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Real Estate

Title Issues

After you purchase your home, you may notice that there are some pipes in your yard, or power lines running over your home. These are accompanied by utility easements, which allows the servicer of those utilities to come onto the land to fix any problems and otherwise protect their investment. Sometimes the city will have a right-of-way, a type of easement in which the city is allowed to use up part of your land for expanding a road. These are the most common types of easements.

However, an easement can also arise if another person uses your driveway to get to a public road, for example. These easements must be used for very specific purposes. Do not let someone else abuse your property. Speak to a lawyer, and review your options.

Another common title issue is that of adverse possession. The prototypical case is one in which a person builds their fence over your property line, pays taxes on the part of your land they have built over, and then files suit for quiet title. This can effectively deprive you of a part of our land. Even simple cases of mistake as to the property line can, over the course of several years, develop into a serious legal issue. It is your obligation to protect your title. Do so now, before it is too late.

The final major issue that can arise with the title to your land is when someone else says that they have a claim to the entirety of the property. Title insurance typically deals with such situations. However, if they refuse to do so, it is likely time to see a lawyer. You paid good money for that house, and should not let it go without a fight.

Real Estate Litigation

The single biggest purchase most people make in their lives is their home. Even an inexpensive property can cost hundreds of thousands of dollars over the life of your mortgage. It is only right to protect that investment when it is endangered. As a former licensed Realtor, I have experience in the sale and purchase of real estate. This is experience I would like to bring to you in your time of need.

There are many potential issues that may come up over the course of home ownership. The first and most obvious occurs when, after taking possession of your home, some kind of build quality problem arises. For example, cracks may appear on the exterior or interior walls of your home, or water intrusion may be noticed. Paint may peel, or appliances may not function correctly. In the worst situations, these problems may render the house unlivable. At the very least, they are problems that burden the homeowner with unnecessary worry.

Sometimes, a homeowner will choose to overlook these flaws when purchasing a house. Other times, these problems are intentionally concealed by the seller to make the property seem more valuable than it actually is. Unfortunately, fraud and misrepresentation occur all the time in home sales. During the housing bubble, everyone wanted to get into the housing market, including some that were either not experienced enough, or did not have the wherewithal, to follow through on their lofty promises to home buyers. Now that the bubble has burst, home owners are left with houses in substandard condition that, in the even more competitive market of today, simply will not sell for even their purchase price. In some cases, they will not sell period.

When buying a new home, you should read your contract and seller’s property disclosure carefully. You should also hire a home inspector that will help you carefully consider whether or not the risks in the home outweigh the benefits. However, even with these precautions, fraud and unscrupulous business practices can still get a buyer to closing without suspecting a thing. Sometimes, builders or previous homeowners will conceal problems in the house. Other times, they will forget or intentionally misrepresent the condition of the home on the seller’s property disclosure. In these events, compensation can be sought. Even if you did not have a home inspector, there may still be hope. In cases of fraud and misrepresentation, it is anyone’s guess if an inspector could have caught something in the first place. It is reasonable, though not always the best practice, to rely on the written statements of the buyers when purchasing a home. If they did something unscrupulous, then you may be able to seek compensation.

Our firm has experience in handling such “bad home” cases. If you find yourself in such a situation, please give us a call. Consultations are free, and rates are competitive.

Real Estate Agency Litigation

Real estate agents have an obligation to protect their clients, and they may also be liable when they fail to do so. This situation most often arises when a real estate agent fails to inform you of some fact that they had knowledge of which could affect your purchase decision. Real estate agents have what is called a fiduciary duty, one wherein they have an obligation to inform their clients of material facts. A breach of said duty can create liability for the agent.

If you were in a dual-representation situation, where the agent represents both the buyer and the seller, then there are even more pitfalls for the agent. The concept of a dual agency is foreign to attorneys, who are forbidden from engaging in such practices. For real estate agents, it is part of the job. Regardless of what your contract may say, the agent still has certain duties to both the seller and the buyer. That can include the same duties to disclose facts and to not engage in contradictory actions.

If you feel that your agent did not work for you, then give us a call. Consultations are free, and rates are competitive.

Real Estate Litigation Defense

Just because you are being sued, either as a real estate agent or seller, does not mean that you are legally liable. The prior sections on this site lay out the basic tenants for litigation against sellers and real estate agents. Sometimes, however, a person is simply unhappy with their purchase and is lashing out at their only hope of changing the situation. Even if your situation meets the criteria outlined in the other sections, you are still absolutely entitled to a defense on your behalf. These matters are fact-intensive, and the decision can often depend upon the method and means of presenting the evidence.

One of the biggest concerns in these cases is the propensity for extremely high compensatory damages, attorney’s fees and, if the situation warrants it, even punitive damages. These damages can exceed the price of the home its self. By all means, these are extremely serious lawsuits, and can lead to bankruptcy for individuals or can be a career-ender for agents.

Our firm, having experience with these types of lawsuits, is keenly aware of the defenses thereto. In the ideal situation, hiring us would not be necessary, and the situation can be resolved amicably outside of court. This is not always possible. You need a strong defense team behind you. Choose R. Scott Troutt. Initial consultations are free, and there is no pressure or obligation required.

Boundary Disputes

Without a survey, it is incredibly difficult to determine where one’s boundary lines lay. Most of the time, it is simply assumed that a fence, tree line, or ditch mark the end of one property and the beginning of another. This is not always the case, but particularly in rural areas people will rely on such markers when setting out fences, roads, or even outbuildings. When an adjacent landowner recognizes that the improvement is encroaching on their land, they sometimes just tear down the encroaching portion, causing significant monetary damages and enmity between the parties.

However, the “encroaching” landowner is not always without recourse. Arkansas recognizes adverse possession based on certain factors that may make the land the landowner’s on equitable or statutory grounds. As described in the Title Defense section, the archetypal example is the mislocation of a fence over years or decades and the defense of the property within by the landowner. But that is just one example of a myriad of situations that may fall under adverse possession.

Since August 12, 1995, Adverse Possession in Arkansas has been governed by ACA Section 18-11-106, which reads as follows:

“(a) 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)(A) 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.

(B) 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

(2) Held color of title to real property contiguous to the real roperty 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.

(b)(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:

(A) 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

(B) 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.

(c) The requirements of this section are in addition to all other requirements for establishing adverse possession.

(d)(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.”

What it boils down to is that the owner must have color of title (a deed, either valid or invalid) to the property its self or adjacent property for seven (7) years and have paid the taxes on said property or adjacent property. That does not apply if you are exempt from paying such taxes for one reason or another. There are special rules under section (d) for wild and unimproved lands as well. One can also take advantage of the twenty year rule that existed before this statute and did not require payment of taxes or color of title provided that the twenty years had passed prior to August 12, 1995. It is not necessary that you personally had ownership of the land when the adverse possession occurred.

To make matters more complicated, these rules are in addition to the general rules of adverse possession, which are that the possession be “visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. It is ordinarily sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another.” White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 228-29, 61 S.W.3d 235, 237 (2001) (internal citations omitted). The second sentence in that quote really boils the issue down well. If you are treating that land as yours and using it as such, that is sufficient in ordinary cases.

These cases are far more common than you may think. While it is more common in rural areas, it can be seen anywhere, even in your urban back yard. If you have a claim for adverse possession, then that land is yours for all intents and purposes.

We want to help you fight for your rights. Give us a call. Initial consultations are free.

Sales and Closings

While my firm is not a title company, we can handle certain real estate closings. Specifically, any cash closing or trade, even if you do need title insurance, can be handled by my firm. This would include all of the contracts, HUD sheets, deeds and so forth. Of course, we will handle the filing of any deeds, and we can handle unusual (life estate, contingent remainders, et cetera) deed and conveyance variants with ease.

The sale and purchase of real estate is a major process that is more complicated than it may at first seem. Our firm stands ready to meet your real estate needs.

Quality Document Preparation

Sometimes a full closing is simply unnecessary to satisfy one’s real estate needs. In those situations, a simple deed of transfer will suffice. My office has extensive experience with deed drafting, and can provide said service at a competitive rate. We will even ensure that your deed is filed in the proper place, and that all necessary tax stamps and affidavits are attached and properly prepared.

As a quick overview, the following deeds are available, though others can be produced as needed:

Quitclaim Deed: It means what it sounds like: you quit your claim on a piece of property and give it to another. These are generally used when you want to give away, trade or remove your interest from land, and are common in divorces. They limit the recourse of the grantee, or person who receives the deed, against the grantor, or the person who provides it.

Warranty Deed: In contrast to a quitclaim deed, this is where the seller is warranting to defend the title. These are typically provided when money exchanges hands, as a warranty deed brings with it liability on the grantor. However, they can be provided even when no money exchanges hands. This is a more advantageous deed for a grantee to receive.

Special Warranty Deed: This type of deed is something in between the above. More specifically, it warrants against defects done or suffered by the grantor. In other words, if the grantor created the defect or was a victim of it, then they must fix it. These are less common, and frequently have to do with the reservation of mineral rights in special circumstances.

As to the type of conveyance, there are several options, from fee simple, which has no exceptions in it, to various contingent remainders, which attach some stipulation to the ownership of the land. Reservation of life estates are also common, and discussed more fully in the estate section.

Get proven results now and avoid litigation in the future. Give the Troutt Law Firm a call. Initial consultations are free.


If you are a landlord that has a tenant that is in breach of your agreement or has failed to pay, don’t ignore your rights. While evicting or collecting from a tenant is never ideal, you should not bear the burden of your tenant’s breach or inability to pay. We can assist you with the viction process, collection of rent and other damages to your property, or help you create a solid lease agreement to protect yourself.

Likewise, if you are a tenant that has been mistreated by your landlord, call us today for a free consulation. Find out what options are available to you.

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