How can an Arkansas county get an easement on land owned by a defunct church or unincorporated association?

Plain-English summary

Senator Uvalde Lindsey described a recurring problem in rural Arkansas: in the 1940s and 1950s, school district consolidation produced surplus schoolhouses. School districts often deeded those buildings by quitclaim to unincorporated rural churches or community associations. Decades later, those churches and associations have ceased to function. The buildings often stand on land that counties now need to cross with easements for rural water projects. No one is available to sign the easement.

Attorney General Leslie Rutledge gave a structured answer covering both halves of the problem.

For the unincorporated association side, Rutledge pointed to the Revised Uniform Unincorporated Nonprofit Association Act (UNA), Ark. Code Ann. § 4-28-601 et seq. Even an inactive association continues to exist until it is "wound up" under § 4-28-628(b). Its managers or members (those identified in governing documents or by long practice) can transfer real-property interests, including granting easements, by executing a "statement of authority" under § 4-28-607.

The harder case is when no managers, members, or successors can be identified. The UNA's distribution-on-dissolution provisions in § 4-28-629 cascade through several rules: donor instructions, trust terms, similar-purpose distribution, governing principles, members per capita, and finally Arkansas's Unclaimed Property Act. Without specific facts about the deeds, governing principles, and historical records, Rutledge could not say which rule applied.

For the county side, Rutledge pointed to the condemnation procedure for municipal water projects in Ark. Code Ann. § 18-15-401 et seq. That procedure includes specific provisions for property where "all or a number of the persons who might be claiming an interest in the property are unknown" (§ 18-15-403(a)(4)). Counties acquiring easements for water projects could use that procedure. Counties were also encouraged to "make use of existing easements and rights-of-way to the extent practicable," so a title search should come first.

The bottom line: identify a manager or member if one exists; if not, use eminent domain.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does an unincorporated association still exist after it stops meeting?
A: Yes, until it is formally wound up. The UNA at § 4-28-628(b) treats an unincorporated nonprofit association the same way the Arkansas business code treats a for-profit corporation: existence "continues" through dissolution until winding up is complete. A church that stopped having Sunday services 40 years ago technically still exists if no one ever wound it up. That can be a problem (no one to sign) or an opportunity (any surviving member or manager can act).

Q: What is a "statement of authority"?
A: It is the document an unincorporated association uses to put a person's authority on the land records under § 4-28-607. It is filed in the county where the property sits and identifies who has authority to execute deeds, easements, leases, and other instruments. The statement does not replace the deed itself; it just establishes who can sign one. For a county trying to get a defunct church to sign an easement, a member or manager who can produce a statement of authority is the cleanest path.

Q: What if the property was held by a "Trustees" group, not a church or association?
A: It might be a trust rather than an unincorporated association. Trusts are excluded from the UNA's coverage under § 4-28-602(8)(a). The "Savoy Community Trustees" example in the opinion may have been a trust, in which case different rules apply. The UNA's own editor's note acknowledges that "trustee" labels do not necessarily mean trust structure (§ 4-28-602, editor's note 3), so identifying the legal entity requires looking at the original deed and any governing instruments.

Q: What is the condemnation route for unknown owners?
A: Ark. Code Ann. § 18-15-403(a)(4) provides the procedure when "all or a number of the persons who might be claiming an interest in the property are unknown." The condemning authority files a complaint, gives notice through the procedures the statute prescribes (typically newspaper publication for unknown owners), and obtains a court order setting just compensation. The compensation is held for any unknown owner who later appears.

Q: Should the county try negotiation first?
A: Yes, if any manager or member of the association can be identified. The AG noted that counties are encouraged to "make use of existing easements and rights-of-way to the extent practicable" and a title search may reveal that an existing right-of-way already covers the proposed water-line route. Eminent domain is the backstop, not the first move.

Q: What does Riffle v. Worthen tell us about the kinds of easements?
A: Riffle v. Worthen (1997) lays out three common-law variations: appurtenant easements (which "run with the land"), easements in gross (which are "personal to the grantor"), and easements by necessity (which require the same person once held both tracts and severed by conveyance). The kind of easement matters because some are transferable and some are not. For rural water lines, an appurtenant or in-gross easement to the county or rural water authority is usually what is sought.

