Ark. Code Ann. § 18-60-213 (2020)

Research References

Ark. L. Notes.

Brill, Arkansas Law of Damages, Fifth Edition, Chapter 30: Real Property, 2004 Arkansas L. Notes 9.

Ark. L. Rev.

Equity — Rights of a Mistaken Improver, 24 Ark. L. Rev. 133.

Color of Title and Payment of Taxes: The New Requirements Under Arkansas Adverse Possession Law, 50 Ark. L. Rev. 489.

Case Notes

Constitutionality.

This section is constitutional and retrospective. Fee v. Cowdry, 45 Ark. 410 (1885); Beard v. Dansby, 48 Ark. 183, 2 S.W. 701 (1886).

In General.

One making improvements upon the land of another in good faith and under color of title is entitled to recover the value thereof. Nunn v. Lynch, 89 Ark. 41, 115 S.W. 926 (1908); Davis v. Davis, 93 Ark. 93, 124 S.W. 525 (1910); Green v. Maddox, 97 Ark. 397, 134 S.W. 931 (1911); Wilkins v. Maggard, 190 Ark. 532, 79 S.W.2d 1003 (1935); Riddle v. Williams, 204 Ark. 1047, 166 S.W.2d 893 (1942).

Construction.

This section should be strictly construed as penal in nature and may not be invoked by one in possession under a donation certificate merely. Beloate v. State ex rel. Att'y Gen., 187 Ark. 17, 58 S.W.2d 423 (1933).

Applicability.

This section is not applicable to the state's land. Martin v. Roesch, 57 Ark. 474, 21 S.W. 881 (1893).

This section cannot be invoked by one who was never in possession. St. Louis, Iron Mountain & S. Ry. v. Blaylock, 121 Ark. 402, 181 S.W. 302 (1915).

This section does not apply to public agencies. City of Little Rock v. Jeuryens, 133 Ark. 126, 202 S.W. 45 (1918).

This section applies to tenants in common. Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962).

This section applies to tenants in common involved in ejectment and trespass actions, and does not apply to tenants in common involved with a partition suit which is governed by § 18-60-401. Graham v. Inlow, 302 Ark. 414, 790 S.W.2d 428 (1990).

This section requires one entitled to recover for improvements to meet two tests: (1) he must believe himself to be the owner of the property; and (2) he must hold under color of title. Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995).

This section applies in cases where a party, believing himself to be the owner of land and under color of title, peacefully improves land later discovered to belong to another; this section was not applicable where plaintiffs made improvements to land that they purchased under an installment contract. Hudson v. Hilo, 88 Ark. App. 317, 198 S.W.3d 569 (2004).

Amount of Recovery.

Improvements are to be measured by the increased value of the land and not by their cost. Greer v. Fontaine, 71 Ark. 605, 77 S.W. 56 (1903).

One making improvements on lands of another may recover interest thereon from the time the improvements were made. McDonald v. Kenney, 101 Ark. 9, 140 S.W. 999 (1911).

The proper criterion for determining the amount to which a tenant in common was entitled for his improvements was not their cost or present value but the amount by which the improvements had enhanced the land's value. Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962); Smith v. Nelson, 240 Ark. 954, 403 S.W.2d 99 (1966).

Where the owners of a fraction of a parcel of land bought the entire tract at a partition sale, they were entitled to the full value of the improvements they had made in the entire tract prior to the sale, out of the proceeds of the sale, subject to adjustment on income and taxes. Crouch v. Crouch, 251 Ark. 1047, 476 S.W.2d 248 (1972).

Appeals.

Successful party who took possession of the land before paying the defendant for his improvements was not entitled to appeal after accepting the benefits of the judgment. Wolford v. Warfield, 170 Ark. 82, 278 S.W. 639 (1926).

Color of Title.

The defendant must hold under color of title, peaceably, and in good faith. Kemp v. Cossart, 47 Ark. 62, 14 S.W. 465 (1885); Teaver v. Akin, 47 Ark. 528, 1 S.W. 772 (1886); Edrington v. Jefferson, 53 Ark. 545, 14 S.W. 99 (1890).

An instrument having grantor and grantee, a description of the land, and apt words of conveyance, gives color of title. Beard v. Dansby, 48 Ark. 183, 2 S.W. 701 (1886).

One cannot recover for improvements made before color of title was acquired. Anderson v. Williams, 59 Ark. 144, 26 S.W. 818 (1894).

A bond for title is not color of title. White v. Stokes, 67 Ark. 184, 53 S.W. 1060 (1899); Beasley v. Equitable Sec. Co., 72 Ark. 601, 84 S.W. 224 (1904).

