How to transfer land without a will in Arkansas.

Do you have only a tract of land in Arkansas?  If you live in another state and have a vacation home, rental property, timber land, or mineral interest in Arkansas, you may leave your family with a burden if you utilize a will to transfer title at your death.

Merely filing a will in the County real estate records in Arkansas is not enough.  The law will require your heirs to admit your will to probate.  The average probate costs around $2000.

There is a very low cost alternative to probate.  Act 1918 of 2005 allows beneficiary deeds.  This makes your Arkansas land or Arkansas mineral interest transfer ownership just like a pay on death bank account.  The best part is that it is very flexible and low cost.  The beneficiary of your land at your death can be a trust, company, person, or a charity.

Contact Law Offices of Mark Robinette to learn more.

In what Arkansas Counties can you utilize a beneficiary deed?  All 72, of course!  This includes Arkansas County, Ashley County, Baxter County, Benton County, Boone County, Bradley County, Calhoun County, Carroll County, Chicot County, Clark County, Clay County, Cleburne County, Cleveland County, Columbia County, Conway County, Craighead County, Crawford County, Crittenden County, Cross County, Dallas County, Desha County, Drew County, Faulkner County, Franklin County, Fulton County, Garland County, Grant County, Greene County, Hempstead County, Hot Spring County, Howard County, Independence  County, Izard County, Jackson County, Jefferson County, Johnson County, Lafayette County, Lawrence County, Lee County, Lincoln County, Little River County, Logan County, Lonoke County, Madison County, Marion County, Miller County, Mississippi County, Monroe County, Montgomery County, Nevada County, Newton County, Ouachita County, Perry County, Phillips County, Pike County, Poinsett County, Polk County, Pope County, Prairie County, Pulaski County, Randolph County, Saline County, Scott County, Searcy County, Sebastian County, Sevier County, Sharp County, St. Francis County, Stone County, Union County, Van Buren County, Washington County, White County, Woodruff County, Yell County

What is the statute of limitations for probating a will in Arkansas?

If the deceased is a resident of Arkansas, the time limit to probate a will is 5 years past the date of death.  With non-residents, the time limit is more flexible.  Any will admitted to probate in another state in a timely manner may be probated in Arkansas at any time.  There are date restrictions.  The will of anyone who died prior to the effective date of Act 166 of 1963, whether a resident or non-resident is subject to a strict 5 year statute of limitations.   Prior to Act 166 of 1963 and the effective date of Act 140 of 1949, the strict 5 year statute of limitations applied.  Prior to Act 140 of 1949, there was no statute of limitations.  The courts have contradictory holdings on the retrospective application of Act 140 of 1949.  Contact Law Offices of Mark Robinette to discuss if you face this complicated, but rare problem.

How long do I have to probate a will in Arkansas?

If the deceased is a resident of Arkansas, the time limit to probate a will is 5 years past the date of death.  With non-residents, the time limit is more flexible.  Any will admitted to probate in another state in a timely manner may be probated in Arkansas at any time.  There are date restrictions.  The will of anyone who died prior to the effective date of Act 166 of 1963, whether a resident or non-resident is subject to a strict 5 year statute of limitations.

Landowners Prevail in Cleburne County Arkansas Mineral Rights Litigation But Damages Lacking

Cleburne County landowners Bruce and Jan Smith won on appeal in the case of Smith v. Mountain Pine Timber, Inc., 2016 Ark. App. 193.  In this case, Mountain Pine timber previously sold the minerals to land later sold to the Smiths.  Mountain Pine then sold the land to the Smiths with full warranty of title and with no mineral reservation.

Under Arkansas law, a warranty of title is actionable as a breach of contract.   The statute of limitations does not begin to run until a third party disturbs the purchaser’s rights to possession of the property.  This is particularly important feature of the law when it comes to minerals.  Minerals are not possessed until produced.  Many years can pass before the requisite mineral development and production takes place.

