Subtitle 1. General Provisions

Chapter 1 General Provisions

18-1-101. Lien holder form.

    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.
  1. 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.
  2. 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.
  3. 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.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.

Chapter 2 Commutation of Interests

Publisher's Notes. Acts 1981, No. 350, § 8 provided in part that all interests in property commuted prior to July 1, 1981, would not in any manner be disturbed or reopened because of the passage of the act.

Effective Dates. Acts 1981, No. 350, § 8: effective as to all decrees ordering commutation issued on or after July 1, 1981.

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.

Research References

U. Ark. Little Rock L.J.

Tyler, Survey of Business Law, 3 U. Ark. Little Rock L.J. 149.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

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.

Case Notes

Marital Deduction.

Where on payment to the widow of her commuted dower and homestead, the heirs at law became unconditionally entitled to the fee in their father's lands, the present cash value of the widow's commuted life interest in real estate qualified for the marital deduction under 26 U.S.C. § 2056. Mauldin v. United States, 468 F. Supp. 422 (E.D. Ark. 1979) (decision under prior law).

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.

Research References

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Expert Witnesses.

Where the court's finding was in accordance with former section regarding life expectancy tables and was the result which the court clearly intended, the fact that the court mistakenly regarded expert witness as in agreement with former section did not require reversal of a judgment entered in favor of the decedent's heirs. Martin v. United States, 586 F.2d 1206 (8th Cir. 1978) (decision under prior law).

Life Expectancy.

According to the actuarial tables in this section, the wife had an average remaining life expectancy of approximately 26 years, but it would take over 26 years for the husband to pay the wife the amount she was due, and it was unclear whether the parties would live long enough for the wife to receive all of her share of the marital property; if the circuit court was attempting to have the husband pay the wife for her share, it should have stood by its order to have the husband provide some form of security such as a life insurance policy with the wife as the beneficiary, or a bond. Farrell v. Farrell, 2014 Ark. App. 601 (2014).

Cited: Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990).

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.

Chapter 3 Uniform Statutory Rule Against Perpetuities

Effective Dates. Acts 2007, No. 240, § 5: Mar. 9, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the current extremely harsh remedy under the rule against perpetuities that renders a grantor's entire grant void if the grant violates the rule is outdated and should be replaced; that the common law rule fosters litigation at great cost to the citizens of this state because of its many complexities, with often devastating consequences to estates; and that the revision by this act of the common law remedy to permit the likely occurrence that a grant will vest or to permit a court to reform a grant that does not vest in the manner that most likely approximate the transferor's manifested plan is immediately necessary for the good of the citizens of this state. 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.”

18-3-101. 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.

Research References

ALR.

Lease Renewal Provision as Violating Rule Against Perpetuities or Restraints on Alienation. 99 A.L.R.6th 591 (2014).

U. Ark. Little Rock L. Rev.

Fifty-one Flowers: Post-Perpetuities War Law and Arkansas's Adoption of USRAP, 29 U. Ark. Little Rock L. Rev. 411.

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
    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.

18-3-109. Supercession of common law.

Chapter 4 Miscellaneous Ownership Rights

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.

Chapters 5-9 [Reserved.]

[Reserved]

Subchapter 2 — Arkansas Slayer Law

Subtitle 2. Real Property

Chapter 10 General Provisions

[Reserved]

Chapter 11 Real Property Interests Generally

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”.

Research References

ALR.

State regulation of land ownership by alien corporation. 21 A.L.R.4th 1329.

Identification of land, presumptions and evidence respecting land on which property taxes were paid to establish adverse possession. 36 A.L.R.4th 843.

Gathering of natural crop, or cutting of timber by record owner as defeating exclusiveness or continuity of possession by one claiming title by adverse possession. 39 A.L.R.4th 1148.

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.

Research References

Ark. L. Rev.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Case Notes

In General.

Under this section aliens may take and transmit land by inheritance or otherwise, and they could at common law take by purchase which includes every other mode of acquiring property as distinguished from descent, and includes acquisition by devise. Jones v. Minogue, 29 Ark. 637 (1874).

Dower.

The widow of an alien may take dower. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844).

Homestead Exemption.

An alien domiciled in this state, being a householder, is entitled to the exemption of his homestead from sale on execution. McKenzie v. Murphy, 24 Ark. 155 (1865).

Title by Prescription.

Aliens may acquire land by virtue of the statute of limitations. Price v. Greer, 89 Ark. 300, 116 S.W. 676, 118 S.W. 1009 (1909).

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.

Research References

Ark. L. Rev.

Tax Forfeiture Problems in the Examination of Abstracts, 12 Ark. L. Rev. 333.

Color of Title and Payment of Taxes: The New Requirements Under Arkansas Adverse Possession Law, 50 Ark. L. Rev. 489.

U. Ark. Little Rock L.J.

Notes, Property — Notice to Mortgagees in Tax Sales, 7 U. Ark. Little Rock L.J. 437.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Property Law, 25 U. Ark. Little Rock L. Rev. 1025.

Lynn Foster & J. Cliff McKinney, II, Adverse Possession and Boundary by Acquiescence in Arkansas: Some Suggestions for Reform, 33 U. Ark. Little Rock L. Rev. 199 (2011).

Case Notes

Constitutionality.

The statute is valid. Cottonwood Lumber Co. v. Hardin, 78 Ark. 95, 92 S.W. 1118 (1906), aff'd, 207 U.S. 580, 28 S. Ct. 258, 52 L. Ed. 350 (1907).

Construction.

This section must be construed in connection with the saving clause in § 18-61-101. Taylor v. Leonard, 94 Ark. 122, 126 S.W. 387 (1910); Deane v. Moore, 105 Ark. 309, 151 S.W. 286 (1912); Brasher v. Taylor, 109 Ark. 281, 159 S.W. 1120 (1913).

This section, when coupled with § 18-61-101, works to invest title in one who has paid taxes on wild and unenclosed lands for a period in excess of seven years. Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986).

Purpose.

The purpose of this section was to encourage the payment of taxes and to protect persons who pay them. Schmeltzer v. Scheid, 203 Ark. 274, 157 S.W.2d 193 (1941).

Purpose of legislature was to encourage payment of taxes, hence rights under the section are not restricted to sales made by tax collection authorities. Buckner v. Sewell, 216 Ark. 221, 225 S.W.2d 525 (1949).

Applicability.

Where owner of land conveyed a timber deed to timber owner who recorded his deed and the same owner conveyed a warranty deed to landowner for same parcel who then recorded her deed, the landowner could not adversely possess the timber estate merely by paying taxes on unimproved land for approximately 20 years and this section was inapplicable. Bonds v. Carter, 348 Ark. 591, 75 S.W.3d 192 (2002).

Acquisition of Title.

Payment of taxes on wild, unimproved land, under color of title, for the statutory period confers title by limitations. Towson v. Denson, 74 Ark. 302, 86 S.W. 661 (1905); Paragould Abstract & Real Estate Co. v. Coffman, 100 Ark. 582, 140 S.W. 730 (1911); Reynolds v. Snyder, 121 Ark. 33, 180 S.W. 752 (1915); Buckner v. Sewell, 216 Ark. 221, 225 S.W.2d 525 (1949); Beshea v. Vlazny, 228 Ark. 559, 309 S.W.2d 28 (1958); Greif Bros. Cooperage Corp. v. United States Gypsum Co., 341 F.2d 167 (8th Cir. 1965).

Payment of taxes held to have vested title in taxpayer. Paragould Abstract & Real Estate Co. v. Coffman, 100 Ark. 582, 140 S.W. 730 (1911); McFarlane v. Morgan, 157 Ark. 97, 248 S.W. 257 (1923); Bryant v. Chicago Mill & Lumber Co., 120 F. Supp. 463 (E.D. Ark.), aff'd, 216 F.2d 727 (8th Cir. 1954); Laney v. Monsanto Chem. Co., 233 Ark. 645, 348 S.W.2d 826 (1961); Clark v. Dillard, 233 Ark. 760, 346 S.W.2d 684 (1961); Dierks Forests, Inc. v. Garrett, 242 Ark. 223, 412 S.W.2d 849 (1967).

Payment of taxes on portion of tract vested taxpayer with the title to the portion of the tract on which he paid taxes for the statutory period. Wells v. Rock Island Imp. Co., 110 Ark. 534, 162 S.W. 572 (1913).

Payment of taxes on wild lands for a portion of the seven-year period may be joined to actual adverse possession for the remainder of the period so as to give title by limitation. Miller v. Chicago Mill & Lumber Co., 140 Ark. 639, 215 S.W. 900 (1919).

To acquire title to land by the payment of taxes for seven years, the land must be subject to taxation during all that period. Kelley Trust Co. v. Lundell Land & Lumber Co., 159 Ark. 218, 251 S.W. 680 (1923).

Both this section and § 18-11-103 contemplate that another person has the original paper title. Schmeltzer v. Scheid, 203 Ark. 274, 157 S.W.2d 193 (1941).

In suit to quiet title where deed to one party was shown to be a forgery and other party under color of title had paid taxes on the land admitted to be wild and unimproved, party holding forged deed had no title to be quieted and judgment in favor of party which had paid the taxes was affirmed. Coulter v. Clemons, 237 Ark. 227, 372 S.W.2d 396 (1963).

The purchaser of the land was not entitled to have his title confirmed by actual physical possession of the property for more than seven years, where there was evidence that he had only been on the property four or five times during the seven-year period and his other acts of possession were merely fitful, and it was stipulated by the parties that the property was wild and unimproved and not occupied by anyone. Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986).

Actual Adverse Possession.

This section does not require the party claiming adverse possession under this section to show actual adverse possession. Jones v. Barger, 67 Ark. App. 337, 1 S.W.3d 31 (1999).

Color of Title.

A contract for the purchase of land does not constitute color of title. Willm v. Dedman, 172 Ark. 783, 290 S.W. 361 (1927).

A trustee's deed whether valid, void, or voidable, is color of title, unless facts in avoidance appear on face of deed. Buckner v. Sewell, 216 Ark. 221, 225 S.W.2d 525 (1949).

A void deed from the State Land Commissioner constitutes color of title so that grantee thereon who paid taxes on unimproved, unenclosed land for seven consecutive years acquired valid title by adverse possession. Fuller v. Terrill, 226 Ark. 1040, 295 S.W.2d 625 (1956).

A redemption of tax-forfeited land does not in itself constitute color of title. Rinke v. Weedman, 232 Ark. 900, 341 S.W.2d 44 (1960).

Color of title is not created by a deed from a man to himself and his wife made for the express purpose of creating color of title. Weast v. Hereinafter Described Lands, 33 Ark. App. 157, 803 S.W.2d 565 (1991).

Judgment ruling that appellant did not own any property on the northeast bank of the river where it flowed by appellees' lots and finding that appellant failed to establish adverse possession was affirmed; appellant's payment of taxes was irrelevant because appellant did not have color of title to the land in dispute. Rio Vista, Inc. v. Miles, 2010 Ark. App. 190, 374 S.W.3d 698 (2010).

—Tax Sales.

A certificate of purchase at tax sale is not color of title. Townsend v. Penrose, 84 Ark. 316, 105 S.W. 588 (1907); Thorne v. Magness, 34 Ark. App. 39, 805 S.W.2d 95 (1991).

Tax sale deed from the state constituted color of title so as to give good title to the land by adverse possession under color of title. Pinkert v. Williamson, 225 Ark. 834, 287 S.W.2d 8 (1956); Rinke v. Weedman, 232 Ark. 900, 341 S.W.2d 44 (1960); Clark v. Dillard, 233 Ark. 760, 346 S.W.2d 684 (1961).

A tax deed containing an indefinite description does not constitute color of title. Darr v. Lambert, 228 Ark. 16, 305 S.W.2d 333 (1957).

Tax deed void because tax sale was void nevertheless constituted color of title. Rinke v. Weedman, 232 Ark. 900, 341 S.W.2d 44 (1960).

Tax deed containing invalid description of property did not constitute color of title so as to give party constructive possession by the payment of taxes which would ripen into ownership in seven years. Glover v. Walter, 252 Ark. 1293, 483 S.W.2d 713 (1972).

Description of Property.

Title could not be acquired under this section when the claimant's deed was void for indefiniteness of description of the lands conveyed. Charles v. Pierce, 238 Ark. 22, 378 S.W.2d 213 (1964).

Where description on tax records was valid, taxpayer's claim ripened into good title under this section even though description in deed was defective. Dierks Forests, Inc. v. Garrett, 242 Ark. 223, 412 S.W.2d 849 (1967).

Title under this section was not established where records of tax payment contained descriptions too indefinite to identify the land upon which taxes were paid. Corn v. Ark. Whse. Corp., 243 Ark. 130, 419 S.W.2d 316 (1967).

Where description of land on which taxes are paid is indefinite and does not serve to fix geographic location, this section does not apply. Greif Bros. Cooperage Corp. v. United States Gypsum Co., 341 F.2d 167 (8th Cir. 1965).

Evidence.

The appellants were entitled to have the chancery court quiet title to certain property where (1) the parties agreed that the property was wild and unimproved, (2) the appellants had color of title pursuant to a warranty deed, notwithstanding that the appellee claimed that his chain of title was superior, and (3) the appellants and their predecessors paid taxes on the property for over 30 years. Jones v. Barger, 67 Ark. App. 337, 1 S.W.3d 31 (1999).

Foreign Corporations.

A foreign corporation with no agent in the state is entitled to the benefit of this section. Rachels v. Stecher Cooperage Works, 95 Ark. 6, 128 S.W. 348 (1910).

Method of Taxation.

The assessment and taxation by sections or sectional quarters and accretions is good and sufficient to bring into operation this section absent a severance of the accretions or relictions by platting and extending the sectional, township, and range lines. United States Gypsum Co. v. Greif Bros. Cooperage Corp., 389 F.2d 252 (8th Cir. 1968).

Military Personnel.

Where soldier's right to redeem from tax sale was saved by the federal Soldiers' and Sailors' Civil Relief Act of 1940, that right could not be defeated by possession and payment of taxes. Hedrick v. Bigby, 228 Ark. 40, 305 S.W.2d 674 (1957).

Mineral Rights.

Owner of the surface did not acquire title to the severed mineral estate in wild and unimproved lands by the payment of taxes for seven successive years. Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390 (1929).

It is a primary requirement that the adverse claimant pay taxes on the claimed property for full seven years; consequently, where there was failure to pay on a severed mineral interest (although payments were made on the land and unsevered portion of the minerals), the dominant estate claimant did not acquire title. Jones v. Brown, 211 Ark. 164, 199 S.W.2d 973 (1947).

Payment of taxes on wild and unimproved land did not cover minerals since minerals within the earth are not susceptible of enclosure. Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949).

Possession of surface of wild and unimproved land is not adverse to owner of constructively severed minerals in land. Consequently, payment of general taxes by grantees of wild and unimproved land and of minerals therein did not, as against their grantor, to whom they subsequently reconveyed severed minerals, constitute adverse possession of such minerals. Buckner v. Wright, 218 Ark. 448, 236 S.W.2d 720 (1951).

Where mineral interest was severed prior to the time that payments commenced, tax payments would not be deemed to cover such severed mineral interest. Laney v. Monsanto Chem. Co., 233 Ark. 645, 348 S.W.2d 826 (1961); Burbridge v. Rosen, 240 Ark. 500, 400 S.W.2d 502 (1966).

Where holders of color of title to mineral interests are not in a position of hostility toward one another, each claimant can reap the benefit of tax payments made by any one of the others. Burbridge v. Rosen, 240 Ark. 500, 400 S.W.2d 502 (1966).

Where defendant obtained tax deed to mineral interest and paid taxes subsequent thereto, she did not gain color of title to the mineral interest since she never took actual possession of the minerals by opening and operating mines as required to claim adverse possession of mineral rights. Garvan v. Potlatch Corp., 278 Ark. 414, 645 S.W.2d 957 (1983). See also Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992).

Two estates, when once separated, remain independent, and title to the mineral rights can never be acquired by merely holding and claiming the land, even though the landowner also asserts title in the minerals at the same time; the only way the statute of limitation can be asserted against the owner of the mineral rights or estate is for the owner of the surface estate or some other person to take actual possession of the minerals by opening mines and operating the same for the statutory period. Bonds v. Carter, 348 Ark. 591, 75 S.W.3d 192 (2002).

Nature of Land.

This section does not apply to lands fenced or in cultivation. Wheeler v. Foote, 80 Ark. 435, 97 S.W. 447 (1906); Fenton v. Collum, 104 Ark. 624, 150 S.W. 140 (1912); Davis v. Grobmyer, 132 Ark. 11, 199 S.W. 917 (1917); Dill v. Snodgress, 213 Ark. 526, 211 S.W.2d 440 (1948); Phillips v. Michel, 217 Ark. 865, 233 S.W.2d 551 (1950).

Title by adverse possession of wild and unoccupied land is not acquired by payment of taxes for seven consecutive years where the land is not unoccupied during the entire statutory period. Alphin v. Blackmon, 180 Ark. 260, 21 S.W.2d 426 (1929).

Payment of taxes on land not “unimproved and unenclosed” does not constitute constructive possession thereof within the meaning of this section. Etchison v. Dail, 182 Ark. 350, 31 S.W.2d 426 (1930).

The words “unimproved” and “unenclosed” and the word “wild” have been used interchangeably and both this section and § 18-11-103 apply to urban as well as rural unoccupied, wild, or unenclosed land. Schmeltzer v. Scheid, 203 Ark. 274, 157 S.W.2d 193 (1941).

The land paid on must be wild, unoccupied, unenclosed and unimproved during all the time the payments are being made. Schmeltzer v. Scheid, 203 Ark. 274, 157 S.W.2d 193 (1941).

Title to land not acquired by payment of taxes where land was not unenclosed and unimproved. Sturgis v. Hughes, 206 Ark. 946, 178 S.W.2d 236 (1944); Dill v. Snodgress, 213 Ark. 526, 211 S.W.2d 440 (1948); Phillips v. Michel, 217 Ark. 865, 233 S.W.2d 551 (1950); Wimberly v. Norman, 221 Ark. 319, 253 S.W.2d 222 (1952); Weston v. Hilliard, 232 Ark. 535, 338 S.W.2d 926 (1960); United States v. 738.75 Acres of Land, 263 F. Supp. 608 (E.D. Ark. 1967); Harrison v. Collins, 247 Ark. 210, 444 S.W.2d 861 (1969); Schuman v. Martin, 259 Ark. 4, 531 S.W.2d 26 (1975).

Allegation that the lands were “wild” would normally bring them within the purview of this section and § 18-11-103. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971).

Payment.

A redemption from tax sale is not a payment of taxes under this section. Wyse v. Johnston, 83 Ark. 520, 104 S.W. 204 (1907); Walsh v. Certain Lands, 209 Ark. 320, 190 S.W.2d 447 (1945).

The tax may be paid in a county other than that in which the lands lie. Stout Lumber Co. v. Treadwell, 165 Ark. 138, 263 S.W. 51 (1924).

Payments must be made by persons in the line of title while they claim title. France v. Butcher, 165 Ark. 312, 264 S.W. 931 (1924).

Payment of taxes for seven years by one co-tenant is not equivalent to actual possession so as to ripen into title by adverse possession as against other co-tenants. Seawood v. Ozan Lumber Co., 221 Ark. 196, 252 S.W.2d 829 (1952).

Plaintiffs who had color of title must prove who actually paid the taxes and mere evidence of assessment in their name was insufficient. Horn v. Blaney, 268 Ark. 885, 597 S.W.2d 109 (Ct. App. 1980).

Possession.

Under this section, payment of taxes is equivalent to possession and actual possession by the defendant is not an indispensable prerequisite to the right of a party to bring an ejectment suit against him. Brasher v. Taylor, 109 Ark. 281, 159 S.W. 1120 (1913).

Payment of taxes for more than seven years in succession on unenclosed and unimproved lands confers title, and constructive possession follows the title, and can only be defeated by actual possession adverse thereto. Union Sawmill Co. v. Pagan, 175 Ark. 559, 299 S.W. 1012 (1927).

The collection of rentals for the use of unenclosed lands is sufficient evidence of actual possession which will interrupt the constructive possession created through the payment of taxes under this section. Hubble v. Grimes, 211 Ark. 49, 199 S.W.2d 313 (1947).

Holder of deed to whole tract who lived on part of tract, but who did not cultivate the other part which reverted to wild and unimproved land was not entitled to the other part by adverse possession as against holder of tax title who paid taxes for a period in excess of statutory period. Wimberly v. Norman, 221 Ark. 319, 253 S.W.2d 222 (1952).

The rule that constructive possession of wild and unimproved lands was usually deemed to be in the holder of legal title but where neither party had actual possession, constructive possession was deemed to be in the holder of superior title applied where the lands were wild and unimproved unless the holder of an inferior title had continuously paid the taxes for statutory period. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971).

This section and § 18-11-103 were not applicable where two or more parties had adverse constructive possession. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971).

Where property was returned to its natural state by 1953 and ceased to be enclosed by 1973, and defendant, under color of title, made payment of taxes on the land for more than seven years thereafter, the defendant's legal title had been reacquired by adverse possession from the plaintiffs who had previously acquired it through adverse possession. Appollos v. International Paper Co., 34 Ark. App. 205, 808 S.W.2d 786 (1991).

Trial court's conclusions that an adjoining landowner claimed land as its own and that it was the owner of the land by adverse possession were not erroneous because a witness's affidavit established that, since the early 1900s, the adjoining landowner paid taxes on the land, harvested timber, maintained boundary lines, leased the land, and restricted access to the land; no one ever claimed ownership of the property or objected to any of the acts or dominion of the adjoining landowner until a property owner filed his quiet title complaint. Dye v. Anderson Tully Co., 2011 Ark. App. 503, 385 S.W.3d 342 (2011).

Running of Statutory Period.

One who has, under color of title, paid the taxes on wild and unimproved land for six years consecutively has no right, as against the owner of the land, to enjoin the latter from paying the taxes for the seventh year in order that the former might acquire a title by seven years' payment of taxes. McCastlain v. Wylie, 139 Ark. 326, 213 S.W. 743 (1919).

This section is not a statute of limitations, but only makes the payment of taxes under the conditions named in the section a constructive possession, and it is only by applying thereto the general statute of limitations that such possession can ripen into a title by limitation. Southern Lumber Co. v. Ark. Lumber Co., 176 Ark. 906, 4 S.W.2d 928 (1928); Hubble v. Grimes, 211 Ark. 49, 199 S.W.2d 313 (1947); Coulter v. Anthony, 228 Ark. 192, 308 S.W.2d 445 (1957), appeal dismissed and cert. denied, Coulter v. Anthony, 358 U.S. 73, 79 S. Ct. 153, 3 L. Ed. 2d 118 (1958).

Statutory period for payment of taxes runs from date of first payment. Edge v. Buschow Lumber Co., 218 Ark. 903, 239 S.W.2d 597 (1951).

—Actions by Original Owner.

Payment of taxes for seven years is insufficient if the owner brings suit before the expiration of seven years from the date of the first payment. Updegraff v. Marked Tree Lumber Co., 83 Ark. 154, 103 S.W. 606 (1907); Bradley Lumber Co. v. Langford, 109 Ark. 594, 160 S.W. 866 (1913).

In order to bar a suit to remove a cloud on the title to wild and unimproved land by laches, a purchaser under a void tax title and his privies must have, prior to the commencement of the suit, paid the taxes upon the land under color of title for at least seven years. Tatum v. Arkansas Lumber Co., 103 Ark. 251, 146 S.W. 135 (1912).

The failure to pay taxes on unimproved lands for a long period of time, together with increased value of land constitutes an abandonment and an action seeking equitable relief against one who has paid taxes under those circumstances for more than statutory period is barred by laches. McGill v. Adams, 120 Ark. 249, 179 S.W. 489 (1915); Wimberly v. Norman, 221 Ark. 319, 253 S.W.2d 222 (1952).

The title to unimproved and unenclosed land will not be barred by the payment of taxes thereon by one claiming under color of title for a period of less than seven consecutive years, and such continuity is broken where the owner brings suit for the land within seven years from the date of the first payment. Slaughter v. Cornie Stave Co., 172 Ark. 952, 291 S.W. 69 (1927).

One claiming the fee simple under a deed from the life tenant did not take title adverse to the remainderman until the death of the life tenant and ejectment suit brought within the statutory period after life tenant's death was not barred by the statute of limitations. Bradley Lumber Co. v. Burbridge, 213 Ark. 165, 210 S.W.2d 284 (1948).

Decree in favor of assignee from adverse possessor who paid taxes on property for seven years affirmed under seven year statute of limitations, and laches in suit by original grantor of property. Buckner v. Sewell, 216 Ark. 221, 225 S.W.2d 525 (1949).

—Persons Under Disabilities.

This section does not run against infants or persons non compos mentis. Deane v. Moore, 105 Ark. 309, 151 S.W. 286 (1912).

Acquisition of land by payment of taxes under color of title for more than seven years under this section did not bar redemption of land from void tax sale by heirs of incompetent under authority of § 26-37-305. Rinke v. Schuman, 246 Ark. 976, 440 S.W.2d 765 (1969).

Cited: Brandon v. Parker, 124 Ark. 379, 187 S.W. 312 (1916); Koonce v. Woods, 211 Ark. 440, 201 S.W.2d 748 (1947); Zackery v. Warmack, 213 Ark. 808, 212 S.W.2d 706 (1948); Dierks Lumber & Coal Co. v. Vaughn, 131 F. Supp. 219 (E.D. Ark. 1954); Ball v. Messmore, 226 Ark. 256, 289 S.W.2d 183 (1956); Baker v. Certain Lands, 19 Ark. App. 253, 720 S.W.2d 318 (1986).

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.

Research References

Ark. L. Rev.

Tax Forfeiture Problems in the Examination of Abstracts, 12 Ark. L. Rev. 333.

U. Ark. Little Rock L. Rev.

Lynn Foster & J. Cliff McKinney, II, Adverse Possession and Boundary by Acquiescence in Arkansas: Some Suggestions for Reform, 33 U. Ark. Little Rock L. Rev. 199 (2011).

Case Notes

Applicability.

This statute was held not available to landowner claiming adjoining land where evidence showed he had not been in possession of disputed land for statutory period and had never paid any taxes on the land. Wallace v. Snow, 197 Ark. 632, 124 S.W.2d 209 (1939).

Description.

Where tract of wild unimproved land was deeded to school district under a faulty description, and land was sold for taxes to defendants under same faulty description who paid taxes on land for period longer than the statutory period, defendants acquired title to land by virtue of payment of taxes. Junction City Special Sch. Dist. No. 75 v. Whiddon, 220 Ark. 530, 249 S.W.2d 990 (1952).

An indefinite tax deed did not provide color of title. Darr v. Lambert, 228 Ark. 16, 305 S.W.2d 333 (1957).

Where a claimant's title was defective because of inadequate description in his deed but it was apparent he was claiming title to all of the tract that remained after a prior deed which specifically described the part conveyed, he obtained color of title by paying the taxes on the land for a period longer than the statutory period. Charles v. Pierce, 238 Ark. 22, 378 S.W.2d 213 (1964).

Where parts of a tract were conveyed with indefinite descriptions, the conveyances could not convey color of title even though taxes had been paid by holder and predecessors for more than statutory period, and fact that both portions were later acquired by the same person under such indefinite descriptions and he then paid taxes on the entire tract was of no avail where the period during which he held the entire tract was less than statutory period. Charles v. Pierce, 238 Ark. 22, 378 S.W.2d 213 (1964).

Title under this section was not established where records of tax payment contained descriptions too indefinite to identify the land upon which taxes were paid. Corn v. Ark. Whse. Corp., 243 Ark. 130, 419 S.W.2d 316 (1967).

Where description of land on which taxes are paid is indefinite and does not serve to fix geographic location, this section does not apply. Greif Bros. Cooperage Corp. v. United States Gypsum Co., 341 F.2d 167 (8th Cir. 1965).

Method of Taxation.

The assessment and taxation by sections or sectional quarters and accretions is good and sufficient to bring into operation this section absent a severance of the accretions or relictions by platting and extending the sectional, township, and range lines. United States Gypsum Co. v. Greif Bros. Cooperage Corp., 389 F.2d 252 (8th Cir. 1968).

Mineral Interests.

Where defendant obtained tax deed to mineral interest and paid taxes subsequent thereto, she did not gain color of title to the mineral interest since she never took actual possession of the minerals by opening and operating mines as required to claim adverse possession of mineral rights. Garvan v. Potlatch Corp., 278 Ark. 414, 645 S.W.2d 957 (1983). See also Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992).

Nature of Lands.

The words “unimproved” and “unenclosed” and the word “wild” have been used interchangeably and both this section and § 18-11-102 apply to urban as well as rural unoccupied, wild, or unenclosed land. Schmeltzer v. Scheid, 203 Ark. 274, 157 S.W.2d 193 (1941).

No color of title created under this section where lands were enclosed or improved. Phillips v. Michel, 217 Ark. 865, 233 S.W.2d 551 (1950); United States v. 738.75 Acres of Land, 263 F. Supp. 608 (E.D. Ark. 1967).

Allegation that lands are “wild” would normally bring them within the purview of this section and § 18-11-102. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971).

Payment.

Where decedent was a trustee of property and paid taxes on the property in his name, his descendants could not claim the land by adverse possession although they had continued to pay the taxes after his death. Rolfe v. French, 254 Ark. 62, 491 S.W.2d 383 (1973).

Where the plaintiffs clearly had color of title to the property which was the subject of this quiet title action, the decree quieting title in the plaintiffs should not have been entered on the mere evidence that the property was assessed in the name of the plaintiffs, and the court should have required the plaintiffs to prove who actually paid the taxes from 1950 to 1978. Horn v. Blaney, 268 Ark. 885, 597 S.W.2d 109 (Ct. App. 1980).

Possession.

This section and § 18-11-102 were not applicable where two or more parties had adverse constructive possession. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971).

The rule that constructive possession of wild and unimproved lands was usually deemed to be in the holder of legal title but where neither party had actual possession, constructive possession was deemed to be in the holder of superior title applied where the lands were wild and unimproved unless the holder of an inferior title had continuously paid the taxes for statutory period. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971).

Paying taxes on wild and unimproved land not only gives a claimant color of title, but constructive possession as well. Hunter v. Robertson, 73 Ark. App. 178, 40 S.W.3d 337 (2001).

Trial court's conclusions that an adjoining landowner claimed land as its own and that it was the owner of the land by adverse possession were not erroneous because a witness's affidavit established that, since the early 1900s, the adjoining landowner paid taxes on the land, harvested timber, maintained boundary lines, leased the land, and restricted access to the land; no one ever claimed ownership of the property or objected to any of the acts or dominion of the adjoining landowner until a property owner filed his quiet title complaint. Dye v. Anderson Tully Co., 2011 Ark. App. 503, 385 S.W.3d 342 (2011).

Reversion.

Land which was transferred by the state to the Game and Fish Commission pursuant to § 15-41-109 reverted to the state where the lands were not developed during the first two years after the commission received its title, and the taxpayer who paid taxes on the land for more than 15 years in unbroken succession redeemed the property. Baker v. Certain Lands, 19 Ark. App. 253, 720 S.W.2d 318 (1986).

Tax-Exempt Property.

Parties who claimed adverse possession of property did not satisfy the requirements of this section where they and their predecessors paid ad valorem taxes on the property for 13 years and, before that, the property was tax-exempt; the period that the property was tax-exempt did not tack with the 13 years for which taxes were paid, as payment of taxes involves positive action by a claimant and serves as constructive notice to the true owner of the action through the recording of the payment in the collector's office. Hunter v. Robertson, 73 Ark. App. 178, 40 S.W.3d 337 (2001).

Title.

Where the defendant has paid taxes on wild land belonging to the plaintiff for four years under an invalid quitclaim deed, the plaintiff is entitled to have his title quieted, since the defendant's payment of taxes under such color of title would in time ripen into title. Fletcher v. Malone, 145 Ark. 211, 224 S.W. 629 (1920).

Both this section and § 18-11-102 contemplate that another person has the original paper title. Schmeltzer v. Scheid, 203 Ark. 274, 157 S.W.2d 193 (1941).

Title properly vests under this section when payment of taxes incident to valid description is made for statutory period. Greif Bros. Cooperage Corp. v. United States Gypsum Co., 341 F.2d 167 (8th Cir. 1965).

—Presumption of Color of Title.

Payment of taxes held to raise legal presumption of color of title prior to first payment. Burbridge v. Smyrna Baptist Church, 212 Ark. 924, 209 S.W.2d 685 (1948); Bryant v. Chicago Mill & Lumber Co., 120 F. Supp. 463 (E.D. Ark.), aff'd, 216 F.2d 727 (8th Cir. 1954); Wheeler v. Ayers, 253 Ark. 427, 486 S.W.2d 527 (1972).

Bona fide purchasers of land by presumption of law have title where they are in possession and they or their predecessors in title have paid taxes for more than statutory period on such wild, unimproved tracts. Coulter v. O'Kelly, 226 Ark. 836, 295 S.W.2d 753 (1956); Baker v. Certain Lands, 19 Ark. App. 253, 720 S.W.2d 318 (1986).

Cited: Koonce v. Woods, 211 Ark. 440, 201 S.W.2d 748 (1947); Bradley Lumber Co. v. Burbridge, 213 Ark. 165, 210 S.W.2d 284 (1948); Dierks Lumber & Coal Co. v. Vaughn, 131 F. Supp. 219 (E.D. Ark. 1954); Schuman v. Martin, 259 Ark. 4, 531 S.W.2d 26 (1975).

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
        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.
        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.
    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. 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
    1. 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.
    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.
  2. The requirements of this section are in addition to all other requirements for establishing adverse possession.
    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.

Research References

Ark. L. Rev.

Color of Title and Payment of Taxes: The New Requirements Under Arkansas Adverse Possession Law, 50 Ark. L. Rev. 489.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Property Law, 24 U. Ark. Little Rock L. Rev. 1071.

Survey of Legislation, 2005 Arkansas General Assembly, Property Law, 28 U. Ark. Little Rock L. Rev. 385.

Lynn Foster & J. Cliff McKinney, II, Adverse Possession and Boundary by Acquiescence in Arkansas: Some Suggestions for Reform, 33 U. Ark. Little Rock L. Rev. 199 (2011).

Case Notes

In General.

Although defendant conceded that plaintiff met the requirements of subdivision (a)(2) of this section by paying taxes on said lots for at least seven years, there was insufficient evidence that plaintiff's occupation of the property was exclusive, continuous, notorious, and undertaken with an intent to hold the property as against the true owner and, thus, the trial court erred in finding in plaintiff's favor. Thompson v. Fischer, 364 Ark. 380, 220 S.W.3d 622 (2005).

A property owner had not acquired the disputed property by adverse possession by placing a lamp and benches thereon and by keeping it clear of debris because a church, which previously owned the property, had not been charged with actual or constructive notice that the disputed property was being claimed by the owner, and continued to use the disputed property for its maintenance activities. Follett v. Fitzsimmons, 103 Ark. App. 82, 286 S.W.3d 742 (2008).

Neighbors failed to show adverse use of a landowner's property because they failed to comply with this section by showing payment of taxes and failed to show that their use of the property was notorious, hostile, and exclusive; rather, the use was permissive. The court could not consider property tax receipts submitted along with the neighbors' motion for new trial. Barnett v. Gomance, 2010 Ark. App. 109, 377 S.W.3d 317 (2010).

Judgment ruling that appellant did not own any property on the northeast bank of the river where it flowed by appellees' lots and finding that appellant failed to establish adverse possession was affirmed; appellant's payment of taxes was irrelevant because appellant did not have color of title to the land in dispute. Rio Vista, Inc. v. Miles, 2010 Ark. App. 190, 374 S.W.3d 698 (2010).

Summary judgment was properly awarded to defendant on plaintiff's adverse possession claim because the trial court did not err in finding that plaintiff was required to prove that plaintiff had paid taxes on the property; the amendment to the statute took effect in 1995 and plaintiff's claim of adverse possession had not yet begun to run, let alone vest. Cleary v. Sledge Props., 2010 Ark. App. 755, 379 S.W.3d 680 (2010).

Trial court erred in finding that appellees acquired title to property once owned by appellants by adverse possession because while the evidence showed that appellees paid taxes from 1998 through 2007 on 30.1 acres in two quarter-quarter sections, the records did not show that they paid taxes on the specific piece of property in dispute. Gibbs v. Stiles, 2011 Ark. App. 302, 383 S.W.3d 453 (2011).

Although a landowner did not proffer any documentary evidence that the landowner had paid taxes on an easement area, the parties stipulated that the landowner had paid taxes on the property to which the landowner had record title. This stipulation satisfied the statutory requirement of paying taxes on contiguous property for seven years. Parkerson v. Brown, 2013 Ark. App. 718, 430 S.W.3d 864 (2013).

Trial court incorrectly indicated that a party could not claim under both color of title and as an adverse possessor at the same time; the trial court made no specific findings of fact on the remedy of adverse possession but merely stated that the sister's actions were that of a bona fide purchaser and were inconsistent with an adverse possessor. Therefore, the case was remanded for reconsideration of the adverse possession claim. O'Neal v. Love, 2017 Ark. App. 336, 523 S.W.3d 381 (2017).

After the trial court erroneously found that the claimant's use of the real property was permissive, the court did not consider the remaining adverse-possession factors of whether the claimant's continued possession of the property after the grantor's death became adverse and whether the claimant proved color of title and payment of taxes on the property or contiguous property for seven years; therefore, the case was reversed and remanded for the trial court to reconsider the claimant's adverse-possession and quiet-title claims. Love v. O'Neal, 2018 Ark. App. 543, 564 S.W.3d 546 (2018).

Adverse Possession Not Shown.

Property owners had not established adverse possession of property between the survey line and the old fence because, even after clearing, photographs depicted a fence line intertwined and covered with vines, briars, bushes, and bramble to the point that the fence was not even visible, and the fence was in a thick, overgrown tree line that was invisible from the adjoining landowners' side of the thicket. The fence thus was not sufficient to put the adjoining landowners or their predecessors on notice of adverse possession. Emerson v. Linkinogger, 2011 Ark. App. 234, 382 S.W.3d 806 (2011).

One appellant testified that he owned and paid the taxes on property contiguous to the land in dispute and he was in possession of land lying north of fence through a pond, and further that he cleared and maintained that property, but the evidence supported appellees' position that the use of the property by appellants and their predecessors was permissive prior to a survey being completed, and until that survey was done, there was little evidence that appellees received notice of an adverse use; the finding that appellants did not establish adverse possession was not clearly erroneous. Horton v. Taylor, 2012 Ark. App. 469, 422 S.W.3d 202 (2012).

Order granting the motion to dismiss was affirmed, as the decree quieting title was issued in May 2011, the individual took possession in June 2004, and the requirement of seven years' continuous possession was not met. Chiodini v. Lock, 2014 Ark. App. 219 (2014).

Appellants did not adversely possess the disputed property because appellees had record title to the disputed tract and had paid taxes on it; appellants' surveyor and forestry consultant perceived appellants' fence to be a convenience fence rather than a boundary line; proof that appellants sold timber once could not sustain their adverse possession claim as the logging activity did not occur over seven years before they filed their litigation; and testimony that 20 or more cattle were intermittently run on the disputed property and that two horses were kept on the disputed property after 1995 did not show acts of possession sufficient to put appellees on notice that their land was held under an adverse claim of ownership. Lafferty v. Everett, 2014 Ark. App. 332, 436 S.W.3d 479 (2014).

Adverse Possession Shown.

Appellee proved an adverse possession claim as he showed he began exclusively using a property with hostile intent that was understood by his co-tenants, more than seven years before 1995, and therefore, his claim vested before this section became effective as even though appellee did not live on the property for the entire time since his mother had died, everyone who had lived on the property since that time had done so with appellee's permission, and appellee used the property as his own and threatened his co-tenants. Sutton v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185 (2011).

Conversation appellants claimed to have had with a predecessor in title nearly 20 years after her title had vested by adverse possession did not cast doubt on her title, plus the trial court was not clearly erroneous in failing to find that appellants proved abandonment merely by their evidence that the condition of the property had deteriorated while no one was living on it; the trial court's finding that appellees had proven the necessary elements of adverse possession was not clearly erroneous. Fletcher v. Stewart, 2015 Ark. App. 105, 456 S.W.3d 378 (2015).

Adverse possession was found because the purported owner of real property had notice of the possessor's intent to adversely possess the property as the owner knew that the possessor lived on the property for over 10 years, and the possessor maintained and improved the property and paid taxes and insurance on the property. Moreover, the familial presumption of permission was inapplicable as the parties were more akin to strangers than family; and any title search would have suggested that the possessor had title, or was claiming an interest in the property. O'Neal v. Love, 2020 Ark. App. 40, 593 S.W.3d 39 (2020).

Jurisdiction.

Where a railroad filed an ejectment action against respondents, who occupied its right-of-way, the trial court erred in not dismissing respondents' counterclaim seeking to quiet title in the right-of-way and alleging abandonment and adverse possession; under 49 U.S.C.S. § 10501(b), such claims were exclusively within the jurisdiction of the Surface Transportation Board. Ouachita R.R., Inc. v. Circuit Court, 361 Ark. 333, 206 S.W.3d 811 (2005).

Prescriptive Easement Not Shown.

Trial court did not err in denying the neighbors' claim of a prescriptive easement across an owner's real property because testimony that other persons had occasionally used the road at issue to access the property behind the owner's property for various reasons was not sufficient to show such use was adverse to the owner's interests, the neighbors' use of the owner's driveway did not commence until 2005 and was discontinued in 2010 when the owner put up the pipe fence and a locked gate, which time fell short of the seven-year period required to obtain an easement by prescription. Kelley v. Williams, 2015 Ark. App. 609, 474 S.W.3d 884 (2015).

Prescriptive Easement Shown.

A prescriptive easement may be created over a ditch or waterway and the circuit court did not err by finding that the adjoining landowner proved the elements of a prescriptive easement as to the road and the ditch, despite the ditch being used only when the road flooded; even a member of the appellant hunting club admitted that the adjoining landowner had continuously used the road and “regularly” used the ditch, the adjoining landowner took steps to maintain the property, and there was no evidence of attempted obstruction of the use between 2005 and 2014, a period in excess of the seven-year prescriptive period required. Five Forks Hunting Club, LLC v. Nixon Family P'ship, 2019 Ark. App. 371, 584 S.W.3d 685 (2019).

Circuit court did not clearly err in finding that neither the route of the prescriptive easement nor the manner of its use should be altered from the use established during the prescriptive period. Five Forks Hunting Club, LLC v. Nixon Family P'ship, 2019 Ark. App. 371, 584 S.W.3d 685 (2019).

Property Contiguous to Property Claimed.

The plaintiff did not hold color of title to real property contiguous to the property claimed by adverse possession where a street separated the two properties. Patrick v. McSperritt, 64 Ark. App. 310, 983 S.W.2d 455 (1998).

Trial court erred in denying plaintiffs' motion for a new trial because subdivision (a)(2) of this section required only that the real property owned by plaintiffs be contiguous to the property claimed by adverse possession; thus, the matter was remanded to determine if that was the case. Roberts v. Boyd, 94 Ark. App. 345, 230 S.W.3d 301 (2006).

Because appellants owned property contiguous to the disputed property on which they had paid taxes for at least seven years, they had their own separate right to bring a claim for adverse possession, without regard to whether the court stated so in its order. Mancabelli v. Gies, 2015 Ark. App. 67, 454 S.W.3d 785 (2015).

Remainder Interest.

Trial court erred in quieting title to a tract of land in appellee based on adverse possession. Because it was undisputed that appellant did not receive notice of the tax sales, the sales were void and could not have extinguished appellant's remainder interest. Peavler v. Bryant, 2015 Ark. App. 230, 460 S.W.3d 298 (2015).

Statutory Period.

Mislabeling the seven-year continuous possession requirement as a statute of limitations led to the individual's argument that the circuit court could not consider the affirmative defense because it had not been pleaded or argued, but his argument lacked foundation because the requirement of continuous possession is not a statute of limitations, as referred to in Ark. R. Civ. P. 8(c). Chiodini v. Lock, 2014 Ark. App. 219 (2014).

Statutory Proof Not Applicable.

Statutory changes made in 1995 to this section, which required one who sought to claim land by adverse possession to show payment of taxes on the property, were found not to be applicable to property owners whose rights to the disputed land had vested prior to that time; thus, where a neighboring property owner was found to have deliberately trespassed onto the land and destroyed a fence, caused ruts in the grass, and drove over a vegetable garden, all in violation of a prior trial court order restricting his right to be on that land, awards of treble damages pursuant to § 18-60-102(a) and attorney's fees and costs were proper. Schrader v. Schrader, 81 Ark. App. 343, 101 S.W.3d 873 (2003).

Appellate court reversed a trial court's order quieting title in favor of landowners as the property had been divided by the barbed wire fence for more than 35 years, the landowner's possession of the land up to the fence was visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the property owners and, since their claim of adverse possession accrued before 1995, the landowners were not required to show that they had paid property taxes on the land. Boyette v. Vogelpohl, 92 Ark. App. 436, 214 S.W.3d 874 (2005).

Because statutory changes imposing additional requirements to show adverse possession were passed in 1995, those additional requirements were not applicable where one claimed possession of land since 1985. Ford v. Howard, 2009 Ark. App. 196, 300 S.W.3d 505 (2009).

Although appellant argued appellee did not prove an adverse possession claim under this section, contending that appellee failed to show she paid the taxes on the subject property, a trial court properly found appellee's adverse possession claim vested in 1973, prior to the enactment of the additional statutory requirements in this section, including payment of taxes, and because the additional statutory elements were not applied retroactively, appellee was not subject to the statute's additional requirements. Smith v. Smith, 2011 Ark. App. 598, 385 S.W.3d 902 (2011).

If appellees' rights vested before 1995, as the trial court found, appellees had to prove only the common-law elements of adverse possession, and appellants' contention that color of title was necessary for all adverse-possession claims was incorrect. Fletcher v. Stewart, 2015 Ark. App. 105, 456 S.W.3d 378 (2015).

Circuit court did not err in denying a neighbor's petition for declaratory judgment and quiet title because she failed to prove the common-law elements of adverse possession as to the disputed property, a prior owner testified that the ditch was entirely within an adjoining owner's property boundary, and it was unnecessary for the circuit court to rule on the additional statutory elements where the seven-year period necessary to establish adverse possession would have vested long before 1995. Morrison v. Carruth, 2015 Ark. App. 224, 459 S.W.3d 317 (2015).

Cited: Dohle v. Duffield, 2012 Ark. App. 217, 396 S.W.3d 780 (2012); Teague v. Canfield, 2014 Ark. App. 712 (2014).

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.

Research References

Ark. L. Rev.

Comment — A Survey of Testamentary Capacity — Proof, 11 Ark. L. Rev. 84.

Christopher W. Wynne, Comment: WWJD: A True Neutral Principles Approach? Arkansas Courts Should Take Another Look, 65 Ark. L. Rev. 481 (2012).

Case Notes

Neutral-Principles Approach.

Circuit court did not err in quieting title in favor of the worship center, because under the neutral-principles approach, nothing in the language of the deed suggested that the owner had the intention of creating a trust in favor of either the national church or the state church, and neither the national church nor the state church had an ownership interest in the property at the time of the conveyance and neither was a party to the transaction. Arkansas Annual Conf. of the AME Church, Inc. v. New Direction Praise & Worship Ctr., Inc., 375 Ark. 428, 291 S.W.3d 562, cert. denied, 558 U.S. 818, 130 S. Ct. 70, 175 L. Ed. 2d 26 (2009).

Use of Land.

The trustees of a church located on a tract of land held in succession so long as the land was used for religious purposes and only so much thereof as was reasonably necessary for the intended use. Burbridge v. Smyrna Baptist Church, 212 Ark. 924, 209 S.W.2d 685 (1948).

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.

Research References

Ark. L. Rev.

Christopher W. Wynne, Comment: WWJD: A True Neutral Principles Approach? Arkansas Courts Should Take Another Look, 65 Ark. L. Rev. 481 (2012).

Case Notes

Mortgages.

Trustees of a church are authorized to execute notes and mortgages on the church's realty to raise money to construct a church. Hale v. Central Bank, 184 Ark. 829, 43 S.W.2d 530 (1931).

Neutral-Principles Approach.

Circuit court did not err in quieting title in favor of the worship center, because under the neutral-principles approach, nothing in the language of the deed suggested that the owner had the intention of creating a trust in favor of either the national church or the state church, and neither the national church nor the state church had an ownership interest in the property at the time of the conveyance and neither was a party to the transaction. Arkansas Annual Conf. of the AME Church, Inc. v. New Direction Praise & Worship Ctr., Inc., 375 Ark. 428, 291 S.W.3d 562, cert. denied, 558 U.S. 818, 130 S. Ct. 70, 175 L. Ed. 2d 26 (2009).

Parties.

Elders of church are proper parties to sue where church property is involved. Young v. Knox, 165 Ark. 129, 263 S.W. 52 (1924).

Subchapter 3 — Recreational Uses — Owner's Liability

Research References

ALR.

Statute limiting landowner's liability for personal injury to recreational user. 47 A.L.R.4th 262.

Ark. L. Notes.

Brill, Arkansas Law of Damages, Fifth Edition, Chapter 30: Real Property, 2004 Arkansas L. Notes 9.

Ark. L. Rev.

Strendowski, Case Notes: Tort Liability of Owners and Possessors of Land — A Single Standard of Reasonable Care Under the Circumstances Towards Invitees and Licensees, 33 Ark. L. Rev. 194.

Case Notes

Applicability.

The United States is entitled to the benefit of this subchapter, if applicable, when it is sued under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671 et seq.Roten v. United States, 850 F. Supp. 786 (W.D. Ark.), aff'd without op., 39 F.3d 1184 (8th Cir. 1994).

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.

Research References

Ark. L. Rev.

The Arkansas Recreational-Use Statute: Past, Present, and Future Application for Arkansas Landowners and Recreational Users of Land, 60 Ark. L. Rev. 849.

Case Notes

In General.

Since the purpose of this subchapter is to encourage landowners (including the United States) to make areas available to the public for recreational purposes and thus limit their liability, it is reasonable to conclude that a condition or structure which is natural, such as high cliffs, should not be considered ultra-hazardous within the meaning of the § 18-11-307(1) exception to this subchapter. Roten v. United States, 850 F. Supp. 786 (W.D. Ark.), aff'd without op., 39 F.3d 1184 (8th Cir. 1994).

Injured persons met their burden of proof under the Arkansas Recreational Use Statute, § 18-11-301 et seq., by showing that the landowners maliciously failed to guard or warn against a known ultra-hazardous condition and, therefore, the landowners were not immune from liability to persons entering the landowners' property for recreational purposes, as provided in the immunity exception under § 18-11-307(1). Carr v. Nance, 2010 Ark. 497, 370 S.W.3d 826 (2010).

Immunity under the Arkansas Recreational Use Statute, §§ 18-11-30118-11-307, is in derogation of the common law, and any statute in derogation of the common law will be strictly construed. Roeder v. United States, 2014 Ark. 156, 432 S.W.3d 627 (2014).

Applicability.

In an action arising from the deadly flooding of a federal campground, district court properly granted the United States' motion to dismiss for lack of jurisdiction because the Federal Tort Claims Act removed immunity from the United States only in those circumstances in which a private landowner would be liable, and an individual landowner would have received immunity from plaintiffs' tort claims under the Arkansas Recreational Use Statute, § 18-11-301 et seq.Moss v. United States, 895 F.3d 1091 (8th Cir. 2018).

Cited: Mandel v. United States, 793 F.2d 964 (8th Cir. 1986); Carlton ex rel. Carlton v. Cleburne County, 93 F.3d 505 (8th Cir. 1996).

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;
    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;
  4. “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;
  5. “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
  6. “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”.

Case Notes

Charge.

Revenue from a business enterprise adjacent to a recreational site does not constitute a “charge” as used in this section. Carlton ex rel. Carlton v. Cleburne County, 93 F.3d 505 (8th Cir. 1996).

Plain terms of §§ 18-11-307(2) and 18-11-302 removed immunity only when a fee was charged to enter a particular area; fees subsequent to entry, such as charges to access services such as water or electrical hookups, did not alter the initial grant of immunity. Under the plain language of the statutes, the charge exception did not apply to campsite fees paid by campers in an area that flooded. Moss v. United States, 895 F.3d 1091 (8th Cir. 2018).

Cited: Mandel v. United States, 793 F.2d 964 (8th Cir. 1986).

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.

Case Notes

Cited: Roten v. United States, 850 F. Supp. 786 (W.D. Ark.); Carlton ex rel. Carlton v. Cleburne County, 93 F.3d 505 (8th Cir. 1996).

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.

Case Notes

Federal Government.

The tort liability of the United States for personal injuries sustained by a person in a swimming hole in a national park is limited by this subchapter to the same extent as the liability of a private person. Mandel v. United States, 719 F.2d 963 (8th Cir. 1983).

Lakes.

This section applied to an owner of a lake, who is an “owner of land” as used in this section. Jenkins v. Arkansas Power & Light Co., 140 F.3d 1161 (8th Cir. 1998).

Cited: Lively v. Libbey Mem'l Physical Medical Ctr., 311 Ark. 41, 841 S.W.2d 609 (1992).

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.

Research References

Ark. L. Rev.

The Arkansas Recreational-Use Statute: Past, Present, and Future Application for Arkansas Landowners and Recreational Users of Land, 60 Ark. L. Rev. 849.

Case Notes

Applicability.

The changes from the previous provision (A.S.A. § 50-1106) to the current version of subdivision (1) of this section appear to indicate that: (1) mere negligent failure to warn or guard does not invoke the exception; (2) ultra-hazardous conditions, as opposed to mere dangerous conditions, structures, personal properties, uses or activities are required to invoke the exception; and (3) for invocation of the exception and resulting liability, the ultra-hazardous condition, structure, personal property, use, or activity must be actually known to the owner to be dangerous. Roten v. United States, 850 F. Supp. 786 (W.D. Ark.), aff'd without op., 39 F.3d 1184 (8th Cir. 1994).

Charge.

Plain terms of subdivision (2) of this section and the definition of “charge” in § 18-11-302 removed immunity only when a fee was charged to enter a particular area; fees subsequent to entry, such as charges to access services such as water or electrical hookups, did not alter the initial grant of immunity. Under the plain language of the statutes, the charge exception did not apply to campsite fees paid by campers in an area that flooded. Moss v. United States, 895 F.3d 1091 (8th Cir. 2018).

Failure to Warn.

Evidence held sufficient to create a genuine issue of material fact as to the willfulness or maliciousness of the United States in failing to guard or warn against a dangerous condition. Mandel v. United States, 719 F.2d 963 (8th Cir. 1983) (decision prior to 1983 amendment).

In suit where plaintiff-sightseers on a public swinging bridge were injured or killed when the bridge collapsed, in order for the plaintiffs to prove their claim under the exception provided by subdivision (1) of this section, plaintiffs were required to prove not only that the swinging bridge was an ultra-hazardous structure actually known by the defendants to be dangerous, but also that the defendants maliciously, not merely negligently, failed to warn the plaintiffs of the dangerous condition. Carlton ex rel. Carlton v. Cleburne County, 93 F.3d 505 (8th Cir. 1996).

Lake owner's failure to warn swimmers and boaters of a submerged island in an apparently deep area of water was negligent at most. Jenkins v. Arkansas Power & Light Co., 140 F.3d 1161 (8th Cir. 1998).

Injured persons met their burden of proof under the Arkansas Recreational Use Statute, § 18-11-301 et seq., by showing that the landowners maliciously failed to guard or warn against a known ultra-hazardous condition and, therefore, the landowners were not immune from liability to persons entering the landowners' property for recreational purposes, as provided in the immunity exception under subdivision (1) of this section. Carr v. Nance, 2010 Ark. 497, 370 S.W.3d 826 (2010).

For purposes of the exception to immunity in subdivision (1) of this section, plaintiffs' claims were based on a “500-year” flood event that went far beyond the scope of the flood risk of which plaintiffs alleged the United States either was or should have been aware. The limited evidence of knowledge of minor flooding events within a 100-year floodplain was insufficient to show actual knowledge of the danger to human life posed by a more serious flood event. Moss v. United States, 895 F.3d 1091 (8th Cir. 2018).

Federal Government.

The tort liability of the United States for personal injuries sustained by a person in a swimming hole in a national park is limited by this subchapter to the same extent as the liability of a private person. Mandel v. United States, 719 F.2d 963 (8th Cir. 1983).

Defendant United States did not maliciously fail to guard or warn about high cliffs at White Rock so as to incur liability for decedent's death under the subdivision (1) exception of this section. Roten v. United States, 850 F. Supp. 786 (W.D. Ark.), aff'd without op., 39 F.3d 1184 (8th Cir. 1994).

In an action arising from the deadly flooding of a federal campground, district court properly granted the United States' motion to dismiss for lack of jurisdiction because the Federal Tort Claims Act removed immunity from the United States only in those circumstances in which a private landowner would be liable, and an individual landowner would have received immunity from plaintiffs' tort claims under the Arkansas Recreational Use Statute. Moss v. United States, 895 F.3d 1091 (8th Cir. 2018).

Immunity.

Immunity under the Arkansas Recreational Use Statute, §§ 18-11-30118-11-307, is in derogation of the common law, and any statute in derogation of the common law will be strictly construed. Roeder v. United States, 2014 Ark. 156, 432 S.W.3d 627 (2014).

Malice.

Malice is inferred where the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued on his course with a conscious indifference to the consequences. Carlton ex rel. Carlton v. Cleburne County, 93 F.3d 505 (8th Cir. 1996).

“Malicious” conduct includes conduct in reckless disregard of the consequences from which malice may be inferred; given that “malicious” was open to more than one construction, the statute was ambiguous, and “but not mere negligent” functioned as an explanatory phrase, and the legislature used those words to clarify what type of malice had to be shown to preclude immunity from liability (decided prior to 2015 amendment). Roeder v. United States, 2014 Ark. 156, 432 S.W.3d 627 (2014).

Natural Phenomena.

Since the purpose of this subchapter is to encourage landowners (including the United States) to make areas available to the public for recreational purposes and thus limit their liability, it is reasonable to conclude that a condition or structure which is natural, such as high cliffs, should not be considered ultra-hazardous within the meaning of the exception to this subchapter in subdivision (1) of this section. Roten v. United States, 850 F. Supp. 786 (W.D. Ark.), aff'd without op., 39 F.3d 1184 (8th Cir. 1994).

The high cliff areas of White Rock Mountain, a natural phenomenon, should not be considered an ultra-hazardous condition as defined by the exception in subdivision (1) of this section. Roten v. United States, 850 F. Supp. 786 (W.D. Ark.), aff'd without op., 39 F.3d 1184 (8th Cir. 1994).

Ultra-Hazardous Condition.

Whereas the cliffs areas in White Rock Mountain, from which at least four people have fallen, posed an obvious danger, the collapse of the swinging bridge was an unforeseen occurrence. Carlton ex rel. Carlton v. Cleburne County, 93 F.3d 505 (8th Cir. 1996).

There is an obvious danger associated with diving into water at night when one has not tested the water to see how deep it is; therefore an unexpected shallow area cannot be considered an ultra-hazardous condition in and of itself which requires a warning. Jenkins v. Arkansas Power & Light Co., 140 F.3d 1161 (8th Cir. 1998).

Where an all-terrain vehicle (ATV) rider was injured when the rider drove the ATV into a steel cable on the landowners' property, it was not the hanging of a cable per se that constituted the ultra-hazardous activity, but the hanging of an unmarked cable at a dangerous height in an area in which the landowners knew there were people traveling on ATVs. Carr v. Nance, 2010 Ark. 497, 370 S.W.3d 826 (2010).

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.

Research References

Ark. L. Notes.

Brill, Arkansas Law of Damages, Fifth Edition, Chapter 30: Real Property, 2004 Arkansas L. Notes 9.

U. Ark. Little Rock L.J.

Survey, Property, 12 U. Ark. Little Rock L.J. 659.

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.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Criminal Law, 8 U. Ark. Little Rock L.J. 559.

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

    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.
      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.
    3. 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.
  1. This section shall not apply to a law enforcement officer in the line of duty.
  2. 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.

Research References

U. Ark. Little Rock L.J.

Seventeenth Annual Survey of Arkansas Law — Property, 17 U. Ark. Little Rock L.J. 453.

Case Notes

Construction.

This section is a penal statute and therefore must be strictly construed, resolving any doubts in favor of the accused. Nelson v. State, 318 Ark. 146, 883 S.W.2d 839 (1994).

Hunters.

It is clear the legislature intended to include lessees of hunting rights in the class of persons referred to as “owner or lessee of the real property” in subsection (a) of this section. Nelson v. State, 318 Ark. 146, 883 S.W.2d 839 (1994).

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. 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;
    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.
      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
  1. 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. 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;
    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.
      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
  1. 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. 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.
    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.

Chapter 12 Conveyances

Research References

Ark. L. Rev.

Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111.

Drafting Instruments for Purchase and Conveyancing of Land, 13 Ark. L. Rev. 26.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Note, Deeds Reserving a Life Estate in the Grantor: Arkansas' Special Delivery Rules — Grimmett v. Estate of Beasley, 44 Ark. L. Rev. 219.

U. Ark. Little Rock L.J.

Cathey, The Real Estate Installment Sale Contract: Its Drafting, Use, Enforcement, and Consequences, 5 U. Ark. Little Rock L.J. 229.

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.

RESEARCH REFERENCES

Ark. L. Notes.

Circo, Why is This Boilerplate in My Real Estate Contract?, 2005 Arkansas L. Notes 1.

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, 16-47-10316-47-106, 16-47-110, 18-12-101, 18-12-102, 18-12-104, 18-12-105, 18-12-201, 18-12-20318-12-206, 18-12-209, 18-12-301, 18-12-402, 18-12-501, 18-12-502, 18-12-60118-12-603.

Case Notes

Construction.

This section has been construed to mean that Rev. Stat., ch. 31 shall not be interpreted to include last wills and testaments in any section in which they are not mentioned. Mercantile Trust Co. v. Adams, 95 Ark. 333, 129 S.W. 1101 (1910).

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.

Research References

ALR.

Award of Attorney's Fees for Breach of Covenant of Quiet Enjoyment, 31 A.L.R.7th Art. 5 (2018).

Award of Punitive Damages for Breach of Covenant of Quiet Enjoyment, 31 A.L.R.7th Art. 6 (2018).

U. Ark. Little Rock L.J.

Survey — Property, 11 U. Ark. Little Rock L.J. 243.

U. Ark. Little Rock L. Rev.

Lynn Foster & J. Cliff McKinney, II, Deed Covenants of Title and the Preparation of Deeds: Theory, Law, and Practice in Arkansas, 34 U. Ark. Little Rock L. Rev. 53 (2011).

Case Notes

Covenants.

A grantor of real estate is not responsible on the statutory covenant implied by the use of the words “grant, bargain and sell” for encumbrances other than those done or suffered by himself. Winston v. Vaughan, 22 Ark. 72 (1860).

Words “grant, bargain and sell” in a deed granting a life estate created a covenant or warranty that the grantor was seized of an indefeasible estate in fee simple. A trial court erred in granting summary judgment to defendants on the life estate grantee's claims for breach of warranty, estoppel by deed, and conversion, although defendants did not own the property at the time they granted the life estate; defendants clearly made warranties to the grantee and should have been required to honor them. Jackson v. Smith, 2010 Ark. App. 681, 380 S.W.3d 443 (2010).

—Attorney's Fees.

Although the Supreme Court held in O'Bar v. Hight, 169 Ark. 1008, 277 S.W. 533 (1925), that a covenantee could not recover attorney's fees from the covenantor in an action for breach of warranty, the 1989 amendment to § 16-22-308 permitted a trial court to allow a reasonable attorney's fee to the prevailing party in an action for breach of contract. Murchie v. Hinton, 41 Ark. App. 84, 848 S.W.2d 436 (1993).

—Breach.

Grantees in a deed containing covenants against encumbrances, who permitted the land to be sold under prior liens against the grantor and procured a purchaser to protect their title, were permitted to recoup from the purchase money the amount expended in removing the encumbrances but could not claim title in the purchaser to defeat recovery by the grantor of the residue of the purchase money. Brodie v. Watkins, 31 Ark. 319 (1876).

The grantor is not bound to defend against the subsequent confirmation of a tax sale for forfeiture at time of deed and may show in a suit against him on his warranty that the forfeiture and sale for taxes were void. Lonergan v. Baber, 59 Ark. 15, 26 S.W. 13 (1894).

An outstanding lease of part of the property conveyed will break the covenant against encumbrances as to the entire tract. Crawford v. McDonald, 84 Ark. 415, 106 S.W. 206 (1907).

A covenant for quiet enjoyment was broken where a title paramount to that of the grantee's was held valid in a suit against them to which their grantor was a party. Gibbons v. Moore, 98 Ark. 501, 136 S.W. 937 (1911).

Covenant of warranty is implied by this section and, in order to recover for breach of such covenant, an eviction, either actual or constructive, must be alleged and proven. Bosnick v. Hill, 292 Ark. 505, 731 S.W.2d 204 (1987).

Seisin is a covenant which is broken as soon as made, if grantor has not possession, right of possession, and complete title. Grantors were to pay costs and expenses reasonably incurred by grantees for their successful efforts in vindicating their rights under covenant of seisin given them by grantors. Bosnick v. Hill, 292 Ark. 505, 731 S.W.2d 204 (1987).

Where landowner was evicted from a portion of her lot by a temporary restraining order, which eviction continued until the conclusion of a final hearing, landowner was entitled to recoup litigation costs and expenses from the grantor for breach of covenant in successfully defending an adverse possession suit and recovering possession of the disputed portion of lot. Murchie v. Hinton, 41 Ark. App. 84, 848 S.W.2d 436 (1993).

—Improvement District Assessments.

A general covenant of warranty in a deed will not be held to cover an improvement assessment which became a lien upon the land subsequent to the execution of the deed. Blakemore v. Covey, 173 Ark. 722, 293 S.W. 39 (1929).

Minors.

The deed of an infant will pass his estate subject to disaffirmance after majority, but his covenants are void. Bagley v. Fletcher, 44 Ark. 153 (1884).

Quitclaim.

A quitclaim deed is a substantive mode of conveyance and is as effectual to carry all the right, title, interest, claim and estate of the grantor as a deed with full covenants, although the grantee has no possession of or prior interest in the land. Bagley v. Fletcher, 44 Ark. 153 (1884).

A deed using the words “bargain, sell and quitclaim” omitting the statutory words of warranty and containing no express covenant of warranty is a mere quitclaim deed, insufficient to convey after-acquired title. Holmes v. Countiss, 195 Ark. 1014, 115 S.W.2d 553 (1938).

Where words “convey and quitclaim” appeared in deed in addition to statutory words “grant, bargain, and sell,” the deed was a quitclaim deed and not a conveyance in fee simple. Chavis v. Hill, 216 Ark. 136, 224 S.W.2d 808 (1949).

Reservation of Rents or Services.

A deed conveying the title of land in fee simple carries with it the right to collect the rents; and, unless the deed reserves the right in the grantor to collect and use the rents, these pass as a necessary incident with the land to the grantee. McPherson v. Johnson, 270 Ark. 926, 606 S.W.2d 613 (1980).

Where no mention was made of the rents as being a part of the consideration, no reservation of rents was made in either the sales contract or in the deed. McPherson v. Johnson, 270 Ark. 926, 606 S.W.2d 613 (1980).

Since rent is an interest in realty, it can be alienated by way of a mortgage to take effect immediately. First Fed. Sav. v. City Nat'l Bank, 87 B.R. 565 (W.D. Ark. 1988).

Words of Conveyance.

The words “grant, bargain and sell” employed in the assignment of a bond for title do not import (nor does the act of assignment imply) a covenant that the vendor will comply with his contract to convey, but merely that he is the owner of the bond for title, and to invest the assignee therewith. Hazer v. Yost, 54 Ark. 485, 16 S.W. 372 (1891).

Words to the effect that a certain party “was the absolute owner” are not words of conveyance and have no effect whatever to place title in him. Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S.W. 218 (1913).

In order to transfer title to standing timber, it is absolutely necessary that words “grant, bargain and sell,” or words of the same purport be expressed in the instrument. Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S.W. 218 (1913).

Words “bargain, sell and quitclaim,” as used in a deed, do not have the same import as “grant, bargain and sell” used in this section. Holmes v. Countiss, 195 Ark. 1014, 115 S.W.2d 553 (1938).

Mineral deed from 1929 effectively conveyed 100 percent of a mineral interest because the statutory language required an interpretation that there was a 100 percent conveyance, and the mineral deed contained no language that appeared to limit the conveyance. Moreover, alleged deficiencies contained in the 1929 deed did not overcome the grantors' intent to convey 100 percent of the mineral interest, and 13 blank spaces did not undermine that intent. Barton Land Servs. v. SEECO, Inc., 2013 Ark. 231, 428 S.W.3d 430 (2013).

—Express Limitation.

This section is inapplicable where the habendum clause contains a statement of claims against which title is warranted. Doak v. Smith, 137 Ark. 509, 208 S.W. 795 (1919).

If the word “quitclaim,” or any words other than statutory words “grant, bargain, and sell,” appear in the granting clause of the deed, then presence of such other words, if inconsistent with statutory words, will prevent conveyance from conveying title in fee simple. Chavis v. Hill, 216 Ark. 136, 224 S.W.2d 808 (1949).

Cited: Stull v. Harris, 51 Ark. 294, 11 S.W. 104 (1888); Rogers v. Bollinger, 59 Ark. 12, 26 S.W. 12 (1894); Seldon v. Dudley E. Jones Co., 74 Ark. 348, 85 S.W. 778 (1905); Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75 (1909); Gibbons v. Moore, 98 Ark. 501, 136 S.W. 937 (1911); Graham v. Quarles, 206 Ark. 542, 176 S.W.2d 703 (1944); Jones v. Jones, 236 Ark. 296, 365 S.W.2d 716 (1963); Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970); Abbott v. Pearson, 257 Ark. 694, 520 S.W.2d 204 (1975); Fetzer v. Bodcaw Co., 601 F.2d 356 (8th Cir. 1979); Davis v. Griffin, 298 Ark. 633, 770 S.W.2d 137 (1989).

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.

Research References

Ark. L. Rev.

Judicial Handling of Restrictive Covenants in Arkansas Residential Subdivisions, 28 Ark. L. Rev. 245.

U. Ark. Little Rock L.J.

Survey — Property, 12 U. Ark. Little Rock L.J. 225.

Case Notes

Appellate Review.

Although appellants argued that the creation of overlay zones was unreasonable because this section required a 100% vote of the owners of the property owners association for passage, the appellate court did not reach the merits of the argument because the circuit court did not consider it or rule on it. Garner v. Bd. of Dirs., Hot Springs Village Property Owners Ass'n, 2017 Ark. App. 539, 531 S.W.3d 438 (2017).

Enforcement.

A restrictive covenant could not be enforced based solely on a general plan of development in the absence of restrictions in the grantee's chain of title. Knowles v. Anderson, 307 Ark. 393, 821 S.W.2d 466 (1991).

Restrictive covenant prohibiting the subdividing of lots in phase one of a subdivision did not apply to appellees' phase two property; there were no restrictions clearly applicable to phase two property and the ambiguity was resolved in favor of appellees and defeated the contention that the plat alone adopted phase one restrictions for phase two property. Estes v. Merritt, 96 Ark. App. 380, 242 S.W.3d 295 (2006).

Covenant limiting the use of each lot to a single family residence and incidental outbuildings was not void as an unreasonable restraint on alienation where the developer was aware of the conditions and requirements when it purchased the property and it failed to show that there had been a change in conditions sufficient to warrant invalidation of the covenant. Royal Oaks Vista LLC v. Maddox, 372 Ark. 119, 271 S.W.3d 479 (2008).

Filing.

Restrictive covenant could be enforced against one who took deed with knowledge of restriction even though developers had not filed a plat as required by this section. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981).

A bill of assurance which limited certain land uses was ineffective against second purchaser's use of the land where, at the time the vendors filed the bill of assurance, they had already conveyed the property to the first purchaser even though the first purchaser subsequently conveyed the property back to the original vendor. White v. Cordes, 14 Ark. App. 104, 685 S.W.2d 524 (1985).

Incorporation by Reference.

Both the bylaws and rules and regulations were validly incorporated in the covenant, and while the bylaws were not created until nine years after the declarations were filed, the bylaws simply provided details and amendments to issues contemplated in the declarations; there was enough information in the declarations to allow a purchaser to make an inquiry and thus the bylaws and rules and regulations were sufficiently referenced in the declarations to be incorporated. Dye v. Diamante, 2017 Ark. 42, 510 S.W.3d 759 (2017).

Owners of the Real Property.

The phrase “owners of the real property,” did not require mineral owners to join in the execution of bills of assurance before covenants could affect the use of real property. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988).

Two property owners were not bound by restrictive covenants they did not sign; at the time the owners entered into their contract to purchase the property, the land-use restrictions had not been executed, and they were executed later without the owners' signatures. The signature requirement was not negated by the owners' alleged knowledge of the restrictions, which was based on a sentence in their agreement for deed; nor did the fact that the owners purchased the property pursuant to a contract for deed mean that they were not “owners” for purposes of this section. Akers v. Butler, 2015 Ark. App. 650, 476 S.W.3d 183 (2015).

Subdivisions.

Restrictive covenants pertaining to a subdivision were neither valid nor effective where only one of several property owners signed the restrictive covenants document. Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001).

Cited: Ray v. Miller, 323 Ark. 578, 916 S.W.2d 117 (1996).

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.

Case Notes

Authentication.

A deed for lands executed not in the presence of witnesses, but acknowledged as required by law, is sufficient authentication; no subscribing witnesses are necessary where the execution is duly acknowledged. Another method of authenticating deeds and instruments for conveyance is by the testimony of one of the subscribing witnesses, when the deed must be executed in the presence of two witnesses or acknowledged by the grantor in their presence when executed before them. Either method is effectual. Cocke v. Brogan, 5 Ark. 693 (1844).

Noncompliance.

A deed without attesting witnesses or acknowledgment is good and will pass the legal title as between the parties. Stirman v. Cravens, 29 Ark. 548 (1874); Jackson v. Allen, 30 Ark. 110 (1875); McSwain v. Criswell, 213 Ark. 775, 213 S.W.2d 383 (1948).

A contract constituting an option to purchase signed by both parties thereto, but acknowledged by the optionee only, was not in compliance with this section and should not have been filed for record. Carpenter v. Shannon Bros., 199 Ark. 449, 134 S.W.2d 6 (1939).

Cited: Byers v. Engles, 16 Ark. 543 (1855).

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.

Research References

Ark. L. Rev.

The Entailed Estate: Ferment for Reform in Arkansas, 19 Ark. L. Rev. 275.

Legislative and Judicial Dynamism in Arkansas: Poisson v. d'Avril, 22 Ark. L. Rev. 724.

Case Notes

Applicability.

This section is limited to fee simple estates and has no applicability to the construction of an option. Roemhild v. Jones, 239 F.2d 492 (8th Cir. 1957).

Absolute Deed.

A deed absolute on its face cannot be shown by parol testimony to be in trust for benefit of grantor, in absence of fraud, accident or mistake, or fiduciary relationship existing between the parties. Scogin v. Scogin, 176 Ark. 1009, 4 S.W.2d 953 (1928).

Where a warranty deed was absolute on its face and contained no reservations by the grantors, the deed conveyed absolute title to the grantees and was not subject to modification by a simultaneously executed sales agreement. Barnes v. Barnes, 275 Ark. 117, 627 S.W.2d 552 (1982).

Express Limitation.

Where the granting clause conveys the land described to the grantee in fee simple, a proviso in the habendum clause limiting the estate conveyed in certain contingencies to a life estate is repugnant to the granting clause and void. Carllee v. Ellsberry, 82 Ark. 209, 101 S.W. 407 (1907).

If the granting clause contains no words of inheritance and the conveyance is not expressly stated to be in fee simple, a limitation in the habendum is not repugnant and declares the grantor's intention and will rebut any implication which would otherwise arise from the omission in the granting clause. McDill v. Meyer, 94 Ark. 615, 128 S.W. 364 (1910); Fender v. Rogers, 185 Ark. 191, 46 S.W.2d 804 (1932).

A grant by deed from husband to wife which in the habendum limited the estate to the wife and her heirs by the grantor born of her body held to create a life estate in the wife. Georgia State Sav. Ass'n v. Dearing, 128 Ark. 149, 193 S.W. 512 (1917).

Where deed conveyed land to husband and wife, and “their heirs only forever,” the word “only” was treated as surplusage, and they acquired an estate in fee simple absolute. United States v. 48.9 Acres of Land, 85 F. Supp. 133 (W.D. Ark. 1949).

Deed conveying land for a right-of-way held an easement and not a deed in fee simple where other conditions in deed indicated an easement was intended. Daugherty v. Helena & Nw. Ry., 221 Ark. 101, 252 S.W.2d 546 (1952).

Mineral deed from 1929 effectively conveyed 100 percent of a mineral interest because the statutory language required an interpretation that there was a 100 percent conveyance, and the mineral deed contained no language that appeared to limit the conveyance. Moreover, alleged deficiencies contained in the 1929 deed did not overcome the grantors' intent to convey 100 percent of the mineral interest, and 13 blank spaces did not undermine that intent. Barton Land Servs. v. SEECO, Inc., 2013 Ark. 231, 428 S.W.3d 430 (2013).

Wills.

Whenever an estate in lands is created by will, it will be deemed to be an estate in fee simple, if a lesser estate is not clearly indicated. Ollar v. Roy, 212 Ark. 682, 207 S.W.2d 313 (1948).

Cited: Lanigan v. Sweany, 53 Ark. 185, 13 S.W. 740 (1890); Metropolitan Life Ins. Co. v. Gardner, 245 Ark. 742, 434 S.W.2d 266 (1968); Fetzer v. Bodcaw Co., 601 F.2d 356 (8th Cir. 1979).

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.

Case Notes

Survivorship Interest.

With respect to conveyances prior to July 15, 1991, subsection (c) of this section provides that a joint tenancy with right of survivorship was created if it was “clearly intended”; the question whether a survivorship interest was intended should be determined from the four corners of the deed. Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993).

A deed which did not stop with describing the purchasers as husband and wife but went further and stated that they were to hold “as tenants by the entirety” was sufficient to establish a joint tenancy with right of survivorship; merely describing the purchasers as “husband and wife” was insufficient to establish an intent to create a survivorship interest. Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993).

Trial court erred in converting a joint tenancy to a tenancy in common and in disposing of two identically titled properties in different ways when title to both properties passed to appellant as the surviving joint tenant. The parties' settlement agreement, in which they agreed to sell the property at some point in the future, did not convert ownership of the properties to a tenancy in common. Farrow v. Fuller, 2017 Ark. App. 144, 515 S.W.3d 652 (2017).

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;
      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
      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.
    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).

Case Notes

Applicability.

Declarations were properly recorded in 1997; this section, enacted in 2011, by its very terms does not specifically invalidate transfer fees recorded before the 2011 act, and thus the trial court did not err in declaring the transfer fees enforceable. Dye v. Diamante, 2017 Ark. 42, 510 S.W.3d 759 (2017).

This section destroys a contractual right to apply transfer fees to property, and is therefore not remedial or procedural. Dye v. Diamante, 2017 Ark. 42, 510 S.W.3d 759 (2017).

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.
    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 §§ 16-47-10116-47-108, 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.”

Research References

Am. Jur. 1 Am. Jur. 2d, Acknowl., § 1 et seq.

Ark. L. Notes.

Atkinson, Laurence, The Avoidance by an Arkansas Bankruptcy Trustee of a Mortgage Defectively Acknowledged, 2003 Arkansas L. Notes 1.

Ark. L. Rev.

Drafting Instruments for Purchase and Conveyancing of Land, 13 Ark. L. Rev. 26.

C.J.S. 1A C.J.S., Acknowl., § 1 et seq.

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, 16-47-10316-47-106, 16-47-110, 18-12-101, 18-12-102, 18-12-104, 18-12-105, 18-12-201, 18-12-20318-12-206, 18-12-209, 18-12-301, 18-12-402, 18-12-501, 18-12-502, 18-12-60118-12-603.

Case Notes

Contract of Sale.

Recorded contract did not constitute constructive notice where it was not properly acknowledged. Wyatt v. Miller, 255 Ark. 304, 500 S.W.2d 590 (1973).

Where neither the offer and acceptance nor the purchaser's agreement were acknowledged, they were not recordable and therefore the purchasers of the realty were without means of giving record notice to the world of their equitable interest in the property. Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (Ct. App. 1980).

Lease.

A recorded lease which was not acknowledged would not be constructive notice; however the fact that it was recorded might be considered in determining whether the purchaser had actual notice before purchasing. Prince v. Alford, 173 Ark. 633, 293 S.W. 36 (1927).

Unacknowledged lease was not valid against purchasers who had no actual knowledge of the lease and could not be charged with constructive notice. George v. George, 267 Ark. 823, 591 S.W.2d 655 (Ct. App. 1979).

Mortgage.

Unacknowledged mortgage is not entitled to record, and if recorded, its record is of no validity. Moore v. Ollson, 105 Ark. 241, 150 S.W. 1028 (1912).

Cited: In re Bearhouse, Inc., 99 B.R. 926 (Bankr. W.D. Ark. 1989).

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

    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.
  1. 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.

Case Notes

In General.

This section is prospective in its operation. Jackson v. Hudspeth, 208 Ark. 55, 184 S.W.2d 906 (1945).

Cited: Upshaw v. Wilson, 222 Ark. 78, 257 S.W.2d 279 (1953); George v. George, 267 Ark. 823, 591 S.W.2d 655 (Ct. App. 1979).

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.

Case Notes

Interested Parties.

An acknowledgment taken by an officer who was a party to the deed does not entitle the instrument to record, and a record of it will impart no notice to subsequent purchasers or encumbrancers; however, the defect may be cured by a proper curative statute. Green v. Abraham, 43 Ark. 420 (1884).

A notary public is not disqualified to take an acknowledgment to a mortgage by reason of the fact that he had acted as agent for the mortgagor in obtaining the loan of money which the mortgage was intended to secure. Penn v. Garvin, 56 Ark. 511, 20 S.W. 410 (1892).

A surety on a note secured by a mortgage has such an interest therein which will disqualify him from taking the mortgagor's acknowledgment. Leonhard v. Flood, 68 Ark. 162, 56 S.W. 781 (1900).

Judge or Justice.

The acknowledgment of a deed was valid if taken before a judge or justice of the peace, within the limits of the state in which he was commissioned to act, regardless of the county in which the acknowledgment was taken. Biscoe v. Byrd, 15 Ark. 655 (1855) (decision under prior law).

Out-of-State Acknowledgment.

An acknowledgment taken by a justice of the peace or chairman of a county court of another state is invalid. Worsham v. Freeman, 34 Ark. 55 (1879).

Uniform Acknowledgment Act.

This section was not superseded by § 16-47-201 et seq., as those sections merely provide an alternative law on the subject of acknowledgments. Rumph v. Lester Land Co., 205 Ark. 1147, 172 S.W.2d 916 (1943).

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.

Case Notes

Out-of-State Court.

Acknowledgment before a county court of another state must be authenticated by the seal of the court. Worsham v. Freeman, 34 Ark. 55 (1879).

Seal.

When an acknowledgment is taken before an officer having an official seal, it should be authenticated by such seal. Little v. Dodge, 32 Ark. 453 (1877).

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.

Case Notes

Certificate as Evidence.

The certificate of a clerk of a court of record of another state to the acknowledgment of the execution of a deed is admissible as evidence without attestation of his official character by the judge of the court. Ferguson v. Peden, 33 Ark. 150 (1878).

Where there is in fact an appearance and acknowledgment of a deed in some manner, then the official certificate of acknowledgment is conclusive of every fact appearing on its face, and evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate, except in case of fraud or imposition in obtaining the acknowledgment, and where knowledge or notice of the fraud or imposition is brought home to the grantee. Holt v. Moore, 37 Ark. 145 (1881); Meyer v. Gossett, 38 Ark. 377 (1882).

Contents.

It is not sufficient for the officer to certify in general terms that the deed was proved; it should appear from the certificate that the witness was sworn, and that he stated that the party whose name appears to the deed signed it, or executed it, or acknowledged that he had done so, or some such language amounting to proof of the execution of the deed. And it must appear that such proof was made by one of the attesting witnesses, unless it is made to appear that the subscribing witnesses are dead or cannot be had. Trammell v. Thurmond, 17 Ark. 203 (1856).

Seal.

The absence from a notary's seal of the emblems and devices required by the statute does not invalidate his certificate of the acknowledgment of a deed. Sonfield v. Thompson, 42 Ark. 46 (1883).

Signature of Notary.

An acknowledgment to the execution of a deed of trust is invalid if the notary does not sign his name thereto, although he does affix the imprint of his official seal. Davis v. Hale, 114 Ark. 426, 170 S.W. 99 (1914).

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.
    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.

Research References

Ark. L. Rev.

The Best Evidence Rule — A Rule Requiring The Production of A Writing to Prove The Writing's Contents, 14 Ark. L. Rev. 153.

Authentication and Identification, 27 Ark. L. Rev. 332.

Case Notes

Consideration and Purposes.

The acknowledgment must show that the deed was executed “for the consideration and purposes” therein expressed. The words “consideration” and “purposes” are both material, and if either is omitted, and no word of similar import is used, the acknowledgment is insufficient. Johnson v. Godden, 33 Ark. 600 (1878); Ford v. Burks, 37 Ark. 91 (1881); Drew County Bank & Trust Co. v. Sorben, 181 Ark. 943, 28 S.W.2d 730 (1930); Donham v. Davis, 208 Ark. 824, 187 S.W.2d 722 (1945).

The word “uses” is not of similar import or substantially the same as the word “consideration” required by this section. Martin v. O'Bannon, 35 Ark. 62 (1879).

If the acknowledgment fails to state the consideration, the mortgage, although recorded, is void against subsequent purchasers, even with notice; however, it is good between the parties. Conner v. Abbott, 35 Ark. 365 (1880); Wright v. Graham, 42 Ark. 140 (1883), overruled, Sidway v. Lawson, 58 Ark. 117, 23 S.W. 648 (1893).

The omission of the word “consideration” or words of similar import in the acknowledgment of a mortgage renders the record thereof no notice to third parties. Atlas Supply Co. v. McAmis, 185 Ark. 1168, 51 S.W.2d 982 (1932).

An acknowledgment to a mortgage that it was “executed for the consideration and premises hereinafter set forth” sufficiently complied with this section to entitle the mortgage to be recorded. First Nat. Bank v. Meriwether Sand & Gravel Co., 188 Ark. 642, 67 S.W.2d 599 (1934).

Curative Acts.

An acknowledgment, valid in the state where made, but ineffectual at the time of recordation in Arkansas because of failure to use words required by this section, was cured by Acts 1935, No. 72 and Acts 1937, No. 352. Jackson v. Hudspeth, 208 Ark. 55, 184 S.W.2d 906 (1945).

Proof of Handwriting.

Where a deed was not properly acknowledged, this deficiency was not cured by the attempt after the grantor's death to authenticate the signature; therefore, this instrument was not entitled to the weight given to a properly recorded deed. Frazier v. Frazier, 263 Ark. 768, 567 S.W.2d 629 (1978).

Telephone Acknowledgments.

Where the notary public who had acknowledged previous leases acknowledged renewal lease and who, upon receiving a telephone request from the lessor, testified that she knew the lessor and recognized her voice on the telephone when the lessor called to state that she had signed the lease, the notary's certificate of acknowledgment was regular on its face, and absent any finding of fraud or forgery, the telephone acknowledgment was valid. Stallings v. Poteete, 17 Ark. App. 62, 702 S.W.2d 831 (1986).

Witnesses.

Subsections (b) and (c) require that two witnesses to a signature on an instrument actually witness the signing of the instrument rather than testify as to the authenticity of the signature. Frazier v. Frazier, 263 Ark. 768, 567 S.W.2d 629 (1978).

Cited: Security Bank v. Paul, 268 Ark. 548, 594 S.W.2d 259 (Ct. App. 1980); Brown & Root, Inc. v. Hempstead County Sand & Gravel, Inc., 767 F.2d 464 (8th Cir. 1985); In re Bearhouse, Inc., 99 B.R. 926 (Bankr. W.D. Ark. 1989).

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).

Research References

Ark. L. Rev.

Validation of Instruments Affecting Title to Property, 9 Ark. L. Rev. 414.

Curative Statutes Affecting Title to Real Property in Arkansas, 12 Ark. L. Rev. 386.

Case Notes

Acknowledgment by Interested Party.

An acknowledgment taken by an interested party does not authorize it to be recorded and it imparts no notice; however, such acknowledgments taken before Acts 1883, No. 69, were validated by § 6 of that act. Green v. Abraham, 43 Ark. 420 (1884) (decision under prior law).

Acts 1893, No. 43, did not cure an acknowledgment which was taken by a party to the deed. Meunse v. Harper, 70 Ark. 309, 67 S.W. 869 (1902) (decision under prior law).

Failure to Sign.

Former curative act did not render valid a certificate of acknowledgment which the notary failed to sign although he affixed the imprint of his seal. Davis v. Hale, 114 Ark. 426, 170 S.W. 99 (1914) (decision under prior law).

Homesteads.

A mortgage of a homestead which was invalid because the grantors' wives did not join therein, was cured by former validating act. Sanders v. Flenniken, 172 Ark. 454, 289 S.W. 485 (1926) (decision under prior law).

Lack of Acknowledgment.

The curative provisions of this section cannot supply an acknowledgment when in fact there is none. Pardo v. Creamer, 228 Ark. 746, 310 S.W.2d 218 (1958).

Where a mortgage only contained a jurat by a notary public which simply stated “Given under my hand and official seal this 24th day of November, 2003. [Signed by] Maria F. Looper,” the mortgage was defective as it lacked an acknowledgement; this section did not cure the defect as it does not act to supply an acknowledgment when in fact there is none (decision under prior law). In re Beene, 349 B.R. 574 (Bankr. W.D. Ark. 2006).

Jurat attached to a mortgage was not an acknowledgment and, therefore, the mortgage lien was unperfected under Arkansas law; the provisions of this section could not be used to cure the defect in the mortgage because it does not act to supply an acknowledgment when in fact there was none (decision under prior law). In re Beene, 354 B.R. 856 (Bankr. W.D. Ark. 2006).

This curative statute did not operate to cure a mortgage deed that failed to comply with the acknowledgement requirements in §§ 16-47-106 and 16-47-101 because the transaction occurred after the passage of the statute. Thus, a mortgage lien was not perfected and could be avoided by a trustee under 11 U.S.C.S. §§ 544(a) and 550(a). Williams v. JPMorgan Chase Bank, N.A. (In re Stewart), 422 B.R. 185 (Bankr. W.D. Ark. 2009).

Family's claim that any defects in the acknowledgement of a prenuptial agreement between the decedent and his wife could be cured was rejected as there was no acknowledgement, defective or otherwise, and thus the curative provisions of this section did not apply. Lyle Farms P'ship v. Lyle, 2016 Ark. App. 577, 507 S.W.3d 519 (2016).

Omission of Essential Words.

An acknowledgment valid in the state where made but ineffectual at the time of recordation in Arkansas because of failure to use words required by § 18-12-206 was held to have been cured by former validating acts. Jackson v. Hudspeth, 208 Ark. 55, 184 S.W.2d 906 (1945) (decision under prior law).

Vested Rights.

Former acts, curing defective acknowledgments, did not interfere with vested rights. McGehee v. McKenzie, 43 Ark. 156 (1884) (decision under prior law).

Cited: Sample v. Sample, 237 Ark. 178, 372 S.W.2d 609 (1963).

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.

Research References

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Case Notes

Admissibility.

The only showing upon which a deed can be admitted to evidence is the certificate of acknowledgment by the proper officer. Simpson v. Montgomery, 25 Ark. 365 (1869).

The acknowledgment of the execution of a deed of conveyance, as required by this section, does not alone authorize its introduction as evidence. It must also be filed and recorded or its execution proved at the trial. Wilson v. Spring, 38 Ark. 181 (1881); Watson v. Billings, 38 Ark. 278 (1881); Dorr v. School Dist., 40 Ark. 237 (1882).

An unrecorded mortgage is inadmissible in evidence without proof of its execution. Gardner v. Hughes, 136 Ark. 332, 206 S.W. 678 (1918).

—Copy of Record.

A certified copy of a recorded conveyance is admissible in evidence without proof of the execution. Apel v. Kelsey, 47 Ark. 413, 2 S.W. 102 (1886); Sibly v. England, 90 Ark. 420, 119 S.W. 820 (1909).

If a plaintiff in ejectment is not able to introduce an original deed in evidence, a purported copy from the record is not admissible unless certified by the recorder. Robert v. Brown, 157 Ark. 230, 247 S.W. 1058 (1923).

In a prosecution for forgery, it was not improper to permit the introduction of the record of certain deed, in the chain of title to the land, concerning which it was alleged that forged deed had been uttered by the defendant, without proof that the original deeds were either lost or destroyed. Temple v. State, 126 Ark. 290, 189 S.W. 855 (1916), overruled on other grounds, Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959).

Burden of Proof.

The burden of proof rests upon the person denying that he signed a deed or acknowledged it, to show the falsity of the certificate, which carries the presumption that the officer making it has certified to the truth. Polk v. Brown, 117 Ark. 321, 174 S.W. 562 (1915); Nevada County Bank v. Gee, 130 Ark. 312, 197 S.W. 680 (1917).

The burden of disproving the authenticity of the acknowledgment of a deed before a notary public is on the moving party in order to have the recorded deed declared void for forgery. Lytton v. Johnson, 236 Ark. 277, 365 S.W.2d 461 (1963).

Certificate.

While it is competent for the maker of a deed to prove that there was no appearance before an officer to acknowledge its execution, and no acknowledgment in fact, yet if he did acknowledge it in some manner, the officer's certificate is conclusive as to the terms of the acknowledgment. Petty v. Grisard, 45 Ark. 117 (1885); Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050 (1900).

Parol Evidence.

Parol evidence that a deed has been executed, but not recorded, and lost, is sufficient to admit secondary evidence of its contents. Calloway v. Cossart, 45 Ark. 81 (1885); Crawford v. McDonald, 84 Ark. 415, 106 S.W. 206 (1907).

Parol evidence is admissible to prove true date of an acknowledgment. Merrill v. Sypert, 65 Ark. 51, 44 S.W. 462 (1898).

Prima Facie Evidence.

A recorded and properly acknowledged mortgage makes prima facie case thereon. Straughan v. Bennett, 153 Ark. 254, 240 S.W. 30 (1922).

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….”

Research References

Ark. L. Rev.

Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111.

Real Property — Rule in Shelley's Case as a Rule of Law or Construction, 7 Ark. L. Rev. 411.

The Effect of Stare Decisis Upon Fee Tail in Arkansas, 10 Ark. L. Rev. 181.

The Entailed Estate: Ferment for Reform in Arkansas, 19 Ark. L. Rev. 275.

Destructibility of Contingent Remainders, 21 Ark. L. Rev. 145.

Some Reflections of an Arkansas Property Teacher Upon Reading Professor Leach's “Property Law Indicted,” 21 Ark. L. Rev. 567.

Medieval Law in the Age of Space: Some “Rules of Property” in Arkansas, 22 Ark. L. Rev. 248.

Legislative and Judicial Dynamism in Arkansas: Poisson v. d'Avril, 22 Ark. L. Rev. 724.

U. Ark. Little Rock L.J.

Note — Property — Court of Equity Has the Power to Order a Sale for Reinvestment Even Though No Member of the Class Having a Contingent Future Interest Is Yet in Existence, 6 U. Ark. Little Rock L.J. 321.

Case Notes

Purpose.

The legislature has undertaken not only to regulate the fee tail estate but also to provide a method for its dissolution and the courts should not go beyond the public policy as established by this subchapter. Tucker v. Walker, 246 Ark. 177, 437 S.W.2d 788 (1969).

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.

Case Notes

Conveyance.

Deed, devise, etc., held to create fee tail estate subject to this section. Horsley v. Hilburn, 44 Ark. 458 (1884); Wheelock v. Simons, 75 Ark. 19, 86 S.W. 830 (1905); Mercantile Trust Co. v. Adams, 95 Ark. 333, 129 S.W. 1101 (1910); Mitchell v. Mitchell, 208 Ark. 478, 187 S.W.2d 163 (1945); Tucker v. Walker, 246 Ark. 177, 437 S.W.2d 788 (1969).

Deed, devise, etc., held to create life estate with remainder in life tenant's children. Wheelock v. Simons, 75 Ark. 19, 86 S.W. 830 (1905); Fine v. McGowan, 186 Ark. 1035, 57 S.W.2d 565 (1933); Mitchell v. Mitchell, 208 Ark. 478, 187 S.W.2d 163 (1945); Wilkins v. Wilkins, 212 Ark. 242, 206 S.W.2d 26 (1947); Bradley Lumber Co. v. Burbridge, 213 Ark. 165, 210 S.W.2d 284 (1948); Weatherly v. Purcell, 217 Ark. 908, 234 S.W.2d 32 (1950); Toney v. Toney, 218 Ark. 433, 236 S.W.2d 716 (1951); Robertson v. Sloan, 222 Ark. 671, 262 S.W.2d 148 (1953); Lewis v. Bowlin, 237 Ark. 947, 377 S.W.2d 608 (1964); Fletcher v. Hurdle, 259 Ark. 640, 536 S.W.2d 109 (1976); Spence v. Spence, 271 Ark. 697, 610 S.W.2d 264 (1981).

A grant by deed from husband to wife which in the habendum limited the estate to the wife and her heirs by the grantor born of her body held to create a life estate in the wife. Georgia State Sav. Ass'n v. Dearing, 128 Ark. 149, 193 S.W. 512 (1917).

—Words of Conveyance.

The term “heirs of the body” has an appropriate technical meaning as words of limitation to designate heirs in succession. Myar v. Snow, 49 Ark. 125, 4 S.W. 381 (1887).

The words “children, the natural off-spring of her body” are synonymous with “bodily heirs” or “heirs of her body” and exclude the idea that they are synonymous with the general word “heirs.” Dempsey v. Davis, 98 Ark. 570, 136 S.W. 975 (1911).

“Natural heirs” means “heirs of the body.” Maynard v. Henderson, 117 Ark. 24, 173 S.W. 831 (1915).

Language “unto their heirs only forever” did not destroy technical meaning of “unto their heirs” which creates a fee simple absolute, and change the limitation to mean “unto their bodily heirs” which under this section would create a life estate in the grantee with remainder in his bodily heirs. United States v. 48.9 Acres of Land, 85 F. Supp. 133 (W.D. Ark. 1949).

The words “die without heirs” in devise of life estate and remainder meant the death without children of the remainderman before the termination of the life estate of the widow. In re Estate of Creekmore, 244 Ark. 1, 423 S.W.2d 548 (1968).

Remainder.

Where the grantee of a fee tail estate died leaving a husband and son surviving, the remainder in fee was in the son and the husband took no interest whatsoever in the estate. Maynard v. Henderson, 117 Ark. 24, 173 S.W. 831 (1915).

The entire estate, except the possibility of reverter, passes from the grantor of a fee tail who cannot thereafter defeat the rights of the remaindermen in the land, and this is without regard to whether the fee is considered in abeyance during the estate of the life tenant, or still held by the original grantor for purposes only of passing to the remaindermen upon termination of the life estate. Le Sieur v. Spikes, 117 Ark. 366, 175 S.W. 413 (1915).

Remaindermen held to take fee simple estate. Pletner v. Southern Lumber Co., 173 Ark. 277, 292 S.W. 370 (1927); Bowlin v. Vinsant, 186 Ark. 740, 55 S.W.2d 927 (1933); Cox v. Danehower, 211 Ark. 696, 202 S.W.2d 200 (1947).

The foreclosure of mortgage on land, part of which had been conveyed to the mortgagor and the heirs of her body, was ineffective as to the interest of her children. Metropolitan Life Ins. Co. v. Gardner, 245 Ark. 742, 434 S.W.2d 266 (1968).

—Vesting.

An estate to the grantee and bodily heirs did not vest in remainder in anyone during the life of the grantee holding under the life estate, but vested in the surviving children and their issue at the death of the life tenant. Horsley v. Hilburn, 44 Ark. 458 (1884).

The grantee of a fee tail could not, by her conveyance before the birth of her children, convey more than an estate terminable upon her death, the remainder in fee immediately vesting in her children surviving at that time and their issue, and right of action will not accrue until death of the life tenant. Le Sieur v. Spikes, 117 Ark. 366, 175 S.W. 413 (1915).

An estate to the grantee and bodily heirs vests the remainder in the children living at the time of the conveyance subject to opening up to let in other children; and upon a showing that the life tenant is past the age of giving birth to a child, the remaindermen may join with the life tenant in giving merchantable title. Landers v. People's Bldg. & Loan Ass'n, 190 Ark. 1072, 81 S.W.2d 917 (1935).

Where remainderman had only a contingent interest, deed by devisee and remainderman did not pass merchantable title. Peebles v. Garland, 221 Ark. 185, 252 S.W.2d 396 (1952).

Rule in Shelley's Case.

The rule in Shelley's Case is in force in this state except so far as repealed by this section. Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893); Ryan v. Ryan, 138 Ark. 362, 211 S.W. 183 (1919).

Rule held applicable. Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893); First Nat'l Bank v. Graham, 195 Ark. 586, 113 S.W.2d 497 (1938).

Rule held inapplicable. Wilmans v. Robinson, 67 Ark. 517, 55 S.W. 950 (1900); Rogers v. Ogburn, 116 Ark. 233, 172 S.W. 867 (1915); Georgia State Sav. Ass'n v. Dearing, 128 Ark. 149, 193 S.W. 512 (1917); Robertson v. Sloan, 222 Ark. 671, 262 S.W.2d 148 (1953).

The rule in Shelley's Case is only applicable when the language of the will or conveyance creates a limitation to the heirs of the devisees or grantee in general; if the limitation is to the bodily heirs or the heirs of the body of the grantee, then the rule in Shelley's Case has no application. Gray v. McGuire, 140 Ark. 109, 215 S.W. 693 (1919).

Cited: Sligh v. Plair, 263 Ark. 936, 569 S.W.2d 58 (1978); Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997).

18-12-302. Dissolution.

    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.
  1. 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.
  2. 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.

Case Notes

Constitutionality.

This section is not contrary to any provision of the state constitution nor does it violate the federal constitution. Anderson v. Webb, 241 Ark. 233, 406 S.W.2d 871 (1966).

Cited: Sligh v. Plair, 263 Ark. 936, 569 S.W.2d 58 (1978).

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

    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.
  1. 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.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Property Law, Abolishment of Rule in Shelley's Case, 26 U. Ark. Little Rock L. Rev. 459.

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.
    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.
  2. 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.
  3. 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.

Research References

Ark. L. Rev.

Real Property — Creation of a Tenancy by the Entirety by a Conveyance from One Spouse to Husband and Wife, 7 Ark. L. Rev. 69.

Case Notes

Interest Conveyed.

A warranty deed to real property executed by a husband to his wife conveyed the entire interest in the property to his wife. Sandidge v. Sandidge, 212 Ark. 608, 206 S.W.2d 755 (1947).

Tenancy by Entirety.

Conveyance in a divorce settlement by husband directly to wife of real estate held as tenants by entirety was valid. Ryan v. Roop, 214 Ark. 699, 217 S.W.2d 916 (1949).

Husband's interest in estate by entirety may be conveyed to wife. Weir v. Brigham, 218 Ark. 354, 236 S.W.2d 435 (1951).

Spouse owning real estate in own name can make direct conveyance of title to both spouses as tenants by the entirety. Ebrite v. Brookhyser, 219 Ark. 676, 244 S.W.2d 625 (1951); Harmon v. Thompson, 223 Ark. 10, 263 S.W.2d 903 (1954).

Cited: West v. Smith, 225 Ark. 365, 282 S.W.2d 597 (1955); Redmon v. Hill, 233 Ark. 45, 342 S.W.2d 410 (1961); Johnson v. Johnson, 237 Ark. 311, 372 S.W.2d 598 (1963); Schichtel v. Schichtel, 3 Ark. App. 36, 621 S.W.2d 504 (1981); Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990); McCracken v. McCracken, 2009 Ark. App. 758, 358 S.W.3d 474 (2009).

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.

Case Notes

Contract for Relinquishment.

A husband had a right to contract with his wife to pay her a portion of the proceeds of the sale of real estate to induce her to relinquish her right to dower. Le Croy v. Cook, 211 Ark. 966, 204 S.W.2d 173 (1947).

Wife executed a quitclaim deed and an agreed order conveying her interest in the marital home to her ex-husband, but no such release of rights was executed by the homeowner; therefore, because homeowner did not join in the deed with his wife when she conveyed her interest in the property to her ex-husband, the statutory requirements of this section were not satisfied. O'Marra v. MacKool, 361 Ark. 32, 204 S.W.3d 49 (2005).

Effect of 1919 Amendment.

The 1919 amendment was not a curative statute and did not operate to validate conveyances irregular prior to its enactment. Fulk v. Robinson, 140 Ark. 212, 215 S.W. 674 (1919).

Joining in Deed.

Acknowledgment of deed, without joining in the deed, is not sufficient. Witter v. Biscoe, 13 Ark. 422 (1853) (decision prior to 1919 amendment).

A married woman could not release dower in favor of her husband; she could only release it by joining with the husband in a deed to a third person. Countz v. Markling, 30 Ark. 17 (1875); Pillow v. Wade, 31 Ark. 678 (1877) (preceding decisions prior to 1919 amendment).

When a husband's deed is followed by a paragraph relinquishing dower, and then follow the signatures of both husband and wife, this is such joining in the deed as is required for the relinquishment of dower. Meyer v. Gossett, 38 Ark. 377 (1882).

A wife may relinquish her dower by joining in her husband's deed and acknowledging it without any clause of relinquishment in the deed. Dutton v. Stuart, 41 Ark. 101 (1883).

When a married woman joins her husband in the execution of a deed in which she has no estate except a contingent right of dower, and the deed contains no clause relinquishing dower, her right to dower is barred thereby, if the deed is properly acknowledged. Johnson v. Parker, 51 Ark. 419, 11 S.W. 681 (1889).

Minors.

The relinquishment of dower by a married woman while under lawful age is voidable. Watson v. Billings, 38 Ark. 278 (1881).

Nonresident.

A married woman residing in another state can convey land in Arkansas only in the manner prescribed by statute. McDaniel v. Grace, 15 Ark. 465 (1855).

Property Settlement.

Property settlement agreement between husband and wife was not sufficient to convey dower rights. Whitener v. Whitener, 227 Ark. 1038, 304 S.W.2d 260 (1957).

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.

Research References

Ark. L. Notes.

Laurence, Does Arkansas's Homestead Exemption Survive a Divorce? Should It?, 1988 Ark. L. Notes 15.

Ark. L. Rev.

Bryan Malloy, Case Note: Minor Fix or Major Pain: The Impact of Fitton v. Bank of Little Rock on Arkansas's Homestead Exemption, 66 Ark. L. Rev. 577 (2013).

U. Ark. Little Rock L. Rev.

Lynn Foster, Arkansas’s Trust Code and Trust Planning: A Ten-Year Perspective, 38 U. Ark. Little Rock L. Rev. 301 (2016).

Case Notes

Note. Most of the following cases were decided prior to the 1981 amendment to this section which made the section apply to conveyances by wives as well as by husbands.

Constitutionality.

The gender-based discrimination contained in this section prior to its 1981 amendment served no valid governmental interest; accordingly, it unconstitutionally violated the equal protection clause of the fourteenth amendment to the United States Constitution. Conser v. Biddy, 274 Ark. 367, 625 S.W.2d 457 (1981) (decision prior to 1981 amendment).

Purpose.

The legislature undertook to create no interest or estate by this section, but to prescribe the manner in which instruments affecting the homestead of a married man should be executed and acknowledged. Sidway v. Lawson, 58 Ark. 117, 23 S.W. 648 (1893) (decision prior to 1981 amendment).

The purpose of this section was to protect the wife by forbidding the husband either to sell by absolute conveyance or encumber the homestead without the wife joining in the deed. Park v. Park, 71 Ark. 283, 72 S.W. 993 (1903); Conser v. Biddy, 274 Ark. 367, 625 S.W.2d 457 (1981) (decisions prior to 1981 amendment).

Applicability.

Provision of this section declaring that no instrument affecting homestead is valid unless signed by wife applies also to insane wife not under guardianship. Penney v. Vessells, 221 Ark. 389, 253 S.W.2d 968 (1952) (decision prior to 1981 amendment).

Section not applicable to conveyance of property other than homestead. Hickerson v. Lyon, 229 Ark. 24, 312 S.W.2d 930 (1958).

Abandonment.

A conveyance invalid under this section is not cured by subsequent abandonment, and the homestead becomes liable to attachment for the homesteader's debts which relate back to the date of the lien of the writ, and where antedating the deed, give a lien prior to any title acquired under it. Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433 (1893); Newman v. Jacobson, 108 Ark. 297, 158 S.W. 134 (1913).

The husband could abandon the homestead and it would become liable to his debts notwithstanding this section. Sidway v. Lawson, 58 Ark. 117, 23 S.W. 648 (1893).

While this section is a limitation upon the right of a husband to convey his homestead, it does not restrict his right of abandonment; and when he exercises his right of abandonment of the homestead, it is not required that the wife join in conveyance of the abandoned homestead. Farmers' Sav. Bldg. & Loan Ass'n v. Jones, 68 Ark. 76, 56 S.W. 1062 (1900); Stewart v. Pritchard, 101 Ark. 101, 141 S.W. 505 (1911).

The right of abandonment is restricted to abandonment and selection of another or none, and if a husband deserts his family and abandons the homestead without his family joining in the abandonment, he cannot thereafter convey the homestead without the wife joining. Montgomery v. Dane, 81 Ark. 154, 98 S.W. 715 (1906).

While the husband may not convey the homestead without his wife's consent, he may abandon it without her consent. Brown v. Brown, 104 Ark. 313, 149 S.W. 330 (1912); Vestal v. Vestal, 137 Ark. 309, 209 S.W. 273 (1919).

Husband may abandon homestead without wife's consent if he has not deserted his wife and abandoned his family. McKenzie v. Rumph, 171 Ark. 791, 286 S.W. 1022 (1926).

Burden of Proof.

A married woman suing to set aside a mortgage of her homestead apparently signed and acknowledged by her has the burden of establishing that she did not sign or acknowledge it. Walthall v. McArthur, 185 Ark. 437, 48 S.W.2d 227 (1932).

Burden was on party who asserted that contract was void because the land constituted the homestead of the grantor and the wife did not join in written conveyance. Kinney v. Patterson, 225 Ark. 393, 282 S.W.2d 809 (1955).

Compliance.

—Effect of Noncompliance.

Deeds made without regard to this section are void absolutely, and not relatively, to every extent and as to all persons and leave the title as if they had not been made. Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433 (1893).

An absolute conveyance by the husband of the homestead with a reservation in himself of a life estate without the wife joining is in detriment of the wife's interest and void. Park v. Park, 71 Ark. 283, 72 S.W. 993 (1903).

A conveyance of the homestead without the wife joining is void even though she lives in another state. Mason v. Dierks Lumber & Coal Co., 94 Ark. 107, 125 S.W. 656 (1910).

Husband's assignment of his paid-up contract of purchase of homestead as security for a loan, the wife failing to join therein, was void. Watson v. Poindexter, 176 Ark. 1065, 5 S.W.2d 299 (1928).