An invalid will may be color of title. Bloom v. Strauss, 70 Ark. 483, 69 S.W. 549, 69 S.W. 548 (1902).

One who by mistake erects improvements upon the land of an adjacent proprietor, having no color of title thereto, cannot claim such improvements. Foltz v. Alford, 102 Ark. 191, 143 S.W. 905 (1912).

A quitclaim deed is color of title. Holub v. Titus, 120 Ark. 620, 180 S.W. 218 (1915).

A certificate of purchase is not color of title. Johnson v. Taylor, 140 Ark. 100, 215 S.W. 162 (1919).

One making improvements upon land of another cannot, without color of title to the disputed land, claim under this section. Wallace v. Snow, 197 Ark. 632, 124 S.W.2d 209 (1939).

Life estate did not confer color of title. Graves v. Bean, 200 Ark. 863, 141 S.W.2d 50 (1940); Perry v. Rye, 223 Ark. 594, 267 S.W.2d 507 (1954).

A donation certificate for land forfeited to the state for taxes is not color of title entitling one in possession under it to recover for improvements. Rodgers v. Massey, 204 Ark. 225, 161 S.W.2d 378 (1942).

Repurchase from the state amounted to redemption and therefore subsequent improvements were not made under color of title. Dedmon v. Hawkins, 211 Ark. 840, 203 S.W.2d 183 (1947).

Deed from holder of void tax deed, neither party knowing of defects until improvements were made, constituted color of title within the meaning of this section. Deniston v. Langsford, 216 Ark. 875, 228 S.W.2d 42 (1950).

Purchaser of heir's interest was not entitled to betterments for improvements in partition proceeding filed by other heirs where he made improvements prior to purchase of interest. Welch v. Burton, 221 Ark. 173, 252 S.W.2d 411 (1952).

No color of title was shown where claimant produced no instrument in writing purporting to convey any interest in the property and payments to the record titleholder, while claimed to have been payments on purchase price, were less than the reasonable rental value of the property. Baker v. Ellis, 245 Ark. 484, 432 S.W.2d 871 (1968).

Where homebuilders did not make the improvements under color of title, they were not entitled to damages under this section. Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995).

Evidence.

Evidence sufficient to support award for the improvements made on land. Weatherly v. Purcell, 217 Ark. 908, 234 S.W.2d 32 (1950); Hutchison v. Sheppard, 226 Ark. 508, 290 S.W.2d 843 (1956).

Evidence insufficient to support award for improvements. Hutchison v. Sheppard, 225 Ark. 14, 279 S.W.2d 33 (1955).

In partition action by co-tenants it was not error to exclude evidence of the cost of improvements which the tenant in common made while in possession of land, and for which he sought to be reimbursed. Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962).

Where, although in partition action by co-tenants improvements made by tenant in common were considered, the only matter decided by reviewing court was the question of notice to co-tenants of adverse claim of tenant in possession, the adverse claimant, following remand, was entitled to offer additional testimony relative to improvements and rent. Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962).

Where no proof of enhanced value of the land appears in the record, compensation cannot be awarded for improvements made by one tenant in common while in possession of the land. Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962).

Where plaintiffs testified that they considered third party to be the owner of property to which they allegedly made improvements, and the contract under which plaintiffs were in possession did not purport to convey title until after plaintiffs fully performed the contract, plaintiffs were not entitled to damages for the alleged improvements. Smith v. MRCC Partnership, 302 Ark. 547, 792 S.W.2d 301 (1990).

Finality of Decree.

A decree which adjudged the title to land to be in the plaintiff without awarding the value of improvements made by the defendant was conclusive at the end of the term and could not be reopened later so as to render a decree for improvements. Brown v. Norvell, 88 Ark. 590, 115 S.W. 372 (1909); Gaither v. Campbell, 94 Ark. 329, 126 S.W. 1061 (1910).

Good Faith.

Improvements held not to be made in good faith. Graves v. Bean, 200 Ark. 863, 141 S.W.2d 50 (1940); Vernon v. McEntire, 234 Ark. 995, 356 S.W.2d 13 (1962).

One is not entitled to betterments for improvements unless he has acted in good faith in making improvements. Welch v. Burton, 221 Ark. 173, 252 S.W.2d 411 (1952).

Under this section, “good faith” means in honest belief and ignorance that any other person claims a better right to the land. Vernon v. McEntire, 234 Ark. 995, 356 S.W.2d 13 (1962).

Occupants of land, claiming reimbursement for improvements made thereon, had the burden of proving the improvements were made in good faith. Vernon v. McEntire, 234 Ark. 995, 356 S.W.2d 13 (1962).