Background and statutory framework

The fact pattern in this opinion, defunct rural churches and community associations holding old schoolhouse properties, is unusually common in Arkansas because of the mid-century school consolidation wave. Many counties continue to deal with title-cleanup challenges around those properties decades later. The combination of the UNA and the unknown-owner condemnation statute is the practical toolset: identify and use surviving members where they exist, condemn where they do not.

The opinion is most useful for county attorneys planning a rural water project who hit a property in the chain that traces back to a defunct grantee. The path forward is title search, attempt to identify successors under UNA, then condemnation under § 18-15-403(a)(4) if no clear grantor exists. Throughout, the AG notes that fact-finding is required and the matter is "best directed to private counsel."

Citations

• Ark. Code Ann. § 4-28-601 et seq. (UNA)
• Ark. Code Ann. § 4-28-607 (statement of authority)
• Ark. Code Ann. § 4-28-628(b) (continuing existence)
• Ark. Code Ann. § 4-28-629 (distribution of property)
• Ark. Code Ann. § 18-15-401 et seq. (water condemnation)
• Ark. Code Ann. § 18-15-403(a)(4) (unknown-owner condemnation)
• Riffle v. Worthen, 327 Ark. 470 (1997)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-127
March 3, 2017
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Uvalde Lindsey
State Senator
2257 East Gentle Oaks Lane
Fayetteville, AR 72703-6142
Dear Senator Lindsey:
This is in response to your request for an opinion concerning easements and rights
of way. You provided the following background information, which I have
slightly paraphrased:
As a result of school-district consolidation in the 1940's and 1950's,
many rural districts transferred their buildings, which would no
longer be used as schoolhouses, by quitclaim deed to churches
operated by unincorporated associations. For example, the Lincoln
School District deeded the Greasy Valley school building to a non-
apostolic Methodist Church in the late 1940's. That Methodist
Church has long ceased functioning. The Farmington School
District deeded the Savoy school building to the Savoy Community
Trustees. It appears none of those trustees are alive. County
officials are unable to determine any successors or heirs to these
unincorporated associations. However, the county needs easements
and rights of way for rural water projects.
In light of the foregoing, you ask who can sign an easement or right-of way
encumbering property deeded to an unincorporated association or church that no
longer exists.
323 CENTER STREET, SUITE 200 ' LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV The Honorable Uvalde Lindsey
State Senator
Opinion No. 2016-127
Page 2
RESPONSE
While I can address the options generally available to a county seeking an
easement for a water-improvement project, I cannot opine as to the person
authorized to grant such an easement on behalf of an inactive, unincorporated
association. There are a number of factual variables that could affect the answer
to your question, such as the terms of the quitclaim deeds and the nature of the
"rural water project." Nevertheless, Arkansas has adopted the Revised Uniform
Unincorporated Nonprofit Association Act, 1 which provides guidance with respect
to an unincorporated association's authority to conduct real-estate transactions.
And there are statutes governing condemnation for "municipal water works
purposes."2 These statutes are instructive, particularly the sections concerning
condemnation in which "all or a number of the persons who might be claiming an
interest in the property are unknown. "3 But a definitive response to your question
would be possible only after a substantial amount of fact-finding, which I cannot
undertake.4 The matter may thus best be directed to private counsel.
DISCUSSION
Your question about the authority to execute an easement involves two distinct
areas of law. As to the first (rules applicable to the conduct of unincorporated
associations), I can only offer cursory guidance on the facts as I understand them.
As to the second (ability of Arkansas counties to secure easements), I can outline
statutory condemnation procedure and highlight the steps necessary to condemn
property belonging to unknown owners.