Easement for right-of-way over homestead, not acknowledged by the wife, was void. Autrey v. Lake, 195 Ark. 243, 112 S.W.2d 434 (1938); Arkansas State Hwy. Comm'n v. Marlar, 247 Ark. 710, 447 S.W.2d 329 (1969).

It does not matter whether property is owned by husband or wife, where property constitutes homestead, contract is void when wife does not sign. Bowden v. Wilson, 214 Ark. 828, 218 S.W.2d 374 (1949).

The nonjoinder of a spouse in the anticipated conveyance of real estate is not such a defect in the title as would prevent real estate broker from recovering commission after he secured buyer. Portis v. Thrash, 216 Ark. 946, 229 S.W.2d 127 (1950).

Wife's failure to join in the contract of sale of an urban homestead renders it absolutely void with respect to the homestead of at least the constitutional minimum of a quarter of an acre. Rowe v. Gose, 240 Ark. 722, 401 S.W.2d 745 (1966).

Where wife did not join in execution of lease by husband to his mother of property including the homestead, and land involved was not within an incorporated town or city, the entire tract was the homestead, regardless of value, and the lease was void. George v. George, 267 Ark. 823, 591 S.W.2d 655 (Ct. App. 1979).

Where husband and wife each executed separate quitclaim deeds conveying same property to wife's parents, deeds were void because spouse did not join in either deed, and subsequent deed of correction signed by both parties did not validate the void deeds and property did not actually convey until date on which deed of correction was executed. Blackford v. Dickey, 302 Ark. 261, 789 S.W.2d 445 (1990).

—Intent of Spouse.

If the deed shows an intent on the part of the wife to join with her husband in the conveyance of the homestead, there is compliance with this section. Gantt v. Hildreth, 90 Ark. 113, 118 S.W. 255 (1909); A.R. Bowdre & Co. v. Pitts, 94 Ark. 613, 128 S.W. 57 (1910).

Where mortgage specifically provided for the release of former wife's homestead interests but did not specifically mention husband's homestead interests, and because a conveyance may include unspecified homestead interests if the conveyance is intended to transfer all interests in the property, the document was conclusive on the question of intent to convey homestead interests, and the plaintiff husband and his former wife waived their homestead interests in real property. In re Holder, 52 B.R. 37 (Bankr. W.D. Ark. 1985).

—Manner.

Form of compliance is immaterial so long as the two substantive acts (joinder in execution and acknowledgment) prescribed as prerequisites appear in the deed, and unless they do appear, the deed is void. Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433 (1893).

Where the wife's name did not appear in the body of the deed but was subscribed in the acknowledgment, there was sufficient compliance with this section. Ward v. Stark Bros., 91 Ark. 268, 121 S.W. 382 (1909).

To execute a valid deed of trust on homestead property, the wife must join in and acknowledge that she has executed the deed. Davis v. Hale, 114 Ark. 426, 170 S.W. 99 (1914).

If the wife actually joins in executing the deed, and then acknowledges its execution before an officer authorized to certify acknowledgments, she has done all the substantive acts required; and, as this section prescribes no form or manner of doing them, there cannot be noncompliance with its provisions for matter of form merely; whenever a substantial compliance appears, this section is satisfied and the deed will be valid. Mayfield v. Sehon, 205 Ark. 1142, 172 S.W.2d 914 (1943).

It is not essential to the validity of a deed of trust on the homestead that the name of the wife appear in the granting clause, nor that the word “homestead” be used. Mayfield v. Sehon, 205 Ark. 1142, 172 S.W.2d 914 (1943).

—Release of Dower.

A release of dower and nothing more, in a clause following the granting clause, is not a joinder with the grantor in conveyance of the homestead. Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433 (1893).

Joinder in acknowledgment of a deed is not sufficient compliance if the acknowledgment, insofar as the wife is concerned, is an acknowledgment merely of a relinquishment of dower. Bank of Harrison v. Gibson, 60 Ark. 269, 30 S.W. 39 (1895).

Although the wife's name did not appear in the granting clause but was subscribed with the other grantors in the acknowledgment, and the deed contained no clause as to the relinquishment of dower, there was sufficient compliance with this section. Sledge & Norfleet Co. v. Craig, 87 Ark. 371, 112 S.W. 892 (1908).

Where the acknowledgment recited that the wife relinquished both dower and homestead but the body of the instrument contained a clause that she relinquished dower but it was not perfectly evident that she joined in its execution, it was held that there was a relinquishment of dower only and the conveyance was void. Shurn v. Wilkinson, 131 Ark. 167, 198 S.W. 279 (1917).

Contract to Convey Homestead.

Husband cannot make contract to convey homestead which will bind his wife; and equitable title did not pass even though the wife joined the husband in a deed after the homestead was destroyed by fire. Waters v. Hanley, 120 Ark. 465, 179 S.W. 817 (1915).

There is no liability for breach of contract to convey homestead where wife refuses to join in the conveyance. Ferrell v. Wood, 149 Ark. 376, 232 S.W. 577 (1921).

Conveyance Between Spouses.

This section does not require that the wife join in a conveyance from her husband to herself. Kindley v. Spraker, 72 Ark. 228, 79 S.W. 766 (1904).

A wife must join in conveyance to herself and her children, otherwise it would be invalid as to the children. Stephens v. Stephens, 108 Ark. 53, 156 S.W. 837 (1913). But see Polk v. Stephens, 126 Ark. 159, 189 S.W. 837 (1916).

Conveyance of homestead to wife and children is valid if accepted by wife. Polk v. Stephens, 126 Ark. 159, 189 S.W. 837 (1916); Graham v. Inlow, 296 Ark. 165, 753 S.W.2d 277 (1988).

A conveyance of homestead by husband to wife is valid if accepted by wife. Lathrop v. Sandlin, 223 Ark. 774, 268 S.W.2d 606 (1954); Graham v. Inlow, 296 Ark. 165, 753 S.W.2d 277 (1988).

Conveyance by Will.

Bequest of testator's homestead to wife and child for life with remainder to another did not invalidate a will. The homestead was not affected since remainderman was given no right until the homestead ceased to exist. Reeves v. Bridges, 193 Ark. 292, 99 S.W.2d 242 (1936).

Curative Acts.

Acts 1893, No. 172, p. 303 cured defective deeds as between the parties, but the vested rights of third persons acquired between the enactment of this section and April 13, 1893 were not affected by the curative act. Sidway v. Lawson, 58 Ark. 117, 23 S.W. 648 (1893); Bluff City Lumber Co. v. Bloom, 64 Ark. 492, 43 S.W. 503 (1897).

A conveyance of a homestead which was defective because it did not conform to this section was cured by the passage of Acts 1899, No. 56, p. 107. McDaniels v. Sammons, 75 Ark. 139, 86 S.W. 997 (1905); Rhea v. Planters' Mut. Ins. Ass'n, 77 Ark. 57, 90 S.W. 850 (1905).

Conveyance improperly acknowledged was made valid by Acts 1923, p. 43. Flannigan v. Beavers, 172 Ark. 28, 287 S.W. 755 (1926); Sanders v. Flenniken, 172 Ark. 454, 289 S.W. 485 (1926).

Where wife refused to sign a trust deed conveying homestead, the trust deed was void, and not cured by Acts 1923, p. 43. Ramey v. Pyles, 182 Ark. 320, 31 S.W.2d 533 (1930).

Divorce.

Divorce decree divests the wife of homestead rights. Johnson v. Commonwealth Bldg. & Loan Ass'n, 182 Ark. 226, 31 S.W.2d 136 (1930); Elms v. Hall, 214 Ark. 601, 215 S.W.2d 1021 (1948).

Estoppel.

Where the grantor intentionally misrepresents himself as a single man in the conveyance of his homestead, he and his privities in blood and estate are estopped to cancel the deed; but the wife is not. Mason v. Dierks Lumber & Coal Co., 94 Ark. 107, 125 S.W. 656 (1910).

A wife by joining in her husband's conveyance in fee abandoned her rights in the homestead and could not thereafter be a proper party in foreclosure proceeding of a mortgage previously given by the husband under a false representation that he was a single man. Johnson v. Commonwealth Bldg. & Loan Ass'n, 182 Ark. 226, 31 S.W.2d 136 (1930).

Judgment cannot be rendered against the wife in mortgage foreclosure proceeding against the homestead where she did not join in the mortgage, and she is not estopped by the fact that the husband borrowed the money when she had no knowledge of the existence of the mortgage. Callaway v. Ashby, 192 Ark. 929, 95 S.W.2d 907 (1936).

Deed conveying timber on lands constituting grantor's homestead, not executed or acknowledged by wife, is void, but wife who knew of conveyance and received the benefits of payments on the purchase price was estopped from questioning its validity. Edwards v. Jones, 197 Ark. 229, 123 S.W.2d 286 (1939).

Where wife did not protest renewal of mortgage without her signature, and did not present evidence showing that she had no knowledge of renewal of mortgage or that she had not shared in the benefits of the proceeds of the original loan, wife was estopped from applying this section. In re Beard, 108 B.R. 212 (Bankr. W.D. Ark. 1989).

Although an instrument affecting the homestead of a married person is generally invalid unless the person's spouse joins in the instrument, a spouse may be estopped to deny the validity of an instrument in which he or she did not join. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999).

The appellants were estopped from arguing that a lease was void for want of the signature of the wife of the original lessor where the wife was aware of the lease, accepted the monetary benefits of the lease, and expressed no objection that her name was not on the lease. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999).

Circuit court properly found that the protections of this section were not available to ex-wife because she was aware of the lien on the property; she knew there was a loan that obligated her to pay a debt, she behaved as though she understood that she was so obligated, and even after she claimed she learned about the alleged forgeries of her name to the documents, she agreed to take responsibility for any debt on the property in exchange for sole ownership of it in the divorce. Kline v. PHH Mortg. Corp., 2019 Ark. App. 462, 587 S.W.3d 262 (2019).

There was no evidence to support a finding that ex-wife acknowledged the mortgage within the meaning of this section but she did not demonstrate reversible error because the circuit court did not make a finding of compliance with this section but instead found estoppel. Kline v. PHH Mortg. Corp., 2019 Ark. App. 462, 587 S.W.3d 262 (2019).

Fraud.

An acknowledgment valid to convey the wife's dower will be sufficient to relinquish homestead rights even though the wife was induced to execute it by misrepresentations that the mortgage did not cover the homestead. Hill v. Yarborough, 62 Ark. 320, 35 S.W. 433 (1896).

Where a husband procured his wife to join in a deed conveying their homestead by false pretenses and the homestead was thereafter reconveyed to him for life with remainder to his children, the conveyance was a fraud upon the wife's right to dower and homestead. Colegrove v. Colegrove, 89 Ark. 182, 116 S.W. 190 (1909).

No fraud or undue influence actually exercised over the wife by the husband can vitiate the conveyance if the grantee be no party to the improper influence and has no knowledge of it. Harper v. McGoogan, 107 Ark. 10, 154 S.W. 187 (1913).

Gift.

Husband cannot give part of homestead away without wife's joinder. McLeod v. McLeod, 130 Ark. 481, 198 S.W. 115 (1917).

Instruments Affecting Homestead.

Where a quitclaim instrument expressly recognized the wife's homestead and reserved that right to her, it was not an “instrument affecting the homestead” within the prohibition of this section. Conser v. Biddy, 274 Ark. 367, 625 S.W.2d 457 (1981).

Homestead exemption could extend to a revocable trust where the person claiming the exemption was the trustee and beneficiary, and maintained the property as the person's principal place of business, because this section invalidated any conveyance affecting entitlement to a homestead exemption in which a spouse did not join in the execution. Fitton v. Bank of Little Rock, 2010 Ark. 280, 365 S.W.3d 888 (2010).

Purchase Money.

A mortgage executed to secure money advanced to the mortgagor to pay for the homestead is valid without joinder of the wife, being within the exception in this section. Farnsworth v. Hoover, 66 Ark. 367, 50 S.W. 865 (1899); Sirman v. Sloss Realty Co., 198 Ark. 534, 129 S.W.2d 602 (1939).

Cited: Oliver v. Routh, 123 Ark. 189, 184 S.W. 843 (1916); Sims v. McFadden, 217 Ark. 810, 233 S.W.2d 375 (1950); Childs v. Lambert, 230 Ark. 366, 323 S.W.2d 564 (1959); Ford v. Felts, 3 Ark. App. 235, 624 S.W.2d 449 (1981); Merchants & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990); Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001).

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.”

Research References

ALR.

Recovery of damages for breach of contract to convey homestead where only one spouse signed contract. 5 A.L.R.4th 1310.

Ark. L. Rev.

Leflar, Liberty and Death: Advance Health Care Directives and the Law of Arkansas, 39 Ark. L. Rev. 375.

U. Ark. Little Rock L.J.

Dicker, Symposium on Developmental Disabilities and the Law — Guardianship: Overcoming the Last Hurdle to Civil Rights for the Mentally Disabled, 4 U. Ark. Little Rock L.J. 485.

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, 16-47-10316-47-106, 16-47-110, 18-12-101, 18-12-102, 18-12-104, 18-12-105, 18-12-201, 18-12-20318-12-206, 18-12-209, 18-12-301, 18-12-402, 18-12-501, 18-12-502, 18-12-60118-12-603.

Case Notes

In General.

An agent's power to convey land for principal must possess the same requisites and observe the same solemnities as are necessary in a deed directly conveying the lands. Less v. Manning, 202 Ark. 138, 149 S.W.2d 40 (1941).

Applicability.

A petition for local improvement is not within this section. Board of Improv. Dist. No. 5 v. Offenhauser, 84 Ark. 257, 105 S.W. 265 (1907).

Husband and Wife.

Husband, acting as agent for his wife, could not, without written power of attorney, convey her property so as to bind her. Less v. Manning, 202 Ark. 138, 149 S.W.2d 40 (1941).

Recordation.

Powers by which deeds are made must be recorded, or the record of the deed will not be notice to a subsequent purchaser from the party executing power. Jones v. Green, 41 Ark. 363 (1883).

Cited: Greif Bros. Cooperage Corp. v. United States Gypsum Co., 341 F.2d 167 (8th Cir. 1965).

18-12-502. Revocation.

    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.
  1. 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.
    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.

Case Notes

Power of Attorney.

Husband, acting as agent for his wife, could not, without written power of attorney, convey her property so as to bind her. Less v. Manning, 202 Ark. 138, 149 S.W.2d 40 (1941).

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.

Research References

Ark. L. Rev.

Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111.

Estoppel to Assert an After Acquired Title in Arkansas, 17 Ark. L. Rev. 67.

Case Notes

Applicability.

This section applies to conveyances made by corporations as well as individuals. Jones v. Green, 41 Ark. 363 (1883).

This section refers only to the voluntary sales of the person to be bound. Horsley v. Hilburn, 44 Ark. 458 (1884).

As the mortgage is, as at common law, the conveyance of a conditional estate, and this section applies to any conveyance purporting to convey a fee simple or less estate, the provisions must apply to mortgages equally as to conveyances absolute in form. Kline v. Ragland, 47 Ark. 111, 14 S.W. 474 (1886).

This section does not apply to conveyances made by state. St. Louis Refrigerator & Wooden Gutter Co. v. Langley, 66 Ark. 48, 51 S.W. 68 (1898).

This section is applicable to conveyance by deed of trust made by contingent remainderman. Jernigan v. Daughtry, 194 Ark. 623, 109 S.W.2d 126 (1937).

Although creditor banks argued that their lis pendens filings and quitclaim deeds given to debtor by her relatives related back to prior transfers and operated to perfect their interests in the properties prior to the preference period, because the bankruptcy court found that the lis pendens filings and quitclaim deeds were avoidable preferences under 11 U.S.C.S. § 547(b), the doctrine of after-acquired title was not effective to secure the banks' interests, if any, in the properties; moreover, the facts did not involve the simple defective acknowledgment of a mortgage, but rather, the entities that mortgaged these properties to the banks in fact had no legal interest in the properties themselves. Rice v. First Ark. Valley Bank (In re May), 310 B.R. 405 (Bankr. E.D. Ark. 2004).

The common law doctrine of after-acquired title, codified in this section, did not apply to a case of a foundation and its representative granting a life estate to a grantee in property which the grantors did not own and did not later acquire. Jackson v. Smith, 2010 Ark. App. 681, 380 S.W.3d 443 (2010).

Adverse Possession.

An after-acquired title inures to the benefit of the grantee and all subsequent grantees who are presumed to hold under such title unless adverse occupancy is shown independent of that chain of title. Grayson-McLeod Lumber Co. v. Duke, 160 Ark. 76, 254 S.W. 350 (1923).

Constructive Trusts.

Where a purchaser of land conveyed the land by warranty deed, without paying the purchase money notes, and subsequently purchased the land on foreclosure of the vendor's lien, he became trustee for those deraigning title under him. Lewis v. Bush, 171 Ark. 192, 283 S.W. 377 (1926).

Delivery.

For a deed to take effect as a conveyance of an after-acquired title, there must be an irrevocable delivery. Rogers v. Snow Bros. Hdwe. Co., 186 Ark. 183, 52 S.W.2d 969 (1932).

Easements.

Where property owners granted a right-of-way to a gas company across a lot which they did not own, the subsequent acquisition of the north lot by the grantors immediately gave the gas company a right-of-way across the lot. Hatfield v. Arkansas W. Gas Co., 5 Ark. App. 26, 632 S.W.2d 238 (1982).

Escrow.

Merely by the delivery of the deed into escrow, the vendees obtained no interest in the property until they fulfilled the conditions of the escrow agreement and contract; the doctrine of after-acquired title requires a conveyance. White v. Cordes, 14 Ark. App. 104, 685 S.W.2d 524 (1985).

Interest Passed.

Where a grantor of land belonging to the state subsequently purchased it from the state and received certificates of entry which entitled him to a patent when the state's title should be confirmed, he acquired an equitable title which inured to the benefit of his grantee. Rozell v. Chicago Mill & Lumber Co., 76 Ark. 525, 89 S.W. 469 (1905); Osceola Land Co. v. Chicago Mill & Lumber Co., 84 Ark. 1, 103 S.W. 609 (1907).

Title acquired at a tax sale subsequent to the execution of a warranty deed to the land so purchased will pass to the grantee. Tupy v. Kocourek, 66 Ark. 433, 51 S.W. 69 (1899); Fox v. Three States Lumber Co., 85 Ark. 497, 108 S.W. 1137 (1908).

Where a grantor attempts to convey a greater estate in lands than he has a right and title to at the time of conveyance, then an after-acquired title passes to the grantee, but no greater estate than was attempted to be passed in the first conveyance. Henry v. Gulf Ref. Co., 176 Ark. 133, 2 S.W.2d 687 (1927); Henry v. Gulf Ref. Co., 179 Ark. 138, 15 S.W.2d 979 (1929).

Where deed purported to convey lands in fee simple absolute, although there was no warranty of title, any interest which grantor may have since acquired by inheritance or otherwise passed under the deed. DeLay v. Bond, 206 Ark. 762, 177 S.W.2d 772 (1942).

Conveyance by life tenant of “entire interest” in land also warranting “the title to my interest” was effective to transfer any alienable interest that life tenant may have had in the land. Hutchison v. Sheppard, 225 Ark. 14, 279 S.W.2d 33 (1955).

Where husband and wife conveyed property held by entirety to his sister, if the widow regained title after husband's death, it would have reverted to husband's sister under this section. Ellis v. Ashby, 227 Ark. 479, 299 S.W.2d 206 (1957).

Where deed contained covenants of general warranty, it would pass any rights grantors might then have and might thereafter have acquired in any part of the entire tract. Rose Lawn Cem. Ass'n v. Scott, 229 Ark. 639, 317 S.W.2d 265 (1958).

Liens and Mortgages.

If, between the date of the conveyance of real estate by a grantor who has no title or an imperfect title and the subsequent acquisition of perfect title, a judgment is rendered against the grantor, the title of the grantee is prior to the lien of the judgment. Watkins v. Wassell, 15 Ark. 73 (1854).

A title acquired after the execution of a mortgage inures to the mortgagee's benefit. Kline v. Ragland, 47 Ark. 111, 14 S.W. 474 (1886); Broadway v. Sidway, 84 Ark. 527, 107 S.W. 163 (1907).

One who, after executing a mortgage on a tract of land owned by another, acquired the interest of a mortgagee from the true owner, did not acquire such an interest in the land as would pass under this section as its value was dependent upon the debt and became worthless when the debt was paid. Turman v. Sanford, 69 Ark. 95, 61 S.W. 167 (1901).

Where one, intending to purchase certain lands, executes a mortgage to secure money with which to pay for it, but which money is not furnished, he may later mortgage the same land to another for the same purpose who, on furnishing the money, secures a lien on the land superior to the first mortgage, even though the first mortgage was recorded. Faulkner County Bank & Trust Co. v. Vail, 173 Ark. 406, 293 S.W. 40 (1927).

It would be a violation of the spirit of this section to permit mortgagor to acquire title from a prior mortgagee who had bought the land after sale under such mortgage, and then defeat the payment or hold that the land was not subject to the lien of the second mortgage. Stone v. Morris, 177 Ark. 745, 7 S.W.2d 796 (1928).

Where a husband and wife gave a bank a mortgage which was recorded, then construction began on a house on that lot, and finally the couple recorded their own deed on the land, the mortgage had priority over the materialmen's liens since title was in another at the time the materialmen's liens attached and no such lien could exist absent a valid contract with the landowner at the time of delivery, whereas title could relate back for the purposes of the mortgage. Katterjohn Concrete Prods., Inc. v. Coffman, 264 Ark. 503, 573 S.W.2d 306 (1978).

Mineral Rights.

Where widow executed warranty deed as her son's guardian conveying mineral rights in which she had only a life estate, title which she had attempted to convey and warrant passed to her grantee and his successors in interest when she acquired her son's interest by quitclaim deed after he became of age. Sheppard v. Zeppa, 199 Ark. 1, 133 S.W.2d 860 (1939).

Where owner of mortgaged land executed mineral deeds, each containing a covenant of general warranty, and thereafter the mortgage was foreclosed in suit which cut off rights of junior title claimants, and two years thereafter such owner reacquired the property, he was estopped from disputing the validity of the mineral conveyances which he executed. Hayes v. Coats, 218 Ark. 678, 238 S.W.2d 935 (1951).

Where husband and wife executed deeds to mineral interests in mortgaged property, although wife had only an inchoate interest therein, and later after death of husband, the mortgage was foreclosed in proceedings in which the mineral rights owners were not made parties, and the purchaser at the foreclosure sale conveyed an interest in the property to the wife, the title so acquired by the wife, as to the mineral interests passed to the purchasers under the previous mineral deeds. Robertson v. Griffin, 227 Ark. 969, 302 S.W.2d 773 (1957).

This section did not convey plaintiffs the mineral rights they alleged they obtained from defendant two in 2003, which had been conveyed to defendant two by defendant one in 1997, when the rights were conveyed to defendant one in 2004 as the deeds had been reformed deeds and related back to their original execution, and there was no mineral title to pass under this section. Mauldin v. Snowden, 2011 Ark. App. 630, 386 S.W.3d 560 (2011).

In a case involving the mineral rights to 220 acres of property, reformation of a warranty deed for the surface estate was proper based on mutual mistake because the deed failed to properly include a reservation of the mineral interest. There was no need to reform all of the deeds and conveyances subsequent to the conveyance at issue because, once that deed was reformed, there was no evidence that any of the deeds were not as intended by the parties to those deeds, and, because of the reformation, there were no mineral interests to pass under the after-acquired title statute. Longing Family Revocable Trust v. Snowden, 2013 Ark. App. 81, 426 S.W.3d 488 (2013).

Oil, Gas, and Mineral Rights.

Ruling in favor of a corporation that the decedent's wife did not hold title to the land or mineral rights at issue was proper because she possessed only a dower interest under § 28-11-301 at the time of the 1986 deed and the after-acquired title doctrine barred her from asserting a claim to the property. At most, she had only a dower interest in the oil, gas, and mineral rights reserved by her husband in the 1986 deed and even if the deed had specifically limited her conveyance to her actual interest at the time, that interest was inchoate when the deed was executed. Evans v. SEECO, Inc., 2011 Ark. App. 739 (2011).

Quitclaim Deeds.

A quitclaim deed is insufficient to convey after-acquired title. Wells v. Chase, 76 Ark. 417, 88 S.W. 1030 (1905); Holmes v. Countiss, 195 Ark. 1014, 115 S.W.2d 553 (1938); Union Trust Co. v. Watts, 201 Ark. 1011, 148 S.W.2d 318 (1941).

A quitclaim deed, for a substantial consideration, purporting to convey all interest in the land “present or prospective” of a contingent remainderman, upon the death of the life tenant became fully effective to transfer title. Bradley Lumber Co. v. Burbridge, 213 Ark. 165, 210 S.W.2d 284 (1948).

Where husband and wife were in possession of real estate by a deed with a faulty description as tenants by entirety and the husband deeded his interest to wife, and later acquired a quitclaim deed in his name to correct the description, the after-acquired title immediately vested title in wife. Hayes v. Gordon, 217 Ark. 18, 228 S.W.2d 464 (1950).

Wills.

Although this section refers to conveyances by deed, devises were always regarded as a mode of conveyance, and after-acquired property will be conveyed by a will. Patty v. Goolsby, 51 Ark. 61, 9 S.W. 846 (1888). (But see § 18-12-101 and notes thereto.).

Cited: Cocke v. Brogan, 5 Ark. 693 (1844); Shreve v. Carter, 177 Ark. 815, 8 S.W.2d 443 (1928); Levins v. Edwards, 228 Ark. 1111, 312 S.W.2d 447 (1958).

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.

Research References

Ark. L. Rev.

The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.

Case Notes

Multiple Conveyances.

Under this section, where one who has conveyed his property while an infant, executes after his arrival at majority another deed conveying the property to another person, the first deed is thereby disaffirmed. Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75 (1909).

If the grantee breaches a condition subsequent, the grantor, by virtue of this section, can effect a forfeiture of the condition by conveying to another. Moore v. Sharpe, 91 Ark. 407, 121 S.W. 341 (1909).

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.

Research References

Ark. L. Notes.

Joel Hutcheson, Say What You Mean! How Arkansas Courts Are Contradicting the Default Rule of Tenancy in Common, 71 Ark. L. Notes 22 (2019).

Ark. L. Rev.

Gift and Estate Tax Consequences of Arkansas Cotenancies, 7 Ark. L. Rev. 237.

Recent Developments: Property: Effect of Illegal Marriage on Purported Tenancy by Entirety, 32 Ark. L. Rev. 823.

Case Notes

Children as Cotenants.

Where a testator devises land to his children, they become tenants in common. Lester v. Kirtley, 83 Ark. 554, 104 S.W. 213 (1907).

When a father died intestate as the owner of the lands, the title descended to his five children who became cotenants, and the mere lapse of time did not dissolve the cotenancy. Griffin v. Solomon, 235 Ark. 909, 362 S.W.2d 707 (1962).

Devise to children and their bodily heirs held to create fee tails in common with contingent remainder in bodily heirs. Mitchell v. Mitchell, 263 Ark. 365, 565 S.W.2d 29 (1978).

Joint Tenancy.

This section does not prohibit a joint tenancy; it merely provides for a construction against joint tenancy if the intention to create it is not clear. Ferrell v. Holland, 205 Ark. 523, 169 S.W.2d 643 (1943); Mitchell v. Mitchell, 263 Ark. 365, 565 S.W.2d 29 (1978).

Trial court's reliance upon this section was unnecessary where the deed at issue was clear and unambiguous in creating a joint tenancy with right of survivorship. Tripp v. Miller, 82 Ark. App. 236, 105 S.W.3d 804 (2003).

—Tenancy by Entirety.

Where a conveyance is to a husband and wife, they take an estate of entirety, and survivorship still obtains. Robinson v. Eagle, 29 Ark. 202 (1874); Branch v. Polk, 61 Ark. 388, 33 S.W. 424 (1895); Simpson v. Biffle, 63 Ark. 289, 38 S.W. 345 (1896); Davies v. Johnson, 124 Ark. 390, 187 S.W. 323 (1916).