—Notice of Paramount Title.

Notice of the paramount title must be actual, not constructive. Beard v. Dansby, 48 Ark. 183, 2 S.W. 701 (1886); Shepherd v. Jernigan, 51 Ark. 275, 10 S.W. 765 (1888); White v. Stokes, 67 Ark. 184, 53 S.W. 1060 (1899).

Holder aware of claims of heirs to original owner held not entitled to compensation for improvements. Douglass v. Hunt, 98 Ark. 320, 136 S.W. 170 (1911); Welch v. Burton, 221 Ark. 173, 252 S.W.2d 411 (1952).

One who placed improvements upon the land of another after he had been notified of the latter's ownership could not be said to have placed them in good faith and was not entitled to recover therefor. Foltz v. Alford, 102 Ark. 191, 143 S.W. 905 (1912).

Purchaser by quitclaim deed of land subject to recorded deed of trust was not entitled upon foreclosure of deed of trust to recover from purchaser at the foreclosure sale the value of the improvement he put on the land. Vernon v. Lincoln Nat'l Life Ins. Co., 200 Ark. 47, 138 S.W.2d 61 (1940).

One chargeable with notice as to the kind of title he holds may not make such improvements as will impair the title in fee. Graves v. Bean, 200 Ark. 863, 141 S.W.2d 50 (1940).

Notice of a prior title must be actual and not constructive, so that recording of prior deed does not defeat right of second purchaser of tax title to cash value of improvements. Topham v. Hodges, 215 Ark. 407, 221 S.W.2d 27 (1949).

Husband of life tenant who redeemed property from taxes for benefit of wife was not entitled to claim that he believed he was the owner. Ingram v. Seaman, 223 Ark. 414, 267 S.W.2d 6 (1954).

Improvements made with the knowledge that another is claiming interest in the property cannot be characterized as improvements made under a bona fide belief of ownership as required by this section. Lawrence v. Lawrence, 231 Ark. 324, 329 S.W.2d 416 (1959); Jones v. Jones, 22 Ark. App. 179, 737 S.W.2d 654 (1987).

Where all the improvements made by wife were made after she had notice that she merely had possession of the property until further orders of the court providing for a sale of the marital home, and that the husband had an interest in the property, the Betterment Act did not apply. Jones v. Jones, 22 Ark. App. 179, 737 S.W.2d 654 (1987).

Judgment Lien Creditor.

Arkansas Betterment Act, § 18-60-213, was inapplicable to a property buyer's claim against a judgment creditor bank; although the buyer made substantial improvements to the property after buying it from the judgment debtors, the buyer took title subject to the lien of the judgment creditor bank's judgment. Canady v. Petit Jean State Bank, 2015 Ark. App. 313, 463 S.W.3d 328 (2015).

Life Estates.

Life tenant cannot recover from remainderman for repairs, since it is the duty of the life tenant to keep property in repair. Frazier v. Hanes, 220 Ark. 765, 249 S.W.2d 842 (1952).

A life tenant was not entitled to an award under the statutes for improvements made to the land since (1) she testified that, at the time she moved to the property at issue, she knew that she and her husband only had a right to live on the property for the life of her husband and son, and (2) she had no basis for a good-faith belief that she held the property under color of title at the time the improvements were made as her name was not on the deed granting the life estate. Acord v. Acord, 70 Ark. App. 409, 19 S.W.3d 644 (2000).

Option to Repurchase.

A grantee who made improvements upon real estate was not entitled to reimbursement for the cost of such improvements upon the exercise by the grantor of an option contained in the deed to repurchase the real estate for the original consideration recited in the deed. Berry v. Bierman, 248 Ark. 440, 451 S.W.2d 867 (1970).

Payment.

Plaintiff who has not paid judgment for improvements cannot recover possession even after expiration of time for enforcing lien. Douglass v. Sharp, 64 Ark. 645, 44 S.W. 221 (1898).

Where improvement assessments are distributed over a period of years, a ratable and equitable distribution of the burden requires the life tenant to discharge the annual assessments during each year of his occupancy. Crowell v. Seelbinder, 185 Ark. 769, 49 S.W.2d 389 (1932).

Where part owners of land sold at a partition sale had made improvements to the land, the value of the improvements was entitled to priority in the proceeds following the deduction of court costs and awarded attorney's fees. Crouch v. Crouch, 251 Ark. 1047, 476 S.W.2d 248 (1972).

Persons under Disability.

Minors and insane persons are entitled to recover land sold at a void judicial sale notwithstanding the lapse of time subject only to the purchaser's right to betterments. Cowling v. Nelson, 76 Ark. 146, 88 S.W. 913 (1905).