In the Smith case, they purchased the land from Mountain Pine Timber in 1987.  It was not until 2008, when the Smiths were approached to sell their mineral rights that the Smiths discovered that Mountain Pine previously sold the Cleburne County mineral rights.

Another point of black letter law in Arkansas is that the damages for breach of warranty of title are “so much of the consideration paid as is proportioned to the value of the land lost, with interest.”  Furthermore, the damages cannot exceed the total value of the purchase price.  The Court of Appeals therefore reasoned that the property point in time to fix damages was the time of the conveyance.  In this case, that was the 1987 conveyance to the Smiths from Mountain Pine.  The Smith trial court awarded only $250.22 in damages or $1/acre.

Notably, the only evidence offered on the value of the Cleburne County mineral rights in 1987 was from one of the Defendants who testified that the mineral rights were sold by Mountain Pine for $1 per acre in 1985.  This underscores the importance of offering expert testimony of damages.  Most likely, the actual value of the Cleburne County mineral rights was much higher than the $1 per acre awarded by the trial court, and the low damages award was the result of insufficient testimony by the Plaintiffs.   I’ve seen numerous mineral deeds in the Cleburne County records prior to the Fayetteville Shale discovery that easily exceeded $1 per acre.

Justice, however, was in some manner served for the loss suffered by the Smiths.  In a companion appeal of Mountain Pine Timber v. Smith, 2016 Ark. App. 197, the Court of Appeals upheld an award of attorney’s fees in the same case.  Arkansas law allows attorney’s fees to the prevailing party in a contract action (which a deed covenant is) provided the fees are reasonable.  The court awarded $17,500 in attorney’s fees.  The Appeals Court concluded the award of attorney’s fees was not excessive.

Eviction in Arkansas: What happens to personal property left behind?

The story:  A tenant renting an office did not have enough sense to move out quietly in the dead of night or over a long weekend after not paying the rent for months.  The tenant held out intransigently because it had either nowhere else to go or nowhere else to put its stuff.  The court gave an order with a writ of possession.  The sheriff accompanied the landlord to the property, the tenant wasn’t there, and the locksmith changed the locks.  To the landlord’s surprise, the office is full of furniture, decor, and books.   The tenant owes $3,000 in back rent and $1,000 in court costs and attorney’s fees.  What should the landlord do with this bonanza of business property?

Under Ark. Code Ann. 18-16-108, “[u]pon 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.”   This statute was upheld in Omni Holding and Development Court v. C.A.G. Investments, Inc., 370 Ark. 220, 258 S.W.3d 374 (2007).  In this case, the court ruled that upon the issuance of the writ of possession, the property became abandoned.  This means that the tenant has only until the judgment (or if an appeal is taken any time during the staying of the judgment) to remove property on the premises.   After that, it’s too late.

The hypothetical landlord sells the office furniture, book, and decor to a new tenant for $1500.  If our hypothetical tenant owes a $4,000 judgment, then what, if any, affect does the landlord’s sale have on the judgment???

Tough question.  Part (b) of 18-16-108 states that “[a]ll 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”  Did the General Assembly intend that part a of the statute (abandonment)  work in concert with part (b) (lien)?  I could argue either way.  My argument that the landlord has no duty to utilize the proceeds of the sale is that part a uses “abandoned” as the property’s status and the landlord can dispose of the property “without recourse.”  The legal term of art “abandoned” at common law means that one finding property becomes the owner.   Thus, by using this term of art, the General Assembly meant that the Landlord is literally the owner of the property.  The “without recourse” provision redoubles this interpretation.

On the other hand, I can argue part (b) should read with part (a) because there is nothing in the remainder of the Arkansas Code that tells the would be lien holder landlord how to foreclose upon the lien created.  I suppose that the argument is that part (a) and part (b) together create a type of bailor-bailee relationship.  This would allow the landlord to make a commercially reasonable sale.