Although defendant and deceased had been bigamously married, a deed which identified them as “husband and wife” and described their interest as that of “tenants by entirety” succeeded in meeting the requirements of this section for a joint tenancy. Wood v. Wood, 264 Ark. 304, 571 S.W.2d 84 (1978).

Deeds to man and wife created no right of survivorship, which would have existed in a tenancy by the entirety, where the persons named as grantees were not, in fact, married, and no words otherwise expressed a right of survivorship. Smith v. Stewart, 268 Ark. 766, 596 S.W.2d 346, aff'd, 269 Ark. 363, 601 S.W.2d 837 (1980).

Where the relevant language of an instrument granting title clearly separated the parties into four groups, including two married couples and then stated that the grantees took as tenants in common, each of the four groups had an undivided one-fourth interest in the land conveyed, but the married couples held their interests by the entirety; this section could only control, resulting in tenancies in common, if the grantor had not granted the two married couples their interest by the entirety. Shinn v. Shinn, 274 Ark. 237, 623 S.W.2d 526 (1981).

Tenancy in Common.

The language of a deed from a mother to her three children, which conveyed the property “jointly and severally, and unto their heirs, assigns and successors forever,” was insufficient to overcome the statutory presumption of a tenancy in common. James v. Taylor, 62 Ark. App. 130, 969 S.W.2d 672 (1998).

Cited: United States v. 48.9 Acres of Land, 85 F. Supp. 133 (W.D. Ark. 1949); Metropolitan Life Ins. Co. v. Gardner, 245 Ark. 742, 434 S.W.2d 266 (1968).

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

    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.
  1. 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.

Research References

U. Ark. Little Rock L. Rev.

Lynn Foster, Arkansas’s Trust Code and Trust Planning: A Ten-Year Perspective, 38 U. Ark. Little Rock L. Rev. 301 (2016).

Case Notes

Cited: Greif Bros. Cooperage Corp. v. United States Gypsum Co., 341 F.2d 167 (8th Cir. 1965); Hill v. Hopkins, 198 Ark. 1049, 133 S.W.2d 634 (1939); Bottenfield v. Wood, 264 Ark. 505, 573 S.W.2d 307 (1978); Coleman v. Coleman, 59 Ark. App. 196, 955 S.W.2d 713 (1997).

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

    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.
      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.
  1. 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.
  2. 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).

Research References

Ark. L. Rev.

The Best Evidence Rule — A Rule Requiring the Production of a Writing to Prove the Writing’s Contents, 14 Ark. L. Rev. 153.

Case Notes

Commissioner's Deed.

A deed from one styled the receiver of an estate and as commissioner, who was in fact a commissioner, is evidence of the facts recited therein. Kelley v. Laconia Levee Dist., 74 Ark. 201, 74 Ark. 202, 85 S.W. 249, 87 S.W. 638, amended, 74 Ark. 209, 87 S.W. 638 (1905).

Sheriff's Deed.

A sheriff's deed, though prima facie evidence of the facts recited, permits a party to put the recitals in issue and go behind the deed and show their falsity, and where their falsity is shown, being public records, it effects the sufficiency of the deed and all concerned with notice. Hughes v. Watt, 26 Ark. 228 (1870).

A deed duly executed and acknowledged by a sheriff and recorded is evidence that the sale was regularly made, without proof that the sale was confirmed by the court. Winfrey v. People's Sav. Bank, 176 Ark. 941, 5 S.W.2d 360 (1928).

Tax Sales.

A defendant in a suit to quiet title, who was not in possession and had lost title at a tax foreclosure sale, could not question the apparent and prima facie title acquired by the plaintiff by purchase at that sale. Hornor v. Jarrett, 99 Ark. 154, 137 S.W. 820 (1911); Walsh v. Certain Lands, 209 Ark. 320, 190 S.W.2d 447 (1945).

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.
    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.

Case Notes

Recitals.

The Commissioner of State Lands is not required to make any recitals in his deeds to lands forfeited for taxes. They convey whatever title the state has without recitals. Walker v. Taylor, 43 Ark. 543 (1884).

Recitals in a patent to swamp lands are presumed to be true till the contrary appears. Dawson v. Parham, 55 Ark. 286, 18 S.W. 48 (1892).

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.
    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. 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.
        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.
      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.
      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.
    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.
      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.
    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.
    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.
  1. 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.
    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.
  2. A beneficiary deed is sufficient if it complies with other applicable laws and if it is in substantially the following form:
  3. 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)”

Click to view form.

“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)”

Click to view form.

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

Research References

Ark. L. Rev.

Bryan Malloy, Case Note: Minor Fix or Major Pain: The Impact of Fitton v. Bank of Little Rock on Arkansas's Homestead Exemption, 66 Ark. L. Rev. 577 (2013).

U. Ark. Little Rock L. Rev.

Well, Now, Ain't That Just Fugacious!: A Basic Primer on Arkansas Oil and Gas Law, 29 U. Ark. Little Rock L. Rev. 211.

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).
    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.
  3. 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. 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.
  1. 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.
  2. 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.

Chapter 13 Horizontal Property Act

Effective Dates. Acts 1961 (1st Ex. Sess.), No. 60, § 25: Sept. 14, 1961. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that there is an urgent need to make available housing and business locations to those persons in this State who live in areas where land costs make it impossible for them to acquire single family homes or single unit business locations and where current rentals are beyond their economic reach; that construction and development of housing and business locations for such persons cannot be undertaken by private industry for lack of legislation enabling single units in multi-unit structures to qualify for federally insured loans; and that enactment of this bill will provide such legislation, and will make such housing and business locations available. 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 1969, No. 216, § 3: Mar. 10, 1969. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is a pressing need for the construction of additional housing and business locations at a cost that is within the reach of every individual and business in this State; that the cost of real estate has risen so rapidly that it is impossible for persons or businesses to purchase such real estate and construct houses and buildings; that the ‘Horizontal Property Act’ as originally written contemplated that an ‘apartment’ be confined to one building; that it is necessary that an apartment within the meaning of this Act extend to two or more buildings; and that in order to encourage the construction of additional units for residential, business and other purposes, it is necessary that this Act become effective immediately. 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 1975, No. 731, § 8: Apr. 3, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that legal questions have arisen concerning the proper interpretation of Act 60 of the First Extraordinary Session of 1961 which have interfered with its use and which will be clarified and answered by the passage of this amendatory Act. 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.”

Research References

ALR.

Formation, composition, and powers of governing body of condominium association: construction of contractual provisions regarding. 13 A.L.R.4th 598.

Statutes, bylaws, or regulations restricting sale, transfer, or lease of condominium units. 17 A.L.R.4th 1247.

Law regulating conversion of rental housing to condominiums. 21 A.L.R.4th 1083.

Guidelines relating to condominium association's requisite approval of individual unit owner's improvements or decorations. 25 A.L.R.4th 1059.

Statutes, bylaws, or regulations restricting number of condominium units that may be owned by single individual or entity. 39 A.L.R.4th 88.

Personal liability of owner of condominium unit to one sustaining personal injury or property damage by condition of common areas. 39 A.L.R.4th 98.

Liability of owner of unit in condominium, recreational development, time share property, or the like, for assessment in support of common facilities levied against and unpaid by prior owner. 39 A.L.R.4th 114.

Condominium owner's covenant to pay dues or fees to sports or recreational facility. 39 A.L.R.4th 129.

Right of condominium association's management or governing body to inspect individual units. 41 A.L.R.4th 730.

Am. Jur. 15B Am. Jur. 2d, Condomin., § 1 et seq.

Ark. L. Rev.

Legislation — No. 60 — Horizontal Property Act — The Concept of Condominium, 15 Ark. L. Rev. 430.

Securities Regulation of Real Estate Programs, 27 Ark. L. Rev. 651.

U. Ark. Little Rock L.J.

Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 U. Ark. Little Rock L.J. 421.

Note, Property — Real Covenants — Homeowners' Associations: A Lease Will Not Convey Rights in Common Properties, Hannum v. Bella Vista Village Property Owners Association, 272 Ark. 49, 611 S.W.2d 756 (1981), 4 U. Ark. Little Rock L.J. 565.

Survey — Miscellaneous, 12 U. Ark. Little Rock L.J. 219.

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.

Case Notes

Cited: Heritage Bay Property Regime v. Jenkins, 27 Ark. App. 112, 766 S.W.2d 624 (1989).

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;
    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;
  3. “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;
  4. “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;
  5. “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;
  6. “Master deed” means the deed establishing the horizontal property regime;
  7. “Person” means an individual, firm, corporation, partnership, association, trust, or other legal entity, or any combination thereof;
  8. “Property” means the land, the building, all improvements and structures thereon, and all easements, rights, and appurtenances belonging thereto;
  9. “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
  10. 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.

Case Notes

Cited: Preston v. Bass, 13 Ark. App. 94, 680 S.W.2d 115 (1984).

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. 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.
  1. 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.
    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.

Case Notes

Attorney's Fees.

Although not doing so expressly, the legislature authorized horizontal property regimes to collect attorney's fees under the bylaws in this section by authorizing the collection of “any other expense lawfully agreed upon” in § 18-13-116. Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988).

Duty.

Trial court erred in granting a property owners association summary judgment in a licensee's action alleging that the association was negligent in its installation and maintenance of a balcony railing because the association contractually promised or voluntarily agreed to repair and maintain the common areas. The association's undertaking of the duty to repair triggered fact questions as to whether it exercised reasonable care to perform its assumed duty. Lloyd v. Pier W. Prop. Owners Ass'n, 2015 Ark. App. 487 (2015).

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. 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.
      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.
  1. 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.
  2. 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.

Case Notes

Creditor's Rights.

A third party may execute against a spouse's interest in a tenancy by the entirety, subject to the other spouse's continued rights of possession and survivorship, and interest in one-half of the rents and profits. Morris v. Solesbee, 48 Ark. App. 123, 892 S.W.2d 281 (1995).

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.

Case Notes

Appropriation of Common Area.

Carport constructed in common area created an exclusive appropriation of the general common area by the apartment owner without proper approval by the other property owners and should be removed. Preston v. Bass, 13 Ark. App. 94, 680 S.W.2d 115 (1984).

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. 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.
      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.
  1. 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.
  2. 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.
  3. 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.

Research References

Ark. L. Rev.

Andrea J. Boyack & William E. Foster, Muddying the Waterfall: How Ambiguous Liability Statutes Distort Creditor Priority in Condominium Foreclosures, 67 Ark. L. Rev. 225 (2014).

Case Notes

Attorney's Fees.

Although not doing so expressly, the legislature authorized horizontal property regimes to collect attorney's fees under the bylaws in § 18-13-108 by authorizing the collection of “any other expense lawfully agreed upon” in this section. Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988).

Circuit court did not abuse its discretion in awarding attorney's fees to a property owners' association (POA) because nothing in the Arkansas Horizontal Property Act required the POA to obtain a lien, and, in any event, the POA filed a lis pendens with regard to its claimed interest in the property. First State Bank v. Metro Dist. Condos. Prop. Owners' Ass'n, 2014 Ark. 48, 432 S.W.3d 1 (2014).

Interests.

Circuit court did not err in denying a foreclosing lender's motion for summary judgment and in refusing to extinguish the interest of a property owners' association because, while the money due and owing under a mortgage took priority over any unpaid assessments, the Arkansas Horizontal Property Act did not exclude foreclosure sales when it provided that a purchaser was jointly and severally liable with the seller for the amounts owing by the latter. First State Bank v. Metro Dist. Condos. Prop. Owners' Ass'n, 2014 Ark. 48, 432 S.W.3d 1 (2014).

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. 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.
  1. 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.

Chapter 14 Arkansas Time-Share Act

A.C.R.C. Notes. References to “this chapter” in subchapters 1-6 may not apply to subchapter 7 which was enacted subsequently.

Publisher's Notes. This chapter was based on the Model Real Estate Time-Share Act.

Research References

ALR.

Regulation of time-share or interval ownership interests in real estate. 6 A.L.R.4th 1288.

Liability of owner of unit in condominium, recreational development, time share property, or the like, for assessment in support of common facilities levied against and unpaid by prior owner. 39 A.L.R.4th 114.

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.

Case Notes

Cited: Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc., 810 F.2d 782 (8th Cir. 1987).

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;
    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.;
    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;
    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;
  5. “Exchange agent” means a person that owns or operates an exchange program;
  6. “Exchange program” means a method, arrangement, or procedure for the voluntary exchange of time-share interests among time-share owners;
  7. “Managing agent” means a person responsible for operating and maintaining a time-share property or time-share plan on behalf of the association;
    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;
  8. “Person” means one (1) or more natural persons, corporations, partnerships, associations, trusts, other entities, or any combination thereof;
  9. “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;
  10. “Public offering statement” means the statement under § 18-14-404;
  11. “Purchaser” means a person other than a developer or lender who acquires an interest in a time-share plan;
    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;
    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;
  12. “Time-share instrument” means a master deed, master lease, declaration, or other instrument used to establish a time-share plan;
  13. “Time-share interest” means a time-share estate or a time-share use;
    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;
  14. “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
  15. “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. 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.
  1. 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.
  2. 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”.

Case Notes

Election of Improvement District Commissioners.

While timeshare owners do not receive an individual tax bill, the property itself is assessed real property taxes by the assessor and improvement-district assessments, which are then paid by the timeshare owners through the owners association; thus, a timeshare owner owns property subject to taxation and thereby satisfies the definition of a “property owner” entitled to individual notice of commissioner elections under § 14-92-240(c), and each timeshare owner is entitled to one vote for each commissioner position to be filled. Roberts v. Holiday Island Suburban Improvement Dist. #1, 2018 Ark. App. 394, 559 S.W.3d 269 (2018).

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. 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.
    1. A reservation requires a subsequent affirmative act by the purchaser via a separate instrument to establish a binding obligation.
    2. 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.
    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.
    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.
    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.
    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.
    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.
  1. 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.
  2. 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.
  3. 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.
    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.
  2. The application shall be accompanied by a filing fee not to exceed one thousand dollars ($1,000).
    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.
  3. 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.
    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. 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.
    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.
      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. 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.
    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
    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
    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
    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.
    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.
      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.
    2. An alternative method that accomplishes the original purpose of the request made under subdivision (c)(1) of this section is a reasonable alternative.
      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. 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.
  1. 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).

Case Notes

Action Timely.

An action arising from a hotel's revocation of a license agreement that allowed time-share owners access to the hotel's parking and recreational facilities and also terminated the time-share owners's utilities was timely as the action was appropriately viewed as an attempt to enforce contract provisions that required the continued furnishing of services, and the action was commenced within four years of breach. Kessler v. National Enters., Inc., 238 F.3d 1006 (8th Cir. 2001).

In a class action suit against a developer seeking restitution and rescission of the owners' purchase contracts and alleging claims of misrepresentation and breach of contract, this section controlled over the general limitations statute, § 16-56-105; otherwise, the owners' right to seek relief would have terminated before any injury was known to them, contrary to the General Assembly’s intention to protect consumers under the Time-Share Act. Nat'l Enters., Inc. v. Kessler, 363 Ark. 167, 213 S.W.3d 597 (2005), cert. denied, 546 U.S. 1174, 126 S. Ct. 1340, 164 L. Ed. 2d 55 (2006).

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;
      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;
    5. Any initial or special fee due from the purchaser at closing with a description of the purpose and method of calculating the fee;
    6. A description of any liens, defects, or encumbrances on or affecting the title to any of the time-share interests;
    7. A description of any financing offered by the developer;
    8. 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;
    9. A statement of any pending suits material to the time-share interests of which the developer has actual knowledge;
    10. Any restraints on alienation of any number or part of any of the time-share interests;
    11. A description of the insurance coverage that is for the benefit of the owners of time-share interests;
    12. 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;
    13. The extent to which financial arrangements have been provided for completion of the promised improvements; and
    14. 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.
    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
        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.
  2. 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.
    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.
    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.
    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. 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.
      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.
      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.
  1. 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. 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.
  1. 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.
  2. 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. 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.
    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.

Case Notes

Cited: Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc., 810 F.2d 782 (8th Cir. 1987).

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;
      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;
    2. 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;
      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
    3. 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).

Case Notes

Successors.

When a developer's interests in a project are transferred to a third party, the transferee must acquire not only the interest in the property, but also all the other obligations of the developer with respect to the time-share regime. Kessler v. National Enters., Inc., 238 F.3d 1006 (8th Cir. 2001).

In a dispute brought by condominium owners against corporations who were successors-in-interest to the original developers, the trial court did not err in ruling on the owner's cross-motion for summary judgment on the issue of liability before the class members were noticed as the corporations waived the issue of notice, and this section was quite clear that the obligations of the original developers remained in place. Nat'l Enters., Inc. v. Kessler, 363 Ark. 167, 213 S.W.3d 597 (2005), cert. denied, 546 U.S. 1174, 126 S. Ct. 1340, 164 L. Ed. 2d 55 (2006).

Developer was a successor-in-interest to the initial developer, and this section adhered to the purpose of the Time-Share Act by assuring that the original developer's obligations to the owners were not abandoned. Nat'l Enters., Inc. v. Kessler, 363 Ark. 167, 213 S.W.3d 597 (2005), cert. denied, 546 U.S. 1174, 126 S. Ct. 1340, 164 L. Ed. 2d 55 (2006).

Summary judgment was properly awarded to a title insurance company and a title company in property owner's action for breach of a title insurance policy where the loss in real estate value as a result of purchaser's potential liability as a successor-in-interest under the Arkansas Time-Share Act did not constitute a “defect” in title for purposes of title insurance. First United, Inc. v. Chicago Title Ins. Co., 366 Ark. 508, 237 S.W.3d 15 (2006).

Cited: National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997).

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”.

Chapter 15 Eminent Domain

Cross References. Common carriers — Eminent domain, § 23-15-101.

Research References

ALR.

Measure and elements of damages or compensation for condemnation of public transportation system. 35 A.L.R.4th 1263.

Am. Jur. 26 Am. Jur. 2d, Em. Dom., § 1 et seq.

Ark. L. Rev.

Condemnation of Leased Property in Arkansas, 14 Ark. L. Rev. 326.

Reimbursement of Attorney's Fees in Arkansas Upon Dismissal of Condemnation Proceedings, 22 Ark. L. Rev. 181.

C.J.S. 29A C.J.S., Em. Dom., § 1 et seq.

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.

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Freeman, Property, 8 U. Ark. Little Rock L.J. 197.

Case Notes

Constitutionality.

The procedure provided by this section is constitutional because it includes all elements of damage. Miller Levee Dist. No. 2 v. Wright, 195 Ark. 295, 111 S.W.2d 469 (1937).

This section and Ark. Const., Art. 2, § 22 fully preserve all the constitutional protections due a property owner for the public taking, injury, or destruction of his property, real or personal. Collier v. City of Springdale, 733 F.2d 1311 (8th Cir.), cert. denied, 469 U.S. 857, 105 S. Ct. 186, 83 L. Ed. 2d 120 (1984).

Construction.

The word “owner” as used in this section may be construed to apply to every person having an interest in the property taken, including tenants for life and lessees for years. Missouri & N. Ark. R.R. v. Chapman, 150 Ark. 334, 234 S.W. 171 (1921).

Applicability.

This section is applicable to all levee districts. Young v. Red Fork Levee Dist., 124 Ark. 61, 186 S.W. 604 (1916).

Damages.

After possession is taken, the owner is entitled to a trial on the question of damages. Missouri & N. Ark. R.R. v. Chapman, 150 Ark. 334, 234 S.W. 171 (1921).

A witness familiar with the character of the lands and improvements thereon, the value of the lands taken, the injury to improvements, etc., was held sufficiently qualified to give an opinion as to damages suffered by owner. Board of Dirs. v. Permenter, 192 Ark. 521, 92 S.W.2d 391 (1936).

Just compensation is the sole issue for determination in an eminent domain proceeding. Edwards v. Arkansas Power & Light Co., 683 F.2d 1149 (8th Cir. 1982).

Same measure of damages was used whether the proceeding was an eminent domain action filed by the utility or an inverse condemnation action filed by the landowner; the landowners' remedy for the utility's taking of their property was governed exclusively by the inverse condemnation statute, which permitted them to recover only the value of the portion of the land taken plus any damage to remaining property, it did not permit them to recover the replacement value of their trees. DeBoer v. Entergy Ark. Inc., 82 Ark. App. 400, 109 S.W.3d 142 (2003).

Exclusive Remedy.

The remedy provided in this section is exclusive so long as railroad only appropriates land within limits of the right of way as defined by statute. McKennon v. St. Louis, Iron Mountain & S. Ry., 69 Ark. 104, 61 S.W. 383 (1901).

Where a corporation appropriates land for its use, without condemnation, the owner's statutory remedy to sue for damages is exclusive and such an action is barred when an action to recover the land would be barred. Missouri & N. Ark. R.R. v. Chapman, 150 Ark. 334, 234 S.W. 171 (1921).

Illustrative Cases.

Directed verdict for a utility company was proper under subsection (b) of this section as: (1) the property owners' remedy on an inverse condemnation claim was the value of the portion of the land taken plus any damage to the remaining property; (2) the owners did not submit any evidence as to the damage to the remainder of their property, and (3) opinion evidence of the value of the entire parcel at the time of the taking was not supported by proof that the listing price was reasonable. Pope v. Overton, 2011 Ark. 11, 376 S.W.3d 400 (2011).

Jurisdiction.

Consent decree in one county enjoining city's pollution of stream would not preclude a subsequent suit by land owners in another county alleging that pollution of stream amounted to a taking of their land by city and seeking damages since chancery court in first county had no jurisdiction to awards damages to such owners. Weathers v. City of Springdale, 239 Ark. 535, 390 S.W.2d 125 (1965).

Circuit court erred in dismissing the property owners' complaint against an electric company and in finding that the Arkansas Public Service Commission had primary jurisdiction of the case; there was no dispute that the company had a right to use its own existing lines to transmit broadband services, but the owners' issue was with the company's entry onto their land to install completely new lines for broadband services without just compensation or an assessment of damages for the increased interference. The circuit court had exclusive, original jurisdiction to adjudicate a dispute involving private-property rights and damages for inverse condemnation and increased interference. Stanley v. Ozarks Elec. Coop. Corp., 2019 Ark. App. 560, 591 S.W.3d 322 (2019).

Limitations of Actions.

The owner of land taken by a railroad for a right of way has a right to bring suit for damages at any time within the statutory period after the land was taken. Missouri & N. Ark. R.R. v. Chapman, 150 Ark. 334, 234 S.W. 171 (1921).

Under provision that the owner of land shall bring his claim against the corporation at any time “before such claim would be barred by the statute of limitations,” a public service corporation can acquire an easement by prescription. Sebastian Lake Devs., Inc. v. United Tel. Co., 240 Ark. 76, 398 S.W.2d 208 (1966).

Cited: Hughes v. Arkansas & Okla. R.R., 74 Ark. 194, 85 S.W. 773 (1905); McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910 (1913); Dickerson v. Tri-County Drainage Dist., 138 Ark. 471, 212 S.W. 334 (1919); Chicago Mill & Lumber Co. v. Board of Dirs., 236 Ark. 322, 366 S.W.2d 184 (1963); Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422 (8th Cir. 1986); Dixie Furn. Co. v. Arkansas Power & Light Co., 19 Ark. App. 160, 718 S.W.2d 120 (1986).

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;
      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;
    5. An entity shall make a written good faith offer to buy the property owner's private property before initiating a condemnation proceeding;
    6. 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;
    7. 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;
    8. 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;
    9. Any party has the right to appeal a decision entered by the circuit court under subdivision (b)(9) of this section; and
      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.”

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., § 23 et seq., § 52 et seq.

C.J.S. 29A C.J.S., Em. Dom., § 25.

U. Ark. Little Rock L.J.

Owen, Survey of Arkansas Law Property, 2 U. Ark. Little Rock L.J. 375.

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

    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.
    1. Improvement districts may be organized under § 14-88-201 et seq. to aid the municipal corporations to acquire the parks and boulevards.
      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].
  1. 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.

Case Notes

Acceptance of Dedication.

Municipal corporation could accept dedication of park within five miles of municipal boundaries. Mountain View v. Lackey, 225 Ark. 1, 278 S.W.2d 653 (1955).

Appeal.

In an eminent domain case in which an order of immediate possession was granted, because the issue of just compensation remained to be determined, the order granting immediate possession was not a final, appealable order. The construction of a bicycle trail would not render it impossible to restore his property to its previous condition. Thomas v. City of Fayetteville, 2012 Ark. 120 (2012).

Condemnation Proceedings.

A trust was entitled to attorney's fees and costs in connection with the abandonment by a city of condemnation proceedings against property owned by the trust where although the city had no defined purpose for the property, nevertheless continued its pursuit of the property for several years, and abandoned the condemnation proceeding only because a jury determined that the property was worth more than the city wished to pay. Weaver v. City of Eureka Springs, 62 Ark. App. 15, 969 S.W.2d 681 (1998).

Discontinuance of Action.

A condemnor has an absolute right to discontinue a condemnation action until actual payment of the compensation. Vogel v. Crittenden County, 308 Ark. 250, 822 S.W.2d 382 (1992).

Cited: Burton v. Ward, 218 Ark. 253, 236 S.W.2d 65 (1951).

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

    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.
  1. 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.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Property, 8 U. Ark. Little Rock L.J. 599.

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.”

Research References

ALR.

Franchise for sports and entertainment: eminent domain as taking for public purpose. 30 A.L.R.4th 1226.

Am. Jur. 26 Am. Jur. 2d, Em. Dom., § 23 et seq., § 52 et seq.

C.J.S. 29A C.J.S., Em. Dom., § 25 and § 27 et seq.

Case Notes

Cited: City of Bryant v. Springhill Water & Sewer Servs., Inc., 295 Ark. 336A, 750 S.W.2d 61 (1988).

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.
    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.
      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.
        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.
        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.
          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.
            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.
            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.
              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.
          3. 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).

Research References

ALR.

Validity of Extraterritorial Condemnation by Municipality. 44 A.L.R.6th 259.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Property Law, 24 U. Ark. Little Rock L. Rev. 549.

Case Notes

Electric Power.

This section does not give a municipal corporation the power of eminent domain outside the city for the purpose of acquiring a right-of-way for electric transmission lines. City of Osceola v. Whistle, 241 Ark. 604, 410 S.W.2d 393 (1966).

Industrial Sites.

This section does not give a municipality the power to exercise the right of eminent domain for the purpose of acquiring industrial sites or parks. City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967).

Waterworks.

Construing this section strictly, the legislature intended for cities to have the power to condemn either a waterworks system in its entirety or an integral part of one. Benton County Water Co. v. Cummings, 242 Ark. 67, 411 S.W.2d 890 (1967).

Cited: Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933); Ruesing v. City of Conway, 284 Ark. 530, 683 S.W.2d 922 (1985); Board of Comm'rs v. Rollins, 57 Ark. App. 241, 945 S.W.2d 384 (1997).

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.
    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.
  2. 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.
  3. 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.

Case Notes

Temporary Restraining Orders.

Issuance of temporary restraining orders was proper upon allegation of landowners that city was without funds to pay the damages in acquiring right-of-way and order was properly dissolved when the city paid into court, upon its order, an amount far in excess of the appraised valuation of the damages. Keith v. Ark. State Hwy. Comm'n, 225 Ark. 86, 279 S.W.2d 292 (1955).

Cited: Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933); Ruesing v. City of Conway, 284 Ark. 530, 683 S.W.2d 922 (1985).

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

    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.
    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.

Case Notes

Appeal.

A chancellor's order allowing condemnation was not appealable because it was not a final judgment in that it did not determine the right of the landowners to just compensation. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982).

In an eminent domain case in which an order of immediate possession was granted, because the issue of just compensation remained to be determined, the order granting immediate possession was not a final, appealable order. The construction of a bicycle trail would not render it impossible to restore the landowner’s property to its previous condition. Thomas v. City of Fayetteville, 2012 Ark. 120 (2012).

Attorney's Fees.

