Opinion No.

Mr. Roy L. Bilheimer Executive Secretary Arkansas Real Estate Commission 612 Summit Little Rock, AR 72201-4740

Dear Mr. Bilheimer:

This is in response to your request for an opinion on whether or not A.C.A. § 18-44-133 (Cum. Supp. 1991) permits a licensed real estate broker to file a statutory lien against real property for services rendered, e.g., estimating the value of real property in connection with a listing or sale, and/or the duties as prescribed under A.C.A. § 17-35-101 (Repl. 1992). It is my opinion that it does not.

The relevant Code section is found at A.C.A. § 18-44-133(a)(1), which provides:

(a)(1) Every architect, engineer, appraiser, abstractor, or title insurance agent who shall do or perform any architectural, engineering, surveying, appraisal, or abstracting work on, or who shall issue any title insurance policy on any land, building, erection, or improvement upon land, under or by virtue of any written agreement for performance of the work with the owner or his agent thereof shall have a lien upon the land, building, erection, or improvement to the extent of the agreed contract price or a reasonable price for those services. . . .

A plain reading of this statute excludes from this list real estate brokers. The Arkansas Legislature enacted Act 1035 of 1987 and Act 786 of 1991 which comprise A.C.A. § 18-44-133 (Cum. Supp. 1991). Nowhere in these acts are real estate brokers considered to have a statutory lien against real property. Additionally, my research discloses no other state statute which provides such a lien.

The crux of your question concerns the statutory lien for an appraiser, and whether real estate brokers are appraisers within this statutory language, when, in the ordinary course of his or her business, the broker gives to a person a market analysis or broker's price opinion. The Arkansas Legislature enacted licensing requirements for appraisers as a separately licensed profession. A.C.A. § 17-51-101, et seq. A real estate broker is not an appraiser as referenced in A.C.A. § 18-44-133(a)(1). The Arkansas Legislature has specified, additionally, that a listing by a real estate broker could not be referred to as an appraisal. A.C.A. § 17-51-104(2) (Repl. 1992).

It is therefore my opinion that A.C.A. § 18-44-133 is inapplicable to real estate brokers.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General T. Jeff Vining.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh