PR 07215.005 Arkansas

A. PR 00-035 Purchase of Property by Representative Payees on Behalf of Minor Children - Arkansas

DATE: May 6, 1999

1. SYLLABUS

In Region VI (Dallas), a minor in the State of Arkansas is capable of holding title to property.

2. OPINION

This memorandum is in response to your request for our opinion of whether or not a minor is permitted to own or purchase property in the state of Arkansas. You asked us to address the following questions:

1. Does the State permit a minor to hold title to real or personal property such as an automobile?

2. If so, are there any restrictions as to the age of the minor or the types of property that can be held?

3. Are there any specific requirements on how the property should/must be titled to show the minor as the titleholder?

4. If a State does not permit a minor to hold title to property, or does not permit the property to be titled/registered in the minor's name, what is the preferred method(s) of titling the property to reflect or protect the minor's interest in the property and satisfy SSA's regulatory requirements?

In our opinion, a minor is capable of holding title to property in Arkansas. Arkansas statutory law states the following:

All persons eighteen (18) years of age or older may acquire title to own, and dispose of real and personal property, both tangible and intangible, in the same manner, and shall be subject to the same rights, obligations, and liabilities with respect thereto as provided for persons twenty-one (21) years of age or older.

Ark. Stat. Ann. § 9-26-103. Although no similar statute specifically addresses the abilities of those younger than eighteen to own property, there appears to be no restrictions under Arkansas law on the ability of minors under the age of eighteen to own property.

Moreover, case law in Arkansas implies that a minor has the ability to own or acquire property without such restrictions because there are cases involving a minor's ownership interest in property which do not question the right of the minor to own the property. See Brunks v. Merchants National Bank, 230 S.W.2d 932, 935-936 (Ark. 1950) (an ineffective attempt to deed realty to a minor girl created a contract to convey realty and could vest title in minor girl); Harris v. Harris, 112 S.W.2d 40, 43-44 (Ark. 1937) (infant owner of a 1/28 interest in land sold to the state for taxes had a right to redeem from purchaser); Levinson v. Treadway, 78 S.W.2d 59, 62 (Ark. 1935)(purchasers of realty should have taken notice of deeds in chain of title that property belonged to a minor); Jeffery v. Patton, 31 S.W.2d 738 (Ark. 1930)(father deeded land to his minor children by ordinary warranty deeds); Hindman v. O'Connor, 16 S.W. 1052, 1054-1055 (Ark. 1891)(guardian of minor children could not purchase the minors' property); Berringer v. Stevens, 225 S.W. 14, 14 (Ark. 1920)(deed from father to minor children had the effect of vesting title in them).

There appears to be no restriction as to the age of the minor or the types of property that can be held by a minor. However, the State does restrict a minor's ability to dispose of property. It has long been the rule in Arkansas that an infant's1/ deed conveys title to his real estate subject to his right to disaffirm when he becomes of age. Beauchamp v. Bertig, 119 S.W. 75, 79 (Ark. 1909); Bagley v. Fletcher, 44 Ark. 153. Additionally, the Arkansas Supreme Court has held that the contracts of infants are not void, but voidable. Tays v. Johnson, 292 S.W. 122, 124 (Ark. 1927); Tobin v. Spann, 109 S.W. 534, 535 (Ark. 1908)(where a minor executes a deed under representations in accordance with his appearance that he is of full age, he is not prevented from disaffirming the contract and repudiating the conveyance upon reaching majority). The Court has further held that an infant who conveys land and reaches majority within seven years before instituting an action has a right to disaffirm the conveyance. Watkins v. Johnson, 356 S.W.2d 655 (Ark. 1962); See Moore v. Smith, 155 S.W. 2d 572, 573 (Ark. 1941); Walker v. Ellis, 207 S.W. 2d 39, 41 (Ark. 1947); Barker v. Fuestal, 147 S.W. 45, 46 (Ark. 1912); Bagley v. Fletcher, 44 Ark. 153 (Ark. 1884) Kountz v. Davis, 34 Ark. 590 (Ark. 1879).

In summary, we have found no law in the state of Arkansas that would prohibit a minor from acquiring real or personal property in his or her own name. Additionally, Arkansas law provides no specific requirements on how the property must be titled to show a minor as titleholder. The common law in Arkansas only demonstrates that there may be certain risks to a buyer or purchaser of property from a minor, due to the minor's ability to disaffirm a conveyance.

1/This term is used interchangeably throughout this opinion for "minor."