1. Unincorporated Nonprofit Associations Under Arkansas Law
   The Revised Uniform Unincorporated Nonprofit Association Act ("UNA") defines
   an unincorporated nonprofit association as "an unincorporated organization
   consisting of two or more members joined under an agreement that is oral, in a
   record, or implied from conduct, for one or more common, nonprofit purposes."5
   1 Ark. Code Ann.§ 4-28-601 et seq. (Repl. 2016).
   2 Ark. Code Ann.§ 18-15-401 et seq. (Repl. 2015).
   3 Id. at§ 18-15-403(a)(4).
   4 See, e.g., Op. Att'y Gen. No. 2016-032 at 6 ("I am not authorized to act as a fact-finder in an Attorney
   General opinion.").
   5 Ark. Code Ann. § 4-28-602(8) (Repl. 2016). The Honorable Uvalde Lindsey
   State Senator
   Opinion No. 2016-127
   Page 3
   According to the background information you provided, the unincorporated
   associations that were deeded schoolhouses by quitclaim appear to satisfy the
   UNA's definition of unincorporated nonprofit associations. I will take as given,
   for purposes of this opinion, that the associations are governed by the UNA. 6 But
   because trusts are excluded from the UNA's definition,7 the "Savoy Community
   Trustees" that were deeded a schoolhouse by the Farmington School District
   might not be subject to the real-estate and winding-up provisions discussed
   below.8
   As a general matter, an unincorporated nonprofit association operates pursuant to
   its governing principles, which are found in the "agreements, whether oral, in a
   record, or implied from its established practices, that govern [its] purpose or
   operation. "9 And the association's members and managers, 10 so designated in the
   governing principles or established by practice over a period of time, are
   responsible for acting on the association's behalf. This includes entering into real-
   estate transactions. A member or manager may "transfer an interest in real
   property held in the name of an unincorporated nonprofit association" by
   executing a "statement of authority," or affidavit filed in the county where real
   estate belonging to the association is located. 11 Based on these provisions of the
   UNA, I believe an unincorporated nonprofit association could grant an easement
   6 Although the Arkansas General Assembly adopted the UNA in 2011-well after the unincorporated
   associations you reference were formed-the UNA "applies to pre-existing UNAs formed in the enacting
   state .... " Id. at§ 4-28-604, editor's note 1.
   7 Id. at§ 4-28-602(8)(a).
   8 But see id. at § 4-28-602, editor's note 3 ("Many UNAs refer to members of their governing boards as
   'directors' or 'trustees.' These designations do not disqualify the organization from being a UNA even
   though the term 'director' is commonly associated with corporations and the term 'trustee' is commonly
   associated with trusts.").
   9 Id. at § 4-28-602(2).
   IO Ark. Code Ann. § 4-28-602(3) (Repl. 2016) (defining "manager" as "a person that is responsible ... for
   the management of an unincorporated nonprofit association") and § 4-28-602(4) (defining "member" as "a
   person that, under the governing principles, may participate in the selection of persons authorized to
   manage the affairs of the unincorporated nonprofit association.").
   I I See id. at § 4-28-607, editor's note 2 (noting that a statement of authority documents the "sale, lease,
   encumbrance, and other transfer of an estate or interest in real property" from the unincorporated nonprofit
   association to a third party.). The Honorable Uvalde Lindsey
   State Senator
   Opinion No. 2016-127
   Page4
   in conjunction with a statement of authority that one of its managers or members
   had executed.12
   But your question is targeted to unincorporated associations that have "ceased
   functioning," so the inquiry centers on the ability of an inactive association to
   conduct real-estate transactions. The UNA follows the rule generally applicable to
   for-profit corporations and partnerships, 13 and recognizes that unincorporated
   associations "continue[] in existence until [their] activities have been wound up."14
   It is reasonable to conclude that the same managers or members authorized to
   conduct business during the association's active period would retain that authority
   during winding up and dissolution, unless the association's governing principles
   stated otherwise. And one of the dissolution activities acknowledged in the UNA
   is distribution of property held or owned by the association.15 However, the
   manner of distribution will vary. The property may have been acquired subject to
   instructions "designated by the donor," or it may have been subject to the terms of
   a trust agreement. 16 Or a rule of law "other than [the UNA] that requires assets of
   an association to be distributed to another person with similar nonprofit purposes"