The stronger argument is the first.  To impute a bailor-bailee relationship such as a pledge is to impute the commercially reasonable sale requirement.  How can the requirement for a commercially reasonable sale exist when the statute specifies that the disposal of the property is “without recourse?”  A court could get there, but it will require legal gymnastics to get there.

I think this question is an academic one that may never be answered by the courts.  Practically, no person with any common sense will leave anything valuable on the premises.  They might leave a liability (like some junk), but nothing that will bear fruit for the repossessing landlord. In the rare cases they do, the value of the property pales in comparison to the judgment for back rent and the landlord doesn’t want to spend money to collect the judgment, so any serious consideration of whether to credit the judgment never occurs.  The landlord just takes or sells the property and leaves the judgment standing until it dies 10 years hence.

Thanks for reading.  Don’t take anything above as legal advice.  Every situation is different and there subtleties that I didn’t address, so what you’ve read is very, very general and generic and may not apply to your situation.  If you have the need for representation, give me a call at 501-251-1076.  I accept landlord tenant cases including evictions in the Central Arkansas area including, Pulaski County, Lonoke County, Saline County, Faulkner County, and Perry County.  This includes the Little Rock, North Little Rock, Bryant, Benton, Conway, Mayflower, Perryville, Lonoke, Sherwood, Jacksonville, and Cabot metropolitan areas.  In general, I don’t represent tenants that are individuals unless there’s a serious problem with the premises or the landlord’s behavior. With businesses tenants, I will take tenant work on a case by case basis.  Landlords are almost always welcome. Call me at 501-251-1076.

Will of Pulaski County, Arkansas man ruled invalid for lack of testamentary capacity and undue influence.

In Shepard v. Jones, 2015 Ark. App. 279, a Pulaski County, Arkansas man’s will was found invalid after a lengthy and factually intensive trial.  In this case, the man was in hospice, on pain and anti-anxiety drugs, and barely conscious when his friend literally signed the will for him by holding the pen in the dying man’s hand and signing the man’s name.  In addition, the person procuring the will who was the man’s half-sister, withheld the fact that the dying man then owned $114,000 from the death of his sister.  The half-sister directed that the will she had prepared for her dying half-brother leave her and a family friend $365,000 while leaving the other heirs at law sums of $15,000 or less.

The facts of this case are excellent reading and law case book example of lack of capacity and undue influence.  In Arkansas, one seeking to dispose of his property by will must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his property.  In this case, the man had no capacity whatsoever as evidenced by the trial court record.  The court’s recitation of the facts and circumstances leading up to the signing of the will is on pages 2 through 9 of the opinion.

If you have questions about the circumstances of the making of a loved one’s will, Arkansas probate and wills attorney Mark Robinette can provide you with valuable information about the law.  Lawyer Mark Robinette accepts probate cases in all 72 Arkansas counties.  Whether you need a full probate and administration of an estate or just probate of a will to clear title, Arkansas probate lawyer Mark Robinette can help you.

Van Buren County, Arkansas surface owners win partial victory over mineral owners on bad legal description.

In XTO v. Thacker, 2015 Ark. App. 203, a Van Buren County, Arkansas trial court ruled that a mineral deed with an extra handwritten description “also the South quarter of the Northeast quarter” invalid as surplusage.  In legal language, “surplusage” is just extra language that means nothing.    Surplusage is language that is unintelligible and repugnant to the matter at hand.  In this case, there was a typewritten legal description of 118 acres with a handwritten notation including “the South quarter of the Northeast quarter.”

When affirming the Van Buren County, Arkansas trial court’s ruling on the legal description in the deed, the Arkansas Court of Appeals noted that someone made the notation on the deed after the date of recording.  Thus, the land description attempted was not in the original parties’ bargain and the language placed in the deed after the recording date was surplusage.