The infancy of the plaintiff does not defeat betterments. Beard v. Dansby, 48 Ark. 183, 2 S.W. 701 (1886).

Purchasers at Judicial Sales.

Where purchaser of land at administrator's sale acted in good faith and acquired and held possession believing that he had the right to do so, he was a bona fide occupant of the land entitled to recover the value of the improvements made and taxes paid by him on the land and liable only for mesne profits which accrued within three years next before the commencement of the suit in which they may be claimed. Brown v. Nelms, 86 Ark. 368, 112 S.W. 373 (1908).

One who purchases lands at a judicial sale based upon a decree which was subsequently reversed may be entitled to recover the value of improvements placed upon the land before the appeal was taken if he purchased in good faith and held possession without actual notice that his title was assailed by one claiming a better title. McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88 (1909).

In a case that set aside a foreclosure decree due to improper service on the property owner, the foreclosure sale purchaser's judgment against the foreclosure mortgagee for the costs of the improvements to the property was set aside and judgment was entered against the property owner under subsection (a) of this section for the value of the improvements, where the purchaser had made improvements to the property while believing she was the true owner and under color of title. MidFirst Bank v. Sumpter, 2016 Ark. App. 552, 508 S.W.3d 69 (2016).

Remedy provided by the Betterment Act, § 18-60-213, is against the true owner of the property. MidFirst Bank v. Sumpter, 2016 Ark. App. 552, 508 S.W.3d 69 (2016).

Circuit court erred in awarding a judgment for indemnification in favor of the property owner for Betterment Act damages against the foreclosure mortgagee. The owner had received an increase in value to her property from the improvements made by the foreclosure sale purchaser; and the Betterment Act is not based on contract, consent, or negligence but is a rule for administering justice. MidFirst Bank v. Sumpter, 2016 Ark. App. 552, 508 S.W.3d 69 (2016).

Rents and Profits.

In ejectment case, where no demand was made for rents and profits, it was held that defendants, who took possession under void tax sale, were not entitled to recover the value of their improvements. Buswell v. Hadfield, 202 Ark. 200, 149 S.W.2d 555 (1941).

Part owner could not be given lien upon proceeds of partition sale until it was established that the value of his improvements exceeded the rents and profits realized from the land by him. Crouch v. Crouch, 245 Ark. 67, 431 S.W.2d 261 (1968).

The owners of a fractional interest in land were entitled to have their portion of the accumulated rents and profits collected by the owner of the other fractional interest set off against the value of improvements made by such part owner in the belief that he owned the entire fee. Crouch v. Crouch, 245 Ark. 67, 431 S.W.2d 261 (1968).

Despite the permissive plain language of subsection (e) of this section, the Arkansas Supreme Court has construed the Betterment Act as not providing for recovery of the value of improvements unless the improvements exceed the rents and profits due the owner. MidFirst Bank v. Sumpter, 2016 Ark. App. 552, 508 S.W.3d 69 (2016).

In a case that set aside a foreclosure decree due to improper service on the property owner, the circuit court erred in calculating the foreclosure sale purchaser's recovery under the Betterment Act by failing to apply a setoff rate, pursuant to subsection (e) of this section, for the rents the foreclosure sale purchaser received. MidFirst Bank v. Sumpter, 2016 Ark. App. 552, 508 S.W.3d 69 (2016).

Tenants in Common.

A tenant in common has the right to make improvements on the land without the consent of his cotenants; and, although he has no lien on the land for the value of his improvements, he will be indemnified for them, in a proceeding in equity to partition the land between himself and cotenants, either by having the part upon which the improvements are located allotted to him or by having compensation for them, if thrown into the common mass, because tenants in common might be improved out of their property; however, the cotenant can only receive the enhancement value of the improvement to the property. Graham v. Inlow, 302 Ark. 414, 790 S.W.2d 428 (1990).

Cited: Collins v. Paepcke-Leicht Lumber Co., 82 Ark. 1, 100 S.W. 86 (1907); Brasher v. Taylor, 109 Ark. 281, 159 S.W. 1120 (1913); Baxter v. Young, 229 Ark. 1035, 320 S.W.2d 640 (1959); McDowell v. King, 266 Ark. 1005, 589 S.W.2d 594 (Ct. App. 1979); Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981); Smith v. Stewart, 10 Ark. App. 201, 662 S.W.2d 202 (1983); Thorne v. Magness, 34 Ark. App. 39, 805 S.W.2d 95 (1991); Carter v. Cox, 2014 Ark. App. 654 (2014).