   may govern the distribution. 17 If no such rule applies, then the association's
   governing principles will control, or "in the absence of ... governing principles,"
   the property will be distributed "to the members of the association per capita or as
   the members direct." 18 If none of the above applies, then the property will be
   distributed under the State's Unclaimed Property Act.19
   I cannot offer a more specific response regarding the authority of an inactive,
   unincorporated association to grant an easement. Further analysis would require
   12 The statement of authority is not meant to supplant property deeds or other sales-and-leasing documents,
   however. The statement merely "establish[ es] in the title records who has authority to execute a deed or
   other instrument conveying an interest in real estate." Id. at§ 4-28-607, editor's note 2.
   13 See, e.g., id. at§ 4-27-1405(a) ("A dissolved [for-profit] corporation continues its corporate existence but
   may not carry on any business except that appropriate to wind up and liquidate its business and affairs .... ").
   14 Id. at § 4-28-628(b).
   15 Ark. Code Ann.§ 4-28-629 (Repl. 2016).
   16 Id. at§ 4-28-629(2, 3).
   17 Id. at§ 4-28-629(4)(A).
   18 Id. at§ 4-28-629(4)(B).
   19 Id. at§ 4-28-629(4)(C). The Honorable Uvalde Lindsey
   State Senator
   Opinion No. 2016-127
   Page 5
   intensive fact-finding, which is beyond the scope of an Attorney General's
   opinion. 20 I do not know, for example, the terms of the quitclaim deeds that
   transferred the schoolhouses to the unincorporated associations. Nor do I know
   whether the school districts expressed any preference as to how the associations
   should dispose of the property in the event of dissolution. Additionally, I am
   unaware whether the associations that received the schoolhouses had governing
   principles or similar operating agreements in writing. Likewise, I do not know if
   the associations filed or otherwise recorded any statements of authority that would
   indicate who had authority to enter into real-estate transactions on the
   associations' behalf. And I do not know what records pertaining to the converted
   schoolhouses are on file-any one of which (grantor/grantee index, plats with
   metes and bounds, assessment history) might shed light on the ownership of the
   properties in question, and how easements on those properties could be obtained.
   Without this information, I must limit my answer to the preceding discussion of
   the UNA' s default rules for unincorporated, nonprofit associations.
2. Condemnation by a County of Property with Unknown Owners
   The authority of an unincorporated association's managers or members to grant an
   easement to a third party (a county, in this case) hinges on the association's
   consent to that transaction. Easements can certainly be granted in this manner,
   and the common law recognizes a number of variations depending on the method
   of creation and whether the easement was more similar to an interest in real or
   personal property.21 But it is not always possible to obtain the consent of a
   property owner. The statutes applicable to municipal water projects contemplate
   such a scenario, in which a county seeking an easement cannot obtain consent
   because the current owner's identity and whereabouts are unknown. Based on
   these statutes, I can opine generally as to how a county could obtain an easement
   on land deeded to an association that is no longer active. As before, however,
   there are a number of facts that might affect how the condemning county should
   20 See text accompanying note 4, above.
   21
   See generally Riffle v. Worthen, 327 Ark. 470, 475, 939 S.W.2d 294, 297 (1997) (discussing appurtenant
   easements, which "run with the land"; easements in gross, which are "personal to the grantor"; and
   easements by necessity, which require that "the same person or entity once held title to both tracts, that the
   unity of title was severed by a conveyance of one of the tracts, and that the easement is necessary so that
   the owner of the dominant tenement may use his land"). The Honorable Uvalde Lindsey
   State Senator
   Opinion No. 2016-127
   Page 6
   proceed. Gathering those facts and evaluating the county's best course of action
   are beyond the scope of my statutory authority. 22
   Your question about "rural water projects" implicates the statutory scheme that
   specifies the manner in which a county can exercise eminent domain in order to
   acquire an easement "for water facilities and sewer facilities."23 I take this
   question to mean that the rural water project for which the easement is sought is
   within a county's eminent-domain powers, 24 and that the project cannot be
   completed through regulation, short of paying just compensation for a taking.25 I
   would also note that counties are encouraged to "make use of existing easements
