Chapter 4 : Conveyances

• Library: Standards for Examination of Real Estate Titles in Arkansas (2021 Ed.)

CHAPTER 4: CONVEYANCES

Standard 4.1 Presumptions

In the absence of actual or constructive notice to the contrary, it may be presumed by the examiner that a recorded instrument has been delivered, that it is not a forgery and that at the time of execution the grantor was not a minor, had the capacity to execute the instrument, and was acting voluntarily in exchange for adequate consideration.

Standard 4.2 Marital Status

1. A recital in an instrument that a party was unmarried or was married to a named spouse should be accepted without further requirement unless there is some evidence to the contrary. The designation of a grantor as "a widow" or a "widower" is equivalent to "a single woman" or "a single man."³⁸
2. Proof of marital status should be required where an instrument executed by one person alone does not recite such status and the instrument has been recorded less than seven years prior.³⁹
3. Where a conveyance recorded less than seven years prior to the examination was made by the record owner joined by a spouse whose first name is different from such person's name as grantee in a prior instrument, the examiner should require proof of identity, death or divorce.
4. Where the title was vested in a survivorship estate, and only one tenant thereafter conveyed, evidence of the death of the other should be required unless the instrument is more than 30 years old.
5. Effective August 13, 1993, a conveyance by both spouses affecting the homestead rights of such spouses shall be valid even though the spouses may execute separate instruments.

Standard 4.3 Recitals of Heirship

Where an instrument of conveyance contains a recital of heirship stating that the named grantors, or grantors and grantees, are all of the heirs of a certain decedent, and more than 24⁴⁰ years have elapsed since the execution and recording of that instrument, the recital may be accepted unless the examiner has reason to believe it is not correct. Proof of such heirship should be required by affidavit, or otherwise, where such instrument has been of record less than 24 years.⁴¹

Standard 4.4 Relinquishment of Dower and Curtesy

It is not necessary that an instrument of conveyance or acknowledgment thereof contain recitals that dower and curtesy are relinquished if both spouses executed and acknowledged the instrument.⁴²

Standard 4.5 Acknowledgments

Most defects in acknowledgments are cured both retrospectively and prospectively by Ark. Code Ann. § 18-12-208, which cures such defects as a missing notary's seal, missing expiration date of commission, and missing county name, to list some examples. The statute was amended in 2013 to add a subsection curing additional defects. These include, for example, (1) the lack of the words "for the consideration, uses, and purposes therein mentioned or set forth," in the case of conveyances; (2) a gender in the acknowledgment that does not match the gender of the person executing the instrument; (3) a missing title of the officer of an entity who is executing the instrument; and similar defects. The 2013 amendment also allows a valid jurat to substitute for a certificate of acknowledgment.

Act 1047 of 2021 amended the Arkansas Electronic Notary Public Act to remove the "in person" requirement for electronic notarial acts and to allow for "online notarial acts," commonly referred to as Remote Online Notarization or RON.⁴³ The Arkansas Secretary of State will be promulgating rules and regulations related to the qualification and registration of notaries to perform online notarial acts.⁴⁴ To perform an online notarial act, the notary must be physically located within the state of Arkansas,⁴⁵ create an audio and video recording of the online notarial act,⁴⁶ and keep a secure electronic record of electronic documents notarized which must be maintained for at least five years.⁴⁷ There are no statutory limitations on the location of the signatory, provided that the online notary is able to verify his or her identity.⁴⁸ Acknowledgements must include a notation that the notarization was an online notarization.⁴⁹

Standard 4.6 Corporations

In an instrument executed on behalf of a corporation it may be assumed that the corporation was legally in existence and in good standing and that the person or persons who executed the instrument were duly authorized to do so.⁵⁰

Standard 4.7 Instruments of Fiduciaries

1. Trustees

a. It is unclear whether title to real property can be held in the name of a trust, notwithstanding the fact that the trust might be recognized as a separate legal entity for certain other pur-poses.⁵¹ The safer practice would be for title to be held in the name of the trustee. For example, a conveyance to "John Smith, Trustee of the Mary Smith Trust," is a valid conveyance in proper form, whereas a conveyance to "The Mary Smith Trust" may not be.
b. Where an instrument conveys property to a person recited to be a "Trustee," without any further identification of the trust or trust beneficiary, such conveyance vests title to the property in the grantee individually, free and clear of any trust. Therefore, a subsequent conveyance by such grantee must be made in his or her individual capacity, and his or her spouse (if any) must join in the conveyance.⁵²
c. Proof of the authority of the trustee of an express trust to convey land owned by the trust should be furnished.⁵³
d. The settlor or spouse of a settlor of a self-settled trust does not abandon the Constitutional right of homestead by merely conveying the property to the trust.⁵⁴ The conveyance must contain an explicit relinquishment of homestead.

2. Guardians

Any instrument executed by a guardian of an estate which affects an interest in real estate should be supported by copies of all statutory guardianship proceedings necessary to authorize execution by the guardian.

3. Receivers

Any instrument executed by a receiver which affects an interest in real property should be supported by copies of relevant court proceedings authorizing execution of such instrument by the receiver.

4. Personal Representatives

Court approval is not necessary if a personal representative was granted authority by the probated will to execute instruments affecting any interest in the real property of the estate. Otherwise, any instrument executed by a personal representative which affects an interest in real property should be supported by copies of relevant court proceedings authorizing execution by the Personal Representative.

Standard 4.8 Partnership Conveyances

1. An interest in real property held in a partnership name must be conveyed in the partnership name. If a conveyance from the partnership is signed by one or more, but not all, partners (general partners in the case of a limited partnership) the examiner may require either: (1) the filing of a statement of partnership authority in the recording office of the county in which the real property is located, or (2) other evidence satisfactory to the examiner that the executing partner(s) were authorized to execute the conveyance.⁵⁵
2. The examiner may rely upon such a filed statement of partnership authority that was executed within five years prior to the date of conveyance, and not disputed by a statement of denial of authority⁵⁶ filed subsequent thereto and prior to the recording of the conveyance, as an accurate statement of the authority or limitation upon the authority of less than all of the partners to transfer real property in the partnership's name.
3. A subsequent purchaser for value of property initially conveyed by a partner without authority receives good title to the property unless: (1) the subsequent purchaser for value had actual

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