I have a deck or shed that crosses onto Corps of Engineers property. Can the Corps file a Notice of Encroachment in the county records against me, or is that a crime under Arkansas law?
Plain-English summary
Arkansas has a "false-filing" criminal statute (A.C.A. § 5-37-226) that makes it a crime to record a phony or title-clouding instrument with the county recorder or Secretary of State. The statute is aimed at title-fraud and "paper terrorism" tactics that try to extort settlement money from a property owner by clouding the chain of title.
Senator Hammer asked whether the U.S. Army Corps of Engineers crosses that line when it files a Notice of Encroachment (NOE) against a private landowner whose deck, dock, mowed area, or other structure spills onto Corps flowage easements or Corps-owned land. Senator Hammer provided a sample NOE template for review.
The AG's answer: no, an NOE is not a § 5-37-226 violation.
The statute's three elements are:
1. The instrument lacks authenticity or genuineness;
2. It clouds or adversely affects title or a bona fide interest in real property; and
3. It is recorded with the purpose to cloud title or to obtain money or value from the rightful owner to clear title.
The statute also expressly excludes "a bona fide filing of lis pendens, materialman's lien, laborer's lien, or other legitimate notice or protective filing as provided by law." A.C.A. § 5-37-226(d). An NOE filed by the Corps to notify prospective purchasers of an encroachment and to encourage resolution falls within the "legitimate notice or protective filing" exception.
Underlying property-law principle. As a landowner, the Corps "is entitled to use its property unhampered and unimpaired by any encroachments, no matter how minor." Arkansas courts have refused to apply the de minimis non curat lex doctrine ("the law does not concern itself with trifles") to real-property disputes. Reeves v. Jackson (1944) is the doctrinal anchor; the AG cites a string of cases enforcing removal of even small encroachments (a sewer line crossing two feet, a wall encroaching one foot, a roof eave extending six inches).
So even tiny encroachments are real encroachments under Arkansas law, and the Corps has the legal right to record an NOE to protect its property interests and warn prospective buyers.
What this means for you
If you own lakefront or river-adjacent property near a Corps reservoir
Confirm exactly where the Corps boundary or flowage easement runs before adding decks, docks, sheds, fences, retaining walls, mowed paths, or fixed structures. The Corps does not have to overlook a small encroachment, and Arkansas case law backs that posture. If you find an encroachment, work with the Corps real estate office to come into compliance (remove the structure, get a permit or easement) before an NOE lands on your county record.
If you are a real estate agent, title examiner, or buyer's attorney
A Corps NOE in the county chain of title for a property near Corps land is legitimate notice and not a defamation or false-filing claim. Treat it like any other recorded notice: investigate the underlying encroachment, factor remediation into the deal, and document any agreed resolution before closing.
If you are a county recorder or circuit clerk
Notices of Encroachment from the U.S. Army Corps of Engineers are not "false filings" under § 5-37-226. The statutory exception for legitimate protective filings covers them. Process them as you would any other instrument.
If you are a Corps real estate official
The opinion confirms that NOEs are within the statute's protected-filing exception. Continue filing them when you have a real encroachment, document the encroachment specifics in the NOE, and consider including a path to resolution (permit, formal easement, removal) so the NOE serves as both notice and an invitation to remedy.
If you got an NOE and you think it is wrong
Two paths: (1) work with the Corps real estate office to clarify the property line or get a permit/easement; (2) if the Corps refuses to remove an NOE you believe is genuinely false, consider declaratory judgment to test the Corps's interest. § 5-37-226 itself is unlikely to provide your remedy because the statute's protected-filing exception covers most legitimate Corps NOEs.
Common questions
What is § 5-37-226 actually aimed at?
"Paper terrorism" and title-fraud tactics. The classic case is someone who has a grievance with a property owner filing a fake lien or false claim of ownership in the county records, then offering to "clear" it for a price. The statute makes that scheme a crime.
What is the carve-out in § 5-37-226(d)?
It excludes legitimate filings: lis pendens, materialman's liens, laborer's liens, and "other legitimate notice or protective filing as provided by law." NOEs from a property owner with a real encroachment claim fall within "other legitimate notice or protective filing."
Does the Corps need a court order before filing an NOE?
No. The Corps is filing notice of its own property interest, not adjudicating it. A court order would be needed for actual title adjudication or to compel removal of an encroachment, but not for a notice filing.
What if the encroachment is just six inches of a deck onto Corps property?
Still an encroachment. Arkansas courts have ordered removal of structures that encroached just inches onto a neighbor's property. The de minimis doctrine does not apply to real property disputes.
Can I file a defamation suit against the Corps over an NOE?
Defamation against the United States runs into significant federal sovereign immunity barriers (Federal Tort Claims Act exclusions). Even if a claim could be framed, the underlying NOE is a legitimate notice filing, which gives the Corps strong defenses on the merits.