   and rights-of-way to the extent practicable."26 Therefore, a search of title records
   to determine the encumbrances on the properties deeded to the unincorporated
   associations would be beneficial, if not required, prior to pursuing condemnation. 27
   Once the county has determined that condemnation will be necessary, it may
   follow the eminent-domain procedures established for municipalities engaged in
   water-facilities projects.28 The condemnation suit is initiated by petition to the
   circuit court for the county where all or part of the property is located; in the
   petition, the county "shall name as defendants all persons shown by public records
   as having any interest therein. "29 But if the "persons who might be claiming an
   22 See Op. Att'y Gen. 2010-113 at 1 ("[P]roviding an answer may be tantamount to giving private legal
   advice, which I am specifically prohibited by statute from doing.") and Ark. Code Ann.§ 25-16-701 (Repl.
   2016) ("During his or her term of office, the Attorney General shall not engage in the private practice of
   law .... ").
   23 Ark. Code Ann.§§ 18-15-202, 18-15-401 et seq. (Repl. 2016).
   24 See Ark. Const. art. 2, § 22 ("The right of property is before and higher than any constitutional sanction;
   and private property shall not be taken, appropriated or damaged for public use, without just compensation
   therefor.").
   25 See Op. Att'y Gen. 2001-239 at 5 (summarizing case law stating that if land-use regulations
   "substantially advance legitimate state interests" and do not "den[y] an owner economically viable use of
   his land," the regulations do not effect a taking) (internal quotations omitted).
   26 Ark. Code Ann.§ 18-15-202(a)(2).
   27 See id. (stating that "counties shall exercise their power of eminent domain only as a last resort."); Op.
   Att'y Gen. 2000-030 at 2-3 (noting that "statutes governing the power of eminent domain should be strictly
   construed in favor of the landowner.").
   28 Ark. Code Ann. § 18-15-202(b) ("Counties shall exercise the power of eminent domain for the purposes
   set forth in subsection (a) of this section in accordance with the same procedures and methods by which
   municipalities are authorized to acquire property by exercising the power of eminent domain for municipal
   water works purposes, as set forth in §§ 18-15-401-18-15-410.").
   29 Id. at§ 18-15-403(a)(2). The Honorable Uvalde Lindsey
   State Senator
   Opinion No. 2016-127
   Page 7
   interest in the property are unknown ... , then unknown owners may be named as
   defendants" upon the filing of a verified affidavit. 30 The unknown owners "shall
   be summoned by publication of notice as in the case of nonresident defendants in
   other civil actions. "31 That is, if despite diligent inquiry the "identity or
   whereabouts of [the] defendant remains unknown," the county "shall cause [a]
   warning order to be published weekly for two consecutive weeks in a newspaper
   having general circulation in the county where the action is filed. "32 In the event
   none of the property owners respond to the warning order, the county must "file[]
   with the court an affidavit stating that 30 days have elapsed since the warning
   order was first published,"33 at which time the circuit court may proceed to trial to
   establish the damages that the county must pay for the taking. 34
   I believe the condemnation procedure described at Ark. Code Ann. § 18-15-403 et.
   seq. would govern a county's attempt to establish an easement on private property
   in order to build or improve water facilities. But it is unclear if these statutes are
   the ones most applicable to the situation you describe, in which a county seeks an
   easement for a "rural water project." I do not know the project's purpose, extent,
   or source of funding. Nor can I say what a diligent inquiry into the identity and
   whereabouts of the property owners would reveal. I can state generally, however,
   that if the members or successors of the unincorporated associations could not be
   located, the rules for serving "unknown owners" by warning order should apply.35
   Sincerely,
   ~/7::>
   LESLIE RUTLE~
   Attorney General
   30 Id. at§ 18-15-403(a)(4)(A).
   31 Id. at § l 8-l 5-403(a)(4)(B) (also requiring service by publication if "the address of any known defendant
   cannot be determined after diligent inquiry by the applicant.").
   32 Ark. R. Civ. P. 4(f)(2) (Repl. 2014) ("The warning order shall state the caption of the pleadings; include,
   if applicable, a description of the property or other res to be affected by the judgment; and warn the
   defendant or interested person to appear within 30 days from the date of first publication of the warning
   order or face entry of judgment by default or be otherwise barred from asserting his or her interest.").
   33 Id. at 4(f)(4).
   34 Ark. Code Ann.§§ 18-15-403(c), 18-15-404.
   35 Id. at§ 18-15-403(a)(4)(A).