to use the tenant's leased premises as a common nuisance as defined by § 5-74-109(b) or § 16-105-402 or for a criminal offense as identified in § 18-16-502 may be evicted by the prosecuting attorney of the county, the city attorney of the city, the landlord, the premises owner, or the agent for the premises owner pursuant to the provisions of this subchapter.

History. Acts 2009, No. 464, § 1.

18-16-502. Gambling — Prostitution — Alcohol.

For purposes of this subchapter, any tenant who engages in or allows another person to engage in illegal gambling under § 5-66-107, prostitution as defined by § 5-70-102, or the unlawful sale of alcohol as defined by § 3-3-205 on the tenant's leased premises shall be subject to the eviction procedures established by this subchapter.

History. Acts 2009, No. 464, § 1.

18-16-503. Complaint — Jurisdiction — Definition.

1. The prosecuting attorney of the county, the city attorney of the city, the landlord, the premises owner, or the agent for the premises owner may file a complaint in the office of the clerk of the court for the eviction of any tenant who has used or has allowed another person to use the tenant's leased premises for use as a common nuisance as defined by § 5-74-109(b) or § 16-105-402 or for a criminal offense as identified in § 18-16-502.
2. A civil action under this subchapter is cognizable before the:
   1. Circuit court of any county in which an act described in § 18-16-501 or § 18-16-502 is committed; and
   2. District court with jurisdiction concurrent with the jurisdiction of the circuit court if permitted by rule or order of the Supreme Court.
3. As used in this subchapter, “court” means:
   1. A circuit court; and
   2. If permitted by rule or order of the Supreme Court, a district court.

History. Acts 2009, No. 464, § 1.

18-16-504. Form of complaint.

A complaint filed under this subchapter shall state the name of the tenant or tenants to be evicted, the location of the leased premises, and the basis for which eviction is authorized under this subchapter.

History. Acts 2009, No. 464, § 1.

18-16-505. Summons — Notice.

Upon the filing of a complaint under this subchapter, the clerk of the court shall issue a summons upon the complaint. The summons shall be in customary form directed to the sheriff of the county where the complaint is filed, with direction for service of the complaint on the named defendants. In addition, the court shall issue and direct the sheriff to serve upon the named defendants a notice in the following form:

“NOTICE OF INTENTION TO EVICT FOR CRIMINAL ACTIVITY You are hereby notified that the attached complaint in the above-styled cause claims that you have engaged in or have allowed the property described in the above-mentioned complaint to be used for criminal activity and that the plaintiff is entitled to have you evicted pursuant to state law. If, within five (5) days, excluding Sundays and legal holidays, after the date of service of this notice you have not filed in the office of the clerk of this court a written objection to the claims made against you by the plaintiff in his or her complaint for eviction, then a writ of possession shall forthwith issue from this office directed to the sheriff of this county or to the police chief of the city ordering him or her to remove you from possession of the property described in the complaint. If you should file a written objection to the complaint of the plaintiff and the allegations for immediate possession of the property described in the complaint within five (5) days, excluding Sundays and legal holidays, after the date of service of this notice, a hearing will be scheduled by the court after you have timely answered to determine whether or not the writ of possession should issue as sought by the plaintiff. Clerk of Court”

Click to view form.

History. Acts 2009, No. 464, § 1.

18-16-506. Written objection.

1. If within five (5) days, excluding Sundays and legal holidays, following service of this summons, complaint, and notice seeking a writ of possession against the defendants named in the complaint the defendant or defendants have not filed a written objection to the claim for a writ of possession made by the plaintiff in his or her complaint, the clerk of the court shall immediately issue a writ of possession directed to the sheriff of the county or the police chief of the city commanding him or her to cause the defendant or defendants to vacate the property described in the complaint without delay, which the sheriff or police chief shall execute in the manner described in § 18-16-507.
2. 1. If a written objection to the claim of the plaintiff for a writ of possession is filed by the defendant or defendants within five (5) days after the date of service of the notice, summons, and complaint as provided for in this section, the plaintiff shall obtain a date for the hearing of the plaintiff's demand for a writ of possession of the property described in the complaint after the defendant or defendants have timely answered the complaint.
   2. 1. If a hearing described in subdivision (b)(1) of this section is required, at the hearing the plaintiff shall present evidence sufficient to make a prima facie case of the criminal activity that has been facilitated at the property described in the complaint.
      2. The defendant or defendants shall be entitled to present evidence in rebuttal of the plaintiff's case.
   3. If the court decides upon all the evidence that the plaintiff is entitled to a writ of possession under state law, then the court shall order the clerk of the court to immediately issue a writ of possession to the sheriff of the county or the police chief of the city to evict the defendant or defendants, as provided for in § 18-16-507.