Drafting is very important in any deed, but especially important in Arkansas mineral deeds.  Accurate legal descriptions are among the most important parts of a mineral deed.  It pays to have your Arkansas mineral deed lawyer to perform some title work to obtain the correct legal descriptions when giving an Arkansas mineral deed.  This may make the deed cost more, but it saves down the road when others may choose to scrutinize the title conveyed by the deed because the property has valuable oil and gas production and royalties.  It is also crucial that when granting Arkansas mineral interests title is clear and of record.   This too becomes an issue years later when there is real money at stake that makes the extra paid to a competent mineral deed lawyer a bargain in comparison to future litigation costs.

Mark Robinette is an Arkansas lawyer and attorney providing Arkansas mineral deeds and supporting Arkansas title work in all 72 Arkansas counties including the Fayetteville Shale counties of White County, Cleburne County, Van Buren County, Faulkner County, Conway County, and Pope County.   Arkansas lawyer Mark Robinette also represents persons in the South Arkansas oil patch including Nevada County, Ouachita County, Miller County, Lafayette County, Columbia County, Union County, and Calhoun County.

Van Buren County, Arkansas surface owners lose appeal on 1984 mineral quiet title order

In XTO v. Thacker, 2015 Ark. App. 203, some Van Buren County, Arkansas surface owners filed a quiet title suit in 1984 naming one of two original 1929 Van Buren County mineral deed grantees as defendants.  In the 1984 Arkansas quiet title suit, the surface owners alleged that the grantor of the mineral deed was not the record owner of the property and that the mineral deed was therefore invalid.

In usual fashion, the surface owner’s quiet title suit attorney filed an affidavit reciting that whereabouts of the named Arkansas mineral owner defendant was unknown after making a “diligent inquiry.”  The affidavit did not detail the efforts of the lawyer’s efforts to locate the mineral owner.   The clerk issued a warning order based on the affidavit, and the warning order ran in the local paper for four weeks.

Of course, the mineral owner defendant did not appear to answer the Arkansas mineral quiet title complaint.  The court entered an order quieting title in the surface owner defendants.  In 2010, after the development of the Fayetteville Shale in Van Buren County, Arkansas, the absent Van Buren County, Arkansas mineral owner learned of the 1984 quiet title decree and sought to set aside the court’s order of 26 years earlier.

At trial, the mineral owners and their production company lessee (XTO) lost.  The trial court ruled that the plaintiffs in the 1984 case complied with the rules governing notice in quiet title suits that were in effect at the time.

The Arkansas Court of Appeals reversed the trial court’s order finding that the plaintiffs properly served the absent mineral owner.  Specifically, the rules in effect at the time of the 1984 required a recitation of the efforts employed to locate the missing mineral owner.  In this case, the affidavit merely recited that the absent mineral owner was not found after “diligent inquiry.”

In addition, the Arkansas Court of Appeals found that the 1984 case did not employ every method of notice required.  A newspaper warning order in a civil suit is a general requirement.  In an Arkansas quiet title lawsuit, there is a specific statutory requirement found in Ark. Code Ann. 18-60-503.  The statute requires a specific type of newspaper notice to run for four weeks with due proof of publication filed in the case.  This was absent in the 1984 quiet title suit.

When pursuing a quiet title lawsuit in Arkansas, it is vitally important to follow rules governing notice in the Arkansas Rules of Civil Procedure to the letter.  In addition, a plaintiff must follow the statutes governing Arkansas quiet title suits in general found in the Arkansas Property Code (Title 18).  When choosing an Arkansas quiet title lawyer for mineral interests or surface interests, make sure the quiet title attorney has knowledge of all the relevant statutes and does a thorough job of locating and identifying possible defendants.

Mark Robinette is an Arkansas lawyer and attorney providing quiet title suit services in all 72 Arkansas counties including the Fayetteville Shale counties of White County, Cleburne County, Van Buren County, Faulkner County, Conway County, and Pope County.   Arkansas lawyer Mark Robinette also represents persons with quiet title suits in the South Arkansas oil patch including Nevada County, Ouachita County, Miller County, Lafayette County, Columbia County, Union County, and Calhoun County.

