Legislative and Case Review ARLTA Seminar February 18, 2012

1. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law Legislative and Case ReviewARLTA SeminarFebruary 18, 2012

2. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 145 AN ACT TO PROHIBIT CERTAIN TRANSFER FEE COVENANTS; AND FOR OTHER PURPOSES. Codified as section 18-12-107. Defines various terms including transfer fees and transfer fee covenant. Provides that transfer fee covenants recorded after the effective date of the Act does not run with the land and ARE NOT binding or enforceable. DOES NOT invalidate a transfer fee covenant recorded before the effective date. Effective date of ACT 145 is July 27, 2011.

3. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 172AN ACT REGARDING A PERSON FILING INSTRUMENTS AFFECTING TITLE OR INTEREST IN REAL PROPERTY; DECLARING AN EMERGENCY AND FOR OTHER PURPOSES. Amends Arkansas Code Section 5-37-226. Changes recorder of any county to “county recorder or the office of the Secretary of State. Changes the word intent to purpose. Provides that a person that has previously been convicted under this statute may be charged with a Class D felony for a subsequent violation instead of a Class A misdemeanor. First offense may be a Class C Felony if the victim falls within specified categories of individuals.

4. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 175 TO AMEND THE DATES FOR PAYMENT OF PROPERTY TAXES AND TO MAKE TECHNICAL CORRECTIONS. Procrastinators get five more days to pay and 51 more days to assess. Changes due date of property taxes, real and personal, to “between the first business day in March and October 15 inclusive.” Changes personal property assessment deadline from April 10 to May 31 of each Year. Penalty is still 10% if you don’t assess by the deadline.

5. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 210 THE IMPROVEMENT DISTRICT TRANSPARENCY ACT. Adds Subchapter 21 to Arkansas Code Title 14, Chapter 86. Applies to all improvement districts or protection districts that use the county collector for collection of assessments. Requires the district file an annual report with the county clerk which must contain, at the minimum, 11 specific items of information Specifies penalties imposed on the improvement district for not complying. Provides that the county collector shall not certify an improvement district levy or protection district levy to the Commissioner of State Lands for delinquency. Improvement districts subject to this section are now considered public records under the Arkansas Freedom of Information Act.

6. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 227 TO CLARIFY THE REQUIREMENTS TO REVIVE A JUDGMENT AND PERFECT THE JUDGMENT LIEN. Amends Arkansas Code section 16-65-501. Scirefacias. Provides that a judgment has to be specifically revived with notice in each county to be an effective reviver in said county. Must be filed in each county prior to expiration date.

7. Branch, Thompson, Warmath & Dale P.A. - Attorneys at Law ACT 280 CONCERNING MUNICIPAL PLANNING COMMISSION. Allows a city of the second class or incorporateDtown to pass an ordinance to allow the city council to serve as the planning commission and board of adjustment.

8. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 515 TO REGULATE THE ISSUANCE OF CLOSING PROTECTION LETTERS. Provides that only a title insurer may issue closing protection letters or a title insurance policy. “Title insurer” means a company authorized under the laws of this state to transact title insurance business. “Title insurance business” does not include: 1. A closing or escrow; or 2. The activities of a closing agent or other party performing a closing or escrow. If closing is in Arkansas, the closing agent must give notice of availability of closing protection.

9. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 559 AN ACT TO AUTHORIZE A STATEWIDE PARCEL MAPPING GRANT PROGRAM AND TO DECLARE AN EMERGENCY. Provides the Arkansas Geographic Information Systems Board may administer a Statewide Parcel Mapping Grant Program at the direction of the Arkansas Geographic Information Office.

10. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 700 TO AUTHORIZE THE ESTABLISHMENT OF ALTERNATIVE REAL ESTATE TRANSFER TAX DOCUMENTARY SYMBOLS AND ELECTRONIC AFFIDAVITS OF COMPLIANCE. Provides for a “Documentary Symbol” that may be used in lieu of documentary stamps. Provides that the director may investigate the possibility of replacing or supplementing the paper documentary stamps, without limitation, with ink-based or computer-generated symbols to be placed on instruments evidencing a transfer or real property.

11. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 740 TO EXTEND THE TIME IN WHICH CERTAIN LANDS MAY BE DETACHED AFTER AN ANNEXATION PROCEEDING. Changes the time period from 3 years to 8 years.

12. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 761 TO REQUIRE NOTICE AND THE RECORDING OF A DEED FOR A DISTRIBUTEE TO COLLECT A SMALL ESTATE. Must publish a legal notice of the filing of an affidavit for collecting if the small estate contains real property.Distributee, after filing and required notice, shall issue a deed to himself or herself for the real property of the decedent And Deliver notice of the transfer to tax assessor.

13. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 762 TO REGULATE THE ISSUANCE OF A BROKER’S PRICE OPINION BY A REAL ESTATE LICENSEE. Defines a “Broker’s price opinion”. Sets forth when a licensee may issue a price opinion for a fee. If used by a lienholder, cannot be used as the primary basis to determine value of a principal residence for the purpose of loan origination of a residential mortgage secured by the buyer’s principal residence. Broker’s price opinion SHALL NOT use the terms “market value”, “appraised value”, or “appraisal”.

14. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 795 TO CLARIFY THE SCOPE OF THE REAL PROPERTY TRANSFER TAX. Transfer taxes apply to real estate and not tangible or intangible personal property.

15. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 806 TO PERMIT HOUSING AUTHORITIES TO REGISTER FICTITIOUS NAMES. To use a fictitious name, a housing authority must receive approval from a governing body AND Must register with the Secretary of State.

16. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 857TO CLARIFY THE TIME OF EXPIRATION OF OIL AND GAS LEASES AND THE SEVERANCE OF SECTIONS OR UNITS IN WHICH PRODUCTION HAS NOT BEEN OBTAINED DURING THE PRIMARY TERM OF THE LEASES.

17. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 867 AN ACT CONCERNING THE ASSESSMENT OF MINERAL INTERESTS. Mineral interests to be assessed separate from the fee when the mineral interest holders are different from the person or persons holding the fee simple interest.

18. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law ACT 869 TO AMEND THE LAWS REGARDING THE VESTING OF HUNTING OR FISHING RIGHTS IN LEASED FARMLANDS. Landlord retains hunting and fishing rights on farmland and tenant has no hunting or fishing rights unless specifically granted to tenant in writing.

19. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law DeedsRockett vs. RockettMarch 2, 20112011 Ark. App. 159

20. A lawyer corrects his son: “No, Jimmy, I distinctly said you can halve your allowance if you mow the lawn. That’s why we ask for things in writing.” Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

21. Rockett vs. Rockett Husband and Wife Divorce Wife executed deed – November 2003 Deed not recorded until 2007 Wife petitions court claiming “mistakenly conveyed property” Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

22. Not so fast - Rule Court interpreted the deed to determine if it was “mutual mistake”. Mutual Mistake must be proven by clear and convincing evidence, although it need not be undisputed. Lambert vs. Quinn, 32 Ark. App. 184 (1990) Wife testified at trial that she did not intend to convey property in the deed. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

23. Rockett vs. Rockett “I may have been stupid enough to marry you, but I’m not that stupid.” Court held: Ex-wife testified that she quitclaimed property to her ex-husband by accident; her property secures mortgage, and divorce decree states she will own one-half tenancy in common. Correction Deed was found appropriate; mutual mistake was present. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

24. Poetic Legal Justice Branch, Thompson, Warmath & Dale P.A. Attorneys at Law You can say it with flowers,You can say it with candy,You can say it with jewelry or drink.You can say it with candles and dinner with brandy,But be sure you don’t say it with ink.

25. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law DeedsThorn vs. PiersonMarch 16, 20112011 Ark. App. 206

26. Thorn vs. Pierson “Jewels Stay with the Queen” 87 year old Pierson conveys farm to daughter for $100k Warranty Deed executed Mineral Rights of land value property at $300k Circuit Court set aside deed “confidential relationship” Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

27. Thorn vs. Pierson 1. Was there a confidential relationship? 2. Did Pierson reserve mineral rights? Confidential Relationship not established. Queen did not lack understanding of the law and was independent. Furthermore, daughter performed many caretaking duties and services, and $100k was not unreasonable. The deed contained no reservation, and the mineral rights passed with the surface rights. “Love is only skin deep” Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

28. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law GiftsFletcher vs. FletcherFebruary 2, 20112011 Ark. App. 89

29. Fletcher vs. Fletcher Wife sues Husband for divorce in 2005 Attempts made to reconcile prior to decree being entered Wife and Husband going to buy family business for benefit of daughter 2006 Closing occurs, deed made out to daughter, and plans made for business Divorce Hearing in 2007 and court stated needed separate quiet title action. Wife claims daughter held property in constructive trust for Wife and Husband. Trial Court found “absolute gift” was made. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

30. Fletcher vs. Fletcher The gift that keeps on giving and I keep taking, and taking, and taking, and taking. Love, Mom Elements of a gift that must be proved by clear and convincing evidence: 1) a donor of sound mind; 2) an actual delivery; 3) the intent to make a present and final gift; 4) unconditional release of all future control and dominion; and 5) acceptance. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

31. Fletcher vs. Fletcher Attorney: I want the record also to reflect that the Court has made noises on the record indicating a “tsk” sort of sound, so that the record can at least show…. Court: For the record, it is spelled t-s-k, I think. Well, counsel, I would like the record to reflect that your attitude is petulant, childlike, and totally and thoroughly unprofessional. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

32. Boundary by Acquiescence Branch, Thompson, Warmath & Dale P.A. Attorneys at Law Kirkland v. SandlinMay 12, 20112011 Ark. 209

33. Kirkland vs. Sandlin In 2000, Sandlins want to erect fence along newly purchased Lot 28. Both parties (Fullbrights and Sandlins) agree to boundary line for new fence. In 2003, Fullbrights sell home to Salters. Salters could have sold disputed land at that time to Salters, but declined to do so. In 2008, Kirkland purchases Lot 29 from Salters. Kirkland then requests that Sandlin remove the fence and sues for ejectment. Court found there was a valid boundary line. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

34. Kirkland vs. Sandlin Kirkland appeals arguing unconscious mutual mistake. Boundary by Agreement 1) There must be uncertainty or dispute as to the line; 2) The adjoining landowners must agree on a boundary; 3) The agreed-to-line must be definite and certain; and 4) Possession must follow the agreement Court affirmed holding that a valid boundary by agreement was created. Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

35. Kirkland vs. Sandlin Boundary Line by Acquiescense It usually takes a hundred years to make a law, and then, after it has done its work, it usually takes a hundred years to get rid of it. - Henry Ward Beecher Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

36. Kirkland vs. Sandlin Unconscious Mutual Mistake Branch, Thompson, Warmath & Dale P.A. Attorneys at Law

37. Legal Representation Howard was terminally ill and asked his doctor how much time he had to live. Not wanting to lie, the doctor told Howard that he wouldn’t make it through the night. Hearing this, Howard called for his lawyer and asked him to come and sit by his bed. Just before Howard passed away, the lawyer asked him why he called him to his bedside. Howard replied, “When Jesus died, he had a thief next to him, and I wanna go the same way.” Branch, Thompson, Warmath & Dale P.A. Attorneys at Law