History. Acts 2009, No. 464, § 1.

18-16-507. Writ of possession — Definition.

1. Upon receipt of a writ of possession from the clerk of the court, the sheriff or police chief shall immediately proceed to execute the writ of possession in the specific manner described in this section and, if necessary, ultimately by ejecting from the property described in the writ of possession the defendant or defendants and any other person or persons who have unlawfully received or entered into the possession of the property after the issuance of the writ of possession, and then notify the plaintiff that the property has been vacated by the defendant or defendants.
2. 1. Upon receipt of the writ of possession, the sheriff or police chief shall notify the defendant or defendants of the issuance of the writ of possession by delivering a copy of the writ of possession to the defendant or defendants or to any person authorized to receive summons in civil cases and in like manner.
   2. If within eight (8) hours after receipt of the writ of possession the sheriff or police chief does not find any such defendant as stated in the complaint at his or her normal place of residence, the sheriff or police chief may serve the writ of possession by placing a copy conspicuously upon the front door or other structure of the property described in the complaint, which shall have like effect as if delivered in person pursuant to the terms of the writ of possession.
3. 1. 1. If at the expiration of twenty-four (24) hours after the service of the writ of possession in the manner indicated the defendant or defendants remain in possession of the property, the sheriff or police chief shall notify the plaintiff or the plaintiff's attorney of that fact and may employ, may engage, and shall be provided with all labor and assistance required by the sheriff or police chief to obtain possession and remove the possessions and belongings of the defendant or defendants from the affected property to a place of storage in a public warehouse or in some other reasonable safe place of storage under the control of the plaintiff.
      2. 1. The defendant or defendants may recover the property stored under subdivision (c)(1)(A) of this section within seven (7) business days.
         2. Before recovering the property, the defendant or defendants shall pay for the reasonable cost of storage.
   2. If the defendant or defendants do not recover the property as provided in subdivision (c)(1) of this section, then the court shall order the possessions and belongings of the defendant or defendants sold by the plaintiff in a commercially reasonable manner with the proceeds of the sale applied first to the cost of storage, second to any monetary judgment in favor of the plaintiff, and third to the defendant any excess.
4. In executing the writ of possession, the sheriff or police chief may forcibly remove all locks or other barriers erected to prevent entry upon the premises in any manner which he or she deems appropriate or convenient and, if necessary, physically restrain the defendant or defendants from interfering with the removal of a defendant's property and possessions from the property described in the writ of possession.
5. If the plaintiff is the city attorney or prosecuting attorney, no bond shall be required. If the plaintiff is the landlord or premises owner, no bond shall be required unless ordered by the court as a condition to the execution of a writ of possession granted prior to the date that an answer is to be filed by the defendant or defendants.
6. The sheriff or police chief shall return the writ of possession at or before the return date of the writ of possession and shall state in his or her return the manner in which he or she executed the writ of possession and whether or not the defendant or defendants have been ejected from the property described and, if not, the reason for the failure of the sheriff or police chief to do so.
7. As used in this section, “sheriff or police chief” includes a deputy sheriff, police officer, or other law enforcement official acting at the direction of the sheriff or police chief.

History. Acts 2009, No. 464, § 1.

18-16-508. Costs and attorney's fees — Damages.

1. 1. A court granting relief under this subchapter may order in addition to any other costs provided by law the payment by the defendant or defendants to the plaintiff reasonable attorney's fees and the costs of the action. In such cases, multiple defendants are jointly and severally liable for any payment so ordered.
   2. Any costs or attorney's fees collected from the defendants shall be remitted to the plaintiff. If the plaintiff is the city attorney, the costs shall be remitted to the city general fund. If the plaintiff is the prosecuting attorney, the costs shall be remitted to the county general fund.
2. A proceeding brought under this subchapter for eviction of the defendants and occupants of the premises does not preclude the owner or landlord from recovering monetary damages for rent, repairs, or any other incidental damages up to the date of eviction of the defendants and occupants from the premises in a civil action.

