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

Senator Hammer asked whether A.C.A. § 5-37-226 prohibits U.S. Army Corps of Engineers employees from recording Notices of Encroachment (NOEs) against landowners who encroach on Corps flowage easements or Corps-owned land. The request said the Corps uses these notices to alert prospective purchasers and encourage resolution of encroachments, and it included a sample template.

The Attorney General says the statute does not prohibit NOEs filed for those described purposes. His analysis is conditional: a Corps filing would not violate the statute if the NOE is genuine and intended to protect Corps property interests. Assuming the notices respond to the encroachments described in the request, he says it is reasonable to assume they are legitimate. The opinion does not decide the status of every possible NOE regardless of its authenticity or purpose.

A.C.A. § 5-37-226 addresses a knowingly recorded instrument that lacks authenticity or genuineness, clouds or adversely affects title or a bona fide property interest, and is recorded for the purpose of clouding title or obtaining money or value to clear it. The statute excludes bona fide lis pendens, materialman’s liens, laborer’s liens, and other legitimate notices or protective filings provided by law.

The opinion also says the Corps, as a landowner, has a right to use its property without encroachments, and Arkansas courts do not apply the de minimis doctrine to real property disputes.

What this means for you

Corps personnel

The opinion says a genuine NOE intended to protect Corps property interests from the encroachment described in the request would not violate A.C.A. § 5-37-226. It treats the stated notices as reasonably assumed legitimate because their described purpose is to alert prospective purchasers and protect those interests.

Landowners near Corps land or flowage easements

The opinion says the Corps may record an NOE when an adjoining landowner encroaches on Corps land or a Corps flowage easement. It does not assess the authenticity, purpose, or property boundary in an individual dispute.

Prospective purchasers and title researchers

The opinion describes the NOEs in the request as notices intended to alert prospective purchasers to encroachments. Its conclusion about the filing statute depends on the notice being genuine and protective of Corps property interests.

Common questions

Is every Corps Notice of Encroachment exempt from A.C.A. § 5-37-226?

The opinion does not give an unconditional answer. It says a Corps filing would not violate the statute if the NOE is genuine and intended to protect Corps property interests, and it reasonably assumes that the notices described in the request are legitimate.

Why did the Attorney General treat the described NOEs as legitimate?

The request said the Corps files them in response to encroachments on its flowage easements or land, to notify prospective purchasers and encourage resolution. Based on that stated purpose, the opinion says it is reasonable to assume they are legitimate protective notices rather than filings meant to cloud title or obtain money to clear it.

What does the false-filing statute require?

As the opinion describes it, the instrument must be knowingly recorded, lack authenticity or genuineness, adversely affect title or a bona fide property interest, and be recorded for the purpose of clouding title or obtaining money or value to clear it. The statute excludes specified bona fide filings and other legitimate notices or protective filings provided by law.

Does a small encroachment change the property analysis?

The opinion says Arkansas courts do not apply the de minimis doctrine to real property disputes. It identifies the Corps’s right as a landowner to use its property without encroachments, however minor.

Background and statutory framework

A.C.A. § 5-37-226(a) addresses knowingly recording an instrument that lacks authenticity or genuineness, clouds or adversely affects title or a bona fide property interest, and is recorded to cloud title or obtain money or value to clear it. Subsection (d) 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 Attorney General applies those provisions to the Corps notices as described by the requester. He says a genuine NOE intended to protect Corps property interests would not violate the statute, and that the stated circumstances make it reasonable to assume the notices are legitimate. He also cites Arkansas real property cases for the rule that a small encroachment is not disregarded under the de minimis doctrine.

Citations

Statutes:

• A.C.A. § 5-2-202(2)(A)–(B)
• A.C.A. § 5-37-226(a)
• A.C.A. § 5-37-226(d)

Cases:

• Brown v. Land, Inc., 236 Ark. 15, 20, 364 S.W.2d 659, 662 (1963)
• Leffingwell v. Glendenning, 218 Ark. 767, 769, 238 S.W.2d 942, 943 (1951)
• Fulks v. Fredeman, 224 Ark. 413, 414, 273 S.W.2d 528, 528 (1954)
• Beaty v. Gordon, 236 Ark. 50, 53, 364 S.W.2d 311, 313 (1963)
• Reeves v. Jackson, 207 Ark. 1089, 1093, 184 S.W.2d 256, 258 (1944)

Source

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

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 knowingly1 record an instrument— such as an NOE—with the county recorder or the Secretary of State if the instrument: 1 See A.C.A. § 5-2-202(2)(A)–(B) (“A person acts knowingly with respect to: (A) [t]he person’s conduct or the attendant circumstances when he or she is aware that his or her conduct is of that nature or that the attendant circumstances exist; or (B) [a] result of the person’s conduct when he or she is aware that it is practically certain that his or her conduct will cause the result”).

The Honorable Kim Hammer
State Senator
Opinion No. 2025-078
Page 2

1. Lacks authenticity or genuineness;
2. Clouds or adversely affects title or a bona fide interest in real property; and
3. Is recorded with the purpose to cloud title or to obtain money or value from the rightful
   owner to clear title.2
   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.”3 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.4 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.5 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 2 A.C.A. § 5-37-226(a). 3 Id. § 5-37-226(d). 4 See Howard W. Brill, Equity: Real Property and the Problem of the Troublesome Neighbor, 1994 Ark. L. Notes 1, 1 (1994); Brown v. Land, Inc., 236 Ark. 15, 20, 364 S.W.2d 659, 662 (1963) (ordering the removal of a sewer line that crossed two feet of another’s property); Leffingwell v. Glendenning, 218 Ark. 767, 769, 238 S.W.2d 942, 943 (1951) (involving a stone and cement wall twenty-six feet in length that encroached a maximum of one foot); Fulks v. Fredeman, 224 Ark. 413, 414, 273 S.W.2d 528, 528 (1954) (involving an eight-foot-tall brick wall that leaned ten inches over the plaintiff’s property); Beaty v. Gordon, 236 Ark. 50, 53, 364 S.W.2d 311, 313 (1963) (requiring that the eaves of a roof that extended six inches across the boundary be removed). 5 Reeves v. Jackson, 207 Ark. 1089, 1093, 184 S.W.2d 256, 258 (1944).