Trial court erred in awarding attorney's fees to the owners in a condemnation proceeding; while § 27-67-317 clearly allows for an award of a fee against the State, it does not allow for an award of fees against a city, and the city clearly proceeded under its own authority when it was substituted as a party. The city did not assume the State Highway Commission's obligation to pay attorney's fees and gained right of entry to the property by virtue of paying a deposit into the registry of the court pursuant to this section. City of Siloam Springs v. La-De, LLC, 2015 Ark. 433, 474 S.W.3d 869 (2015).

Waiver.

Where property owners who thought that the lands were about to be condemned, and an interest greater than necessary was about to be taken, failed to file an answer at that time contesting the taking, with a motion to transfer to equity, their right to litigate these questions was waived and they were precluded from raising this issue. Brixey v. City of Booneville, 285 Ark. 350, 687 S.W.2d 126 (1985).

Cited: Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933); Ruesing v. City of Conway, 284 Ark. 530, 683 S.W.2d 922 (1985); Union Pac. R.R. v. State ex rel. Faulkner County, 316 Ark. 609, 873 S.W.2d 805 (1994).

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.
    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.
    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.
  4. 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.

Case Notes

Attorney's Fees.

Trial court erred in awarding attorney's fees to a condemnee in a city's condemnation proceeding because attorney's fees are not expressly provided for in subsection (c) of this section. City of Benton v. Alcoa Rd. Storage, 2017 Ark. 78, 513 S.W.3d 259 (2017).

Circuit court did not err in denying property owners' motion for attorney's fees and expert witness fees because the Supreme Court had determined that attorney's fees and expert-witness fees were not recoverable under subsection (c) of this section, and the Court of Appeals was bound by that determination. Brown v. City of Bryant, 2017 Ark. App. 239, 520 S.W.3d 287 (2017).

Costs.

Deposition fee and the court-reporter fee (for the deposition) were not taxable as costs under this section because expert-witness fees and deposition expenses were not authorized by statute or rule. Brown v. City of Bryant, 2017 Ark. App. 239, 520 S.W.3d 287 (2017).

Appraisal expenditure was a cost “occasioned by the assessment” under subsection (c) of this section that property owners could recover; it was a cost specifically and necessarily incurred for assessment purposes prior to the jury trial in order to provide evidence of the assignment of valuation for the property sought to be condemned. Brown v. City of Bryant, 2017 Ark. App. 239, 520 S.W.3d 287 (2017).

Trial court did not direct that copy charges, exhibit processing, fax transmissions, and postage be taxed to a city, and it did not err in its interpretation of this section; this section does not define “other costs”, but subsection (c) gives the trial court leeway, stating that other costs which may arise shall be charged or taxed as the court may direct. Brown v. City of Bryant, 2017 Ark. App. 239, 520 S.W.3d 287 (2017).

In a condemnation proceeding, the circuit court did not err in awarding appraisal fees to the trust; under controlling case law, an appraisal expenditure was a “cost occasioned by the assessment” that could be recovered in determining the amount to award. City of Bryant v. Boone Trust, 2018 Ark. App. 547, 564 S.W.3d 550 (2018).

In determining the amount to award for “other costs” in a condemnation proceeding, the circuit court awarded only the percentage the trust recovered above that which was offered by the city, and the appellate court could not say on the record before it that this was an abuse of discretion. City of Bryant v. Boone Trust, 2018 Ark. App. 547, 564 S.W.3d 550 (2018).

In a condemnation action, the trust was not entitled to prejudgment interest on the award of costs because the expenses were not reasonably ascertainable; on the other hand, the trust was entitled to postjudgment interest on the award of costs. City of Bryant v. Boone Trust, 2018 Ark. App. 547, 564 S.W.3d 550 (2018).

In an eminent domain proceeding brought by a municipal water and sewage commission for two utility easements, the trial court erred in not awarding the landowner the cost of the appraisal fee under this section, as that was a cost specifically and necessarily incurred for assessment purposes, and thus was “occasioned by the assessment”. Blanchard v. City of Springdale, 2019 Ark. App. 522, 588 S.W.3d 807 (2019).

Expert Witness Fees.

Trial court properly found that expert-witness fees incurred by a condemnee to establish the calculation of its just compensation were not “costs occasioned by the assessment” within the meaning of subsection (c) of this section; in the absence of statutory authority, the fees of expert witnesses could not be treated as costs and charged against a losing party. City of Benton v. Alcoa Rd. Storage, 2017 Ark. 78, 513 S.W.3d 259 (2017).

In an eminent domain proceeding brought by a municipal water and sewage commission for two utility easements, the trial court did not err in denying the landowner's expert witness fee given case law specifically holding that such fees were not “costs occasioned by the assessment”. Blanchard v. City of Springdale, 2019 Ark. App. 522, 588 S.W.3d 807 (2019).

Grant of Entry.

Where the condemnor by its complaint in a different tribunal was merely seeking immediate access to the condemned land, no determination as to title was requested and bond was deposited in the court registry to protect potential interest in the land, the court properly allowed the entry to condemnor and granted alternative relief. Karraz v. Taylor, 259 Ark. 699, 535 S.W.2d 840 (1976).

Pleadings.

Where in condemnation suit a deposit of a sum of money was made into the registry of the court and an order was entered in court stating there was a dispute among defendants as to the ownership of the property, pleadings must be filed by the claimants of the land to assert their claim to ownership so that the court might act thereon. Bradley v. Keith, 229 Ark. 326, 315 S.W.2d 13 (1958).

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.

Case Notes

Levees.

Where the city's proposed levee would not block a natural watercourse, the increased water elevation on the plaintiffs' properties caused by the proposed levee would be de minimis, and where that the city had sufficient funds to compensate the plaintiffs for any damage to their property and to maintain the levee, construction of the levee was not enjoined. Scroggin v. City of Grubbs, 318 Ark. 648, 887 S.W.2d 283 (1994).

Cited: Lois Marie Combs Revocable Trust v. City of Russellville, 2011 Ark. 186 (2011).

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.”

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., § 66.

C.J.S. 29A C.J.S., Em. Dom., § 35.

U. Ark. Little Rock L.J.

Owen, Survey of Arkansas Law: Property, 2 U. Ark. Little Rock L.J. 275.

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.

Case Notes

Cited: City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W.2d 30 (1958); Benton County Water Co. v. Cummings, 242 Ark. 67, 411 S.W.2d 890 (1967); Board of Comm'rs v. Rollins, 57 Ark. App. 241, 945 S.W.2d 384 (1997); Lois Marie Combs Revocable Trust v. City of Russellville, 2011 Ark. 186 (2011).

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. 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.
      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.
  1. Answers may be filed, but none shall be required of any defendant.
    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.
    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.

Case Notes

Dismissal of Condemnation Proceedings.

Where there had been no “reciprocal” or other vesting of title at the time the city sought to dismiss its condemnation proceeding, the dismissal of the city's condemnation claim should have been allowed, but the court should have retained jurisdiction of the matter to consider damages to compensate the utility for the temporary deprivation of their property. City of Bryant v. Springhill Water & Sewer Servs., Inc., 295 Ark. 336A, 750 S.W.2d 61 (1988).

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
    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.
    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.
  3. 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.
  4. 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.
  5. After acquiring the rights-of-way, title thereto shall be transferred to the county or state.
  6. 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. 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.
      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.
    5. 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.
    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.
    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.
    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.
  1. 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. 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.
    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.
      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.
    2. 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.
    3. 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.

Case Notes

Notice.

Where the condemning authorities did not notify the property owners that the check for the estimated value of the property had been tendered to and accepted by the court, the property owners were entitled to interest. Board of Comm'rs v. Rollins, 57 Ark. App. 241, 945 S.W.2d 384 (1997).

Cited: City of Fort Smith v. Carter, 372 Ark. 93, 270 S.W.3d 822 (2008).

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.

Case Notes

Federal Action.

Subdivision developers' 42 U.S.C. § 1983 action against the city for taking their privacy buffer without just compensation was not ripe for prosecution where they had not pursued compensation under this section. McKenzie v. City of White Hall, 112 F.3d 313 (8th Cir. 1997).

Statute of Limitations.

Owners of land used by a city as a dump did not have a viable cause of action against the city for inverse condemnation because the seven-year statute of limitations under § 18-61-101 had expired, the city's use of the land as a dump since the 1950s showed an intent to possess adversely, and no action had been filed previously. Daniel v. City of Ashdown, 94 Ark. App. 446, 232 S.W.3d 511 (2006).

Where city claimed title to island property under a 1975 condemnation decree that claimants contended their predecessors in title had no notice of, the trial court properly found that the claimants' sole remedy was an inverse condemnation action under this section and that the applicable seven-year statute of limitations under § 18-61-101 had expired. The language of this section plainly encompasses actions taken by a municipality. Blackwood's Island v. Stodola, 2018 Ark. App. 357, 552 S.W.3d 62 (2018).

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.”

Research References

ALR.

Review of electric power company's location of transmission line for which condemnation is sought. 19 A.L.R.4th 1026.

Am. Jur. 26 Am. Jur. 2d, Em. Dom., §§ 28, 144, 306 et seq.

C.J.S. 29A C.J.S., Em. Dom., § 45.

U. Ark. Little Rock L.J.

Owen, Survey of Arkansas Law: Property, 2 U. Ark. Little Rock L.J. 275.

DeSimone, Survey of Property Law, 3 U. Ark. Little Rock L.J. 286.

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

The right-of-way provided for under this section and §§ 18-15-50218-15-509 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.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Property Law, 24 U. Ark. Little Rock L. Rev. 549.

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.

Case Notes

Cited: Loyd v. Southwest Ark. Utils. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979).

18-15-503. Powers.

      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.
      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.
    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.
  1. 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”.

Case Notes

Foreign Corporations.

This section does not confer right of eminent domain on foreign corporations. Southwestern Gas & Elec. Co. v. Patterson Orchard Co., 180 Ark. 148, 20 S.W.2d 636 (1929).

Right-of-Way.

A right-of-way must be surveyed and located, that is, defined. Loyd v. Southwest Ark. Utils. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979).

The only right of access granted by this section is the right to acquire a right-of-way or reasonable access. Loyd v. Southwest Ark. Utils. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979).

Where the public utility had ample access to its right-of-way without the necessity of crossing the lands of the landowner since there were numerous existing public roads on the landowner's lands which crossed the right-of-way, it had to specifically describe, condemn, and pay just compensation for any alternate routes of reasonable access. Ark. Power & Light Co. v. Potlatch Forest, Inc., 288 Ark. 525, 707 S.W.2d 317 (1986).

Where the public utility sought the right to cut, trim, or remove “danger trees” growing outside of its right-of-way that could potentially endanger its transmission line, and the landowner would be deprived of its customary use and practice of tree farming of the property on which the “danger trees” would be cut since it would be unable to grow trees in the area outside the right-of-way, the public utility had to specifically describe, condemn, and pay just compensation for the right to cut, trim, or remove trees that could potentially endanger the transmission line. Ark. Power & Light Co. v. Potlatch Forest, Inc., 288 Ark. 525, 707 S.W.2d 317 (1986).

The question of whether the condemnation of a right-of-way for a transmission line is necessary must be left largely to the discretion of the condemnor, and the exercise of that discretion will not be disturbed unless it clearly appears that the discretion has been abused and the action is arbitrary and causing unnecessary damage to the property owners. Harness v. Arkansas Pub. Serv. Comm'n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).

Commission's decision to grant a certificate to construct a 69-kilovolt electric transmission line affirmed; notice to affected landowners held sufficient under § 23-3-201. Harness v. Arkansas Pub. Serv. Comm'n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).

Streets and Highways.

An electric power company's right to use for its line a highway running through a village subsequently incorporated was merely that a competitor's occupancy should not be allowed to interfere with its physical property. Arkansas Power & Light Co. v. West Memphis Power & Water Co., 184 Ark. 206, 41 S.W.2d 755 (1931), cert. denied, 285 U.S. 536, 52 S. Ct. 310, 76 L. Ed. 930 (1932).

Electric company erecting poles and wires on land was a trespasser and liable for nominal damages even though no actual damages were shown, and highway department had a right-of-way over the land. Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W.2d 624 (1936).

Where power company placed its poles along city streets and paid fee for the privilege, the company acquired a property right which could not be taken by the Arkansas State Highway Commission without compensation. Arkansas State Hwy. Comm'n v. Arkansas Power & Light Co., 235 Ark. 277, 359 S.W.2d 441 (1962).

Cited: Arkansas Power & Light Co. v. Lum, 222 Ark. 678, 262 S.W.2d 920 (1953); Arkansas State Highway Com. v. Arkansas Power & Light Co., 231 Ark. 307, 330 S.W.2d 77 (1959); Black v. Arkansas Power & Light Co., 236 Ark. 447, 366 S.W.2d 899 (1963); McCastlain v. Oklahoma Gas & Elec. Co., 243 Ark. 506, 420 S.W.2d 893 (1967); City of Little Rock v. Linn, 245 Ark. 260, 432 S.W.2d 455 (1968); Edwards v. Arkansas Power & Light Co., 519 F. Supp. 484 (E.D. Ark. 1981); Edwards v. Arkansas Power & Light Co., 683 F.2d 1149 (8th Cir. 1982); Columbia County Rural Dev. Auth. v. Hudgens, 283 Ark. 415, 678 S.W.2d 324 (1984); Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003).

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. 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;
    1. 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
    2. 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.
    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”.

Case Notes

Notice.

Landowners' argument that they had not received the 10-day notice required by this section was rejected as they knew of the energy company's condemnation petition more than 10 days before the jury trial convened. Watts v. Entergy Ark., Inc., 2018 Ark. App. 539, 561 S.W.3d 774 (2018).

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.

Case Notes

Evidence.

Unrecorded plat admissible to demonstrate diminished value of land. Arkansas Power & Light Co. v. Childers, 253 Ark. 894, 489 S.W.2d 776 (1973).

It was error to permit witness to state the sales prices of other land in the vicinity without explaining the similarity and comparability, if any, of the lands sold to the property condemned. Arkansas Power & Light Co. v. Childers, 253 Ark. 894, 489 S.W.2d 776 (1973).

Value of Property.

The test for the value of condemned property was not the value of the land to the power company but the loss caused to the property owner by virtue of the condemnation. Therefore, it was error to instruct jury that if the property were well adapted for the use to which it was being taken and the necessity for that use so imminent as to add something to its value in the minds of the power company, that element could be considered in estimating market value. Arkansas Power & Light Co. v. Childers, 253 Ark. 894, 489 S.W.2d 776 (1973).

18-15-507. Damages.

    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.
      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).
  1. 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.
  2. 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).

Case Notes

Jurisdiction.

Circuit court erred in dismissing the property owners' complaint against an electric company and in finding that the Arkansas Public Service Commission had primary jurisdiction of the case; there was no dispute that the company had a right to use its own existing lines to transmit broadband services, but the owners' issue was with the company's entry onto their land to install completely new lines for broadband services without just compensation or an assessment of damages for the increased interference. The circuit court had exclusive, original jurisdiction to adjudicate a dispute involving private-property rights and damages for inverse condemnation and increased interference. Stanley v. Ozarks Elec. Coop. Corp., 2019 Ark. App. 560, 591 S.W.3d 322 (2019).

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).

Case Notes

Cited: Edwards v. Arkansas Power & Light Co., 519 F. Supp. 484 (E.D. Ark. 1981).

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.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Property Law, 24 U. Ark. Little Rock L. Rev. 549.

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

    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.
  1. 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).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Property Law, 24 U. Ark. Little Rock L. Rev. 549.

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.”

Research References

ALR.

Review of electric power company's location of transmission line for which condemnation is sought. 19 A.L.R.4th 1026.

Am. Jur. 26 Am. Jur. 2d, Em. Dom., §§ 61, 66.

Ark. L. Rev.

Looney, Modification of Arkansas Water Law: Issues and Alternatives, 38 Ark. L. Rev. 221.

C.J.S. 29A C.J.S., Em. Dom., § 35.

U. Ark. Little Rock L.J.

Owen, Survey of Arkansas Law: Property, 2 U. Ark. Little Rock L.J. 275.

Comment, Arkansas at the Water Crossroads: Regulations or Solutions?, 7 U. Ark. Little Rock L.J. 401.

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.

Research References

Ark. L. Rev.

Looney, Enhancing the Role of Water Districts in Groundwater Management and Surface Water Utilization in Arkansas, 48 Ark. L. Rev. 643.

Case Notes

Electric Power.

This section does not give a municipal corporation the power of eminent domain outside the city for the purpose of acquiring a right-of-way for electric transmission lines. City of Osceola v. Whistle, 241 Ark. 604, 410 S.W.2d 393 (1966).

Rural Development Authorities.

A corporation formed under provisions of the Rural Development Authority Act, § 14-188-101 et seq., and organized for the purpose of supplying water to municipalities has the power of eminent domain. Columbia County Rural Dev. Auth. v. Hudgens, 283 Ark. 415, 678 S.W.2d 324 (1984).

The legislative intent in enacting §§ 14-188-103, 14-188-109 and 14-188-113, which deleted the power of eminent domain when it was based solely upon the type of corporation which sought to exercise the power, while leaving intact this section, was to stop the delegation of the power of eminent domain based upon the type of entity formed and base it instead upon the purpose served. Columbia County Rural Dev. Auth. v. Hudgens, 283 Ark. 415, 678 S.W.2d 324 (1984).

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. 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
    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. 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.
  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, and proceedings had in the circuit court will apply to all the property designated in the petition.
  2. 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.
  3. 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).

Case Notes

Attorney's Fees.

The 1995 amendment to this section, made after entry of the order of possession but before trial and entry of the judgment, was procedural in nature and thus retroactive. City of Ozark v. Nichols, 56 Ark. App. 85, 937 S.W.2d 686 (1997).

Award of fees as sanctions was reversed because oral representations could not be the basis for sanctions under Ark. R. Civ. P. 11; further, in light of the uncertainty in the statutes, the trial court erred in finding that subsection (b) of this section was inapplicable. City of Fort Smith v. Carter, 364 Ark. 100, 216 S.W.3d 594 (2005).

Mortgagees, who were awarded compensation by a jury after eminent domain proceedings were instituted by a city, were not entitled to attorney’s fees because the mortgagees had no right of possession in the condemned land. City of Fort Smith v. Carter, 372 Ark. 93, 270 S.W.3d 822 (2008).

In a condemnation action, the property owners incurred expenses in successfully defending the appeal. To place them in the same position they were in prior to the taking by the water district, the appellate court granted their request for attorney's fees and costs that were incurred during their defending of the appeal pursuant to subsection (b) of this section. Beaver Water Dist. v. Garner, 102 Ark. App. 188, 283 S.W.3d 595 (2008).

Although drainage was part of the purpose of a city's condemnation, improvement of drainage ancillary to improvement of a public road did not involve the city's exercise of eminent domain relating to waterworks. Therefore, subsection (b) of this section did not apply, and the landowner was not entitled to attorney's fees. Lois Marie Combs Revocable Trust v. City of Russellville, 2011 Ark. 186 (2011).

Trial court erred in awarding attorney's fees to a lessee in an airport eminent domain proceeding brought under § 14-362-120 because subsection (b) of this section applied only to municipal corporations and other corporations that supplied water to cities, towns, or rural areas. Delta Reg'l Airport Auth. v. Gunn, 2011 Ark. App. 701, 386 S.W.3d 693 (2011).

Circuit court properly denied the owners' request for attorney's fees because this section was not applicable to the owners' case where the city brought its condemnation action under subchapter 3, §§ 18-15-301 to 18-51-309. Giles v. Ozark Mt. Reg'l Pub. Water Auth. of Ark., 2014 Ark. 171 (2014).

In an eminent domain proceeding brought by a municipal water and sewage commission for two utility easements, the trial court properly denied the landowner's motion for attorney's fees under subsection (b) of this section because the taking was limited to sewer lines and thus this section was inapplicable. The language of the easement, “water transmission line(s) and/or sewer collection lines”, was ambiguous, and extrinsic evidence demonstrated that the commission was exercising its eminent domain powers exclusively for the construction of sewer lines, and not water lines. Blanchard v. City of Springdale, 2019 Ark. App. 522, 588 S.W.3d 807 (2019).

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.

Case Notes

Damages.

Plaintiff held not entitled to double damages in absence of showing of willful wrongdoing by defendant. Turner v. Smith, 217 Ark. 441, 231 S.W.2d 110 (1950).

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. 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.
  1. 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.
  2. 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.
    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.
    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.
  2. 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.
    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.
  3. 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.
  4. 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.

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., § 62.

C.J.S. 29A C.J.S., Em. Dom., §§ 37, 38.

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

Nothing in §§ 18-15-80218-15-806 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. 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.
  1. 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. 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.
  1. 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.
    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. 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.
  1. 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.
  2. 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.

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., § 62.

C.J.S. 29A C.J.S., Em. Dom., § 38.

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. 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.
  1. 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.
    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. 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.
  1. 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. 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.
      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.
  1. The viewers shall assess and determine the damages sustained by any person on whose premises the public landing is proposed to be established.
  2. 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.
    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.
    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.
  3. 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.
  4. 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.”

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., §§ 56, 58, 309.

C.J.S. 29A C.J.S., Em. Dom., §§ 40-42.

18-15-1001. Purpose.

It is expressly declared to be the purpose of this section and §§ 18-15-100218-15-1010 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.
    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.

Case Notes

Damages.

In condemnation cases, the landowner is limited to five items of damage: (1) the fair market value of the land appropriated; (2) damage which the construction of the levee will cause by the obstruction of natural drainage; (3) inconvenience of passing over the levee, ditch, drain or canal; (4) the value of crop and houses on the right-of-way injured or destroyed; (5) any easement or flowage right or increased use or servitude. Board of Dirs. v. Morledge, 231 Ark. 815, 332 S.W.2d 822 (1960).

In condemnation cases, the landowner is entitled to recover damages for all property taken or damaged; within such purview is part of the land which will be on one side of the river and part on the other, and the tract which will be practically isolated because of the road when constructed. Board of Dirs. v. Morledge, 231 Ark. 815, 332 S.W.2d 822 (1960).

The landowner is entitled to all elements of damages shown to result from the taking of the land, and floodway damages come within such purview. Board of Dirs. v. Morledge, 231 Ark. 815, 332 S.W.2d 822 (1960).

The landowner is entitled to all the damages which may reasonably flow from the taking of his property, and the chancery court acted properly in ascertaining the total value of the landowner's property before the taking and the total value after the taking, in order to determine the damages. Board of Dirs. v. Morledge, 231 Ark. 815, 332 S.W.2d 822 (1960).

Proceeds from Sale of Timber.

Proceeds from the sale of timber which has been grown on an easement right of way obtained partially by condemnation and partially by purchase to protect a levee go to the easement holder and not to the owner of the servient estate. Chicago Mill & Lumber Co. v. Board of Dirs., 236 Ark. 322, 366 S.W.2d 184 (1963).

18-15-1003. Appraisers.

    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.
    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.
  1. 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.
    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.

Case Notes

Cited: Des Arc Bayou Watershed Imp. Dist. v. Finch, 271 Ark. 603, 609 S.W.2d 70 (1980).

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.
    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.
      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.
    2. 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.
    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.

Case Notes

Constitutionality.

Clause limiting amount of damages for obstruction of landowner's natural drainage to an amount “not to exceed the cost of artificial drainage” is in violation of Ark. Const., Art. 2, § 22. Staub v. Mud Slough Drainage Dist. No. 1, 216 Ark. 706, 227 S.W.2d 140 (1950).

Damages.

Landowner was entitled to recover for any damages to his crop and house. Miller Levee Dist. No. 2 v. Wright, 195 Ark. 295, 111 S.W.2d 469 (1937) (decision under prior law).

18-15-1005. Exception — Trial — Injunction.

    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.
  1. 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.
  2. 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.
    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.
    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.

Case Notes

Constitutionality.

A nonresident landowner is deprived of no constitutional right where a statute provides that his damages shall be assessed by a jury, in condemnation proceedings by a levee district, only when he appears and demands the same within a certain time after due notice by publication. Young v. Red Fork Levee Dist., 124 Ark. 61, 186 S.W. 604 (1916) (decision under prior law).

Clause limiting amount of damages for obstruction of landowner's natural drainage to an amount “not to exceed the cost of artificial drainage” is in violation of Ark. Const., Art. 2, § 22. Staub v. Mud Slough Drainage Dist. No. 1, 216 Ark. 706, 227 S.W.2d 140 (1950).

Damages.

Landowner could recover sum in which remaining lands had been damaged, taking into consideration the construction of the levee and the means provided for crossing same. Miller Levee Dist. No. 2 v. Wright, 195 Ark. 295, 111 S.W.2d 469 (1937) (decision under prior law).

Landowner was entitled to recover for any damages to his crop and house. Miller Levee Dist. No. 2 v. Wright, 195 Ark. 295, 111 S.W.2d 469 (1937) (decision under prior law).

Lessee operating business on land, part of which was condemned for levee purpose, was not entitled to compensation or damages for increased cost of production or for loss of profits caused by temporary removal of railroad tracks, but only to the reasonable rental value of the land, temporarily taken. Mobley Constr. Co. v. Fox, 201 Ark. 646, 146 S.W.2d 905 (1941) (decision under prior law).

Finality of Award.

Where appraisers filed their award, and court thereafter entered a judgment in the amount of the award, the award becomes final if property owners fail to file exceptions to the award within statutory period after service of summons or notice of publication as to filing of award, and the award cannot thereafter be attacked. Caldarera v. Little Rock-Pulaski Drainage Dist. No. 2, 215 Ark. 167, 219 S.W.2d 759 (1949).

18-15-1006. Payment of award — Adjudication of claim.

    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.
    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, §§ 18-15-100118-15-1006, and §§ 18-15-100818-15-1010, 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.

Case Notes

Costs.

A landowner may recover a reasonable attorney's fee, as well as other expenses, when a condemning agency fails to act in good faith in instituting and later abandoning condemnation proceedings. Des Arc Bayou Watershed Imp. Dist. v. Finch, 271 Ark. 603, 609 S.W.2d 70 (1980).

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).

Case Notes

Constitutionality.

Limitation on amount of damages for obstruction of landowner's natural drainage to an amount not to exceed the cost of artificial drainage is in violation of Ark. Const., Art. 2, § 22. 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.

Case Notes

Applicability.

Former similar section applied to all drainage districts where no other statute of limitations was provided. Hogge v. Drainage Dist. No. 7, 181 Ark. 564, 26 S.W.2d 887 (1930) (decision under prior law).

Damages.

Landowner could recover sum in which remaining lands had been damaged taking into consideration the construction of the levee and the means provided for crossing levee. Miller Levee Dist. No. 2 v. Wright, 195 Ark. 295, 111 S.W.2d 469 (1937) (decision under prior law).

Lessee operating business on partially condemned land was not entitled to compensation or damages for increased cost of production or for loss of profits caused by temporary removal of railroad tracks, but only to the reasonable rental value of the land temporarily taken. Mobley Constr. Co. v. Fox, 201 Ark. 646, 146 S.W.2d 905 (1941) (decision under prior law).

Statute of Limitations.

Statute of limitations runs from time levee is constructed, though the effect of the obstruction is not immediately apparent. Board of Dirs. v. Barton, 92 Ark. 406, 123 S.W. 382 (1909); Russell v. Board of Dirs. of Red River Levee Dist. No. 1, 110 Ark. 20, 160 S.W. 865 (1913) (preceding decisions under prior law).

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.
    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. 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.
    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 §§ 18-15-100118-15-1010.

Case Notes

Court Approval.

This section confers authority upon drainage and levee districts to make contracts to acquire all necessary rights of way for the levees and pay incidental damages arising out of construction by the federal government, and to use its surplus tax collection and revenues for the purchase of rights-of-way without obtaining authority so to do from the county court. Drainage Dist. No. 18, Craighead County v. Cornish, 198 Ark. 857, 131 S.W.2d 938 (1939).

Subchapter 11 — Irrigation Companies

Effective Dates. Acts 1909, No. 87, § 10: effective on passage.

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., § 82.

C.J.S. 29A C.J.S., Em. Dom., § 36.

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.

Case Notes

Cited: Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955).

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. 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
    1. 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 §§ 18-15-120118-15-1207.

History. Acts 1909, No. 87, § 5, p. 234; A.S.A. 1947, § 35-1205.

Case Notes

Dismissal for Delay.

A corporation's petition for condemning lands for public irrigation should not be dismissed for delay where the same cause was filed, dismissed, and later refiled unless the corporation is given opportunity to explain. Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955).

Payment of Damages.

An order condemning lands for public irrigation purposes should be granted a corporation even though its assets are not at that time sufficient to pay for later damages to the land because the corporation cannot enter on the land until the compensation has been paid or secured. Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955).

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.

Case Notes

Cited: City of Little Rock v. Linn, 245 Ark. 260, 432 S.W.2d 455 (1968).

18-15-1106. Construction and repair of bridges across canals.

    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.
  1. 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.

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., §§ 65, 85, 303-305.

C.J.S. 29A C.J.S., Em. Dom., §§ 32-34.

Case Notes

Jurisdiction.

When proceedings under this subchapter are pending in state circuit court to determine just compensation for taking of right of way, United States district court will not attempt to fix such compensation. DeSalvo v. Ark. La. Gas Co., 239 F. Supp. 312 (E.D. Ark. 1965).

Cited: City of Bryant v. Springhill Water & Sewer Servs., Inc., 295 Ark. 336A, 750 S.W.2d 61 (1988).

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.

Case Notes

Intermodal Facility.

Condemnor railroad company's proposed use of land as an intermodal facility for the receipt and distribution of freight would be proper because as such the intermodal facility would constitute a “depot” within the statutory definition of “right of way.” Missouri Pac. R.R. v. 55 Acres of Land, 947 F. Supp. 1301 (E.D. Ark. 1996).

Stockyards.

A stockyard is in fact a depot for the reception of a particular class of freight and is a part of the right-of-way. St. Louis, Iron Mountain & S. Ry. v. Miller County, 67 Ark. 498, 55 S.W. 926 (1900).

Cited: St. Louis & S.F. Ry. v. Tapp, 64 Ark. 357, 42 S.W. 667 (1897); Cloth v. Chicago, Rock Island & Pac. Ry., 97 Ark. 86, 132 S.W. 1005 (1910).

18-15-1202. Petition for condemnation.

    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.
    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.
  1. 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. 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.
    1. 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
    2. 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.
  2. 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.

Case Notes

Adverse Possession.

A railway may acquire a right-of-way by adverse possession. Memphis & Little Rock R.R. v. Organ, 67 Ark. 84, 55 S.W. 952 (1899).

Damages.

A life tenant and the remainderman are both entitled to recover for injuries to their particular estate. Bentonville R.R. v. Baker, 45 Ark. 252 (1885).

Where a railway company instituted a proceeding against the owner to condemn a right-of-way through land, the defendant's right to recover damages for the taking of the land is not affected by his sale of the land during the pendency of the suit. Little Rock & Fort Smith Ry. v. Allister, 68 Ark. 600, 60 S.W. 953 (1901).

The measure of a landowner's compensation is the market value of the land at the time of the taking, for all purposes including its availability for any use to which it is plainly adapted as well as the most valuable purpose for which it can be used. Fort Smith & Van Buren Dist. v. Scott, 103 Ark. 405, 147 S.W. 440 (1912).

The compensation of the owner of land is to be estimated by references to any uses for which the property is adapted, having regard for the existing business or wants of the community or such as may reasonably be expected in the immediate future. Fort Smith & Van Buren Dist. v. Scott, 103 Ark. 405, 147 S.W. 440 (1912).

Railroad was obligated to pay just compensation based upon the difference in fair market value before and after the taking and it could not dismiss its eminent domain proceeding after order of entry and completion of work but before trial, and restrict its liability only to the damages caused by its occupancy of land. Thompson v. Thompson, 253 Ark. 343, 485 S.W.2d 725 (1972).

Defenses.

It is no defense that the company could have used other lands including its own property. Cloth v. Chicago, Rock Island & Pac. Ry., 97 Ark. 86, 132 S.W. 1005 (1910).

Diversity Action.

This section is merely a venue statute, and thus a domesticated foreign corporation exercising its power of eminent domain in federal district court is not required to comply with it. Missouri Pac. R.R. v. 55 Acres of Land, 947 F. Supp. 1301 (E.D. Ark. 1996).

Power to Condemn.

A grant of a right-of-way gives no license to overflow the grantor's land by the unskillful construction of a levee on the right-of-way. St. Louis, Iron Mountain & S. Ry. v. Morris, 35 Ark. 622 (1880).

The power to condemn may be exercised when necessary and hence is not exhausted by one exercise. St. Louis, Iron Mountain & S. Ry. v. Petty, 57 Ark. 359, 21 S.W. 884 (1893).

A railway company acquiring for right-of-way land in which ditch has been made for drainage has no right to obstruct ditch. St. Louis, Iron Mountain & S. Ry. v. Anderson, 62 Ark. 360, 35 S.W. 791 (1896).

There is no right to condemn land for depot purposes which another company has already condemned for that purpose. St. Louis, Iron Mountain & S. Ry. v. Memphis, Dallas & Gulf R.R., 102 Ark. 492, 143 S.W. 107 (1912).

A local zoning ordinance cannot interfere with the legislature's conferral of the power of condemnation to a private entity. Missouri Pac. R.R. v. 55 Acres of Land, 947 F. Supp. 1301 (E.D. Ark. 1996).

Proceedings.

These proceedings are to ascertain the compensation to be paid the landowner for the land taken; no provision is made for an issue upon the right to condemn. Niemeyer & Darragh v. Little Rock Junction Ry., 43 Ark. 111 (1884).

The object of the proceeding is to determine the amount of damage for which the railroad company is liable. Mountain Park Term. Ry. v. Field, 76 Ark. 239, 88 S.W. 897 (1905).

In a proceeding by a railroad company to condemn property for its right-of-way, the landowner may prove any fact concerning the property which he would naturally be supposed to adduce if he were attempting to sell it to a private individual. Stuttgart & Rice Belt R.R. v. Kocourek, 101 Ark. 47, 141 S.W. 511 (1911).

Remedies.

The company alone can put the statutory remedy into operation, and if they neglect to do so, one who is injured by the construction of the railroad has his remedy by action against the company for the injury sustained. Bentonville R.R. v. Baker, 45 Ark. 252 (1885).

Equity will enjoin a railway company from taking possession of land in the construction of its road until proper compensation is made to the owner; and will on timely application also restrain the continuous, unlawful use of land without grant from the owner and without having instituted proceedings as provided in this section. Niemeyer & Darragh v. Little Rock Junction Ry., 43 Ark. 111 (1884); Organ v. Memphis & Little Rock R.R., 51 Ark. 235, 11 S.W. 96 (1888) (preceding decisions prior to the enactment of § 18-15-102).

A right-of-way conveyed to a railway company, though an easement merely, gives to the company a right to exclusive possession for railroad purposes which will support an action of ejectment against one wrongfully in possession. Graham v. St. Louis, Iron Mountain & S. Ry., 69 Ark. 569, 65 S.W. 1048 (1901).

Cited: St. Louis, Iron Mountain & S. Ry. v. Petty, 63 Ark. 94, 37 S.W. 300 (1896); Arkansas & O.R.R. v. St. Louis & S.F.R.R., 103 F. 747 (C.C.W.D. Ark. 1900); Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955); Sebastian Lake Devs., Inc. v. United Tel. Co., 240 Ark. 76, 398 S.W.2d 208 (1966); Borden v. Armstrong, 240 Ark. 1050, 403 S.W.2d 731 (1966); Cowger v. State, Dep't of Aeronautics, 307 Ark. 92, 817 S.W.2d 427 (1991).

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.

Case Notes

Noncompliance.

It is erroneous to proceed with the trial of a condemnation suit when a person of unsound mind is a party thereto and is not represented by a statutory guardian or a guardian ad litem; however, the proceeding may be vacated at the instance of the party under difficulty only on a showing that that party has a meritorious cause of action or defense. Hare v. Fort Smith & W.R.R., 104 Ark. 187, 148 S.W. 1038 (1912).

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.

Case Notes

Constitutionality.

This section, when read in conjunction with §§ 18-15-1206 and 18-15-1207, fully satisfies both substantive and procedural due process standards of United States Constitution. DeSalvo v. Ark. La. Gas Co., 239 F. Supp. 312 (E.D. Ark. 1965).

Land Not Taken.

Owner of premises abutting on a street in a city or town may recover from railway company the damages resulting to his premises by the construction of its roadbed or other structures on its right-of-way along the street, in such a manner as to obstruct access to his premises. Hot Springs R.R. v. Williamson, 136 U.S. 121, 10 S. Ct. 955, 34 L. Ed. 355 (1890).

Where a landowner whose land is not being taken has suffered a reduction in the market value of his property by the destruction of a street abutting his property, he is entitled to compensation. Arkansas State Hwy. Comm'n v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965).

A landowner whose land is not being taken is not entitled to compensation for damage of the same kind as that suffered by the public in general, even though the inconvenience and injury to the particular landowner may be greater in degree than that to others. Ark. State Hwy. Comm'n v. McNeill, 238 Ark. 244, 381 S.W.2d 425 (1964); Arkansas State Hwy. Comm'n v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965).

Measure.

The inconveniences and disadvantages from the sounding of whistles, the ringing of bells and the rattling of trains, the exposure of the premises to fire, the increased danger of injury to members of the family and livestock are not speculative, but are real and properly included in the measure of damages. Little Rock, Miss. R. & Tex. Ry. v. Allen, 41 Ark. 431 (1883).

The manner in which the railroad passing through land cuts it up, the amount and location of the land taken, the inconvenience to the owner in passing from one part of land to another, the absence of proper crossings, and overflowing caused by the road are all proper elements of damages for taking the right-of-way. Springfield & Memphis Ry. v. Rhea, 44 Ark. 258 (1884).

The additional fencing rendered necessary by the building of the road is an element of damages, but there is no statute or common-law principle which obliges a railroad corporation to fence its tracks or provide cattle guards where the line traverses improved lands. St. Louis, Iron Mountain & S. Ry. v. Walbrink, 47 Ark. 330, 1 S.W. 545 (1886).

Danger to livestock and the frightening of teams employed in the use of land are elements of damages. Fayetteville & Little Rock Ry. v. Combs, 51 Ark. 324, 11 S.W. 418 (1888).

The value of a track previously placed upon a tract of land without the owner's permission could not be included in the valuation of the property for compensation purposes. Newgass v. St. Louis, Ark. & Tex. Ry., 54 Ark. 140, 15 S.W. 188 (1891).

The owner's damages for the right-of-way to a railroad over his land cannot be diminished by the estimated benefit likely to accrue to his remaining property. St. Louis, Ark. & Tex. R.R. v. Anderson, 39 Ark. 167 (1882); Memphis & Little Rock R.R. v. Organ, 67 Ark. 84, 55 S.W. 952 (1899); Brown v. Wyandotte & Se. Ry., 68 Ark. 134, 56 S.W. 862 (1900); Little Rock & Fort Smith Ry. v. Allister, 68 Ark. 600, 60 S.W. 953 (1901).

Although several lots of land sought to be condemned for railroad purposes are separated by an alley, they may be treated as parts of a single tract for the purpose of determining the damages if the testimony shows that they are to be used as a unit. Kansas City S. Ry. v. Boles, 88 Ark. 533, 115 S.W. 375 (1908).

Where a railroad has been completed through the plaintiff's land before an action is brought to recover damages for land appropriated for the right-of-way, the plaintiff is entitled to recover the damages to his land, if any, caused by closing the natural outlet for water at the high water season. Missouri & N. Ark. R.R. v. Bratton, 92 Ark. 563, 124 S.W. 231 (1909).

The measure of the damages is the market value of the land actually taken and the depreciation of the remaining portion without deducting the benefits that may accrue to the land by reason of the construction of the railroad. St. Louis, Iron Mountain & S. Ry. v. Theodore Maxfield Co., 94 Ark. 135, 126 S.W. 83 (1910).

Pleadings.

It is not necessary for the owner to answer claiming damages to the residue of a tract of land as when a company inaugurates the statutory proceedings, it is presumed that it will perform its whole duty. Fayetteville & Little Rock Ry. v. Hunt, 51 Ark. 330, 11 S.W. 418 (1888).

In an action to recover damages for the taking of a right-of-way, the jury may include damages to the plaintiff's land caused by a pond made thereon in the construction of the road, although the complaint alleged no special damages on that score. Arkansas Cent. R.R. v. Smith, 71 Ark. 189, 71 S.W. 947 (1903).

Proof.

Witnesses who have personal knowledge of the character and location of the land, and of the facts in regard to building the railroad over it, may give their opinions as to the amount of damages sustained. Texas & St. Louis Ry. v. Kirby, 44 Ark. 103 (1884).

Great latitude is allowed the trial court in admitting or rejecting evidence of damages. Springfield & Memphis Ry. v. Rhea, 44 Ark. 258 (1884).

Evidence to show that land condemned for a railroad bridge possesses superior advantages as a bridge site is admissible to show the market value. Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792 (1887).

Where the defendant in a condemnation suit has, pending the suit, sold the land which the railway company seeks to condemn, he will not be required to show that he received a lower price than he would have received if the railway had not been built. Little Rock & Fort Smith Ry. v. Allister, 68 Ark. 600, 60 S.W. 953 (1901).

Owner could offer evidence as to the “before and after” value of the land in condemnation proceeding and witness should be permitted to state factors on which his opinion was based. Feibelman v. Trunkline Gas Co., 234 Ark. 277, 351 S.W.2d 447 (1961).

Waiver.

When the owner conveys the right-of-way by agreement, he waives in advance all damages (except those arising from faulty construction), as it is presumed that the damages are included in the purchase price. St. Louis, Iron Mountain & S. Ry. v. Walbrink, 47 Ark. 330, 1 S.W. 545 (1886).

Cited: Property Owners Imp. Dist. No. 247 v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992).

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.

Case Notes

Appeals.

This section does not prevent railway company from appealing. Arkansas, La. & Gulf Ry. v. Kennedy, 84 Ark. 364, 105 S.W. 885 (1907); Kansas City S. Ry. v. Boles, 88 Ark. 533, 115 S.W. 375 (1908).

Costs.

Chancellor did not abuse his discretion in adjudging the costs in an eminent domain proceeding against the landowner. Patterson Orchard Co. v. Southwest Ark. Util. Corp., 179 Ark. 1029, 18 S.W.2d 1028 (1929).

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.

Case Notes

Constitutionality.

The constitutional provision for a trial by jury to assess the damages refers only to the final assessment, and the power given the judge in this section is not violative of Ark. Const., Art. 17, § 9. Ex parte Reynolds, 52 Ark. 330, 12 S.W. 570 (1889).

Condemnation proceedings not being common law actions are valid if they meet the constitutional requirements although they may not provide for a trial in course of the common law. Board of Dirs. v. Redditt, 79 Ark. 154, 95 S.W. 482 (1906).

This section, when read in conjunction with § 18-15-1204, fully satisfies both substantive and procedural due process standards of United States Constitution. DeSalvo v. Ark. La. Gas Co., 239 F. Supp. 312 (E.D. Ark. 1965).

Interest.

A denial of interest on full award from the date of entry upon the lands denied the landowner just compensation, because he had the use of neither the land nor the money until the final judgment was entered. Housing Auth. v. Rochelle, 249 Ark. 524, 459 S.W.2d 794 (1970).

Preemption.

Condemnation procedures used by the gas company pursuant to this section were not preempted by 15 U.S.C.S. § 717f(h), as § 717f(h) specifically contemplated the use of state condemnation proceedings under the federal statute. GSS, LLC v. Centerpoint Energy Gas Transmission Co., 2014 Ark. 144, 432 S.W.3d 583 (2014).

Refund.

A railroad company may be refunded its deposit when condemnation proceedings are abandoned. Reynolds v. Louisiana, Ark. & Mo. Ry., 59 Ark. 171, 26 S.W. 1039 (1894).

Security for Payment.

The deposit is security to the landowner for the compensation that he may be finally awarded and is subject to the court's order; none of the parties to the proceedings has a right to withdraw that deposit without an order of the court. Fort Smith & W.R.R. v. Hare, 116 Ark. 10, 172 S.W. 835 (1914).

The preliminary deposit designated by circuit court as a condition to entry upon lands is only security for payment of final award rather than tender which may be withdrawn by the landowner. Housing Auth. v. Rochelle, 249 Ark. 524, 459 S.W.2d 794 (1970).

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.”

Research References

ALR.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding. 23 A.L.R.4th 631.

Am. Jur. 26 Am. Jur. 2d, Em. Dom., §§ 83, 84, 310-313.

C.J.S. 29A C.J.S., Em. Dom., §§ 43, 44.

U. Ark. Little Rock L.J.

Owen, Survey of Arkansas Law: Property, 2 U. Ark. Little Rock L.J. 275.

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.

Case Notes

Constitutionality.

This section does not deny foreign corporations engaged in interstate commerce the same right as domestic corporations, or discriminate against interstate commerce. Tennessee Gas Transmission Co. v. State, 232 Ark. 156, 335 S.W.2d 312 (1960).

Public Utility.

A gas company authorized, but not bound, by its charter to operate as a public utility did not become a public utility merely by virtue of this section, where the company did nothing pursuant to the terms of this section or in any other respect to make itself a public utility. Clear Creek Oil & Gas Co. v. Fort Smith Spelter Co., 148 Ark. 260, 230 S.W. 897 (1921).

Cited: St. Louis & S.F. Ry. v. James, 161 U.S. 545, 16 S. Ct. 621, 40 L. Ed. 802 (1896); DeSalvo v. Ark. La. Gas Co., 239 F. Supp. 312 (E.D. Ark. 1965).

18-15-1302. Right to enter, survey, etc. — Plat or map.

    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.
  1. 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 §§ 18-15-120118-15-1207, 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 §§ 18-15-140118-15-1407 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.”

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., §§ 55, 308.

C.J.S. 29A C.J.S., Em. Dom., § 46.

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.

Case Notes

Cited: Young v. Energy Transp. Sys., 278 Ark. 146, 644 S.W.2d 266 (1983).

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.
    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.
    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.
    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.
  2. 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 §§ 18-15-140118-15-1407 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.”

Research References

Am. Jur. 26 Am. Jur. 2d, Em. Dom., §§ 78-80.

C.J.S. 29A C.J.S., Em. Dom., § 49.

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. 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.
  1. 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.
    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.

Case Notes

Cited: L.C. Eddy, Inc. v. City of Arkadelphia, 303 F.2d 473 (8th Cir. 1962); Housing Auth. v. Rochelle, 249 Ark. 524, 459 S.W.2d 794 (1970); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404 (8th Cir. 1985).

18-15-1505. Urban renewal agencies.

      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.
      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.
  1. 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. 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.
  1. 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;
    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
  5. “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. 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.
  1. A jury shall determine the amount of the difference in fair market value.
    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.
  2. 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.
  3. 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. 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.
  1. 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.

Chapter 16 Landlord and Tenant

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.”

Research References

ALR.

Willfulness or malice justifying landlord's collection of statutory multiple damages for tenant's wrongful retention of possession. 7 A.L.R.4th 589.

Life tenant's death affecting rights under lease given. 14 A.L.R.4th 1054.

Provision in lease prohibiting assignment or subletting of leased premises without lessor's consent. 21 A.L.R.4th 188.

Merger or consolidation of corporate lessee as breach of clause in lease prohibiting, conditioning, or restricting assignment or sublease. 39 A.L.R.4th 879.

Lessor's retention of past-due rental payments as precluding termination of lease and dispossession of lessee for nonpayment of rent. 39 A.L.R.4th 1204.

Death of lessee as terminating lease. 42 A.L.R.4th 963.

Am. Jur. 49 Am. Jur. 2d, L & T, § 273 et seq. and § 546 et seq.

Ark. L. Rev.

Recent Development: Landlord Tenant, 58 Ark. L. Rev. 753.

C.J.S. 52 C.J.S., L & T, § 238 et seq.

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.
    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.
      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.

Research References

Ark. L. Notes.

Goforth, Arkansas Code § 18-16-101: A Challenge to the Constitutionality and Desirability of Arkansas' Criminal Eviction Statute, 2003 Arkansas L. Notes 21.

Prettyman, The Landlord Protection Act, Arkansas Code § 18-17-101 et seq., 2008 Ark. L. Notes 71.

Bryan Foster, The Purpose of Criminal Evictions: Applying the Theories of Punishment to Arkansas’ Criminal Eviction Statute, 2018 Ark. L. Notes 1993.

Ark. L. Rev.

Britta Palmer Stamps, Recent Developments: Pulaski County Circuit Court Judge Herbert Wright Invalidated Arkansas's “Failure to Vacate” Statute, 68 Ark. L. Rev. 531 (2015).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Property, 1 U. Ark. Little Rock L.J. 223.

Survey, Miscellaneous — Property, 13 U. Ark. Little Rock L.J. 386.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Property Law, 24 U. Ark. Little Rock L. Rev. 549.

Non-Legislative Commission on the Study of Landlord-Tenant Laws: Report to Governor Mike Beebe, President Pro Tempore of the Senate, and Speaker of the House December 31, 2012, 35 U. Ark. Little Rock L. Rev. 739 (2013).

Lynn Foster, The Hands of the State: The Failure to Vacate Statute and Residential Tenants’ Rights In Arkansas, 36 U. Ark. Little Rock L. Rev. 1 (2013).

Case Notes

Constitutionality.

This section does not deprive a defendant of rights under the due process clause of the Fourteenth Amendment to the United States Constitution, but is a valid exercise of the police power of the state. Poole v. State, 244 Ark. 1222, 428 S.W.2d 628 (1968); Duhon v. State, 299 Ark. 503, 774 S.W.2d 830 (1989).

Although landlords could use this section to evict tenants thus avoiding the use of civil processes which afford the tenant prior notice and hearing, the state was acting within its constitutional authority in providing criminal penalties for tenants who fail to pay rent so long as the federal rights of the tenants are protected by the state courts. Munson v. Gilliam, 543 F.2d 48 (8th Cir. 1976); Duhon v. State, 299 Ark. 503, 774 S.W.2d 830 (1989).

Criminal Trespass.

The criminal trespass statute, § 5-39-203, does not apply to a case where a renter, who is served with a valid notice to quit based upon failure to pay rent, refuses to vacate the premises, in view of the more specific statutes regulating a tenant's unlawful detainer, § 18-60-304 and this section. Williams v. City of Pine Bluff, 284 Ark. 551, 683 S.W.2d 923 (1985).

Evidence.

Defendant was guilty of violating this section where written lease agreement contained no term and was a tenancy at will, and when landlord demanded he vacate or pay rent, he did neither. Polk v. State, 28 Ark. App. 282, 772 S.W.2d 368 (1989).

Injunction.

The possibility of criminal prosecution under this section was not per se irreparable injury, so that tenants were not entitled to a preliminary injunction against prosecution for failure to pay rent. Munson v. Gilliam, 543 F.2d 48 (8th Cir. 1976).

In the absence of intentional conduct motivated by a malicious or discriminatory purpose, evidence of bad faith was insufficient to justify a preliminary injunction against prosecution under this section. Munson v. Gilliam, 543 F.2d 48 (8th Cir. 1976).

Jury Instructions.

Trial court did not abuse its discretion in giving jury instructions on the unlawful detainer statute and the criminal possession of real property statute because the instructions were correct statements of the law since they tracked the statutory language of § 18-60-304(2) and subsection (a) and subdivision (b)(1) of this section; there was some basis in the evidence to give the instructions because the lawfulness of the respective parties' legal right to possess real property bore on the issue of punitive damages, and the evidence did not demonstrate that an unlawful detainer action or misdemeanor charges were ever filed, but it was evident that there could have been grounds for such civil or criminal proceedings given the evidence adduced at trial. Schmidt v. Stearman, 2010 Ark. App. 274, 374 S.W.3d 254 (2010).

Notice.

Thirty days after service of notice to vacate constituted a reasonable period in which to vacate for a tenancy at will, and tenant became a trespasser at the end of 30 days after such notice. Polk v. State, 28 Ark. App. 282, 772 S.W.2d 368 (1989).

Parties.

Where the two owners of undivided interests in land contracted with a third party, also owner of an undivided interest, to lease lands to the third party, one owner-lessor could not procure a cancellation of the lease for failure to pay rent by the third party without joining the other owner-lessor in the proceeding. La Fargue v. La Fargue, 210 Ark. 97, 194 S.W.2d 438 (1946).

Sentence.

Court erred in imposing a sentence of 30 days' imprisonment for a violation of this section as the offense is classified as a violation and is subject to punishment only in accordance with the limitations of this section. Duhon v. State, 299 Ark. 503, 774 S.W.2d 830 (1989).

Cited: Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1982); Breshears v. State, 94 Ark. App. 192, 228 S.W.3d 508 (2006).

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.

Research References

U. Ark. Little Rock L.J.

Survey — Property, 10 U. Ark. Little Rock L.J. 605.

Case Notes

In General.

Prior to the enactment of this section, the only landlord's lien recognized in Arkansas, either by statute or common law, pertained to crops. Herringer v. Mercantile Bank, 315 Ark. 218, 866 S.W.2d 390 (1993).

The use of the word “shall” in the statute is mandatory and requires that property left in and about leased premises be considered abandoned and subject to whatever disposition made by the landlord. Harris v. Whipple, 63 Ark. App. 84, 974 S.W.2d 482 (1998).

Where a tenant moved her family and most of their belongings from a leased trailer, without notice to the landlord any items left in the trailer were deemed to be abandoned. Harris v. Whipple, 63 Ark. App. 84, 974 S.W.2d 482 (1998).

Applicability.

Finding against the appellant property owner in his conversion claim was improper, in part because there was no finding that appellant abandoned his personalty. Section 18-16-108 was inapplicable because, even if an oral lease existed, the appellee property owner was not a “lessor” whom the statute permitted to dispose of a tenant's property; if there was a lessor, it was appellee's son, and there was no evidence that, in taking dominion over the personalty, appellee was acting on his son's behalf. Schmidt v. Stearman, 98 Ark. App. 167, 253 S.W.3d 35 (2007).

Abandonded Property.

Trial court did not err in finding that appellant abandoned the property it left on premises after being afforded ample opportunity to accomplish its removal; with the termination of appellant's right as a lessee in a tenancy at will to remain on the property after the trial court ordered the issuance of a writ of possession, any property left behind was abandoned. Omni Holding & Dev. Corp. v. C.A.G. Invs., Inc., 370 Ark. 220, 258 S.W.3d 374 (2007).

Abandoned Property.

Because a tenant's property was left in the leased premises and was therefore “abandoned” under this section, the landlord was free to dispose of it as she saw fit without recourse by the tenant. Derrick v. Haynie, 2017 Ark. App. 327, 522 S.W.3d 831 (2017).

Legislative Intent.

When the legislature adopted the landlord's lien in 1987, it was mindful of this state's longstanding aversion to a landlord's lien and of the strict construction that would be applied to such legislation, and was also aware of the law and policies embodied in the U.C.C.; the legislature never intended a landlord's lien which arose simultaneously with a purchase money security interest (see §§ 4-9-103 and 4-9-324) to have priority. Herringer v. Mercantile Bank, 315 Ark. 218, 866 S.W.2d 390 (1993).

Priority of Lien.

The Uniform Commercial Code specifically excludes landlord's liens. Herringer v. Mercantile Bank, 315 Ark. 218, 866 S.W.2d 390 (1993).

There is no mechanism under this section for filing a landlord's lien that would approximate the perfection requirement under the U.C.C.; therefore, under Arkansas law, the priority of a landlord's lien is dependent on the time of attachment. Herringer v. Mercantile Bank, 315 Ark. 218, 866 S.W.2d 390 (1993).

While a landlord's lien under this section is not a security interest under the U.C.C., and therefore not a “conflicting security interest” under § 4-9-322, the landlord's lien operates, in effect, as a floating lien on after-acquired property (see § 4-9-204); it was exactly this kind of lien for which § 4-9-322 was structured, in order to protect the purchase money lien creditor. Herringer v. Mercantile Bank, 315 Ark. 218, 866 S.W.2d 390 (1993).

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 i