AR Underwriting Summary

Search/Exam

• Minimum Search Requirements Arkansas Law requires a minimum 30 year search. Arkansas Code 23-103-408

Ark. Reg. Rule 87 § 15. With respect to reliance on a prior policy agents should be aware that it is not the prior policy that provides compliance with the regulation, rather it is the underlying evidence of a thirty year search. Thus agents always should be able to produce the thirty year search evidence and not just a prior policy.

Failure to conduct the minimum search may result in the imposition by the Commissioner of penalties contained in Ark. Code Ann § 23-64-216.

• Plant or other search restrictions No but abstractors are licensed
• Additional Requirements for REO Searches N/A
• Foreclosure Checklist N/a
• Special Searches Required (Code, HOA, Utilities)? None
• Survey Requirements
  • Purchase – No for platted residential
  • Refinance – No

UPL

The commitment and final policy must be issued by a Licensed Title Insurance Agency and signed by a Licensed Title Insurance Agent. There is no requirement for attorney involvement in keeping with Act 684 of 2007 and its associated rules.

Vesting

Arkansas recognizes sole ownership and three forms of co-ownership referred to as joint tenancy, tenancy in common and tenancy by the entirety. H&W taking title without otherwise specifying presumed to be Tenancy by Entirety. Dennis v. Dennis , CA 99-626 ___ S.W.3d ___ (AR App. 2000), Black v. Black, 199 Ark. 609, 135 S.W.2d 837 (1940).

Tenancy by the Entirety passes automatically to survivor on death, unless TbyE has been terminated by divorce.

Mortgage/Transfer Tax

No Mortgage Tax. the transfer tax is uniform and is $3.30 per thousand.

Spousal Joinder Requirements/Homestead

Spousal Joinder is required. Non-Community Property. Dower & Homestead recognized.

Under Arkansas law, no act, deed or conveyance by one spouse without the assent of the other spouse, evidenced by an acknowledgment, escapes dower or curtesy. Ark. Code Ann. § 28-11-201(a)

A conveyance by one spouse, without the signature of the other spouse, does not extinguish dower or curtesy. Ark. Code Ann. § 28-11-301

Similarly, a conveyance, mortgage or other instrument executed by one spouse, without the joinder or acknowledgment of the other spouse, is invalid as to homestead property (with some allowances for purchase money creditors). Ark. Code Ann. § 18-12-403

A spouse can waive dower or curtesy either by joining the deed as a co-grantor or by merely acknowledging a release of the interest, with the latter choice typically being safer from the spouse's point of view because it avoids the spouse giving warranties of title. grantor has not died). Only a properly entered divorce decree terminates dower or curtesy, even if the parties think they are divorced. See, e.g., Grober v. Clements, 71 Ark. 565, 76 S.W. 555 (1903) and Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994)

Dower & Curtesy barred 7 years after recording, if in-title spouse is still alive. § 28-11-203

Probate & Estates

• Creditor Claims (except US) barred 6 months after publication of notice or 5 years after death. Ark. Code 28-50-101.
  • Bar does not affect mortgage, pledge, "or other lien arising under contract or statute upon the property of the estate" (e).
  • Limited exception for tort claims covered by insurance
• Claims of Known or Reasonably Ascertainable Creditors Barred 2 years after publication, even if not provided notice. 28-50-101(h)

Beneficiary Deed

Arkansas has a variation on the Transfer on Death Deed called a Beneficiary Deed. A statutory form is provided. It must be recorded in order to be effective on death. ACA 18-12-608

Intestacy

We will rely on an affidavit of heirship to establish facts surrounding heirs, but the gold standard is a summary procedure to determine heirship in Arkansas under s. 28-53-101.

Arkansas is a Dower state under which the surviving spouse takes a 1/3 interest. s. 28-53-101

The balance passes under the intestacy statute s. 28-9-214 on a per capita basis s. 28-9-204 if all heirs are of the same class, otherwise on a per stirpes basis under s. 28-9-205.

Who May Serve As Trustee On Deed Of Trust

Both Deeds of Trust and Mortgages are used. A trustee can be: A licensed Arkansas Attorney. A Bank or S & L authorized to do business in Arkansas. A duly licensed Trust Company. An agency or authority of the State of Arkansas. ACA § 118-50-102. An underwriter or title agent cannot be a trustee unless they qualify with the above.

Time Limitations

• US Judgment Liens 20 years
• State Court Judgment Liens 10 years
  • Statute of limitations for judgment Arkansas Code § 16-56-114 may be extended by payment on the debt, or attempts to enforce: process, execution or garnishment. See, e.g., Primus Automotive Financial Services vs. Wilburn, 2013 Ark. 258, 428 S.W.3d 480 (2013)
  • Life of judgment lien is only extended by suing out a scire facias using the procedure set forth in Arkansas Code § 16-65-501. See Arkansas Code § 16-65-117. So title is relatively safe after 10 years. Best practice is to check the court file for any filings.
• Federal Tax Liens 10 years (+ 30 days)
• State Tax Liens 10 years
• Estate Tax Lien 10 years
• State Inheritance Tax Liens 20 years
• Mechanics Liens 120 days
• Financing Statements 5 years
• Mortgages
• HOA Liens
• Condominium assessments
• Child Support Liens

Odd Stuff

Arkansas is a little different than many states in that under Ark Code 16-65-117 federal and bankruptcy court judgments do attach even when certified copies haven’t been filed in the land records – if the court clerk maintains a permanent office in that county.