Van Buren County Land Owner Loses Challenge to Arkansas Oil and Gas Commission’s Integration Process

The Supreme Court of Arkansas upheld Arkansas’ oil and gas integration process in the opinion of Gawenis v. Arkansas Oil and Gas Commission, 2015 Ark. 238.  Gawenis, a Van Buren County landowner, challenged the integration procedure as an unconstitutional taking of property.  The Supreme Court issued a 12 page opinion with a lengthy explanation of oil and gas unit integration in Arkansas.  It is a very good introduction to the subject for anyone who does not know the background of oil and gas unit integrations in Arkansas.  After explaining the process, the court reasoned that because the Van Buren County landowner had various options that did not require a transfer of the title to his oil and gas rights, the Arkansas oil and gas integration was not a “taking” of property so as to trigger the Constitutional requirement for a trial by jury.  This was the opinion of nearly all Arkansas oil and gas attorneys prior to this challenge.

The case drew a lone dissenter in Justice Joseph Linker Hart who reasoned that the use of fracking may cause special damages which triggers the Constitution of the State of Arkansas’s requirement for a jury trial to ascertain the amount of damages.

Law Offices of Mark Robinette accepts oil and gas litigation, title curative, royalty dispute, and integration cases in all Fayetteville Shale counties in Arkansas including Faulkner County Arkansas, Van Buren County Arkansas, Conway County Arkansas, Cleburne County Arkansas, and White County Arkansas.  Call today at 501-251-1076, or click one of the action buttons in the right frame where you may schedule a call, video conference, or receive answers to your legal questions.

Changing Oil and Gas Royalty Ownership with Lion Oil in South Arkansas

When I get a call from a potential client about their oil royalties in South Arkansas, I always ask “who has your lease?”  The answer 9 out of 10 times is “Lion Oil.”  This answer is wrong answer 10 out of 10 times.  Lion oil is just a refinery.  They don’t own oil wells anymore. They do own pipelines, but that’s about all outside of the refinery gates.   So why do the checks come from Lion Oil? That’s always the next question. The answer is simple:  Most oil operators in South Arkansas do not have the back office staff to set up and maintain complicated oil well ownership pay decks.  (Complicated it is! I will tell you that a typical 80 acre oil production unit in South Arkansas has upwards of 100 distinct owners with interests diluted to the 9th decimal place.)    Thus, these mom and pop oil companies outsource their royalty payment back office to Lion Oil.  It works well because nearly all of the oil production in South Arkansas goes to Lion Oil anyways.

Lion Oil is a wholly owned subsidiary of Israeli multinational company Delek Holdings (NYSE: DK).  The company bought Lion Oil back in 2011, but don’t worry, nothing changed as far as I can tell dealing with the land department.  Still the same helpful folks.  To change ownership, one has to contact their land department.  They don’t provide legal advice.  Thus, if you need your Arkansas oil and gas royalty ownership changed, you need professional advice.  An Arkansas oil and gas lawyer can help.  Law Offices of Mark Robinette practices Arkansas oil and gas law out of Little Rock, Arkansas.  Mr. Robinette regularly deals with oil and gas royalty ownership changes in Union County Arkansas, Columbia County Arkansas, Lafayette County Arkansas, Miller County Arkansas, Ouachita County Arkansas, and Calhoun County Arkansas.  These are all counties that produce oil and gas that goes to Lion Oil.

Many things can trigger a need to change oil and gas royalty ownership in Arkansas.  This might include:  Death of the owner, divorce of owner, sale of the interest, bankruptcy, creation of a trust, and name changes.  In addition to providing these documents to Lion Oil, the owner should record the information in the real estate records of the county of the oil well or oil production unit.  While this seems simple, there are many traps for the unwary.  Hiring Law Offices of Mark Robinette to handle your Arkansas oil and gas royalty ownership transfer will give you the piece of mind that an experienced Arkansas oil and gas lawyer will handle your oil and gas ownership change from start to finish.