What are flowage easements?
The Corps holds easements over land that may be flooded by Corps reservoirs. Even though the underlying land is privately owned, the Corps has the right to flood it during high water. Building structures inside the easement area is what most NOEs target.
Background and statutory framework
A.C.A. § 5-37-226(a) (the offense) criminalizes knowingly recording an instrument with the county recorder or Secretary of State that meets all three elements: lacks authenticity, clouds or adversely affects title or a bona fide interest in real property, and is recorded with the purpose to cloud title or to obtain money or value from the rightful owner to clear title.
A.C.A. § 5-37-226(d) (the exception) excludes "a bona fide filing of lis pendens, materialman's lien, laborer's lien, or other legitimate notice or protective filing as provided by law."
The "knowingly" mens rea. A.C.A. § 5-2-202(2) defines "knowingly" as awareness of one's conduct, attendant circumstances, or that one's conduct is practically certain to cause a particular result. A federal officer filing an NOE about a real encroachment, in good faith, lacks the knowledge that the filing is "false" or "purposed to cloud title."
No de minimis defense to encroachment. Arkansas Supreme Court case law (Reeves v. Jackson, 1944, and a string of trespass and encroachment cases including Brown v. Land, Leffingwell v. Glendenning, Fulks v. Fredeman, Beaty v. Gordon) holds that real-property encroachments are actionable regardless of size.
Landowner's right to undisturbed use. Howard Brill, "Equity: Real Property and the Problem of the Troublesome Neighbor," 1994 Ark. L. Notes 1, framed the Arkansas rule that landowners are entitled to "unhampered and unimpaired" use of their property.
Citations
Statutes:
- A.C.A. § 5-2-202 (definition of "knowingly")
- A.C.A. § 5-37-226 (false filings; (d) protected-filing exception)
Cases:
- Brown v. Land, Inc., 236 Ark. 15, 364 S.W.2d 659 (1963)
- Leffingwell v. Glendenning, 218 Ark. 767, 238 S.W.2d 942 (1951)
- Fulks v. Fredeman, 224 Ark. 413, 273 S.W.2d 528 (1954)
- Beaty v. Gordon, 236 Ark. 50, 364 S.W.2d 311 (1963)
- Reeves v. Jackson, 207 Ark. 1089, 184 S.W.2d 256 (1944)
Secondary:
- Howard W. Brill, Equity: Real Property and the Problem of the Troublesome Neighbor, 1994 Ark. L. Notes 1
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-078
October 31, 2025
The Honorable Kim Hammer
State Senator
1201 Military Road PMB 285
Benton, Arkansas 72015
Dear Senator Hammer:
I am writing in response to your request for an opinion on A.C.A. § 5-37-226, which concerns the filing of instruments affecting title or interest in real property. You state that the U.S. Army Corps of Engineers ("Corps") files Notices of Encroachment ("NOEs") against private landowners to alert prospective purchasers of encroachments on Corps flowage easements or Corps-owned land, and to encourage landowners to work with the Corps to resolve such encroachments. You have also provided a sample NOE template for review.
Against this backdrop, you ask whether A.C.A. § 5-37-226 makes it unlawful for employees of the Corps to file a notice of encroachment in the office of the circuit clerk or with a county recorder against private landowners who encroach on Corps flowage easements or Corps-owned land.
RESPONSE
No, A.C.A. § 5-37-226 does not prohibit the Corps from filing NOEs for the purpose of notifying prospective purchasers of encroachments on Corps property or encouraging resolution of such encroachments.
DISCUSSION
Arkansas Code § 5-37-226 makes it unlawful for any person to knowingly record an instrument, such as an NOE, with the county recorder or the Secretary of State if the instrument:
- Lacks authenticity or genuineness;
- Clouds or adversely affects title or a bona fide interest in real property; and
- Is recorded with the purpose to cloud title or to obtain money or value from the rightful owner to clear title.
The statute expressly excludes "a bona fide filing of lis pendens, materialman's lien, laborer's lien, or other legitimate notice or protective filing as provided by law." Accordingly, a filing by the Corps would not violate A.C.A. § 5-37-226 if the NOE is genuine and intended to protect Corps property interests. If, as you state, the Corps files NOEs in response to encroachments on Corps flowage easements or Corps-owned land by adjoining landowners, then it is reasonable to assume those NOEs are legitimate. Such NOEs do not serve to cloud title or obtain money from the landowner; rather, they serve to protect Corps property interests and provide notice to prospective purchasers.
As a landowner, the Corps is entitled to use its property "unhampered and unimpaired" by any encroachments, no matter how minor. Arkansas courts have long held that the doctrine of de minimis non curat lex (the law does not concern itself with trifles) does not apply to real property disputes. Thus, the Corps has the right under Arkansas law to record NOEs when adjoining landowners encroach on Corps flowage easements or Corps-owned land.
Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General