History. Acts 2009, No. 464, § 1.

18-16-509. Immunity from civil liability.

For any action or threatened action taken to enforce a right or remedy provided by this subchapter, a landlord, a premises owner, an agent or attorney for the premises owner, and a real estate licensee as defined in § 17-42-103 are immune from civil liability for the breach of an express or implied covenant concerning the possession or quiet enjoyment of the leased premises.

History. Acts 2009, No. 464, § 1.

Subchapter 1 — Title, Construction, Application, and Subject Matter of Chapter

18-17-101. Title.

This chapter shall be known and may be cited as the “Arkansas Residential Landlord — Tenant Act of 2007”.

History. Acts 2007, No. 1004, § 1.

18-17-102. Purposes — Rules of construction.

1. This chapter shall be liberally construed and applied to promote its underlying purposes and policies.
2. Underlying purposes and policies of this chapter are:
   1. To simplify, clarify, modernize, and revise the law governing rental of dwelling units and the rights and obligations of landlords and tenants; and
   2. To encourage landlords and tenants to maintain and improve the quality of housing.

History. Acts 2007, No. 1004, § 1.

18-17-103. Administration of remedies — Enforcement.

1. The remedies provided by this chapter shall be administered so that an aggrieved party may recover appropriate damages.
2. Any right or obligation declared by this chapter is enforceable by action unless the provision declaring it specifies a different and limited effect.

History. Acts 2007, No. 1004, § 1; 2011, No. 271, § 4.

Amendments. The 2011 amendment inserted “so” in (a).

18-17-104. Settlement of disputed claim or right.

A claim or right arising under this chapter or on a rental agreement, if disputed in good faith, may be settled by agreement.

History. Acts 2007, No. 1004, § 1.

Subchapter 2 — Scope and Jurisdiction

18-17-201. Territorial application.

This chapter applies to, regulates, and determines rights, obligations, and remedies under a rental agreement, wherever made, for a dwelling unit located within this state.

History. Acts 2007, No. 1004, § 1.

18-17-202. Exclusions from application of chapter.

The following arrangements are not governed by this chapter:

1. Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service;
2. Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his or her interest;
3. Occupancy by a member or a fraternal or social organization in the portion of a structure operated for the benefit of the organization;
4. Transient occupancy in a hotel, motel, or other accommodations subject to any sales tax on lodging;
5. Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises;
6. Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative;
7. Occupancy under a rental agreement covering the premises used by the occupant primarily for agricultural purposes; and
8. Residence, whether temporary or not, at a public or private charitable or emergency protective shelter.

History. Acts 2007, No. 1004, § 1.

18-17-203. Jurisdiction and service of process.

The district court or appropriate court of this state shall exercise jurisdiction over any landlord with respect to any conduct in this state governed by this chapter or with respect to any claim arising from a transaction subject to this chapter.

History. Acts 2007, No. 1004, § 1.

Subchapter 3 — General Definitions and Principles of Interpretation — Notice

18-17-301. General definitions.

As used in this chapter:

1. “Action” means a recoupment, counterclaim, suit in equity, and any other proceeding in which rights are determined, including without limitation an action for possession;
2. “Building and housing codes” means any law, ordinance, or governmental regulation or rule concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance of any premises or dwelling unit;
3. 1. “Dwelling unit” means a structure or the part of a structure that is used as a home, residence, or sleeping place by one (1) person who maintains a household or by two (2) or more persons who maintain a common household and includes landlord-owned mobile homes.
   2. Property that is leased for the exclusive purpose of being renovated by the lessee is not considered a dwelling unit within the meaning of this chapter;
4. “Good faith” means honesty in fact in the conduct of the transaction concerned;
5. “Landlord” means the owner, lessor, or sublessor of the premises, and it also means a manager of the premises who fails to disclose as required by this chapter;
6. “Organization” means a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two (2) or more persons having a joint or common interest, and any other legal or commercial entity;
7. 1. “Owner” means one (1) or more persons, jointly or severally, in whom is vested all or part of:
      1. The legal title to property; or
      2. All or part of the beneficial ownership and a right to present use and enjoyment of the premises.
   2. “Owner” includes, but is not limited to, a mortgagee in possession;
8. “Person” means an individual or organization;
9. “Premises” means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and facilities held out for the use of tenants generally or whose use is promised to the tenant;
10. “Rent” means the consideration payable for use of the premises, including late charges whether payable in lump sum or periodic payments, excluding security deposits or other charges;
11. “Rental agreement” means all agreements, written or oral, and valid rules adopted under this chapter embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises;
12. “Roomer” means a person occupying a dwelling unit:
    1. That does not include the following facilities provided by the landlord:
       1. Toilet;
       2. Bathtub or shower;
       3. Refrigerator;
       4. Stove; and
       5. Kitchen sink; and
    2. Where one (1) or more of these facilities are used in common by occupants in the structure;
13. “Security deposit” means a monetary deposit from the tenant to the landlord to secure the full and faithful performance of the terms and conditions of the rental agreement as provided in this chapter;
14. 1. “Single family residence” means a structure maintained and used as a single dwelling unit.
    2. Notwithstanding that a dwelling unit shares one (1) or more walls with another dwelling unit, it is a single family residence if it has direct access to a street or thoroughfare and shares neither heating facilities, hot water equipment, nor any other essential facility or service with any other dwelling unit;
15. “Tenant” means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others; and
16. “Willful” means an intentional attempt to avoid obligations under the rental agreement or the provisions of this chapter.

History. Acts 2007, No. 1004, § 1; 2009, No. 482, §§ 2, 3; 2019, No. 315, § 1689.

Amendments. The 2009 amendment subdivided (12); substituted “rental” for “lease” and “chapter” for “subchapter” in (13); substituted “intentional attempt” for “attempt to intentionally” in (16); and made related and minor stylistic changes.

The 2019 amendment inserted “or rule” in (2).

18-17-302. Obligation of good faith.

Every duty under this chapter and every act that shall be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performances or enforcement.

History. Acts 2007, No. 1004, § 1.

18-17-303. Notice.

1. 1. A person has notice of a fact if:
      1. The person has actual knowledge of it;
      2. The person has received a notice or notification of it; or
      3. From all the facts and circumstances known to him or her at the time in question, he or she has reason to know that it exists.
   2. A person knows or has knowledge of a fact if he or she has actual knowledge of it.
2. 1. A person notifies or gives a notice or notification to another person by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it.
   2. A person receives a notice or notification when:
      1. It comes to his or her attention; or
      2. In the case of the landlord, it is delivered at the place of business of the landlord through which the rental agreement was made or at any place held out by the landlord as the place for receipt of the communication; or
      3. 1. In the case of the tenant, it is delivered in hand to the tenant or mailed by registered or certified mail to the tenant at the place held out by him or her as the place for receipt of the communication, or in the absence of the designation, to the tenant's last known place of residence.
         2. Proof of mailing pursuant to this subsection constitutes notice without proof of receipt.
3. Notice, knowledge, or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting that transaction, and in any event from the time it would have been brought to the individual's attention if the organization had exercised reasonable diligence.
4. The time within which an act is to be done shall be computed by reference to the Arkansas Rules of Civil Procedure.

History. Acts 2007, No. 1004, § 1.

Subchapter 4 — General Provisions

18-17-401. Terms and conditions of rental agreement.

1. A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by this chapter or other rule of law, including, but not limited to, rent, term of the agreement, and other provisions governing the rights and obligations of the parties.
2. 1. Rent is payable without demand or notice at the time and place agreed upon by the parties.
   2. Unless the tenant is otherwise notified in writing, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term of one (1) month or less and otherwise in equal monthly installments at the beginning of each month.
3. Unless the rental agreement fixes a definite term, the tenancy is week to week in case of a roomer who pays weekly rent and in all other cases month to month.

History. Acts 2007, No. 1004, § 1.

Subchapter 5 — Landlord Obligations

18-17-501. Security deposits.

Section 18-16-301 et seq. shall determine:

1. Whether a security deposit is required under this chapter; and
2. The rights, duties, and remedies of a landlord and tenant concerning a security deposit.

History. Acts 2007, No. 1004, § 1; 2009, No. 482, § 4; 2009, No. 559, § 2.

A.C.R.C. Notes. Pursuant to Acts 2009, No. 482, § 13, the amendment of § 18-17-501(a)(1) by Acts 2009, No. 482, § 4, is superseded by the amendment of § 18-17-501 by Acts 2009, No. 559, § 2.

Amendments. The 2009 amendment by No. 482 substituted “chapter” for “subchapter” in (a)(1), and made a minor punctuation change.

The 2009 amendment by No. 559 rewrote the section.

Subchapter 6 — Tenant Obligations

18-17-601. Tenant to maintain dwelling unit.

A tenant shall:

1. Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;
2. Keep the dwelling unit and that part of the premises that he or she uses reasonably safe and reasonably clean;
3. Dispose from his or her dwelling unit all ashes, garbage, rubbish, and other waste in a reasonably clean and safe manner;
4. Keep all plumbing fixtures in the dwelling unit or used by the tenant reasonably clean;
5. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances, including elevators in the premises;
6. Not deliberately or negligently destroy, deface, damage, impair, or remove any part of the premises or knowingly permit any person to do so who is on the premises with the tenant's permission or who is allowed access to the premises by the tenant;
7. Conduct himself or herself and require other persons on the premises with the tenant's permission or who are allowed access to the premises by the tenant to conduct themselves in a manner that will not disturb other tenant's peaceful enjoyment of the premises; and
8. Comply with the lease and rules that are enforceable pursuant to this subchapter.

History. Acts 2007, No. 1004, § 1.

18-17-602. Access.

1. A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations, or improvements, supply necessary or agreed services, investigate possible rule or lease violations, investigate possible criminal activity, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.
2. A tenant shall not change locks on the dwelling unit without the permission of the landlord.

History. Acts 2007, No. 1004, § 1.

18-17-603. Tenant to use and occupy.

Unless otherwise agreed, a tenant shall occupy his or her dwelling unit only as a dwelling unit and shall not conduct or permit any illegal activities thereon.

History. Acts 2007, No. 1004, § 1.

Subchapter 7 — Landlord Remedies

18-17-701. Noncompliance with rental agreement — Failure to pay rent — Removal of evicted tenant's personal property.

1. 1. Except as provided in this chapter, if there is a noncompliance by the tenant with the rental agreement, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the noncompliance and that the rental agreement will terminate upon a date not less than fourteen (14) days after receipt of the notice, if the noncompliance is not remedied in fourteen (14) days.
   2. The rental agreement shall terminate as provided in the notice unless the noncompliance is remediable by repairs or otherwise and the tenant adequately remedies the noncompliance before the date specified in the notice.
2. If rent is unpaid when due and the tenant fails to pay rent within five (5) days from the date due, the landlord may terminate the rental agreement.
3. 1. Except as provided in this chapter, the landlord may recover actual damages and obtain injunctive relief, judgments, or evictions in circuit court or district court without posting bond for any noncompliance by the tenant with the rental agreement.
   2. If the tenant's noncompliance is willful other than nonpayment of rent, the landlord may recover reasonable attorney's fees, provided the landlord is represented by an attorney.
   3. If the tenant's nonpayment of rent is not in good faith, the landlord is entitled to reasonable attorney's fees, provided the landlord is represented by an attorney.

History. Acts 2007, No. 1004, § 1; 2009, No. 482, § 5.

Amendments. The 2009 amendment subdivided (a), substituted “noncompliance” for “breach” in four places, and made minor stylistic changes.

18-17-702. Noncompliance affecting health and safety.

1. 1. If there is noncompliance by the tenant with § 18-17-601 materially affecting health and safety that may be remedied by repair, replacement of a damaged item, or cleaning, and the tenant fails to comply as promptly as conditions require in case of emergency or within fourteen (14) days after written notice by the landlord specifying the noncompliance and requesting that the tenant remedy it within that period of time, the landlord may enter the dwelling unit and cause the work to be done in a workmanlike manner.
   2. The tenant shall reimburse the landlord for the cost of the work.
   3. In addition, the landlord shall have the remedies available under this chapter.
2. If there is noncompliance by the tenant with this chapter materially affecting health and safety other than as stated in subsection (a) of this section, and the tenant fails to comply as promptly as conditions require in case of emergency or within fourteen (14) days after written notice by the landlord if it is not an emergency, specifying the noncompliance and requesting that the tenant remedy within that period of time, the landlord may terminate the rental agreement.

History. Acts 2007, No. 1004, § 1; 2009, No. 482, § 6.

Amendments. The 2009 amendment subdivided (a); substituted “noncompliance” for “breach” in (a)(1) and (b); substituted “this chapter” for “this subchapter” in (b); and made related and minor punctuation changes

18-17-703. Remedy after termination.

If the rental agreement is terminated, the landlord has a right to possession and for rent and a separate claim for actual damages for breach of the rental agreement and reasonable attorney's fees.

History. Acts 2007, No. 1004, § 1.

18-17-704. Periodic tenancy — Holdover remedies.

1. The landlord or the tenant may terminate a week-to-week tenancy by a written notice given to the other at least seven (7) days before the termination date specified in the notice.
2. The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty (30) days before the termination date specified in the notice.
3. 1. If the tenant remains in possession without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession.
   2. If the holdover is not in good faith, the landlord may recover reasonable attorney's fees.
   3. If the tenant's holdover is a willful violation of the provisions of this chapter or the rental agreement, the landlord may also recover an amount not more than three (3) months periodic rent or twice the actual damages sustained by him or her, whichever is greater and reasonable attorney's fees.
   4. If the landlord consents to the tenant's continued occupancy, § 18-17-401(c) applies.

History. Acts 2007, No. 1004, § 1.

18-17-705. Landlord remedies for refusal of access to rental property.

1. If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief in district court without posting bond to compel access or terminate the rental agreement.
2. In either case the landlord may recover actual damages and reasonable attorney's fees.

History. Acts 2007, No. 1004, § 1.

18-17-706. Payment of rent into court.

In any action in which the landlord sues for possession and the tenant raises defenses or counterclaims under this chapter or the rental agreement:

1. 1. 1. The tenant shall pay the landlord all rent that becomes due after the issuance of a written order requiring the tenant to vacate or show cause as rent becomes due.
      2. The landlord shall provide the tenant with a written receipt for each payment except when the tenant pays by check.
   2. Rent shall not be abated for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his or her family, or other person on the premises with his or her permission or who is allowed access to the premises by the tenant;
2. The tenant shall pay the landlord all rent allegedly owed before the issuance of the order, provided that in lieu of the payment the tenant may be allowed to submit to the court a receipt or cancelled check, or both, indicating that payment has been made to the landlord;
3. 1. Should the tenant not appear and show cause within ten (10) days, the court shall issue a writ of possession under this subchapter.
   2. 1. Should the tenant appear in response to the order and allege that rent due under subdivision (1) or (2) of this section has been paid, the court shall determine the issue.
      2. If the tenant has failed to comply with subdivision (1) or (2) of this section, the court shall issue a writ of possession and the landlord shall be placed in full possession of the premises by the sheriff; and
4. 1. If the amount of rent due is found at final adjudication to be less than alleged by the landlord, judgment shall be entered for the amount found due to the landlord.
   2. If the court finds at final adjudication that no rent is due and no damages are due the landlord, judgment shall be entered for the tenant.

History. Acts 2007, No. 1004, § 1; 2009, No. 311, § 1; 2009, No. 482, § 7.

Amendments. The 2009 amendment by No. 311 inserted (1)(A)(ii) and (4)(B) and redesignated the remaining subdivisions accordingly; substituted “order” for “rule” in (1)(A)(i), (2), and (3)(B)(i); substituted “writ of possession” for “warrant of ejectment” in (3)(A) and (3)(B)(ii); deleted “deputy, or constable” following “sheriff” in (3)(B)(ii); substituted “amount found due to the landlord” for “tenant if he or she has complied fully with the provisions of this section” in (4)(A); and made related and minor stylistic changes.

The 2009 amendment by No. 482 substituted “order” for “rule” in (1)(A), (2), (3)(A) and (3)(B)(i); and made minor stylistic changes throughout.