CHAPTER 381 Title to Property and Restrictions on Use, Ownership and Alienation

381.010. Commonwealth vested with ultimate property to lands.

The Commonwealth of Kentucky is deemed to have possessed the original, and has the ultimate property in and to all lands within her boundaries.

History. 2337.

NOTES TO DECISIONS

1.Continuation of Title and Ownership.

Title and ownership continues in the Commonwealth until it disposes of the land by patent, or loses it by adverse possession. Whitley County Land Co. v. Powers's Heirs, 146 Ky. 801 , 144 S.W. 2, 1912 Ky. LEXIS 171 ( Ky. 1912 ).

2.Escheat.

Board of education had the power to institute a suit in “the name of the Commonwealth” for escheat of land held by alien perhaps because under this section the Commonwealth of Kentucky is deemed to have possessed the original and has the ultimate property in and to all the lands within her boundaries. Commonwealth ex rel. Attorney Gen. v. Tamer, 293 Ky. 357 , 169 S.W.2d 19, 1943 Ky. LEXIS 626 ( Ky. 1943 ).

Cited:

Nunn v. Wright, 303 Ky. 288 , 197 S.W.2d 439, 1946 Ky. LEXIS 839 ( Ky. 1946 ).

Research References and Practice Aids

Cross-References.

Apportionment of tax among owners of land assessed as tract, KRS 134.485 .

Appraisal of real estate to be sold under court order, redemption after sale, KRS 426.520 to 426.540 .

Attornment by tenant to stranger, conveyance without attornment, KRS 383.100 .

Banks, real estate title insurance companies, building and loan companies, railroads, power to hold land, KRS 277.060 , 287.100 , 304.22-030 .

Champertous contract concerning land forfeits interest therein, KRS 372.080 .

Corporations, power to hold land, escheat of land illegally held, KRS 271.145 .

Death of party to action after land sold under court order, KRS 426.550 .

Grant to United States of lands and rights to acquire, KRS ch. 3.

Inheritance tax, contingent estates, divestible estates, future interests, KRS 140.100 , 140.110 .

Inheritance tax, joint interest, KRS 140.050 .

Land regulations to prevent erosion, KRS 262.350 to 262.410 .

Lien for purchase money for real estate, how acquired, KRS 382.070 .

Lien on property on leased premises, removal of property, KRS 383.080 .

Liens of pending suits, attachments, executions, federal court judgments and internal revenue taxes, notice must be filed, KRS 382.440 to 382.470 .

Oil and gas leases, consolidation of where contingent future interests, or incompetents or minors, are involved, KRS 353.210 to 353.290 .

Oil and gas leases, execution by trustee where contingent future interests are involved, KRS 353.300 to 353.380 .

Penalty for selling lots in unapproved subdivision of first-class cities, KRS 100.093 , 100.990 .

State lands and buildings, KRS ch. 56.

Northern Kentucky Law Review.

Stephens, Historical and Practical Comments on Abstracting Land and Mineral Titles in Kentucky, 9 N. Ky. L. Rev. 445 (1982).

381.020. Titles allodial and subject to escheat — Right of eminent domain.

All land titles in this state are allodial, and, subject to escheat, the entire and absolute property in all land in this state is vested in the owners, according to the nature of their respective estates; except that the Commonwealth retains the right of eminent domain in and to all real estate.

History. 2338.

Research References and Practice Aids

Cross-References.

Escheat, property subject to, proceedings, KRS 393.020 , 393.150 , 393.160 .

Surveys of entries, when patent may issue, KRS 56.190 , 56.230 .

Unappropriated lands in county, Ohio River bed, KRS 56.210 , 56.220 .

Kentucky Law Journal.

Richardson, Acquisition of Right of Way for Highway Purposes in Kentucky — Right of Eminent Domain and Just Compensation, 36 Ky. L.J. 159 (1948).

381.030. Death of disseizor — Effect.

The death of a disseizor while seized of property shall not be such descent in law as to take away the right of entry of any person who has such right at the death of the disseizor, unless the disseizor has had fifteen (15) years’ peaceable possession after the disseizin was committed.

History. 2340.

NOTES TO DECISIONS

1.Application.

Where ownership of minerals by grantee was recognized by grantor-owner who remained in possession of the land until his death, the 15-year statute of limitations was not applicable and grantee could assert ownership 35 years after execution of the deed. Porter v. Justice, 242 S.W.2d 863, 1951 Ky. LEXIS 1081 ( Ky. 1951 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Establish Title by Adverse Possession, Form 303.01.

381.040. Estates may commence in future.

Any estate may be made to commence in the future by deed, in like manner as by will, and any estate which would be good as an executory devise or bequest shall be good if created by deed.

History. 2341.

NOTES TO DECISIONS

1.Conveyable Interests.

Whatever interest grantee had inherited could be conveyed under this section and was subject to attachment and execution for sale. Fischer v. Porter, 263 Ky. 372 , 92 S.W.2d 368, 1936 Ky. LEXIS 183 ( Ky. 1936 ).

It was unnecessary to decide whether estate remaining in grantor after execution of a deed to the board of education was a possibility of reverter or a reversion (contingent remainder), since under this section and KRS 381.210 , every conceivable interest in or claim to real estate, whether present, future, vested or contingent, may be disposed of by deed. Austin v. Calvert, 262 S.W.2d 825, 1953 Ky. LEXIS 1135 ( Ky. 1953 ). (See KRS 381.218 abolishing possibility of reverter and substituting right of entry and KRS 381.219 through 381.223 limiting right of entry.).

2.Construction of Deeds.

The rule that wills must be so construed, if possible, as to avoid imputing to testator an intention to die intestate as to part of his property has no application in the construction of deeds. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

3.Personal Property.

Language which would create a life estate and a reversion or remainder in lands may, with equal assurance, sever the title to personal property, giving it for a term or life to one, with the remainder to others, upon the same contingencies as land is devised, guarding always against perpetuities. Stallcup v. Cronley's Trustee, 117 Ky. 547 , 78 S.W. 441, 25 Ky. L. Rptr. 1675 , 1904 Ky. LEXIS 215 ( Ky. 1904 ).

4.Contingent Remainders.

A vested remainder is a fixed interest to take effect in enjoyment after a particular estate is spent, and is an actual estate which may be sold and the title passed to the purchaser, but a contingent remainder is one limited so as to depend on some event or condition, which is uncertain and may never happen or be performed. Lindenberger v. Cornell, 190 Ky. 844 , 229 S.W. 54, 1921 Ky. LEXIS 514 ( Ky. 1921 ).

Interest created by will devising land to children with provision a son would inherit daughter’s share if she predeceased him and vice versa was held to be a contingent remainder and daughter could convey her interest in her brother’s part. Roy v. West, 194 Ky. 96 , 238 S.W. 167, 1922 Ky. LEXIS 101 ( Ky. 1922 ). See Clay v. Clay, 199 Ky. 4 , 250 S.W. 829, 1923 Ky. LEXIS 788 ( Ky. 1923 ). But see Vittitow v. Birk, 290 Ky. 235 , 160 S.W.2d 624, 1942 Ky. LEXIS 376 ( Ky. 1942 ).

Provision in deed whereby son and wife agreed to convey land to mother if they died leaving no child created contingent estate in mother and did not vest an interest in unborn child. Houston v. Pritchett, 216 Ky. 355 , 287 S.W. 936, 1926 Ky. LEXIS 924 ( Ky. 1926 ).

Remainders are contingent when the estate is limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event. Ford v. Jones, 223 Ky. 327 , 3 S.W.2d 781, 1927 Ky. LEXIS 961 ( Ky. 1927 ).

Where, under the provisions of a will, a gift to a class is postponed until after the termination of a preceding estate, as a rule, those members of the class, and those only, take who are in existence when such preceding estate terminates and the time for distribution comes. Ford v. Jones, 223 Ky. 327 , 3 S.W.2d 781, 1927 Ky. LEXIS 961 ( Ky. 1927 ).

A devise of a contingent remainder of any kind is the subject of a sale and conveyance, but the purchaser will receive nothing unless the contingent remainderman survives until the event occurs upon which his estate vests. Caperton v. Smith's Trustee, 268 Ky. 223 , 104 S.W.2d 440, 1937 Ky. LEXIS 437 ( Ky. 1937 ).

Where will set up a trust for a wife’s benefit to continue for “the life and widowhood of my wife,” the wife to receive only one third of the income if she should remarry, and after the wife’s death the trust to terminate and the corpus to be distributed “equally to my children, the descendants of any deceased child to take their parent’s share,” the remainders in testator’s children and grandchildren were contingent and could not vest until the wife’s death and the trust could not be terminated by deeds from the children to their mother. Weisser's Trustee v. Mulloy, 276 Ky. 427 , 124 S.W.2d 496, 1939 Ky. LEXIS 535 ( Ky. 1939 ).

It is settled that vested remainders pass under KRS 391.010 and there is no plausible reason why the same should not be or is true with respect to contingent remainders that are not conditioned expressly or by implication on the remainderman’s survival at the time of vesting. Saulsberry v. Second Nat’l Bank, 400 S.W.2d 506, 1966 Ky. LEXIS 433 ( Ky. 1966 ), overruling Leppes v. Lee, 92 Ky. 16 , 13 Ky. L. Rptr. 317 , 17 S.W. 146 (1891), to the extent of conflict.

5.Life Estate with Power to Sell Remainder.

A life estate is one thing and power to convey remainder another although both are acquired by the same deed and a deed purporting to convey fee simple title would pass the life estate under power of conveyance subject to liens of creditors and would pass the remainder under power of sale. Roby v. Arterburn, 269 Ky. 816 , 108 S.W.2d 873, 1937 Ky. LEXIS 672 ( Ky. 1937 ).

6.Retention of Use and Possession.

In this jurisdiction, where title to property can be conveyed by deed but use and possession retained until a future time, it seems that delivery of deed to a third person, to be delivered to grantee at grantor’s death, can be construed to be the passing of the present interest in title of subject of deed and retention by grantor of use and possession during his life, and when deed is delivered to grantee, as between parties to it and their privies, it will relate back for purpose of vesting title to delivery of deed to third person for grantee. Kirby v. Hulette, 174 Ky. 257 , 192 S.W. 63, 1917 Ky. LEXIS 187 ( Ky. 1917 ).

7.Homestead Right.

A homestead right is not an estate in land, but is an exemption from execution; it can attach to any real property that can be seized under an execution and the nature or quantum of the estate in which the homestead is claimed is immaterial, as a fee-simple title is not necessary to the right of homestead. Howard v. Mitchell, 268 Ky. 429 , 105 S.W.2d 128, 1936 Ky. LEXIS 775 ( Ky. 1936 ).

8.Executory Devise.

Future interest created by will was held to be an executory devise or shifting use, and not a remainder. McWilliams v. Havely, 214 Ky. 320 , 283 S.W. 103, 1926 Ky. LEXIS 330 ( Ky. 1926 ).

A life estate may be carved out of a preceding fee simple by executory devise. In such case the fee is divested only so far as is necessary to give effect to the executory life estate and, subject thereto, remains in the heirs of the prior devisee in fee. Medcalf v. Whitely's Adm'x, 290 Ky. 94 , 160 S.W.2d 348, 1942 Ky. LEXIS 351 ( Ky. 1942 ).

Under language in will “I will, bequeath and devise all my personal property not otherwise disposed of and all real estate wheresoever situated to my legal heirs as the law of Kentucky directs. If either of my grandsons should die leaving no issue of the body then the remaining grandson shall have his brother’s share as well as his own. This shall apply to real estate as well as personal property.” Each grandson took a defeasible or a determinable fee in one half of testator’s real estate and in addition each acquired an “executory interest” in the lands of the other which he could convey at will and, when one grandson conveyed his interest, he parted not only with his then existent estate, the defeasible fee in one half, but with his right to take the future estate which would arise in the other one half should the other grandson die without issue. Vittitow v. Birk, 290 Ky. 235 , 160 S.W.2d 624, 1942 Ky. LEXIS 376 ( Ky. 1942 ). (See KRS 381.218 abolishing determinable fee and creating fee simple with right of entry.).

9.Equitable Interest in Trust.

A will creating a defeasible fee disposes of the testator’s entire interest in the land at the time of his death, although the title may be defeated afterwards by the happening of the contingency named in the will. A fee simple estate may be limited by a provision that it shall terminate by the happening of a contingency, and it is still a fee, since it will last forever if the contingency does not happen and a son could convey his equitable interest in a devise in trust for him until his sister reached 21 or died. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

Restraints against alienation are not favored by law and heir with an undivided two thirds (2/3) of designated land in trust until his sister reached 21 years of age or died could convey his equitable interest and the sister, who was coowner, could not have forfeiture declared against her brother’s interest. Newsom v. Barnes, 282 Ky. 264 , 138 S.W.2d 475, 1940 Ky. LEXIS 164 ( Ky. 1940 ).

10.Sale of Reversionary Right.

Grantor had power to sell and convey her vested reversionary right to property conveyed to be held so long as it was used for a school or to release it at any time to the holder of the defeasible or determinable fee thereby vesting complete title to the land in the grantees or their successors and, being an interest in property which could be sold, it was an interest which descended to the heirs in the absence of testamentary disposition. Fayette County Board of Education v. Bryan, 263 Ky. 61 , 91 S.W.2d 990, 1936 Ky. LEXIS 133 ( Ky. 1936 ). (See KRS 381.218 abolishing possibility of reverter and fee simple determinable and creating right of entry and fee simple subject to right of entry for conditions broken and KRS 381.210 providing reversion may be sold.).

11.Form of Conveyance.

Where holder of life estate indorsed on the margin of the page on which the deed was recorded that he relinquished all right or claim in the deed, three of the requisites of a valid conveyance were missing: (1) name of grantee, (2) description of fee granted, and (3) consideration and the holder of the life estate was not divested of it. Miller v. Prater, 267 Ky. 11 , 100 S.W.2d 842, 1937 Ky. LEXIS 269 ( Ky. 1937 ).

Cited:

Saulsberry v. Second Nat’l Bank, 400 S.W.2d 506, 1966 Ky. LEXIS 433 ( Ky. 1966 ).

Research References and Practice Aids

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Reed, Future Interests — Rules Against Perpetuities Applied to Options in Favor of Grantor to Purchase Bank the Land Conveyed — Maddox v. Keeler, 33 Ky. L.J. 118 (1945).

Adkins, Future Interests — Gifts Over of Undisposed Property in Kentucky, 36 Ky. L.J. 125 (1947).

Roberts, Kentucky Decisions and Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Adverse Possession, § 303.00.

381.050. Estate created by conveyance to husband and wife — Will not to defeat right to the entirety by survivorship.

  1. If real estate is conveyed or devised to husband and wife, unless a right by survivorship is expressly provided for, there shall be no mutual right to the entirety by survivorship between them, but they shall take as tenants in common, and the respective moieties shall be subject to the respective rights of the husband or wife as fixed in KRS Chapter 392, with all other incidents to such tenancy.
  2. Where a conveyance or devise expressly creates a mutual right to the entirety by survivorship in real estate between a husband and wife, no provision of the will of the husband or wife shall be construed to defeat such right to the entirety by survivorship of the surviving spouse.

History. 2143: amend. Acts 1980, ch. 2, § 1, effective July 15, 1980.

NOTES TO DECISIONS

1.Construction.

The effect of this section is to place conveyances to husband and wife upon the same footing as similar conveyances to other parties, unless a right by survivorship is expressly provided for in the conveyance itself. Louisville v. Coleburne, 108 Ky. 420 , 56 S.W. 681, 22 Ky. L. Rptr. 64 , 1900 Ky. LEXIS 59 ( Ky. 1900 ). See In re Brown, 60 F.2d 269, 1932 U.S. Dist. LEXIS 1326 (D. Ky. 1932 ).

The common-law right of survivorship in joint tenancy was abolished by KRS 381.120 , but tenancy by entireties of husband and wife remained as at common law until the enactment of this section. McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S.W. 538, 23 Ky. L. Rptr. 113 , 1901 Ky. LEXIS 126 ( Ky. 1901 ).

KRS 381.120 is modified by this section, the latter providing, in effect, that if real estate be conveyed or devised to husband and wife, unless a right of survivorship is expressly provided for, there will be no mutual right to the entirety by survivorship between them. Francis v. Vastine, 229 Ky. 431 , 17 S.W.2d 419, 1929 Ky. LEXIS 786 ( Ky. 1929 ).

When the right of survivorship exists by deed, it is governed by the principles announced by the Court of Appeals in construing the common law governing in such cases. Francis v. Vastine, 229 Ky. 431 , 17 S.W.2d 419, 1929 Ky. LEXIS 786 ( Ky. 1929 ).

At common law a conveyance of land to the husband and wife constituted an estate by entireties, and death terminated the title in such estate of the first one dying and the survivor held the entire estate; but the common law in this respect was superseded or annulled by this section. Mastin v. Mastin's Adm'r, 243 Ky. 830 , 50 S.W.2d 77, 1932 Ky. LEXIS 207 ( Ky. 1932 ). See Preston v. Preston's Adm'x, 245 Ky. 552 , 53 S.W.2d 957, 1932 Ky. LEXIS 633 ( Ky. 1932 ).

2.Life Estates.

Conveyance to husband and wife for and during their natural lives with remainder in fee to their child or children if any be left at the time of their death came within the exception provided by this section, and secured to the wife a right by survivorship to the entire property during her natural life and she, having survived the husband, had the right to maintain action in her own name for entire injury complained of. Louisville v. Coleburne, 108 Ky. 420 , 56 S.W. 681, 22 Ky. L. Rptr. 64 , 1900 Ky. LEXIS 59 ( Ky. 1900 ).

A provision in deed conveying land to husband and wife “during their natural lives only, and at their death the same is to revert to the legal heirs of the party of the first part” amounts to an express provision for right of survivorship, unless presumption is rebutted by terms of deed and the survivor is not required to surrender one half the property. McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S.W. 538, 23 Ky. L. Rptr. 113 , 1901 Ky. LEXIS 126 ( Ky. 1901 ).

This section does not apply to life estates and there was a right of survivorship in life estates even though no such right was provided for in this seed. Lowery v. Madden, 308 Ky. 342 , 214 S.W.2d 592, 1948 Ky. LEXIS 942 ( Ky. 1948 ).

3.Express Provision for Survivorship.

Right of survivorship was expressly provided for in deed, as the words “or the survivor” were invariably used whenever the names of the husband and wife appeared. Harris v. Taliaferro, 148 Ky. 150 , 146 S.W. 22, 1912 Ky. LEXIS 391 ( Ky. 1912 ).

Where real estate was conveyed or devised to husband and wife with a right of survivorship expressly provided for, the husband, during the life of the wife, could not alienate or forfeit the estate and it could not be subjected to payment of his debts, as the whole of it belonged to the wife as well as to himself, and upon his death prior to her death, the whole estate became hers absolutely. Francis v. Vastine, 229 Ky. 431 , 17 S.W.2d 419, 1929 Ky. LEXIS 786 ( Ky. 1929 ). But see Hoffmann v. Newell, 249 Ky. 270 , 60 S.W.2d 607, 1932 Ky. LEXIS 889 ( Ky. 1932 ).

The contingent right of the husband to succeed to the entirety of title in property now held by himself and wife is an interest that may be taken and sold under execution, subject to defeasance through the wife surviving husband. Hoffmann v. Newell, 249 Ky. 270 , 60 S.W.2d 607, 1932 Ky. LEXIS 889 ( Ky. 1932 ).

It is sufficient if the intent to create a tenancy by entireties is expressed only in the habendum clause. Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ).

Tenancy by entireties may arise only by grant or devise, never by descent or other act of law. Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ).

When it appears, by express words or from the nature of the case, that grantor or testator intended to create a tenancy by entireties, the instrument will be so construed. Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ).

4.— Absolute Fee to Survivor.

Deed to husband and wife “during their joint lives as tenants in common, with remainder in fee simple to the survivor of them” gave husband an undivided one-half (1/2) interest in the right to use, occupancy and rents of the entire property during joint lives and a contingent fee in the entire real estate, and bankrupt husband’s interest passed to trustee in bankruptcy. In re Brown, 60 F.2d 269, 1932 U.S. Dist. LEXIS 1326 (D. Ky. 1932 ).

The chief peculiarity of an estate in joint tenancy is the right of survivorship by which, upon the death of one joint tenant, the entire tenancy remains to the surviving cotenants, not to the heirs or other representatives of the deceased, the last survivor taking the whole estate. Louisville v. Coleburne, 108 Ky. 420 , 56 S.W. 681, 22 Ky. L. Rptr. 64 , 1900 Ky. LEXIS 59 ( Ky. 1900 ).

Where property was conveyed to husband and wife jointly “for and during their joint lives with remainder in fee to the survivor of either, their heirs and assigns forever,” upon the death of the husband, the wife became the owner of the fee by virtue of the deed. Petty v. Petty, 220 Ky. 569 , 295 S.W. 863, 1927 Ky. LEXIS 569 ( Ky. 1927 ).

Deed to husband and wife in fee, providing that land should “revert” to wife at death of husband or to the husband at death of wife, manifested intent that, at the death of either, the survivor was to take title to the whole tract of land. York v. Adams, 277 Ky. 577 , 126 S.W.2d 1077, 1939 Ky. LEXIS 693 ( Ky. 1939 ).

The survivor to a tenancy by entireties takes a fee-simple title. Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ).

5.Tenancy in Common.

Since the enactment of this section, where the husband accepts a deed and puts it to record, which conveys land to him and his wife jointly, no matter what his intention was at the time he was buying it, each of them takes an undivided one-half interest in it, in the absence of an allegation and proof of fraud or mutual mistake in deed so conveying. Resulting trusts have been abolished. Mastin v. Mastin's Adm'r, 243 Ky. 830 , 50 S.W.2d 77, 1932 Ky. LEXIS 207 ( Ky. 1932 ). (See Preston v. Preston's Adm'x, 245 Ky. 552 , 53 S.W.2d 957, 1932 Ky. LEXIS 633 ( Ky. 1932 ). But see KRS 381.170 creating constructive trust when grantee takes deed in his own name without consent of person paying consideration or grantee in violation of trust agreement purchases land with effects of another.).

Even though the wife paid entire consideration for property deeded to herself and husband jointly, she took only an undivided one-half interest therein as a tenant in common thereof, without any trust resulting in her favor as to husband’s half interest, where she knew of or consented to such conveyance. Preston v. Preston's Adm'x, 245 Ky. 552 , 53 S.W.2d 957, 1932 Ky. LEXIS 633 ( Ky. 1932 ). (See KRS 381.170 .).

Tenancy in common of property conveyed to husband and wife jointly does not constitute them partners within the meaning of that term in federal bankruptcy act. In re Bowles, 15 F. Supp. 353, 1936 U.S. Dist. LEXIS 1190 (D. Ky. 1936 ).

Circuit court erred by concluding the residence passed to the widow in fee simple at the husband’s death by survivorship inherent to a tenancy by the entirety; legally, they continued joint ownership of the residence as tenants in common after their divorce, and upon the husband’s death, his one-half ownership interest passed to his heirs at law or beneficiaries under his will, while the wife retained her one-half ownership interest in the property as a tenant in common. Wheeler v. Layton, 617 S.W.3d 830, 2021 Ky. App. LEXIS 7 (Ky. Ct. App. 2021).

6.Taking Life of Spouse.

Where husband had been convicted of a felony for taking the life of his wife, he was barred from asserting any interest he would receive as a surviving tenant in residence owned by them. Therefore, the entire value of the residence was a part of the estate of the wife. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

Cited:

Fryer v. Klinglesmith, 244 Ky. 497 , 51 S.W.2d 442, 1932 Ky. LEXIS 449 ( Ky. 1932 ).

Research References and Practice Aids

Cross-References.

Distribution of property in case of simultaneous deaths, KRS 397.030 .

Kentucky Law Journal.

Francis, Joint Tenancy and Tenancy by the Entirety Four Unities Requirement, 36 Ky. L.J. 202 (1948).

Rice, Creation of Joint Tenancy by Conveyance of Tenants in Common to Themselves, 40 Ky. L.J. 445 (1952).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

381.060. Fee simple created, when — Possession vests in grantee.

  1. Unless a different purpose appears by express words or necessary inference, every estate in land created by deed or will, without words of inheritance, shall be deemed a fee simple or such other estate as the grantor or testator had power to dispose of.
  2. All deeds of bargain and sale, deeds to stand seized to use, deeds of release and deeds of trust, shall be held to vest the possession of the grantor in the grantee to the extent of the estate intended to be conveyed.

History. 491, 2342.

NOTES TO DECISIONS

1.Purpose.

The purpose of the law is to stabilize land titles and to favor vested estates. Weller v. Dinwiddie, 198 Ky. 360 , 248 S.W. 874, 1923 Ky. LEXIS 445 ( Ky. 1923 ). See Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ).

2.Construction.

A conveyance of real estate may be construed as transferring an absolute title rather than a lesser, if the language employed is susceptible of two (2) constructions. Campbell v. Wells, 278 Ky. 209 , 128 S.W.2d 592, 1939 Ky. LEXIS 408 ( Ky. 1939 ).

This section makes it the duty of the court to adopt a construction favoring a fee where it is not clear what estate the testator intended to devise. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

In applying this section and KRS 381.070 , it has generally been held that the phrases “heirs of the body,” “heirs lawfully begotten of the body,” and other similar expressions are appropriate words of limitation, and are to be construed as creating an estate tail, which by the statute is converted into a fee-simple estate, unless there be something else in the deed or will from which a reasonable inference can be drawn that the words were used in a different sense from their technical and legal signification; so, in deed to husband and wife providing that property was to revert to the wife and her bodily heirs if husband pre-deceased wife, the words “her bodily heirs” were words of limitation and not of purchase and deed conveyed a fee simple to the husband and wife and nothing to the children. Nunn v. Wright, 303 Ky. 288 , 197 S.W.2d 439, 1946 Ky. LEXIS 839 ( Ky. 1946 ).

Under the fiction created by this section where there is possession by a vendee who may never even see the land, the court calls this a nonpossessory interest. Gatliff Coal Co. v. Lawson, 247 S.W.2d 375, 1952 Ky. LEXIS 693 ( Ky. 1952 ).

This section does nothing more than dispense with the necessity of using “words of inheritance” in a deed or will in order to create a fee, and did not change the rule that where there are words in a conveyance or devise indicating intent, they will nevertheless govern. Collings v. Collings' Ex'rs, 260 S.W.2d 935, 1953 Ky. LEXIS 986 ( Ky. 1953 ), overruled, Melton v. Wyatt, 517 S.W.2d 242, 1974 Ky. LEXIS 23 ( Ky. 1974 ).

Where obscure words are contained in a will, the quest is for intention of the testator’s mind, but where they are contained in a deed or contract, a bilateral instrument executed for a consideration, the court must seek the intention of both the grantor and the grantee and, in such a case, the doubts in relation to character of title are resolved in favor of passing entire title. Kentland Coal & Coke Co. v. Blankenship, 300 S.W.2d 570, 1957 Ky. LEXIS 463 ( Ky. 1957 ).

3.Application.

Subsection (1) of this section changes the common-law rule limiting a grant without words of inheritance to a life estate and does not apply where there are any words in the conveyance indicating how the title is to pass. See Hall v. Wright, 121 Ky. 16 , 87 S.W. 1129, 27 Ky. L. Rptr. 1185 , 1905 Ky. LEXIS 172 ( Ky. 1905 ); Combs v. Fields, 211 Ky. 842 , 278 S.W. 137, 1925 Ky. LEXIS 979 ( Ky. 1925 ).

This section merely dispensed with the necessity of using words of inheritance in a deed or will to create a fee and did not apply to a testamentary bequest of residuary estate to widow with power to appoint at her death to some fund that she might see fit. McKee v. Hedges, 297 S.W.2d 45, 1956 Ky. LEXIS 13 ( Ky. 1956 ).

4.Fee Simple.

Where the word “children” is used, as when estate is given to “A and his children,” the uniform ruling has been that A will not take the fee, but whether he will take a life estate or a joint estate with the children is to be determined from a consideration of the relationship of the parties and the language of the instrument. McFarland v. Hatchett, 118 Ky. 423 , 80 S.W. 1185, 26 Ky. L. Rptr. 276 , 1904 Ky. LEXIS 55 ( Ky. 1904 ). See Hall v. Wright, 121 Ky. 16 , 87 S.W. 1129, 27 Ky. L. Rptr. 1185 , 1905 Ky. LEXIS 172 ( Ky. 1905 ); Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Frey v. Clark, 176 Ky. 661 , 197 S.W. 414, 1917 Ky. LEXIS 113 ( Ky. 1917 ).

In view of uncertainty in arriving at intention of maker of deed or will in use of words “heirs of his body,” “bodily heirs,” or the like, it is safer to conclude the conveyance was designed to pass the fee and not a life estate or joint interest; this construction should prevail in absence of language indicating a purpose to invest grantee with only a life estate or joint interest. Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ). See Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807 , 266 S.W. 670, 1924 Ky. LEXIS 246 ( Ky. 1924 ); Kinnaird v. Farmers' & Merchants' Bank, 249 Ky. 661 , 61 S.W.2d 291, 1933 Ky. LEXIS 577 ( Ky. 1933 ).

Where instrument creates a fee-simple legal estate in land, a subsequent clause which restrains the sale of estate during life of vendee or devisee is void. Brock v. Conkwright, 179 Ky. 555 , 200 S.W. 962, 1918 Ky. LEXIS 256 ( Ky. 1918 ).

The court will not adopt a strained construction to create a trust instead of an absolute gift. If a provision is doubtful, a trust will not be implied, for the law favors the vesting of a fee. Moore v. Garvey's Adm'r, 290 Ky. 61 , 160 S.W.2d 363, 1942 Ky. LEXIS 354 ( Ky. 1942 ).

5.— Words of Inheritance.

The archaic notion of requiring “words of inheritance” in order to transfer a fee simple absolute is no longer the law. Ratliff v. Higgins, 851 S.W.2d 455, 1993 Ky. LEXIS 6 ( Ky. 1993 ).

Where the deed clause stated that the pump and engine company and its successors agreed and covenanted with the neighbors’ predecessors to supply adequate water and that this agreement was appurtenant to the land, this was sufficient to create a covenant that ran with the land pursuant to KRS 381.060(1), despite the failure to use words of inheritance. Camenisch v. City of Stanford, 140 S.W.3d 1, 2003 Ky. App. LEXIS 211 (Ky. Ct. App. 2003).

6.— Will.

Though devise to a survivor and his descendants did not at common law create an estate tail, under our statutes it creates more than a life estate in survivor; considering devise of land to two (2) grandsons, it was held that upon death of one (1) without child, the other, if living, takes the property, and, if he is dead, it passes to his descendants. Simpson v. Adams, 127 Ky. 790 , 106 S.W. 819, 32 Ky. L. Rptr. 617 , 1908 Ky. LEXIS 21 ( Ky. 1908 ).

In case of doubt as to proper construction of a will, it is the duty of the court to adopt construction which would establish a fee rather than a life estate. Washer's Ex'r v. Washer's Ex'rs, 143 Ky. 645 , 137 S.W. 227, 1911 Ky. LEXIS 485 ( Ky. 1911 ). See Blackwell v. Blackwell, 147 Ky. 264 , 143 S.W. 1010, 1912 Ky. LEXIS 203 ( Ky. 1912 ); Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ); Liberty Bank & Trust Co. v. Bimbas, 227 Ky. 643 , 13 S.W.2d 1001, 1929 Ky. LEXIS 938 ( Ky. 1929 ).

A devise of all real and personal property, standing alone, would, considered in light of statute, create a fee. Weller v. Dinwiddie, 198 Ky. 360 , 248 S.W. 874, 1923 Ky. LEXIS 445 ( Ky. 1923 ). See Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ).

If the intention of the testator could be ascertained from the language of the will, that intention controlled, regardless of collateral and subsidiary rules which might be employed in arriving at the intention when it was obscure. Jones v. Jones' Ex'rs, 198 Ky. 756 , 250 S.W. 92, 1923 Ky. LEXIS 559 ( Ky. 1923 ). See State Bank v. Rose's Adm'r, 219 Ky. 562 , 293 S.W. 1087, 1927 Ky. LEXIS 393 ( Ky. 1927 ).

Where husband and wife held land as tenants in common with right of survivorship, and husband, in his will, devised the land to wife for life but made no disposition of the remainder, wife was not deprived of her fee estate under the deed by accepting the other benefits of the will. York v. Adams, 277 Ky. 577 , 126 S.W.2d 1077, 1939 Ky. LEXIS 693 ( Ky. 1939 ).

Testator is presumed to have knowledge of this section. Moorehouse v. Marcum, 288 Ky. 28 , 155 S.W.2d 448, 1941 Ky. LEXIS 44 ( Ky. 1941 ).

Under this section, if the meaning of the words are doubtful and obscure and it cannot clearly be determined what estate the grantor intended to convey, then it would be the duty of the court to adopt that construction favoring a fee and a deed conveying to “granddaughter and her bodily heirs” vested in her a fee-simple title under this section and KRS 381.070 and not a life estate with remainder to her bodily heirs. McGinnis v. Hood, 289 Ky. 669 , 159 S.W.2d 1018, 1942 Ky. LEXIS 619 ( Ky. 1942 ).

An early vesting of an estate is favored in the absence of a clear manifestation of a contrary intention and, if an attempted qualification or limitation of a testamentary grant is ambiguous, the grant will be regarded as absolute. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

Where a testator leaves a gift upon his widow’s death “equally to my children but to be held in trust for them and only the income to be paid them,” this section assumes the testator intended an absolute rather than a qualified estate since his intention is not readily apparent so that the children of the testator received a fee simple, not a life estate. Arnold v. Barber, 472 S.W.2d 466, 1971 Ky. LEXIS 189 ( Ky. 1971 ).

7.— — Nondefeasible or Absolute.

Where clause of devise to children provided share of child dying without issue descended to heirs of testator, and one (1) died childless after testator, clause was construed as contemplating death before testator and deceased child took absolute estate which passed to her heirs. Jackman v. Jackman, 73 S.W. 776, 24 Ky. L. Rptr. 2245 (1903).

Will giving property to sister and providing on her death any of it remaining should go to another gave land to sister in fee simple with power to convey. Galloway v. Durham, 118 Ky. 544 , 81 S.W. 659, 26 Ky. L. Rptr. 445 , 1904 Ky. LEXIS 67 ( Ky. 1904 ).

Will devising certain property to wife was deemed to give her a fee-simple title with full power of disposition. Wood v. Wood, 127 Ky. 514 , 106 S.W. 226, 32 Ky. L. Rptr. 408 , 1907 Ky. LEXIS 162 ( Ky. 1907 ).

Devise to wife of all property “for her sole use and benefit, to use the same for her and her children as she may see proper” gave a fee to wife, unrestricted by use clause. Schneiderhahn's Guardian v. Zeller, 110 S.W. 834, 33 Ky. L. Rptr. 694 (1908).

The purpose of clause referring to death of devisee without issue was not to qualify fee simple estate but to provide who should take in case devisee died before life tenant. Cassity v. Riley, 158 Ky. 507 , 165 S.W. 679, 1914 Ky. LEXIS 654 ( Ky. 1914 ). See Jewell v. White, 166 Ky. 325 , 179 S.W. 212, 1915 Ky. LEXIS 679 ( Ky. 1915 ).

Devise to wife of remainder of estate for her use and benefit, with no devise over and no evidence of intention to create merely a life estate, was construed to be a devise in fee simple. Young's Guardian v. Shaver's Ex'x, 186 Ky. 608 , 217 S.W. 902, 1920 Ky. LEXIS 10 ( Ky. 1920 ).

Language employed in will that “at the death of my wife all property belonging to her shall be equally divided between my heirs” did not restrict or limit the fee previously given her by the will to a life estate but simply meant that such property as was not disposed of during her life or that remained at her death should go to testator’s children. Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ).

Where will provided that property in trust for children should be appraised and then each daughter might elect to take certain real estate at appraised value, and residue should be divided to let all children take equally, daughters who selected real estate took it in fee, in absence of intention to contrary in will. Liberty Bank & Trust Co. v. Bimbas, 227 Ky. 643 , 13 S.W.2d 1001, 1929 Ky. LEXIS 938 ( Ky. 1929 ).

Where subsequent clause qualifies first clause giving absolute fee, effect will be given to intent of testator to limit devise. Walker v. Walker's Adm'r, 239 Ky. 501 , 39 S.W.2d 970, 1931 Ky. LEXIS 808 ( Ky. 1931 ).

Where will devised realty to widow in fee simple as long as she remained testator’s widow, but there was no devise over in event of remarriage, and widow was residuary devisee, widow acquired a nondefeasible fee. York v. York, 275 Ky. 573 , 122 S.W.2d 140, 1938 Ky. LEXIS 469 ( Ky. 1938 ).

“It is all to go to Elizabeth” conferred a fee simple. Clay v. McNabb, 286 Ky. 751 , 151 S.W.2d 1027, 1941 Ky. LEXIS 334 ( Ky. 1941 ).

Where will provided that “I want my sister, Mrs. M. H. Coleman, to have what I leave in the event she survives me to use as near following directions as possible,” it did not create a trust but vested a fee-simple title in the named devisee, in the absence of any evidence as to a promise by the devisee to use the property for a specified purpose. Moore v. Garvey's Adm'r, 290 Ky. 61 , 160 S.W.2d 363, 1942 Ky. LEXIS 354 ( Ky. 1942 ).

Devise to A and B of “all my real estate and at their death to their legal heirs” was, the will not indicating to the contrary, to be a devise in fee to A and B. Cummings v. Nunn, 290 Ky. 609 , 162 S.W.2d 213, 1942 Ky. LEXIS 469 ( Ky. 1942 ).

Provision in same will that one (1) child should collect income from land and divide it with other child fell with attempted restraint on alienation and, standing alone, would not have been sufficient to destroy the fee. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

Where will provided that property should be held “in trust” for devisees until they reached the age of 25 years, but did not state the design, object, purpose or character of the trust, or define the powers and duties of the trustee, a dry trust was created which was ineffectual to deprive the devisees of the fee-simple title to the property. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

Where will stated that it was testator’s purpose to divide his estate equally between his children but that he did not want his land sold “unless the committee hereafter thinks best,” and there was no further provision in the will for a “committee” other than a provision for the appointment of arbitrators to determine disputes as to division of the property and its income, there being no trustee appointed to hold title, the attempted restraint on alienation was so indefinite and unreasonable as to be void, with the result that a fee-simple title passed to the children. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

Where will stated “I give[,] devise and bequeath all of the property I own ... to use and dispose of as she my lawful wedded wife ... chooses. I make this will expressly for the benefit and maintenance of my wife,” the will vested a fee-simple title in the widow. Dudley v. Wallingford, 292 Ky. 390 , 166 S.W.2d 857, 1942 Ky. LEXIS 100 ( Ky. 1942 ).

Where deed conveyed property to grantee for life, and upon her death to grantee’s son for his life, and upon his death “to go to his son, A. V. Combs, to be held for the children of said A. V. Combs,” the deed vested a present fee-simple title in the children of A. V. Combs, subject to the life estates of their grandfather and great-grandmother, notwithstanding that the children were named only in the habendum clause and not in the granting clause, the only interest acquired by A. V. Combs was that of trustee of a naked trust for his children. Combs v. Combs, 292 Ky. 445 , 166 S.W.2d 969, 1942 Ky. LEXIS 109 ( Ky. 1942 ).

Where will devised all property to testator’s wife absolutely, with full power to convey, but with subsequent clause devising over to others “any property remaining of my estate” at the death of the wife, the wife took an absolute fee, and did not hold the property in trust for the subsequent devisees. Ridley v. Shepard, 293 Ky. 91 , 168 S.W.2d 550, 1943 Ky. LEXIS 569 ( Ky. 1943 ).

Devise of estate to wife “and her heirs” gave the widow absolute title with no limitation upon her power of disposition, the word “heirs” as used in the will being words of limitation vesting a fee, since no contrary intention was manifest. Bell v. Holdbrook, 299 Ky. 843 , 187 S.W.2d 433, 1945 Ky. LEXIS 789 ( Ky. 1945 ).

In absence of express words or necessary inference in will indicating intent to give other than a fee-simple title, devise of remainder to devisee “to be absolutely under her control” vested a fee-simple title. McKnight v. Fleming, 309 Ky. 486 , 218 S.W.2d 44, 1949 Ky. LEXIS 743 ( Ky. 1949 ).

When testator bequeathed and devised to his wife his entire estate to use and dispose of as she deemed fit with a provision that if, at the time of her death, she was the owner of any of the property, it was to be divided equally between testator’s three (3) children by a previous marriage, he conveyed a fee to his wife under this section. Brammer v. Wallace, 198 F.2d 742, 1952 U.S. App. LEXIS 3235 (6th Cir. Ky. 1952 ).

8.— — Defeasible.

Sons, under mother’s will, took a defeasible fee or vested remainder in land, to which they, collectively, could convey a fee-simple title. Forsythe v. Lansing's Ex'rs, 109 Ky. 518 , 59 S.W. 854, 22 Ky. L. Rptr. 1064 , 1900 Ky. LEXIS 234 ( Ky. 1900 ).

A will creating a defeasible fee disposes of the testator’s entire interest in the land at the time of his death, although the title may be defeated afterwards by the happening of the contingency named in the will. A fee-simple estate may be limited by a provision that it shall terminate by the happening of a contingency, and it is still a fee, since it will last forever if the contingency does not happen. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

Will giving to “my beloved wife all my personal property and all my realty after all my just debts are paid so long as she remains my widow” created a fee in widow, defeasible on her remarriage. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

Husband’s will devising all his property to his widow “as long as she remains the wife of me, James S. Cuddy” with the “right to sell and convey any part of this property to support herself that she sees need to as I do not want any of my brother and sisters to try to take it or any part of it from her” gave widow a fee-simple title defeasible only if she remarried which went to her heirs on her death without remarriage. Cuddy v. McIntyre, 312 Ky. 606 , 229 S.W.2d 315, 1950 Ky. LEXIS 720 ( Ky. 1950 ).

Where will devised property to wife of testator so long as she remained testator’s widow and widow did not remarry, she acquired a fee-simple estate in such property and had full right and power to dispose of it by will. Taylor v. Farrow, 239 S.W.2d 73, 1951 Ky. LEXIS 845 ( Ky. 1951 ).

Devise to wife “so long as she remains my widow, giving her the right to dispose of any and all property as she may see fit” and “in the event of her marriage the residue of my estate shall revert to my brother or his heirs” gave the wife a defeasible fee simple which became absolute upon her death without remarriage. Ramsey v. Holder, 291 S.W.2d 556, 1956 Ky. LEXIS 388 ( Ky. 1956 ).

To resolve a boundary dispute, the appellate court interpreted the phrase in a will devising property “so long as she remains a widow” and held that in accordance with KRS 381.060(1) the widow was devised a fee simple subject to executory interest contingent upon divestment in the event she remarried. Lee v. Tipton, 2012 Ky. App. LEXIS 72 (Ky. Ct. App. May 18, 2012), review denied, ordered not published, 2012 Ky. LEXIS 462 (Ky. Dec. 12, 2012).

9.— — Life Estate.

Interest in remainder is a fee simple, unless remainderman dies after execution of will and before death of testator. Baxter v. Isaacs, 71 S.W. 907, 24 Ky. L. Rptr. 1618 (1903). See Dalmazzo v. Simmons, 78 S.W. 179, 25 Ky. L. Rptr. 1532 (1904).

Where an estate is devised to one (1) for life, with remainder to another, and, if the remainderman die without children or issue, then to a third person, the rule is that the words “dying without issue” are restricted to the death of the remainderman before the termination of the particular estate and not to death in testator’s lifetime. Jewell v. White, 166 Ky. 325 , 179 S.W. 212, 1915 Ky. LEXIS 679 ( Ky. 1915 ). See Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ).

Omission of words of inheritance together with other words used and necessary inference from them manifested testator’s intention to devise to wife merely a life estate. Bain v. Hardin, 223 Ky. 792 , 4 S.W.2d 745, 1928 Ky. LEXIS 442 ( Ky. 1928 ).

Devise to daughter and “heirs of her body begotten, their grandchildren,” gave life estate to daughter with remainder in fee to her children, especially when this disposal is confirmed by other language of deed. Ely v. United States Coal & Coke Co., 243 Ky. 725 , 49 S.W.2d 1021, 1932 Ky. LEXIS 191 ( Ky. 1932 ).

Where will gives devisee an estate for life and, at the latter’s death, to his issue, if any, but makes no disposition in case devisee dies without issue, the undisposed remainder descends as intestate property of the testator and, where devisee is sole heir of testator, he may dispose of fee by his will, if he dies without issue. Mansur v. Security Trust Co., 279 Ky. 453 , 130 S.W.2d 768, 1939 Ky. LEXIS 275 ( Ky. 1939 ).

Will giving residuary estate to widow “during her life” and, upon her death, to children in equal shares created life estate in widow, and subsequent clause that widow could give any of children such sums as she thought proper did not enlarge her estate but merely permitted her to make advancements to children up to the amount of their ultimate shares. Pfeiffer v. Gates, 281 Ky. 445 , 136 S.W.2d 542, 1940 Ky. LEXIS 47 ( Ky. 1940 ).

Where a clause of a will devises property to one (1) devisee apparently in fee simple but a subsequent clause devises the same property to another at the death of the first taker, the former takes a life estate and the latter the fee. Woods v. Hughes, 290 Ky. 99 , 160 S.W.2d 339, 1942 Ky. LEXIS 348 ( Ky. 1942 ).

Where will devised residue of estate to testatrix’ son, with proviso that if son should die before his wife, the property should go to the wife during her life, the son took a fee-simple title, subject to the life estate carved out in favor of his wife if she survived him. In such case, where the son died first, and by his will conveyed his entire estate to his wife, her life estate merged with the fee simple acquired by her husband’s will. Medcalf v. Whitely's Adm'x, 290 Ky. 94 , 160 S.W.2d 348, 1942 Ky. LEXIS 351 ( Ky. 1942 ).

Where will devised property to testator’s widow for life or until remarriage, with remainder to three (3) children in equal parts, one third (1/3) going to son in fee and one third (1/3) going to each of daughters for life, with remainder over to their issue, if any, otherwise to surviving brother or sister subject to same conditions as original one third (1/3) of brother and sister, and all three (3) children died before widow, without issue, widow took fee-simple title to property as heir of son, to whom fee would have gone on death of sisters without issue if he had survived them. Hardin v. Sherley, 292 Ky. 275 , 166 S.W.2d 425, 1942 Ky. LEXIS 77 ( Ky. 1942 ).

In such case, the fact that the will made the widow and daughter joint executrices, with power of sale but with no provision as to disposition of proceeds of sale, did not limit the daughter’s estate. Deitchman v. Woosley, 294 Ky. 186 , 171 S.W.2d 256, 1943 Ky. LEXIS 420 ( Ky. 1943 ).

Where testator devised his property to his widow for life, with remainder to his daughter with further provision that if daughter “shall predecease me, or die after me, without issue,” the estate should go to other persons, it was held that the contingent remainder to others could take effect only if the daughter died before the termination of the widow’s life estate and, if the daughter survived the widow, her estate became an absolute fee. Deitchman v. Woosley, 294 Ky. 186 , 171 S.W.2d 256, 1943 Ky. LEXIS 420 ( Ky. 1943 ).

Where will devised residue of property to unmarried daughter “as long as she remains single” and provided that husband and son were to have a home so long as they lived together with the daughter and did not marry and, if daughter or son should pass away, then the property was to be divided between another married daughter and a granddaughter, such will did not devise a defeasible fee-simple interest in unmarried daughter but only a life estate. Thomas v. Stafford, 305 Ky. 559 , 204 S.W.2d 940, 1947 Ky. LEXIS 856 ( Ky. 1947 ).

Where will gave widow trust for life and stated that the trust for life was “not to be construed to divest” her of the fee in the remainder but in a preceding clause stated she had “the right to dispose of any part or all of the said estate by will at her discretion,” she took a life estate with a power of appointment by will. Union Bank & Trust Co. v. Bassett, 253 S.W.2d 632, 1952 Ky. LEXIS 1124 ( Ky. 1952 ).

Where a will stated “I bequeath my grandson’s interest to him and at his death to his heirs and if he should die without heirs I will his interest in my estate to my other grandchildren, that I may have at the time,” the grandson was vested with a life estate with the remainder in fee simple in the heirs of his body if any survive him. Cheuvront v. Haley, 444 S.W.2d 734, 1969 Ky. LEXIS 222 ( Ky. 1969 ).

10.— — Precatory Words.

Precatory words such as “wish” and “desire” may not be merely of precatory character but may be mandatory in their dispositive effect, where it is evident from the language of the will and the circumstances surrounding it that testator intended the words to be mandatory. Froage v. Fisher, 291 Ky. 655 , 165 S.W.2d 358, 1942 Ky. LEXIS 306 ( Ky. 1942 ).

Where first two (2) clauses of will devised and bequeathed all of testatrix’s property, specifically describing it, to her husband “in fee simple,” but last clause of will stated that it was testatrix’ “wish” that upon husband’s death, $10,000 be paid to a child in whom testatrix had shown much interest, and that “the rest of the estate that has come from me” should be equally divided among two (2) persons who were testatrix’s closest relatives, it was held that the last clause qualified the first two (2), and limited husband’s interest to a life estate. Froage v. Fisher, 291 Ky. 655 , 165 S.W.2d 358, 1942 Ky. LEXIS 306 ( Ky. 1942 ).

Words “with the understanding that any of my estate remaining at the time of his death, be given according to a verbal agreement between us” cannot reasonably be construed to be words of limitation, but only as precatory words — words referring to a wish or desire which the testatrix intended to express but never did. Haysley v. Rogers, 255 S.W.2d 649, 1952 Ky. LEXIS 1146 ( Ky. 1952 ).

11.— — Power to Sell or Convey.

A will or deed giving to the vendee or devisee full power to sell and convey passes the absolute fee, and any provision or devise over is absolutely void as inconsistent with or repugnant to the fee. Alsop v. Central Trust Co., 100 Ky. 375 , 38 S.W. 510, 18 Ky. L. Rptr. 830 , 1897 Ky. LEXIS 11 ( Ky. 1897 ). See Clay v. Chenault, 108 Ky. 77 , 55 S.W. 729, 21 Ky. L. Rptr. 1485 , 1900 Ky. LEXIS 12 ( Ky. 1900 ); Cox v. Anderson's Adm'r, 69 S.W. 953, 24 Ky. L. Rptr. 721 (1902); Galloway v. Durham, 118 Ky. 544 , 81 S.W. 659, 26 Ky. L. Rptr. 445 , 1904 Ky. LEXIS 67 ( Ky. 1904 ); Cralle v. Jackson, 81 S.W. 669, 26 Ky. L. Rptr. 417 (1904); Commonwealth v. Stoll's Admr, 132 Ky. 234 , 114 S.W. 279, 1909 Ky. LEXIS 80 (Ky.), different results reached on reh'g, 132 Ky. 237 , 116 S.W. 687 ( Ky. 1909 ); McClelland's Ex'x v. McClelland, 132 Ky. 284 , 116 S.W. 730, 1909 Ky. LEXIS 12 1 ( Ky. 1909 ); Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ); Sumner v. Borders, 266 Ky. 401 , 98 S.W.2d 918, 1936 Ky. LEXIS 652 ( Ky. 1936 ).

A will or deed giving to the vendee or devisee full power to sell and convey passes the absolute fee, and any provision or devise over is absolutely void as inconsistent with or repugnant to the fee; it is wholly immaterial whether the power to sell or dispose of the property shall have been exercised or not. Clay v. Chenault, 108 Ky. 77 , 55 S.W. 729, 21 Ky. L. Rptr. 1485 , 1900 Ky. LEXIS 12 ( Ky. 1900 ).

Devise to wife of all property for “her lifetime, to manage and dispose of as she may see cause” gave her a fee-simple estate. Alsip v. Morgan, 109 S.W. 312, 33 Ky. L. Rptr. 72 (1908).

Expressly limited life estate to wife by will was not enlarged into fee simple by failure to dispose of remaining interest, in absence of provision giving life tenant power to convey. Covington v. Covington, 196 Ky. 667 , 245 S.W. 275, 1922 Ky. LEXIS 569 ( Ky. 1922 ).

The construction which the Court of Appeals puts upon the word “remainder,” that it is equivalent to “remaining” or “what may be left,” carries with it the power to sell and convey, and that construction itself creates a fee. Weller v. Dinwiddie, 198 Ky. 360 , 248 S.W. 874, 1923 Ky. LEXIS 445 ( Ky. 1923 ).

Will pursuant to which testatrix devised “all the rest and residue of my estate . . . . . to my husband . . . . . to be his absolutely during his lifetime, with right to sell, convey and transfer any property which I may own at my death. He shall have full power to use and expend any part or all of said estate for any purpose whatever . . . . . ; but if any of said estate remains at his death then I will and devise such remainder to Mary Louise Perkins” created only a life estate in husband, with an absolute property in such portion of the assets as were actually used and expended by him during his lifetime. Morgan v. Meacham, 279 Ky. 526 , 130 S.W.2d 992, 1938 Ky. LEXIS 67 ( Ky. 1938 ).

Devise to wife with power of disposition, with devise of remnant to certain others, vested fee in wife absolutely, the attempted secondary devise being regarded as void. Scott v. Smith, 286 Ky. 697 , 151 S.W.2d 770, 1941 Ky. LEXIS 325 ( Ky. 1941 ).

A devise with unlimited power to use, control and dispose of the property devised creates in devisee a fee-simple title and any attempt by testator to devise over after death of first taker is void. Ellis' Adm'r v. Ellis, 289 Ky. 365 , 158 S.W.2d 976, 1942 Ky. LEXIS 564 ( Ky. 1942 ).

Where testator devised farm to two (2) unmarried daughters for life, with provision that “should they marry or die or break up housekeeping” they might sell the farm and should then divide the proceeds among themselves and the testator’s other children equally, the two (2) daughters had only a life estate in the farm, with a qualified right to sell the farm upon the happening of any of the named contingencies and, where they did not exercise the privilege to sell, they had no remainder interest remaining at their death which could be passed by will. Upon death of life tenants, the farm passed, under testator’s will, to the surviving children of the testator and to the issue of his deceased children. Corbin v. Manley, 291 Ky. 289 , 164 S.W.2d 394, 1942 Ky. LEXIS 223 ( Ky. 1942 ).

Where will devised property to testator’s son and two (2) daughters as tenants in common, with mutual right of occupancy and with right of sale by mutual agreement, and with provision that upon death of any of devisees without issue, his interest should pass to the survivors, each devisee was possessed of a defeasible fee in an undivided third of the property, plus the right to the future or executory estates which would come into existence when and if the other devisees died without issue, and during their lifetime each devisee had all the rights and privileges of a fee-simple owner. Sipes v. Boehmer, 291 Ky. 824 , 165 S.W.2d 807, 1942 Ky. LEXIS 326 ( Ky. 1942 ).

Devise to wife “to do as she pleases with” but with a provision in a second clause “after her death it is for Joe,” the testator’s son, gave wife a life estate only and the words “to do as she pleases with” referred to that life estate and should not be construed to confer upon her the power to sell and consume the estate to the detriment of that given the son in remainder. Price v. Price, 298 Ky. 608 , 183 S.W.2d 652, 1944 Ky. LEXIS 964 ( Ky. 1944 ), overruled, Weakley v. Weakley, 237 S.W.2d 524, 1951 Ky. LEXIS 761 ( Ky. 1951 ).

12.— — Devise of Rents or Income.

The unqualified devise of rents and profits of real estate passes the fee-simple title thereof. Shedd's Adm'r v. Gayle, 288 Ky. 466 , 156 S.W.2d 490, 1941 Ky. LEXIS 130 ( Ky. 1941 ). See Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

Under a bequest or gift of the interest or income of a fund without any limitation as to time, the principal will be regarded as bequeathed also. Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

Where the testator bequeathed interests in the income of his estate to certain relatives with the interest passing to his designated nieces and nephews on the deaths of the primary beneficiaries and directives were contained in the will as to management of the estate but no provision was made for the distribution of the corpus, the fee, whether immediate or in remainder, vested as of the date of death of the testator, but the beneficiaries thereof were not entitled to possession until such time as the duties imposed by the terms of the will had been fully executed. Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

Where the testator bequeathed interests in the income of his estate to certain relatives with the interest passing to his designated nieces and nephews on the deaths of the primary beneficiaries but no provision was made for the distribution of the corpus, the testator did not die intestate as to the remainder, for the fee simple vested in the remainder beneficiaries. Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

13.— Deed.

A reservation in deed of passway to person not a party to deed was valid; a right of way in fee may be reserved without words of inheritance. Beinlein v. Johns, 102 Ky. 570 , 44 S.W. 128, 19 Ky. L. Rptr. 1969 , 1898 Ky. LEXIS 16 ( Ky. 1898 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

Deed to wife conveyed only life estate to her, with remainder to husband in fee, subject to being divested by wife leaving a surviving child, where addition to habendum clause came after covenant of general warranty. Atkins v. Baker, 112 Ky. 877 , 66 S.W. 1023, 23 Ky. L. Rptr. 2224 , 1902 Ky. LEXIS 233 ( Ky. 1902 ). See Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

In case of a voluntary deed, the law presumes more in favor of the delivery of the deed than in the case of a deed of bargain and sale. Preston v. Harlow, 276 Ky. 799 , 125 S.W.2d 726, 1939 Ky. LEXIS 594 ( Ky. 1939 ).

No certain form is required in a deed as long as the intent can be ascertained. Preston v. Harlow, 276 Ky. 799 , 125 S.W.2d 726, 1939 Ky. LEXIS 594 ( Ky. 1939 ).

Where granting clause in deed from husband to wife was “as long as she remains my wife, and if not this to be null and void,” but habendum claused was “unto the party of the second part heirs and assigns forever,” the granting clause was not a condition, but a limitation, and the wife’s estate terminated upon her death. Charles v. Shortridge, 277 Ky. 183 , 126 S.W.2d 139, 1939 Ky. LEXIS 636 ( Ky. 1939 ).

Deed by mortgagor to mortgagee, pursuant to contract by which mortgagee was to sell realty for sum sufficient to pay indebtedness, and to pay any excess to mortgagor, and mortgagor had right of possession until sale, had the effect of a mortgage, though deed was absolute on its face. Hatfield v. Corbin Bldg. Supply Co., 279 Ky. 30 , 129 S.W.2d 1025, 1939 Ky. LEXIS 236 ( Ky. 1939 ).

The use of the words “successors and assigns” in the granting clause of a deed to a corporation does not amount to the express grant of a fee. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

Courses and distances must give way to natural objects in a deed, if the natural objects are definitely located. Where the proof shows two (2) or more natural objects that might fill the description, the one (1) will be taken that appears to carry out the intention of the parties and that most nearly conforms to the courses and distances and the quantity of land to be conveyed. Staton v. Lyons, 280 Ky. 531 , 133 S.W.2d 707, 1939 Ky. LEXIS 146 ( Ky. 1939 ).

Where defendant purchased one (1) tract of land from plaintiff and an adjoining tract from group of heirs one (1) of whom was plaintiff, and there was a deficiency of acreage in tract conveyed by plaintiff because of overlapping of tract conveyed by heirs, defendant could recover from plaintiff for deficiency notwithstanding fact that defendant knew of deficiency at time of purchasing heir’s tract. Kentucky Nat'l Park Com. v. Dennison, 281 Ky. 61 , 134 S.W.2d 973, 1939 Ky. LEXIS 9 ( Ky. 1939 ).

Where a wall supports a building which is conveyed, it is presumed that the wall, though not included by the calls of the deed, was intended to be conveyed as part of the building, but the grantee cannot use the wall so as to injure the building of the grantor. Farmers Nat'l Bank v. Moore, 282 Ky. 502 , 139 S.W.2d 420, 1940 Ky. LEXIS 213 ( Ky. 1940 ).

Bankruptcy trustee was permitted to sell a debtor’s interest in property where the interpretation of an entire document showed that a grantor intended to convey a life estate and remainder in certain property, despite fee simple language in the document. Johnson v. Fifth Third Bank, Inc. (In re Carnes), 2005 Bankr. LEXIS 5 (Bankr. E.D. Ky. Jan. 5, 2005).

In a dispute over an antenuptial agreement, a deceased husband waived his right to enforce whatever interest he may have had in a garage or property by his inaction over the course of his marriage; further, that interest, such as it was, ceased to exist upon the execution of a deed that was deemed to be in fee simple under this statute. Bickel v. Haley, 2015 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 23, 2015), review denied, ordered not published, 2015 Ky. LEXIS 1882 (Ky. Sept. 24, 2015).

14.— — Procedure.

Technical words importing a fee and used both in the granting and habendum clauses must yield to the manifest intent as expressed in a clause following the covenant of general warranty limiting grantee’s interest to a life estate. Atkins v. Baker, 112 Ky. 877 , 66 S.W. 1023, 23 Ky. L. Rptr. 2224 , 1902 Ky. LEXIS 233 ( Ky. 1902 ). See Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

If, upon consideration of all parts of a deed, an intention appears to vest a less estate than a fee, that intention will be carried into effect. Harkness v. Meade, 148 Ky. 565 , 147 S.W. 10, 1912 Ky. LEXIS 484 ( Ky. 1912 ). See Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

The law of the state where the land is situated governs the construction of a deed, insofar as it determines the title or interest that one takes thereunder. Middleton's Trustee v. Middleton, 172 Ky. 826 , 189 S.W. 1133, 1916 Ky. LEXIS 270 ( Ky. 1916 ).

If the granting clause and the habendum clause of a deed are irreconcilable, and the other parts of the deed do not make it appear which the grantor intended should control, the granting clause will prevail. Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ).

Any confused or ambiguous language in deed will be construed against grantor and in favor of grantee. Campbell v. Wells, 278 Ky. 209 , 128 S.W.2d 592, 1939 Ky. LEXIS 408 ( Ky. 1939 ).

A deed regular on its face will not be adjudged a mortgage in the absence of clear and satisfactory proof showing that the instrument was intended to be a mortgage. Evidence supported chancellor’s finding that deed was not a mortgage. Schuster v. Caldwell, 280 Ky. 802 , 134 S.W.2d 624, 1939 Ky. LEXIS 205 ( Ky. 1939 ).

The rule that wills must be so construed, if possible, as to avoid imputing to testator an intention to die intestate as to part of his property has no application in the construction of deeds. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

If the intention of the parties is apparent from the examination of a deed “from its four corners” without regard to its technical and formal divisions, it will be given effect even though, in so doing, technical rules of construction will be violated. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

The rule that an habendum creating an estate contradictory or repugnant to that given in the granting clause must be rejected is not a rule of property, but is merely a rule of construction, which will be resorted to only where the court cannot determine which of the clauses was intended to be controlling. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

Ambiguous qualifications imposed upon a grant that would otherwise create a fee simple will not be given effect. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

15.— — Nondefeasible or Absolute Fee.

Deed to wife of property “to have, to hold and to use as she may wish” gave her fee-simple estate, the words “to use” not restricting preceding words. Scott v. Scott, 105 S.W. 896, 32 Ky. L. Rptr. 464 (1907).

Deed conveying property to trustee for benefit of grantor’s children and giving trustee full power to sell and convey the trust property conveyed a fee-simple estate to trustee. Maxwell's Committee v. Centennial Perpetual Bldg. & Loan Ass'n, 131 Ky. 18 , 114 S.W. 324, 1908 Ky. LEXIS 111 ( Ky. 1908 ).

Where deed did not mention children of grantee in caption or granting clause, and habendum clause was “to the use of the party of the second part and her children forever,” it is apparent “children” was used in sense of “heirs,” giving grantee a fee-simple title. Miller v. Campbell, 167 Ky. 252 , 180 S.W. 372, 1915 Ky. LEXIS 837 ( Ky. 1915 ).

Where grantors intended to part with all right and interest they had in estate, a deed conveying “all that certain lot or parcel of land . . . . . and being an undivided one-half (1/2) interest” conveyed the fee, although they thought they owned only an undivided one half (1/2) received from their mother since their father had a life estate by curtesy in the other one half (1/2) which he had previously conveyed and grantors owned the fee in it. Campbell v. Wells, 278 Ky. 209 , 128 S.W.2d 592, 1939 Ky. LEXIS 408 ( Ky. 1939 ).

Where consideration for deed was grantee’s agreement to support grantor for life, but there was no reservation of a right of re-entry for breach, nor any provision for reversion, the support agreement was not a condition subsequent, and grantor’s heirs could not maintain an action for rescission. Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ).

Under deed conveying land to trustees and their successors in perpetual succession in trust for the use of churches “that hold meeting there and for school purposes forever,” the deed reciting a valuable consideration and there being no words implying a condition or limitation, and there being no reversionary clause, the trustees took a fee-simple title. The words “for school purposes” were only descriptive of the nature of the only use the trustees might make of the property, and did not create a limitation or condition on the fee. Therefore, subsequent transfer of title to all school property to state, under act of legislature, did not cause a reverter. Board of Education v. Board of Education, 292 Ky. 261 , 166 S.W.2d 295, 1942 Ky. LEXIS 69 ( Ky. 1942 ).

Where husband, before commencing prison term, deeded his land to his wife, and there was no proof of an express agreement by the wife that she would deed the property back on the husband’s release from prison, the wife did not hold the property in trust for the husband. Moore v. Terry, 293 Ky. 727 , 170 S.W.2d 29, 1943 Ky. LEXIS 695 ( Ky. 1943 ).

16.Life Estate with Power to Consume.

Devisee who had life estate with power to expend and consume did not exercise that power by pledging part of assets as security for his debt, and pledgee acquired only a lien, the title passing to the remainderman, and equity required that creditor first look to devisee’s individual estate before enforcing lien. Morgan v. Meacham, 279 Ky. 526 , 130 S.W.2d 992, 1938 Ky. LEXIS 67 ( Ky. 1938 ).

17.Commissioner’s Deeds.

A commissioner’s deed, made pursuant to a judgment of a court having jurisdiction of subject matter and parties, is as effective to divest prior owner of his every interest in land as his own deed could be. Wiser v. Shacklett, 208 Ky. 317 , 270 S.W. 754, 1925 Ky. LEXIS 276 ( Ky. 1925 ). See East Cairo Ferry Co. v. Brown, 233 Ky. 299 , 25 S.W.2d 730, 1930 Ky. LEXIS 550 ( Ky. 1930 ).

18.Exceptions and Reservations.

An exception keeps the deed from passing the thing excepted, while a reservation reserves something new out of the thing granted. Blackburn v. Piney Oil & Gas Co., 278 Ky. 191 , 128 S.W.2d 192, 1939 Ky. LEXIS 377 ( Ky. 1939 ).

Retention of use of barns, yards, dwellings, orchards and gardens, in deed of mineral rights, was an exception and not a reservation, and excepted only use of surface. Blackburn v. Piney Oil & Gas Co., 278 Ky. 191 , 128 S.W.2d 192, 1939 Ky. LEXIS 377 ( Ky. 1939 ).

Whatever is excepted from a grant remains in the grantor the same as his former title, and may pass by conveyance or descent. Blackburn v. Piney Oil & Gas Co., 278 Ky. 191 , 128 S.W.2d 192, 1939 Ky. LEXIS 377 ( Ky. 1939 ).

19.Easement.

A conveyance to a railroad specifically for a right of way conveys only an easement, and the fact that the deed contains a warranty or designates the conveyed interest as a fee is not controlling. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

A deed must be interpreted as a whole and in the light of the circumstances under which it was made and, in construing an indefinite and ambiguous conveyance of property specifically for a railroad right of way, the court will consider the fact that much railroad right of way is expressly or by operation of law limited to an easement, which is usually sufficient for the use intended. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

Grantor conveyed a narrow strip of land, described by reference to a surveyed line on which railroad tracks were to be laid, “unto the party of the second part and its successors and assigns . . . . . for railroad right of way . . . . . to have and to hold . . . . . unto the party of the second part and its successors and assigns forever, with covenant of general warranty of title.” The deed conveyed an easement for railroad purposes, and not a fee, and the easement reverted to the grantor when the strip was abandoned. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

In a deed conveying a railroad right of way, the words “railroad right of way” cannot be treated as surplusage, since it is presumed that no word or clause in a deed is used without meaning or intent; the words quoted are a declaration of purpose. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

Because railroad owned nothing more than a right-of-way easement, upon abandonment of the easement, it could not be obligated to maintain fencing along the easement and its attempt to convey by quit-claim deed a certain stretch of the right of way to outside parties was ineffective; present owners of the servient estates hold the underlying strips of land discharged with the easement; owners generally holding to the center of the strip of land comprising the easement to be determined on remand. Illinois Cent. R.R. v. Roberts, 928 S.W.2d 822, 1996 Ky. App. LEXIS 139 (Ky. Ct. App. 1996).

20.Merging of Interests.

Where lessors had inherited an undivided interest, and had purchased an additional interest, the lease embraced both interests. Preston's Heirs v. Preston, 279 Ky. 401 , 130 S.W.2d 797, 1939 Ky. LEXIS 286 ( Ky. 1939 ).

21.Vesting Possession.

Where trustee in bankruptcy is not in actual possession of land, and third person asserts good faith adverse claim, the issues and adverse claims should be tried in a plenary action and not in proceeding in bankruptcy. In re Mimms & Parham, 193 F. 276, 1912 U.S. Dist. LEXIS 1784 (D. Ky. 1912 ).

Party maintaining action for forcible entry must have been in actual possession when entry was made; neither right of possession nor constructive possession will avail. Cuyler v. Estis, 64 S.W. 673, 23 Ky. L. Rptr. 1063 (1901).

Delivery of deed showing intent to vest fee-simple title vested possession of land in grantee, and grantee could not be ousted from this constructive possession except by taking of actual possession by someone. Travis v. Bruce, 172 Ky. 390 , 189 S.W. 939, 1916 Ky. LEXIS 264 ( Ky. 1916 ).

Constructive possession is in title holder to land, and, when title of an owner is conveyed and he remains in possession thereafter, he presumably holds under and not against his grantee, unless and until he brings home to grantee the fact he is holding and claiming adversely. Wiser v. Shacklett, 208 Ky. 317 , 270 S.W. 754, 1925 Ky. LEXIS 276 ( Ky. 1925 ).

Grantor of land on delivery of deed parted with his possession and vested it in grantee. Smith v. Feltner, 256 Ky. 325 , 76 S.W.2d 25, 1934 Ky. LEXIS 408 ( Ky. 1934 ).

A vendee in possession under a general warranty deed must sue at law for any breach of warranty and may not have equitable relief of cancellation in absence of extraordinary circumstances, but a vendee not in possession, and who cannot lawfully be put in possession because vendor had no title, may sue in equity for rescission. Creech v. Jenkins, 276 Ky. 163 , 123 S.W.2d 267, 1938 Ky. LEXIS 540 ( Ky. 1938 ).

Where a single deed was so drafted as to constitute a conveyance from the grantors to the grantee, and from the grantee back to the grantors as joint tenants, the intention to make a valid delivery to the grantee was clear, and the deed was valid to create the joint tenancy. Preston v. Harlow, 276 Ky. 799 , 125 S.W.2d 726, 1939 Ky. LEXIS 594 ( Ky. 1939 ).

There can be no such thing as an unvested title to real estate. Hardin v. Sherley, 292 Ky. 275 , 166 S.W.2d 425, 1942 Ky. LEXIS 77 ( Ky. 1942 ).

Under this section possession to land is transferred by deliverance of deed. Gatliff Coal Co. v. Lawson, 247 S.W.2d 375, 1952 Ky. LEXIS 693 ( Ky. 1952 ).

22.Forcible Entry and Detainer.

As a rule forcible entry and detainer can be maintained without regard to the question of title, right of entry, or right of possession. Cuyler v. Estis, 64 S.W. 673, 23 Ky. L. Rptr. 1063 (1901).

Cited:

Boyd v. Gray, 162 F. Supp. 307, 1957 U.S. Dist. LEXIS 2608 (W.D. Ky. 1957 ), vacated, 261 F.2d 914, 1958 U.S. App. LEXIS 5475 (1958).

Research References and Practice Aids

Kentucky Law Journal.

Gilmer, Formalities and Requisites of a Deed in Kentucky, 43 Ky. L.J. 481 (1955).

Matthews, Remnant Gifts Over in Kentucky, 44 Ky. L.J. 397 (1956).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

Northern Kentucky Law Review.

Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 51 (1979).

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Abraham Lincoln Issue: Note: Abraham Lincoln and the Evolution of a Fee Simple Deed, 36 N. Ky. L. Rev. 333 (2009).

381.070. Estates tail converted into estates in fee — Limitation on.

All estates heretofore or hereafter created, which, in former times, would have been deemed estates entailed, shall henceforth be held to be estates in fee simple; and every limitation on such an estate shall be held valid, if it would be valid when limited upon an estate in fee simple.

History. 2343.

NOTES TO DECISIONS

1.In General.

Will did not create an estate tail, which would be converted into a fee simple by statute, as none of the technical words necessary to create an estate tail were used. Simpson v. Adams, 127 Ky. 790 , 106 S.W. 819, 32 Ky. L. Rptr. 617 , 1908 Ky. LEXIS 21 ( Ky. 1908 ). See Harper v. Patterson, 147 Ky. 356 , 144 S.W. 42, 1912 Ky. LEXIS 243 ( Ky. 1912 ); Combs v. Fields, 211 Ky. 842 , 278 S.W. 137, 1925 Ky. LEXIS 979 ( Ky. 1925 ); Darch v. Darch's Ex'r, 232 Ky. 666 , 24 S.W.2d 558, 1930 Ky. LEXIS 60 ( Ky. 1930 ); Kerr v. Watkins, 234 Ky. 104 , 27 S.W.2d 679, 1930 Ky. LEXIS 130 ( Ky. 1930 ).

2.Application.

The only power or authority the court has is to look at the words of the instrument under consideration and determine what significance the maker therein intended to give to the words “bodily heirs” or similar terms as used therein. Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

3.Construction of Words — Rules Governing.

As the existence of estates tail has been prohibited, in the construction of deeds it will not be considered that a person intended to create such an estate unless the language forbids any other construction. Louisville Trust Co. v. Erdman, 58 S.W. 814, 22 Ky. L. Rptr. 729 , 1900 Ky. LEXIS 704 ( Ky. 1900 ). See Combs v. Eversole, 64 S.W. 524, 23 Ky. L. Rptr. 932 , 1901 Ky. LEXIS 455 (Ky. Ct. App. 1901); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

Where, upon consideration of instrument as a whole, the court is in doubt as to what estate was intended to be given, a construction will be adopted which passes the fee. Moore's Adm'r v. Sleet, 113 Ky. 60 , 113 Ky. 60 0, 68 S.W. 642, 24 Ky. L. Rptr. 426 , 1902 Ky. LEXIS 10 ( Ky. 1902 ). See Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ); Dotson v. Kentland Coal & Coke Co., 150 Ky. 60, 150 S.W. 6, 1912 Ky. LEXIS 838 ( Ky. 1912 ); Edwards v. Cave, 150 Ky. 272 , 150 S.W. 369, 1912 Ky. LEXIS 893 ( Ky. 1912 ); Hayes v. Hayes, 154 Ky. 729 , 159 S.W. 544, 1913 Ky. LEXIS 148 ( Ky. 1913 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ); Cox v. Fink, 200 Ky. 219 , 254 S.W. 757, 1923 Ky. LEXIS 57 ( Ky. 1923 ); Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807 , 266 S.W. 670, 1924 Ky. LEXIS 246 ( Ky. 1924 ); Simons v. Bowers, 258 Ky. 755 , 81 S.W.2d 604, 1935 Ky. LEXIS 246 ( Ky. 1935 ).

Where conveyance is to a person and his “children,” it is uniformly held that such person does not receive the fee, unless from the entire instrument it appears that the grantor used the word “children” in the technical sense of the word “heirs.” McFarland v. Hatchett, 118 Ky. 423 , 80 S.W. 1185, 26 Ky. L. Rptr. 276 , 1904 Ky. LEXIS 55 ( Ky. 1904 ). See Hall v. Wright, 121 Ky. 16 , 87 S.W. 1129, 27 Ky. L. Rptr. 1185 , 1905 Ky. LEXIS 172 ( Ky. 1905 ); Edwards v. Cave, 150 Ky. 272 , 150 S.W. 369, 1912 Ky. LEXIS 893 ( Ky. 1912 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ).

The rule that the words “heirs of the body” or “bodily heirs” or similar words create an estate tail, convertible by this section into a fee simple, does not prevail where it appears from other language of the instrument that the words were used as words of purchase and not of limitation. Adair v. Adair's Trustee, 99 S.W. 925, 30 Ky. L. Rptr. 857 (1907).

Where there is a devise by a husband to his wife and her children, the children take the fee and the parent the life estate. Naville v. American Mach. Co., 145 Ky. 344 , 140 S.W. 559, 1911 Ky. LEXIS 861 ( Ky. 1911 ). See Hayes v. Hayes, 154 Ky. 729 , 159 S.W. 544, 1913 Ky. LEXIS 148 ( Ky. 1913 ).

In a will the term “issue” may be employed either as a word of purchase or of limitation, according to which sense will best effectuate the testator’s intention; it is usually construed as a word of limitation, unless there be controlling words clearly showing that the contrary meaning was intended by its use. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

“Posterity” embraces descendants to the remotest generation; “issue” is as comprehensive as “posterity” and embraces as does the latter not only children but descendants to the remotest generations. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

The controlling rule of construction recognized by the courts of Kentucky is that the intent is to be ultimately determined upon a consideration of the whole deed and with the endeavor to give every part of it meaning and effect; the rules that a conveyance in fee is not overthrown by a subsequent proviso, and that a deed is to be construed strongly against the grantor, are merely aids to the application of the controlling rule. Woodward v. Thissell, 218 F. 810, 1914 U.S. App. LEXIS 1611 (6th Cir. Ky. 1914 ).

An examination of the cases will show that in some of them the Court of Appeals construed the term “bodily heirs” or others of similar import to be words of limitation and not words of purchase, since there was nothing in the instrument to indicate a significance to be given them other than their primary effect as fixed by the law, thus passing a fee-simple estate to the grantee or devisee, while in other cases it was held that, because of expressions found in some parts of the instrument and the particular manner and connection with which the terms were used, the maker intended to use them in the sense of “children,” and the court thereby construed them as words of purchase, giving to the grantee or devisee either a life estate or a joint interest with those included as “children,” dependent upon what the court found was the intention of the grantor or testator. Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

Devise to son and his bodily heirs, and should he die without bodily heirs then to be divided among his brothers or sisters, gave son only a defeasible fee. Littell v. Littell, 232 Ky. 251 , 22 S.W.2d 612, 1929 Ky. LEXIS 434 ( Ky. 1929 ).

Extrinsic evidence is never admissible to enlarge or diminish estate devised, or to vary legal effect of language of will. Simons v. Bowers, 258 Ky. 755 , 81 S.W.2d 604, 1935 Ky. LEXIS 246 ( Ky. 1935 ).

Where a conveyance is to a person “and his children,” the person takes only a life estate with remainder to the children, unless it appears that the grantor used “children” in the sense of “heirs.” Where a conveyance is to a person “and the heirs of the body” or “and his bodily heirs,” the person takes a fee simple, unless it appears that the words “heirs” was used in the sense of “children,” in which case the person will take only a life estate. Combs v. Combs, 294 Ky. 89 , 171 S.W.2d 13, 1943 Ky. LEXIS 391 ( Ky. 1943 ).

The use of the words “these requests are not to be interpreted as entailing the estate” was to avoid any implication of inconvenience or trouble or involvement of the estate and not the legal aspects of “estates tail.” Bosworth v. Kilbourn, 304 Ky. 628 , 201 S.W.2d 904, 1947 Ky. LEXIS 694 ( Ky. 1947 ).

This section will control except where it is apparent from the entire deed or will that the intention of the testator was to create a life estate in the first taker with remainder to his or her children, and then only when such intention is so clear as to more than overbalance the ordinary meaning of the words “heirs of the body” or “bodily heirs.” Sallee v. Warner, 306 Ky. 846 , 209 S.W.2d 491, 1948 Ky. LEXIS 663 ( Ky. 1948 ).

As the existence of estates tail had been prohibited, in the construction of deeds it could not be considered that a person intended to create such an estate unless the language forbade any other construction. Brann v. Elzey, 83 Ky. 440 , 7 Ky. L. Rptr. 539 , 1885 Ky. LEXIS 91 (Ky. Ct. App. 1885).

“Children” was not, like “heirs,” or, as construed under our law, “heirs of the body,” a word of limitation, importing by its own force a fee-simple estate. Williams v. Duncan, 92 Ky. 125 , 17 S.W. 330, 13 Ky. L. Rptr. 389 , 1891 Ky. LEXIS 134 ( Ky. 1891 ).

4.Fee-Simple Estate — Words Creating.

In view of uncertainty in arriving at intention of maker of deed or will in use of words “heirs of his body,” “bodily heirs,” or the like, it is safer to conclude the conveyance was designed to pass the fee and not a life estate or joint interest; this construction should prevail in absence of language indicating a purpose to invest grantee with only a life estate or joint interest. Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ). See Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807 , 266 S.W. 670, 1924 Ky. LEXIS 246 ( Ky. 1924 ); Kinnaird v. Farmers' & Merchants' Bank, 249 Ky. 661 , 61 S.W.2d 291, 1933 Ky. LEXIS 577 ( Ky. 1933 ).

Devise to testator’s sons, “to them and their heirs and their children’s heirs,” created a fee simple. Fox v. Fox, 144 Ky. 632 , 139 S.W. 833, 1911 Ky. LEXIS 689 ( Ky. 1911 ).

Will providing devisee might not sell but only have use and income of property, and that it descend to children’s children, created a fee simple. Parrish v. Burkley, 152 Ky. 730 , 154 S.W. 11, 1913 Ky. LEXIS 729 ( Ky. 1913 ).

Devise to daughter “during her natural life” and then to be held in trust “for her children now living and their lawful issue” created a fee simple. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

Devise to trustees for use of testator’s daughters “and their posterity forever” created a fee simple. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

The language “I give to my daughter . . . . . to her and the heirs of her body” gave daughter a fee-simple estate under this section not limited by the subsequent clause “with the privilege of willing it to any of my heirs she may see proper.” Jett v. Cheek, 201 Ky. 584 , 257 S.W. 1026, 1924 Ky. LEXIS 598 ( Ky. 1924 ).

Devise to granddaughter “and her children, the heirs of her body” passed a fee simple, as other portion of will showed “children” was used in sense of heirs. Martin v. Martin, 203 Ky. 712 , 262 S.W. 1091, 1924 Ky. LEXIS 979 ( Ky. 1924 ).

The word “heirs” in a devise to widow and her heirs is a word of limitation vesting the fee unless a contrary intent is manifest from the language of the instrument or deductible from the circumstances or situations of the parties. Bell v. Holdbrook, 299 Ky. 843 , 187 S.W.2d 433, 1945 Ky. LEXIS 789 ( Ky. 1945 ).

The words “I will and bequeath to my wife and her heirs” gave widow a fee-simple title. Bell v. Holdbrook, 299 Ky. 843 , 187 S.W.2d 433, 1945 Ky. LEXIS 789 ( Ky. 1945 ).

Devise or conveyance to person and the “heirs of his body,” or similar words, which would at common law have created an estate tail, was by law converted into a fee-simple estate. Deboe v. Lowen, 47 Ky. 616 , 1848 Ky. LEXIS 148 ( Ky. 1848 ). See Prescott v. Prescott's Heirs, 49 Ky. 56 , 1849 Ky. LEXIS 18 ( Ky. 1849 ); Lachland's Heirs v. Downing's Ex'rs, 50 Ky. 32 , 1850 Ky. LEXIS 9 ( Ky. 1850 ); Johnson v. Johnson, 59 Ky. 331 , 1859 Ky. LEXIS 109 ( Ky. 1859 ); Moran v. Dillehay, 71 Ky. 434 , 1871 Ky. LEXIS 78 ( Ky. 1871 ); Breckinridge v. Denny, 71 Ky. 616 (1872); Bradley v. Skilman, 3 Ky. L. Rptr. 734 ; Williams v. Duncan, 92 Ky. 125 , 17 S.W. 330, 13 Ky. L. Rptr. 389 , 1891 Ky. LEXIS 134 ( Ky. 1891 ); Pruitt v. Holland, 92 Ky. 641 , 18 S.W. 852, 13 Ky. L. Rptr. 867 , 1892 Ky. LEXIS 36 ( Ky. 1892 ).

Devise to testator’s son, with provision that if he should die without issue the property should go to testator’s unmarried daughters, “but if he should die with heirs” it was to go to them, created an estate tail which was converted by law into an estate in fee. Deboe v. Lowen, 47 Ky. 616 , 1848 Ky. LEXIS 148 ( Ky. 1848 ).

Devise to trustees for use of testator’s daughters “and their posterity forever” created a fee simple. Breckinridge v. Denny & Faulkner, 71 Ky. 523 , 1871 Ky. LEXIS 93 ( Ky. 1871 ).

5.Estates Tail.
6.— Conversion to Fee Simple.

Devise or conveyance to person and the “heirs of his body,” or similar words, which would at common law have created an estate tail, was by this section converted into a fee-simple estate. McGennis v. McGennis, 29 S.W. 333, 16 Ky. L. Rptr. 598 (1895). See Sanders v. Wade, 30 S.W. 656, 17 Ky. L. Rptr. 205 (1895); Hood v. Dawson, 98 Ky. 285 , 33 S.W. 75, 17 Ky. L. Rptr. 880 , 1895 Ky. LEXIS 60 ( Ky. 1895 ); Jones v. Mason, 53 S.W. 5, 21 Ky. L. Rptr. 842 , 1899 Ky. LEXIS 335 (Ky. Ct. App. 1899); Dulaney v. Dulaney, 79 S.W. 195, 25 Ky. L. Rptr. 1659 (1904); Marshall v. Walker, 80 S.W. 1132, 26 Ky. L. Rptr. 199 (1904); Edwards v. Walesby, 98 S.W. 306, 30 Ky. L. Rptr. 251 , 1906 Ky. LEXIS 31 5 (Ky. Ct. App. 1906); Hall v. Moore, 105 S.W. 414, 32 Ky. L. Rptr. 56 (1907); Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ); Manteuffel v. Grieb, 119 S.W. 739 ( Ky. 1909 ); Taggart's Ex'r v. Taggart, 121 S.W. 693 ( Ky. 1909 ); Lawrence v. Carrithers, 140 Ky. 6 , 130 S.W. 786, 1910 Ky. LEXIS 147 ( Ky. 1910 ); Pelphrey v. Williams, 142 Ky. 485 , 134 S.W. 884, 1911 Ky. LEXIS 227 ( Ky. 1911 ); Dotson v. Kentland Coal & Coke Co., 150 Ky. 6 0 , 150 S.W. 6, 1912 Ky. LEXIS 838 ( Ky. 1912 ); Parrish v. Burkley, 152 Ky. 730 , 154 S.W. 11, 1913 Ky. LEXIS 729 ( Ky. 1913 ); Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) (Ky. 1913); Wright v. Curry, Tunis & Norwood, 163 Ky. 683 , 174 S.W. 1, 1915 Ky. LEXIS 261 ( Ky. 1915 ); Moorehead v. Gibson, 168 Ky. 102 , 181 S.W. 977, 1916 Ky. LEXIS 521 ( Ky. 1916 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Kirby v. Hulette, 174 Ky. 257 , 192 S.W. 63, 1917 Ky. LEXIS 187 ( Ky. 1917 ); Smith v. Smith, 180 Ky. 174 , 202 S.W. 314, 1918 Ky. LEXIS 31 ( Ky. 1918 ); Scearce v. King, 186 Ky. 507 , 217 S.W. 366, 1920 Ky. LEXIS 55 ( Ky. 1920 ); Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ); Massingale v. Parker, 191 Ky. 515 , 230 S.W. 932, 1921 Ky. LEXIS 340 ( Ky. 1921 ); Hughes v. Collins, 197 Ky. 589 , 247 S.W. 737, 1923 Ky. LEXIS 684 ( Ky. 1923 ); Cox v. Fink, 200 Ky. 219 , 254 S.W. 757, 1923 Ky. LEXIS 57 ( Ky. 1923 ); Jett v. Cheek, 201 Ky. 584 , 257 S.W. 1026, 1924 Ky. LEXIS 598 ( Ky. 1924 ); Wilson v. Morrill, 205 Ky. 257 , 265 S.W. 774, 1924 Ky. LEXIS 90 ( Ky. 1924 ); Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807 , 266 S.W. 670, 1924 Ky. LEXIS 246 (Ky. 1924); Barrett v. Ray, 206 Ky. 834 , 268 S.W. 534, 1925 Ky. LEXIS 1036 ( Ky. 1925 ); Brill v. Lynn, 207 Ky. 757 , 270 S.W. 20, 1925 Ky. LEXIS 177 ( Ky. 1925 ); Lilly v. Cox, 225 Ky. 355 , 9 S.W.2d 49, 1928 Ky. LEXIS 790 ( Ky. 1928 ); Kinnaird v. Farmers' & Merchants' Bank, 249 Ky. 661 , 61 S.W.2d 291, 1933 Ky. LEXIS 57 7 ( Ky. 1933 ); Simons v. Bowers, 258 Ky. 755 , 81 S.W.2d 604, 1935 Ky. LEXIS 246 ( Ky. 1935 ).

Where, except for operation of law, vesting of fee would be suspended indefinitely, the limitation was void and created a fee in last person who, under the law, was authorized to take it. Miller v. Miller, 151 Ky. 563 , 152 S.W. 542, 1913 Ky. LEXIS 513 ( Ky. 1913 ).

Devise to testator’s son, with provision that if he should die without issue the property should go to testator’s unmarried daughters, “but if he should die with heirs” it was to go to them, created an estate tail which was converted by law into an estate in fee. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

An estate tail which is converted by law into a fee simple becomes an absolute fee simple, and not a defeasible fee or executory devise. Scearce v. King, 186 Ky. 507 , 217 S.W. 366, 1920 Ky. LEXIS 55 ( Ky. 1920 ).

Where property was devised to A for life, then to B “and his children forever” without the right to dispose of it during his life or the life of his children and in the event B “should die childless” then to another, the interest devised to B was an unconditional fee-simple title by operation of this section and not a defeasible fee or a life estate. Wilson v. Morrill, 205 Ky. 257 , 265 S.W. 774, 1924 Ky. LEXIS 90 ( Ky. 1924 ).

Deed which conveyed land to husband and wife and the heirs of the wife “belonging to” the husband would have created an estate tail at common law, but under this section the estate created was a fee simple in the husband and wife, and their children had no interest under this deed. Combs v. Slone, 306 Ky. 419 , 208 S.W.2d 304, 1948 Ky. LEXIS 575 ( Ky. 1948 ).

Where granting and habendum clauses were in the usual language “heirs and assigns” which are words of limitation, the conveyance was converted into a fee-simple estate under this section, although, in the paragraph reciting the parties, the words “her heirs after her death” were used which might have been interpreted to convey a remainder estate to her children or descendants. Kentland Coal & Coke Co. v. Blankenship, 300 S.W.2d 570, 1957 Ky. LEXIS 463 ( Ky. 1957 ).

Where deed recited a conveyance to M “and her children” and later in the instrument reference was made to M “and her bodily heirs,” such terminology would have created what was once designated an estate tail which is converted into a fee simple. Franklin Real Estate Co. v. Music, 392 S.W.2d 66, 1965 Ky. LEXIS 267 ( Ky. 1965 ).

An estate tail which was converted by law into a fee simple became an absolute fee simple, and not a defeasible fee or executory devise. Breckinridge v. Denny, 71 Ky. 616 (1872).

7.Heirs Defined.

It is the settled rule in this state that the words “bodily heirs” and “heirs of the body” and other similar expressions are appropriate words of limitation and when used in a deed will be given their ordinary legal meaning, unless there be something in the instrument itself which shows that they were used in a contrary sense as “children” or words of purchase. Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ). See Dotson v. Kentland Coal & Coke Co., 150 Ky. 60 , 150 S.W. 6, 1912 Ky. LEXIS 838 ( Ky. 1912 ); Moorehead v. Gibson, 168 Ky. 102 , 181 S.W. 977, 1916 Ky. LEXIS 521 ( Ky. 1916 ); Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

The terms “bodily heirs,” “heirs of the body,” “heirs lawfully begotten of the body,” and other similar ones, as applying to a grantee in a deed or a devise in a will, at common law created an entailed estate giving to the grantee or devisee a life estate and a similar estate to his lineal descendants, and so on in a successive line as long as there were such lineal descendants, but in 1796 the legislature of Kentucky enacted what became this section which converted such estates into estates in fee simple, unless from the language found in the whole instrument, deed or will, it appeared with reasonable clearness that it was the intention of the creator of the estate that a different construction prevail. Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

8.Children Defined.

“Children” is generally held to be a word of purchase, and to embrace immediate descendants only. Bowe v. Richmond, 109 S.W. 359, 33 Ky. L. Rptr. 173 (1908).

The word “children” may be construed to mean and include grandchildren. Whittaker v. Fitzpatrick, 268 Ky. 120 , 103 S.W.2d 670, 1937 Ky. LEXIS 409 ( Ky. 1937 ).

9.Bodily Heirs.

Conveyance to woman and “her bodily heirs” created an estate tail which was by law converted into a fee simple, since nothing in deed indicated the words “bodily heirs” were used in the sense of “children” as words of purchase. Jones v. Mason, 53 S.W. 5, 21 Ky. L. Rptr. 842 , 1899 Ky. LEXIS 335 (Ky. Ct. App. 1899).

The words “offsprings of her body” used in the sense of bodily heirs or issue created a fee simple. Massingale v. Parker, 191 Ky. 515 , 230 S.W. 932, 1921 Ky. LEXIS 340 ( Ky. 1921 ).

Conveyance to grantee and “bodily heirs or issue of her body” were intended as words of limitation and created an estate tail at common law, converted by this section into a fee but subject to imposed valid qualifying limitations the same as a common law created fee. Hughes v. Collins, 197 Ky. 589 , 247 S.W. 737, 1923 Ky. LEXIS 684 ( Ky. 1923 ).

A conveyance to “Cora White and her bodily heirs” created, under this section, a fee in the first taker and not a life estate with remainder to her children. McGinnis v. Hood, 289 Ky. 669 , 159 S.W.2d 1018, 1942 Ky. LEXIS 619 ( Ky. 1942 ).

Where deed or devise fails to show by other qualifying or designating language that the words “bodily heirs” were used in sense of “children” or “grandchildren,” they will not be construed as being used in that sense or as words of purchase, but rather as words of limitation only, where different intent is not disclosed in instrument. McGinnis v. Hood, 289 Ky. 669 , 159 S.W.2d 1018, 1942 Ky. LEXIS 619 ( Ky. 1942 ).

Where deed to husband and wife provided that in the event of the death of the husband before that of the wife, the property conveyed should revert to and become the property of the wife and “her bodily heirs” and the deed contained no words which could have the effect of giving more than the technical meaning to “her bodily heirs,” the words were not words of purchase but of limitation and the husband and wife received a fee-simple estate. Nunn v. Wright, 303 Ky. 288 , 197 S.W.2d 439, 1946 Ky. LEXIS 839 ( Ky. 1946 ).

Deed from father to daughter, conveying land to “the grantee and her bodily heirs, and assigns, forever,” was governed by this section, and so daughter took a fee-simple estate, as against contention that she had only a life estate with remainder to children, or a joint estate with children. Sallee v. Warner, 306 Ky. 846 , 209 S.W.2d 491, 1948 Ky. LEXIS 663 ( Ky. 1948 ).

Deed conveyed a fee where grantors conveyed to grantee and her bodily heirs as party of second part but in the habendum wrote “unto the party of the second part, their heirs and assigns forever.” Gearheart v. Little, 313 Ky. 116 , 230 S.W.2d 472, 1950 Ky. LEXIS 826 ( Ky. 1950 ).

10.Life Estates.

A deed was construed as falling under KRS 381.090 and not under this section and grantees took only a life estate. Jones v. Carlin, 96 S.W. 885, 29 Ky. L. Rptr. 1077 (1906). See Crawley v. Crawley, 231 Ky. 831 , 22 S.W.2d 268, 1929 Ky. LEXIS 366 ( Ky. 1929 ).

Deed to “Caroline Bowe and her children by A. J. Bowe” conveyed to the mother a life estate, with remainder to her children by A. J. Bowe, including children born after execution of deed. Bowe v. Richmond, 109 S.W. 359, 33 Ky. L. Rptr. 173 (1908).

Deed conveying land to grantee “to have and hold the same her lifetime, then to her bodily heirs,” conveyed a life estate to grantee and a fee simple to her bodily heirs. Eggner v. Hovekamp, 134 Ky. 224 , 119 S.W. 818, 1909 Ky. LEXIS 373 ( Ky. 1909 ). See Crawley v. Crawley, 231 Ky. 831 , 22 S.W.2d 268, 1929 Ky. LEXIS 366 ( Ky. 1929 ).

Devise to son and his bodily heirs after his death, after death of testator’s wife, gave only a life estate to the son, subject to life estate of the widow of testator, with remainder in fee simple to bodily heirs of son at his death. Reeves v. Tomlin, 213 Ky. 547 , 281 S.W. 522, 1926 Ky. LEXIS 560 ( Ky. 1926 ).

Conveyance of man and wife to their daughter and “the heirs of her body begotten, their grandchildren,” conveyed life estate to daughter with remainder in fee simple to her children. Ely v. United States Coal & Coke Co., 243 Ky. 725 , 49 S.W.2d 1021, 1932 Ky. LEXIS 191 ( Ky. 1932 ).

In certain cases where the circumstances authorize it, parol proof may be offered to show that testator employed “bodily heirs” or similar phrases in the sense of “children,” so as to convert limiting words into words of purchase. Simons v. Bowers, 258 Ky. 755 , 81 S.W.2d 604, 1935 Ky. LEXIS 246 ( Ky. 1935 ).

Although devise was to son and “the heirs of his body,” a consideration of entire will gave son only a life estate with remainder to his living children and children of deceased daughter. Whittaker v. Fitzpatrick, 268 Ky. 120 , 103 S.W.2d 670, 1937 Ky. LEXIS 409 ( Ky. 1937 ).

Where will gives devisee an estate for life, the devisee takes a life estate by will and, at the latter’s death, to his issue if any. Mansur v. Security Trust Co., 279 Ky. 453 , 130 S.W.2d 768, 1939 Ky. LEXIS 275 ( Ky. 1939 ).

Where owner of property prepared in his own handwriting a deed purporting to convey property to his wife and his heirs, the latter being named as grantees by the phrase “Matilda Combs and J. W. Combs’ heirs, of the second part,” and the granting, habendum and warranty clauses conveyed the land to “the party of the second part and to his heirs and assigns forever,” the wife took only a life estate, with a remainder to the children of the grantor. Combs v. Combs, 294 Ky. 89 , 171 S.W.2d 13, 1943 Ky. LEXIS 391 ( Ky. 1943 ).

There was no conversion of an estate tail to a fee simple where will bequeathed income from trust to daughter’s children and such of descendants per stirpes as may be born within her lifetime, since it was obvious that the words “and such of their descendants per stirpes as may be born within her lifetime” were limited to (1) stirpes and (2) to those born during the daughter’s lifetime so daughter took a life estate with the remainder in her three (3) daughters. Collis v. Citizens Fidelity Bank & Trust Co., 314 Ky. 15 , 234 S.W.2d 164, 1950 Ky. LEXIS 1011 ( Ky. 1950 ).

Devise to named children “and their children” then to testatrix’s brothers and sisters “and their children” was a devise of life estate to brothers and sisters with remainders in fee and was not converted to a fee simple in the brothers and sisters. Johnson v. Houchins, 330 S.W.2d 114, 1959 Ky. LEXIS 185 ( Ky. 1959 ).

Since deeds will be interpreted so as to make all of their provisions operative if the terms are susceptible of such an interpretation and one (1) clause in a deed will not be given more weight than another, where granting clause was to grantee, his bodily heirs and assigns but habendum clause read to have and to hold the same to grantee, his bodily heirs and assigns forever and the description read to grantee to sue as long as he live and at his natural death then go to his bodily heirs, grantee took a life estate with remainder to his children; and thus KRS 381.090 should apply rather than this section. Bartley v. Potter, 334 S.W.2d 353, 1960 Ky. LEXIS 229 ( Ky. 1960 ).

Codicil that provided “In stating Robert Stanley Harmon (the grandchild referred to in the will) or Robert Owens Moss’ (son of testator) children are to heir his property heired from me does not mean said properties are entitled to said heirs” did not have the effect of revoking portions of will creating life estates in children and converting them into fee-simple estates. Harmon v. Moss, 342 S.W.2d 528, 1961 Ky. LEXIS 387 ( Ky. 1961 ).

Cited:

Wallace v. Haven, 278 Ky. 613 , 129 S.W.2d 153, 1939 Ky. LEXIS 478 ( Ky. 1939 ).

Research References and Practice Aids

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Henard, Distribution of Property Devised or Conveyed to One and His Children, 28 Ky. L.J. 331 (1940).

Roberts, Kentucky Decisions on Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

Northern Kentucky Law Review.

Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 51 (1979).

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.080. Construction of “without heirs,” “without children” or “issue” in deed or will.

Unless a different purpose is plainly expressed in the instrument, every limitation in a deed or will contingent upon a person dying “without heirs,” or “without children” or “issue,” or other words of like import, shall be construed a limitation to take effect when such person dies, unless the object on which the contingency is made to depend is then living, or, if a child of his body, such child is born within ten (10) months next thereafter.

History. 2344.

NOTES TO DECISIONS

1.Construction.

This section means that unless a different purpose is expressed, every limitation in a deed or will contingent upon a person dying without issue shall take effect when this person shall die, unless the issue (the object on which the contingency is made to depend) is then living, or if a child of his body be born within ten (10) months thereafter. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ).

This section simply abolishes the common-law rule by which the words referred to were construed to refer to an indefinite failure of issue, and makes the estate to depend only on the failure of issue at the death of the person named; it was so construed by the Court of Appeals at the time of the enactment. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ).

Courts may invoke the transposition of employed words and phrases so as to bring them in accord with the evident intention of those employing them and to supply glaringly omitted words so as to make the meaning clear. Kentucky Real Estate Board v. Smith, 272 Ky. 313 , 114 S.W.2d 107, 1938 Ky. LEXIS 117 ( Ky. 1938 ).

The common rule that, where testator first devises a fee-simple title, he cannot later in the same will limit the fee by other dispositions upon the theory that, having disposed of the entire estate by an absolute devise, nothing remained in the testator upon which a limitation could be placed, has been departed from because it conflicts with the cardinal rule of construction of wills, that the court will look to the four (4) corners of the will to determine the intent of the testator and will give due weight to each provision. Johnson v. Foley, 302 Ky. 848 , 196 S.W.2d 733, 1946 Ky. LEXIS 772 ( Ky. 1946 ).

2.Application.

Where the instrument disposes of personal property, the words “dying without issue,” and others of similar import, refer to a death of the first taker before that of the one from whom he obtains the property, unless a different intention appears from the entire language of the instrument. Whitlow's Adm'r v. Saunders' Adm'r, 237 Ky. 842 , 36 S.W.2d 659, 1931 Ky. LEXIS 879 ( Ky. 1931 ).

Where the intention of the testator cannot be ascertained from the will, this section is not applicable and it is presumed that the phrase “dying without issue” where personal property is involved refers to such death before the death of the testator; but when real estate is involved, it is presumed that the phrase means death at any time without issue and where the real and personal property are not separated, but are devised as a whole, both classes will be governed by the real estate rule. Prewitt v. Prewitt's Ex'rs, 303 Ky. 772 , 199 S.W.2d 435, 1947 Ky. LEXIS 550 ( Ky. 1947 ).

3.Without Children — Meaning.

The rule of construction is technical, and is to be applied only when there is no period to which the words “dying without children” can be reasonably referred, and in the absence of something in the will evidencing a contrary intent; rules of construction are but means of ascertaining the testator’s intention, and when this is apparent from the whole will, it must be enforced. Duncan v. Duncan, 175 Ky. 253 , 194 S.W. 328, 1917 Ky. LEXIS 318 ( Ky. 1917 ).

The words “should they die before her death” have the same legal effect as “should she die without children.” Wallen v. Nicely, 222 Ky. 825 , 2 S.W.2d 648, 1928 Ky. LEXIS 252 ( Ky. 1928 ).

Where will devised property to testator’s son and daughters as tenants in common, with provision that upon death of any of devisees “without issue” his interest should pass to survivors, the phrase “without issue” meant without surviving issue. Sipes v. Boehmer, 291 Ky. 824 , 165 S.W.2d 807, 1942 Ky. LEXIS 326 ( Ky. 1942 ).

4.Limitations.

Where the devise is to a class, and the period of division is postponed, even where the devisees are not infants, the limitation as to dying without issue is confined to a death without issue before the period of division fixed by the will. Deering v. Skidmore, 282 Ky. 292 , 138 S.W.2d 471, 1940 Ky. LEXIS 162 ( Ky. 1940 ).

5.— Effect.

Will providing for disposition of property should devisee “die childless” or “die without issue” refers to devisee’s death at any time and not to his death before that of testator. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ). See Linton v. Hail, 201 Ky. 698 , 258 S.W. 111, 1924 Ky. LEXIS 624 ( Ky. 1924 ); Kimbrell v. Parmer, 202 Ky. 686 , 261 S.W. 11, 1924 Ky. LEXIS 777 ( Ky. 1924 ); Atkinson v. Kern, 210 Ky. 824 , 276 S.W. 977, 1925 Ky. LEXIS 789 ( Ky. 1925 ); Lightfoot v. Beard, 230 Ky. 488 , 20 S.W.2d 90, 1929 Ky. LEXIS 115 ( Ky. 1929 ); Littell v. Littell, 232 Ky. 251 , 22 S.W.2d 612, 1929 Ky. LEXIS 434 ( Ky. 1929 ); Walters v. Walters, 238 Ky. 290 , 37 S.W.2d 48, 1931 Ky. LEXIS 217 ( Ky. 1931 ); Ryan v. Ball, 267 Ky. 83 , 101 S.W.2d 187, 1937 Ky. LEXIS 273 ( Ky. 1937 ); Wilson v. Wilson, 270 Ky. 245 , 109 S.W.2d 607, 1937 Ky. LEXIS 57 ( Ky. 1937 ).

Instrument which purported to give estate, but with limitation over should devisees or grantee die without issue, or without heirs, gave the devisee or grantee a defeasible fee, subject to be defeated upon contingency of his death at any time without survival of any of the persons named upon whose survival the fee became absolute. DANIEL v. THOMPSON, 53 Ky. 533 , 1854 Ky. LEXIS 39 (Ky. Ct. App. 1854). See Sale v. Crutchfield, 71 Ky. 636 , 1871 Ky. LEXIS 112 ( Ky. 1871 ).

6.— No Intervening Estate.
7.— — Death of Devisee or Grantee at Any Time.

Where there is no intervening estate, and no other period to which the words “dying without issue” can be reasonably said to have reference, they are held, in the absence of something in the will showing a contrary purpose, to refer to the death of the devisee at any time without issue surviving him. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ). See Linton v. Hail, 201 Ky. 698 , 258 S.W. 111, 1924 Ky. LEXIS 624 ( Ky. 1924 ); Atkinson v. Kern, 210 Ky. 824 , 276 S.W. 977, 1925 Ky. LEXIS 789 ( Ky. 1925 ); Laughlin v. Neeley's Ex'x, 223 Ky. 656 , 4 S.W.2d 690, 1928 Ky. LEXIS 416 ( Ky. 1928 ); Wilson v. Wilson, 270 Ky. 245 , 109 S.W.2d 607, 1937 Ky. LEXIS 57 ( Ky. 1937 ).

Since the first enactment of this section, it uniformly has been held by the Court of Appeals that the limitation over took effect at the death of the immediately preceding taker (vendee or devisee) at any time, without being survived by any of the persons upon whose survival the fee became absolute. Kimbrell v. Parmer, 202 Ky. 686 , 261 S.W. 11, 1924 Ky. LEXIS 777 ( Ky. 1924 ).

The correct rule is that where an estate is given or conveyed directly to the devisee, without any intervening particular estate, and without anything in the instrument indicating a contrary purpose, limiting words such as “dies without heirs” have reference to the death of the taker at any time and devise to daughter but if she dies without heirs to go to brother gave a defeasible fee in land subject to be defeated by her death at any time without heirs or without issue where there was nothing in the will to indicate to the contrary. Atkinson v. Kern, 210 Ky. 824 , 276 S.W. 977, 1925 Ky. LEXIS 789 ( Ky. 1925 ).

Where there is no intervening estate and no other period to which the words “die without issue” can be reasonably said to have reference, they are held, in the absence of something in the will showing a contrary purpose, to create a defeasible fee, which may be defeated by the death of the devisee at any time without issue surviving him. Wallen v. Nicely, 222 Ky. 825 , 2 S.W.2d 648, 1928 Ky. LEXIS 252 ( Ky. 1928 ). See Laughlin v. Neeley's Ex'x, 223 Ky. 656 , 4 S.W.2d 690, 1928 Ky. LEXIS 416 ( Ky. 1928 ); Weinberg v. Werft, 309 Ky. 731 , 218 S.W.2d 398, 1949 Ky. LEXIS 764 ( Ky. 1949 ).

Where testatrix did not separate the personal and real property but devised it as a whole, and indicated no intention or purpose of making an absolute devise as to one class of property and limiting the interest devised as to another class, both personal and real property were devised together and must all be governed by the general rule that “dying without issue” had reference to death of devisee at any time. Ryan v. Ball, 267 Ky. 83 , 101 S.W.2d 187, 1937 Ky. LEXIS 273 ( Ky. 1937 ).

Testator devised land to A and B, providing that if A or B should die before reaching the age of 21 or without “issue of the body” his interest should pass to the other, and that if both A and B should die before reaching the age of 24 or without issue of the body their interest should revert to the testator’s estate. Thus, the will contemplated a definite failure of issue so that the property would revert only if A or B died without issue before reaching the age of 21 or both died without issue before reaching the age of 24. Lindsay v. Williams, 279 Ky. 749 , 132 S.W.2d 65, 1939 Ky. LEXIS 348 ( Ky. 1939 ).

The testator’s heirs at law who took by purchase under his will were to be determined as of the date of the death of his daughter and not as of the date of testator’s death where his will provided “If my daughter shall die without children or descendants then the estate herein devised for her use and benefit shall go to my heirs at law as the same would descend from me.” Mitchell v. Dauphin Deposit Trust Co., 283 Ky. 532 , 142 S.W.2d 181, 1940 Ky. LEXIS 385 ( Ky. 1940 ).

Devise to A, with contingent remainder to B if A dies without “heirs of the body” referred to failure of issue during life of A. Thus, though A survived B, the property was subject to disposal of B by will. Good Samaritan Hospital v. First Presbyterian Church, 286 Ky. 462 , 151 S.W.2d 78, 1941 Ky. LEXIS 295 ( Ky. 1941 ).

Where will devised property in trust for testatrix’s children with remainder to their issue, but with provision that if any child should die without issue his share should go to his surviving spouse for life, with remainder over to testatrix’s “descendants,” such remainder to become a fee simple upon the descendants reaching 21 years of age, the “descendants” who took the remainder were those who were living at the time of the death of the child of the testatrix, or were born within ten (10) months thereafter. Goodloe's Trustee & Adm'r v. Goodloe, 292 Ky. 494 , 166 S.W.2d 836, 1942 Ky. LEXIS 93 ( Ky. 1942 ).

Where there was no intervening estate, the provision concerning death without issue meant remainder to charitable institutions was contingent upon death of the devisees at any time and the devisees took a joint life estate with survivorship and power to encroach on corpus and dispose of corpus except by will, gift or wilful waste or consuming life estates with survivorship. St. Joseph Hospital, Lexington v. Dwertman, 268 S.W.2d 646, 1954 Ky. LEXIS 920 ( Ky. 1954 ), limited, Ashland Oil & Refining Co. v. Rice, 383 S.W.2d 369, 1964 Ky. LEXIS 42 ( Ky. 1964 ).

8.— Defeasible Fee.

A devise to granddaughter “to her sole and separate use, and shall be free from the control of any husband she may marry, with remainder over to my children . . . . . in case she should die without issue” gave granddaughter a defeasible fee, subject to be defeated by her death without issue living at the time of her death; the words “in case she should die without issue” refer to her death without leaving issue living at the time of her death. Louisville Trust Co. v. Maddox, 103 Ky. 253 , 44 S.W. 632 ( Ky. 1898 ).

Instrument which purports to give estate, but with limitations over should devisee or grantee die without issue, or without heirs, gives the devisee or grantee a defeasible fee, subject to be defeated upon contingency of his death at any time without survival of any of the persons named upon whose survival the fee became absolute. Louisville Trust Co. v. Erdman, 58 S.W. 814, 22 Ky. L. Rptr. 729 , 1900 Ky. LEXIS 704 ( Ky. 1900 ). See Walton v. Bohannon, 150 Ky. 486 , 150 S.W. 648, 1912 Ky. LEXIS 924 ( Ky. 1912 ); Duncan v. Duncan, 175 Ky. 253 , 194 S.W. 328, 1917 Ky. LEXIS 318 ( Ky. 1917 ); Murphy v. Murphy, 182 Ky. 731 , 207 S.W. 491, 1919 Ky. LEXIS 413 ( Ky. 1919 ); Kimbrell v. Parmer, 202 Ky. 686 , 261 S.W. 11, 1924 Ky. LEXIS 777 ( Ky. 1924 ); Atkinson v. Kern, 210 Ky. 824 , 276 S.W. 977, 1925 Ky. LEXIS 789 ( Ky. 1925 ); Wallen v. Nicely, 222 Ky. 825 , 2 S.W.2d 648, 1928 Ky. LEXIS 252 ( Ky. 1928 ); Laughlin v. Neeley's Ex'x, 223 Ky. 656 , 4 S.W.2d 690, 1928 Ky. LEXIS 416 ( Ky. 1928 ); Littell v. Littell, 232 Ky. 251 , 22 S.W.2d 612, 1929 Ky. LEXIS 434 ( Ky. 1929 ); Walters v. Walters, 238 Ky. 290 , 37 S.W.2d 48, 1931 Ky. LEXIS 217 ( Ky. 1931 ); Ryan v. Ball, 267 Ky. 83 , 101 S.W.2d 187, 1937 Ky. LEXIS 273 ( Ky. 1937 ); Wilson v. Wilson, 270 Ky. 245 , 109 S.W.2d 607, 1937 Ky. LEXIS 57 ( Ky. 1937 ).

Where the codicil to will clearly provided that in the event of the son’s death, at any time, leaving children, his children should take the land, the son took a defeasible fee, subject to be defeated by his death at any time without issue. Duncan v. Duncan, 175 Ky. 253 , 194 S.W. 328, 1917 Ky. LEXIS 318 ( Ky. 1917 ).

Considering entire will, there was a different purpose expressed in the instrument and it was the intention on part of testator not to give a defeasible fee to be defeated by death at any time without issue, and the devise over came within the exception provided in this section. Young v. Madison's Ex'r, 252 Ky. 99 , 66 S.W.2d 1, 1933 Ky. LEXIS 987 ( Ky. 1933 ).

Devise to husband so long as he remained single with remainder to be divided equally between nieces and their lawful heirs but with provision “what property they or either of them still hold at their death after their burial expenses shall have been satisfied or settled for, shall revert” evidently intended that the interest of the nieces would remain defeasible even after the death of the life tenant and where decedent owned a one-half (1/2) interest in land and cotenant petitioned for sale and division of proceeds, one half (1/2) the proceeds should have been paid into the court and reinvested until it could have been determined to whom the proceeds should ultimately go. Malone v. Jamison, 312 Ky. 249 , 227 S.W.2d 179, 1950 Ky. LEXIS 627 ( Ky. 1950 ).

9.Fee-Simple Estate.

Under will devising real estate to be equally divided between testator’s two (2) sons but to be held by them until the younger reached 30 years of age and should either die without issue then to the other and if both should die without issue property to revert to testator’s next heirs at law, each son took an absolute one-half (1/2) undivided interest subject to be defeated by death without living issue before the younger became 30 years of age and, when the younger son became 30 years of age, each had a fee-simple estate in an undivided one-half (1/2) interest. Deering v. Skidmore, 282 Ky. 292 , 138 S.W.2d 471, 1940 Ky. LEXIS 162 ( Ky. 1940 ).

Where parents executed deed conveying fee-simple title to real estate jointly to four (4) children, but deed reserved life estate in parents and also reserved right of parents to make absolute sale of real estate during their lives, provision of deed that if any of the children should die “without bodily issue” his interest should pass to the other children would be construed as referring to death of child before death of parents, the deed as a whole indicating that to be the intent of the grantors. Douglas v. Snow, 304 Ky. 805 , 202 S.W.2d 629, 1947 Ky. LEXIS 737 ( Ky. 1947 ), overruled, Witherspoon v. Whitherspoon, 402 S.W.2d 699, 1965 Ky. LEXIS 11 ( Ky. 1965 ).

10.— Intervening Estate.

The rule applicable where there is an intervening life estate, and a gift over upon death of the remainderman without issue, is that the limitation with reference to death without issue is restricted to the death of the remainderman before the termination of the life estate. However, the rule where there is no intervening estate is that the reference to death without issue means death at any time. Ashland Oil & Refining Co. v. Rice, 383 S.W.2d 369, 1964 Ky. LEXIS 42 ( Ky. 1964 ).

11.— — Death of Life Tenant.

Where an estate is devised to one for life, with remainder to another, but, if the remainderman should die without children or issue, then to a third person, the rule is that the words “die without children or issue” are restricted to the death of the remainderman before the termination of the particular estate. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ). See Duncan v. Duncan, 175 Ky. 253 , 194 S.W. 328, 1917 Ky. LEXIS 318 ( Ky. 1917 ).

Devise to woman and her children, but with provision that should children die before their mother then the property should go to other parties, gave the children a defeasible fee which might be defeated at any time by their death prior to death of mother. Wallen v. Nicely, 222 Ky. 825 , 2 S.W.2d 648, 1928 Ky. LEXIS 252 ( Ky. 1928 ).

Devise of remainder to granddaughter, but other heirs to take if granddaughter die “either before or after I do,” gave a defeasible fee contingent upon granddaughter dying without issue during life of life tenant. Perkins v. Clark, 242 Ky. 782 , 47 S.W.2d 705, 1932 Ky. LEXIS 356 ( Ky. 1932 ).

Where disposition of the property which is devised over is preceded by a prior estate for life or years, then the general rule is that the death without issue refers to a death occurring during the period of the intervening estate, such as before the death of the life tenant. Pegram v. Kaufman, 261 Ky. 50 , 86 S.W.2d 1042, 1935 Ky. LEXIS 586 ( Ky. 1935 ).

Where testator devised land to his wife for life and then over to his niece, but with provision in will: “If my niece should die without issues said real estate I bequeath to my lawful heirs,” the title of the niece ceased to be defeasible and became absolute on the death of wife of testator. Pegram v. Kaufman, 261 Ky. 50 , 86 S.W.2d 1042, 1935 Ky. LEXIS 586 ( Ky. 1935 ).

Devise of remainder in lands to children “for their own use and benefit for life if either should die without issue then the property must go to survivors and their heirs for life” gave remainder to children as a class, the members of the class not to be determined until death of mother who had a life estate in the property. Vittitow v. Keene, 265 Ky. 66 , 95 S.W.2d 1083, 1936 Ky. LEXIS 427 ( Ky. 1936 ). See Renaker v. Tanner, 260 Ky. 281 , 83 S.W.2d 54, 1935 Ky. LEXIS 397 ( Ky. 1935 ).

Where testator devised property to his daughter “to be held by her for and during her natural life, and then descend or go to my heirs and children unless she should leave surviving her heirs of her body, in which case her share shall go to her children so left surviving her,” testator’s other children took a vested remainder, vesting as of the date of testator’s death, subject to being defeated by the contingency that the daughter should leave issue at her death. Montgomery's Ex'r v. Northcutt, 292 Ky. 622 , 167 S.W.2d 317, 1942 Ky. LEXIS 140 ( Ky. 1942 ).

Where testator devised his property to his widow for life, with remainder to his daughter, with further provision that if daughter “shall predecease me, or die after me, without issue,” the estate should go to other persons, the contingent remainder to others could take effect only if the daughter died before the termination of the widow’s life estate, and if the daughter survived the widow her estate became an absolute fee; the fact that the will made the widow and daughter joint executrices, with power of sale but with no provision as to disposition of proceeds of sale, did not limit the daughter’s estate. Deitchman v. Woosley, 294 Ky. 186 , 171 S.W.2d 256, 1943 Ky. LEXIS 420 ( Ky. 1943 ).

Where deed from parents to daughter contained a clause retaining ownership and control in grantors until their death, “at which time the grantee shall become the sole owner, and in the event of grantee’s death, leaving no heirs, then the said property shall be equally divided between the remaining heirs of the grantors,” the words “without heirs” meant “without issue,” and referred to the grantee’s death without issue prior to death of the grantors, so when grantee survived the grantors, she acquired a fee-simple title. Mitchell v. Deegan, 301 Ky. 587 , 192 S.W.2d 715, 1946 Ky. LEXIS 523 ( Ky. 1946 ).

Where an estate is devised to one for life, with remainder to another, and with provision that if the remainderman dies without children or issue the estate shall go to another, the words “dies without children or issue” are restricted to the death of the remainderman before the life tenant. This rule also applies to estates created by deed. Pence v. Farris, 303 Ky. 97 , 196 S.W.2d 970, 1946 Ky. LEXIS 794 ( Ky. 1946 ).

Devise to wife, as long as she remains unmarried, jointly with daughter to enjoy the full benefits during their lifetime and in case of the death of both and there are no heirs blessed to her union then to be divided between three (3) charitable institutions, gave wife and daughter a joint life estate, since the reference was not to death prior to testator’s death but to death of wife and daughter at any time. St. Joseph Hospital, Lexington v. Dwertman, 268 S.W.2d 646, 1954 Ky. LEXIS 920 ( Ky. 1954 ), limited, Ashland Oil & Refining Co. v. Rice, 383 S.W.2d 369, 1964 Ky. LEXIS 42 ( Ky. 1964 ).

The words “I give, devise and bequeath all the rest, residue and remainder of my real estate both real and personal to my wife to have and to hold so long as she lives or remains my widow and on her death to be divided equally between my three (3) children and in the case any one of my children shall die without issue then the estate to be divided equally between the heirs of my body” gave the three (3) children a defeasible fee which, when they all survived their mother, became an indefeasible fee-simple title to an undivided one third (1/3) of the estate. Ashland Oil & Refining Co. v. Rice, 383 S.W.2d 369, 1964 Ky. LEXIS 42 ( Ky. 1964 ).

12.— Undisposed Remainder.

Where will gives devisee an estate for life and, at the latter’s death, to his issue, if any, but makes no disposition in case devisee dies without issue, the undisposed remainder descends as intestate property of the testator, and where devisee is sole heir of testator, he may dispose of fee by his will, if he dies without issue. Mansur v. Security Trust Co., 279 Ky. 453 , 130 S.W.2d 768, 1939 Ky. LEXIS 275 ( Ky. 1939 ).

Research References and Practice Aids

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Roberts, Kentucky Decisions on Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

Matthews, Kentucky Developments in 1954: Personal and Real Property, Future Interests and Trusts, 44 Ky. L.J. 37 (1955).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.090. Construction of “estate for life, remainder to heirs.”

If any estate is given by deed or will to any person for his life, and after his death to his heirs, or the heirs of his body, or his issue or descendants, such estate shall be construed to be an estate for life only in such person, and a remainder in fee simple in his heirs, or the heirs of his body, or his issue or descendants.

History. 2345.

NOTES TO DECISIONS

1.Construction.

The common-law rule that where one conveys a life estate to another with remainder to the heirs of the grantor they take as reversioners, and the grantor being himself the reversioner, after making such limitation may grant the reversion, is not affected by this section, as the heirs therein referred to are the heirs of the grantee and not those of the grantor. Mayes v. Kuykendall, 112 S.W. 673 ( Ky. 1908 ). See Fidelity & Columbia Trust Co. v. Williams, 268 Ky. 671 , 105 S.W.2d 814, 1937 Ky. LEXIS 512 ( Ky. 1937 ).

The common-law rule that, where one conveys a life estate to another with remainder to the heirs of the grantor, they take as reversioners, and the grantor being himself the reversioner, after making such limitation may grant the reversion, is not affected by this section. Pewitt v. Workman, 289 Ky. 459 , 159 S.W.2d 21, 1942 Ky. LEXIS 582 ( Ky. 1942 ).

The “heirs” referred to in this section are the heirs of the grantee and not those of the grantor. Pewitt v. Workman, 289 Ky. 459 , 159 S.W.2d 21, 1942 Ky. LEXIS 582 ( Ky. 1942 ).

If the intention of the parties is apparent from the examination of the deed “from its four corners” without regard to its technical and formal divisions, it will be given effect even though, in so doing, technical rules of construction will be violated. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

The rule that an habendum creating an estate contradictory or repugnant to that given in the granting clause must be rejected is not a rule of property, but is merely a rule of construction, which will be resorted to only where the court cannot determine which of the clauses was intended to be controlling. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

2.Successors and Assigns.

The use of the words “successors and assigns” in the granting clause of a deed to a corporation does not amount to the express grant of a fee. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

3.Devisee and His Children.

Where there is nothing in a deed or will to show a contrary purpose, an estate deeded or devised to a man and his children is a life estate to the first taker, with remainder to the children; however, even though devise read to my son and his children, it was clear from other provisions of the will that testator knew the language to employ to pass a life estate if he so desired and since he had imposed restraint on alienation of the land in expectation that he had conveyed a fee to his children and since son was required to pay certain sums to his sisters, the devise to the son was a fee-simple estate. Harkness v. Lisle, 132 Ky. 767 , 117 S.W. 264, 1909 Ky. LEXIS 149 ( Ky. 1909 ).

Where a devise is to a parent and his or her children, the parent receives a life estate with remainder vesting in the children unless there is something in the will showing a contrary intention, and if that contrary intention appears, then the added clause “and their children” is regarded as meaning heirs and as limiting the estate and creating an estate tail, which is converted by law into a fee-simple estate under KRS 381.070 . Johnson v. Houchins, 330 S.W.2d 114, 1959 Ky. LEXIS 185 ( Ky. 1959 ).

4.Devisee and His Bodily Heirs After His Death.

Devise to son and his bodily heirs after his death, after death of testator’s wife, gave only a life estate to the son, subject to life estate of the widow of testator, with remainder in fee simple to bodily heirs of son at his death. Reeves v. Tomlin, 213 Ky. 547 , 281 S.W. 522, 1926 Ky. LEXIS 560 ( Ky. 1926 ).

5.Devise for Life with Remainder Over.

A devise of conveyance to one for life and remainder to his heirs or his issue gives the devisee or grantee a life estate and the fee to his heirs or his issue. Atkins v. Baker, 112 Ky. 877 , 66 S.W. 1023, 23 Ky. L. Rptr. 2224 , 1902 Ky. LEXIS 233 ( Ky. 1902 ). See Adair v. Adair's Trustee, 99 S.W. 925, 30 Ky. L. Rptr. 857 (1907); Clubb v. King, 99 S.W. 935, 30 Ky. L. Rptr. 830 (1907); Eggner v. Hovekamp, 134 Ky. 224 , 119 S.W. 818, 1909 Ky. LEXIS 373 ( Ky. 1909 ); Thompson v. Penn, 149 Ky. 158 , 148 S.W. 33, 1912 Ky. LEXIS 602 ( Ky. 1912 ); Harkness v. Meade, 149 Ky. 359 , 149 S.W. 823, 1912 Ky. LEXIS 623 ( Ky. 1912 ); Runyon v. Hatfield, 154 Ky. 171 , 157 S.W. 17, 1913 Ky. LEXIS 46 ( Ky. 1913 ); Brady v. Bardy, 158 Ky. 541 , 165 S.W. 655, 1914 Ky. LEXIS 642 ( Ky. 1914 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ); Combs v. Fields, 211 Ky. 842 , 278 S.W. 137, 1925 Ky. LEXIS 979 ( Ky. 1925 ); Banzhoff v. Smith, 233 Ky. 737 , 26 S.W.2d 1034, 1930 Ky. LEXIS 652 ( Ky. 1930 ).

Where will devised property to one for life and then to remainderman “and his children forever,” and provided that remainderman could not dispose of property during his life or life of his children and, should remainderman die childless, property should go to another, it was held remainderman who survived life tenant took fee. Wilson v. Morrill, 205 Ky. 257 , 265 S.W. 774, 1924 Ky. LEXIS 90 ( Ky. 1924 ).

A devise to X for life, remainder on his death to his then living children, creates only a contingent remainder. Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ).

A devise to X for life, remainder to his bodily heirs, creates a contingent remainder, unless the term “bodily heirs” be construed to mean children. Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ).

A devise to X for life, remainder to his heirs, under this section creates a contingent remainder, since the heirs of X cannot be known until his death. Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ).

Devise to daughter with remainder to her then living children on her death created a reversion to testator and his heirs when contingent remainder did not vest and testator’s four (4) children took either by descent or the residuary clause in his will. Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ).

Where the devise was to daughter for life, then to her lawful heirs, son of the daughter, as a contingent remainderman, could mortgage his contingent interest. Hurst v. Russell, 257 Ky. 78 , 77 S.W.2d 355, 1934 Ky. LEXIS 508 ( Ky. 1934 ).

Where the devise was to daughter for life, then to her lawful heirs, the daughter took a life estate with a contingent remainder in her heirs. Hurst v. Russell, 257 Ky. 78 , 77 S.W.2d 355, 1934 Ky. LEXIS 508 ( Ky. 1934 ).

Where the devise was to the daughter for life, then to her lawful heirs, the daughter’s sons took under the will and not as heirs of their mother. Hurst v. Russell, 257 Ky. 78 , 77 S.W.2d 355, 1934 Ky. LEXIS 508 ( Ky. 1934 ).

Devise to wife, and at her death to her niece during her life and at her death to her “bodily heirs,” gave the children of the niece a contingent remainder and not a vested remainder and, on the death of the niece, the fee vested in her children then living and her grandchildren per stirpes and not per capita. Clark v. McGrann, 274 Ky. 1 , 117 S.W.2d 1021, 1938 Ky. LEXIS 216 ( Ky. 1 938).

Where will gives devisee an estate for life and, at the latter’s death, to his issue, if any, but makes no disposition in case devisee dies without issue, the undisposed remainder descends as intestate property of the testator, and where devisee is sole heir of testator, he may dispose of fee by his will, if he dies without issue. Mansur v. Security Trust Co., 279 Ky. 453 , 130 S.W.2d 768, 1939 Ky. LEXIS 275 ( Ky. 1939 ).

Will giving residuary estate to widow, “during her life,” and upon her death to children in equal shares, created life estate in widow, and subsequent clause that widow could give any of children such sums as she thought proper did not enlarge her estate, but merely permitted her to make advancements to children up to the amount of their ultimate shares. Pfeiffer v. Gates, 281 Ky. 445 , 136 S.W.2d 542, 1940 Ky. LEXIS 47 ( Ky. 1940 ).

Where testator devised property to his daughter “to be held by her for and during her natural life, and then descend or go to my heirs and children unless she should leave surviving her heirs of her body, in which case her share shall to her children so left surviving her,” testator’s other children took a vested remainder, vesting as of the date of testator’s death, subject to being defeated by the contingency that the daughter should leave issue at her death. Montgomery's Ex'r v. Northcutt, 292 Ky. 622 , 167 S.W.2d 317, 1942 Ky. LEXIS 140 ( Ky. 1942 ).

Where a will stated “I bequeath my grandson’s interest to him and at his death to his heirs and if he should die without heirs I will his interest in my estate to my other grandchildren that I may have at the time,” the grandson was vested with a life estate with the remainder in fee simple in the heirs of his body if any survive him. Cheuvront v. Haley, 444 S.W.2d 734, 1969 Ky. LEXIS 222 ( Ky. 1969 ).

Where a will provided for a daughter of the testatrix a life estate, with remainder to the heirs of her body, this did not create an estate tail, but her children, who were the devisees of the remainder, took an absolute estate under the law. Allen v. Terrell, 10 Ky. Op. 786, 1 Ky. L. Rptr. 336 , 1880 Ky. LEXIS 389 (Ky. Ct. App. Oct. 21, 1880).

6.Right of Dower.

Where there was a devise of only a life estate to a husband, his wife was not entitled to dower in it. Brady v. Bardy, 158 Ky. 541 , 165 S.W. 655, 1914 Ky. LEXIS 642 ( Ky. 1914 ).

The words “in trust to our said son during his life and then to his lawful heirs with no power to said son over the same or to sell or dispose of the same” conveyed a mere life estate to the son and the son’s widow was not entitled to dower. Bodkin v. Wright, 266 Ky. 798 , 100 S.W.2d 824, 1937 Ky. LEXIS 8 ( Ky. 1937 ).

7.Life Estate with Sale on Death.

Where will gave widow life estate in land, which land on her death should be sold and proceeds divided among children, a provision “if either of them be dead the share of such one to go to his or her heirs” referred to time of death of life tenant and under such will, a child took a fee subject to widow’s life estate, subject to being defeated upon his dying before death of widow. State Bank v. Rose's Adm'r, 219 Ky. 562 , 293 S.W. 1087, 1927 Ky. LEXIS 393 ( Ky. 1927 ).

8.Trust for Grantor’s Life, Remainder to Grantor’s Children.

Spendthrift trust whereby grantor’s land was conveyed to trustee for grantor’s life with provision that it should not be liable for his debts and that if effort was made to so subject it, it should go to his children, with remainder after grantor’s life going to children, carved out of grantor’s land two (2) estates: a life estate for grantor and a vested remainder to his children born or to be born. Lane v. Taylor, 287 Ky. 116 , 152 S.W.2d 271, 1941 Ky. LEXIS 499 ( Ky. 1941 ).

9.Grantee and His Children.

Where a conveyance is to a person and his “children,” such person receives life estate and does not receive the fee unless from the entire deed it appears the grantor used the word “children” in the technical sense of the word “heirs.” Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ).

Where a conveyance is to a person “and his children,” the person takes only a life estate with remainder to the children, unless it appears that the grantor used “children” in the sense of “heirs.” Where a conveyance is to a person “and the heirs of the body” or “and his bodily heirs,” the person takes a fee simple, unless it appears that the word “heirs” was used in the sense of “children,” in which case the person will take only a life estate. Combs v. Combs, 294 Ky. 89 , 171 S.W.2d 13, 1943 Ky. LEXIS 391 ( Ky. 1943 ).

10.Grantee and His Bodily Heirs and Assigns.

Deed created a life estate in grantee and not a common-law estate tail converted to a fee simple under KRS 381.070 , where granting clause conveyed to grantee and his bodily heirs and assigns but habendum clause specifically stated that grantee was to have and use the property “as long as he lived and at his natural death then to go to his bodily heirs.” Bartley v. Potter, 334 S.W.2d 353, 1960 Ky. LEXIS 229 ( Ky. 1960 ).

11.Grantee for Life.
12.— With Remainder Over.

Each of the children, as they came into being, became vested with their proportionate part of the remainder, since law favors vested rather than contingent remainders. Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ).

Interpreting a deed by the clear intent of grantor, the grantees too, only a life interest, with remainder to their children where deed read “to the party of the second part to him his lifetime then to the heirs of his body and assigns.” Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ).

Deed conveying land to son “during his natural life, then to his heirs, if any,” and, if no heirs, the land to revert to the grantor or to the grantor’s other children, gave the son a life estate and the son’s children contingent remainders. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

A deed conveying land to grantor’s niece for life and at her death to her bodily heirs conveyed a life estate to niece and the remainder in fee simple to her children. Lawson v. Asberry, 283 Ky. 390 , 141 S.W.2d 564, 1940 Ky. LEXIS 342 ( Ky. 1940 ).

Where grantor conveyed life estate to niece with remainder to her bodily heirs in consideration of niece’s promise to support him for life, and provided for reversion if niece failed to perform, and niece later reconveyed to grantor in consideration of cash and release from agreement, the grantor’s successor in title could assert the release agreement was effectual to deprive niece’s children of title to reconveyed property. Lawson v. Asberry, 283 Ky. 390 , 141 S.W.2d 564, 1940 Ky. LEXIS 342 ( Ky. 1940 ).

Where deed conveyed property to grantee for life, and upon her death to grantee’s son for his life, and upon his death “to go to his son, A. V. Combs, to be held for the children of said A. V. Combs,” the deed vested a present fee-simple title in the children of A. V. Combs, subject to the life estates of their grandfather and great-grandmother, notwithstanding that the children were named only in the habendum clause and not in the granting clause; the only interest acquired by A. V. Combs was that of trustee of a naked trust for his children. Combs v. Combs, 292 Ky. 445 , 166 S.W.2d 969, 1942 Ky. LEXIS 109 ( Ky. 1942 ).

Where owner of property prepared in his own handwriting a deed purporting to convey property to his wife and his heirs, the latter being named as grantees by the phrase, “Matilda Combs and J. W. Combs’ heirs, of the second part,” and the granting, habendum and warranty clauses conveyed the land to “the party of the second part and to his heirs and assigns forever,” the wife took only a life estate, with a remainder to the children of the grantor. Combs v. Combs, 294 Ky. 89 , 171 S.W.2d 13, 1943 Ky. LEXIS 391 ( Ky. 1943 ).

Where a deed stated that at the death of the party to whom the property was conveyed, the property would “descend” to certain heirs, the estate conveyed to that party was to continue for her life. East Kentucky Energy Corp. v. Niece, 774 S.W.2d 458, 1989 Ky. App. LEXIS 99 (Ky. Ct. App. 1989).

Bankruptcy trustee was permitted to sell a debtor’s interest in property where the interpretation of an entire document showed that a grantor intended to convey a life estate and remainder in certain property, despite fee simple language in the document. Johnson v. Fifth Third Bank, Inc. (In re Carnes), 2005 Bankr. LEXIS 5 (Bankr. E.D. Ky. Jan. 5, 2005).

13.— With Right to Sell for Reinvestment.

Where deed conveying land to life tenants, with remainder to their children, gave life tenants right to sell land for reinvestment, and provided that the “reinvestment is incumbent on the second parties” and that a purchaser was not required to see to the reinvestment of the proceeds of a sale, the fact that no reinvestment was made would not render a deed by the life tenants void ab initio, or deny protection to an innocent purchaser. Metropolitan Life Ins. Co. v. Chenault, 282 Ky. 252 , 138 S.W.2d 319, 1939 Ky. LEXIS 45 ( Ky. 1939 ).

14.Grantees Jointly for Life with Remainder Over.

Deed that passed property to grantees “jointly for and during their natural lives, without power to alienate or convey with remainder to their bodily heirs, forever” fell under this section and not under KRS 381.070 , and grantees took only a life estate. Jones v. Carlin, 96 S.W. 885, 29 Ky. L. Rptr. 1077 (1906). See Crawley v. Crawley, 231 Ky. 831 , 22 S.W.2d 268, 1929 Ky. LEXIS 366 ( Ky. 1929 ).

Deed to husband and wife and each of them severally of a one-half (1/2) interest in fee simple to be used by them jointly for and during their natural lives and at the death of either of them to his or her respective heirs at law absolutely in fee simple without right of dower or curtesy to the other but with a provision that grantees during their joint lives, or the survivor of them, could execute a deed of conveyance, release, lease or mortgage affecting his or her undivided one-half (1/2) interest conveyed only a life estate in their undivided halves of the whole land but with power to sell and convey their respective halves. Robertson's Guardian v. Robertson, 215 Ky. 14 , 284 S.W. 109, 1926 Ky. LEXIS 645 ( Ky. 1926 ).

Research References and Practice Aids

Cross-References.

Estate for life of another, disposition of, KRS 395.340 .

Tenant for life, rights of person leasing from upon death of, KRS 383.190 .

Kentucky Law Journal.

Roberts, Statutory and Common Law Definitions of Contingent Remainders, 30 Ky. L.J. 61 (1941).

Deep, Remainder to Grantor’s Heirs in Kentucky, 40 Ky. L.J. 218 (1952).

Roberts, Kentucky Decisions on Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.100. Contingent remainder.

A contingent remainder shall, in no case, fail for the want of a particular estate to support it.

History. 2346.

NOTES TO DECISIONS

1.Construction.

The law favors that construction of doubtful terms which creates a vested, rather than an uncertain, estate. Cox v. Anderson, 70 S.W. 839, 24 Ky. L. Rptr. 1081 (1902).

2.Application.

This section is applicable alone to land. Cox v. Anderson, 70 S.W. 839, 24 Ky. L. Rptr. 1081 (1902).

This section was not applicable where widow who was devised whole of husband’s estate real and personal without any restrictions as to its use took a fee-simple title and was not limited by clause “When she is done with it I give $1,000 to . . . . . Church.” Cox v. Anderson, 70 S.W. 839, 24 Ky. L. Rptr. 1081 (1902).

3.Remainder to Others of Class.

The contingent remainder in the other children of testator was not, under this section, defeated by the death of deceased child. Golladay v. Thomas, 111 S.W. 721, 33 Ky. L. Rptr. 829 (1908), overruled, Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 ( Ky. 1972 ).

Under this section, and the rule that the law favors the vesting of estates, the surviving children of testator took the share of a child who died without issue before the death of testator, where will provided that if a child died without children after death of testator, that share should go to the other children. Golladay v. Thomas, 111 S.W. 721, 33 Ky. L. Rptr. 829 (1908), overruled, Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 ( Ky. 1972 ).

Research References and Practice Aids

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Brady, “Expert Testimony in Kentucky”, see article for analysis of court standards regarding expert testimony, 25 N. Ky. L. Rev. 2 (1998).

381.110. Alienation or union of estate does not affect remainder.

The alienation of a particular estate on which a remainder depends, or the union of such estate with the inheritance by purchase or descent, shall not operate by merger or otherwise to defeat, impair or affect such remainder.

History. 2347.

NOTES TO DECISIONS

1.Merger.

There can be no merger where it is contrary to the intention of the parties or where outstanding rights of third parties intervene. Watson v. Trimble, 261 Ky. 253 , 87 S.W.2d 359, 1935 Ky. LEXIS 615 ( Ky. 1935 ).

2.Purchase of Life Estate by Remainderman.

Purchase of life estate of widow by third party, who had also purchased undivided seven-ninths (7/9) interest in remainder of estate, did not extend the security of a mortgage on third party’s interest in the remainder to include the present estate. Watson v. Trimble, 261 Ky. 253 , 87 S.W.2d 359, 1935 Ky. LEXIS 615 ( Ky. 1935 ).

The purchase of the life estate did not operate as a merger of that estate with the remainder interest already held by the third party. Watson v. Trimble, 261 Ky. 253 , 87 S.W.2d 359, 1935 Ky. LEXIS 615 ( Ky. 1935 ).

3.Precipitation of Remainders by Renunciation of Life Tenant.

Where will created residuary trust for widow for her benefit for life, with remainder to testator’s nieces and nephews, who were to receive residue if widow did not survive testator, widow’s renunciation of will under law precipitated the remainders the same as if the widow had died on the date of renunciation, and the residue could not be held in trust until widow’s death but was immediately distributable to the remaindermen, there being no contrary intention manifest in the will. Baldwin's Coex'rs v. Curry, 272 Ky. 827 , 115 S.W.2d 333, 1938 Ky. LEXIS 204 ( Ky. 1938 ).

4.Life Estate with Power to Sell.

Where testator devised farm to two unmarried daughters for life, with provision that “should they marry or die or break up housekeeping” they might sell the farm and should then divide the proceeds among themselves and the testator’s other children equally, the two daughters had only a life estate in the farm, with a qualified right to sell the farm upon the happening of any of the named contingencies and, where they did not exercise the privilege to sell, they had no remainder interest remaining at their deaths which could be passed by will. Upon death of life tenants the farm passed, under testator’s will, to the surviving children of the testator and to the issue of his deceased children. Corbin v. Manley, 291 Ky. 289 , 164 S.W.2d 394, 1942 Ky. LEXIS 223 ( Ky. 1942 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 51 (1979).

381.120. Joint tenants — Partition — Death of one.

Joint tenants may be compelled to make partition, and when a joint tenant dies, the joint tenant’s part of the joint estate, real or personal, shall descend to the joint tenant’s heirs, or pass by devise, or go to the joint tenant’s personal representative, subject to debts, curtesy, dower, or distribution.

History. 2348; 1998, ch. 267, § 1, effective July 15, 1998.

NOTES TO DECISIONS

1.Application.

This section is applicable only to divisible property. Martin v. Hall, 297 Ky. 537 , 180 S.W.2d 390, 1943 Ky. LEXIS 178 ( Ky. 1943 ).

This section was not applicable where it appeared from the will that should a class member predecease the life tenant the home farm was to be shared equally by the four eldest sons. Cromer v. Acton, 298 S.W.2d 20, 1957 Ky. LEXIS 361 ( Ky. 1957 ).

2.Controlling Law.

Although this section abolished tenancies by entirety in Kentucky, where a lot was in Tennessee the question was controlled by laws of that state and deed created tenancy by entirety. Traughber v. King, 235 Ky. 658 , 32 S.W.2d 8, 1930 Ky. LEXIS 431 ( Ky. 1930 ).

3.Who Are Joint Tenants.

The owner of a life estate and the owner of the remainder are not tenants in common or joint tenants. Avey v. Hogancamp, 172 Ky. 675 , 189 S.W. 917, 1916 Ky. LEXIS 256 ( Ky. 1916 ). See Miracle v. Miracle, 260 Ky. 624 , 86 S.W.2d 536, 1935 Ky. LEXIS 531 ( Ky. 1935 ).

4.Right of Survivorship.

The common-law right of survivorship in joint tenancy was abolished by this section but tenancy by entireties of husband and wife remained as at common law until the enactment of KRS 381.050 . McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S.W. 538, 23 Ky. L. Rptr. 113 , 1901 Ky. LEXIS 126 ( Ky. 1901 ).

The right of survivorship in estates held in joint tenancy was abolished by this section, unless the case falls within the provisions of KRS 381.130 . Wirth v. Wirth's Guardian, 100 S.W. 298, 30 Ky. L. Rptr. 960 (1907). See Osborne v. Hughes, 219 Ky. 116 , 292 S.W. 748, 1927 Ky. LEXIS 292 ( Ky. 1927 ); Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

When it is sought to establish that the estate of one (1) joint tenant passes the other by survivorship, the instrument relied on must make it clear that such was the purpose of the grantor or testator. Wirth v. Wirth's Guardian, 100 S.W. 298, 30 Ky. L. Rptr. 960 (1907). See Osborne v. Hughes, 219 Ky. 116 , 292 S.W. 748, 1927 Ky. LEXIS 292 ( Ky. 1927 ); Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

This section intended to dispense with the common-law doctrine of survivorship among joint tenants. Gatto v. Gatto, 198 Ky. 569 , 250 S.W. 833, 1923 Ky. LEXIS 580 ( Ky. 1923 ).

This section is modified by KRS 381.050 , the latter providing, in effect, that if real estate be conveyed or devised to husband and wife, unless a right of survivorship is expressly provided for, there will be no mutual right to the entirety by survivorship between them. Francis v. Vastine, 229 Ky. 431 , 17 S.W.2d 419, 1929 Ky. LEXIS 786 ( Ky. 1929 ).

Where deed recited that the conveyance was “with survivorship” to the two (2) grantees “jointly and to the survivor”, the deed manifestly expressed the intent that the interest of the one first dying should belong to the other. This constituted a joint tenancy in accordance with this section. Sanderson v. Saxon, 834 S.W.2d 676, 1992 Ky. LEXIS 101 ( Ky. 1992 ).

5.Right of Partition.

Infants, and those whose shares are contingent, hold their joint interest subject to the right of the other joint owners to have the whole property partitioned at any time. Hartring's Ex'x v. Milward's Ex'r, 90 S.W. 260, 28 Ky. L. Rptr. 776 (1906). See Eldridge v. Embry, 158 Ky. 707 , 166 S.W. 223, 1914 Ky. LEXIS 700 ( Ky. 1914 ).

It is not necessary, for division of property, that there be unity of ownership either in time, title or possession, or that each vested interest be equal or alike. Eldridge v. Embry, 158 Ky. 707 , 166 S.W. 223, 1914 Ky. LEXIS 700 ( Ky. 1914 ).

This section secures to one (1) joint tenant a right of partition, although the other joint tenants are laboring under disability. Eldridge v. Embry, 158 Ky. 707 , 166 S.W. 223, 1914 Ky. LEXIS 700 ( Ky. 1914 ).

A partition will not be denied a joint owner unless it be made affirmatively to appear that the tract is indivisible without materially impairing its value. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

Where land is jointly owned, a partition is the joint owner’s primary right, which will not be denied him unless it be made affirmatively to appear that the land is indivisible without materially impairing its value. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

Courts will not deny the right of partition unless there is some impelling necessity therefor. Shelby v. Shelby, 192 Ky. 304 , 233 S.W. 726, 1921 Ky. LEXIS 54 ( Ky. 1921 ).

Where a father’s estate owed no debts, heirs’ suit to settle the estate must be treated as a suit to partition his land among heirs, and land could not be sold if one (1) heir was entitled to insist on division. Hagar v. Hagar, 276 Ky. 286 , 124 S.W.2d 45, 1939 Ky. LEXIS 508 ( Ky. 1939 ).

Public policy favors an actual partition rather than a sale, if it will not cause substantial injustice, even though one (1) or more of the owners prefer a sale to a partition. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

All things being equal, as between a partition and a sale, a partition will be decreed. Kentucky Bell Corp. v. Moss, 311 Ky. 114 , 223 S.W.2d 580, 1949 Ky. LEXIS 1067 ( Ky. 1949 ).

All things being equal, the existing form of inheritance will not be disturbed nor will a person be compelled to sell his property against his will. Kentucky Bell Corp. v. Moss, 311 Ky. 114 , 223 S.W.2d 580, 1949 Ky. LEXIS 1067 ( Ky. 1949 ).

There are three basic statutes in Kentucky authorizing partition, this section as qualified by KRS 381.130 , 381.135 and 381.136 and these statutes supplement or are supplemented by the traditional jurisdiction of equity courts to decree partition as stated in subsection (16) of KRS 381.135 . Atkinson v. Kish, 420 S.W.2d 104, 1967 Ky. LEXIS 96 ( Ky. 1967 ).

When it was sought to establish that the estate of one (1) joint tenant passed the other by survivorship, the instrument relied on had to make it clear that such was the purpose of the grantor or testator. Truesdell v. White, 76 Ky. 616 , 1878 Ky. LEXIS 9 ( Ky. 1878 ).

6.Sale When Indivisible.

If it is made affirmatively to appear that a tract of land is indivisible without materially impairing its value, a sale as a whole should not be denied the other joint owners. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

7.Notes.

A payment of whole note debt to one of two (2) joint payees would extinguish rights of both, and a surviving joint payee would hold for real owner. Perry v. Perry's Ex'r, 98 Ky. 242 , 32 S.W. 755, 17 Ky. L. Rptr. 868 , 1895 Ky. LEXIS 47 (Ky. Ct. App. 1895). (See KRS 355.3-116.).

Where the survivor of two (2) joint payees of a note was the sole devisee of deceased joint payee, she was in fact the sole real owner. Perry v. Perry's Ex'r, 98 Ky. 242 , 32 S.W. 755, 17 Ky. L. Rptr. 868 , 1895 Ky. LEXIS 47 (Ky. Ct. App. 1895).

8.Joint Bank Account.

Where daughter was rendering services to father at time of creation of joint bank account with survivorship provision, daughter was entitled to account on father’s death on contract theory, even though on gift theory transaction might have been incomplete because father retained right to draw on account. Armstrong's Ex'r v. Morris Plan Industrial Bank, 282 Ky. 192 , 138 S.W.2d 359, 1940 Ky. LEXIS 154 ( Ky. 1940 ).

Where father changed bank accounts to joint accounts with daughter under written instrument giving each the right to draw on accounts and expressly providing that on death of one the accounts should become the absolute property of the survivor, the daughter was entitled to balance in accounts on father’s death, notwithstanding parol testimony that father intended merely to give daughter right to draw on accounts during his lifetime. Armstrong's Ex'r v. Morris Plan Industrial Bank, 282 Ky. 192 , 138 S.W.2d 359, 1940 Ky. LEXIS 154 ( Ky. 1940 ).

Where husband and wife placed their separate funds in a joint account, with express understanding with bank that either could draw on account, and that balance of account on death of either would pass to survivor, the wife was entitled to the account on the death of the husband. Bishop v. Bishop's Ex'x, 293 Ky. 652 , 170 S.W.2d 1, 1943 Ky. LEXIS 683 ( Ky. 1943 ).

9.Equal Division.

It was not error for court to direct commissioner to allot one (1) joint tenant’s share of land in division so that it would adjoin his home tract individually owned. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

The law requires not only an equal division according to values but a division by which no share will be materially impaired in value. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

A joint tenant cannot be required either to pay or to accept money as a compensation for any part of the tract in order that a division may be made. Strode v. Hardwick, 212 Ky. 36 , 278 S.W. 168, 1925 Ky. LEXIS 1068 ( Ky. 1925 ).

A partitioning of property in which one (1) tract would assume entire lien for street improvement, and two (2) other tracts would be released from their part of lien, was held unauthorized. Strode v. Hardwick, 212 Ky. 36 , 278 S.W. 168, 1925 Ky. LEXIS 1068 ( Ky. 1925 ).

Partition implies equality. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

A joint tenant could not be required either to pay or to accept money as a compensation for any part of the tract in order that a division could be made. Wrenn v. Gibson, 90 Ky. 189 , 13 S.W. 766, 12 Ky. L. Rptr. 26 , 1890 Ky. LEXIS 68 ( Ky. 189 0 ).

10.Oil and Gas Interest.

It is uniformly recognized that oil and gas interests in land shown to contain probable deposits of those commodities in paying quantities are not susceptible of partition in kind. Union Gas & Oil Co. v. Wiedeman Oil Co., 211 Ky. 361 , 277 S.W. 323, 1924 Ky. LEXIS 26 ( Ky. 1924 ). See Warfield Natural Gas Co. v. Cassady, 266 Ky. 217 , 98 S.W.2d 495, 1936 Ky. LEXIS 633 ( Ky. 1936 ); Osborn v. Osborn, 267 Ky. 757 , 103 S.W.2d 262, 1937 Ky. LEXIS 381 ( Ky. 1937 ).

There may be a division of the surface with each allotted part subject to the oil and gas lease, whether it be entire or fractional, or there may be a division of the lease by selling it and distributing the proceeds. Union Gas & Oil Co. v. Wiedeman Oil Co., 211 Ky. 361 , 277 S.W. 323, 1924 Ky. LEXIS 26 ( Ky. 1924 ). See Warfield Natural Gas Co. v. Cassady, 266 Ky. 217 , 98 S.W.2d 495, 1936 Ky. LEXIS 633 ( Ky. 1936 ); Osborn v. Osborn, 267 Ky. 757 , 103 S.W.2d 262, 1937 Ky. LEXIS 381 ( Ky. 1937 ).

The usual statutes relating to the partitioning of real estate do not apply to oil and gas because of the insuperable difficulty in determining an equitable division of these mobile elements as may be done as between owners of the surface. Osborn v. Osborn, 267 Ky. 757 , 103 S.W.2d 262, 1937 Ky. LEXIS 381 ( Ky. 1937 ).

Five (5) of the six (6) joint owners of a tract of land could not, by conveying their undivided interests in the oil, gas, and minerals therein, affect adversely the rights of the sixth joint owner or require him against his will to sever his mineral rights from the surface. Laws v. Sturgill, 287 Ky. 37 , 151 S.W.2d 423, 1941 Ky. LEXIS 482 ( Ky. 1941 ).

11.Land Containing Coal or Mineral Rights.

Although five (5) of six (6) joint owners of land containing minerals preferred to divide the land, the other joint owner had the right, under KRS 389.020 to have the entire tract sold on ground of indivisibility. Laws v. Sturgill, 287 Ky. 37 , 151 S.W.2d 423, 1941 Ky. LEXIS 482 ( Ky. 1941 ).

The generally established rule in this state is that a partition may generally best be had of a tract of mineral land by a sale on the ground of indivisibility. Laws v. Sturgill, 287 Ky. 37 , 151 S.W.2d 423, 1941 Ky. LEXIS 482 ( Ky. 1941 ).

Where defendant owned surface rights in one (1) parcel of land and another person owned surface rights in adjoining parcel, and these two (2) persons together with plaintiff each owned an undivided one third (1/3) of mineral rights under both parcels, defendant’s conveyance to another of the parcel owned by him, which conveyance purported to include an absolute title to the mineral rights, and which conveyance was acquiesced in and consented to by the other joint owners of the mineral rights, constituted a partition of the mineral rights, and severed any interest defendant had in the mineral rights under the surface of the other parcel. Fugate v. Smith, 290 Ky. 115 , 160 S.W.2d 328, 1942 Ky. LEXIS 344 ( Ky. 1942 ).

Land containing minerals may be partitioned unless the mineral is so situated that a fair division of it cannot be made by dividing the surface of the land, but mere speculation as to presence of minerals in commercially valuable amount is not sufficient to defeat partition. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

Where surface of land was capable of being divided fairly, the presence of coal seams and the probable presence of natural gas below the surface would not prevent partition in the absence of convincing proof that the coal and gas were capable of successful commercial development. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

Where there had never been any attempt to lease or develop coal and gas, and evidence indicated that coal and gas were not present in sufficient quantities to justify commercial development, it was proper to decree physical partition. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

12.Adverse Possession.

The possession by one (1) tenant in common or joint tenant is deemed to be the possession of his cotenants also, and the one in possession cannot acquire title by adverse possession as against his cotenants unless they have notice or knowledge that he denies their possession and claims adversely to them. Fordson Coal Co. v. Vanover, 291 Ky. 447 , 164 S.W.2d 966, 1942 Ky. LEXIS 251 ( Ky. 1942 ).

13.Death of Joint Tenant Prior to Testator.

Where mother and daughter were devised estate as joint tenants and the mother died before the testator, daughter and her brothers took mother’s share by operation of law. Holland v. Holland's Ex'r, 238 Ky. 841 , 38 S.W.2d 967, 1931 Ky. LEXIS 319 ( Ky. 1931 ).

14.Conveyance by One Joint Owner.

One (1) joint owner may not effect partition of jointly owned property by conveying a specific part of the property, but if other owners consent to, acquiesce in or ratify the conveyance, it becomes effective as a partition. This is true as to mineral rights as well as surface rights. Fugate v. Smith, 290 Ky. 115 , 160 S.W.2d 328, 1942 Ky. LEXIS 344 ( Ky. 1942 ).

15.Federal Estate Tax.

Entire value of property of joint tenants is subject to federal estate tax as part of gross estate. O'Shaughnessy v. Commissioner, 60 F.2d 235, 1932 U.S. App. LEXIS 2491 (6th Cir. 1932), cert. denied, 288 U.S. 605, 53 S. Ct. 397, 77 L. Ed. 980, 1933 U.S. LEXIS 114 (U.S. 1933).

16.Burden of Proof.

Joint tenant who objects to partition has burden of proving that land cannot be divided without injuring or prejudicing the interests of one (1) or more of the owners, or without impairment of value. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

Cited:

Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 , 143 A.L.R. 1087 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Distribution of property in case of simultaneous deaths, KRS 397.030 .

Joint owner paying tax has lien, KRS 134.070 .

Parceners have equal rights in inheritance, KRS 391.120 .

Kentucky Law Journal.

Gilbert, Taxation — Inheritance Tax — Interest in Joint Tenancy Passing by Survivorship, 27 Ky. L.J. 474 (1939).

Francis, Should Husband and Wife Hold Real Property with Survivorship? 37 Ky. L.J. 122 (1948).

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.130. Exceptions to KRS 381.120.

  1. KRS 381.120 shall not apply to any estate which joint tenants hold as executors or trustees, nor, except as provided in subsection (2) of this section, to an estate conveyed or devised to persons in their own right, when it manifestly appears, from the tenor of the instrument, that it was intended that the part of the one dying should belong to the others, neither shall it affect the mode of proceeding on any joint contract or judgment.
      1. Except as provided in paragraph (b) of this subsection, one (1) or more joint tenants of real property may partition their interest in the real property during their lifetime by deed or other instrument. (2) (a) 1. Except as provided in paragraph (b) of this subsection, one (1) or more joint tenants of real property may partition their interest in the real property during their lifetime by deed or other instrument.
      2. The deed or other instrument shall express the intent of the joint tenant to partition the joint tenant’s interest in the real property and shall be recorded at the office of the county clerk in the county where the real property or any portion of the real property is located.
      3. The partitioning shall be effective at the time the deed or other instrument is recorded.
    1. Residential real property that is owned exclusively by husband and wife as joint tenants with a right of survivorship and actually occupied by them as a principal residence shall not be partitioned as provided in paragraph (a) of this subsection.
    2. The deed or other instrument shall convert the partitioning joint tenant’s interest in the real property into a tenancy in common with the remaining joint tenants. If there are two (2) or more nonpartitioning joint tenants, the interests of the nonpartitioning joint tenants in relation to each other shall be governed pursuant to the terms of the instrument creating the interest.

History. 2349; 1998, ch. 267, § 2, effective July 15, 1998.

NOTES TO DECISIONS

1.Right of Survivorship.

A provision, in deed conveying land to husband and wife, “during their natural lives only, and at their death the same revert to the legal heirs of the party of the first part,” amounts to an express provision for right of survivorship, unless presumption is rebutted by terms of deed. McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S.W. 538, 23 Ky. L. Rptr. 113 , 1901 Ky. LEXIS 126 ( Ky. 1901 ).

The right of survivorship in estates held in joint tenancy was abolished by KRS 381.120 , unless the case falls within the provisions of this section. United States Fidelity & Guaranty Co. v. Jones, 133 Ky. 621 , 111 S.W. 298, 33 Ky. L. Rptr. 737 , 1908 Ky. LEXIS 130 ( Ky. 1908 ). See Osborne v. Hughes, 219 Ky. 116 , 292 S.W. 748, 1927 Ky. LEXIS 292 ( Ky. 1927 ); Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

When it is sought to establish that the estate of one (1) joint tenant passes the other by survivorship, the instrument relied on must make it clear that such was the purpose of the grantor or testator. United States Fidelity & Guaranty Co. v. Jones, 133 Ky. 621 , 111 S.W. 298, 33 Ky. L. Rptr. 737 , 1908 Ky. LEXIS 130 ( Ky. 1908 ). See Osborne v. Hughes, 219 Ky. 116 , 292 S.W. 748, 1927 Ky. LEXIS 292 ( Ky. 1927 ); Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

It manifestly appeared from tenor of will that testator intended the part of any child who might die before expiration of particular estate should go to the other children, conditioned that it would go to surviving issue of deceased child, if any. Gatto v. Gatto, 198 Ky. 569 , 250 S.W. 833, 1923 Ky. LEXIS 580 ( Ky. 1923 ).

Where will devised property to testator’s son and two (2) daughters as tenants in common, with mutual right of occupancy and with right of sale by mutual agreement, and with provision that upon death of any of devisees without issue his interest should pass to the survivors, each devisee was possessed of a defeasible fee in an undivided third of the property, plus the right to the future or executory estates which would come into existence when and if the other devisees died without issue, and during their lifetime each devisee had all the rights and privileges of a fee-simple owner subject to his sister’s right of occupancy and his interest could be sold on execution but if he should die prior to the death of his sister without leaving issue, purchaser’s title to property would be defeated. Sipes v. Boehmer, 291 Ky. 824 , 165 S.W.2d 807, 1942 Ky. LEXIS 326 ( Ky. 1942 ).

The clear intent of this section is to preserve the survivorship aspect of joint tenancies, where “it manifestly appears, from the tenor of the instrument, that it was intended that the part of the one dying should belong to the others.” Sanderson v. Saxon, 834 S.W.2d 676, 1992 Ky. LEXIS 101 ( Ky. 1992 ).

Where deed recited that the conveyance was “with survivorship” to the two (2) grantees “jointly and to the survivor”, the deed manifestly expressed the intent that the interest of the one first dying should belong to the other. This constituted a joint tenancy in accordance with KRS 381.120 . Sanderson v. Saxon, 834 S.W.2d 676, 1992 Ky. LEXIS 101 ( Ky. 1992 ).

When it was sought to establish that the estate of one (1) joint tenant passed the other by survivorship, the instrument relied on had to make it clear that such was the purpose of the grantor or testator. Truesdell v. White, 76 Ky. 616 , 1878 Ky. LEXIS 9 ( Ky. 1878 ).

2.Real Estate.

A deed in the usual form purporting to convey to husband and wife a fee-simple title to the land with provision “now it being understood that the said within conveyance reverts to the wife at the death of the husband or at the death of the wife said conveyance reverts to the husband” evidently meant that at the death of either the survivor took title to the whole tract of land. York v. Adams, 277 Ky. 577 , 126 S.W.2d 1077, 1939 Ky. LEXIS 693 ( Ky. 1939 ).

KRS 381.120 providing that a joint tenant’s part of the joint estate shall descend to his heirs when he dies was not applicable where it manifestly appeared from the will that should class members predecease the life tenant, their mother, the home farm was to be shared equally by the four (4) eldest sons, and a daughter of a class member who predeceased the life tenant had no interest in the home farm, since she had a vested remainder at testator’s death which was subject to complete defeasance if she did not survive her mother which was defeated by her death before her mother who was the life tenant. Cromer v. Acton, 298 S.W.2d 20, 1957 Ky. LEXIS 361 ( Ky. 1957 ).

3.Joint Bank Accounts.

Where daughter was rendering services to father at time of creation of joint bank account with survivorship provision, daughter was entitled to account on father’s death on contract theory, even though on gift theory transaction might have been incomplete because father retained right to draw on account. Armstrong's Ex'r v. Morris Plan Industrial Bank, 282 Ky. 192 , 138 S.W.2d 359, 1940 Ky. LEXIS 154 ( Ky. 1940 ).

Where husband and wife placed their separate funds in a joint account, with express understanding with bank that either could draw on account, and that balance of account on death of either would pass to survivor, the wife was entitled to the account on the death of the husband. Bishop v. Bishop's Ex'x, 293 Ky. 652 , 170 S.W.2d 1, 1943 Ky. LEXIS 683 ( Ky. 1943 ).

4.Notes.

Where the survivor of two (2) joint payees of a note was the sole devisee of deceased joint payee, she was in fact the sole real owner. Perry v. Perry's Ex'r, 98 Ky. 242 , 32 S.W. 755, 17 Ky. L. Rptr. 868 , 1895 Ky. LEXIS 47 (Ky. Ct. App. 1895).

5.Oil and Gas.

The usual statutes relating to the partitioning of real estate do not apply to oil and gas because of the insuperable difficulty in determining an equitable division of these mobile elements as may be done as between owners of the surface. Osborn v. Osborn, 267 Ky. 757 , 103 S.W.2d 262, 1937 Ky. LEXIS 381 ( Ky. 1937 ).

6.Taxation.

The transfer of estates by right of survivorship is taxable under KRS 140.050 . Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.135. Court-appointed commissioners to determine division of land jointly held and allotment of dower or curtesy — Survey requirement.

    1. As used in this subsection: (1) (a) As used in this subsection:
      1. “Ownership interest in a closely held farm corporation or partnership” means any interest in a farm with one (1) or more of the shareholders or partners owning twenty percent (20%) or more of the corporation or partnership.
      2. “Farm” means a tract of at least five (5) contiguous acres used for the production of agricultural or horticultural crops including, but not limited to, livestock, livestock products, poultry, poultry products, grain, hay, pastures, soybeans, tobacco, timber, orchard fruits, vegetables, flowers, or ornamental plants, including provision for dwellings for persons and their families who are engaged in the above agricultural use on the tract, but not including residential building development for sale or lease to the public.
    2. A person desiring a division of land held jointly with others, a person desiring an allotment of dower or curtesy, or a person with an ownership interest of twenty percent (20%) or more in a closely held farm corporation or partnership may file in the Circuit Court of the county in which the land or the greater part thereof lies a petition containing a description of the land, a statement of the names of those having an interest in it, and the amount of such interest, with a prayer for the division or allotment; and, thereupon, all persons interested in the property who have not united in the petition shall be summoned to answer not more than twenty (20) days after service of the summons. The written evidences of the title to the land, or copies thereof, if there be any, must be filed with the petition.
  1. The statutory guardian of an infant or guardian or conservator of a person adjudged mentally disabled may file or unite in the petition, in the names of, and in conjunction with such infant or mentally disabled person; and, if the petition be against an infant or mentally disabled person the guardian or conservator may appear and defend for them; if they fail to do so, the court shall appoint a discreet person for that purpose.
  2. Upon such a petition by all interested in the property, or upon the expiration of twenty (20) days after the service of a summons on all who have an interest in the property and have not united in the petition, the court may order the division, or allotment of dower or curtesy, according to the rights of the parties.
  3. The court shall appoint three (3) competent persons as commissioners to determine the division or allotment of land, having a due regard for the rights of all parties interested. Before proceeding to act, the commissioners shall take an oath to discharge their duty impartially.
  4. The order of appointment shall fix a time and place for the meeting of the commissioners who shall meet accordingly; but, if prevented from meeting at the time and place so fixed, they may meet as soon thereafter as convenient, and may adjourn to such other time and place as they may agree upon, until their duty shall be performed.
  5. The commissioners shall equitably determine the allotment to the parties of their respective interests in the land. A registered land surveyor shall perform the actual survey of the land in accordance with the determination made by the commissioners, and prepare the descriptions of the land, including all related maps, plats, and documents, and he shall affix thereto his personal seal and signature, unless such actual survey and the resultant description, maps, plats, and documents pertaining to this land are already in existence. The commissioners shall make report thereof to the court, which may either confirm, set aside, or remand the report to the commissioners for correction.
  6. If the report be confirmed, a commissioner to be appointed for the purpose shall, by deed, convey to each party the land allotted to him.
  7. If the report be confirmed by the Circuit Court, it, together with said surveyor’s descriptions, survey and all related documents, and the applicable deeds shall be certified by the clerk of that court to the county clerk, for record.
  8. Two (2) of the commissioners may act, if one (1) refuses or fails to do so.
  9. A party summoned may, by answer, controvert the allegations of the petition or contest the rights claimed therein; and, thereupon, the case shall be tried and decided as an ordinary action, but without the intervention of a jury.
  10. The costs of the action shall be apportioned among the parties in the ratio of their interests, except that the costs arising from a contest of fact or law shall be adjudged against the unsuccessful party.
  11. No verification of the pleadings shall be required.
  12. The commissioners and the land surveyor shall be paid a reasonable compensation, to be taxed as costs.
  13. This section shall not affect the jurisdiction of courts of equity to make partition or allot dower or curtesy.

History. C.C. 499: trans. Acts 1952, ch. 84, § 1; 1974, ch. 386, § 68; 1976 (Ex. Sess.), ch. 14, § 302, effective January 2, 1978; 1978, ch. 384, § 508, effective June 17, 1978; 1982, ch. 141, § 96, effective July 1, 1982; 1988, ch. 227, § 1, effective July 15, 1988; 1998, ch. 316, § 1, effective July 15, 1998.

Compiler’s Notes.

This section was amended by § 105 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Construction.

It is the rule in this state that the law favors a division of land in kind rather than a sale and a division of the proceeds and this rule particularly obtains where the property sought to be divided or sold is farmland or other parcels of real estate reasonably susceptible of division. However, with respect to town lots, it has been consistently held that the court will presume, without necessity of proof, that such lot is not susceptible of advantageous division. Fannin v. Fannin, 256 Ky. 273 , 75 S.W.2d 1042, 1934 Ky. LEXIS 375 ( Ky. 1934 ).

Where the owner of an undivided remainder interest and the life tenant filed a petition in equity against the other owners of remainder interests for partition of the remainder, it was an equitable action for partition under subsection (14) of this section as opposed to one to divide lands jointly owned under subsection (1). Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

2.Application.

Procedure set forth in this section relating to partition by joint tenants applies under KRS 381.136 relating to partition by life tenants. Atkinson v. Kish, 420 S.W.2d 104, 1967 Ky. LEXIS 96 ( Ky. 1967 ).

3.Jurisdiction.

The county court has jurisdiction to divide land which is held jointly by two (2) or more persons, and, upon an application for a division by one of several joint owners, may hear and determine any equitable defense that may be pleaded against a division. Hopkins v. Crouch, 86 Ky. 281 , 5 S.W. 557, 9 Ky. L. Rptr. 554 , 1887 Ky. LEXIS 125 ( Ky. 1887 ).

Where the right to partition the land is contested or the title to the land is involved, then on the motion of either party the action is to be removed to the Circuit Court for the trial of the question of title. Hunt v. Phillips, 105 S.W. 445, 32 Ky. L. Rptr. 257 (1907).

The Circuit Court and the county court have jurisdiction over partition proceedings, and the pendency of such a suit in one court constitutes a bar to a later filed suit in a different or the same court. Webb v. Martin, 194 Ky. 360 , 238 S.W. 1043, 1922 Ky. LEXIS 153 ( Ky. 1922 ).

Subject to the right of a party to have the action removed from the county court to the Circuit Court after the filing of an answer controverting the allegations of the petition, or contesting the rights therein claimed, county courts and circuit courts have concurrent jurisdiction of partition proceedings. Duke v. Allen, 198 Ky. 368 , 248 S.W. 894, 1923 Ky. LEXIS 458 ( Ky. 1923 ).

A county court, in a proceeding to partition land, is a court of general jurisdiction, and its judgment is immune from collateral attack as the judgment of any other court of general jurisdiction, and the same presumptions are indulged in its favor. Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ).

County courts and Circuit Courts have concurrent jurisdiction of partition proceedings and, from a final judgment rendered by either court an appeal, may be taken to the Court of Appeals, but a claim to dower is an assertion of a right to an interest in real estate and the Circuit Court has exclusive jurisdiction under KRS 23.010 of actions in which the title to real estate is in question. Newsome v. Reynolds, 262 Ky. 484 , 90 S.W.2d 682, 1936 Ky. LEXIS 44 ( Ky. 1936 ).

Sale of property and distribution of proceeds was properly ordered by common-law court where it determined land could not be partitioned though court failed to enter an order transferring the case to the equity docket. Cunningham v. Grey, 271 Ky. 84 , 111 S.W.2d 579, 1937 Ky. LEXIS 200 ( Ky. 1937 ).

The Circuit Court properly adjudicated the validity of two (2) deeds under which plaintiff was claiming in a partition proceeding and the proceeding did not constitute a collateral attack on the deeds. Combs v. Combs, 305 Ky. 358 , 204 S.W.2d 361, 1947 Ky. LEXIS 816 ( Ky. 1947 ).

4.Authority of Court.

Under this section the court has no power to make partition or to specifically direct the commissioners how to make the division. Garth's Guardian v. Thompson, 110 Ky. 984 , 63 S.W. 40, 23 Ky. L. Rptr. 403 , 1901 Ky. LEXIS 164 ( Ky. 1901 ).

The court has no authority to partition land, or direct the commissioners how to make the division, but the partition should be set aside and new commissioners appointed to make proper partition where a party is entitled to such relief. Rudy v. Ramey, 160 Ky. 842 , 170 S.W. 179, 1914 Ky. LEXIS 541 ( Ky. 1914 ).

In statutory partition, court may not partition land or direct commissioners how to make division. However, in partition in equity, parties, by pleadings, may make issues they deem best, and court must try issues as in other equitable actions, and may adjudge parties’ rights as to taxes, rents, improvements, owelty and reasonable easements authorized by the pleadings. Howard v. Long, 238 Ky. 822 , 38 S.W.2d 951, 1931 Ky. LEXIS 317 ( Ky. 1931 ).

In statutory petition the court could not partition land or direct commissioners how to make division but it had authority only to direct commissioners to make partition having due regard to rights of all interested parties and to divide it as nearly equal as possible, considering quantity, quality and value. Kirk v. Maynard, 298 Ky. 576 , 183 S.W.2d 547, 1944 Ky. LEXIS 949 ( Ky. 1944 ).

In statutory proceedings the trial court had to appoint commissioners and follow proceedings provided by law and it did not have authority to find that parties had orally agreed to partition land they had inherited from their mother. Boyers v. Boyers, 310 Ky. 727 , 221 S.W.2d 657, 1949 Ky. LEXIS 1002 ( Ky. 1949 ).

5.Allotment of Dower.

Although dower was never actually allotted to widow under this section, a right of dower passed to her and it was this right of dower which was the basis of her suit for the sale of the real estate and not her right of quarantine under KRS 392.050 , which right was not a vested interest, and marital deduction should have been allowed as to the cash amount received by her in settlement of her dower interest in real estate owned by her and others as tenants in common. Dougherty v. United States, 292 F.2d 331, 1961 U.S. App. LEXIS 3942 (6th Cir. Ky. 1961 ).

The heirs or the widow can proceed under this section to have dower admeasured, allotted and assigned to the widow or, if the real estate cannot be divided without materially impairing its value or the value of the widow’s interest therein, the widow has the right under KRS 389.050 to have that real estate sold free of her contingent right to dower and to obtain a reasonable compensation out of the proceeds of sale. Moore v. United States, 214 F. Supp. 603, 1963 U.S. Dist. LEXIS 10294 (W.D. Ky. 1963 ).

In an equitable action for allotment of dower, the court may direct the commissioners as to the character of the division they should make. Laferty v. Robinson, 241 Ky. 512 , 44 S.W.2d 524, 1931 Ky. LEXIS 109 ( Ky. 1931 ).

6.Persons Entitled to Partition.

A owned one undivided half of a tract of land in remainder. B owned the other half in remainder. C owned a life estate in the entire tract. A, having leased C’s life estate, applied to the county court for a division of the land which was resisted by B. Upon hearing, the court dismissed A’s petition. The court acted properly in refusing the division, as to divide the land would furnish A both the motive and the power to improve his portion of the land, and throw the burden of cultivation on B’s portion. Hopkins v. Crouch, 86 Ky. 281 , 5 S.W. 557, 9 Ky. L. Rptr. 554 , 1887 Ky. LEXIS 125 ( Ky. 1887 ).

Fee owners of an undivided portion of land may, under this section, have a partition thereof that will be binding not only on the owner of the life estate in the other portion, but the owners of the remainder after the life estate. Turley v. Turley, 193 Ky. 151 , 235 S.W. 18, 1921 Ky. LEXIS 198 ( Ky. 1921 ).

Holder of an undivided interest in fee and an undivided interest for life who has placed lasting and valuable improvements with his own funds on the property is entitled in a partition to have set apart to him that part of the land upon which the improvements have been placed, if the allotment can be so made without injury or detriment to the other interest. Orsburn v. Orsburn, 196 Ky. 176 , 244 S.W. 417, 1922 Ky. LEXIS 484 ( Ky. 1922 ).

One having fee-simple title to one-half (1/2) undivided interest in tract of land, and also a life estate in the other one-half (1/2) undivided interest therein, is entitled to a partition as against contingent remaindermen having an interest in the one-half (1/2) undivided interest which he holds for life under the same instrument, there being at the time no vested remaindermen in existence. Orsburn v. Orsburn, 196 Ky. 176 , 244 S.W. 417, 1922 Ky. LEXIS 484 ( Ky. 1922 ).

This section does not limit the persons between whom a court may make a partition of lands to holders of legal titles. The term used therein to describe the person who may compel a partition is one holding land jointly with others. It includes a coparcener, tenant in common, joint tenant, and the holders of both legal and equitable titles. Holder of an equitable title to an interest in land, if he has a present right of possession in contradistinction to an interest to be enjoyed in the future such as a remainder or a reversion, may assert his right and have a partition. Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ).

In action brought by her committee, chancellor did not err in setting apart to mental incompetent an undivided one-fourth (1/4) interest in land inherited from her father where she was not made a party to action to settle her cotenant brother’s estate and the entire land was sold at judicial sale to pay her deceased brother’s debts. Flanery v. Greene, 289 Ky. 244 , 158 S.W.2d 413, 1942 Ky. LEXIS 525 ( Ky. 1942 ).

7.Parties.

In action brought by part of appellees, under this section, for division of land among heirs of the deceased, and all persons claiming under the deceased appear to have been made parties, lower court properly refused to permit filing of petition by other parties setting up claim of title to part of the tract, adverse to title of deceased. Bacon v. Boyd, 34 S.W. 525, 17 Ky. L. Rptr. 1276 (1896).

In an action for partition of land under this section, it is not necessary to make one who has mortgage lien on the one-fifth (1/5) interest of one of the owners a party to such action. When a person takes a lien upon an undivided interest in land, he must receive it with the understanding that his lien will follow upon the particular interest wherever placed in the division. Barry v. Baker, 93 S.W. 1061, 29 Ky. L. Rptr. 573 (1906).

Where wife, a contingent remainderman, died before termination of life estate, she was at no time seized of the land, and her husband was therefore not entitled to curtesy. Hence, his demurrer to petition for division filed by other remaindermen was properly overruled. Hunt v. Phillips, 105 S.W. 445, 32 Ky. L. Rptr. 257 (1907).

A valid partition may not be had unless all the tenants in common have been subjected to the jurisdiction of the court rendering the decree. Hence, judgment ordering partition of land is reversed with directions to have made parties the heirs at law of two (2) of the plaintiffs who died pending the action, without revivor. Burchett v. Clark, 162 Ky. 586 , 172 S.W. 1048, 1915 Ky. LEXIS 124 ( Ky. 1915 ).

Remaindermen are proper parties to action for partition under this section. Turley v. Turley, 193 Ky. 151 , 235 S.W. 18, 1921 Ky. LEXIS 198 ( Ky. 1921 ).

8.— Infants.

This section clearly contemplates that, in suit for partition of real estate held jointly by infants and adults, the infants shall be parties to the proceeding, either as plaintiffs or defendants, in order to divest them of title. Blue v. Waters, 114 Ky. 659 , 71 S.W. 889, 24 Ky. L. Rptr. 1481 , 1903 Ky. LEXIS 33 ( Ky. 1903 ).

While infants are necessary parties to an action for partition of land held by them as joint tenants, and a judgment of partition in a suit to which they were not parties was erroneous, their statutory guardian, after they have been brought before the court, may in open court adopt the report if the partition was equal and just. Blue v. Waters, 114 Ky. 659 , 71 S.W. 889, 24 Ky. L. Rptr. 1481 , 1903 Ky. LEXIS 33 ( Ky. 1903 ).

It is not a valid objection that one of the plaintiffs was under 21 years of age, where all parties in interest in the property are made parties in action and, under this section, the statutory guardian of an infant may file or unite in a petition in the name of and in conjunction with such infant. Kentucky Fluor Spar Co. v. Pierce's Ex'rs, 184 Ky. 573 , 213 S.W. 542, 1919 Ky. LEXIS 138 ( Ky. 1919 ).

9.Possession.

To maintain an action under this section for division of land by one cotenant against another, it is not necessary that the one who brings the suit be in possession of the land. Williams v. Capital Mining, Lumber & Oil Co., 153 Ky. 772 , 156 S.W. 409, 1913 Ky. LEXIS 919 ( Ky. 1913 ).

10.Pleading.

Allegation in petition that the deceased husband and plaintiff owned it jointly, he owning an undivided two thirds (2/3) and she the other third, and that they had been in possession of it and living on it for 30 years up to his death was a sufficient averment of seizure of title and possession. Bartee v. Edmunds, 96 S.W. 535, 29 Ky. L. Rptr. 872 (1906)

Petition in action to divide land did not conform to requirements of this section, the statements being mere conclusions of the pleader and not sufficient to show title. Toler's Heirs v. Toler, 110 S.W. 388, 33 Ky. L. Rptr. 594 (1908).

In action under this section for division or partition of land held jointly, while the petition is uncertain as to the relief desired, as amended it contains all material allegations necessary to a partition, and is a substantial compliance with the law. While it would have been much better for plaintiff to have described the land in the body of his pleadings, the description contained in the deeds filed with his pleadings will be regarded as sufficient. Nickels v. Mineral Development Co., 152 Ky. 198 , 153 S.W. 235, 1913 Ky. LEXIS 635 ( Ky. 1913 ).

Petition alleging plaintiff owned by inheritance one tenth of land and failing to allege the names and interest of the other nine tenths was fatally defective. Bates v. Hanks, 262 Ky. 556 , 90 S.W.2d 743, 1935 Ky. LEXIS 793 ( Ky. 1935 ).

Petition which alleged that the plaintiff held land jointly with others, described land, gave the names of those having an interest in it, and amount of such interest, contained prayer for allotment of dower and division of property, and had filed with it written evidence of plaintiff’s title to land, together with affidavit showing the other joint owners acquired title by descent was not demurrable, although it is shown that tract contained 40 acres to be partitioned among seven persons after allotment of dower. Morrison v. Bartlett, 263 Ky. 767 , 93 S.W.2d 843, 1936 Ky. LEXIS 244 ( Ky. 1936 ).

Where the only pleadings filed asked for a partition of land, no proof was taken and one of the joint owners was not before the court, chancellor clearly erred in ordering sale. Newsom v. Johnson, 255 S.W.2d 33, 1953 Ky. LEXIS 634 ( Ky. 1953 ).

11.— Filing Evidence of Title.

Failing to file title papers in an action is not ground for demurrer; the proper practice is to have the plaintiff ordered to file them. Bartee v. Edmunds, 96 S.W. 535, 29 Ky. L. Rptr. 872 (1906).

This section requires that the written evidence of the title to the land, or copies thereof, if there be any, must be filed with the petition. Toler's Heirs v. Toler, 110 S.W. 388, 33 Ky. L. Rptr. 594 (1908).

In order to take advantage of failure to file written evidences of title, as required by this section, a motion to that effect must have been made in the trial court and, in the absence of such motion, the defect is held to have been waived. Vanover v. Steele, 173 Ky. 114 , 190 S.W. 667, 1917 Ky. LEXIS 414 ( Ky. 1917 ).

An owner of an undivided interest in land should not be deprived of his right to have his interest set apart to him because he could not file title papers, because cases may arise when it is not possible to file the title papers or copies thereof, and in such cases it is only necessary to comply as nearly with the provisions of this section as possible. Kerr v. Watkins, 234 Ky. 104 , 27 S.W.2d 679, 1930 Ky. LEXIS 130 ( Ky. 1930 ).

12.Service of Summons.

The words “summoned” and “service of summons” mean service in any way that is appropriate and authorized and are broad enough to include constructive service. Ezzell v. Exall, 211 Ky. 814 , 278 S.W. 155, 1925 Ky. LEXIS 974 ( Ky. 1925 ).

Valid partition of lands may not be had where summons is not served upon defendants ten days before commencement of term in which orders are entered. Whittaker v. Combs, 253 S.W.2d 400, 1952 Ky. LEXIS 1094 ( Ky. 1952 ).

13.Report of Commissioners.

Where the three commissioners selected by agreement of the parties to divide the land reported that they had made a fair and equal division, while four witnesses, one of them being appellant, made affidavit that the division was unequal, the report of the commissioners must control. Mead v. Mead, 101 S.W. 330, 31 Ky. L. Rptr. 70 (1907).

Commissioners could not create passway over land where such did not already exist and where the judgment did not direct them to do so. Howard v. Long, 238 Ky. 822 , 38 S.W.2d 951, 1931 Ky. LEXIS 317 ( Ky. 1931 ).

A report of division of land by disinterested commissioners will not be set aside as unequal where the testimony, though conflicting, is sufficient to support it. Ratliff v. Yost, 263 Ky. 239 , 92 S.W.2d 95, 1936 Ky. LEXIS 165 ( Ky. 1936 ).

Where action is brought by son against sister and mother for sale of alleged indivisible property, jointly owned by brother and sister, subject to dower rights of mother, and mother and sister joined issue asking that dower be set apart but sought no further partition, report of commissioners, dividing the property in half and allotting dower in a portion of the western half, including the dwelling house and curtilage, should not be set aside where there is substantial evidence to support it. Purcell v. Purcell, 303 Ky. 478 , 198 S.W.2d 43, 1946 Ky. LEXIS 874 ( Ky. 1946 ).

It is the rule that a report of division of land by disinterested commissioners should not be set aside when there is substantial evidence to support it and this is especially so on appeal where the report has been confirmed by the chancellor and, unless the finding of the chancellor overruling the exceptions and confirming the report is against the weight of the evidence, it will not be disturbed. Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

14.Order of County Court.

Where order was made in the county court appointing commissioners to set apart the dower interest to the widow and to divide the remainder of the land among seven heirs and, after the report of the division was made, one of the heirs filed an answer alleging that one of the heirs was not entitled to a share in the division as he had already received form his father land worth much more than the interest of any of the children in the remainder, and on appeal it was insisted that the court had no power at a subsequent term to change the order of division, as it was a final order, and the only remedy was by appeal, the order directing commissioners to make a division of land was not final and county court had power to set aside report of division at its next term. Salyer v. Arnett, 62 S.W. 1031, 23 Ky. L. Rptr. 321 , 1901 Ky. LEXIS 467 (Ky. Ct. App. 1901).

15.Re-reference to Commissioners.

Upon the rejection of the report of division, a re-reference should have been had to the same or other commissioners, as the court had no power to make partition except by confirming a report of commissioners. Eakins v. Eakins, 112 Ky. 347 , 65 S.W. 811, 23 Ky. L. Rptr. 1637 , 1901 Ky. LEXIS 317 ( Ky. 1901 ).

16.Method of Partition.

The equitable rule is to lay off a portion to each cotenant adjoining the lands owned by him, if this can be done without material injury to the other cotenants, or, if this cannot be done, then so to allot the lands as to serve best the convenience of all the parties. Ratliff v. Yost, 263 Ky. 239 , 92 S.W.2d 95, 1936 Ky. LEXIS 165 ( Ky. 1936 ). See Kirk v. Maynard, 298 Ky. 576 , 183 S.W.2d 547, 1944 Ky. LEXIS 949 ( Ky. 1944 ); Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

17.Judgment.

Judgment ordering sale and division of proceeds instead of partition in kind was in error where spouses, objecting to partition on ground oil and gas existed under the land and there was a possibility of development of coal, conceded divisibility of the land and that existence of oil and gas was speculative and possibility of developing coal remote. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

18.Payment of Attorneys.

Where there is a contest over the right or advisability of partition, attorneys should be paid by the parties they represent. Lang v. Constance, 46 S.W. 693, 20 Ky. L. Rptr. 502 (1898).

19.Warranty of Title.

Where there is a compulsory partition of lands between joint tenants, tenants in common or coparceners, neither the commissioner who conveys the separate allotments nor the court has any authority to insert in the deed a warranty of the title to the land allotted, and if such warranty is inserted in such a deed, in the absence of any fact creating an estoppel to deny the obligations upon the warranty, the owners will not be bound by the warranty, except to the extent of the partitioners and their heirs, and such warranty cannot be invoked by an alienee of one of the joint owners after partition is made, as it will not run with the land. Beale v. Stroud, 191 Ky. 755 , 231 S.W. 522, 1921 Ky. LEXIS 391 ( Ky. 1921 ).

20.Appeal.

Where land is partitioned in the county court, pursuant to this section, and the error of which any of the parties complaints appears in the record as made up in the county court, his remedy is by appeal directly to the Court of Appeals. Howard v. Deems, 178 Ky. 760 , 199 S.W. 1079, 1918 Ky. LEXIS 458 ( Ky. 1918 ).

An appeal may be taken to the Court of Appeals from a final judgment whether rendered by the Circuit Court or the county court. Davis v. Caudill, 263 Ky. 214 , 92 S.W.2d 62, 1936 Ky. LEXIS 155 ( Ky. 1936 ).

Cited:

Adams v. De Dominguez, 129 Ky. 599 , 112 S.W. 663, 1908 Ky. LEXIS 199 ( Ky. 1908 ); Cochran v. Simmons, 177 Ky. 562 , 197 S.W. 930, 1917 Ky. LEXIS 606 (1917); Bettes v. Rogers, 281 Ky. 118 , 135 S.W.2d 74, 1939 Ky. LEXIS 25 ( Ky. 1939 ); Morrison v. Bartlett, 292 Ky. 530 , 166 S.W.2d 989, 1942 Ky. LEXIS 117 ( Ky. 1942 ); Whitaker v. Fields, 377 S.W.2d 67, 1964 Ky. LEXIS 478 ( Ky. 1964 ); Branham v. Estate of Elkins, 425 S.W.3d 103, 2014 Ky. App. LEXIS 17 (Ky. Ct. App. 2014).

Research References and Practice Aids

Cross-References.

Commissioner’s fees, KRS 64.270 .

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Property Should be Divided Rather Than Sold, Form 318.04.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Partition, Form 318.03.

Caldwell’s Kentucky Form Book, 5th Ed., Order Awarding Dower and Appointing Commissioners, Form 254.10.

Caldwell’s Kentucky Form Book, 5th Ed., Order Confirming Commissioners’ Report Allotting Dower, Form 254.14.

Caldwell’s Kentucky Form Book, 5th Ed., Order Filing Report of Commissioners to Allot Dower, Form 254.13.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse against Decedent Spouse’s Grantee, Form 254.05.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse — Land Divisible, Form 254.07.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse — Land Indivisible, Form 254.08.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Partition of Jointly Owned Real Property, Form 230.18.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Infants, § 257.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Partition and Judicial Sales, § 318.00.

Caldwell’s Kentucky Form Book, 5th Ed., Report of Commissioners, Form 254.11.

Caldwell’s Kentucky Form Book, 5th Ed., Report of Commissioners (Another Form), Form 254.12.

Caldwell’s Kentucky Form Book, 5th Ed., Summons (AOC 105), Form 254.09.

381.136. Life tenants and their descendants — Partition.

  1. Where the land is held under a deed or will vesting a life estate in two (2) or more persons or in trust for their benefit, with remainder as to the share of each to his or her children or descendants, it shall be lawful for a court of equity, on the petition of one (1) of such life tenants and his or her children or descendants who would then be entitled to such remainder, all persons having interests in such lands being made parties, to partition such land so as to set apart to such life tenants and children or descendants so much of said land to which they shall be entitled in severalty; and to that alone shall attach the title or interest of after-born children or descendants in whom, by the terms of said deed or will, such a remainder would vest.
  2. Where part of the land so held shall be situated in this state and part in another state, the court may, in making partition, take into consideration the value of all of said land, and set apart to those resident in this state land in this state equal to their full share of all said land, securing, by proper deeds and orders to the nonresidents, release of the interest of such residents in the lands in the other state or territory.

History. C.C. 499a: amend. Acts 1886, ch. 1171, §§ 1, 2; trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.In General.

Because a Circuit Court had subject matter jurisdiction over a partition action pursuant to a constitutional grant of general jurisdiction, any error associated with the application of KRS 381.136 rendered the judgment voidable, not void. Hisle v. Lexington-Fayette Urban County Gov't, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008).

Generally, state courts of general jurisdiction have in rem subject matter jurisdiction over real property in the state. While a partition action is in the nature of an in rem proceeding, it also has characteristics of a quasi in rem proceeding because it deals with the title to realty and operates as to the parties in the proceeding. Accordingly, a partition action requires both in rem subject matter jurisdiction and personal jurisdiction. Hisle v. Lexington-Fayette Urban County Gov't, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008).

2.Application.

This section did not apply where one person owned a nine-tenths (9/10) interest for life and the owners of the one-tenth (1/10) remainder did not own under the life tenant but by deed from testator’s children. Eversole v. Combs, 130 Ky. 82 , 112 S.W. 1132, 1908 Ky. LEXIS 242 ( Ky. 1908 ).

3.Procedure.

Procedures set forth under KRS 381.135 are applicable under this section and court cannot divide land without an examination and report by commissioners regardless of authority under which action for partition is brought. Atkinson v. Kish, 420 S.W.2d 104, 1967 Ky. LEXIS 96 ( Ky. 1967 ).

4.Division Between Life Tenants.

Owner of one tenth (1/10) of tract of land for life of person who owns the other nine tenths (9/10) of the tract for life may have the tract divided as between them but he is entitled to no relief against the other remainderman and, at the death of the person on whom the life estates depend, the whole body of land would have to be divided again. Eversole v. Combs, 130 Ky. 82 , 112 S.W. 1132, 1908 Ky. LEXIS 242 ( Ky. 1908 ).

381.140. Posthumous child may take estate in remainder.

When any estate is limited by deed or will in remainder to the son or daughter, or the use of the son or daughter to be begotten of any person, such son or daughter, born after the death of his or her parent, shall take the estate in the same manner as if he or she had been born in the lifetime of the parent although no estate was created to support the remainder after the death of the parent.

History. 2350.

381.150. Conveyance of greater estate than grantor owns — Effect.

A deed and warranty of land purporting to pass or assure a greater right or estate than the person can lawfully pass or assure, shall operate to convey on warrant so much of the right and estate as such person can lawfully convey. If such conveyance is made by a tenant for life it shall not work a forfeiture of his estate.

History. 2291, 2351.

NOTES TO DECISIONS

1.In General.

A deed can only convey title to land actually owned by grantor and the grantee takes no greater title under a deed than the grantor had. York v. Perkins, 269 S.W.2d 242, 1954 Ky. LEXIS 977 ( Ky. 1954 ).

2.Application.

This section and KRS 381.160 did not apply where father conveyed his land in unequal portions to his sons, but did not convey a greater estate to first son than he had, and the grantee of the second son who received the larger portion claimed part of the land held by the first son. Steele v. Ferrell, 288 Ky. 392 , 156 S.W.2d 153, 1941 Ky. LEXIS 100 ( Ky. 1941 ).

Where two couples each owned one-half undivided interest in the property as cotenants, deeds that conveyed one of the couples’ interest in the property should not be rescinded because as tenants in common they could convey their interests without consulting the other cotenants, and the effect is to convey only the interest the couple could lawfully convey. 2007 U.S. Dist. LEXIS 67974.

3.Life Tenant.

The most a deed from life tenant and trustee could convey would be a life estate. Fox v. Faulkner, 222 Ky. 584 , 1 S.W.2d 1079, 1927 Ky. LEXIS 956 ( Ky. 1927 ).

Where master commissioner’s deed conveyed only a life estate in land to woman, and remainder belonged to her children, she could not acquire title by adverse possession. Kerr v. Watkins, 234 Ky. 104 , 27 S.W.2d 679, 1930 Ky. LEXIS 130 ( Ky. 1930 ).

A deed by the life tenant purporting to convey the fee only passes a life estate. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

An attempt by the life tenant to convey the fee does not affect the remainderman or his interest. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

While by the common law a tenant for life who executed a deed conveying the property in fee accelerated the remainder and gave the remainderman an immediate right of entry, this was remedied in this state by law prior to 1852. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

The vendee of a life tenant takes only a life estate, notwithstanding the deed of the life tenant purports to convey a fee-simple title. Adkins v. Hackworth, 279 Ky. 352 , 130 S.W.2d 774, 1939 Ky. LEXIS 277 ( Ky. 1939 ).

Grantees obtained from the life tenant only the estate he actually had and not the fee simple he pretended to convey and possession by grantees and life tenant grantor were not adverse to remainder interest for they were constructively notified by recordation of deed of remainder interest and they did nothing to signify to remaindermen that they were claiming adversely. McDonald v. Burke, 288 S.W.2d 363, 1955 Ky. LEXIS 3 ( Ky. 1955 ).

4.Life Estate with Remainder to Heirs.

Where deceased held a life estate with remainder to heirs of her body, a deed of surviving husband and children conveyed remainder interests held by children. Elkhorn Land & Improv. Co. v. Wallace, 232 Ky. 741 , 24 S.W.2d 560, 1930 Ky. LEXIS 72 ( Ky. 1930 ).

5.Income for Life with Contingent Remainder.

Where will created trust providing that one third (1/3) of income be paid to widow and two thirds (2/3) to children, and corpus was to be divided among children and grandchildren living at time of wife’s death, children could not terminate trust by deeds to their mother, since their interests were contingent, but deeds would be effective to entitle mother to their share of the income. Weisser's Trustee v. Mulloy, 276 Ky. 427 , 124 S.W.2d 496, 1939 Ky. LEXIS 535 ( Ky. 1939 ).

6.Homestead Right.

Deed of widow passed only her homestead right and not a fee simple. Howard v. Mitchell, 268 Ky. 429 , 105 S.W.2d 128, 1936 Ky. LEXIS 775 ( Ky. 1936 ).

7.Lessee.

Deed by tenant in possession in premises under a lease could convey only his tenancy. Fordson Coal Co. v. Wells, 245 Ky. 291 , 53 S.W.2d 564, 1932 Ky. LEXIS 591 ( Ky. 1932 ).

8.Lessors.

Where lessors had inherited an undivided interest, and had purchased an additional interest, that lease embraced both interests. Preston's Heirs v. Preston, 279 Ky. 401 , 130 S.W.2d 797, 1939 Ky. LEXIS 286 ( Ky. 1939 ).

9.Minerals.

A lease of minerals underlying land surface is a sale of a portion of the realty. Mills v. Mills, 275 Ky. 431 , 121 S.W.2d 962, 1938 Ky. LEXIS 450 ( Ky. 1938 ).

Lease of minerals underlying land surface, by persons owning undivided fourth of land in fee and life estate in other three fourths (3/4), was valid, but lessors were entitled only to one fourth (1/4) of royalties and income from remaining three fourths (3/4) of royalties, the corpus to be preserved for remaindermen. Mills v. Mills, 275 Ky. 431 , 121 S.W.2d 962, 1938 Ky. LEXIS 450 ( Ky. 1938 ).

Where deed purported to convey entire fee simple but, at time of conveyance, grantor actually owned only an undivided interest in the land, “reservation” of mineral rights in favor of grantor was effective only as to undivided portion of mineral rights equal to grantor’s undivided interest in land. Clark v. Pauley, 291 Ky. 637 , 165 S.W.2d 161, 1942 Ky. LEXIS 284 ( Ky. 1942 ).

Evidence was insufficient to establish a prior claim to mineral rights where it was claimed title bond or option to plaintiff’s predecessor was lost by fire and the usual length of time for such options was three (3) to six (6) months and, if an option or title bond had existed, it would have expired prior to the deeds to defendants. Federal Oil, Gas & Coal Co. v. Maynard, 63 F. Supp. 436, 1943 U.S. Dist. LEXIS 1643 (D. Ky. 1943 ), aff'd, 152 F.2d 372, 1945 U.S. App. LEXIS 2290 (6th Cir. Ky. 1945 ).

10.Covenant of Warranty.

A vendee, holding land under covenant of general warranty, may not be ousted from the estate by parties claiming under vendor who received from vendor a gratuitous estate of greater value than they seek to recover from vendee, regardless of when claimants received estate. Federal Gas, Oil & Coal Co. v. Maynard, 152 F.2d 372, 1945 U.S. App. LEXIS 2290 (6th Cir. Ky. 1945 ).

11.Exception from Warranty Clause.

The fact that grantor in deed excepted a portion of the conveyed property from the warranty clause did not constitute an admission that grantor did not claim title to such portion. Conyers' Adm'x v. McGee, 294 Ky. 382 , 171 S.W.2d 450, 1943 Ky. LEXIS 436 ( Ky. 1943 ).

12.Rights of Vendee.

A vendee in possession under a general warranty deed must sue at law for any breach of warranty and may not have equitable relief of cancellation in absence of extraordinary circumstances, but a vendee not in possession, and who cannot lawfully be put in possession because vendor had no title, may sue in equity for rescission. Creech v. Jenkins, 276 Ky. 163 , 123 S.W.2d 267, 1938 Ky. LEXIS 540 ( Ky. 1938 ).

Where defendant purchased one (1) tract of land from plaintiff and an adjoining tract from group of heirs one of whom was plaintiff, and there was a deficiency of acreage in tract conveyed by plaintiff because of overlapping of tract conveyed by heirs, defendant could recover from plaintiff for deficiency notwithstanding fact that defendant knew of deficiency at time of purchasing heirs’ tract. Kentucky Nat'l Park Com. v. Dennison, 281 Ky. 61 , 134 S.W.2d 973, 1939 Ky. LEXIS 9 ( Ky. 1939 ).

Cited:

Kerr v. Watkins, 234 Ky. 104 , 27 S.W.2d 679, 1930 Ky. LEXIS 130 ( Ky. 1930 ); Sirls v. Jordan, 625 S.W.2d 106, 1981 Ky. App. LEXIS 301 (Ky. Ct. App. 1981).

Research References and Practice Aids

Cross-References.

Assignment by tenant forfeits estate, when, KRS 383.180 .

No forfeiture if tenant for years conveys greater estate, KRS 383.180 .

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

381.160. Purchaser evicted by heir of grantor may recover to extent of estate inherited.

If a deed such as that mentioned in KRS 381.150 , contains a general warranty of the estate it purports to convey, and there is a claimant of the land who has received any estate, real or personal, by gift, advancement, descent, devise or distribution from the vendor, such claimant shall be barred of recovery to the extent of the value of the estate so devised. If, after the claimant has recovered the land from such vendee, or if, after having been required to answer, he has denied the reception of any estate in either of the modes before named, the estate shall come to him in any such manner, the vendee, his heirs or personal representative, may recover from such claimant upon the warranty the value of such estate or so much thereof as will be sufficient to satisfy his demand.

History. 2352.

NOTES TO DECISIONS

1.Construction.

Under KRS 381.150 and this section, it is not material whether the conveyance by the vendor be before or after the claimant of the estate so conveyed has received from the vendor property by gift, advancement, devise, descent or distribution. Foreman v. Lloyd, 156 Ky. 772 , 162 S.W. 83, 1914 Ky. LEXIS 196 ( Ky. 1914 ). See Ball v. Wasioto & B. M. R. Co., 157 Ky. 166 , 162 S.W. 810, 1914 Ky. LEXIS 247 ( Ky. 1914 ); Blankenship v. Haldeman, 226 Ky. 57 , 10 S.W.2d 469, 1928 Ky. LEXIS 21 ( Ky. 1928 ).

This section is based on principle that a grantor conveying land with a covenant of general warranty is liable, upon an eviction of the grantee, for damages for breach of the covenant with a resulting diminution of the grantor’s estate, and therefore persons who receive property from the grantor by way of gift, devise or descent should, in effect, be required to assume the grantor’s liability for damages to the extent of the property they receive from grantor if they seek to evict the grantee. Inman v. Coburn, 249 S.W.2d 816, 1952 Ky. LEXIS 881 ( Ky. 1952 ).

2.Application.

This section and KRS 381.150 did not apply where a father conveyed his land in unequal portions to his sons, but did not convey a greater estate to first son than he had, and the grantee of the second son who received the larger portion claimed part of the land held by the first son. Steele v. Ferrell, 288 Ky. 392 , 156 S.W.2d 153, 1941 Ky. LEXIS 100 ( Ky. 1941 ).

3.Gift or Advancement.

The receiving of proceeds of life insurance policy was a gift or advancement under this section. Justice v. Mead, 220 Ky. 638 , 295 S.W. 976, 1927 Ky. LEXIS 587 ( Ky. 1927 ).

4.Recovery of Land from Vendee.

Children could recover land descended from their father, which their mother attempted to convey in fee after death of their father, where children had done nothing to forfeit their interest. Howton v. Roberts, 49 S.W. 190, 20 Ky. L. Rptr. 1327 (1899).

Where a vendor conveys with covenant of general warranty a greater interest in land than he possesses and thereafter a claimant of the land who has received any estate by gift, advancement, descent, devise or distribution from the vendor demands to recover the land from the vendee, he will be barred to recover to the extent of the value of the estate so received. Foreman v. Lloyd, 156 Ky. 772 , 162 S.W. 83, 1914 Ky. LEXIS 196 ( Ky. 1914 ). See Ball v. Wasioto & B. M. R. Co., 157 Ky. 166 , 162 S.W. 810, 1914 Ky. LEXIS 247 ( Ky. 1914 ); Blankenship v. Haldeman, 226 Ky. 57 , 10 S.W.2d 469, 1928 Ky. LEXIS 21 ( Ky. 1928 ).

A vendee, holding land under covenant of general warranty, may not be ousted from the estate by parties claiming under vendor who received from vendor a gratuitous estate of greater value than they seek to recover from vendee, regardless of when claimants received estate. Federal Gas, Oil & Coal Co. v. Maynard, 152 F.2d 372, 1945 U.S. App. LEXIS 2290 (6th Cir. Ky. 1945 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

381.170. Consideration paid by other than grantee — Effect.

When a deed is made to one (1) person, and the consideration is paid by another no use or trust results in favor of the latter unless the grantee takes a deed in his own name without the consent of the person paying the consideration, or unless the grantee in violation of a trust purchases the lands deeded with the effects of another person. Such deeds are fraudulent as against the existing debts and liabilities of the person paying the consideration.

History. 2353, 2354.

NOTES TO DECISIONS

1.Purpose.

This section intended to preserve a constructive trust, implied by equity in behalf of one who has been imposed upon by another, in order to work out justice and in spite of the intention of one of the parties, and where some element of fraud is involved. Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ). See Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ).

2.Construction.

This section abolishes the old equitable doctrine of resulting trusts except in two (2) cases: (1) where the grantee takes a deed without the consent of the person paying the consideration, and (2) where the grantee in violation of some trust, purchases the deeded lands with the effects of another person. Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ). See Neel's Ex'r v. Noland's Heirs, 166 Ky. 455 , 179 S.W. 430, 1915 Ky. LEXIS 718 ( Ky. 1915 ); Roche v. Roche, 188 Ky. 327 , 222 S.W. 86, 1920 Ky. LEXIS 280 ( Ky. 1920 ); Acker v. Henry Clay Oil Co., 196 Ky. 50 8, 245 S.W. 6, 1922 Ky. LEXIS 548 ( Ky. 1922 ); Bybee v. Wilson, 196 Ky. 644 , 245 S.W. 295, 1922 Ky. LEXIS 579 ( Ky. 1922 ); Webb v. Webb, 200 Ky. 488 , 255 S.W. 137, 1923 Ky. LEXIS 142 ( Ky. 1923 ); Williams v. Scott, 216 Ky. 688 , 288 S.W. 672, 1926 Ky. LEXIS 988 ( Ky. 1926 ); Masters v. Masters, 222 Ky. 427 , 300 S.W. 894, 1927 Ky. LEXIS 930 ( Ky. 1927 ); Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ); Clark v. Smith, 252 Ky. 50 , 66 S.W.2d 93, 1933 Ky. LEXIS 1009 ( Ky. 1933 ); McFarland v. McFarland, 263 Ky. 434 , 92 S.W.2d 785, 1936 Ky. LEXIS 203 ( Ky. 1936 ).

Where one entrusts funds to another to be invested for his benefit, and the latter, without the consent of the former and in fraud of the former’s rights, purchases property and has the title thereto put in the name of a third person, a constructive trust will result in favor of the person who has been defrauded. Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ).

This section changed the rule that when a deed is made conveying land to one and the consideration is paid by another, a trust results in favor of the latter. Richardson v. Webb, 281 Ky. 201 , 135 S.W.2d 861, 1940 Ky. LEXIS 8 ( Ky. 1940 ).

The kind of equitable resulting trust abolished by this section is one arising upon the naked fact that one furnishes the consideration to buy land while the title thereto is taken by another, without any agreement as to the use or the trust. Gibson v. Gibson, 249 S.W.2d 53, 1952 Ky. LEXIS 796 ( Ky. 1952 ).

This section was not intended to affect the doctrine that equity will follow a fund and compel restitution as long as it can be identified and followed. Glass v. Gutman, 268 S.W.2d 410, 1954 Ky. LEXIS 898 ( Ky. 1954 ).

The common-law resulting trust in real estate has been abrogated, with some exceptions, by this section and the same rule has been impliedly extended to personal property. Bryant's Adm'r v. Bryant, 269 S.W.2d 219, 1954 Ky. LEXIS 968 ( Ky. 1954 ).

3.Application.

This section applies only to deeds and does not apply to contracts for equitable interests; therefore, where purchaser of real estate at a commissioner’s sale paid part of the purchase price and signed an order for the commissioner to make the deed to a third party, he could show a parol agreement that the deed was not absolute but was only a mortgage to secure third party for moneys advanced purchaser to make payments. McConnell v. Gentry, 99 S.W. 278, 30 Ky. L. Rptr. 548 (1907).

This section is inapplicable where there was an express parol promise by one to hold the legal title to the land in trust and for the use of another who furnished the consideration. Gibson v. Gibson, 249 S.W.2d 53, 1952 Ky. LEXIS 796 ( Ky. 1952 ).

The kind of equitable resulting trust abolished by this section is one arising upon the naked fact that one furnishes the consideration to buy land while the title thereto is taken by another without any agreement as to the use or the trust and this section has no application where there is an express promise by one to hold the legal title to the land in trust and for the use of another who furnished the consideration. Evans v. Payne, 258 S.W.2d 919, 1953 Ky. LEXIS 896 ( Ky. 1953 ).

This section does not apply where there is an agreement, express or implied, that legal title would be held in trust or for the use of the person who furnished the money. Wilson v. St. Clair, 286 S.W.2d 554, 1955 Ky. LEXIS 106 ( Ky. 1955 ).

The resulting trust abolished by this section is one arising from the naked fact that a person has furnished consideration to buy land while title to that land is taken by another, without any agreement as to use and the statute has no application when there is an express parol agreement establishing a trust. Horn v. Horn, 562 S.W.2d 319, 1978 Ky. App. LEXIS 470 (Ky. Ct. App. 1978).

4.Express Trust.

An express trust is voluntarily created by the direct action and declaration of the donor, and as to personalty may be created by parol. Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ).

Facts established a voluntary express trust which was valid and enforceable and not an equitable resulting trust forbidden by this section. Morris v. Thomas, 310 Ky. 501 , 220 S.W.2d 958, 1949 Ky. LEXIS 932 ( Ky. 1949 ).

5.When No Trust Results.

The creation of a trust under the circumstances set out was forbidden by this section. Watt v. Watt, 39 S.W. 48, 19 Ky. L. Rptr. 25 (1897). See Clay v. Clay’s Guardian, 72 S.W. 810, 24 Ky. L. Rptr. 2016 S.W. l810 (1903); Planters' Bank & Trust Co. v. Major, 79 S.W. 264, 25 Ky. L. Rptr. 1969 (1904); Fields' Heirs v. Napier, 80 S.W. 1110, 26 Ky. L. Rptr. 240 (1904); Bennett v. Bennett, 137 Ky. 17 , 121 S.W. 495, 1909 Ky. LEXIS 472 ( Ky. 1909 ); Hatfield v. Cline, 143 Ky. 565 , 137 S.W. 212, 1911 Ky. LEXIS 475 ( Ky. 1911 ); Martin v. Franklin, 159 Ky. 816 , 169 S.W. 599, 1914 Ky. LEXIS 906 ( Ky. 1914 ); Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ); Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Bybee v. Wilson, 196 Ky. 644 , 245 S.W. 295, 1922 Ky. LEXIS 579 ( Ky. 1922 ); Crouch v. Mason, 199 Ky. 371 , 251 S.W. 182, 1923 Ky. LEXIS 842 ( Ky. 1923 ); Mullins v. Mullins, 203 Ky. 652 , 262 S.W. 1085, 1924 Ky. LEXIS 975 ( Ky. 1924 ); Isaacs v. Isaacs, 206 Ky. 540 , 267 S.W. 1104, 1925 Ky. LEXIS 1001 ( Ky. 1925 ); Barbee v. Harvey, 214 Ky. 461 , 283 S.W. 442, 1926 Ky. LEXIS 369 ( Ky. 1926 ); Ewing v. Clore, 219 Ky. 329 , 292 S.W. 824, 1927 Ky. LEXIS 328 ( Ky. 1927 ); Bishop v. Simpson, 224 Ky. 289 , 6 S.W.2d 253, 1928 Ky. LEXIS 588 ( Ky. 1928 ); Mullins v. Robinson, 225 Ky. 648 , 9 S.W.2d 988, 1928 Ky. LEXIS 836 ( Ky. 1928 ); Shields v. Parsons, 230 Ky. 143 , 18 S.W.2d 961, 1929 Ky. LEXIS 35 ( Ky. 1929 ); Trimble v. Kentucky River Coal Corp., 235 Ky. 301 , 31 S.W.2d 367, 1930 Ky. LEXIS 35 2 ( Ky. 1930 ); Missionary Board of Brethren Church v. Trustees of Brethren Church, 247 Ky. 398 , 57 S.W.2d 25, 1932 Ky. LEXIS 874 ( Ky. 1932 ); McFarland v. McFarland, 263 Ky. 434 , 92 S.W.2d 785, 1936 Ky. LEXIS 203 ( Ky. 1936 ).

The rule is well settled in Kentucky that if one, in order to defraud his creditors, conveys or has conveyed property to another in secret trust for his own use, he cannot afterwards reclaim the property if the vendee chooses to hold it. Layne v. Layne, 90 S.W. 555, 28 Ky. L. Rptr. 810 (1906). See Ray v. Thomas, 140 Ky. 570 , 131 S.W. 503, 1910 Ky. LEXIS 336 ( Ky. 1910 ).

Alleged trust, as asserted on lands purchased with partnership funds, would be of the character condemned by this section. Bennett v. Bennett, 137 Ky. 17 , 121 S.W. 495, 1909 Ky. LEXIS 472 ( Ky. 1909 ).

The mere fact that the purchase price was paid by the wife is not sufficient evidence to overturn the terms of a deed, as this would be entirely consistent with the taking of title jointly with a survivorship clause. Masters v. Masters, 222 Ky. 427 , 300 S.W. 894, 1927 Ky. LEXIS 930 ( Ky. 1927 ).

Although it might be true that husband paid for the one-half interest in property which was conveyed to wife, yet it was her property free of any trust, and, if she made an agreement that she would make a certain devise of her one-half interest, the agreement to that extent was within the statute of frauds and unenforceable. Shrader's Ex'r v. Shrader, 228 Ky. 374 , 15 S.W.2d 246, 1929 Ky. LEXIS 555 ( Ky. 1929 ).

There is no resulting trust unless the grantee takes the title without the consent of the person paying the consideration, or purchases the property with the funds of the other in violation of a trust. Hall v. Walton, 291 Ky. 779 , 165 S.W.2d 806, 1942 Ky. LEXIS 325 ( Ky. 1942 ).

Alleged agreement at foreclosure sale whereby defendant engaged attorney to bid in property for her was unenforceable against attorney who purchased property in his own name, where court had properly ordered that neither defendant nor anyone for her should be allowed to bid at sale. Barnell v. Jacobs, 304 Ky. 374 , 200 S.W.2d 940, 1947 Ky. LEXIS 657 ( Ky. 1947 ).

Constructive trusts never arise except where the holder of the legal title obtained it through fraud, misrepresentation, concealments, undue influence, duress or some other wrongful act whereby another is deprived of the title to his property and infant vendees could not and did not obtain the legal title which their father vested in them through any such methods as is necessary to create a constructive trust. Dotson v. Dotson, 307 Ky. 106 , 209 S.W.2d 852, 1948 Ky. LEXIS 698 ( Ky. 1948 ). See Lowe v. Lowe, 312 Ky. 640 , 229 S.W.2d 442, 1950 Ky. LEXIS 728 ( Ky. 1950 ).

Testimony did not support the claim of a resulting trust where there was no competent testimony that son furnished the consideration for the purchase of the lot nor any evidence the title was taken in the name of his father without his consent. Moore v. Gaines, 308 Ky. 223 , 213 S.W.2d 990, 1948 Ky. LEXIS 878 ( Ky. 1948 ).

Where, before corporation came into being, defendant bought real estate and erected a building thereon for the use of the corporation and title to the land was kept in himself and another who both became directors of the corporation and collected rent from the corporation, this section was not violated because the corporation was not in existence at the time of the purchase and no trust resulted. R-K Distributing Co. v. Raible, 317 S.W.2d 488, 1958 Ky. LEXIS 91 ( Ky. 1958 ).

6.— Consent to Taking of Title.

Heirs of wife cannot recover land bought with her money but deeded to husband with her knowledge and consent. Martin v. Franklin, 159 Ky. 816 , 169 S.W. 599, 1914 Ky. LEXIS 906 ( Ky. 1914 ).

Under this section, no trust results for benefit of wife who consents to husband taking title to himself on land purchased with her money. Martin v. Franklin, 159 Ky. 816 , 169 S.W. 599, 1914 Ky. LEXIS 906 ( Ky. 1914 ). See Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ); Dalzell v. Dalzell, 170 Ky. 297 , 185 S.W. 1107, 1916 Ky. LEXIS 49 ( Ky. 1916 ); Mullins v. Mullins, 203 Ky. 652 , 262 S.W. 1085, 1924 Ky. LEXIS 975 ( Ky. 1924 ); Cooksey v. Tolliver, 208 Ky. 160 , 270 S.W. 719, 1925 Ky. LEXIS 238 ( Ky. 1925 ).

Even though a wife pays the entire consideration for property deeded to herself and husband jointly, she takes only an undivided one-half interest therein as a tenant in common, without any trust resulting in her favor as to husband’s half interest, where she knew of or consented to the property being conveyed in such manner. Roche v. Roche, 188 Ky. 327 , 222 S.W. 86, 1920 Ky. LEXIS 280 ( Ky. 1920 ). See Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ); Mastin v. Mastin's Adm'r, 243 Ky. 830 , 50 S.W.2d 77, 1932 Ky. LEXIS 207 ( Ky. 1932 ); Preston v. Preston's Adm'x, 245 Ky. 552 , 53 S.W.2d 957, 1932 Ky. LEXIS 633 (Ky. 1932).

Resulting trust for more than half of land did not result in favor of wife where land cost $775 and wife paid $425 and the balance was paid by the husband and wife knew the land had been conveyed to her and her husband jointly. Richardson v. Webb, 281 Ky. 201 , 135 S.W.2d 861, 1940 Ky. LEXIS 8 ( Ky. 1940 ).

Where husband and wife purchased property, each paying half of purchase price, and title was taken in husband’s name by agreement, no trust resulted in favor of wife. Hall v. Walton, 291 Ky. 779 , 165 S.W.2d 806, 1942 Ky. LEXIS 325 ( Ky. 1942 ).

Where wife who advanced money for purchase of property consented to title being taken in husband’s name, no trust resulted in her favor. Kitchen v. Fischer, 293 Ky. 787 , 170 S.W.2d 592, 1943 Ky. LEXIS 712 ( Ky. 1943 ).

Where husband and wife gave contradictory testimony as to which of them paid purchase price of realty conveyed by third parties to husband’s infant stepdaughter, but there was no disagreement concerning promise of wife to have deed made to husband at a later date, in the absence of a showing of wrongful act or unconscionable conduct on part of stepdaughter, the court properly refused to set aside deed to stepdaughter on the theory of a constructive trust in favor of the husband when wife refused to fulfill her promise. Lowe v. Lowe, 312 Ky. 640 , 229 S.W.2d 442, 1950 Ky. LEXIS 728 ( Ky. 1950 ).

Where proof failed to show that even if wife had paid the consideration, the title was taken without her consent, no trust would result under this section. Mullins v. Mullins, 247 S.W.2d 527, 1952 Ky. LEXIS 716 ( Ky. 1952 ).

No trust results unless the person furnishing the consideration did not consent to the other person’s taking title in his own name. Glass v. Gutman, 268 S.W.2d 410, 1954 Ky. LEXIS 898 ( Ky. 1954 ).

7.— Consideration Not Furnished.

Where a principal employs an agent, by a parol agreement, to buy land, and the agent pays the consideration out of his own funds and takes the conveyance in his own name, no resulting trust will arise and the case will fall within the statute of frauds, and the principal cannot compel the agent to convey the land to him. Day v. Amburgey, 147 Ky. 123 , 143 S.W. 1033, 1912 Ky. LEXIS 215 ( Ky. 1912 ).

In action to impress a trust on a number of tracts of real estate owned by appellee, the evidence failed to establish a resulting trust under this section where appellee proved he had money and property of his own other than the profits of the partnership and that the real estate in question was purchased with his own personal funds and appellant failed to assert her rights for over two (2) years. Knight v. Rowland, 307 Ky. 18 , 209 S.W.2d 728, 1948 Ky. LEXIS 676 ( Ky. 1948 ).

8.Constructive Trusts.

Whenever the legal title to property has been obtained through any circumstance which renders it unconscientious for the holder of legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never, perhaps, have had any legal estate therein; this principle is not affected by law. Graham v. King, 96 Ky. 339 , 24 S.W. 430, 16 Ky. L. Rptr. 440 , 1893 Ky. LEXIS 147 ( Ky. 1893 ).

A constructive trust is a way of compelling the parties to do what they agreed to do, and to undo that which in fraud has been done in violation of an agreement. Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ). See Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ).

A constructive trust will not be enforced against a stranger not participating in the fraud and not under legal obligation or duty to the complainant. Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ). See Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ).

Where husband turned earnings over to wife, under agreement that she was to keep and invest them for him, she to be entitled to them only if she survived him, wife was a constructive trustee for the benefit of husband. Hull v. Simon, 278 Ky. 442 , 128 S.W.2d 954, 1939 Ky. LEXIS 456 ( Ky. 1939 ).

A constructive trust is one not created by any words either expressly or impliedly evidencing a direct intention to create a trust, but by the construction of equity in order to satisfy the demands of justice. They are entirely invitum and forced upon the conscience of the trustee for the purpose of working out right and justice or frustrating fraud. Long v. Reiss, 290 Ky. 198 , 160 S.W.2d 668, 1942 Ky. LEXIS 393 ( Ky. 1942 ).

To raise the trust, it must affirmatively appear that title was taken in the name of the alleged trustee in violation of an agreement, or without the consent of the person paying the consideration. Sewell v. Sewell, 260 S.W.2d 643, 1953 Ky. LEXIS 977 ( Ky. 1953 ).

9.— Deed Without Consent of Payor of Consideration.

Where grantee takes a deed in his own name without the consent of the person paying the consideration, a trust will be established and enforced. Graham v. King, 96 Ky. 339 , 24 S.W. 430, 16 Ky. L. Rptr. 440 , 1893 Ky. LEXIS 14 7 ( Ky. 1 893 ). See Harlan v. Eilke, 100 Ky. 642 , 38 S.W. 1094, 18 Ky. L. Rptr. 1096 , 1897 Ky. LEXIS 40 ( Ky. 1 897 ); Neel v. Moore, 39 S.W. 1042, 19 Ky. L. Rptr. 918 (1897); Straeffer v. Rodman, 146 Ky. 1, 141 S.W. 742, 1911 Ky. LEXIS 761 ( Ky. 1911 ); Miller v. McLin, 147 Ky. 248 , 143 S.W. 1008, 1912 Ky. LEXIS 202 ( Ky. 1912 ); Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ); Roche v. Roche, 188 Ky. 327 , 222 S.W. 86, 1920 Ky. LEXIS 280 ( Ky. 1920 ); Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ); Phillips v. Bowles, 209 Ky. 580 , 273 S.W. 85, 1925 Ky. LEXIS 549 ( Ky. 1925 ); Holliday v. Holliday, 238 Ky. 522 , 38 S.W.2d 436, 1931 Ky. LEXIS 276 ( Ky. 1931 ); Broyles v. Broyles, 271 Ky. 461 , 112 S.W.2d 686, 1938 Ky. LEXIS 14 ( Ky. 1938 ).

Where mother’s money was used to purchase property to which title was taken without her consent in her daughter’s name by daughter’s husband, the property belongs to the mother and the daughter holds the title under a constructive trust and not under a resulting trust now inhibited by law. Graham v. King, 96 Ky. 339 , 24 S.W. 430, 16 Ky. L. Rptr. 440 , 1893 Ky. LEXIS 147 ( Ky. 1893 ).

Father who took title in himself to land purchased with son’s money, without knowledge of son, held in trust for son, and this section does not prevent the trust from being enforced. Harlan v. Eilke, 100 Ky. 642 , 38 S.W. 1094, 18 Ky. L. Rptr. 1096 , 1897 Ky. LEXIS 40 ( Ky. 1897 ).

A distinction is made where one buys land at a judicial sale under a parol agreement to purchase for another, and fails to convey in accordance with the agreement; this class of cases is not within the law of frauds, and a trust will arise where the promisee furnished the purchase money or had an actual interest in the estate or a bona fide claim thereto. Day v. Amburgey, 147 Ky. 123 , 143 S.W. 1033, 1912 Ky. LEXIS 215 ( Ky. 1912 ).

This section expressly recognizes that a trust may result if a grantee takes title without consent of the person paying the consideration. Appleby v. Buck, 351 S.W.2d 494, 1961 Ky. LEXIS 165 ( Ky. 1961 ).

10.— Purchase with Effects of Another.

Where administrator purchased land with proceeds from estate and took title in himself, the heirs can recover interest in the land purchased in violation of trust. Stone v. Burge, 74 S.W. 250, 24 Ky. L. Rptr. 2424 , 1903 Ky. LEXIS 487 (Ky. Ct. App. 1903).

Where father gave to daughter the money which paid for land, as an advancement out of his estate, and it was so accepted by her, it was her money that paid for land and an enforceable constructive trust for daughter was created by father’s parol promise to hold legal title in trust for her; such transaction is not a resulting trust such as was abolished by this section. Erdman v. Kenney, 159 Ky. 509 , 167 S.W. 685, 1914 Ky. LEXIS 828 ( Ky. 1914 ).

Allegations that defendants, in violation of partnership and corporate agreements with plaintiff, took title in their own name to property which was purchased with money advanced by plaintiff for the purpose of acquiring such property for the partnership or corporation were sufficient to establish a cause of action based upon a constructive trust. Schumann v. Crook, 293 Ky. 331 , 168 S.W.2d 1002, 1943 Ky. LEXIS 609 ( Ky. 1943 ).

Where fiduciary uses trust funds to purchase land in his own name, in violation of trust, the land is impressed with the trust. Baker v. McIntosh, 294 Ky. 527 , 172 S.W.2d 29, 1943 Ky. LEXIS 466 ( Ky. 1943 ).

11.— Establishment.

A trust in land may be created by parol under certain conditions. Sherley v. Sherley, 97 Ky. 512 , 31 S.W. 275, 17 Ky. L. Rptr. 450 , 1895 Ky. LEXIS 223 ( Ky. 1895 ). See Smith v. Smith, 121 S.W. 1002, 1909 Ky. LEXIS 491 (Ky. Ct. App. 1909); Patrick v. Prater, 144 Ky. 771 , 139 S.W. 938, 1911 Ky. LEXIS 716 ( Ky. 1911 ); May v. May, 161 Ky. 114 , 170 S.W. 537, 1914 Ky. LEXIS 29 ( Ky. 1914 ); Vizard Inv. Co. v. York, 167 Ky. 634 , 181 S.W. 370, 1916 Ky. LEXIS 477 ( Ky. 1916 ); Best v. Melcon, 183 Ky. 785 , 210 S.W. 662, 1919 Ky. LEXIS 568 ( Ky. 1919 ); Meadors v. Meadors' Admr., 192 Ky. 457 , 233 S.W. 1053, 1921 Ky. LEXIS 98 (Ky. Ct. App. 1921).

Under this section a parol agreement of the grantee to hold for the use and trust of the one furnishing the consideration is valid and enforceable. Patrick v. Prater, 144 Ky. 771 , 139 S.W. 938, 1911 Ky. LEXIS 716 ( Ky. 1911 ).

12.— — Evidence.

Evidence to establish a trust may be by parol, but it must be clear and convincing, and, if wholly by parol, it should be received with great caution, especially to raise a trust between husband and wife. May v. May, 161 Ky. 114 , 170 S.W. 537, 1914 Ky. LEXIS 29 ( Ky. 1914 ). See Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Lacy v. Layne, 190 Ky. 667 , 228 S.W. 1, 1921 Ky. LEXIS 482 ( Ky. 1921 ); Deboe v. Brown, 198 Ky. 275 , 248 S.W. 855, 1923 Ky. LEXIS 436 ( Ky. 1923 ); Williams v. Scott, 216 Ky. 688 , 288 S.W. 672, 1926 Ky. LEXIS 988 ( Ky. 1926 ); Masters v. Masters, 222 Ky. 427 , 300 S.W. 894, 1927 Ky. LEXIS 930 ( Ky. 1927 ).

In order to establish a trust by operation of law, the proof must be of the most convincing character. May v. May, 161 Ky. 114 , 170 S.W. 537, 1914 Ky. LEXIS 29 ( Ky. 1914 ). See Neel's Ex'r v. Noland's Heirs, 166 Ky. 455 , 179 S.W. 430, 1915 Ky. LEXIS 718 ( Ky. 1915 ); Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Webb v. Webb, 200 Ky. 488 , 255 S.W. 137, 1923 Ky. LEXIS 142 ( Ky. 1923 ); Cooksey v. Tolliver, 208 Ky. 160 , 270 S.W. 719, 1925 Ky. LEXIS 238 ( Ky. 1925 ); Masters v. Masters, 222 Ky. 427 , 300 S.W. 894, 1927 Ky. LEXIS 930 ( Ky. 1927 ); Holliday v. Holliday, 238 Ky. 522 , 38 S.W.2d 436, 1931 Ky. LEXIS 276 ( Ky. 1931 ); Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ); Clark v. Smith, 252 Ky. 50 , 66 S.W.2d 93, 1933 Ky. LEXIS 1009 ( Ky. 1933 ).

Where the conduct between the parties and the circumstances under which property was purchased was sufficiently clear and convincing, a deed will be reformed and a trust established. Williams v. Scott, 216 Ky. 688 , 288 S.W. 672, 1926 Ky. LEXIS 988 ( Ky. 1926 ).

Under certain circumstances transactions between husband and wife will be scrutinized closely, and the wife will be required to rebut inferences created by the badges of fraud that have been shown. Campbell v. First Nat'l Bank, 234 Ky. 697 , 27 S.W.2d 975, 1930 Ky. LEXIS 158 ( Ky. 1930 ). See Hoskins v. Hoskins' Trustee in Bankruptcy, 241 Ky. 420 , 44 S.W.2d 302, 1931 Ky. LEXIS 103 ( Ky. 1931 ); Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ).

Constructive trusts are bottomed on principles akin to the doctrine of equitable estoppel with fraud, active or constructive, as their essential element and, since they arise by operation of law from certain essential facts upon which they rest, they do not come within the statute of frauds requiring duly executed writing for their support and may therefore be established by parol evidence. Clark v. Smith, 252 Ky. 50 , 66 S.W.2d 93, 1933 Ky. LEXIS 1009 ( Ky. 1933 ).

Claim by wife that oil royalty was purchased with her money by her husband who had taken title in his own name in violation of an agreement with him to take title in her name, which claim was not made until after execution sale of royalty, and which was contradicted by bank records, was not sufficiently proven to establish resulting (constructive) trust. Union Bank & Trust Co. v. Rice, 279 Ky. 629 , 131 S.W.2d 493, 1939 Ky. LEXIS 317 ( Ky. 1939 ).

Proof to establish a resulting (constructive) trust must be clear and convincing. Union Bank & Trust Co. v. Rice, 279 Ky. 629 , 131 S.W.2d 493, 1939 Ky. LEXIS 317 ( Ky. 1939 ).

To establish a resulting (constructive) trust under the two (2) exceptions contained in this section, the proof that title was taken in name of nominal purchaser without the consent of real purchaser, or that grantee, in violation of trust, bought land with money or property of another, must be clear and convincing. Richardson v. Webb, 281 Ky. 201 , 135 S.W.2d 861, 1940 Ky. LEXIS 8 ( Ky. 1940 ).

Clear and convincing proof is required to establish a resulting (constructive) trust. Gayheart v. Cox, 305 Ky. 570 , 205 S.W.2d 153, 1947 Ky. LEXIS 873 ( Ky. 1947 ).

The evidence to establish a parol trust in realty must be clear, definite and convincing, and it is closely scrutinized and carefully weighed by courts because its effect is to upset paper title. Evans v. Payne, 258 S.W.2d 919, 1953 Ky. LEXIS 896 ( Ky. 1953 ).

Where a trust is claimed by reason of the consideration having been paid by one (1) person and title taken in the name of another without the consent of the payor, clear and convincing proof is required to establish every element of the trust. Sewell v. Sewell, 260 S.W.2d 643, 1953 Ky. LEXIS 977 ( Ky. 1953 ).

13.Rights of Creditors and Third Parties.

Where title to land purchased with funds of wife is taken by husband in himself, the equitable interest of the wife is not open to attack by creditor of husband, where creditor has not been misled or defrauded by any voluntary act of wife and fails to assert his claim before the completion of wife’s legal title. Young v. Allen, 207 F. 318, 1913 U.S. App. LEXIS 1631 (6th Cir. Ky. 1913 ).

Persons with actual notice of a trust, created by one taking title to land in himself without consent of party paying consideration, cannot resist enforcement of the trust. Webb v. Foley, 49 S.W. 40, 20 Ky. L. Rptr. 1207 (1899).

Where wife’s father paid one third (1/3) of consideration for land purchased by husband under an agreement, to which wife was a party, that she should own one third (1/3) of property, but husband took title in himself, a deed executed by husband after he became insolvent and after death of wife conveying one third (1/3) of property to her infant son by direction of wife’s father will not be set aside at instance of husband’s creditors. Sparks v. Colson, 109 Ky. 711 , 60 S.W. 540, 22 Ky. L. Rptr. 1369 , 1901 Ky. LEXIS 33 ( Ky. 1901 ).

If property is in fact held in secret trust for the party paying the consideration, his creditors may subject it, although their debts were subsequently contracted. O'Neal v. Fenwick, 64 S.W. 952, 23 Ky. L. Rptr. 1219 , 1901 Ky. LEXIS 616 (Ky. Ct. App. 1901). See Deposit Bank v. Rose, 113 Ky. 946 , 69 S.W. 967, 24 Ky. L. Rptr. 732 , 1902 Ky. LEXIS 121 ( Ky. 1902 ); Madden v. Fleming, 266 Ky. 772 , 100 S.W.2d 19, 1936 Ky. LEXIS 744 ( Ky. 1936 ).

Where a wife conveyed land to mother of her husband, in consideration of his obtaining a divorce and surrendering to her the residue of estate, and husband was insolvent at time of conveyance, the conveyance was fraudulent and the property conveyed to mother was subject to husband’s debts. Deposit Bank v. Rose, 113 Ky. 946 , 69 S.W. 967, 24 Ky. L. Rptr. 732 , 1902 Ky. LEXIS 121 ( Ky. 1902 ).

Creditor assailing a conveyance from a brother to his sister, voluntary and without consideration, must show actual fraud in suit on subsequent debt. Hunt v. Nance, 122 Ky. 274 , 92 S.W. 6, 28 Ky. L. Rptr. 1188 , 1906 Ky. LEXIS 58 ( Ky. 1906 ).

Where one pays for property and has the title taken to another for the fraudulent purpose of evading his existing or future obligations, his creditors may subject the property so held by another for him, regardless of enforceable trust between parties. Ahlering's Ex'r v. Speckman, 99 S.W. 973, 30 Ky. L. Rptr. 940 (1907). See Garrison v. W. T. Sistrunk & Co., 213 Ky. 138 , 280 S.W. 928, 1926 Ky. LEXIS 467 ( Ky. 1926 ); First Nat'l Bank v. Short, 234 Ky. 130 , 27 S.W.2d 668, 1930 Ky. LEXIS 124 ( Ky. 1930 ); Burnett's Adm'x v. Farmers' Nat'l Bank, 243 Ky. 760 , 49 S.W.2d 1033, 1932 Ky. LEXIS 196 ( Ky. 1932 ); Vaughn's Trustee in Bankruptcy v. Vaughn, 262 Ky. 181 , 89 S.W.2d 884, 1936 Ky. LEXIS 13 ( Ky. 1936 ); Madden v. Fleming, 266 Ky. 772 , 100 S.W.2d 19, 1936 Ky. LEXIS 744 ( Ky. 1936 ).

Mortgage lien, taken without notice of trust created under this section, was superior to trust, even though mortgage was not acknowledged as required by law. Straeffer v. Rodman, 146 Ky. 1 , 141 S.W. 742, 1911 Ky. LEXIS 761 ( Ky. 1 911).

Where husband bought land with wife’s money and took title in himself, although agreed between them title was to be taken to her, claim of wife was inferior to that of creditors without notice of husband for debts incurred while title was in him. Miller v. McLin, 147 Ky. 248 , 143 S.W. 1008, 1912 Ky. LEXIS 202 ( Ky. 1912 ). See Phillips v. Bowles, 209 Ky. 580 , 273 S.W. 85, 1925 Ky. LEXIS 549 ( Ky. 1925 ); Wilson v. Newberry, 238 Ky. 635 , 38 S.W.2d 695, 1931 Ky. LEXIS 306 ( Ky. 1931 ); Hoskins v. Hoskins' Trustee in Bankruptcy, 241 Ky. 420 , 44 S.W.2d 302, 1931 Ky. LEXIS 103 ( Ky. 1931 ); Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ); Foster v. Miller, 256 Ky. 48 , 75 S.W.2d 534, 1934 Ky. LEXIS 343 ( Ky. 1934 ).

Bona fide mortgagee of purchaser who received more than he was entitled to at a commissioner’s sale where adjacent tracts were sold and the acreage set forth in the deeds did not correspond with the metes and bounds was not affected by alleged trust in favor of purchaser who received less than he was entitled to receive. Metropolitan Life Ins. Co. v. Hoskins, 273 Ky. 563 , 117 S.W.2d 180, 1937 Ky. LEXIS 705 ( Ky. 1937 ).

Evidence that a father borrowed money from his son to purchase real estate for the family home and placed the title in the son’s name to secure the loan and that the son later advanced substantial sums to pay for improvements, street assessments and taxes but permitted the father to exercise complete control over the property failed to show any fraud or bad faith with respect to the dower rights of father’s second wife. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

A resulting (constructive) trust is not valid against innocent purchasers without notice. Keaton v. Keaton, 294 Ky. 240 , 171 S.W.2d 260, 1943 Ky. LEXIS 422 ( Ky. 1943 ).

In order to establish a resulting (constructive) trust as against a subsequent purchaser, it must be shown not only that he knew the purchase money was paid by a person other than the grantee in the deed, but also that he knew that the title was taken in the grantee without the consent of the person who paid the consideration. Keaton v. Keaton, 294 Ky. 240 , 171 S.W.2d 260, 1943 Ky. LEXIS 422 ( Ky. 1943 ).

This section cannot be invoked to aid a wife in defeating her husband’s creditors whose debts were contracted in good faith after he took title to the property and without notice of the fact that the wife furnished the money under an agreement that the title would be taken in her name. Keaton v. Keaton, 294 Ky. 240 , 171 S.W.2d 260, 1943 Ky. LEXIS 422 ( Ky. 1943 ).

14.Recovery of Consideration.

At common law, where property was purchased and the conveyance was taken in the name of one (1) person, while the price was paid by another, a trust at once resulted in favor of the party paying the price, and the holder of the legal title became a trustee for him; such a resulting trust has now been abolished by law, and the rule is, where the contract is not illegal, an action will lie upon the implied promise raised by law to refund the money if the party receiving the title refuses to execute the trust or return the money. Deposit Bank v. Rose, 113 Ky. 946 , 69 S.W. 967, 24 Ky. L. Rptr. 732 , 1902 Ky. LEXIS 121 ( Ky. 1902 ). See Brooks v. Brooks, 104 S.W. 392, 31 Ky. L. Rptr. 969 (1907); Smith v. Smith, 121 S.W. 1002, 1909 Ky. LEXIS 491 (Ky. Ct. App. 1909); Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ); Anderson v. Hart, 260 Ky. 237 , 84 S.W.2d 28, 1935 Ky. LEXIS 434 ( Ky. 1935 ).

This section was not intended to affect the equitable doctrine that equity would follow a fund and compel restitution as long as it could be identified and followed. Board of Trustees v. Postel, 121 Ky. 67 , 88 S.W. 1065, 28 Ky. L. Rptr. 37 , 1905 Ky. LEXIS 178 ( Ky. 1905 ).

While the law forbids a resulting trust, if there be no purpose to defraud, and the party receiving title refuses to execute the trust or return the money, an action will lie upon the implied promise raised by law to refund the money. Howser v. Johnson, 297 Ky. 213 , 179 S.W.2d 897, 1944 Ky. LEXIS 716 ( Ky. 1944 ).

Cited:

Scoggan v. Hoff, 165 F. Supp. 424, 1958 U.S. Dist. LEXIS 3704 (D. Ky. 1958 ); Broyles v. Broyles, 271 Ky. 461 , 112 S.W.2d 686, 1938 Ky. LEXIS 14 ( Ky. 1938 ); Evans v. Caudill, 296 Ky. 460 , 177 S.W.2d 586, 1944 Ky. LEXIS 567 ( Ky. 1944 ).

Research References and Practice Aids

Cross-References.

Preferential or fraudulent transfer of property, KRS 379.070 .

Kentucky Bench & Bar.

Gilman, When Are Pension Benefits Protected From the Claims of Creditors?, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 19.

Kentucky Law Journal.

Gilmer, Current Developments in Resulting Trusts and Constructive Trusts in Kentucky, 42 Ky. L.J. 455 (1954).

Matthews, Kentucky Developments in 1954: Personal and Real Property, Future Interests and Trusts, 44 Ky. L.J. 37 (1955).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

381.180. Estates in trust subject to debts of beneficiary — Spendthrift trusts excepted — Other exceptions. [Repealed.]

Compiler’s Notes.

This section (2355: amend. Acts 1966, ch. 61, § 1; 1974, ch. 386, § 69; 1990, ch. 220, § 1, effective July 13, 1990; 2012, ch. 59, § 7, effective July 12, 2012) was repealed by Acts 2014, ch. 25, § 118, effective July 15, 2014.

381.190. Sale of realty by trustee by virtue of pledge or deed of trust.

No sale of real estate by a trustee, by virtue of a pledge or deed of trust to secure the payment of debts, shall be valid or pass the title of the property specified in the deed or pledge, unless the sale is in pursuance to a judgment of court, or is made by an assignee under a voluntary deed of assignment, or unless the maker of the deed or pledge joins in a writing evidencing the sale.

History. 2356.

NOTES TO DECISIONS

1.Purpose.

This section was enacted for the benefit of the debtor, and to prevent a sacrifice of his property by his trustee when empowered to sell to pay debts. Abbott v. Yeager, 98 Ky. 424 , 33 S.W. 195, 17 Ky. L. Rptr. 994 , 1895 Ky. LEXIS 71 ( Ky. 1895 ).

2.Construction.

The trustee has no power to sell or pass title except in the manner provided by this section, but, in the absence of such provision, the trustee could sell and pass the fee. Shinkle's Assignees v. Bristow, 95 Ky. 84 , 23 S.W. 670, 15 Ky. L. Rptr. 673 , 1893 Ky. LEXIS 126 ( Ky. 1893 ).

This section does not divest the trustee of title, but limits his right to pass title. Shinkle's Assignees v. Bristow, 95 Ky. 84 , 23 S.W. 670, 15 Ky. L. Rptr. 673 , 1893 Ky. LEXIS 126 ( Ky. 1893 ).

3.Application.

This section had no application to instrument of trust in case under consideration. Bryan v. Dupoyster, 130 F. 83, 1904 U.S. App. LEXIS 4132 (6th Cir. 1904), cert. denied, 198 U.S. 585, 25 S. Ct. 803, 49 L. Ed. 1174, 1905 U.S. LEXIS 1127 (1905) See Glover v. Baum, 25 S.W. 274, 15 Ky. L. Rptr. 688 (1894).

It was not determined whether this section was applicable to deed of trust in case under consideration. Halley v. Winchester Diamond Lodge, 97 Ky. 438 , 30 S.W. 999, 17 Ky. L. Rptr. 293 , 1895 Ky. LEXIS 202 ( Ky. 1895 ). See Butler v. Dillehay Brick Co.'s Trustee, 187 Ky. 224 , 219 S.W. 154, 1920 Ky. LEXIS 107 ( Ky. 1920 ).

Where the wives of grantors joined in conveyance to trustee, it is doubtful if this section is applicable. Halley v. Winchester Diamond Lodge, 97 Ky. 438 , 30 S.W. 999, 17 Ky. L. Rptr. 293 , 1895 Ky. LEXIS 202 ( Ky. 1895 ).

When it appears from face of instrument and transaction itself that writing creating the trust was not intended to be a revocable instrument but designed to pass absolute fee, that the trust might be executed, there is no reason for withholding the power of sale from the trustee. Abbott v. Yeager, 98 Ky. 424 , 33 S.W. 195, 17 Ky. L. Rptr. 994 , 1895 Ky. LEXIS 71 ( Ky. 1895 ).

This section does not apply where grantor has parted with all his title, and given grantee full power to sell the property and pay debts specified, for payment of which debts the property is manifestly regarded as inadequate. Elizabethtown, L. & B. S. R. Co. v. Killen, 50 S.W. 1108, 21 Ky. L. Rptr. 122 (1899).

This section should not be allowed to control the action of trustees in any case where the grantor in the deed of trust has not a fixed and certain interest either in the property conveyed or in the execution of the trust. Gullett v. Bailey, 237 Ky. 151 , 35 S.W.2d 17, 1931 Ky. LEXIS 568 ( Ky. 1931 ).

4.Authority to Mortgage or Sell.

Trustee may, under power contained in deed of trust, mortgage property to secure money for taxes and liens on trust property without complying with this section. Walter v. Brugger, 78 S.W. 419, 25 Ky. L. Rptr. 1597 (1904).

Where will devises property in trust for widow and children, if the trustee is authorized to sell trust property by instrument creating trust, he is privileged to do so, and a court of equity will not interfere if he acts in good faith and with ordinary prudence. Vickers v. Vickers, 189 Ky. 323 , 225 S.W. 44, 1920 Ky. LEXIS 425 ( Ky. 1920 ).

Father and mother could sell land of infant under power of sale in deed conveying the land to the infant without first obtaining consent of the infant or judgment of the court where there was nothing in the deed requiring them to obtain consent of the infant or of the court. Gullett v. Bailey, 237 Ky. 151 , 35 S.W.2d 17, 1931 Ky. LEXIS 568 ( Ky. 1931 ).

The application of law that provided that no sale of real estate by trustee by deed of trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale has been construed not to embrace lands held in trust for married women. Whitaker v. Blair, 26 Ky. 236 , 1827 Ky. LEXIS 2 ( Ky. 1827 ).

The application of law that provided that no sale of real estate by trustee by deed or trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale has been construed not to embrace assignments for the payment of debts where grantor not only empowers grantee to sell but extracts from him a covenant that he will sell. Ogden v. Grant, 36 Ky. 473 , 1838 Ky. LEXIS 89 ( Ky. 1838 ).

The application of law that provided that no sale of real estate by trustee by deed of trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale has been construed not to embrace property conveyed in trust for the benefit of grantor’s children. Shipp v. Bowmar, 44 Ky. 163 , 1844 Ky. LEXIS 99 ( Ky. 1844 ).

Law that provided that no sale of real estate by trustee by deed of trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale has been construed not to embrace real property that had been conveyed to trustees in satisfaction of grantor’s debts, and in which he had no further interest. Butler v. Miller, 54 Ky. 617 , 1855 Ky. LEXIS 15 ( Ky. 1855 ).

Law that provided that no sale of real estate by trustee by deed of trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale was not intended to be universal in cases of trusts, as its language would seem to imply. Prather v. McDowell, 71 Ky. 46 , 1871 Ky. LEXIS 12 ( Ky. 1871 ).

Law that conferred upon a company the power to sell land in the foreclosure of mortgages, without the intervention of a court, the company having performed no public service to the state, was unconstitutional and void. Kentucky Trust Co. v. Lewis, 82 Ky. 579 , 6 Ky. L. Rptr. 547 , 1885 Ky. LEXIS 21 (Ky. Ct. App. 1885).

5.Right of Dower.

The wife of assignor for benefit of creditors may, by a deed subsequently executed by her alone, pass her potential right of dower. Shinkle's Assignees v. Bristow, 95 Ky. 84 , 23 S.W. 670, 15 Ky. L. Rptr. 673 , 1893 Ky. LEXIS 126 ( Ky. 1893 ).

Cited:

Elkhorn City Land Co. v. Big Sandy Co., 205 Ky. 42 , 265 S.W. 454, 1924 Ky. LEXIS 39 ( Ky. 1924 ); Godley v. Piedmont Land Sales, Inc., 505 F. Supp. 397, 1978 U.S. Dist. LEXIS 15624 (E.D. Ky. 1978 ).

Opinions of Attorney General.

Where a deed of trust, involving real and/or personal property, or a deed of assignment, as a conveyance of real and/or personal property for the benefit of creditors, is filed with the county clerk for record, the state tax of three dollars ($300) must be collected by the county clerk. OAG 85-66 .

381.200. Deeds construed to include buildings and appurtenances — Solar easements.

  1. Every deed, unless an exception is made therein, shall be construed to include all buildings, privileges and appurtenances of every kind attached to the lands therein conveyed.
  2. A solar easement may be obtained for the purpose of ensuring access to direct sunlight. Such easement shall be created in writing and shall be an interest in real property that may be acquired and transferred and shall be subject to the same recording and conveyancing requirements, except that a solar easement shall not be acquired by prescription.

History. 2357: amend. Acts 1982, ch. 341, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1.Water Pumping Equipment.

Conveyance of real estate carried with it title to water pumping equipment attached to well on premises. Thomas v. Holmes, 306 Ky. 632 , 208 S.W.2d 969, 1948 Ky. LEXIS 629 ( Ky. 1948 ).

2.Right to Passway.

Right to passway to public road passes with land, unless expressly reserved. Conley v. Fairchild, 142 Ky. 271 , 134 S.W. 142, 1911 Ky. LEXIS 158 ( Ky. 1911 ).

Where grantor conveyed lot abutting the street and reserved a passway over the lot to a rear lot, the passway became an easement appurtenant to the land and passed by subsequent conveyance of the rear lot, even though not mentioned in the deed. Eastham v. Church, 310 Ky. 93 , 219 S.W.2d 406, 1949 Ky. LEXIS 831 ( Ky. 1949 ).

3.Coal Mining Leasehold.

A coal mining leasehold and its appurtenances are considered as real estate for certain purposes including this section. Commonwealth v. Elkhorn-Piney Coal Min. Co., 241 Ky. 245 , 43 S.W.2d 684, 1931 Ky. LEXIS 51 ( Ky. 1931 ).

4.Easements.

Easements appurtenant pass with the land to which they are appurtenant without mention in the deed. Smith v. Combs, 554 S.W.2d 412, 1977 Ky. App. LEXIS 767 (Ky. Ct. App. 1977).

5.Annexed Chattels.

Chattels annexed to the freehold prior to execution of a deed, if they were essential to its enjoyment, passed by deed although they were not mentioned in deed. Clore v. Lambert, 78 Ky. 224 , 1879 Ky. LEXIS 90 ( Ky. 1879 ).

6.Crops.

It was not error to permit grantor in deed to introduced parol evidence to show that as a part of contract and consideration of sale he was to retain a portion of corn crop on land during year of sale, notwithstanding absence of such reservation from deed. Bourne v. Bourne, 92 Ky. 211 , 17 S.W. 443, 13 Ky. L. Rptr. 545 , 1891 Ky. LEXIS 145 ( Ky. 1891 ).

Opinions of Attorney General.

Where a deed contains an exception of growing timber and where the kinds or species of timber are sufficiently described and where no time for removal of the trees is specified, an effective and separate estate in such timber is excepted from the conveyance and the estate is in the nature of fee simple and is subject to conveyance, devise or inheritance. OAG 72-314 .

Research References and Practice Aids

Kentucky Law Journal.

Gilmer, Formalities and Requisites of a Deed in Kentucky, 43 Ky. L.J. 481 (1955).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Easements, § 316.00.

381.210. Reversion may be sold — Rights and duties of purchaser.

Rights of reversion may be sold and conveyed. The purchaser thereof shall be vested with all the privileges and advantages which attach to the estate in the hands of the reversioner, and shall be subject to all the duties and responsibilities in law or equity which any tenant might assert against the owner of the reversion, the right to which accrued before notice of the transfer.

History. 2359.

NOTES TO DECISIONS

1.Construction.

The right of reversion is recognized by this section. Thurman v. Hudson, 280 S.W.2d 507, 1955 Ky. LEXIS 164 ( Ky. 1955 ). (But see KRS 381.218 .).

2.Conveyance and Sale.

Where deed provided tollhouse and ground should go to grantor’s brothers when use as a tollhouse should cease, such reversionary interest could be sold and conveyed at any time. Patterson v. Patterson, 135 Ky. 339 , 122 S.W. 169, 1909 Ky. LEXIS 293 ( Ky. 1909 ). (But see KRS 381.218 .).

Reversionary interest in oil and gas, to commence in possession after expiration of particular estate granted, was alienable. Elk Horn Coal Corp. v. Casebolt, 38 F.2d 37, 1930 U.S. App. LEXIS 2252 (6th Cir. Ky. 1930 ).

Reversionary right to land for school, should it ever be used for other purposes, could be sold and conveyed. Fayette County Board of Education v. Bryan, 263 Ky. 61 , 91 S.W.2d 990, 1936 Ky. LEXIS 133 ( Ky. 1936 ). (But see KRS 381.218 .).

Every conceivable interest in or claim to real estate, whether present or future, vested or contingent, may be disposed of by deed. Austin v. Calvert, 262 S.W.2d 825, 1953 Ky. LEXIS 1135 ( Ky. 1953 ).

Where deed for an acre to county board of education provided for reversion to grantor when it ceased to be used for a schoolhouse and grantor later conveyed approximately 30 acres, including the one (1) acre, to a subsequent grantee, whatever interest grantor had in the one (1) acre, whether a reversion or a possibility of reverter, passed to the subsequent grantee. Austin v. Calvert, 262 S.W.2d 825, 1953 Ky. LEXIS 1135 ( Ky. 1953 ). (But see KRS 381.218 .).

Where grantor deeded property owned by him to A for life, then to A’s wife for life, with remainder to the life tenants’ children, but if they should die without children, said property “shall revert to the heirs” of grantor, and subsequently grantor executed another deed to the same property to A and his wife which provided that if the life tenants had no children, the remainder should vest in the survivor of the two (2), grantor retained a reversion under the first deed which reversion he deeded away under the second deed and grantor’s heirs did not have a vested remainder under the first deed so fee simple was in the survivor of the life tenants under the second deed. Thurman v. Hudson, 280 S.W.2d 507, 1955 Ky. LEXIS 164 ( Ky. 1955 ).

3.Descent.

The vested reversionary right was an interest which descended to owner’s heirs in absence of testamentary disposition. Fayette County Board of Education v. Bryan, 263 Ky. 61 , 91 S.W.2d 990, 1936 Ky. LEXIS 133 ( Ky. 1936 ). (But see KRS 381.218 .).

4.Release.

Immediate heirs of grantor, after his death, would have power to release provision in deed for reversion in event property should cease to be used for hospital purposes or should be sold other than in a specified manner. Murray Hospital Ass'n v. Mason, 306 Ky. 248 , 206 S.W.2d 936, 1947 Ky. LEXIS 992 ( Ky. 1947 ).

5.Failure to Reserve Reversion.

Where consideration for deed was grantee’s agreement to support grantor for life, but there was no reservation of a right of reentry for breach nor any provision for reversion, the support agreement was not a condition subsequent, and grantor’s heirs could not maintain an action for rescission. Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ).

6.Possibility of Reverter.

A mere possibility of reverter is not alienable. Young v. Chesapeake & O. R. Co., 291 Ky. 262 , 163 S.W.2d 451, 1942 Ky. LEXIS 199 ( Ky. 1942 ). But see Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ) and KRS 381.218 .

Where land was conveyed to railroad for use as a right of way for tracks and for establishing a permanent depot, and railroad used part of land for right of way and part for depot, subsequent removal of depot building did not constitute such an abandonment as to work a forfeiture of the portion of the land on which the depot had stood. Young v. Chesapeake & O. R. Co., 291 Ky. 262 , 163 S.W.2d 451, 1942 Ky. LEXIS 199 ( Ky. 1942 ). (But see KRS 381.218 .).

Where land was conveyed to railroad for use for use railroad purposes, heirs of grantor had merely a possibility of reverter which would vest at the time the railroad abandoned use of the property for railroad purposes. Young v. Chesapeake & O. R. Co., 291 Ky. 262 , 163 S.W.2d 451, 1942 Ky. LEXIS 199 ( Ky. 1942 ). (But see KRS 381.218 .).

The possibility of reverter to settlor under an inter vivos trust is not an estate and is inalienable and an attempted transfer of it to a church was ineffectual insofar as it undertook to pass any right or interest to the church, but it had the effect of extinguishing trustor’s possibility of reverter. Department of Revenue v. Kentucky Trust Co., 313 S.W.2d 401, 1958 Ky. LEXIS 256 ( Ky. 1958 ). (But see KRS 381.218 .).

7.Devise.

Every conceivable interest in, or claim to, real estate, whether present or future, vested or contingent, and however acquired, could be disposed of by will. Nutter v. Russell, 60 Ky. 163 , 1860 Ky. LEXIS 41 ( Ky. 1860 ).

Research References and Practice Aids

Kentucky Law Journal.

Dukeminier, Kentucky Perpetuities Law Restated and Reformed, 49 Ky. L.J. 3 (1960).

381.215. Adoption of common law rule against perpetuities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 167, § 1, effective June 16, 1960) was repealed by Acts 2010, ch. 21, § 14, effective July 15, 2010.

381.216. Wait-and-see doctrine — Reformation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 167, § 2, effective June 16, 1960) was repealed by Acts 2010, ch. 21, § 14, effective July 15, 2010.

381.217. Exception in the case of pension trusts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 167, § 3, effective June 16, 1960) was repealed by Acts 2010, ch. 21, § 14, effective July 15, 2010.

381.218. Abolition of fee simple determinable and possibility of reverter.

The estate known at common law as the fee simple determinable and the interest known as the possibility of reverter are abolished. Words which at common law would create a fee simple determinable shall be construed to create a fee simple subject to a right of entry for condition broken. In any case where a person would have a possibility of reverter at common law, he shall have a right of entry.

History. Enact. Acts 1960, ch. 167, § 4, effective June 16, 1960.

NOTES TO DECISIONS

1.Will Interpretation.

To resolve a boundary dispute, the appellate court interpreted the phrase in a will devising property “so long as she remains a widow” and held that in accordance with KRS 381.218 the widow was devised a fee simple subject to executory interest contingent upon divestment in the event she remarried. Lee v. Tipton, 2012 Ky. App. LEXIS 72 (Ky. Ct. App. May 18, 2012), review denied, ordered not published, 2012 Ky. LEXIS 462 (Ky. Dec. 12, 2012).

Opinions of Attorney General.

A city could legally deed property for $1.00 to the commonwealth for the benefit of the school board with a reverter provision which would give a fee simple title subject to a right of entry (reverter) unless construction of a school building had begun within five (5) years of the date of the deed’s execution, but if construction had begun within five years the title would become a fee simple absolute. OAG 70-797 .

Research References and Practice Aids

Northern Kentucky Law Review.

Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 51 (1979).

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.219. Termination after thirty years of rights of entry created after July 1, 1960.

A fee simple subject to a right of entry for condition broken shall become a fee simple absolute if the specified contingency does not occur within thirty (30) years from the effective date of the instrument creating such fee simple subject to a right of entry. If such contingency occurs within said thirty (30) years the right of entry, which may be created in a person other than the person creating the interest or his heirs, shall become exercisable notwithstanding the rule against perpetuities. This section shall not apply to rights of entry created prior to July 1, 1960.

History. Enact. Acts 1960, ch. 167, § 5, effective June 16, 1960.

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.220. Restraints on alienation — Duration of — Exceptions. [Repealed.]

Compiler’s Notes.

This section (2360: amend. Acts 1956, ch. 175) was repealed by Acts 1960, ch. 167, § 8.

381.221. Termination and preservation of forfeiture restrictions created before July 1, 1960.

  1. Every possibility of reverter and right of entry created prior to July 1, 1960, shall cease to be valid or enforceable at the expiration of thirty (30) years after the effective date of the instrument creating it, unless before July 1, 1965, a declaration of intention to preserve it is filed for record with the county clerk of the county in which the real property is located.
  2. The declaration shall be entitled “Declaration of Intention to Preserve Restrictions on the Use of Land,” and shall set forth:
    1. The name of the record owner or owners of the fee in the land against whom the possibility of reverter or right of entry is intended to be preserved;
    2. The names and addresses of the persons intending to preserve the possibility of reverter or right of entry;
    3. A description of the land;
    4. The terms of the restriction;
    5. A reference to the instrument creating the possibility of reverter or right of entry and to the place where such instrument is recorded. The declaration shall be signed by each person named therein as intending to preserve the possibility of reverter or right of entry and shall be acknowledged or proved in the manner required to entitle a conveyance of real property to be recorded. The county clerk shall record the declaration in the record of deeds and shall index it in the general index of deeds in the same manner as if the record owner or owners of the land were the grantor or grantors and the persons intending to preserve the possibility of reverter or right of entry were the grantees in a deed of conveyance. For indexing and recording the clerk shall receive the same fees as are allowed for indexing and recording deeds.

History. Enact. Acts 1960, ch. 167, § 6, effective June 16, 1960.

NOTES TO DECISIONS

1.Constitutionality.

Contract right protected by the state constitution is not impaired by requirement that declaration of intent to preserve possibility of reverter and right of entry be recorded since this requirement is reasonable in light of the inconvenience and expense caused by the existence of these interests for unlimited periods of time. Cline v. Johnson County Board of Education, 548 S.W.2d 507, 1977 Ky. LEXIS 399 ( Ky. 1977 ).

Kentucky Perpetuities Act, KRS 381.221 , did not violate the Contracts Clause, U.S. Const. art. I, § 10, because it did not create a substantial impairment on the obligation of contracts when it provided for the termination of a possibility of reverter created prior to July 1, 1960 after 30 years unless a declaration of intention to preserve it was filed. Black Mt. Energy Corp. v. Bell County Bd. of Educ., 467 F. Supp. 2d 715, 2006 U.S. Dist. LEXIS 91786 (E.D. Ky. 2006 ).

2.Right of Entry.

Kentucky perpetuities act of 1960 is the equivalent of a statute of limitation, and this section applies to a right of entry impliedly retained to enforce a restraint on alienation. Atkinson v. Kish, 420 S.W.2d 104, 1967 Ky. LEXIS 96 ( Ky. 1967 ).

3.Right of Re-entry.

Trial court erred in finding that the neighbors had no right of re-entry under the condition precedent because the neighbors failed to preserve their right under KRS 381.221(1); the deed did not create a condition subsequent with a right of re-entry, as it instead created a covenant that ran with the land. Camenisch v. City of Stanford, 140 S.W.3d 1, 2003 Ky. App. LEXIS 211 (Ky. Ct. App. 2003).

4.Filing Declaration of Intention.

The bringing of an action by holders of reversionary interest against county school board claiming that under terms of the deed the school board had forfeited title by discontinuance of use of the parcel for a school obviated the necessity of filing a declaration under this section of intent to preserve the reversionary right under the deed. Withers v. Pulaski County Board of Education, 415 S.W.2d 604, 1967 Ky. LEXIS 324 ( Ky. 1967 ).

The nonuse of a clubhouse for approximately five years must be deemed a period of substantial duration, and the informal, indefinite intent of the club to use the property for its legitimate purposes was not sufficient to prevent the operation of the terms of deed which provided for reverter when land ceased to be used for legitimate purposes of the club. Hunt v. Coal Run Homemakers Club, 440 S.W.2d 267, 1969 Ky. LEXIS 339 ( Ky. 1969 ).

Where 1869 deed created a possibility of reverter which carried with it an automatic termination on cessation of use as a railroad depot and railroad ceased using the lot as a depot no later than 1948, reversion of property to heirs of original grantor was not prevented by this section since, reversion having already occurred, the possibility of reverter no longer existed by the time the declarations of intent to preserve were required to be filed. Caldwell v. Brown, 553 S.W.2d 692, 1977 Ky. LEXIS 477 ( Ky. 1977 ).

5.Particular Use.

It was clear error for the trial court to set aside, in a wholesale manner, the original restrictions attached to a deed giving land to the city for a park because, although the heirs right of re-entry had been terminated, the original owner did have a right to specify the particular use to which the land could be devoted, although deed conditions could nevertheless be changed to a certain degree to make them consistent with the times. Unknown Heirs, Devisees, Legatees & Assigns of Devou v. Covington, 815 S.W.2d 406, 1991 Ky. App. LEXIS 47 (Ky. Ct. App. 1991).

Opinions of Attorney General.

Where the deeds to two tracts of land purchased by a county school system in 1923 contained possibility of reverter clauses, but where no preservation notice was filed during the five-year period provided for by this section, the county board of education would own the two tracts in fee simple. OAG 77-542 .

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.222. Exceptions to KRS 381.219 and 381.221.

KRS 381.219 and 381.221 shall not apply to any possibility of reverter or right of entry contained in a deed, gift or grant from the Commonwealth or any political subdivision thereof; nor shall they apply where both the fee simple determinable and the succeeding interest, or both the fee simple subject to a right of entry and the right of entry, are for public, charitable or religious purposes; nor shall they affect any lease present or future or any easement, right of way, mortgage or trust, or any communication, transmission, or transportation lines, or any public highway, right to take minerals, or charge for support during the life of a person or persons, or any restrictive covenant without right of entry or reverter.

History. Enact. Acts 1960, ch. 167, § 7, effective June 16, 1960.

381.223. Application of KRS 381.218, 381.219, 381.221, 381.222, and 381.223.

To the extent they are not superseded by KRS 381.224 , 381.225 , and 381.226 , and except as provided in KRS 381.218 , 381.219 , 381.221 , 381.222 , and 381.223 shall apply only to inter vivos instruments and wills taking effect after July 1, 1960, and to appointments made after July 1, 1960, including appointments by inter vivos instrument or will under powers created before July 1, 1960.

History. Enact. Acts 1960, ch. 167, § 9, effective June 16, 1960; 2010, ch. 21, § 12, effective July 15, 2010.

NOTES TO DECISIONS

1.Application.

Where a trust was created prior to 1960, its validity was determined by KRS 381.220 . Caudle v. Smither, 427 S.W.2d 227, 1968 Ky. LEXIS 668 ( Ky. 1968 ).

381.224. Rule against perpetuities abrogated.

An interest created in real or personal property shall not be void by reason of any rule against perpetuities, whether the common law rule or otherwise. The common law rule against perpetuities shall not be in force in this Commonwealth.

History. Enact. Acts 2010, ch. 21, § 1, effective July 15, 2010.

381.225. Permissible period of power of alienation under trust — Future interest.

    1. A future interest or trust is void if it suspends the power of alienation for longer than the permissible period. The power of alienation is the power to convey to another an absolute fee in possession of land, or full ownership of personalty. The permissible period is within twenty-one (21) years after the death of an individual or individuals then alive. (1) (a) A future interest or trust is void if it suspends the power of alienation for longer than the permissible period. The power of alienation is the power to convey to another an absolute fee in possession of land, or full ownership of personalty. The permissible period is within twenty-one (21) years after the death of an individual or individuals then alive.
    2. If the settlor of an inter vivos trust has an unlimited power to revoke, the permissible period is computed from the termination of that power.
    3. If a future property interest or trust is created by exercise of a power of appointment, the permissible period is computed from the time the power is exercised if the power is a general power exercisable in favor of the donee, the donee’s estate, the donee’s creditors, or the creditors of the donee’s estate, whether or not it is exercisable in favor of others, and even if the general power is exercisable only by will; in the case of other powers, the permissible period is computed from the time the power is created, unless the instrument exercising the power provides that the period is computed from the date the power is irrevocably exercised, but facts at the time the power is exercised are considered in determining whether the power of alienation is suspended beyond the death of an individual or individuals alive at the time of creation of the power plus twenty-one (21) years.
  1. The power of alienation is suspended when there are no persons who, alone or in combination with others, can convey an absolute fee in possession of land, or full ownership of personalty.
  2. There is no suspension of the power of alienation by a trust or by equitable interests under a trust if the trustee has power to sell, either expressed or implied, or if there is a power to terminate the trust by distributing the property subject to the trust to the beneficiaries in fee simple in one (1) or more persons then living.
  3. This section does not apply to limit any of the following:
    1. Transfers, outright or in trust, for charitable purposes;
    2. Transfers to one (1) or more charitable organizations as described in 26 U.S.C. secs. 170(c) , 2055(a), and 2522(a), or any similar statute;
    3. A future interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:
      1. A premarital or post-marital agreement;
      2. A separation or divorce settlement;
      3. An arrangement similar to subparagraph 1. or 2. of this paragraph arising out of a prospective, existing, or previous marital relationship between the parties;
      4. A contract to make or revoke a will or trust;
      5. A contract to exercise or not to exercise a power of appointment;
      6. A transfer in satisfaction of a duty of support; or
      7. A reciprocal transfer;
    4. A transfer to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one (1) or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purposes of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement; or
    5. A property interest, power of appointment, or arrangement that was not subject to the common law rule against perpetuities or is excluded by another statute of this Commonwealth.

HISTORY: Enact. Acts 2010, ch. 21, § 2, effective July 15, 2010; 2020 ch. 41, § 38, effective July 15, 2020.

381.226. Applicability of KRS 381.224 and 381.225 to property interests and powers of appointment — Construction of provisions requiring vesting within period provided by common law rule against perpetuities.

  1. Except as provided in subsection (2) of this section, KRS 381.224 and 381.225 shall apply to:
    1. A future property interest or a power of appointment that is created on or after July 15, 2010, including a property interest or power of appointment created pursuant to the exercise of a power of appointment under an instrument executed prior to July 15, 2010; or
    2. A future property interest or a power of appointment:
      1. That is created pursuant to the laws of any state that does not have a rule against perpetuities in force;
      2. That is not covered by any previously existing rule against perpetuities; and
      3. To which, after July 15, 2010, the laws of this state are made applicable by transfer of the situs of a trust to Kentucky, by a change in the law governing a trust instrument to Kentucky law, or otherwise.
  2. With respect to a nonvested property interest or a power of appointment created either before or after July 15, 2010, which is determined in a judicial proceeding commenced on or after July 15, 2010, to violate Kentucky’s rule against perpetuities as that rule existed at the time the interest or power was created, a court upon the petition of an interested person may reform the disposition in the manner that most closely approximates the transferor’s manifested plan of disposition and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.
  3. For purposes of this section only, a future property interest or a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
  4. An instrument which contains a provision requiring the vesting of all interests created by the instrument within the period provided by the common law rule against perpetuities shall be construed as requiring the interests to vest within the period specified by this section and KRS 381.224 and 381.225 , unless the provision is determined by a court to have been included in the instrument for reasons other than protecting the interest against a violation of the common law rule against perpetuities. For purposes of this subsection, the term “common law rule against perpetuities” shall include KRS 381.215 , 381.216 , and 381.217 prior to their repeal on July 15, 2010. This subsection does not apply to any interest in property created by the exercise of the special power of appointment granted by an instrument that was irrevocable on September 25, 1985.

HISTORY: Enact. Acts 2010, ch. 21, § 3, effective July 15, 2010; 2020 ch. 41, § 39, effective July 15, 2020.

381.230. Possession unnecessary in action for trespass.

The owner of land may maintain the appropriate action to recover damages for any trespass or injury committed thereon, or to prevent or restrain any trespass or other injury thereto or thereon, notwithstanding the owner may not have the actual possession of the land at the time of the commission of the trespass.

History. 2361.

NOTES TO DECISIONS

1.Construction.

This section has not changed the general equity rule that a suit to quiet title cannot be maintained except by one having both legal title and possession. Morse v. South, 80 F. 206, 1897 U.S. App. LEXIS 2594 (C.C.D. Ky. 1897 ).

2.Owner.

The word “owner” in this section, authorizing the owner of land, though not in actual possession, to sue for trespass thereon, means one who owns the land by a title of record deducible from the Commonwealth, or who has acquired ownership by adverse possession of the land. Scroggins v. Nave, 133 Ky. 793 , 119 S.W. 158, 1909 Ky. LEXIS 231 ( Ky. 1909 ).

The word “owner” in this section means one who owns the land by a title deducible from the Commonwealth or has acquired title by adverse possession. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

3.Basis of Right to Recover.

Even if the defendant’s claim is faulty, the plaintiff’s right to recover is dependent not upon the good faith of his claim but the validity of his title. Phillips v. Alma Coal Co., 7 F.2d 42, 1925 U.S. App. LEXIS 3479 (6th Cir. Ky. 1925 ), cert. denied, 271 U.S. 669, 46 S. Ct. 483, 70 L. Ed. 1142, 1926 U.S. LEXIS 747 (U.S. 1926).

4.Proof of Ownership.

Deed which did not show where grantor obtained title is insufficient to establish plaintiff’s title in action for trespass. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

In action for trespass, plaintiff cannot prove his own title by proving that his predecessor in title successfully defended actions brought by third parties to quiet title and to recover value of timber removed, where those actions did not require the defendant therein to prove the validity of his own title. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

In an action for trespass, where the title to the land is put in issue, the plaintiff must recover on the strength of his own title and not on the weakness of defendant’s title. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

In order to obtain complete relief on the trial of an issue of title, the one trespassed upon must allege and prove, if denied, title back to the Commonwealth, or title by adverse possession, unless title of each litigant is traceable to a common source, in which case no title beyond that source need be proven. Oglesby v. Nation, 282 Ky. 458 , 138 S.W.2d 967, 1940 Ky. LEXIS 188 ( Ky. 1940 ).

5.Authorized Actions.

An owner not in possession could sue to recover damages for trespass and injury committed on land, including the wrongful cutting and removing of trees. (Decided under prior law) Meehan v. Edwards, 92 Ky. 574 , 18 S.W. 519, 13 Ky. L. Rptr. 803 , 1892 Ky. LEXIS 24 ( Ky. 1892 ).

Under this section, an owner of land may maintain an action for the cutting and removing of timber thereon, and destroying the monuments of title, without being in the actual possession of the land at the time of the commission of the injury. Goff v. Lowe, 80 S.W. 219, 25 Ky. L. Rptr. 2176 (1904).

Action to quiet title and restrain trespass upon land may be maintained in equity under this section. Driskill v. Dixon, 143 Ky. 759 , 137 S.W. 768, 1911 Ky. LEXIS 523 ( Ky. 1911 ). See Driskill v. Dixon, 143 Ky. 759 , 137 S.W. 768, 1911 Ky. LEXIS 523 ( Ky. 1911 ).

Action for trespass was properly joined with action for recovery of land, and causes should have been transferred to common-law docket and heard by a jury. Turk v. Wilson's Heirs, 266 Ky. 78 , 98 S.W.2d 4, 1936 Ky. LEXIS 591 ( Ky. 1936 ).

An owner not in possession may sue to recover damages for trespass and injury committed on land, including the wrongful cutting and removing of trees. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

Under this section landowner was authorized to maintain action for injunction to prevent trespass on and to restrain assertion of claim against land. Colony Coal & Coke Corp. v. Napier, 28 F. Supp. 76, 1939 U.S. Dist. LEXIS 2502 (D. Ky. 1939 ).

6.Actions Not Authorized.

One who neither owns nor is in possession of land trespassed upon may not maintain action to restrain trespass or recover damages for trespass. Muse v. Payne, 144 Ky. 30 , 137 S.W. 788, 1911 Ky. LEXIS 544 ( Ky. 1911 ).

This and related sections do not authorize a contingent remainderman to maintain an action for waste against a life tenant. Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ). See Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

Purchaser of land has no cause of action for damages done to land before he purchased it. Tudor v. Kentucky Utilities Co., 282 Ky. 277 , 138 S.W.2d 473, 1940 Ky. LEXIS 163 ( Ky. 1940 ).

7.Possession.

Owner having title to land is in constructive possession of it, and may maintain action to restrain a trespass or to recover damages for trespass under this section, although not in actual possession. Coppage v. Griffith, 40 S.W. 908, 19 Ky. L. Rptr. 459 (1897). See McCloskey v. Doherty, 97 Ky. 30 0, 30 S.W. 649, 17 Ky. L. Rptr. 178 , 1895 Ky. LEXIS 188 ( Ky. 1895 ); Wiggins v. Jackson, 73 S.W. 779, 24 Ky. L. Rptr. 2189 (1903); Chambers v. Haskell, 78 S.W. 478, 25 Ky. L. Rptr. 1707 (1904); Bowling v. Breathitt Coal, Iron & Lumber Co., 134 Ky. 249 , 120 S.W. 317, 1909 Ky. LEXIS 388 ( Ky. 1909 ); Dixon v. Driskill, 122 S.W. 204 ( Ky. 1909 ); Deaton v. Burton, 142 Ky. 7 , 133 S.W. 958, 1911 Ky. LEXIS 120 (Ky.), modified, 143 Ky. 7 3 , 135 S.W. 409, 1911 Ky. LEXIS 325 ( Ky. 1911 ); Muse v. Payne, 144 Ky. 30 , 137 S.W. 788, 1911 Ky. LEXIS 544 ( Ky. 1911 ).

The action was not one to quiet title, so as to render the complaint bad for lack of an allegation of possession, but was properly brought under this section, providing that the owner of land may maintain the appropriate action to restrain any trespass thereon or injury thereto, though he may not have the actual possession of the land. Daniel v. Trunnell, 130 Ky. 85 , 113 S.W. 51, 1908 Ky. LEXIS 243 ( Ky. 1908 ).

One in possession of land claiming ownership under a deed with intention to possess it all is in the constructive actual possession of the land to the extent of the boundaries described in his deed, except such as may be in the actual possession of another. Oglesby v. Nation, 282 Ky. 458 , 138 S.W.2d 967, 1940 Ky. LEXIS 188 ( Ky. 1940 ).

The maintain an action for damages for trespass, a plaintiff who has obtained title by adverse possession need not be in actual possession of land. Oglesby v. Nation, 282 Ky. 458 , 138 S.W.2d 967, 1940 Ky. LEXIS 188 ( Ky. 1940 ).

Constructive possession of land by owner is sufficient to sustain an action under this section; actual possession is unnecessary. Rhoades v. Bennett, 307 Ky. 507 , 211 S.W.2d 693, 1948 Ky. LEXIS 781 ( Ky. 1948 ).

8.Right of Ingress and Egress.

Where deed to mineral rights gave grantee right of ingress and egress, to build haul roads, lay pipelines, use, divert, dam and pollute watercourses, to dump, store and leave on the land matter excavated in extracting minerals, and released owner of mineral rights from all liability for damages to surface, owner of surface could not recover for damages to surface in action for trespass without pleading and proving that grantee of mineral rights acted negligently, arbitrarily, maliciously or oppressively. United Carbon Co. v. Webb, 282 Ky. 79 , 137 S.W.2d 733, 1940 Ky. LEXIS 125 ( Ky. 1940 ).

9.Jurisdiction.

Action of trespass to recover damages for cutting timber is of local nature, and can only be maintained in federal court in district in which land is situated. Kentucky Coal Lands Co. v. Mineral Development Co., 191 F. 899, 1911 U.S. App. LEXIS 5009 (C.C.D. Ky. 1911 ), rev'd, 219 F. 45, 1914 U.S. App. LEXIS 1636 (6th Cir. Ky. 1914 ).

Cited:

Goins v. Catron, 300 Ky. 583 , 190 S.W.2d 322, 1945 Ky. LEXIS 635 ( Ky. 1945 ); Smith v. Williamson, 306 Ky. 467 , 208 S.W.2d 503, 1948 Ky. LEXIS 596 ( Ky. 1948 ).

Research References and Practice Aids

Cross-References.

Action of trespass, damages, KRS 454.040 .

Actions for recovery of real estate, KRS 413.010 to 413.040 .

Action to quiet title, KRS 411.120 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Intentional Trespass (General Form), Form 304.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Trespass, § 304.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Trespass, § 32.01.

381.231. Definitions.

  1. A “trespasser” means any person who enters or goes upon the real estate of another without any right, lawful authority or invitation, either expressed or implied, but does not include persons who come within the scope of the “attractive nuisance” doctrine.
  2. An owner of real estate means any person who possesses any interest in real estate or any lawful occupant of real estate, including a burial ground.
  3. “Burial ground” means any public or privately owned parcel of land upon which a person or persons are interred or buried.

History. Enact. Acts 1976, ch. 379, § 1; 2002, ch. 276, § 1, effective July 15, 2002.

NOTES TO DECISIONS

1.Duty to Trespasser.

Although on the day he rode his dirt bike down the gravel road on landowner’s property plaintiff was a trespasser, and under Kentucky law the duties owned by landowners to trespassers are quite limited, viewing the evidence in the light most favorable to plaintiff there was a genuine issue of material fact concerning the breach of landowner’s duty to plaintiff, where landowner erected a steel cable without warnings, and accordingly this case was not ripe for summary judgment. Middleton v. Reynolds Metals Co., 963 F.2d 881, 1992 U.S. App. LEXIS 9943 (6th Cir. Ky. 1992 ).

It was not necessary to determine whether decedent who drowned after jumping from railroad bridge into water was a trespasser under this section or a licensee as there was no duty owed even to a licensee where the hazards involved here were known and obvious. Dixon v. CSX Transp., 947 F. Supp. 296, 1996 U.S. Dist. LEXIS 17977 (E.D. Ky. 1996 ), aff'd, 134 F.3d 370 (6th Cir. Ky. 1998 ).

2.Owner Not Liable.

Injured child’s mother brought action for damages against owner of horse, not known to be violent. Horse injured five (5) year old child who climbed through a barbed wire fence surrounding the farm. Horse was kept on a farm which was in close proximity to two (2) subdivisions. Horse was not an attractive nuisance and thus landowner was not liable. The landowner had attempted, albeit unsuccessfully, to prevent trespassing by the children and the cost of rendering the farm inaccessible to children would have been prohibitive. North Hardin Developers, Inc. v. Corkran, 839 S.W.2d 258, 1992 Ky. LEXIS 144 ( Ky. 1992 ).

Property owner and a contractor were entitled to judgment as a matter of law in a personal injury action because the attractive nuisance doctrine was not applicable when a sixteen-and-a-half year old youth was injured when the youth overturned a piece of heavy equipment that was parked at a residential construction site. The presence of the equipment on the construction site posed an unreasonable risk of harm to the youth, who was a licensed driver, which the youth should have been able to appreciate. Hayes v. D.C.I Props. - DKY, LLC, 2017 Ky. App. LEXIS 266 (Ky. Ct. App. June 16, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 947 (Ky. Ct. App. June 16, 2017).

3.Landowner negligence.

Summary judgment granted solely on the basis of the injured person’s status as a trespasser was premature because material issues of fact remained as to whether the landowner should have been on notice and acted negligently in not covering a deep, leaf-obstructed hole close to a public street; the person was a gratuitous licensee; and the landowner owed her a duty to warn of unreasonably unsafe conditions. Brock v. Louisville Metro Hous. Auth., 2012 Ky. App. LEXIS 286 (Ky. Ct. App. Dec. 14, 2012).

4.Trespasser.

When a truck owner parked the owner’s vehicle on building owners’ property and a third party set fire to the truck, igniting the building, the truck owner was not a trespasser because the truck owner had the building owners’ implied consent to park in that location, as the building owners had never refused permission to anyone to park there. Howard v. Spradlin, 562 S.W.3d 281, 2018 Ky. App. LEXIS 258 (Ky. Ct. App. 2018).

Cited:

Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ), appeal denied, Stearns Coal & Lumber Co. v. Kentucky Natural Resources & Environmental Protection Cabinet, 473 U.S. 921, 105 S. Ct. 3549, 87 L. Ed. 2d 672, 1985 U.S. LEXIS 2845 (1985); Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ); Miracle v. Wal-mart Stores E., LP, 659 F. Supp. 2d 821, 2009 U.S. Dist. LEXIS 32095 (E.D. Ky. 2009 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Elder, 2001: An End of Millennium Odyssey Through Tort Liability of Occupiers and Owners of Land, 28 N. Ky. L. Rev. 352 (2001).

381.232. Liability for certain injuries.

The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.

History. Enact. Acts 1976, ch. 379, § 2.

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate Const., § 54 because it eliminates a cause of action existing at the time of the adoption of the present constitution in 1891 or is more restrictive than a cause of action embodied in the common law in 1891. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

2.Injuries Intentionally Inflicted.

The phrase “injuries which are intentionally inflicted” means inflicted by willful, wanton, or reckless conduct. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

3.Owner Not Liable.

Where, in a personal injury action, the 15-year-old victim and his friends brought the plywood from a distance and carried it up the defendant’s tower, and there was nothing in this record to even suggest that the defendant knew or should have known that individuals were climbing the tower, there was no implied invitation, and the boy was a trespasser as a matter of law. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

In a personal injury action, the defendant did not expose the trespasser to a concealed, dangerous condition, where the injury was caused by a known propensity of high-voltage electricity, and there was sufficient warning of the danger. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

Injured child’s mother brought action for damages against owner of horse, not known to be violent. Horse injured five (5) year old child who climbed through a barbed wire fence surrounding the farm. Horse was kept on a farm which was in close proximity to two (2) subdivisions. Horse was not an attractive nuisance and thus landowner was not liable. The landowner had attempted, albeit unsuccessfully, to prevent trespassing by the children and the cost of rendering the farm inaccessible to children would have been prohibitive. North Hardin Developers, Inc. v. Corkran, 839 S.W.2d 258, 1992 Ky. LEXIS 144 ( Ky. 1992 ).

4.Ordinary Care.

Under this section and common law applicable to trespassers, one has a duty to use ordinary care to prevent harm to one known to be in danger. List v. Southern R. Co., 752 S.W.2d 791, 1988 Ky. App. LEXIS 92 (Ky. Ct. App. 1988).

5.Duty to Trespasser.

Although on the day he rode his dirt bike down the gravel road on landowner’s property plaintiff was a trespasser, and under Kentucky law the duties owned by landowners to trespassers are quite limited, viewing the evidence in the light most favorable to plaintiff there was a genuine issue of material fact concerning the breach of landowner’s duty to plaintiff, where landowner erected a steel cable without warnings, and accordingly this case was not ripe for summary judgment. Middleton v. Reynolds Metals Co., 963 F.2d 881, 1992 U.S. App. LEXIS 9943 (6th Cir. Ky. 1992 ).

Summary judgment granted solely on the basis of the injured person’s status as a trespasser was premature because material issues of fact remained as to whether the landowner should have been on notice and acted negligently in not covering a deep, leaf-obstructed hole close to a public street; the person was a gratuitous licensee; and the landowner owed her a duty to warn of unreasonably unsafe conditions. Brock v. Louisville Metro Hous. Auth., 2012 Ky. App. LEXIS 286 (Ky. Ct. App. Dec. 14, 2012).

Property owner and a contractor were entitled to judgment as a matter of law in a personal injury action because the attractive nuisance doctrine was not applicable when a sixteen-and-a-half year old youth was injured when the youth overturned a piece of heavy equipment that was parked at a residential construction site. The presence of the equipment on the construction site posed an unreasonable risk of harm to the youth, who was a licensed driver, which the youth should have been able to appreciate. Hayes v. D.C.I Props. - DKY, LLC, 2017 Ky. App. LEXIS 266 (Ky. Ct. App. June 16, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 947 (Ky. Ct. App. June 16, 2017).

Trial court properly dismissed a 16-1/2 year-old minor trespasser’s personal injury action against a developer and a contractor because the attractive nuisance doctrine did not apply where the minor acknowledged danger in trying to operate the heavy machinery at a construction site and had taken keys from one piece machinery so that his friends would not get hurt or in trouble if they started it, one of the minor’s friends testified that when the minor got on a compactor, he tried to talk him off it to no avail, and as he attempted to drive the compactor, it tipped over onto the minor injuring him, and there was no evidence that the developer or contractor intentionally inflicted the minor’s injuries by willful, wanton, or reckless conduct. Hayes v. D.C.I. Properties-D KY, LLC, 563 S.W.3d 619, 2018 Ky. LEXIS 524 ( Ky. 2018 ).

Cited:

Miracle v. Wal-mart Stores E., LP, 659 F. Supp. 2d 821, 2009 U.S. Dist. LEXIS 32095 (E.D. Ky. 2009 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Elder, 2001: An End of Millennium Odyssey Through Tort Liability of Occupiers and Owners of Land, 28 N. Ky. L. Rev. 352 (2001).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Premises Liability, § 131.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Owners and Occupiers of Real Estate, § 24.13.

381.240. Title to land in adverse possession not to be certified.

No county clerk or other county or state officer shall officially certify to any abstract or statement of title to lands in this state, where such lands are in the actual possession of another than the person or corporation shown to be the owner of the abstract or certificate, when such person in possession is claiming such lands under title adverse to that shown in such abstract or certificate.

History. 2379a-1.

Research References and Practice Aids

Cross-References.

Occupancy for seven years with title bars right of entry, exception, KRS 413.060 .

Sale of land adversely held, KRS 372.070 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Establish Title by Adverse Possession, Form 303.01.

381.250. Certification prohibited when more than one patent.

If two (2) or more patents have been issued for the same land, whether by this state or by the State of Virginia, no county clerk or other county or state officer shall officially certify that the records show, or that the fact is that the title is in any of the patentees, or in any person claiming under any of the patents.

History. 2379a-2.

NOTES TO DECISIONS

1.Construction.

This section is substantially the same as the common law, the purpose of which was to curb the acquisitions of eleemosynary corporations operating under the guise of charities. State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

381.260. Grants-in-aid of charity valid.

  1. Every grant, conveyance, legacy, bequest, devise, gift, appointment, assignment and transfer of property, whenever made and in whatever form, shall be valid (a) if made to any corporation, association, trust, foundation, or similar organization or entity, created or formed for and devoted solely to charitable, religious, scientific, literary, educational, humane, benevolent or like purposes or, (b) except as otherwise provided by statute, if it is made for any charitable or humane purpose and if it points out with reasonable certainty the purposes of the charity and the beneficiaries thereof.
  2. A grant, conveyance, legacy, bequest, devise, gift, appointment, assignment and transfer of property, whenever made and in whatever form, is deemed to point out with reasonable certainty the purposes of the charity and beneficiaries thereof if and so long as the same is to or for the use of any corporation, trust, community chest, fund, foundation, or other entity organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual (except as reasonable compensation for services rendered), and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office, even though such corporation, trust, fund, foundation or other entity is authorized to apply the trust income or property to any class or classes of charitable purposes mentioned above and the trustee or other managing individual or body is able and willing to make the selection.

History. 317: amend. Acts 1966, ch. 211, § 1(1); 1980, ch. 123, § 1, effective July 15, 1980.

NOTES TO DECISIONS

1.Construction.

This section is liberally construed by the courts to carry out, if possible, the charitable purposes of the donor of the trust, and no such trust will be permitted to fail for want of a trustee. State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

It is the policy of the law to encourage gifts and devises to charitable institutions. Gill's Ex'r v. Woman's Club of Louisville, 205 Ky. 731 , 266 S.W. 378, 1924 Ky. LEXIS 211 ( Ky. 1924 ).

Charitable bequest or devise is valid only when purposes, beneficiaries, and objects are nominated and described with reasonable certainty. Gooding v. Watson's Trustee, 235 Ky. 562 , 31 S.W.2d 919, 1930 Ky. LEXIS 412 ( Ky. 1930 ). See Thornton v. Kirtley, 249 S.W.2d 803, 1952 Ky. LEXIS 874 ( Ky. 1952 ).

Test of validity of charitable bequest is reasonable certainty in respect to beneficiaries thereof, either individually or as class. Owens v. Owens' Ex'r, 236 Ky. 118 , 32 S.W.2d 731, 1930 Ky. LEXIS 699 ( Ky. 1930 ).

Courts look with favor on charitable gifts and will uphold them when it can be done consistently with established rules of law, and will protect them from assault. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

Charitable bequest will be upheld if bounty can be applied to any single object within a specified class of beneficiaries, or if it can be upheld without violating any rule of law, principle of justice, or public policy. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Where testator designates neither class nor object of charitable bequest, and leaves choice to the trustee, the bequest fails under law as an attempt to delegate testator’s authority to make the will. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

This section should receive a construction similar to that given the English statute which is that devises made for charitable uses will be sustained as valid trusts and the rule against perpetuities does not apply; thus, a valid charity is established where the purpose for which it is created is maintenance of a public cemetery but this section does not prevent the state from requiring a nonprofit cemetery corporation to pay unemployment compensation tax. Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ).

All the limitations applicable to private trusts are not applicable to charitable trusts. Young v. Redmon's Trustee, 300 Ky. 418 , 189 S.W.2d 401, 1945 Ky. LEXIS 560 ( Ky. 1945 ).

Where the purposes of the charity are made reasonably certain by the instrument creating it, the beneficiaries may be designated by class, leaving particular beneficiaries within the class to be determined by the trustee. Druker v. Levy, 262 S.W.2d 681, 1953 Ky. LEXIS 1117 ( Ky. 1953 ).

Charitable gifts are favored and are valid if the purpose and the beneficiaries thereof are pointed out with reasonable certainty. Davis v. Cary, 429 S.W.2d 411, 1968 Ky. LEXIS 752 ( Ky. 1968 ).

Subsection (1) of this section does not require any statement of purpose or object in a devise to any organizations which are specifically named because the designation of the particular organization carries with it the implication that the objects of the testator and the objects of the organization selected are the same. Bank of Maysville v. Calvert, 481 S.W.2d 24, 1972 Ky. LEXIS 208 ( Ky. 1972 ).

Subsection (2) of this section validates devises for charitable purposes even where the devise is not made to any specific entity as long as the devise points out with reasonable certainty the purposes of the charity and the beneficiaries thereof. Bank of Maysville v. Calvert, 481 S.W.2d 24, 1972 Ky. LEXIS 208 ( Ky. 1972 ).

2.Charitable or Humane Purpose.

A devise to wife for life then to university in trust with proceeds to be used for education of descendants of two (2) named persons was not a charitable trust. Johnson v. De Pauw University, 116 Ky. 671 , 76 S.W. 851, 25 Ky. L. Rptr. 950 , 1903 Ky. LEXIS 246 ( Ky. 1903 ).

A testamentary trust to establish and maintain an orphans’ asylum for the maintenance and education of the orphan children under 17 years of age of members of a secret society is a “public charity,” and valid, within this section relating to gifts to charity. Green's Adm'r v. Fidelity Trust Co., 134 Ky. 311 , 120 S.W. 283, 1909 Ky. LEXIS 376 ( Ky. 1909 ).

Conveyance of land to organization for the purpose of a lodge room, church and a graveyard created a valid trust for charitable purpose of the kind described in this section. Tate v. Woodyard, 145 Ky. 613 , 140 S.W. 1044, 1911 Ky. LEXIS 914 ( Ky. 1911 ).

Charitable gifts are (1) gifts for eleemosynary purposes, (2) gifts for educational purposes, (3) gifts for religious purposes, and (4) gifts for public purposes, and humane purpose is the basis of all valid charities. Neptune Fire Engine & Hose Co. v. Board of Education, 166 Ky. 1 , 178 S.W. 1138, 1915 Ky. LEXIS 628 ( Ky. 1 915 ), overruled, Greene v. Stevenson, 295 Ky. 832 , 175 S.W.2d 519, 1943 Ky. LEXIS 348 ( Ky. 1943 ).

Bequest for maintenance of burial lot of testatrix was for a humane purpose as provided by this section and was valid. Street v. Cave Hill Inv. Co., 191 Ky. 422 , 230 S.W. 536, 1921 Ky. LEXIS 326 ( Ky. 1921 ).

A trust created for the use and benefit of a dog was for a “humane purpose” within this section, although it did not create a charity in its strict technical sense. Willett v. Willett, 197 Ky. 663 , 247 S.W. 739, 1923 Ky. LEXIS 685 ( Ky. 1923 ).

There is a clear distinction between a charity and a humane purpose as charity extends to every one of a class, while it is a humane purpose which moves a person to take care of or feed a single hungry person, bird or dog. Willett v. Willett, 197 Ky. 663 , 247 S.W. 739, 1923 Ky. LEXIS 685 ( Ky. 1923 ).

Devise of property to Society of Soul Winners to constitute a fund the interest from which should be used in the prosecution of the objects of the society which are to help the mountain people by employing preachers and teachers to instruct them and help them build churches and school houses is valid, as such objects are sufficiently certain within the meaning of this section. Goldberg v. Home Missions of Presbyterian Church, 197 Ky. 724 , 248 S.W. 219, 1923 Ky. LEXIS 737 ( Ky. 1923 ).

A bequest to be applied for masses to be celebrated for the repose of soul of testator after his decease was a charitable use; being an act of public worship, it was for a religious purpose, general to the public in nature. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

Bequest for reconstruction of monasteries and relief of poor ones was for a charitable use. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

A devise to a trustee for the benefit of a Young Women’s Christian Association in a certain city when one was properly organized and giving the trustee exclusive power to determine when such had been properly organized was valid. Russell v. Tyler, 224 Ky. 511 , 6 S.W.2d 707, 1928 Ky. LEXIS 642 ( Ky. 1928 ).

Charity is gift for benefit of indefinite number of persons, either by bringing their minds or hearts under influence of education or religion, by relieving bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting public buildings or works or otherwise lessening burdens of government and it is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

In determining whether the uses of a trust are charitable, equity will look to the purposes to which the trust fund is to be devoted and the ends that may be attained by proper administration of that fund rather than to motive actuating the testator or donor. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

In making determination as to whether trust comes within permitted uses as set out in this section, court is not bound by strict letter of the law but may take into account other uses not specifically named but which come within the spirit, equity and analogy of the law. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

Use of trust fund for the higher education of young people in three (3) counties named in will and for trustees of testator’s church to be used by them to carry on and foster the manifold purposes of the church are permitted by this section. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

A test of public charitable trust is indefiniteness of ultimate beneficiaries, for, if they are confined too particularly, the trust becomes a private one. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

Essential feature of trust for charitable use is that beneficiaries are uncertain, although they should be of a class described in general language. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

Devise of 500 acres of land to church in trust for purpose of maintaining the Church House was not a grant for a charitable or humane purpose, as distinguished from a grant for religious purposes, notwithstanding that the Church House was a residence not used for worship but only as a meeting place for various church organizations. Letcher's Trustee v. Letcher, 302 Ky. 448 , 194 S.W.2d 984, 1946 Ky. LEXIS 696 ( Ky. 1946 ).

A devise for the erection of a monument over the graves of testator’s family consisting of the testator and his wife was a devise for a humane purpose under the law authorizing charitable devises, and was valid. Ford v. Ford, 13 Ky. L. Rptr. 183 (1891).

A bequest of $3,000 to the Roman Catholic Bishop of Louisville “to be invested, and the income of which to be applied in rewards of merit to pupils in the parochial poor schools in L.” was certain and valid as the class to be benefited was plainly expressed, the intention unmistakable, the bequest could be readily carried out by the named trustee, under the supervision of the court, if necessary, and the object was a charitable one. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

A bequest to a named bishop for masses for the repose of the souls of testator and named members of his family was a valid charity enforceable by the court on application of the heirs for, while testator might have had a belief it would benefit his soul or the souls of others doing penance for their sins, it would also have been a benefit to all others who might have attended or participated in it. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

3.Duration and Termination.

Where deed conveying property to hospital association organized for purpose of accepting certain property for operation of hospital as monument to memory of grantor’s wife provided for reversion to grantor on failure of association to carry out the conditions set out in the deed and property later became unfit for hospital purposes, trust was not violated by arrangement under which association deeded property to county and county was to erect hospital and lease it to association as operating agent. State Bank & Trust Co. v. Madison County, 275 Ky. 501 , 122 S.W.2d 99, 1938 Ky. LEXIS 455 ( Ky. 1938 ).

Where will provided that property should be held in trust for the benefit of a certain church for 40 years “or” as long as the law of the state permitted, the intention of the testatrix was to establish a trust for the benefit of the church for 40 years, if that was lawful, and otherwise for whatever shorter period was lawful. Board of Nat'l Missions of Presbyterian Church v. Harrel's Trustee, 286 S.W.2d 905, 1956 Ky. LEXIS 432 ( Ky. 1956 ).

4.Cy Pres Doctrine.

The ministerial power of the English chancellor which was the progenitor of the cy pres doctrine does not exist in any American magistrate, judicial or ministerial, and none can exist until conferred by the legislature and the cy pres doctrine as a judicial doctrine has never been in force in this state. Adams v. Bohon, 176 Ky. 66 , 195 S.W. 156, 1917 Ky. LEXIS 15 ( Ky. 1917 ).

This section has uniformly been given a liberal construction by the courts so as to carry out, if possible, the humane and charitable purposes of the donor of the trust, and further, that no such trust will be permitted to fail for the want of a trustee, but it has not adopted the cy pres doctrine, permitting the trust funds to be expended for a charitable purpose though no specific one is expressly named. State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

Cy pres doctrine has not been adopted to extent of supplying beneficiary or purpose, where objects are not expressed in will. Russell v. Tyler, 224 Ky. 511 , 6 S.W.2d 707, 1928 Ky. LEXIS 642 ( Ky. 1928 ).

A court may effectuate testator’s intention by prescribing a different method of accomplishing it when the prescribed method fails, but cannot declare an object for testator. Harwood v. Dick, 286 Ky. 423 , 150 S.W.2d 704, 1941 Ky. LEXIS 255 ( Ky. 1941 ).

A trust in general language for educational purposes will be construed to permit the trustee to work in conjunction with the public school authorities. Harwood v. Dick, 286 Ky. 423 , 150 S.W.2d 704, 1941 Ky. LEXIS 255 ( Ky. 1941 ).

While the “cy pres” doctrine is not fully recognized in Kentucky, charitable trusts will be so construed as to make them to keep abreast of the times. Harwood v. Dick, 286 Ky. 423 , 150 S.W.2d 704, 1941 Ky. LEXIS 255 ( Ky. 1941 ).

A bequest to the “Children Orphans Home at Lynden” did not lapse by reason of the dissolution of the original Kentucky Children’s Home Society, a private corporation, and the taking over of its property by the state department of welfare, where the change occurred before testator’s death and was a matter of public knowledge, and it appeared from the will that the testator was primarily concerned with the result to be accomplished in the administration of the charity rather than with the ownership of the property employed. Kentucky Childrens Home v. Woods, 289 Ky. 20 , 157 S.W.2d 473, 1941 Ky. LEXIS 11 ( Ky. 1941 ).

The cy pres doctrine will be applied in Kentucky to the extent that it authorizes liberal rules of construction to uphold charitable bequests. It has never been adopted by Kentucky courts to the extent of supplying a beneficiary or purpose where these objects are not expressed by the donor, but it is fully operative where a general charitable intent is manifest and the object of the charity is identified or ascertainable, although the particular method of administering the charity is inadequate, illegal, or inappropriate, or happens to fail. Kentucky Childrens Home v. Woods, 289 Ky. 20 , 157 S.W.2d 473, 1941 Ky. LEXIS 11 ( Ky. 1941 ).

The cy pres doctrine does not authorize a court to supply a beneficiary or a purpose not expressed by the testator. Myers v. Davis, 311 Ky. 471 , 224 S.W.2d 690, 1949 Ky. LEXIS 1187 ( Ky. 1949 ).

5.Administration and Disposition of Funds.

A testator who resided in Kentucky devised his property, situated in Kentucky, in trust to establish and maintain in a sister state an orphans’ asylum for the nurture and education of orphans under the age of 17 years of members of a secret society of the sister state. Courts of equity of Kentucky would administer the trust in Kentucky, and require the trustee in Kentucky to protect the trust by paying the income over to a trustee appointed by the sister state, on it being found necessary to have two (2) trustees to carry the trust into effect. Green's Adm'r v. Fidelity Trust Co., 134 Ky. 311 , 120 S.W. 283, 1909 Ky. LEXIS 376 ( Ky. 1909 ).

Codicil imposing upon the devisee accepting a trust the duty to enter into terms with executors, binding and obligating devisee to establish and maintain an orphans’ home in perpetuity upon terms satisfactory to executors did not give executors power to defeat her purpose by imposing unreasonable conditions upon trustee and court properly declined to require trustee to agree not to operate or maintain any other similar institution in the state as a condition to receiving the trust funds. Young v. Davis, 200 Ky. 76 , 252 S.W. 100, 1923 Ky. LEXIS 4 ( Ky. 1923 ).

Where will created and provided for the maintenance of a trust for orphans and provided that if first-named organization failed to accept the trust, then to a second organization and, if it failed to accept the trust, then to a third organization but without making any provision if first organization accepted the trust but failed to maintain the orphanage, the second organization was entitled to have the trust property transferred to it and continue to operate an orphanage established by the first organization when after 16 years the first organization discontinued operations and declined to maintain the orphanage and surrendered the property to testator’s executor and the trust did not fail and the property revert to testator’s heirs. Young v. Davis, 200 Ky. 76 , 252 S.W. 100, 1923 Ky. LEXIS 4 ( Ky. 1923 ).

Where no specific amount is devised to any of the legatees, the gift being a certain portion of the income and the amount of this to be determined by the trustee and its officers, such legacies do not lapse, but when they cease to exist, the trustee continues to divide the income between the other legatees according to its discretion and KRS 394.500 , applying to lapsed legacies, is inapplicable. Gill's Ex'r v. Woman's Club of Louisville, 205 Ky. 731 , 266 S.W. 378, 1924 Ky. LEXIS 211 ( Ky. 1924 ).

Remaindermen could bring action under declaratory judgment act for construction of will and for declaration of their rights where will failed to point out with reasonable certainty the purposes of the charity and the beneficiaries thereof as required by this section. Gooding v. Watson's Trustee, 235 Ky. 562 , 31 S.W.2d 919, 1930 Ky. LEXIS 412 ( Ky. 1930 ).

Trust to church of which testator was a member to be used by its trustees to carry on and foster the manifold purposes of the church was not invalid because a part of the income was to be paid to the church trustees to be expended by them in the manner they deemed proper as the fund did not go to the trustees as individuals but as trustees of and for the church and it was not to be presumed that they would use the fund for purposes other than to carry on and foster the proper activities of the church. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

The general rule is that where property is devised for charitable uses, the donor or a residuary legatee has no interest in the trust property save as one of the public and can only question the activities of the trustee by a bill preferred on behalf of himself and all others similarly situated, in conjunction with the attorney general. Greenway v. Irvine's Trustee, 279 Ky. 632 , 131 S.W.2d 705, 1939 Ky. LEXIS 322 ( Ky. 1939 ).

Where will created a charitable trust, with no provision for a remainder or reversionary interest in case of a breach or failure of the trust, the heirs of the testator had no power to maintain an action to compel enforcement of the trust or to have the trust declared void for breach. Greenway v. Irvine's Trustee, 279 Ky. 632 , 131 S.W.2d 705, 1939 Ky. LEXIS 322 ( Ky. 1939 ).

While the beneficiary of a trust may maintain a suit to enforce it, one not having a beneficial interest may not. Greenway v. Irvine's Trustee, 279 Ky. 632 , 131 S.W.2d 705, 1939 Ky. LEXIS 322 ( Ky. 1939 ).

Charitable trusts are favored in law. Mere delay or temporary suspension in carrying out their objectives will not be allowed to defeat them. Drake v. Chappel, 288 Ky. 610 , 157 S.W.2d 117, 1941 Ky. LEXIS 173 ( Ky. 1941 ).

Provisions in a charitable trust as to the use of the property will not be construed as conditions unless the intention that they shall be so construed is manifest. Pennebaker v. Pennebaker Home for Girls, 291 Ky. 12 , 163 S.W.2d 53, 1942 Ky. LEXIS 179 ( Ky. 1942 ).

Where a provision in the instrument creating a charitable trust as to the use of the property is merely a direction, and not a condition, a breach of duty by the trustee in using the property for a purpose other than the one designated will not work a forfeiture in favor of the heirs of the donor, but will furnish grounds for an action by the attorney general or the beneficiaries of the trust to compel compliance with the terms of the trust. Pennebaker v. Pennebaker Home for Girls, 291 Ky. 12 , 163 S.W.2d 53, 1942 Ky. LEXIS 179 ( Ky. 1942 ).

Where testator placed property in trust to maintain school for indigent girls but, because of decrease in value or trust assets, school could not be maintained and property was used merely as home for indigent girls, such departure from terms of trust did not work a forfeiture in favor of testator’s heirs. Pennebaker v. Pennebaker Home for Girls, 291 Ky. 12 , 163 S.W.2d 53, 1942 Ky. LEXIS 179 ( Ky. 1942 ).

Whether a provision in an instrument creating a charitable trust is a direction or a condition depends upon the intent of the settlor and, where the language used indicates that the settlor had a general charitable intent, the use of the property for a charitable purpose other than the one designated will not work a forfeiture. Pennebaker v. Pennebaker Home for Girls, 291 Ky. 12 , 163 S.W.2d 53, 1942 Ky. LEXIS 179 ( Ky. 1942 ).

6.Beneficiaries and Purpose Certain.

A bequest of a fund to a trustee, to be expended in securing an evangelist, and in the advancement of the principles of primitive Christianity as taught by the Christian church, is valid as a charitable bequest, as the purposes of the charity and the beneficiaries thereof are pointed out with reasonable certainty. Crawford's Heirs v. Thomas, 114 Ky. 484 , 54 S.W. 197, 1899 Ky. LEXIS 4 ( Ky. 1899 ).

Bequest to executor to be distributed by him to the poor in his discretion was valid under this section as it pointed out the purpose of the charity and the beneficiaries with reasonable certainty. Thompson v. Brown, 25 Ky. L. Rptr. 371 (1903).

A will authorizing an executor to dispose of an estate in such proportions as he may deem wise for the aid of a Bible training and missionary school for Christian workers, for the support of a missionary in the foreign field, to aid the cause of Bible holiness, including fire baptized holiness work, and to aid in the support of needy and destitute ministers of the gospel, points out with reasonable certainty the purposes of the charity, and the beneficiaries thereof. Leak's Heirs v. Leak's Ex'r, 78 S.W. 471, 25 Ky. L. Rptr. 1703 (1904).

A charitable trust providing that property should be held by a specified trust company as an endowment fund for a specified Bible society with a specified address, which was an incorporated charity engaged in distributing Bibles to the poor, the interest on the endowment, after paying the expenses of managing the fund, to be paid to the society annually or semiannually as it should become due, and to be used not in paying pre-existing debts of the society but in distributing the Bibles to the destitute of the earth, was sufficiently certain. Kasey v. Fidelity Trust Co., 131 Ky. 609 , 115 S.W. 739, 1909 Ky. LEXIS 45 ( Ky. 1909 ).

A bequest of one half (1/2) of testator’s estate to constitute a fund, the income of which to be used in employing evangelists to bring precious souls into God’s kingdom, in the mountain districts of Kentucky, was a valid charity under this section. Greer v. Synod, Southern Presbyterian Church, 150 Ky. 155 , 150 S.W. 16, 1912 Ky. LEXIS 846 ( Ky. 1912 ).

A bequest of property to C Street Church of Christ of Louisville, Ky., to aid the church in its local work, was sufficiently certain and definite under this section. Miller v. Tatum, 181 Ky. 490 , 205 S.W. 557, 1918 Ky. LEXIS 547 ( Ky. 1918 ).

A bequest that three fifths (3/5) of a designated fund “shall be sent to the country, and destitute places that the poor may have the gospel preached to them” points out with reasonable certainty the purposes of the charity and the beneficiaries thereof and is not void under this section. Miller v. Tatum, 181 Ky. 490 , 205 S.W. 557, 1918 Ky. LEXIS 547 ( Ky. 1918 ).

A bequest “to foreign missions: In this respect I regard Japan as an important field, and if Brother M is then living and in Japan, regard him as a good and worthy man to invest the money given to this portion of the work to best advantage” is not uncertain or indefinite as to purpose for which it is to be expended, where it is to be expended or in whose behalf and in addition, testator has named a person he knew and trusted to manage the expenditure. The bequest is valid under this section. Miller v. Tatum, 181 Ky. 490 , 205 S.W. 557, 1918 Ky. LEXIS 547 ( Ky. 1918 ).

Provision of will creating educational fund for education of worthy American boys and girls was valid as educational benevolence. Owens v. Owens' Ex'r, 236 Ky. 118 , 32 S.W.2d 731, 1930 Ky. LEXIS 699 ( Ky. 1930 ).

Legacy to “Kentucky Christian Missionary Society” to be used for benefit of “Christian churches” in home county and adjoining counties in discretion of executive committee was sufficiently definite as to purposes and beneficiaries as to constitute a valid charitable gift, although some of the 74 Christian churches existing in such counties might be disbanded and others organized in the future. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

A devise of realty to a church in trust for a particular charitable purpose is valid and, where the testator directs that the realty be sold and the proceeds be given to church, the devise is also valid. Spradlin v. Wiman, 272 Ky. 724 , 114 S.W.2d 1111, 1938 Ky. LEXIS 169 ( Ky. 1938 ).

A bequest made to a named cemetery company “as an endowment fund (no part of the principal to be spent)” was not invalid for uncertainty as to purpose or beneficiaries of the gift, notwithstanding that no directions were given as to what the money was to be used for, since the quoted phrase created a valid trust for the humane purpose of supporting and maintaining the cemetery, and for the benefit of all the burial lots therein. Epperson v. Clintonville Cemetery Co., 303 Ky. 852 , 199 S.W.2d 628, 1947 Ky. LEXIS 567 ( Ky. 1947 ).

A bequest in trust for the establishment of a home for poor men was not uncertain because no power was given to anyone to select the objects of the charity, as the trustees would have authority to act in the selection of a site for the home and in its establishment and management under the control and direction of the chancellor. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

A residuary bequest of remainder of estate in trust to the “Bishop of the Catholic Diocese of Louisville and three others to be chosen by him, for the establishment of a home for poor Catholic men” was not too indefinite as to the location in which the home should be established, and from which the beneficiaries should be selected, as equity could uphold a charitable trust by the court taking control of the fund, and directing its management, and settling who was the beneficiary thereof, and the will would be construed as requiring the establishment of the home in Louisville, and the selection of beneficiaries from that diocese. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

Law permitting testator to create a trust “for the relief or benefit of aged or impotent and poor people” meant “poor” who needed assistance and “aged” who were properly objects of charity and devise to executor to be distributed “to the poor in his discretion” was not objectionable for uncertainty of beneficiaries or purpose. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

7.— Beneficiaries.

A testamentary trust to establish and maintain an orphans’ asylum for the maintenance and education of the poor orphan children under 17 years of age of members of a secret society is not void for indefiniteness, and the beneficiaries are named with sufficient certainty. Green's Adm'r v. Fidelity Trust Co., 134 Ky. 311 , 120 S.W. 283, 1909 Ky. LEXIS 376 ( Ky. 1909 ).

A clause in a will creating a trust fund to assist aged unmarried women, preferably teachers, so that their last days may not be made miserable by extreme poverty not only designates a class to receive the benefits of the trust but narrows the class to unmarried women who are aged, preferably teachers, and implies that they be poor and is a valid charity under this section. State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

Devise limited to established educational or charitable institutions in a designated city similar to those enumerated in the will did not authorize trustee to choose purpose or select the beneficiary but limited trustee’s discretion to ascertain whether or not the recipient was within the classes enumerated in the will and the trust was sufficiently definite and certain as to beneficiaries to be enforced and therefore valid. Gill's Ex'r v. Woman's Club of Louisville, 205 Ky. 731 , 266 S.W. 378, 1924 Ky. LEXIS 211 ( Ky. 1924 ).

Board of education of church conference to which land was deeded in trust to maintain school for indigent children was not “beneficiary” thereof, so as to render trust void. Snyder v. General Conference Board, 205 Ky. 812 , 266 S.W. 661, 1924 Ky. LEXIS 242 ( Ky. 1924 ).

A bequest to be applied for masses to be celebrated for repose of soul of testator after his decease did not fail for want of a beneficiary, for the general class of the use having been designated by the testator, the trustee could select the immediate Catholic church to be the beneficiary. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

Bequest for reconstruction of monasteries designated beneficiary with reasonable certainty. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

Where class is designated but immediate objects left indefinite, trustee or court may designate object within class. Lightfoot v. Lightfoot, 207 Ky. 426 , 269 S.W. 529, 1925 Ky. LEXIS 103 ( Ky. 1925 ).

A devise to “the orphans’ homes of Kentucky” was not indefinite as to the object and purposes and each such home within the state at testatrix’s death became vested with its pro rata share of the total devise, be it large or small, and the difficulty in ascertaining the number of such homes did not make the devise indefinite as to beneficiaries. Violett's Adm'r v. Violett, 217 Ky. 59 , 288 S.W. 1016, 1926 Ky. LEXIS 7 ( Ky. 1926 ).

Devise in trust for benefit of Y. W. C. A. in stated city after such an association should be properly organized was valid. Russell v. Tyler, 224 Ky. 511 , 6 S.W.2d 707, 1928 Ky. LEXIS 642 ( Ky. 1928 ).

Charitable beneficiaries may be described in will as class, and trustee given power to select members of class described. Gooding v. Watson's Trustee, 235 Ky. 562 , 31 S.W.2d 919, 1930 Ky. LEXIS 412 ( Ky. 1930 ).

Fact that some discretion is invested in trustee does not invalidate trust. Owens v. Owens' Ex'r, 236 Ky. 118 , 32 S.W.2d 731, 1930 Ky. LEXIS 699 ( Ky. 1930 ).

Uncertainty as to beneficiaries is one of the distinct features or elements of a purely charitable purpose or use. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

Where trust was created for the use of higher education of young people of three (3) counties and it was left to discretion of trustees to select worthy beneficiaries, such trust was not vague and uncertain as to beneficiaries. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

Beneficiaries may be designated only as a class with particular objects of the testator’s benefaction to be determined by trustee appointed to administer the trust and such is a valid charitable trust, for the testator has chosen the class of beneficiaries and granted a power to the trustee to select only the individual members of the class. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

Bequest “to the needy widows’ home or children’s home” with no kind of identification was not invalid for failure to point out beneficiary with reasonable certainty as it was a specific bequest for unidentified classes within a designated territory, it being understood as intending either a widows’ home or a children’s home of testatrix’s county. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Under law of charitable trust, where purpose of the charity is made reasonably certain by instrument creating it, beneficiaries may be designated as a class only, leaving particular beneficiaries within the class to be determined by the trustee or by the court. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Trust of residue of estate to “the Catholic Diocese of Kentucky, at Louisville, Kentucky, for the education of young priests” was valid devise to the Roman Catholic Bishop at Louisville, where the Catholic Diocese of Kentucky at Louisville had been created as a corporation sole under the name of the “Roman Catholic Bishop of Louisville,” although there were other denominations in Louisville using the words “Catholic” and “Bishop.” Shrader v. Erickson's Ex'r, 284 Ky. 449 , 145 S.W.2d 63, 1940 Ky. LEXIS 523 ( Ky. 1940 ).

Where the testator left a devise to the Widows and Orphans Home of the Church of Christ, Louisville, Ky., and no such institution existed but there was a home for widows and orphans called The Christian Church Homes of Kentucky, the will clearly exhibited a charitable purpose, and it named a distinct class of persons who were to be the beneficiaries, and the fact that the institution was not named with technical accuracy in the will would not justify violating the testator’s charitable purpose. Davis v. Cary, 429 S.W.2d 411, 1968 Ky. LEXIS 752 ( Ky. 1968 ).

8.— Purpose.

Testamentary trust specifying the Southern Presbyterian Church as the object of testatrix’s bounty, and investing her executors and trustees with discretion to select the particular activities of the church to which the property should be applied, was sufficiently specific to come within this section. Kratz v. Slaughter's Ex'rs, 185 Ky. 256 , 214 S.W. 878, 1919 Ky. LEXIS 280 ( Ky. 1919 ).

Purpose of the charity was pointed out with reasonable certainty where devise was to college controlled by a church for the establishment of an educational fund or endowment for the support of a Bible chair for education of preachers of the gospel and to teach designated doctrines of the church which doctrines were then being taught by the college and were held by testator and a faction of the church although not by all members. Bailey v. Waddy, 195 Ky. 415 , 243 S.W. 21, 1922 Ky. LEXIS 373 ( Ky. 1922 ).

When a devise is made to a society or organization such as a named missionary society founded for and engaged in a specific work without setting out in the will a different use to which the devise is to be applied, the mere devise sufficiently indicates the purpose intended and may be enforced in equity. American Christian Mission Soc. v. Tate, 198 Ky. 621 , 250 S.W. 483, 1923 Ky. LEXIS 578 ( Ky. 1923 ).

Where bequest was a life estate to husband and remainder to be used to build church as near as designated church as land could be bought and the church testatrix had attended during her lifetime was discontinued and a new church built within two (2) miles of the old church after her death but during her husband’s lifetime, her intention and purpose was carried out by, after her husband’s death, equipping and repairing the new church. Lightfoot v. Lightfoot, 207 Ky. 426 , 269 S.W. 529, 1925 Ky. LEXIS 103 ( Ky. 1925 ).

Bequest for purpose of creating federal monument fund was valid. Owens v. Owens' Ex'r, 236 Ky. 118 , 32 S.W.2d 731, 1930 Ky. LEXIS 699 ( Ky. 1930 ).

Clause in will giving residue to the Catholic Diocese at Louisville “for the education of young priests” did not disclose lack of specification of class of beneficiaries, within rule that one essential of trust for charitable purposes is that beneficiaries are uncertain, although they should be of class described in general language. Shrader v. Erickson's Ex'r, 284 Ky. 449 , 145 S.W.2d 63, 1940 Ky. LEXIS 523 ( Ky. 1940 ).

Where clause in will giving residue “to the Catholic Diocese of Kentucky, at Louisville, Kentucky, for the education of young priests” was attacked as uncertain and allegedly ambiguous, aid was allowed to ascertain purpose of testatrix. Shrader v. Erickson's Ex'r, 284 Ky. 449 , 145 S.W.2d 63, 1940 Ky. LEXIS 523 ( Ky. 1940 ).

Where certain land was devised to widow for life and upon her death or remarriage to daughter for life and upon her death to her son for life with provision that property should not be transferred to any person until their death when it was to sold to the highest bidder and the proceeds put into government bonds with the interest on the bonds to go to a cemetery for benefit of graves, the daughter’s son took a life estate and the bequest to the cemetery was valid. Boggess v. Inabnit, 284 Ky. 673 , 145 S.W.2d 838, 1940 Ky. LEXIS 558 ( Ky. 1940 ).

9.Beneficiaries and Purpose Uncertain.

A clause in a will which directs the executor to dispose of the residuary estate according to his judgment for good and charitable purposes is invalid for failing, as required by this section, to point out the purpose and beneficiary. Gerick's Ex'r v. Gerick, 158 Ky. 478 , 165 S.W. 695, 1914 Ky. LEXIS 663 ( Ky. 1914 ).

A gift to charity, designating no beneficiary or charitable purpose, was void under this section, for uncertainty. Simmon's Ex'r v. Hunt, 171 Ky. 397 , 188 S.W. 495, 1916 Ky. LEXIS 380 ( Ky. 1916 ).

An agreement of owners that money be used for charitable purposes, constituting a gift void for uncertainty, could not support a valid executed trust, by the one named as trustee bequeathing it in trust for named beneficiaries. Simmon's Ex'r v. Hunt, 171 Ky. 397 , 188 S.W. 495, 1916 Ky. LEXIS 380 ( Ky. 1916 ).

Where a court could not, because of uncertainty, enforce an agreement as a charitable trust, one designated as trustee could not. Simmon's Ex'r v. Hunt, 171 Ky. 397 , 188 S.W. 495, 1916 Ky. LEXIS 380 ( Ky. 1916 ).

The purpose of the charity was uncertain where will provided trustee was to pay the principal of the trust on the death of the life tenant to such charitable organizations in two (2) designated cities, excluding educational institutions, “as in its then judgment may be right and proper.” Gooding v. Watson's Trustee, 235 Ky. 562 , 31 S.W.2d 919, 1930 Ky. LEXIS 412 ( Ky. 1930 ).

That part of bequest which provided that trustee in alternative might distribute the funds “as he thinks best wherever he thinks needed” was clearly invalid for want of compliance with the law and because it was in effect but the delegation of authority to make the will and dispose of the property according to the trustee’s purposes rather than the testator’s. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Where testator designates neither class nor object of charitable bequest, and leaves choice to the trustee, the bequest fails under law as an attempt to delegate testator’s authority to make the will. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Although will provided that in event institution was not designated by testator, it should be selected by official of German city, this was not a reasonably certain pointing out of the purposes and beneficiaries of the charitable gifts. Stoeer v. Meyer, 285 Ky. 387 , 147 S.W.2d 1041, 1941 Ky. LEXIS 390 ( Ky. 1941 ).

Where will stated testator would go to Germany to select institution to receive bequest and would designate the selected institution by a codicil, but testator did not make the contemplated trip nor add a codicil, the unfilled expressed intentions were sufficient to throw a cloud of doubt on the attempted gift. Stoeer v. Meyer, 285 Ky. 387 , 147 S.W.2d 1041, 1941 Ky. LEXIS 390 ( Ky. 1941 ).

Where will provided trustees should determine worthy educational or charitable institutions or individuals and gave trustees sole discretion to determine beneficiaries, it was void as the particular charity to be benefited was uncertain. Hoenig v. Newmark, 306 S.W.2d 838, 1957 Ky. LEXIS 61 ( Ky. 1957 ).

A devise to “charitable and religious organizations” does not state the object or purpose of the devise with reasonable certainty. Bank of Maysville v. Calvert, 481 S.W.2d 24, 1972 Ky. LEXIS 208 ( Ky. 1972 ).

Where will’s residuary clause was illegible in the portion which described the purposes of the trust which it purported to establish, the bequest failed. Smith v. Snow, 106 S.W.3d 467, 2002 Ky. App. LEXIS 2328 (Ky. Ct. App. 2002).

A bequest to a bishop to be applied to any charitable uses was invalid. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

A bequest to the Jesuit order “for the purposes of education or religion” was not to “an identified or ascertainable object” which could be judicially determined and thereby effectuate the declared intention of the donor and was invalid. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

10.— Beneficiaries.

In a suit involving the validity of a will which directs the executor to dispose of the residuary estate according to his judgment for good and charitable purposes, he may not join as parties religious, educational, and charitable organizations which he has selected to receive the gift on his mere allegation that they are such beneficiaries as the testator had in mind and intended as the recipients of the gift. Gerick's Ex'r v. Gerick, 158 Ky. 478 , 165 S.W. 695, 1914 Ky. LEXIS 663 ( Ky. 1914 ).

Where no cestui que trust was designated, no court could enforce agreement as a trust. Simmon's Ex'r v. Hunt, 171 Ky. 397 , 188 S.W. 495, 1916 Ky. LEXIS 380 ( Ky. 1916 ).

11.Practicability of Enforcement Immaterial.

Where it was practicable under existing conditions to execute a trust establishing a chair for teaching designated religious doctrines at a college, the practicability of enforcement of the terms of the trust if the authorities of the college should change their views had not arisen and were not up for consideration of the court. Bailey v. Waddy, 195 Ky. 415 , 243 S.W. 21, 1922 Ky. LEXIS 373 ( Ky. 1922 ).

Research References and Practice Aids

Cross-References.

Property owned by church, title, KRS 273.140 .

Kentucky Law Journal.

Noyes, Validity of Charitable Subscriptions in Kentucky, 33 Ky. L.J. 50 (1944).

Covington, The Cy Pres Doctrine in Kentucky, 35 L.J. 95 (1946).

Roberts, Kentucky Decisions on Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

381.270. Gift to charity not defeated for want of trustee.

No charity shall be defeated for want of a trustee or other person in whom the title may vest; but courts of equity may uphold the charity by appointing trustees, if there be none, or by taking control of the fund or property, and directing its management and settling who is the beneficiary thereof.

History. 318.

NOTES TO DECISIONS

1.Want of Trustee.

Equity never allows a trust to fail for want to a trustee. Willett v. Willett, 197 Ky. 663 , 247 S.W. 739, 1923 Ky. LEXIS 685 ( Ky. 1923 ). See State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

Trust for charitable purposes does not fail for want of trustee. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

2.Court’s Power to Supply Trustees.

A court of equity will supply an original want of trustees, or, if necessary, displace old and create new ones. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ). See Young v. Redmon's Trustee, 300 Ky. 418 , 189 S.W.2d 401, 1945 Ky. LEXIS 560 ( Ky. 1945 ).

3.Selection of Colleagues by Trustee.

Power given to named trustee to select three cotrustees was valid. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

Cited:

Davis v. Cary, 429 S.W.2d 411, 1968 Ky. LEXIS 752 ( Ky. 1968 ).

381.280. Forfeiture of right to property for killing or victimizing decedent — Exemptions — Escheat to elder and vulnerable victims trust fund.

  1. If the husband, wife, heir-at-law, beneficiary under a will, joint tenant with the right of survivorship or the beneficiary under any insurance policy takes the life of the decedent or victimizes the decedent by the commission of any felony under KRS Chapter 209 and in either circumstance is convicted therefor, the person so convicted forfeits all interest in and to the property of the decedent, including any interest he or she would receive as surviving joint tenant, and the property interest or insurable interest so forfeited descends to the decedent’s other heirs-at-law, beneficiaries, or joint tenants, unless otherwise disposed of by the decedent. A judge sentencing a person for a offense that triggers a forfeiture under this section shall inform the defendant of the provisions of this section at sentencing.
  2. A forfeiture under subsection (1) of this section:
    1. Shall not apply in cases involving the commission of any felony under KRS Chapter 209 where the will, deed, or insurance policy was executed prior to January 1, 2012;
    2. Shall not apply in cases where the decedent, with knowledge of the person’s disqualification, reaffirmed the right of the husband, wife, heir-at-law, beneficiary under a will, joint tenant with the right of survivorship, or insurance policy beneficiary to receive the property by executing a new or modified will or codicil, insurance policy or policy modification, or deed; and
    3. Shall not apply in cases of a felony under KRS Chapter 209 committed prior to January 1, 2012.
  3. If, after the provisions of this section are applied, there are no other heirs-at-law, beneficiaries, or joint tenants of the decedent as to all or part of the interest forfeited, the forfeited interest shall escheat to the state under KRS Chapter 393. The Department of the Treasury shall, after liquidation of the interest, pay the proceeds into the elder and vulnerable adult victims trust fund established in KRS 41.305 .

History. 1406a: amend. Acts 2011, ch. 43, § 2, effective January 1, 2012; 2011, ch. 43, § 3, effective June 8, 2011; 2012, ch. 95, § 1, effective July 12, 2012.

NOTES TO DECISIONS

1.Constitutionality.

This section applies uniformly to all members of the classes named throughout the state and its general legislation and not special or local legislation in violation of Const., § 59. Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ).

This section was new legislation complete in itself, without reference to other laws and it did not amend or purport to amend any prior legislation and it was not necessary to set out or republish any part of any old law that might have been changed or repealed by the new law and it did not violate Const., § 51. Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ).

2.Application.

The legislature did not intend by the enactment of this section to punish or work hardship upon a child whose parent had committed a wrongful act and where husband killed his wife and himself, one half (1/2) of property held under a tenancy by entirety went to husband’s heirs and one half (1/2) to wife’s heirs. Cowan v. Pleasant, 263 S.W.2d 494, 1953 Ky. LEXIS 1154 ( Ky. 1953 ).

This section has no application in an action for wrongful death under KRS 411.130 . Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 1967 Ky. LEXIS 126 ( Ky. 1967 ).

3.— Intent.

Intent is not required in order for this section to apply. Mounts v. United States, 838 F. Supp. 1187, 1993 U.S. Dist. LEXIS 16996 (E.D. Ky. 1993 ).

4.Forfeiture.

Murderer convicted of killing his parents forfeited his right to inherit from either of them, and for the purposes of inheritance or taking under a will, the murderer is to be considered as predeceasing his parents and murderer’s only child would inherit. Bates v. Wilson, 313 Ky. 572 , 232 S.W.2d 837, 1950 Ky. LEXIS 906 ( Ky. 1950 ).

Where husband had been convicted of a felony for taking the life of his wife, he was barred from asserting any interest he would receive as a surviving tenant in residence owned by them. Therefore, the entire value of the residence was a part of the estate of the wife. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

The conviction of wife of decedent for reckless homicide, a felony homicide, in causing decedent’s death operated as a matter of law under this section to forfeit any rights she otherwise might have had to decedent’s CSRS pension benefits and consequently such benefits were payable to decedent’s children by a previous marriage. Mounts v. United States, 838 F. Supp. 1187, 1993 U.S. Dist. LEXIS 16996 (E.D. Ky. 1993 ).

Because an individual who strangled the person with whom the individual lived had shared the property as joint tenants and not as tenants by the entirety, pursuant to KRS 381.280 the individual did not forfeit the individual’s one-half interest in the property by killing the person, but instead only forfeited the individual’s right of survivorship to the person’s one-half interest. Newton v. Newton, 365 S.W.3d 565, 2011 Ky. App. LEXIS 181 (Ky. Ct. App. 2011).

5.Mortgage on Forfeited Property.

A mortgage executed by son on parents’ real estate after he killed them was without effect for, by his acts, he forfeited any right to inherit from them and no part of their estate was vested in him by reason of their death. Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ).

6.Purchase by Barred Heir.

While this law barred son who had killed father from inheriting the father’s land, it did not bar him from buying the land from those who did inherit it. Pierce v. Pierce, 309 Ky. 77 , 216 S.W.2d 408, 1948 Ky. LEXIS 1072 ( Ky. 1948 ).

7.Division of Property.

Where husband, who held insured property with wife as tenants by entireties, murdered wife, neither he nor his heirs could claim all of the property under a right of survivorship; equity dictates under the circumstances that the property be divided equally between the husband or his heirs and the heirs of the deceased spouse. This result was not in contravention of this section which merely preempts operation of the right of survivorship in such situations. Heuser v. Cohen, 655 S.W.2d 9, 1982 Ky. App. LEXIS 205 (Ky. Ct. App. 1982).

8.Tenants by the Entirety.

Where a husband caused the death of his wife, and one (1) month later certain residential property that they had held as tenants by the entirety was totally destroyed by fire, equitable principles dictated that the husband was entitled to retain a one-half (1/2) interest in the casualty insurance proceeds and the other half would be paid to the estate of the deceased wife. Heuser v. Cohen, 630 S.W.2d 79, 1982 Ky. App. LEXIS 296 (Ky. Ct. App. 1982).

9.Life Insurance Policies.

Proceeds of insurance policies on the life of wife killed by husband, which were owned by husband and payable to him as beneficiary, were correctly included in wife’s estate under § 2042(1), Internal Revenue Code, on the basis of this section even though the contingent beneficiaries were the husband or his executors or administrators, since husband was alive at the time of wife’s death and no executors or administrators existed. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

Where husband killed wife, to the extent that the wife’s will named a residuary legatee other than her husband, the proceeds of insurance policies on the wife of which husband was the beneficiary were payable under this section to the executor of the wife’s estate for distribution to such legatee subject to the payment of debts and other claims and charges against the estate; however if the husband was the only named legatee, the insurance proceeds would pass as intestate property to wife’s heirs and as such would also be subject to any claims and charges against the estate. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

Since federal law rather than state law governed action where natural children of deceased were seeking benefits of deceased’s federal life insurance where deceased was killed by wife who had been named as beneficiary, this section was not relevant in determining the receipt of the life insurance benefits. Mounts v. United States, 838 F. Supp. 1187, 1993 U.S. Dist. LEXIS 16996 (E.D. Ky. 1993 ).

10.Appeal of Conviction.

With regard to husband who was convicted of killing his wife, where he contended that until his appeal is concluded, he cannot technically be considered convicted under this section the better rule would be to allow the provisions of this section to apply as soon as a conviction occurs, regardless of whether an appeal is taken. Roberts v. Wilcox, 805 S.W.2d 152, 1991 Ky. App. LEXIS 26 (Ky. Ct. App. 1991).

Cited:

Ryburn v. First Nat’l Bank, 399 S.W.2d 313, 1965 Ky. LEXIS 25 ( Ky. 1965 ).

Opinions of Attorney General.

A widow would not be entitled to a survivor’s benefit under KRS 161.520 if she is convicted of a felony for her husband’s death. OAG 70-692 .

Where a widow is under indictment resulting from her husband’s death, no payments should be made as a widow’s benefit under KRS 161.520 until such time as she is acquitted on the charge. OAG 70-692 .

A person who causes the death of another is precluded from inheriting from the deceased if the person is convicted of a felony for taking the life of the decedent. OAG 82-162 .

Research References and Practice Aids

Kentucky Law Journal.

Griffin, Right of Child of Slayer to Inherit from Slayer’s Victim — Bates v. Wilson, 39 Ky. L.J. 496 (1951).

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Hill, No-Fault Death: Wedding Inheritance Rights to Family Values., 94 Ky. L.J. 319 (2005/2006).

Northern Kentucky Law Review.

2008 Criminal Law Issue: Note: Kentucky’s Statutory Collateral Consequences Arising From Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008).

Treatises

Petrilli, Kentucky Family Law, Property Rights, § 14.8.

ALR

Felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter’s right in the property. 42 A.L.R.3d 1116.

381.290. Rights of alien intending to be naturalized.

After declaring his intention to become a citizen of the United States, according to the forms required by law, any alien, not an enemy, may recover, inherit, hold, and pass by descent, devise or otherwise, any interest in real or personal property, in the same manner as if he were a citizen of this state.

History. 334.

NOTES TO DECISIONS

1.Descent.

At common law, an alien cannot take by descent. Ripley v. Von Zedtwitz, 201 Ky. 513 , 256 S.W. 1106, 1923 Ky. LEXIS 302 ( Ky. 1923 ).

2.Escheat.

Board of education had the power to institute suit through the Attorney General in the name of the Commonwealth to escheat the land of an alien owner for use and benefit of the school district. Commonwealth ex rel. Attorney Gen. v. Tamer, 293 Ky. 357 , 169 S.W.2d 19, 1943 Ky. LEXIS 626 ( Ky. 1943 ).

3.Common Law.

An alien could take lands by purchase, though not by descent, at common law. White v. White, 59 Ky. 185 , 1859 Ky. LEXIS 76 ( Ky. 185 9).

At common law, an alien could not take land by inheritance; this was still in force in Kentucky except so far as it had been modified by law. White v. White, 59 Ky. 185 , 1859 Ky. LEXIS 76 ( Ky. 185 9 ). See Hunt v. Warnicke's Heirs, 3 Ky. 61 ( Ky. 1806 ).

4.Devise Contingent on Becoming Citizen.

A devise to testator’s half brother, depending on the contingency of his becoming a citizen of the United States or being otherwise qualified to hold real estate, was a good executory devise. Beard v. Rowan, 34 U.S. 301, 9 L. Ed. 135, 1835 U.S. LEXIS 352 (U.S. 1835).

Opinions of Attorney General.

Real property owned by a company incorporated in the United States, the shares of which are owned partially or wholly by aliens, is not subject to the escheat provisions in KRS 381.290 to 381.340 and may be indefinitely held by the corporation, since the alien does not own real property but owns personal property (stock) as permitted by KRS 381.320 . OAG 81-248 .

KRS 381.290 to KRS 381.340 are constitutional unless contrary to treaty with the government of which such alien is a citizen or subject. OAG 81-248 .

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.300. Realty of nonresident alien liable to escheat after eight years unless he becomes citizen.

  1. Except as otherwise provided in this chapter, the real estate of a nonresident alien may be escheated to the state at any time after the expiration of eight (8) years after the time he acquires title thereto.
  2. Any alien who has purchased, or contracted to purchase, any real estate, or who holds or has title thereto, and who becomes a citizen of the United States before the property is escheated, and any purchaser, lessee, heir, or devisee, from him, if a citizen of the United States, who becomes the owner thereof by purchase or inheritance before the property is escheated, shall take and hold the property free and released from any right or claim of the state by reason of such person’s having been an alien.

History. 335: amend. Acts 1984, ch. 275, § 1, effective July 13, 1984.

NOTES TO DECISIONS

1.Institution of Action.

The board of education of the school district in which property owned by an alien is situated may institute an action in the name of the commonwealth to escheat the property. If the board has authorized the action, it is proper for the action to be brought by the attorney general as relator. Commonwealth ex rel. Attorney Gen. v. Tamer, 293 Ky. 357 , 169 S.W.2d 19, 1943 Ky. LEXIS 626 ( Ky. 1943 ).

Opinions of Attorney General.

Under this statute there is no automatic reversion to the State, thus an action would be required to be filed in Circuit Court to escheat real property of an alien to the Commonwealth. OAG 76-332 .

Inasmuch as a corporation is a legal entity distinct from its shareholders, the property of a corporation, the shares of which are partially or wholly owned by a nonresident alien, would not be subject to the escheat provisions of this section. OAG 77-576 .

The property of a corporation, the shares of which are owned partially or wholly by a nonresident alien, are not subject to the escheat provisions noted above and may be properly held by the foreign interest. OAG 78-585 .

This section and KRS 381.320 are constitutional, but, to enforce them, an action must be filed in Circuit Court to escheat the property since there is no automatic reversion. OAG 78-678 .

Real property owned by a firm incorporated in the United States, the shares of which are owned partially or wholly by aliens, is not subject to the escheat provisions of KRS 381.300 to 381.340 and may be properly and indefinitely held by the foreign interests. OAG 79-161 .

Research References and Practice Aids

Cross-References.

Escheat, property subject to, proceedings, KRS 393.020 , 393.150 , 393.160 .

Kentucky Bench & Bar.

Mazzoli & Hamilton, Immigration Considerations for the Kentucky Practitioner, Vol. 60, No. 4, Fall 1996, Ky. Bench & Bar 6.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.310. Spouses and children of citizens — Property rights.

Any person whose spouse is a citizen of the United States, and any person whose father or mother, at the time of his birth, was a citizen thereof, although born out of the United States, may take and hold real or personal estate by devise, purchase, descent, or distribution.

History. 336: amend. Acts 1974, ch. 386, § 70.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

381.320. Alien’s right as to personalty — As to realty if resident.

Any alien, not an enemy, may take and hold any personal property except chattels real. If such alien resides within this state he may take and hold any lands for the purposes of residence, or of occupation by him or his servants, or for the purpose of any business, trade, or manufacture, for as long as he remains a resident of the state. An alien so taking and holding shall have like rights, remedies and exemptions concerning such property as if he were a citizen of the United States.

History. 337: amend. Acts 1984, ch. 275, § 2, effective July 13, 1984.

Opinions of Attorney General.

The property of a corporation, the shares of which are owned partially or wholly by a nonresident alien, are not subject to the escheat provisions noted above and may be properly held by the foreign interest. OAG 78-585 .

KRS 381.300 and this section are constitutional, but, to enforce them, an action must be filed in circuit court to escheat the property since there is no automatic reversion. OAG 78-678 .

Real property owned by a company incorporated in the United States, the shares of which are owned partially or wholly by aliens, is not subject to the escheat provisions in KRS 381.290 to 381.340 and may be indefinitely held by the corporation, since the alien does not own real property but owns personal property (stock) as permitted by this section. OAG 81-248 .

A foreign corporation duly qualified to do business in Kentucky may own property in Kentucky, even if all the shareholders are nonresident aliens. Also, a Kentucky corporation solely owned by a foreign corporation may own property in Kentucky. OAG 82-291 .

This section specifically allows aliens to take and hold personal property, such as stock. OAG 82-291 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mazzoli & Hamilton, Immigration Considerations for the Kentucky Practitioner, Vol. 60, No. 4, Fall 1996, Ky. Bench & Bar 6.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.330. Nonresident alien — Rights as to real property inherited.

If real estate passes to a nonresident alien by descent or devise, such property may be held and alienated by such nonresident alien for eight (8) years after the final settlement of the decedent’s estate from which it was acquired. If such heir or devisee is a minor, the real estate may be held for his benefit by a guardian or curator, and may be sold by proper proceeding had in conformity with the laws regulating sales of infant’s real estate, if commenced within such eight (8) years.

History. 338.

NOTES TO DECISIONS

1.Construction.

This section does not provide that real property, which has been held by a nonresident alien devisee for more than eight (8) years, shall pass to the testator’s next of kin who are capable of inheriting, but leaves the common law rule in force, and under that rule only the state may question the right of an alien to hold real property. Ripley v. Von Zedtwitz, 201 Ky. 513 , 256 S.W. 1106, 1923 Ky. LEXIS 302 ( Ky. 1923 ).

This section not only confirms the right of a nonresident alien to take real estate by devise, but confers the additional right to hold the property for a period of eight (8) years even as against the state, a right which did not exist at common law. Ripley v. Von Zedtwitz, 201 Ky. 513 , 256 S.W. 1106, 1923 Ky. LEXIS 302 ( Ky. 1923 ).

This section confers on an alien the additional right to hold realty for a period of eight (8) years, even as against the state. Ripley v. Sutherland, 40 F.2d 785, 1930 U.S. App. LEXIS 3239 (D.C.), cert. denied, 282 U.S. 865, 51 S. Ct. 40, 75 L. Ed. 765, 1930 U.S. LEXIS 239 (U.S. 1930).

Under this section property devised to alien does not pass to testator’s next of kin after eight (8) year period during which alien may hold it by law but to state. Ripley v. Sutherland, 40 F.2d 785, 1930 U.S. App. LEXIS 3239 (D.C.), cert. denied, 282 U.S. 865, 51 S. Ct. 40, 75 L. Ed. 765, 1930 U.S. LEXIS 239 (U.S. 1930).

2.Common Law.

At common law alien could take realty by grant or devise, and title was good against all but sovereign. Ripley v. Sutherland, 40 F.2d 785, 1930 U.S. App. LEXIS 3239 (D.C.), cert. denied, 282 U.S. 865, 51 S. Ct. 40, 75 L. Ed. 765, 1930 U.S. LEXIS 239 (U.S. 1930).

3.Jurisdiction.

Federal trading with the enemy act of 1917 took from the Commonwealth no right it had of escheating lands under this section, but only required it to prosecute any such action in the federal district courts. Commonwealth ex rel. Attorney Gen. v. Von Zedtwitz, 215 Ky. 413 , 285 S.W. 224, 1926 Ky. LEXIS 742 (Ky.), cert. denied, 273 U.S. 735, 47 S. Ct. 243, 71 L. Ed. 866, 1926 U.S. LEXIS 313 (U.S. 1926).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.340. Nonresident alien — Distribution of property on death of.

If a nonresident alien obtains possession of real estate by descent or devise, and dies before the expiration of the period limiting his right of enjoyment or sale, the right thus acquired shall pass by descent or devise. If such heir or devisee is a nonresident alien, the property of the deceased nonresident alien shall be held or disposed of within the period applicable to such alien as provided in KRS 381.290 to 381.330 .

History. 339.

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.350. Waste by tenant for life or years — Forfeiture — Damages.

If any tenant for life or years commits waste during his estate or term, of anything belonging to the tenement so held, without special written permission to do so, he shall be subject to an action of waste, shall lose the thing wasted, and pay treble the amount at which the waste is assessed.

History. 2328.

NOTES TO DECISIONS

1.Construction.

A court of chancery will restrain equitable waste only when it is shown that the particular tenant has been guilty of a wanton and unconscientious abuse of his rights, ruinous to the interests of other parties. Continental Fuel Co. v. Haden, 182 Ky. 8 , 206 S.W. 8, 1918 Ky. LEXIS 308 ( Ky. 1918 ).

This section is very similar to, and was undoubtedly modeled after, the old English statute regarding waste, and should be construed as the English statute was construed, which statute directed that all tenants, except guardians who forfeited their wardship and paid single damages, lose and forfeit the place where waste was committed and also pay treble damages to the person having the inheritance. Salyer's Guardian v. Keeton, 214 Ky. 643 , 283 S.W. 1015, 1926 Ky. LEXIS 397 ( Ky. 1926 ).

Modern action for waste is in nature of action on case, and is action ex delicto. Cohen v. Reif, 223 Ky. 603 , 4 S.W.2d 388, 1928 Ky. LEXIS 393 ( Ky. 1928 ).

This section has been consistently construed as not authorizing a contingent remainderman to maintain an action for waste against a life tenant because it could not be told then whether he would suffer any injury. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

Waste is an act done by a tenant without license or authority whereby a lasting damage is done to the freehold. Calvert v. Rice, 11 Ky. L. Rptr. 1001 , 12 Ky. L. Rptr. 252 .

2.Application.

An action at law for permissive waste will not lie under this section. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

This section and KRS 381.400 both apply only to voluntary waste, and not to permissive waste. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

This section applies only when there is voluntary waste, leaving permissive waste to be dealt with in equity. Continental Fuel Co. v. Haden, 182 Ky. 8 , 206 S.W. 8, 1918 Ky. LEXIS 308 ( Ky. 1918 ).

Law on subject of waste relates only to voluntary waste. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

3.Oral Consent.

Oral consent of landlord does not protect a tenant from an action for waste. Abel v. Wuesten, 143 Ky. 513 , 136 S.W. 867, 1911 Ky. LEXIS 417 ( Ky. 1911 ).

Under this section the oral consent of the remainderman would not release the life tenant from damages for waste. Adams v. Adams, 371 S.W.2d 637, 1963 Ky. LEXIS 108 ( Ky. 1963 ).

4.Taking Timber, Coal or Minerals.

Life tenants may not take and appropriate timber, coal, or other minerals except for the upkeep of the property or for household purposes, unless the instrument creating the life estate expressly permits the commercial use thereof, or permission can be inferred from the fact that the creator of the life estate appropriated the premises to that use. Smith v. Harris, 276 Ky. 529 , 124 S.W.2d 786, 1939 Ky. LEXIS 555 ( Ky. 1939 ).

The law is well settled that a life tenant may not cut timber except such as might be needed for maintaining the improvements or required for domestic purposes. Adams v. Adams, 371 S.W.2d 637, 1963 Ky. LEXIS 108 ( Ky. 1963 ).

5.Alteration of Buildings.

Alterations tenant made were so radical they substantially changed character of building, and constituted waste. Abel v. Wuesten, 143 Ky. 513 , 136 S.W. 867, 1911 Ky. LEXIS 417 ( Ky. 1911 ).

6.Forfeiture of Lease.

Where tenant for years took coal from mine in such a way as to render mine useless, if continued, this constituted waste, and landlord could cancel lease. Mullins v. Dees, 124 S.W. 828, 1910 Ky. LEXIS 672 ( Ky. 1910 ).

As tenant is liable to an action of waste, the lease may be forfeited on ground of waste. Abel v. Wuesten, 143 Ky. 513 , 136 S.W. 867, 1911 Ky. LEXIS 417 ( Ky. 1911 ).

Nothing short of such voluntary waste as a wanton or destructive act committed against the leasehold could be equitable ground for cancellation or forfeiture of a lease. Addison v. Brandenburg, 202 Ky. 580 , 260 S.W. 381, 1924 Ky. LEXIS 767 ( Ky. 1924 ).

Waste, which was chiefly such as grew out of nonuse of a mine, was not ground for forfeiture of a lease. Addison v. Brandenburg, 202 Ky. 580 , 260 S.W. 381, 1924 Ky. LEXIS 767 ( Ky. 1924 ).

7.Tenant’s Liability for Injury by Others.

Tenant in dower is responsible to reversioner for injury to property done by other persons, and they are responsible to tenant. Cumberland Tel. & Tel. Co. v. Foster, 117 Ky. 389 , 78 S.W. 150, 25 Ky. L. Rptr. 1465 , 1904 Ky. LEXIS 193 ( Ky. 1904 ).

8.Liability of Assignee.

Remote assignee assuming coal leases was not liable to lessor for waste by unworkmanlike mining by original lessee and assignees prior to present defendant. Martin's Fork Coal Co. v. Harlan-Wallins Coal Corp., 14 F. Supp. 902, 1934 U.S. Dist. LEXIS 1051 (D. Ky. 1934 ), aff'd, 83 F.2d 967, 1936 U.S. App. LEXIS 2691 (6th Cir. Ky. 1936 ).

9.Jurisdiction.

Upon proper allegations the circuit court had jurisdiction to determine who was the owner of land devised for life and upon proper proof it had jurisdiction to determine that the land was the thing wasted and that the life tenant’s interest therein had thereby terminated. Amos v. Massey, 140 Ky. 54 , 130 S.W. 950, 1910 Ky. LEXIS 172 ( Ky. 1910 ).

10.Treble Damages.

Treble damages done by voluntary or wanton waste by a tenant may be recovered by the person entitled in an action at law. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Research References and Practice Aids

Kentucky Law Journal.

Comments, Meridith v. Ingram: A Failure to Shed the Shackles of Stare Decisis, 62 Ky. L.J. 856 (1973-1974).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Remainderman for Treble Damages and Injunction, Form 311.02.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in an Action for Waste, Form 311.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.360. Remainderman or reversioner may bring action for waste.

The action for waste may be maintained by one who has the remainder or reversion in fee simple after an intervening estate for life or years, and also by one who has a remainder or reversion for life or years only, and each of them shall recover such damages as he has suffered by the waste complained of.

History. 2329.

NOTES TO DECISIONS

1.Application.

This section applies to voluntary waste only and does not apply to permissive waste. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ). See Taylor v. Harvey, 100 S.W. 258, 30 Ky. L. Rptr. 1045 (1907); Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ); Continental Fuel Co. v. Haden, 182 Ky. 8 , 206 S.W. 8, 1918 Ky. LEXIS 308 ( Ky. 1918 ); Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

KRS 381.350 and this section do not apply to contingent remainderman. Taylor v. Harvey, 100 S.W. 258, 30 Ky. L. Rptr. 1045 (1907). See Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

2.Necessity of Suit.

Suit for possession was properly brought within 15 years after death of life tenant by vested remaindermen and although they could have previously brought a suit quia timet to quiet their title, a suit for waste or to enjoin sinking of oil wells they were not required to do so. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

3.Restraint of Waste.

Under KRS 381.350 and this section remaindermen have the right to maintain an action to restrain waste and for damages if depredations complained of are such as to amount to unauthorized waste to their remainder estate. Smith v. Harris, 276 Ky. 529 , 124 S.W.2d 786, 1939 Ky. LEXIS 555 ( Ky. 1939 ).

4.Statute of Limitations.

Under KRS 381.350 and this section the five-year statute of limitations starts to run from the time voluntary waste is committed. Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ). See Adams v. Bates, 191 Ky. 710 , 231 S.W. 238, 1921 Ky. LEXIS 376 ( Ky. 1921 ).

Under KRS 381.350 and this section the statute of limitations starts to run from the time voluntary waste is committed or its commission is so threatened as to give reasonable grounds it will presently be committed. Salyer's Guardian v. Keeton, 214 Ky. 643 , 283 S.W. 1015, 1926 Ky. LEXIS 397 ( Ky. 1926 ).

5.Estoppel.

Vested remainderman was not estopped to prevent waste by life tenant by her silence while tenant prepared to commit waste, as tenant had constructive notice from records of remainderman’s claim. Salyer's Guardian v. Keeton, 214 Ky. 643 , 283 S.W. 1015, 1926 Ky. LEXIS 397 ( Ky. 1926 ).

6.Contingent Remaindermen.

A contingent remainderman is not authorized by law to resist recovery for lumber cut from land and sold by life tenant, nor to maintain action against life tenant for waste. Taylor v. Harvey, 100 S.W. 258, 30 Ky. L. Rptr. 1045 (1907).

This and allied sections have been consistently construed as not authorizing a contingent remainderman to maintain an action for waste against a life tenant, because it could not be told then whether he would suffer any injury. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ). See Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

A contingent remainderman may bring an action at law against a stranger for waste committed before the termination of the life estate, and the trial court may use its powers as a court until the contingent remainder vests, and then apportion the fund between the parties entitled thereto, but the life tenant and other contingent remaindermen should be made parties to the action. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ). See Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

The right of a contingent remainderman to maintain such action against a third person must exist outside the law. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ). See Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

7.Permissive Waste.

A remainderman or reversioner cannot maintain an ordinary action in the nature of trespass on the case against a life tenant to recover damages for permissive waste; his remedy is by suit in equity. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Plaintiffs, in an action at law to recover for voluntary waste, having averred acts of permissive waste by defendants, were entitled to a transfer to equity of their cause. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Where plaintiffs owned the remainder in certain lands as joint tenants, they were properly joined as plaintiffs in a suit for permissive waste against the life tenant’s administrator for waste. Prescott v. Grimes, 143 Ky. 191 , 136 S.W. 206, 1911 Ky. LEXIS 374 ( Ky. 191 1).

An action for permissive waste, the failure to take reasonable care of the premises, will lie after the life tenant’s death by the heirs and next of kin as remaindermen, although during the continuance of the life estate such heirs occupied the position of contingent remaindermen and the statute of limitations started to run at life tenant’s death. Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

A petition against personal representative of tenant per autre vie in equity for permissive waste seeking damages or in alternative that land and improvements be restored was not premature since it accrued before the life estate expired and it was error to sustain demurrer on ground that action was premature. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

Tenant’s heirs and devisees of the tenant per autre vie are not necessary parties to a suit in equity for damages for permissive waste against the tenant’s personal representative. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

While limitation for permissive waste does not run against the remainderman, during the life of the life tenant, the person who holds under the life tenant may not commit waste and if he commits waste an action may be brought by the remainderman against him. Burns v. Dillon, 226 Ky. 82 , 9 S.W.2d 1095, 1928 Ky. LEXIS 12 ( Ky. 1928 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Remainderman for Treble Damages and Injunction, Form 311.02.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in an Action for Waste, Form 311.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.370. Action by heir for waste done in ancestor’s lifetime.

An heir may bring and maintain an action for waste done in the lifetime of his ancestor, as well as in his own lifetime.

History. 2330.

NOTES TO DECISIONS

1.Statute of Limitations.

If the cutting of timber complained of as waste occurred more than five years before institution of action, the statute of limitations will bar a recovery. Adams v. Bates, 191 Ky. 710 , 231 S.W. 238, 1921 Ky. LEXIS 376 ( Ky. 1921 ).

Research References and Practice Aids

Cross-References.

Guardian and his sureties liable to ward for waste of estate, KRS 387.080 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.380. Waste by seller before delivery of possession.

If a vendor or tenant of land commits any waste thereon, after he has sold his interest in it, but while he remains in possession, he shall be liable to the party injured for damages.

History. 2331.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.390. Waste by joint tenant.

If a tenant in common, joint tenant or parcener commits waste, he shall be liable to his cotenants jointly or severally for damages.

History. 2332.

NOTES TO DECISIONS

1.Cutting and Sale of Timber.

Where tenant in common cuts and removes timber, his cotenant may either claim the property in hands of purchaser or hold him for conversion. Nevels v. Kentucky Lumber Co., 108 Ky. 550 , 56 S.W. 969, 22 Ky. L. Rptr. 247 , 1900 Ky. LEXIS 72 ( Ky. 1900 ).

A tenant in common may not sell timber from land jointly owned with others, unless those others consent. Winchester v. Watson, 169 Ky. 213 , 183 S.W. 483, 1916 Ky. LEXIS 667 ( Ky. 1916 ).

Action by one (1) joint tenant to recover from the other his interest in timber taken and sold without his consent, was an action to recover for waste. Emmons v. Evans, 178 Ky. 180 , 198 S.W. 900, 1917 Ky. LEXIS 717 ( Ky. 1917 ).

Cited:

Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 , 144 A.L.R. 763 ( Ky. 1938 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.400. Damages when waste wantonly committed.

If, in any action for waste, the jury finds that the waste was wantonly committed, judgment shall be entered for three (3) times the amount of the damages assessed.

History. 2334.

NOTES TO DECISIONS

1.Construction.

An action at law for permissive waste will not lie under this section. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Law on subject of waste relates only to voluntary waste. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

2.Application.

KRS 381.350 and this section both apply only to voluntary waste, and not to permissive waste. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

3.Treble Damages.

Treble damages done by voluntary or wanton waste by a tenant may be recovered by the person entitled in an action at law. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Research References and Practice Aids

Kentucky Law Journal.

Comments, Meridith v. Ingram: A Failure to Shed the Shackles of Stare Decisis, 62 Ky. L.J. 856 (1973-1974).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in an Action for Waste, Form 311.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.410. Action against representative of tenant — Revivor.

An action for waste may be brought against the representatives of a tenant, or if instituted in the lifetime of a tenant may be revived against his representative after his death.

History. 2335.

NOTES TO DECISIONS

1.Parties.

The heirs and devisees of a tenant holding for the life of another are not necessary parties to an action for damages for permissive waste against his personal representative as KRS 395.340 provides that such estates go to the personal representative as assets in his hands to be applied and distributed as personal property. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

2.Evidence.

Looking at the manner in which the life tenant neglected the property of 450 acres and the improvements thereon as exhibited in the evidence of the witnesses who had opportunity to know its condition when he took it and at his death, the finding of the lower court, in an action by the remaindermen, for damages of $4,500 for waste was substantially correct. Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

381.420. Waste committed while action pending — Receiver — Injunction.

If the tenant or person in possession of any land commits or is about to commit any waste thereon, pending an action to recover or charge such land, the court in which the action is pending may order a receiver to take possession of the land, or may stay the committing of waste by injunction or restraining order.

History. 2336.

NOTES TO DECISIONS

1.Receiver.

A receiver for real estate will be appointed by the chancellor in an action involving title, or where there is an attempt to enforce a lien for debt, and the one in possession claiming title is committing waste and is insolvent, or else the person seeking to enforce lien is entitled to rents and party in possession is insolvent and the property insufficient to satisfy lien. Walker v. Hibbard, 185 Ky. 795 , 215 S.W. 800, 1919 Ky. LEXIS 379 ( Ky. 1919 ).

2.Injunction.

A court of chancery will restrain equitable or permissive waste only when it is shown that the particular tenant has been guilty of wanton and unconscientious abuse of his rights, ruinous to the interests of other parties. Continental Fuel Co. v. Haden, 182 Ky. 8 , 206 S.W. 8, 1918 Ky. LEXIS 308 ( Ky. 1918 ).

Homestead statutes do not create an estate in land but only give to the owner of the homestead the right to use, occupy and enjoy it as a home free from disturbance by the heirs, creditors or others and although a widow could have prevented lessees under a lease executed by her husband’s adult children from entering upon the land and interfering with her use of the surface she could not enjoin them, in an action brought after oil was discovered in paying quantities at great expense to lessees, from operating the oil and gas wells where she permitted them to enter, explore for gas and oil and they paid her damages for her right of use and occupancy of the homestead and the injunctive relief would be of small benefit to her and would operate to the great injury of lessees. Brandenburg v. Petroleum Exploration, 218 Ky. 557 , 291 S.W. 757, 1927 Ky. LEXIS 190 ( Ky. 1927 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Remainderman for Treble Damages and Injunction, Form 311.02.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in an Action for Waste, Form 311.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.430. Possession of minerals and other interests in land — Effect on possession of surface.

Wherever the mineral or other interests in or rights appurtenant to land in this state have passed, or shall hereafter pass, in any way, from a claimant in possession of the surface of the land, the continuity of the possession of such mineral, interests and rights shall not be deemed thereby to have been broken; but the possession of the surface by the original claimant thereof, from whom such mineral, interests or rights passed, or by those claiming through or under him, or by virtue of a judgment against him in an action to which the holder of the mineral, interests or rights is not a party, shall be deemed to be for the benefit of the person, his heirs and assigns, to whom the mineral, interests or rights have passed.

History. 2366a-1.

NOTES TO DECISIONS

1.Construction.

This section makes no change in character of estate of owners of a mining lease, it merely protects them; a leasehold remained personalty. United Mining Co. v. Morton, 174 Ky. 366 , 192 S.W. 79, 1917 Ky. LEXIS 190 ( Ky. 1917 ).

2.Application.

This section has reference only to mineral rights which are natural formations, and has nothing to do with artificial, subterranean easements such as pipes for conducting water or gas or other like purposes. George T. Stagg Co. v. Frankfort Modes Glass Works, 175 Ky. 330 , 194 S.W. 333, 1917 Ky. LEXIS 320 ( Ky. 1917 ).

This section is applicable only as between the owner of the surface and the owner of the minerals, or those claiming under them, and does not apply where adverse parties both claim the minerals without any question of possession of the surface. Card Creek Coal Co. v. Cline, 305 Ky. 473 , 204 S.W.2d 571, 1947 Ky. LEXIS 831 ( Ky. 1947 ).

This section applies only to the grantor of the mineral rights or those claiming through or under him and does not apply to an easement for a pipeline. Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727, 2000 Ky. LEXIS 7 ( Ky. 2000 ), modified, 2000 Ky. LEXIS 62 (Ky. May 18, 2000).

3.Minerals Include Oil and Gas.

Kentucky follows the general rule that a conveyance or reservation of minerals includes oil and gas. Lovelace v. Southwestern Petroleum Co., 267 F. 513, 1920 U.S. App. LEXIS 2196 (6th Cir. Ky. 1920 ).

The term “minerals” according to the popular sense includes petroleum oils and gas. Lovelace v. Southwestern Petroleum Co., 267 F. 513, 1920 U.S. App. LEXIS 2196 (6th Cir. Ky. 1920 ). See Sellars v. Ohio Valley Trust Co., 248 S.W.2d 897, 1952 Ky. LEXIS 764 ( Ky. 1952 ).

By the phrase “excepting the mineral” in her deed, grantor retained title to all such elements, including the oil and gas. Slone v. Kentucky West Virginia Gas Co., 289 Ky. 623 , 159 S.W.2d 993, 1942 Ky. LEXIS 611 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

A conveyance of coal and mineral includes oil and gas and this is true of deeds executed prior to 1919 as well as subsequent to 1919. Kentucky-West Virginia Gas Co. v. Browning, 521 S.W.2d 516, 1975 Ky. LEXIS 158 ( Ky. 1975 ).

4.Trustee for Owner of Minerals.

It is thoroughly established in this state that the one in possession of surface under a separated title thereto holds possession of the minerals as trustee for legal owner of same and it was not necessary to allege eviction to sue on warranty under this rule. Foxwell v. Justice, 191 Ky. 749 , 231 S.W. 509, 1921 Ky. LEXIS 387 ( Ky. 1921 ). See Farnsworth v. Barret, 146 Ky. 556 , 142 S.W. 1049, 1912 Ky. LEXIS 104 ( Ky. 1912 ).

A general warranty deed without reservation or exception, made to surface after separation of mineral estate, does not give vender possession of mineral estate save as trustee for owner. McPherson v. Thompson, 203 Ky. 35 , 261 S.W. 853, 1924 Ky. LEXIS 846 ( Ky. 1924 ).

At common law and by law, possession of surface does not give possession of mineral rights which have been sold and separated from surface estate, but presumption prevails that holder is trustee of minerals for use and benefit of owner. McPherson v. Thompson, 203 Ky. 35 , 261 S.W. 853, 1924 Ky. LEXIS 846 ( Ky. 1924 ).

Knowledge of deeds of record constituting chain of title is presumed and although deed to owner of the surface did not except caves and right of way the owner of the surface was trustee in possession for benefit of the owner of caves and right of way where the deed to surface owner’s predecessor in title excepted the caves and reserved the right of way to grantor. Cox v. Colossal Cavern Co., 210 Ky. 612 , 276 S.W. 540, 1925 Ky. LEXIS 738 ( Ky. 1925 ).

Where plaintiff landowners took title of property with knowledge of specific reservation of mineral rights to mine coal below surface by original owner and only mined the property themselves for domestic use, they had no title to subsurface coal since they held possession of the minerals for the benefit of the original owner, his heirs and assigns. Brockman v. Jones, 610 S.W.2d 943, 1980 Ky. App. LEXIS 417 (Ky. Ct. App. 1980).

The owner of a surface estate is regarded as a trustee in possession of the mineral estate for the use and benefit of its true owner. East Kentucky Energy Corp. v. Niece, 774 S.W.2d 458, 1989 Ky. App. LEXIS 99 (Ky. Ct. App. 1989).

5.Conveyance of Mineral Rights.

Deed conveying one half (1/2) of coal and all other minerals, metals, or mineral substances on, in or under designated real estate included oil and gas. Lovelace v. Southwestern Petroleum Co., 267 F. 513, 1920 U.S. App. LEXIS 2196 (6th Cir. Ky. 1920 ).

A lease of minerals underlying land surface is a sale of a portion of the realty. Mills v. Mills, 275 Ky. 431 , 121 S.W.2d 962, 1938 Ky. LEXIS 450 ( Ky. 1938 ).

6.Lease of Minerals by Life Tenant.

Lease of minerals underlying land surface, by persons owning undivided fourth (1/4) of land in fee and life estate in other three fourths (3/4), was valid, but lessors were entitled only to one fourth (1/4) of royalties and income from remaining three fourths (3/4) of royalties, the corpus to be preserved for remaindermen. Mills v. Mills, 275 Ky. 431 , 121 S.W.2d 962, 1938 Ky. LEXIS 450 ( Ky. 1938 ).

7.Surface Owner’s Right to Free Gas.

A “free gas clause” in an oil and gas lease, allowing the lessor the right to sufficient gas for domestic use on the premises, is a covenant running with and attached to the surface of the land, and cannot be taken advantage of by the owner of the oil, gas and mineral rights. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

Lease executed by owner of oil, gas and mineral rights, without referring to a “free gas clause” in favor of the surface owner contained in an earlier lease, did not destroy surface owner’s right to free gas for domestic use on the premises. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

Under a “free gas clause” permitting lessor to use gas for domestic purposes, and authorizing the lessee to shut off the gas for failure to use reasonable economy, lessee had right by notifying lessor to shut off the gas in order to compel lessor to pay for any amount of gas used in excess of reasonable amount needed for domestic purposes, and lessor could enjoin lessee from interfering with his use of such a reasonable amount. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

Where oil and gas lease contained “free gas clause” in favor of surface owner, a later deed, conveying the surface but reserving to the grantor the oil, gas and mineral rights and those rights covered by the lease, did not destroy surface owner’s right to free gas for domestic use on the premises, since that right was a covenant running with the surface and could not be of any value to the owner of the oil, gas and mineral rights. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

Where original oil and gas lease, which allowed the lessor free gas for domestic use, did not provide for forfeiture of free gas, a forfeiture provision cannot be inserted later without consideration passing to the lessor or his successors. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

8.Possession.

Lessee under oil ease with provision for right to explore for ten years was entitled to possession of the premises for exploration purposes during the specified time. Beatty Oil & Gas Co. v. Blanton, 245 F. 979, 1917 U.S. Dist. LEXIS 1028 (D. Ky. 1917 ).

Where heirs of the grantors of coal and mineral rights never had actual possession of the mineral rights, such possession being held by the owner of the surface for the benefit of the owner of the mineral rights and when the heirs executed a lease of the mineral rights they did not surrender actual possession but only such right of possession as they then had, the rule which estops a tenant to deny the title of the landlord had no application. Kentucky-West Virginia Gas Co. v. Browning, 521 S.W.2d 516, 1975 Ky. LEXIS 158 ( Ky. 1975 ).

9.— Continuity.

Judgment against claimants of surface in suit to quiet title in federal district court broke continuity of their possession, and was conclusive as against purchaser from them. Tennis Coal Co. v. Sackett, 172 Ky. 729 , 190 S.W. 130, 1916 Ky. LEXIS 280 ( Ky. 1916 ).

If a vendor who has defective title to land properly conveys the mineral rights and continues in possession of the land, the continuity of such possession is not broken, but inures to benefit of grantee. J. B. Gathright Land Co. v. Begley, 200 Ky. 808 , 255 S.W. 837, 1923 Ky. LEXIS 202 ( Ky. 1923 ).

The actual possession by wife for over 15 years subsequent to execution of a deed to minerals underlying her land void for failure of her husband to join in the conveyance or to theretofore convey as required by KRS 404.020 did not inure to the benefit of vendee. J. B. Gathright Land Co. v. Begley, 200 Ky. 808 , 255 S.W. 837, 1923 Ky. LEXIS 202 ( Ky. 1923 ).

10.— Adverse.

One holding land cannot hold mineral rights therein by adverse possession, and limitations do not run against either the owner of surface or the owner of mineral rights. Farnsworth v. Barret, 146 Ky. 556 , 142 S.W. 1049, 1912 Ky. LEXIS 104 ( Ky. 1912 ).

If vendors in possession were in possession of the land when they sold the coal or minerals to the vendee and thereafter remained in possession until they had been in the adverse possession of the land for the statutory period counting from their first acquiring actual possession of the land, the title of vendee was valid, but if, before the statutory period had expired, they had abandoned the possession or been evicted by the owners of the paramount title, then the title of vendee failed. Tennis Coal Co. v. Sackett, 172 Ky. 729 , 190 S.W. 130, 1916 Ky. LEXIS 280 ( Ky. 1916 ).

The opening of a coal bank or oil and gas wells by the surface owner, for the purpose of taking a small quantity of minerals for domestic purposes and not with the avowed intention of acquiring title to the whole mineral estate, does not start limitations running against the owner of the minerals. Hoskins v. Northern Lee Oil & Gas Co., 194 Ky. 628 , 240 S.W. 377, 1922 Ky. LEXIS 226 ( Ky. 1922 ).

The statutes of limitations do not run in favor of the owner and holder of the surface against the fee owner of the mineral estate in the same land, and the only way the statute can be started running in favor of the surface holder as against the mineral, is by the former taking actual possession of the mineral under claim of right, by opening mines or wells and operating the same and when this possession has continued for the statutory period, title to the mineral by adverse possession is perfected. Hoskins v. Northern Lee Oil & Gas Co., 194 Ky. 628 , 240 S.W. 377, 1922 Ky. LEXIS 226 ( Ky. 1922 ).

To start limitations running against the owner of a mineral estate in land, the entry into possession of the mineral estate must be accompanied by such open, notorious, and adverse acts as would be sufficient to set the statutes running in favor of one in possession of the surface of the land. Hoskins v. Northern Lee Oil & Gas Co., 194 Ky. 628 , 240 S.W. 377, 1922 Ky. LEXIS 226 ( Ky. 1922 ).

Judgment quieting title interrupted all prior adverse holdings of the minerals under the land so as to deprive any subsequent adverse holder of the right to tack to his holding any such prior holding so as to complete the statutory period. Asher v. Gibson, 198 Ky. 285 , 248 S.W. 862, 1923 Ky. LEXIS 438 ( Ky. 1923 ).

The possession of grantees, under absolute deed without reservation of mineral rights from a grantor who received the property by deed reserving the mineral rights to his grantor, did not constitute adverse possession in the minerals. Asher v. Gibson, 198 Ky. 285 , 248 S.W. 862, 1923 Ky. LEXIS 438 ( Ky. 1923 ).

The rule that possession, such as the nature of the real estate will admit of and such as is necessary for the use it is applied to, is sufficient, applies to the adverse possession of minerals the same as to the possession of the surface. Asher v. Gibson, 198 Ky. 285 , 248 S.W. 862, 1923 Ky. LEXIS 438 ( Ky. 1923 ).

In order for surface owner to acquire title by adverse possession of minerals in place, separated from surface, he must not only open and work mines, but actual possession and work must be continuous, uninterrupted, open, and notorious for the statutory period. McPherson v. Thompson, 203 Ky. 35 , 261 S.W. 853, 1924 Ky. LEXIS 846 ( Ky. 1924 ).

After deed to mineral rights had been recorded it brought home to all the world and the defendants occupying surface, notice of the ownership by grantee of the minerals just as fully as if grantee had a notice of his ownership with a copy of the deed attached served upon each defendant occupying the surface by the sheriff and caused such copy to be read to them by him in the presence of witnesses. Piney Oil & Gas Co. v. Scott, 258 Ky. 51 , 79 S.W.2d 394, 1934 Ky. LEXIS 577 ( Ky. 1934 ).

After grantee recorded deed to mineral rights in proper office grantor retaining ownership of surface and all persons claiming under him became, were and remained trustees for grantee of minerals and those claiming under him and they could never no matter how long they held the surface disseise grantee and those claiming these minerals under him without openly disavowing or repudiating the trust and giving to the owner of mineral estate notice thereof. Piney Oil & Gas Co. v. Scott, 258 Ky. 51 , 79 S.W.2d 394, 1934 Ky. LEXIS 577 ( Ky. 1934 ).

Execution of oil and gas leases by owners of the surface and collection of rent under them would not be an adverse possession of the oil and gas where there had been a previous severance of the ownership of the minerals from the surface. Smith v. Graf, 259 Ky. 456 , 82 S.W.2d 461, 1935 Ky. LEXIS 323 ( Ky. 1935 ).

Where driller of oil and gas well held a lease from the owner of the minerals as well as a lease from the surface owner, the drilling of the well did not constitute adverse possession by surface owner. Smith v. Graf, 259 Ky. 456 , 82 S.W.2d 461, 1935 Ky. LEXIS 323 ( Ky. 1935 ).

Limitation does not run in favor of owner or holder of surface estate against owner of mineral estate merely because of ownership or possession of surface for any length of time. Curtis-Jordan Oil & Gas Co. v. Mullins, 269 Ky. 514 , 106 S.W.2d 979, 1936 Ky. LEXIS 780 ( Ky. 1936 ).

Owner of surface estate may acquire title by adverse possession of minerals separated from surface but to do so he must not only open and work mine, but actual possession and work must be uninterrupted, continuous, open, and notorious for statutory period. Curtis-Jordan Oil & Gas Co. v. Mullins, 269 Ky. 514 , 106 S.W.2d 979, 1936 Ky. LEXIS 780 ( Ky. 1936 ).

After severance of the mineral title one who acquires possession of the surface from the same grantor is deemed to hold possession of the minerals as trustee for the holder of the mineral title and, in the absence of an explicit disclaimer and clear repudiation of this existing relationship in a manner sufficiently open and notorious to bring home to the mineral owner knowledge or notice of the hostility of the surface holder’s possession, the surface holder, being a trustee in possession, can never acquire the title of his cestui que trust by any length of possession for his possession never becomes adverse. Kentucky River Coal Corp. v. Singleton, 36 F. Supp. 123, 1941 U.S. Dist. LEXIS 3845 (D. Ky. 1941 ).

Adverse possession of subsurface interests must be evidenced by notice or notorious action amounting to notice. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

The surface owner must give the mineral owner formal notice that he is taking the minerals under an adverse claim in order to repudiate the trust and initiate limitations. Diederich v. Ware, 288 S.W.2d 643, 1956 Ky. LEXIS 270 ( Ky. 1956 ).

After a severance of the minerals from the surface, any adverse possession of the surface will be deemed to be a holding in trust for the mineral owner unless trust is openly repudiated by the adverse holder. Inland Steel Co. v. Isaacs, 291 S.W.2d 522, 1956 Ky. LEXIS 374 ( Ky. 1956 ).

In order for the surface owner to obtain title by adverse possession to the minerals which constitute a severed estate, he must have openly disavowed or repudiated the trust declared by the statute and have exercised dominion over the mineral estate and brought notice thereof to the owner of that estate. Ward v. Woods, 310 S.W.2d 63, 1958 Ky. LEXIS 375 ( Ky. 1958 ).

If the mineral estate was severed from the surface estate, adverse possession of the surface alone, no matter how long continued, would not create title to the minerals. Griffith v. J. C. Miller Oil Co., 349 S.W.2d 833, 1961 Ky. LEXIS 72 ( Ky. 1961 ).

Where plaintiff landowners took title to property with knowledge of reservation by original owner of mineral rights to subsurface coal and mined the property for domestic use only, there was not sufficient repudiation of possessory trust for benefit of owner imposed by this section to establish adverse possession entitling them to title to the coal rights. Brockman v. Jones, 610 S.W.2d 943, 1980 Ky. App. LEXIS 417 (Ky. Ct. App. 1980).

For surface estate owners to adversely possess the mineral estate, they must continuously and uninterruptedly hold the mine or seam for the statutory period and if they should cease operating or removing the minerals, the statute stops running. East Kentucky Energy Corp. v. Niece, 774 S.W.2d 458, 1989 Ky. App. LEXIS 99 (Ky. Ct. App. 1989).

Surface owner, holding severed mineral estate acquired from common grantor as trustee, can only acquire title by adverse possession by unequivocal repudiation of the trust, given in such a way as to unmistakably place mineral estate owner on notice. Great W. Land Mgmt. v. Slusher, 939 S.W.2d 865, 1996 Ky. LEXIS 71 ( Ky. 1996 ), modified, 1997 Ky. LEXIS 41 (Ky. Mar. 27, 1997).

11.Nonuser.

Where there is a severance of the mineral estate from the surface estate, the owner of the minerals does not lose his right or his possession by any length of nonuser, nor can the owner of the surface acquire title to the minerals by his exclusive and continued occupancy of the surface merely. Scott v. Laws, 185 Ky. 440 , 215 S.W. 81, 1919 Ky. LEXIS 316 ( Ky. 1919 ).

Owner of minerals does not lose rights as against owner of surface by mere nonuser, his title can only be defeated by acts which actually take mineral out of his possession. Piney Oil & Gas Co. v. Scott, 258 Ky. 51 , 79 S.W.2d 394, 1934 Ky. LEXIS 577 ( Ky. 1934 ).

Where there has been severance of mineral estate from surface estate, owner of mineral estate does not forfeit or lose his right or possession by any length of nonuser and owner of surface estate cannot acquire title to minerals thereunder by an exclusive and continued ownership or occupancy of surface merely. Curtis-Jordan Oil & Gas Co. v. Mullins, 269 Ky. 514 , 106 S.W.2d 979, 1936 Ky. LEXIS 780 ( Ky. 1936 ).

Cited:

Blackburn v. Pond Creek Coal & Land Co., 287 S.W.2d 610, 1956 Ky. LEXIS 474 ( Ky. 1956 ); Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ); White Log Jellico Coal Co. v. Zipp, 32 S.W.3d 92, 2000 Ky. App. LEXIS 74 (Ky. Ct. App. 2000).

Research References and Practice Aids

Cross-References.

Closing of abandoned wells, KRS 353.150 , 353.180 .

Lien on mineral leaseholds, effect of change in title or possessory rights, KRS 376.140 .

Kentucky Law Journal.

Lee, Working Part of a Mineral Estate as Adverse Possession of the Whole, 46 Ky. L.J. 67 (1957).

Bowles, Adverse Possession of Subsurface Minerals, 71 Ky. L.J. 83 (1982-83).

Comment, Breaking the Trust: Adverse Possession of Subsurface Minerals under Kentucky Law, 71 Ky. L.J. 235 (1982-83).

Note: COWho? Kentucky’s Need to Statutorily Define Property Interests in Geologically Sequestered Carbon Dioxide, 98 Ky. L.J. 375 (2009/2010).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Stephens, Historical and Practical Comments on Abstracting Land and Mineral Titles in Kentucky, 9 N. Ky. L. Rev. 445 (1982).

Brady, “Expert Testimony in Kentucky”, see article for analysis of court standards regarding expert testimony, 25 N. Ky. L. Rev. 2 (1998).

381.440. Excavations in a city of the first class and consolidated local government — Protection of adjacent property.

Whenever the owner of a lot in a city of the first class or a consolidated local government proposes to excavate upon the lot to a depth greater than ten (10) feet below the top of the curbstone of the sidewalk adjoining the lot, he shall, at his own expense, protect any wall on adjoining land near the excavation from injury from such excavation, if the necessary license is afforded him to enter upon the adjoining land for that purpose, but not otherwise.

History. 3037a: amend Acts 2002, ch. 346, § 228, effective July 15, 2002.

Research References and Practice Aids

Cross-References.

Protection of property adjacent to coal mines, KRS 352.490 , 352.500 .

Kentucky Law Journal.

Edmonds, Some Aspects of Lateral Support in Kentucky, 39 Ky. L.J. 88 (1950).

381.445. Abutting property owner in cities of first class under responsibility to remedy defective sidewalks — Liability to persons or property arising out of failure to repair — Director of public works may cause repairs to be made, when — Liability of city. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 20) was declared unconstitutional in City of Louisville v. Klusmeyer (1959), 324 S.W.2d 831, and was repealed by Acts 1966, ch. 255, § 283.

381.450. Tenants may remove improvements from city lots, when.

Owners of particular estates of freehold in possession or in estates for years, in unimproved or unproductive lots in cities in which other persons are the owners of the reversion or remainder, may, within ninety (90) days after the interest or estate in such lots ceases, remove any improvements they have erected thereon.

History. 2366.

NOTES TO DECISIONS

1.Life Tenants.

Permanent improvements made by a life tenant, without the consent of the remainderman, cannot be removed or compensated for except under extraordinary circumstances. Adkins v. Hackworth, 279 Ky. 352 , 130 S.W.2d 774, 1939 Ky. LEXIS 277 ( Ky. 1939 ).

Where a life tenant in good faith, believing that he is the owner, makes permanent improvements that enhance the value of the land, he is entitled to be compensated to the extent of the enhanced vendible value of the land. Adkins v. Hackworth, 279 Ky. 352 , 130 S.W.2d 774, 1939 Ky. LEXIS 277 ( Ky. 1939 ).

2.Lessees.

A lesee is not entitled, upon the termination of the lease, to compensation for improvements made by him, in the absence of a provision therefor in the lease. Key v. Hays, 292 Ky. 423 , 166 S.W.2d 850, 1942 Ky. LEXIS 97 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Lienholder may remove property from leased premises, when, KRS 376.040 .

381.460. Occupant in good faith to be paid for improvements.

If any person, believing himself to be the owner by reason of a claim in law or equity founded on a public record, peacefully occupies and improves any land, and the land, upon judicial investigation, is held to belong to another, the value of the improvements shall be paid by the successful party to the occupant, or the person under whom and for whom he entered and holds, before the court rendering judgment or decree of eviction causes the possession to be delivered to the successful party.

History. 3728.

NOTES TO DECISIONS

1.Application.

This section applies only to one who claims to derive title from the Commonwealth. Wintersmtih v. Price, 66 S.W. 2, 23 Ky. L. Rptr. 2005 (1902).

“Public record” meant a patent from the Commonwealth. Fairbairn v. Means, 61 Ky. 323 , 1863 Ky. LEXIS 69 ( Ky. 1863 ).

2.Public Record.

The claimant must show that he believed himself to be the owner by reason of a claim founded upon a grant from the Commonwealth; in order to do so, he must necessarily connect himself with the grant by showing that he held the title which it granted. Shaw v. Robinson, 111 Ky. 715 , 64 S.W. 620, 23 Ky. L. Rptr. 998 , 1901 Ky. LEXIS 242 ( Ky. 1901 ).

“Public record” means a patent from the Commonwealth. Golden v. Blakeman, 223 Ky. 517 , 3 S.W.2d 1095, 1928 Ky. LEXIS 371 ( Ky. 1928 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

The general rule is that a person basing his claim on a “public record” or “title of record” must trace his title back to a patent from the Commonwealth; in this case neither party is in position to question title of the other, since they both claim title from a common source. Hardin v. Robinson, 243 Ky. 648 , 49 S.W.2d 563, 1932 Ky. LEXIS 173 ( Ky. 1932 ).

3.Improvements.

Certain painting and partitions were held “permanent improvements” for which occupant was entitled to credit. Moore's Guardian v. Williamson's Ex'r, 201 Ky. 561 , 257 S.W. 711, 1923 Ky. LEXIS 340 ( Ky. 1923 ).

Expenses in renting property and for janitor service were not improvements and should not have been credited to occupant. Moore's Guardian v. Williamson's Ex'r, 201 Ky. 561 , 257 S.W. 711, 1923 Ky. LEXIS 340 ( Ky. 1923 ).

Award of $3,000 for improvements was not clearly erroneous. Rice v. Merritt, 310 S.W.2d 529, 1957 Ky. LEXIS 164 ( Ky. 1957 ).

Persons in possession of land under color or claim of title to mineral rights were entitled to lien against oil and gas rights for amount the well they drilled had increased value of the land but not to exceed the cost of drilling the well and connecting pipe. Belcher v. Elliott, 312 F.2d 245, 1962 U.S. App. LEXIS 3396 (6th Cir. Ky. 1962 ).

Where the parties built a dwelling on nonmarital property in which the husband owned a life estate and his daughter by a previous marriage owned the remainder, the value of the life estate in the improvements was marital property, as it resulted from the joint efforts of the parties; such value should be computed on the husband’s life expectancy at the time of the dissolution of the marriage. Walters v. Walters, 782 S.W.2d 607, 1989 Ky. LEXIS 95 ( Ky. 1989 ).

4.Claim Against True Owner.

If occupying claimant had a claim for amount by which her improvements had enhanced vendible value of property, it would be against the true owner and not against vendor she claims was without title. Ward v. Johnson, 272 Ky. 234 , 113 S.W.2d 1132, 1938 Ky. LEXIS 90 ( Ky. 1938 ).

5.Junior Lessee of Oil Land.

Notwithstanding this section, a defeated junior lessee of oil lands was not awarded compensation for drilling done after he forcibly took possession. Raydure v. Lindley, 268 F. 338, 1920 U.S. App. LEXIS 2314 (6th Cir. Ky. 1920 ).

6.Mortgages.

In cases where paper under which title was claimed is declared a mortgage, fairness required an accounting of rents and improvements upon the broad principle that neither party shall be enriched at the loss of the other, and that they be placed as nearly as possible in status quo. Walker v. Fields, 147 Ky. 380 , 144 S.W. 74, 1912 Ky. LEXIS 255 ( Ky. 1912 ). See Moore's Guardian v. Williamson's Ex'r, 201 Ky. 561 , 257 S.W. 711, 1923 Ky. LEXIS 340 ( Ky. 1923 ).

Where occupant was in possession under color of title held to be a mortgage fairness required an accounting of rents and improvements upon the broad principle that neither party should be enriched at the loss of the other and that they would be placed as nearly as possible in statu quo. The costs of improvements was not the measure of credit allowable to the occupant, but nevertheless might be considered in determining whether and to what extent the vendible value of the property had been increased. Moore's Guardian v. Williamson's Ex'r, 201 Ky. 561 , 257 S.W. 711, 1923 Ky. LEXIS 340 ( Ky. 1923 ).

In cases where paper under which title was claimed was declared a mortgage, fairness required an accounting of rents and improvements upon the broad principle that neither party should be enriched at the loss of the other, and that they should be placed as nearly as possible in status quo. Rogers v. Wiggs, 51 Ky. 504 , 1851 Ky. LEXIS 104 ( Ky. 1851 ).

7.Partition.

Defendants adjudged owners of over half of land involved in partition suit by judgment allotting them portion on which they placed improvements, without reference to value thereof, cannot complain of refusal to adjudge them lien therefor. Hardin v. Robinson, 243 Ky. 648 , 49 S.W.2d 563, 1932 Ky. LEXIS 173 ( Ky. 1932 ).

Research References and Practice Aids

Journal of Mineral Law & Policy.

Notes, The Good Faith Mineral Trespasser’s Reasonable Cost of Production, 4 J.M.L. & P. 321 (1988-89).

Kentucky Law Journal.

Stephens, Remedies of Good Faith Occupier Who Has Improved Land — In Kentucky, Statutory Remedy, 40 Ky. L.J. 344 (1952).

Oberst, The Supreme Court and States Rights, 48 Ky. L.J. 63 (1959).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer With Counterclaim for Improvements Under KRS 381.460 , Form 305.07.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 305 Ejectment, § 305.syn.

381.470. Proceedings to ascertain value of improvements.

At the request of either party, the court in which the judgment or decree of eviction is rendered shall impanel a jury of twelve (12) discreet and impartial freeholders, not kin to either party, to meet upon the premises recovered, on a day named in the summons.

History. 3729: amend. Acts 1976 (Ex. Sess.), ch. 14, § 303, effective January 2, 1978.

381.480. Oath of jurors.

The clerk of the court shall administer to the jurors, after they have been selected, the following oath: “Each of you do solemnly swear, that you will impartially, and to the best of your skill and judgment, discharge the duties required of you in the present case, by the provisions of the law concerning occupying claimants.”

History. 3730: amend. Acts 1976 (Ex. Sess.), ch. 14, § 304, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Oath to Jurors Where Occupying Claimants, Form 11.11.

381.490. Inquest — Proceedings — Duty of court.

The court shall swear the witnesses, preside over the inquest and trial, decide all matters of law, preserve order, and may adjourn from day to day until the jury has completed the inquest. In case the jury first summoned fails to attend, or, after being sworn, fails to agree and render their verdict, the court shall summon another jury, on a day to be named in his mandate in writing. The court shall make out and return to the clerk’s office from which the writ issued, a complete record of the proceedings before him, together with the original writ, the verdict, and assessment of the jury, certified by him. Either party shall have the right of challenge to the jurors allowed in civil cases, and any deficiency in the jury may be supplied by summoning others.

History. 3731: amend. Acts 1976 (Ex. Sess.), ch. 14, § 305, effective January 2, 1978.

Research References and Practice Aids

Cross-References.

Selection of jury, challenges, KRS 29.270, 29.290.

381.500. Assessment of damages.

After the jury has been sworn, it shall, from an examination of the premises, and upon such legal evidence as either party may produce, assess:

  1. The damages, if any, which may have been done the land by cultivation and unnecessary waste of timber after the suit was instituted;
  2. The rents and profits which have accrued after final judgment or decree of eviction; and
  3. The value of the improvements upon the land from which the occupant is to be evicted, to be estimated as of the time the jury is impaneled. The inquest and verdict shall be signed by the jurors.

History. 3732.

381.510. Inquest may be quashed and new writ awarded.

The court to whom the inquest is returned may, upon the motion of either party, for good cause, quash the inquest, and award a new writ as often as it is deemed necessary to the ends of justice.

History. 3733.

381.520. Witnesses — How summoned.

The clerk issuing the writ, or the justice summoned to preside, shall issue summons for the witnesses, whose attendance shall be coerced by the justice as in other cases.

History. 3734.

Research References and Practice Aids

Cross-References.

Production of witnesses, KRS 421.110 to 421.180 .

381.530. Copies of inquest — Fees of sheriff.

The clerk shall make out two (2) copies of the inquest, and deliver one (1) to each party on request. The party demanding the inquest shall pay to the sheriff, for his services, four dollars ($4), which shall be taxed in the bill of costs against the adverse party, if the court gives judgment for any amount against him.

History. 3735: amend. Acts 1976 (Ex. Sess.), ch. 14, § 306, effective January 2, 1978.

381.540. Trial on return of inquest — Rents.

The inquest, when returned, shall be docketed as other causes. The court shall, after deducting the lesser from the greater assessments, give judgment for the remainder in favor of the occupant or successful claimant. The rent, from the day of the inquest until the time fixed for issuing the writ of possession, shall be computed by the court at the same rate per year as that fixed by the jury for the previous years.

History. 3736: amend. Acts 1976 (Ex. Sess.), ch. 14, § 307, effective January 2, 1978.

381.550. Lien of occupant.

The occupant shall have a lien upon the land recovered from him to satisfy the judgment, and may enforce it by suit in equity, order of court, or other procedure.

History. 3737.

381.560. Judgment for lien satisfied if all land taken.

Satisfaction of a judgment in favor of an occupant for improvement must be sought by the enforcement of the lien given in KRS 381.550 , and if, in the enforcement thereof, all the land recovered by the successful claimant is taken, the judgment shall be deemed to be satisfied.

History. 3738.

381.570. Growing crop.

The occupant shall be entitled to the crop growing on the land at the time of judgment of eviction and order for possession. If any part of the land, at the time of eviction, has no crop growing upon it, the court may order the possession of such part to be delivered at any time.

History. 3739.

Research References and Practice Aids

Cross-References.

Emblements on land of deceased, KRS 395.350 .

Growing crops, effect on execution or sale, KRS 426.170 .

381.580. Purposes for which private passway may be established — Commissioners to make report. [Repealed.]

Compiler’s Notes.

This section (3779a-1: amend. Acts 1948, ch. 148, § 1) was repealed by Acts 1976, ch. 140, § 129.

381.590. Orders to owners. [Repealed.]

Compiler’s Notes.

This section (3779a-2) was repealed by Acts 1976, ch. 140, § 129.

381.600. Examination and confirmation of report. [Repealed.]

Compiler’s Notes.

This section (3779a-3: amend. Acts 1952, ch. 84, § 69, effective July 1, 1953) was repealed by Acts 1976, ch. 140, § 129.

381.610. Exceptions to be tried by jury — Damages — Cost. [Repealed.]

Compiler’s Notes.

This section (895, 3779a-4) was repealed by Acts 1976, ch. 140, § 129.

381.620. Appeals. [Repealed.]

Compiler’s Notes.

This section (3779a-4, 3779a-5) was repealed by Acts 1976, ch. 140, § 129.

381.630. Use of passage not exclusive — Payment for joint use. [Repealed.]

Compiler’s Notes.

This section (3779a-6:) was repealed by Acts 1976, ch. 140, § 129.

381.635. Right of condemnation of underground passageway to mine.

Whenever it is necessary for the owner of land to have access over, under or through the land of one or more other persons, for the purpose of operating a coal mine or other mine, and marketing the products therefrom, and access over the surface of the land of such other persons, for the purpose, would be impracticable, but there exist shafts, slopes, passageways or entries below the surface of the land of such other persons, suitable for the purpose and which could be used for the purpose without undue or unreasonable inconvenience to the owner thereof, or there exist coal seams or other strata below the surface of the land of such other persons, through which shafts, slopes, passageways or entries may be made without unreasonable inconvenience to the owner thereof, the right to use, or to make and use, such shafts, slopes, passageways or entries may be condemned under the procedure set forth in the Eminent Domain Act of Kentucky, subject to the exceptions prescribed in KRS 381.636 . The right of use so condemned shall include the right to install tracks, power lines, lights, ventilating equipment, and other things necessary for satisfactory use. And provided further that in any case where the rights or uses herein provided for are sought to be condemned through any land already devoted to mining purposes, if such proposed rights or uses in any wise interfere with or disrupt any approved mining methods, plans or practices, as established or projected as a part of a general plan of mining to conform to or comply with any safety provisions, rules or regulations under the existing mining laws of the state of Kentucky or of the United States of America as now in effect or hereafter enacted, such rights or uses shall be conclusively presumed to be undue and unreasonable inconvenience to the owner within the meaning of this section and KRS 381.636 .

History. Enact. Acts 1948, ch. 5, § 1; 1976 (Ex. Sess.), ch. 14, § 308, effective January 2, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

381.636. Findings required by commissioners in condemnation of underground passageway — Basis of compensation — Immediate possession.

All of the provisions of the Eminent Domain Act of Kentucky shall be applicable for the purposes of KRS 381.635 and this section, except as follows:

  1. The commissioners shall be required to find, in addition to their other findings, that access over the surface of the land would be impracticable, and that the use or making and use of the shafts, slopes, passageways or entries would not cause undue or unreasonable inconvenience to the owner thereof.
  2. Compensation shall be determined in accordance with what will constitute just compensation to the owner of the shafts, slopes, passageways or entries for the use thereof, and not on the basis of an actual taking of the land. Where the right to make a shaft, slope, passageway or entry is condemned, the condemnor shall be required to pay compensation for the value of any merchantable coal or other mineral that may be removed from the land in making the shaft, slope, passageway or entry, and for any incidental damages arising therefrom.
  3. At the time of examining the report of the commissioners, the court shall enter an order granting the applicant the immediate use of the right of access sought to be condemned, notwithstanding the filing of exceptions by the owners, if:
    1. The report of the commissioners favors condemnation; and
    2. The person seeking condemnation has paid into court the amount of compensation fixed by the commissioners, and has filed with the court a bond, with sureties approved by the court, conditioned upon his paying to the owner or owners the difference between the sum paid into court and that which may thereafter be finally determined, in the proceeding, to be the value of the right of access, and further conditioned that, if it is finally determined in the proceeding that the person is not entitled to condemn the right of access, he will pay to the owner or owners damages for his use pending such final determination.

History. Enact. Acts 1948, ch. 5, § 2; 1976 (Ex. Sess.), ch. 14, § 309, effective January 2, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

381.640. Joint owners of private passway to share costs.

  1. Where two (2) or more persons in this state have acquired real estate, not exceeding twenty (20) feet in width, sufficient for a passway to benefit their lands along side of, or near the proposed passway, the owners of such passways who are benefited thereby shall pay all the costs expended for the passway or the opening of and fixing the passway for travel.
  2. The owners of such passways shall bear jointly all the necessary expense of repairs, reconstruction and maintenance, including the necessary fencing thereof, and shall cause the necessary work to be done.

History. 3779b-1, 3779b-2.

Research References and Practice Aids

Cross-References.

Division fences, KRS 256.020 .

381.650. Enforcement of payment of joint expenses.

The collection of indebtedness for liability imposed by KRS 381.640 may be enforced by a proceeding in a court of equity; and the lands benefited by those who own such passways will be subjected to a lien for the due portion of such expense that may be necessarily incurred. Enough of the property of any delinquent owner may be sold by a proceeding in equity to pay his portion of such assessment.

History. 3779b-2.

381.660. Condemnation for underground water pipes.

When the owner or lessee of a salt, or other well or spring, or stream or body of water, desires to convey the water therefrom to a point more convenient by means of pipes underground, he may, if necessary, condemn the use of so much land of another as is needed for the purpose. The procedure for condemnation shall be that set forth in the Eminent Domain Act of Kentucky.

History. 4360: amend. Acts 1976, ch. 140, § 118.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

Research References and Practice Aids

Cross-References.

Condemnation of land for water supply, by owner of place at which sleeping accommodations and meals are furnished to the public, KRS 416.220 .

381.670. Owner’s consent required for certain routes.

No such route shall pass through the yard or garden, or between the dwelling and spring or other buildings of any owner or occupant of land, without the consent, in writing, of the owner and occupant.

History. 4361.

381.680. Person condemning land may enter it, when.

By virtue of the judgment of the court, the party to whom the privilege has been granted shall have the right to ingress and egress upon the premises to erect and repair the pipes necessary to conduct the water.

History. 4362.

381.690. Protection of burial grounds by cities.

Whenever any burial grounds lie within the corporate limits of a city the governing authorities of the city shall protect the burial grounds from being used for dumping grounds, building sites, playgrounds, places of entertainment and amusement, public parks, athletic fields or parking grounds.

History. 2741p-1.

Research References and Practice Aids

Cross-References.

Cemetery belonging to first-class city, KRS 87.110 .

Eminent domain for burial purposes, KRS 416.210 .

381.695. Care of cemeteries and burial grounds — Legislative bodies of counties and cities may prescribe requirements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 284, § 1) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

381.697. Cemeteries maintained by legal owners.

  1. Every cemetery in Kentucky except private family cemeteries shall be maintained by its legal owner or owners, without respect to the individual owners of burial plots in the cemetery, in such a manner so as to keep the burial grounds or cemetery free of growth of weeds, free from accumulated debris, displaced tombstones, or other signs and indication of vandalism or gross neglect.
  2. The owner or owners of public or private burial grounds, regardless of size or number of graves, shall protect the burial grounds from desecration or destruction as stipulated in KRS 525.115(1)(a), (b), or (c) or from being used for dumping grounds, building sites, or any other use which may result in the burial grounds being damaged or destroyed. The provisions of this subsection shall not apply to the owner or owners of public or private burial grounds when the public or private burial grounds have been desecrated, damaged, or destroyed as the result of a crime by another as defined by KRS 500.080 .
  3. The owner or owners of private burial grounds shall be required to construct cemetery protection structures only if the burial ground is located in a county with a county cemetery board and if the board provides compensation to the private burial ground owner for supplies, labor, and other expenses associated with such construction.
  4. The governing authorities of any city within whose corporate limits any public or private burial grounds lie may require the owner or those having claims to the grounds to properly care for them.

History. Enact. Acts 1972, ch. 284, § 2; 2002, ch. 276, § 2, effective July 15, 2002; 2016 ch. 22, § 7, effective July 15, 2016.

NOTES TO DECISIONS

1.Pet Cemeteries.

The language in this chapter indicates that the term “cemetery” contemplates places where dead persons are buried; therefore, the trial court erred in extending the definition of cemetery to include a pet cemetery. Loid v. Kell, 844 S.W.2d 428, 1992 Ky. App. LEXIS 189 (Ky. Ct. App. 1992).

2.Invitee.

Trial court incorrectly classified the accident victim in a negligence action as a licensee rather than an invitee and should have determined the city’s duties based upon the victim’s status as an invitee when a headstone at the grave of the victim’s child in the city’s cemetery fell on the victim while the victim was visiting the grave. As an invitee, the city owed the victim a duty to exercise reasonable care to discover the hazardous condition of the headstone and either correct it or warn the victim of the danger. Johnson v. City of Versailles, 2020 Ky. App. LEXIS 71 (Ky. Ct. App. June 12, 2020).

381.700. Care of burial grounds by owners. [Repealed.]

HISTORY: 2741p-2; repealed by 2016 ch. 22, § 8, effective July 15, 2016.

381.710. Evidence of dedication or use of land as burying ground.

The fact that any tract of land has been set apart for burial purposes and that a part or all of the grounds has been used for burial purposes shall be evidence that such grounds were set aside and used for burial purposes. The fact that graves are not visible on any part of the grounds shall not be construed as evidence that such grounds were not set aside and used for burial purposes.

History. 2741p-3.

NOTES TO DECISIONS

1.Construction.

This section relates to evidence in indicating that land has been set aside for burial purposes. Grinestaff v. Grinestaff, 318 S.W.2d 881, 1958 Ky. LEXIS 159 ( Ky. 1958 ).

381.715. Burial rights in cemetery lots — Abandonment — Resale by cemetery.

  1. As used in this section, “cemetery lot” is a lot containing one (1) or more grave spaces and located within a cemetery registered pursuant to KRS 367.946 in a county containing an urban-county government or in a city.
  2. An officer of the cemetery may cause to be filed, on behalf of the cemetery, an action in the Circuit Court of the county where the cemetery is located requesting that the burial rights in the unused portion of the lots in question be deemed abandoned and that the cemetery be authorized to sell the rights upon entry of the court’s judgment. The defendants in the action shall be the unknown heirs of the original owner of the burial rights in the lots in question.
  3. The petition shall include the following:
    1. The name of the original owner of the burial rights in the lots in question.
    2. The name of all persons buried in the lots and the date of burial, if known.
    3. The name, address, and telephone number of the cemetery office.
    4. An affidavit by the petitioner that:
      1. No person has been buried in the cemetery lots in question for a period of at least one hundred (100) years; and
      2. The identity of any owner of the burial rights in the lot in question or any heir of the owner is unknown to any officer or employee of the cemetery and not discoverable after a good faith attempt by an officer or employee to identify the owner or heir.
  4. Service of process shall be by warning order attorney, appointed by the court pursuant to CR 4.07.
  5. If the court finds the allegations set forth in paragraph (d) of subsection (3) of this section to be true, the court shall enter judgment deeming the burial rights in the lots in question abandoned and authorizing the cemetery to sell the rights.
  6. No judgment shall be entered declaring burial rights abandoned if an owner or heir of a cemetery lot has filed with the cemetery a statement in writing directing that certain grave spaces not be used.

History. Enact. Acts 1984, ch. 267, § 1, effective July 13, 1984; 1994, ch. 70, § 1, effective July 15, 1994.

381.720. Abandoned cemetery in cities — Proceedings to vest title in city.

Whenever in the opinion of the legislative body of a city a cemetery located within the boundaries of such city has been abandoned and the land comprising the said cemetery is needed for a public purpose, an ordinance may be enacted declaring such cemetery, as described by metes and bounds, to be abandoned and authorizing the city attorney to institute suit for the city or other governmental agency created by the city in the Circuit Court of the county in which the city is located against the property comprising the cemetery to declare the said cemetery abandoned and to vest title thereto in the said city, or any governmental agency created by it pursuant to or by authority of the Kentucky Revised Statutes.

History. Enact. Acts 1954, ch. 29, § 1; 1964, ch. 24, § 1; 2014, ch. 92, § 305, effective January 1, 2015.

381.730. Notice of suit.

Upon the filing of the complaint the city or other governmental agency created by the city shall give notice thereof by publication pursuant to KRS Chapter 424.

History. Enact. Acts 1954, ch. 29, § 2; 1964, ch. 24, § 2.

381.740. Assertion of claim to compensation for value of interest in cemetery or lot.

Within thirty (30) days after the last advertisement, any party having a claim to the cemetery or any lot therein or to the mortal remains of a person interred therein, may file his claim in the said proceeding for damages as compensation for the value of his interest in the cemetery or lot to which he has claim. Upon the filing of the aforesaid claim the circuit court shall appoint as commissioners three (3) impartial housekeepers who are owners of land. They shall be sworn to faithfully and impartially discharge their duties. The commissioners shall view the land involved and they may hear evidence or make any inquiry they desire touching the value thereof and award to the claimants who are owners thereof the value of the property taken. They shall return a written report to the office of the clerk of the circuit court describing separately the property which is the subject of each claim. Either the claimant or the complainant may file exceptions to this report and demand a jury trial. The commissioners shall be allowed a reasonable fee which shall be taxed as cost.

History. Enact. Acts 1954, ch. 29, § 3; 1964, ch. 24, § 3.

381.750. Judgment — Removal of bodies and monuments.

If no claim is made within thirty (30) days after the last advertisement, or if claims have been made and compensation duly paid either to the claimants or into court, the court shall declare the cemetery to be abandoned and enter judgment accordingly, vesting fee simple title in the complainant. Thereafter claimants shall have thirty (30) days in which to remove the mortal remains and monuments from lots to which they have been adjudged to have claim, the reasonable cost thereof to be paid by the claimant. If, within thirty (30) days after entry of judgment said remains have not been removed by the claimants thereto, it shall be the duty of such complainant, through its proper officers, to pay for the removal of the monument and the disinterment, removal, and the reinterment of such body, or bodies, in such other cemetery in the county in which said city is located as the protesting lot owner may designate, or if no designation be made, to another suitable cemetery in the county.

History. Enact. Acts 1954, ch. 29, § 4; 1964, ch. 24, § 4.

381.755. Removal of grave or cemetery on application of landowner or county — Procedure — Expenses.

  1. Upon application of the owner of property upon which is located an abandoned grave or cemetery or whenever the fiscal court of any county deems it to be in the best interest of the county to remove and relocate any such grave or cemetery the court may issue an order or resolution authorizing such removal or relocation.
  2. The order or resolution for the removal and relocation of the grave or cemetery pursuant to subsection (1) shall specify and declare that at any time after the expiration of sixty (60) days after the first publication of notice of such intended action pursuant to KRS Chapter 424, the court shall direct the removal and relocation of the grave or cemetery.
  3. Expenses for removal and relocation of any grave or cemetery under the provisions of this section shall be paid by the individual requesting such removal or if the removal is made in the best interest of the county the expenses shall be paid from county funds.
  4. Any grave or cemetery removed under the provisions of this section shall be relocated in a suitable place at the expense of the person or county requesting such removal and relocation.
  5. For the purposes of this section a grave or cemetery shall be considered abandoned when left untended for a period of ten (10) years preceding the date of the resolution for removal and relocation of the grave or cemetery.

History. Enact. Acts 1966, ch. 251, §§ 1 to 5.

Opinions of Attorney General.

A landowner should address his application for removal and relocation of an abandoned grave or cemetery to the county fiscal court. OAG 78-173 .

The owner of mineral rights would not have the kind of ownership rights required by the abandoned cemetery statute and is not able to make an application to the fiscal court for removal and relocation pursuant to subsection (1) of this section. OAG 79-48 .

If a city-owned cemetery had not been abandoned so as to authorize the desecration of the existing graves, the city could reuse the land as a cemetery only after making application with the fiscal court to authorize the removal and relocation of the graves that already existed. OAG 83-265 .

381.760. Cost of proceeding — Burden of proof.

The cost of the proceeding shall be borne by the complainant, and the burden of proof shall be upon the claimant to establish his interest and to establish that it has not been abandoned.

History. Enact. Acts 1954, ch. 29, § 5; 1964, ch. 24, § 5.

Research References and Practice Aids

ALR

Measure of damages for condemnation of cemetery lands. 42 A.L.R.3d 1314.

381.765. Disinterment, removal, and reinterment of graves by Commonwealth, political subdivision or electric power company; Removal by licensed funeral director.

If disinterment, removal, and reinterment of graves is effected by the Commonwealth of Kentucky or any of its agencies, public institutions, or political subdivisions, the United States of America or any agency thereof, or any electric power or lighting company, such disinterment, removal, and reinterment shall be performed by a funeral director duly licensed under the provisions of KRS Chapter 316; provided, however, a person holding a valid funeral director’s license of another state may perform disinterment, removal and reinterment if the state in which such person is licensed has a reciprocal agreement whereby a license granted under the provisions of KRS Chapter 316 is recognized and accepted in that state.

History. Enact. Acts 1978, ch. 237, § 1, effective June 17, 1978.

381.767. Contracts exempt from KRS 381.765.

The provisions of KRS 381.765 shall not affect grave removals for which contracts have been entered into prior to June 17, 1978.

History. Enact. Acts 1978, ch. 237, § 2, effective June 17, 1978.

381.770. Abatement of nuisance — Exceptions — Enforcement ordinance — Lien — Personal liability of property owner. [Repealed]

HISTORY: Enact. Acts 1956, ch. 9; 1968, ch. 10; 1970, ch. 99, § 1; 1972, ch. 108, § 1; 1978, ch. 384, § 509, effective June 17, 1978; 1982, ch. 145, § 3, effective July 15, 1982; 1988, ch. 298, § 1, effective July 15, 1988; 1990, ch. 8, § 1, effective July 13, 1990; 2005, ch. 179, § 1, effective June 20, 2005; 2011, ch. 95, § 10, effective June 8, 2011; 2015 ch. 19, § 43, effective June 24, 2015; repealed by 2016 ch. 86, § 18, effective January 1, 2017.

381.775. Voluntary agreement with property owner for demolition or removal of dilapidated building.

  1. As used in this section:
    1. “Dilapidated building” means a structure, including but not limited to manufactured or mobile homes as defined in KRS 227.550 , which has become unfit and unsafe for human habitation, occupancy, or use or which is dangerous or injurious to the health or safety of the occupants of the building, the occupants of neighboring buildings, or other residents of the county; and
    2. “Relative” means father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, daughter-in-law, grandparent, grandchild, stepparent, stepchild, or first cousin.
  2. A county may enter into a voluntary agreement with a property owner for the demolition or removal of a dilapidated building.
  3. The agreement shall at least include the following terms and conditions:
    1. A clear description of the building or buildings to be demolished or removed;
    2. Responsibilities of each party to the agreement for disposition of the demolition debris, solid wastes, asbestos materials, or other potential environmental contamination consistent with the requirements of KRS Chapter 224;
    3. A method for establishing the fair market value and an agreement for the disposition of materials, fixtures, or other objects on the property or to be removed from the property, and an itemized list of the materials, fixtures, or other objects to be removed from the property which may be attached to the agreement as an addendum; and
    4. A clear description of the work to be performed and the final condition of the property upon completion of disposition activities.
  4. Each agreement may include terms and conditions for remuneration to the county up to the cost of demolition or removal activities on the property. If remuneration is to be provided to the county, terms and conditions describing the remuneration to be provided shall be included in the agreement. If the county agrees to accept responsibility for removal of materials, fixtures, or other objects from the property, any excess value received from the materials, fixtures, or other objects removed from the property shall be retained by or returned to the property owner in accordance with the agreement for the disposition.
  5. A county shall expend funds necessary to insure any of its employees, officials, and property against any liability or property damage arising out of an act or omission committed in the scope and course of performing work in accordance with an agreement under the provisions of this section for the removal and disposition of materials, fixtures, or other objects located on the owner’s property.
  6. Each agreement shall include the following statement in boldface type “No property owner is required to enter into an agreement under the provisions of KRS 381.775 for the removal and subsequent disposition of materials, fixtures, or other objects located on the owner’s property subject to the agreement. Any agreement under the provisions of KRS 381.775 is strictly voluntary.”
  7. The county shall, in writing and by first-class mail, provide notice to all property owners contiguous to the property on which the dilapidated building exists that the building is to be demolished or removed. That notice shall contain the date of commencement of the demolition or removal of the building and the address of the property on which the building exists. The notice shall be mailed no less than two (2) weeks prior to the date of commencement of the demolition or removal of the building.
  8. No elected or appointed official or employee of the county, or a relative of an official or employee of the county, shall enter into an agreement under the provisions of this section for the demolition or removal of a dilapidated building on their property. No official or employee of the county, or a relative of an official or employee of the county, shall knowingly own or have a direct or indirect financial or pecuniary interest in any agreement or property subject to an agreement entered into under the provisions of this section. If an official, employee, or relative of an official or employee owns or has a direct or indirect financial or pecuniary interest in any agreement or property subject to an agreement entered into under the provisions of this section, the official or employee shall immediately disclose, in writing, that interest to the legislative body, and the disclosure shall be entered in the minutes of the legislative body. Failure to so disclose that interest shall constitute official misconduct in the first degree, in accordance with KRS 522.020 .

History. Enact. Acts 2008, ch. 73, § 1, effective July 15, 2008.

381.780. Removal of open toilets in urban-county government, city of the first class, or city of the home rule class — Lien on property for cost of removal.

  1. The maintenance of an outdoor toilet not connected to a septic tank or sewer system, hereinafter called an open toilet, within the boundaries of an urban-county government, a city of the first class, or a city of the home rule class is hereby declared to be a public nuisance.
  2. When an open toilet is discovered, the director of sanitation or other responsible officer designated by the city legislative body shall give written notice to the property owner to remove the open toilet and fill the toilet pit within ten (10) days after the date of the notice. The notice shall be mailed to the last known address of the property owner, as it appears on the current tax assessment roll. Upon failure of the owner of the property to comply with the terms of the notice, the director of sanitation or other responsible officer designated by the urban-county government or city legislative body is authorized to send employees upon the property to remove the open toilet and fill the toilet pit.
  3. The urban-county government or city shall have a lien against the property for the reasonable cost of labor and materials used in removing the open toilet and filling the toilet pit. The affidavit of the director of sanitation or other responsible officer designated by the urban-county government or city shall constitute prima facie evidence of the amount of the lien and the regularity of the proceedings pursuant to this section, and shall be recorded in the office of the county clerk in the county where the urban-county government or city is located. The lien shall be notice to all persons from the time of its recording and shall bear interest at six percent (6%) per annum thereafter until paid.

History. Enact. Acts 1970, ch. 282, § 1; 2014, ch. 92, § 306, effective January 1, 2015.

Horizontal Property Law

381.805. Short title.

KRS 381.805 to 381.910 shall be known as the Horizontal Property Law.

History. Enact. Acts 1962, ch. 205, § 1.

NOTES TO DECISIONS

1.Boat slip.

Boat slip units could be considered as part of a condominium property regime under the Horizontal Property Law, because a boat slip could not constitute a unit under the plain language of the statute as it was located entirely upon navigable waters and was not an enclosed space that consisted of one or more rooms, and because the events and circumstances leading to the filing of the instant action clearly occurred prior to January 1, 2011, the newly enacted Kentucky Condominium Act was inapplicable. Steenrod v. Louisville Yacht Club Ass'n, 417 S.W.3d 234, 2013 Ky. App. LEXIS 156 (Ky. Ct. App. 2013).

Opinions of Attorney General.

Since the purchaser of a condominium unit receives a recordable deed conveying a fee simple title to the unit and an undivided interest in the common elements, since the owner may convey or encumber the unit in any manner he wishes, but in so doing he does not jeopardize the interests of any co-owner in the project, and since each condominium unit is taxed separately and a co-owner has no responsibility for the individual debts of other co-owners, the instrument or deed conveying or transferring such ownership would be subject to the real estate transfer tax imposed by KRS 142.050 . However, where a corporation had only a 40-year lease which it would assign by an instrument of conveyance to individuals or corporations purchasing condominium units, the instrument used to transfer ownership was an assignment of a lease and was by definition not a deed; therefore the instruments conveying the leasehold interest of the corporation to individual purchasers were not subject to the real estate transfer tax imposed by KRS 142.050 . OAG 82-529 .

Research References and Practice Aids

Comparative Legislation.

Horizontal property laws:

Ill Rev. Stat. 1969, ch. 30, §§ 301-321.

Ind Burns’ Stat., §§ 56-1201—56-1231.

Mo Rev. Stat. 1959, §§ 448.010-448.220.

Ohio Page’s Rev. Code, §§ 5311.01-5311.22.

Tenn Code Ann., §§ 64-2701—64-2722.

Va Code 1950, §§ 55-79.1—55-79.38.

W.Va Code, §§ 36A-1-1—36A-8-3

Kentucky Law Journal.

Skaggs, Erwin, The Horizontal Property Law of Kentucky, 51 Ky. L.J. 46 (1962).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.810. Definitions for KRS 381.805 to 381.910.

As used in KRS 381.805 to 381.910 , unless the context otherwise requires:

  1. “Unit” means an enclosed space as measured from interior unfinished surfaces consisting of one or more rooms occupying all or part of a floor in a building of one or more floors or stories regardless of whether it be designed for residence, for office, for the operation of any industry or business, for any other type of independent use or any combination of the above uses, provided it has a direct exit to a thoroughfare or to a given common space leading to a thoroughfare;
  2. “Condominium” means the ownership of single units in a single unit or a multiple unit structure or structures with common elements;
  3. “Condominium project” means a real estate condominium project; a plan or project whereby two (2) or more apartments, townhouses, rooms, office spaces, or other units in existing or proposed buildings or structures are offered or proposed to be offered for sale;
  4. “Co-owner” means a person, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof who owns a unit within the building;
  5. “Council of co-owners” means all the co-owners as defined in subsection (4) of this section;
  6. “Developer” means a person who undertakes to develop a real estate condominium project;
  7. “General common elements” means and includes:
    1. The land whether leased or in fee simple, on which the building or buildings stand;
    2. The foundations, main walls, roof, halls, lobbies, stairways, and entrances and exits or communication ways;
    3. The basements, flat roofs, yards, and gardens, except as otherwise provided or stipulated;
    4. The premises for the lodging of janitors or persons in charge of the building(s), except as otherwise provided or stipulated;
    5. The compartments or installations of central services such as power, light, gas, cold and hot water, refrigeration, reservoirs, water tanks and pumps, and the like;
    6. The elevators, garbage incinerators and, in general all devices or installations existing for common use;
    7. Recreational facilities, easements and other facilities outside the building(s), including facilities off-site, available for the common use, in part or in whole, of the regime; and
    8. All other elements of the property rationally of common use or necessary to its existence, upkeep and safety;
  8. “Limited common elements” means and includes those common elements which are agreed upon by all of the co-owners to be reserved for the use of a particular unit or a certain number of units to the exclusion of the other units, such as special corridors, stairways, balconies, patios, elevators, utilities common to the units of a particular floor or building, and the like;
  9. “Majority of co-owners” means owners of fifty-one percent (51%) of the floor area of units comprising the regime;
  10. “Master deed” or “master lease” means the deed or lease declaring the property to be a horizontal property regime;
  11. “Person” means an individual, firm, corporation, partnership, association, trust or other legal entity or any combination thereof;
  12. “Property” means and includes the land whether leasehold or in fee simple and all improvements and structures thereon and all easements, rights and appurtenances belonging thereto;
  13. “To record” means to record in accordance with KRS Chapter 382, or other recording statutes;
  14. All pronouns used in KRS 381.805 to 381.910 include the male, female and neuter genders and include the singular or plural numbers, as the case may be.

History. Enact. Acts 1962, ch. 205, § 2; 1974, ch. 35, § 1; 1974, ch. 381, § 1.

Legislative Research Commission Note.

This section was amended by two 1974 acts which do not appear to be in conflict and have been compiled together.

NOTES TO DECISIONS

1.Unit.

Boat slip units could be considered as part of a condominium property regime under the Horizontal Property Law, because a boat slip could not constitute a unit under the plain language of the statute as it was located entirely upon navigable waters and was not an enclosed space that consisted of one or more rooms, and because the events and circumstances leading to the filing of the instant action clearly occurred prior to January 1, 2011, the newly enacted Kentucky Condominium Act was inapplicable. Steenrod v. Louisville Yacht Club Ass'n, 417 S.W.3d 234, 2013 Ky. App. LEXIS 156 (Ky. Ct. App. 2013).

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

Opinions of Attorney General.

This section is applicable to single unit mortgage loans to purchase condominiums. OAG 73-444 .

381.815. Establishment of a condominium property regime.

Whenever a developer, the sole owner, or the co-owners of a building or buildings, constructed or to be constructed, expressly declare, through the recordation of a master deed or lease, which shall set forth the particulars enumerated by KRS 381.835 , their desire to submit their property to the regime established by KRS 381.805 to 381.910 , there shall be thereby established a condominium property regime.

History. Enact. Acts 1962, ch. 205, § 3; 1974, ch. 381, § 2.

NOTES TO DECISIONS

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

381.820. Conveyance of units — Recordation.

Once the property is submitted to the condominium property regime, a unit in the building(s) may be individually conveyed and encumbered and may be the subject of ownership, possession or sale and of all types of juridic acts inter vivos or mortis causa, as if it were sole and entirely independent of the other units in the building(s) of which they form a part, and the corresponding individual titles and interest shall be recordable.

History. Enact. Acts 1962, ch. 205, § 4; 1974, ch. 381, § 3.

381.825. Joint or common ownership.

Any unit may be jointly or commonly owned by more than one (1) person.

History. Enact. Acts 1962, ch. 205, § 5; 1974, ch. 381, § 4.

381.827. Requirements for subdividing units.

  1. The owner of a unit designed for office, industrial or business use may divide his unit into two (2) or more smaller units. No interest in the unit shall be conveyed until the master deed and floor plans have been modified as provided in this section.
  2. Prior to subdividing his unit, the owner shall prepare a set of floor plans which shall show the changes being made in the unit involved. The plans shall bear the verified statement of a registered architect or professional engineer that they accurately portray the unit involved and the changes being made, and the unit owner shall attach to the plans a verified statement which shall contain:
    1. The name by which the property is known;
    2. A reference to the book and page of the recorded master deed and floor plans of the property and any amendments thereto in the office of the county clerk of the county in which the land described in the master deed is situated;
    3. The original unit number of each unit involved in the division, a description or designation of the building in which the unit is located, and the new unit number of each unit being formed;
    4. A statement of the location, approximate area, number of rooms and the structural changes in the perimeter and interior walls, floors, ceilings, windows and doors of the unit being formed and the immediate common element or limited common element to which the unit has access, and any other data necessary for the proper identification of the units being formed by changes to the original unit;
    5. A description of the percentage of interest of the original unit in the common elements, and a description of the new percentage or percentages of interest in the common elements of the units being formed. The percentage of interest in the common elements of the units being formed shall be in proportion to the floor area of the original unit and shall, when taken cumulatively, total the same percentage of interest in the common elements as that of the original unit;
    6. Any further provisions that would serve to clarify the changes being made.
  3. The floor plans and verified statement shall be approved in writing by a majority, unless otherwise provided by the master deed, of the council of co-owners, and by any person holding a lien on such units, and shall be filed for record with the county clerk in the county in which the land described in the master deed is situated as provided in KRS 381.835 . The floor plans and verified statement shall be considered as an amendment to the original master deed and floor plans for the sole purpose of dividing a unit and the corresponding percentage of interest in the common elements.

History. Enact. Acts 1974, ch. 381, § 16.

381.830. Ownership of unit — Use of general common elements.

    1. A unit owner shall have the exclusive ownership to his unit and shall have a common right to a share, with other co-owners, in the common elements of the property, equivalent to the percentage representing the floor area of the individual unit, with relation to the floor area of the whole property. This percentage shall be computed by taking as a basis the floor area of the individual unit in relation to the floor area of the property as a whole. (1) (a) A unit owner shall have the exclusive ownership to his unit and shall have a common right to a share, with other co-owners, in the common elements of the property, equivalent to the percentage representing the floor area of the individual unit, with relation to the floor area of the whole property. This percentage shall be computed by taking as a basis the floor area of the individual unit in relation to the floor area of the property as a whole.
    2. Such percentage of common interest shall be expressed at the time the condominium property regime is constituted, shall have a permanent character, and, except as may be otherwise provided in KRS 381.810 to 381.910 , shall not be altered without the acquiescence of the co-owners representing all the units of the building(s). The master deed may, however, contain provisions relating to the appropriation, taking or condemnation by eminent domain by the federal, state or local government, or an instrumentality thereof, including, but not limited to, reapportionment or other change of the common interest appurtenant to each unit, or part thereof remaining after a partial appropriation, taking or condemnation. The master deed of a regime under construction may further provide that by later amendment thereto and upon completion of all units, percentage of common interest shall be redistributed on an as-built basis; provided, however, that the number of units originally constituted in the regime may not be increased during construction.
  1. Each co-owner may use the general common elements in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other co-owners.

History. Enact. Acts 1962, ch. 205, § 6; 1966, ch. 245, § 1; 1974, ch. 381, § 5.

381.835. Recording — Requirements of master deed or lease — Record of floor plans.

  1. The county clerk shall immediately set up the mechanics and methods by which recordation of a master deed or lease and of the individual units may be made. Provisions shall be made for the recordation of the individual units on subsequent resales, mortgages, and other encumbrances, as is done with all other real estate recordation. The master deed or lease to which KRS 381.815 refers shall express the following particulars:
    1. The description of the land, whether leased or in fee simple, and the building, expressing their respective areas;
    2. The general description and the number of each unit, expressing its area, location, and any other data necessary for its identification;
    3. The description of the general common elements of the building; and
    4. The common elements, both general and limited, shall remain undivided and shall not be the object of an action for partition or division of the co-ownership. Any covenant to the contrary shall be void.
  2. Simultaneously with the recording of the declaration, there shall be filed in the office of the recording officer a set of the floor plans of the building or buildings, showing the layout, location, unit numbers, and dimensions of the units, stating the name of the property or that it has no name, and bearing the verified certification by a licensed architect or professional engineer that it is an accurate copy of portions of the plans of the building or buildings as filed with and approved by the county or city and county officer having jurisdiction over the issuance of permits for the construction of buildings, or, in the alternative, certifying that the plans fully and accurately depict the layout, location, unit numbers, and dimensions of the units as built. If the plans do not include a verified statement of a licensed architect or professional engineer that the plans fully and accurately depict the layout, location, unit numbers, and dimensions of the units as built, there shall be recorded prior to the first conveyance of any unit an amendment to the declaration to which shall be attached a verified statement of a professional land surveyor certifying that the plans filed, or being filed simultaneously with the amendment, fully and accurately depict the layout, location, unit numbers, and dimensions of the units as built. The plans shall be kept by the recording officer in a separate file for each property, indexed in the same manner as a conveyance entitled to record, numbered serially in the order of receipt, each designated “condominium ownership,” with the name of the property, if any, and each containing an appropriate reference to the recording of the declaration. The record of the declaration shall also contain a reference to the file number of the floor plans of the building or buildings on the property affected.

History. Enact. Acts 1962, ch. 205, § 7; 1966, ch. 245, § 2; 1974, ch. 381, § 6; 1998, ch. 214, § 41, effective January 1, 1999.

NOTES TO DECISIONS

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

Opinions of Attorney General.

Existing records which the county clerk is required to maintain pursuant to the provisions of KRS chapter 382 can, in the discretion of the individual county clerk, afford adequate facility for the maintenance of the records required by this section. OAG 62-517 .

The provisions of this section would not require the county clerk to establish an individual deed book for the purpose of taking care of the requirements of the horizontal property act although they may establish a separate book for such purpose. OAG 62-517 .

381.837. Master deed exceptions.

If a condominium does not contain any unit which is designed for occupancy by only one family or household, or if the floor area of all those units which are designed for occupancy by only one (1) family or household does not in the aggregate exceed ten percent (10%) of the floor area of all units in the condominium, then the following provisions shall be applicable, notwithstanding any other provisions of this chapter:

The master deed may provide:

  1. That to any extent specified in the master deed the common profits shall be distributed among, and the common expenses shall be charged to, the unit owners in proportions other than according to their respective percentages of the undivided interest in the common areas and facilities;
  2. That to any extent specified in the master deed the unit owners shall not be personally liable for sums assessed for their share of common expenses, but such provisions shall not adversely affect any lien for said share;
  3. That the priority provided in KRS 381.883 shall not prohibit subordination of a mortgage lien to the lien for common expenses;
  4. A procedure for submitting the disputes arising from the administration of the condominium to arbitration or other impartial determination; and
  5. Terms and conditions differing from those set forth in KRS 381.830 or 381.890 regarding rebuilding made necessary by fire or other casualty loss, the making of improvements and allocation of the costs of such rebuilding or improvements, and the removal of the condominium or portion thereof from the provisions of this chapter; and in such case, the terms and conditions of the master deed shall take precedence over the provisions of KRS 381.830 or 381.890 to the extent they are inconsistent.

History. Enact. Acts 1974, ch. 381, § 18; 1988, ch. 115, § 1, effective July 15, 1988.

381.840. Individual deeds — Contents.

The deed of each individual unit shall describe such unit by making reference to the applicable master deed and floor plans required under KRS 381.835 , designating the letter or number or other appropriate designation of the unit, followed by the words “a condominium unit”. Any conveyance of an individual unit shall be deemed to also convey the undivided interest of the owner in the common elements, both general and limited, appertaining to said unit without specifically or particularly referring to same.

History. Enact. Acts 1962, ch. 205, § 8; 1974, ch. 381, § 7.

381.845. Designation of apartments — Effect of conveyance. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 205, § 9) was repealed by Acts 1974, ch. 381, § 19.

381.850. Waiver of regime — Effect of encumbrances.

All of the co-owners or the sole owner of a building constituted into a horizontal property regime may waive this regime and request the county clerk to regroup or merge the records of the filial estates with the principal property, provided, that the filial estates are unencumbered, or if encumbered, that the creditors in whose behalf the encumbrances are recorded agree to accept as security the undivided portions of the property owned by the debtors.

History. Enact. Acts 1962, ch. 205, § 10.

NOTES TO DECISIONS

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

381.855. Subsequent reestablishment of regime.

The merger provided for in KRS 381.850 shall in no way bar the subsequent constitution of the property into another horizontal property regime whenever so desired and upon observance of the provisions of KRS 381.805 to 381.910 .

History. Enact. Acts 1962, ch. 205, § 11.

381.860. Administration of building.

The administration of the building or buildings constituted into a condominium property regime shall be governed by bylaws approved and adopted by the council of co-owners. The bylaws may be amended from time to time by vote of a majority of the council.

History. Enact. Acts 1962, ch. 205, § 12; 1974, ch. 381, § 8.

381.865. Books of account — Inspection — Audit or review by independent accountant. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 205, § 13; 1974, ch. 381, § 9; 2010, ch. 97, § 55, effective January 1, 2011) was repealed by Acts 2012, ch. 99, § 14 effective April 11, 2012.

381.870. Maintenance — Pro rata contribution — Adjustments.

All co-owners are bound to contribute in accordance with their percentage of common interest toward the expenses of administration and of maintenance, repairs and replacement reserves of the general common elements, and, in the proper case, of the limited common elements of the regime, and toward any other expenses lawfully assessed under the master deed and/or by the council of co-owners. Provided, however, that the master deed may provide for adjustments by the council of co-owners for contributions proportioned upon a consideration of a combination of floor area, the number of occupants, demand on public utilities and accessibility to limited common elements. No owner shall be exempt from contributing toward such expenses by waiver of the use or enjoyment of the common elements, both general and limited, or by abandonment of the unit belonging to him; provided, abatement or reduction in an owner’s contribution may be granted by the council of co-owners for a reasonable period of time, during which a unit is uninhabitable as the result of damage or destruction.

History. Enact. Acts 1962, ch. 205, § 14; 1974, ch. 381, § 10.

NOTES TO DECISIONS

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

381.875. Exemptions.

The laws relating to exemptions as set out in KRS Chapter 427 are applicable to the individual units which shall have the benefit of said exemption in those cases the same as in ownership of any other property.

History. Enact. Acts 1962, ch. 205, § 15; 1968, ch. 152, § 156; 1974, ch. 381, § 11.

NOTES TO DECISIONS

Cited:

In re McMahon, 60 B.R. 632, 1986 Bankr. LEXIS 6120 (Bankr. W.D. Ky. 1986 ).

381.880. Assessments — Priority — Exceptions. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 205, § 16) was repealed by Acts 1966, ch. 245, § 4.

381.883. Lien for unpaid assessments — Foreclosure — Suit.

All sums assessed by the council of co-owners but unpaid for the unit’s share of the common expenses constitute a lien on such unit prior to all other liens, except only (1) liens for taxes and assessments lawfully imposed by governmental authority against such unit, and (2) all sums unpaid on first mortgages of record. Such lien may be enforced by suit by the administrator or board of administration, acting on behalf of the unit owners, in like manner as a mortgage of real property. In any such enforcement action the unit owner shall be required to pay a reasonable rental for the unit, if so provided in the bylaws, and the plaintiff in such enforcement action shall be entitled to the appointment of a receiver to collect the same. The administrator or board of administration, acting on behalf of the unit owners, shall have power, unless prohibited by the declaration, to bid in the unit at court sale, and to acquire and hold, lease, mortgage and convey the same. Suit to recover a money judgment for unpaid common expenses of an owner shall be maintainable without lien enforcement or waiving the lien securing the same.

History. Enact. Acts 1966, ch. 245, § 3; 1974, ch. 381, § 12.

NOTES TO DECISIONS

1.Other Liens.

Mechanic’s lien provisions of KRS 376.010 have no applicability to dispute concerning nonpayment of fees and assessments relative to condominium, nor are they supplemental to the provisions of this section. Bank of the Bluegrass & Trust Co. v. Richmond Square Office Townhouse Condos. Council Co-Owners, 965 S.W.2d 827, 1997 Ky. App. LEXIS 145 (Ky. Ct. App. 1997).

381.885. Insurance.

The council of co-owners may acquire insurance protection for the regime, including, but not exclusively, casualty, liability and employee workers’ compensation insurance, without prejudice to the right of each co-owner to insure his own unit on his own account and for his own benefit. The premiums on such insurance shall be considered common expenses, enforceable under lien rights, provided, should the amount of any insurance premium be affected by a particular use of a unit or units, the owners of such units shall be required to pay any increase in premium resulting from such use.

History. Enact. Acts 1962, ch. 205, § 17; 1974, ch. 381, § 13.

381.890. Destruction — Reconstruction.

  1. In case of fire or other destruction or damage the regime’s insurance indemnity, except as provided in subsection (3) of this section, shall be applied to reconstruct and repair the common elements affected.
  2. Where the destruction and damage is not insured or where the insurance indemnity is not sufficient to cover the cost of reconstruction or repair, the cost (or added cost) shall be paid by the co-owners as a common expense, the council by a majority vote being authorized to borrow funds therefor and to amortize the repayment of same over a period of time, not exceeding the reasonable life of the reconstruction or repairs.
  3. Reconstruction shall not be compulsory where two-thirds (2/3) or more of a building is destroyed provided there are provisions in the master deed or bylaws of the regime making adequate provision for reasonable compensation to those co-owners who are deprived of their interest as the result of the failure to reconstruct and further providing for the recalculation and redistribution of the percentage of common interest.

History. Enact. Acts 1962, ch. 205, § 18; 1974, ch. 381, § 14.

381.895. Reconstruction — Insufficient indemnity — Contribution. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 205, § 19) was repealed by Acts 1974, ch. 381, § 19.

381.897. Individual and common liabilities for injuries or damages.

  1. Where a judgment arising from a risk common to all of the co-owners is in excess of the liability insurance in force, the liability of any co-owner shall not exceed his pro rata share as determined by the percentage the value of his individual unit bears to the value of the property as a whole. An uncollected share of a judgment shall not be reassessed among the other co-owners.
  2. Any unit owner shall be individually liable for injuries or damages which result from his own negligence or willful misconduct or which occur within his individual unit to the same extent and degree as the individual owner of any other residential, office, industrial or business property.

History. Enact. Acts 1974, ch. 381, § 17.

381.900. Tax assessments — Individual liability — Forfeiture or sale.

Taxes, assessments and other charges of this state, or of any political subdivision, or of any special improvement district, or any other taxing or assessing authority shall be assessed against and collected on each individual unit, each of which shall be carried on the tax books as a separate and distinct entity for that purpose, and not on the property as a whole. The valuation of the general and limited common elements shall be assessed proportionately among the co-owners thereof. No forfeiture or sale of the improvements or property as a whole for delinquent taxes, assessments or charges shall ever divest or in anywise affect the title to an individual unit so long as taxes, assessments and charges to said individual unit are currently paid.

History. Enact. Acts 1962, ch. 205, § 20; 1974, ch. 381, § 15.

381.905. Interpretation of KRS 381.805 to 381.910.

The provisions of KRS 381.805 to 381.910 shall be in addition to and supplemental to all other provisions of the Kentucky Revised Statutes, provided that wherever the application of the provisions of KRS 381.805 to 381.910 conflict with the application of such other provisions, KRS 381.805 to 381.910 shall prevail.

History. Enact. Acts 1962, ch. 205, § 21.

381.910. Planning and zoning.

Whenever they deem it proper, the planning and zoning commission of any county or municipality may adopt supplemental rules and regulations governing a horizontal property regime established under KRS 381.805 to 381.910 in order to implement this program.

History. Enact. Acts 1962, ch. 205, § 22.

Kentucky Condominium Act

General Provisions

381.9101. Short title for KRS 381.9101 to 381.9207.

KRS 381.9101 to 381.9207 shall be known and may be cited as the Kentucky Condominium Act.

History. Enact. Acts 2010, ch. 97, § 1, effective January 1, 2011.

Research References and Practice Aids

Kentucky Bench & Bar.

Brinkman, The Kentucky Condominium Act, Vol. 74, No. 5, September 2010, Ky. Bench & Bar 16.

381.9103. Application and construction of KRS 381.9101 to 381.9207.

  1. Except as provided in subsections (2), (3 ), and (4) of this section, KRS 381.9101 to 381.9207 applies to all condominiums created within the Commonwealth after January 1, 2011.
  2. KRS 381.9109 , 381.9111 , 381.9113 , 381.9129 , 381.9131 , 381.9167 , 381.9169 , 381.9183 , 381.9193 , 381.9197 , 381.9201(2), and 381.9203 , and KRS 381.9105 to the extent necessary in construing any of these sections, apply to all condominiums created before January 1, 2011, but only to the extent of events or circumstances occurring after January 1, 2011, and do not invalidate existing provisions of the declaration, bylaws, plats, or plans of those condominiums.
  3. Unit owners of units to which one hundred percent (100%) of the votes in the association are allocated, or such lesser percentage as stated in the declaration as necessary to terminate the condominium, may elect that KRS 381.9101 to 381.9207 shall apply to a condominium created before the January 1, 2011. In such event the declaration, bylaws, plats, or plans of the condominium shall be modified or amended to the extent necessary to be consistent with KRS 381.9101 to 381.9207 .
  4. Notwithstanding any provision to the contrary set forth in the declaration, bylaws, plats, or plans of a condominium created before January 1, 2011, the executive board of the association shall have the right to rely on the provisions set forth in KRS 381.9101 to 381.9207 to deal with any situation that presents a public safety or public health issue to one (1) or more unit owners in the association.
  5. KRS 381.805 to 381.910 shall not apply to condominiums created after January 1, 2011, and do not invalidate any amendment to the declaration, bylaws, plats, or plans of any condominium created before January 1, 2011, if the amendment would be permitted by KRS 381.910 1 to 381.9207 . The amendment shall be adopted in conformity with the procedures and requirements specified by those instruments and by KRS 381.805 to 381.910. If the amendment grants to any person any rights, powers, or privileges permitted by KRS 381.9101 to 381.9207 , all correlative obligations, liabilities, and restrictions in KRS 381.9101 to 381.9207 shall also apply to that person.

History. Enact. Acts 2010, ch. 97, § 2, effective January 1, 2011; 2012, ch. 99, § 1, effective April 11, 2012.

NOTES TO DECISIONS

1.Unit.

Boat slip units could be considered as part of a condominium property regime under the Horizontal Property Law, because a boat slip could not constitute a unit under the plain language of the statute as it was located entirely upon navigable waters and was not an enclosed space that consisted of one or more rooms, and because the events and circumstances leading to the filing of the instant action clearly occurred prior to January 1, 2011, the newly enacted Kentucky Condominium Act was inapplicable. Steenrod v. Louisville Yacht Club Ass'n, 417 S.W.3d 234, 2013 Ky. App. LEXIS 156 (Ky. Ct. App. 2013).

Research References and Practice Aids

Kentucky Bench & Bar.

Brinkman, The Kentucky Condominium Act, Vol. 74, No. 5, September 2010, Ky. Bench & Bar 16.

381.9105. Definitions for KRS 381.9101 to 381.9207.

As used in KRS 381.9101 to 381.9207 , or in the declaration or bylaws of any condominium unless specifically provided or the context otherwise requires:

  1. “Affiliate of a declarant” means any person who controls, is controlled by, or is under common control with a declarant.
    1. A person controls a declarant if the person:
      1. Is a general partner, officer, director, limited liability entity member or manager, or employer of the declarant and has the legal authority to direct the business and affairs of the declarant;
      2. Directly, indirectly, or acting in concert with one (1) or more other persons, or through one (1) or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than fifty percent (50%) of the voting interest in the declarant; or
      3. Controls in any manner the election of a majority of the directors of the declarant.
    2. A person is controlled by a declarant if the declarant:
      1. Is a general partner, officer, director, limited liability entity member or manager, or employer of the person and has the legal authority to direct the business and affairs of the person;
      2. Directly, indirectly, or acting in concert with one (1) or more other persons, or through one (1) or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than fifty percent (50%) of the voting interest in the person; or
      3. Controls in any manner the election of a majority of the directors of the person.

        Control does not exist if the powers described in paragraph (a) or (b) of this subsection are held solely as security for an obligation and are not exercised;

  2. “Allocated interests” means the undivided interest in the common elements, the common expense liability, and votes in the association allocated to each unit;
  3. “Association” or “unit owners’ association” means the association organized pursuant to KRS 381.9165 ;
  4. “Capital expenditure” means an expenditure to replace, repair, or improve common elements, or acquire new common elements;
  5. “Common elements” means all portions of a condominium other than the units;
  6. “Common expenses” means expenditures made or financial liabilities incurred by the association, to the extent permitted by the declaration or KRS 381.9101 to 381.9207 , together with any allocations to reserves;
  7. “Common expense liability” means the liability for common expenses allocated to each unit pursuant to KRS 381.9137 ;
  8. “Condominium” means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners;
  9. “Declarant” means any person or group of persons acting in concert who:
    1. As part of a common promotional plan for the condominium, formulated, sponsored, and promoted by the person or persons, offers to dispose of his, her, or their interest in a unit within the condominium not previously disposed of; or
    2. Reserves or succeeds to any special declarant right;
  10. “Declaration” means any instrument, including a master deed, however denominated, that creates a condominium, and any amendments to those instruments;
  11. “Development rights” means any right or combination of rights reserved by a declarant in the declaration to:
    1. Add real estate to a condominium;
    2. Create units, common elements, or limited common elements within a condominium;
    3. Subdivide units or convert units into common elements;
    4. Allocate or reallocate common elements among units; or
    5. Withdraw real estate from a condominium;
  12. “Dispose” or “disposition” means a voluntary transfer to a purchaser of any legal or equitable interest in a unit, but does not include the creation, assignment, transfer, or release of a mortgage or security interest;
  13. “Executive board” means the body, regardless of name, designated in the declaration to act on behalf of the association;
  14. “Identifying number” means a symbol or address that identifies only one (1) unit in a condominium;
  15. “Leasehold condominium” means a condominium in which all or a portion of the real estate is subject to a lease the expiration or termination of which will terminate the condominium or reduce its size;
  16. “Limited common element” means a portion of the common elements allocated by the declaration or by operation of KRS 381.9127 for the exclusive use of one (1) or more but fewer than all of the units;
  17. “Master association” means an organization described in KRS 381.9161 , whether or not it is also an association described in KRS 381.9165 ;
  18. “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, limited liability company, government, governmental subdivision or agency, or other legal or commercial entity;
  19. “Purchaser” means any person other than a declarant or a person in the business of selling real estate for his or her own account, who by means of a voluntary or involuntary transfer acquires a legal or equitable interest in a unit other than:
    1. A leasehold interest, including renewal options of less than twenty (20) years; or
    2. As security for an obligation;
  20. “Real estate” means any fee simple interest, leasehold estate, or other estate or interest in, over, or under land, including structures, fixtures, and other improvements and interests which by custom, usage, or law pass with a conveyance of land though not described in the contract of sale or instrument of conveyance. “Real estate” includes parcels with or without upper or lower boundaries, and spaces that may be filled with air or water;
  21. “Recording data” means the book and page number of instruments recorded in the office of a county clerk;
  22. “Residential” means use for dwelling or personal recreation, or both;
  23. “Special declarant rights” means rights reserved for the benefit of a declarant to:
    1. Complete improvements indicated on plats and plans filed with the declaration;
    2. Exercise any development rights;
    3. Maintain sales offices, management offices, signs advertising the condominium, and models;
    4. Use easements through the common elements for the purpose of making improvements within the condominium or within real estate which may be added to the condominium;
    5. Make the condominium part of a larger condominium or a planned community;
    6. Make the condominium subject to a master association; or
    7. Appoint or remove any officer of the association, master association, or any executive board member during any period of declarant control;
  24. “Unit” means a physical portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described in KRS 381.9133 , including patios, balconies, and other spaces if designated in the declaration; and
  25. “Unit owner” means a declarant or other person who owns a unit, or a lessee of a unit in a leasehold condominium whose lease expires simultaneously with any lease the expiration or termination of which will remove the unit from the condominium, but does not include a person having an interest in a unit solely as security for an obligation or as a sublessee of a lessee of a unit.

History. Enact. Acts 2010, ch. 97, § 3, effective January 1, 2011; 2012, ch. 99, § 2, effective April 11, 2012.

381.9107. Variation by agreement.

Except as expressly provided in KRS 381.9101 to 381.9207 , provisions of KRS 381.9101 to 381.9207 may not be varied by agreement, and rights conferred by KRS 381.9101 to 381.9207 may not be waived. A declarant may not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of KRS 381.9101 to 381.9207 or the declaration.

History. Enact. Acts 2010, ch. 97, § 4, effective January 1, 2011.

381.9109. Separate assessments, titles, and taxation.

  1. If there is any unit owner other than a declarant, each unit that has been created, together with its interest in the common elements, constitutes for all purposes a separate parcel of real estate.
  2. If there is any unit owner other than a declarant, each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights.
  3. Any portion of the common elements for which the declarant has reserved any development right shall be separately taxed and assessed against the declarant, and the declarant alone is liable for payment of those taxes.
  4. If there is no unit owner other than a declarant, the real estate comprising the condominium may be taxed and assessed in any manner provided by law.
  5. A residential unit of a condominium may be a homestead as allowed in KRS Chapters 132 and 427.

History. Enact. Acts 2010, ch. 97, § 5, effective January 1, 2011.

381.9111. Applicability of local ordinances, regulations, building codes, or other real estate use law.

A zoning, subdivision, building code, or other real estate use law, ordinance, or regulation shall not prohibit the condominium form of ownership or impose any requirement upon a condominium which it would not impose upon a physically identical development under a different form of ownership. Otherwise, no provision of KRS 381.9101 to 381.9207 invalidates or modifies any provision of any zoning, subdivision, building code, or other real estate use law, ordinance, or regulation.

History. Enact. Acts 2010, ch. 97, § 6, effective January 1, 2011.

381.9113. Eminent domain.

  1. If a unit is acquired by eminent domain, or if part of a unit is acquired by eminent domain leaving the unit owner with a remnant which may not practically or lawfully be used for any purpose permitted by the declaration, the award shall compensate the unit owner for his or her unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, that unit’s allocated interests are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking, and the association shall promptly prepare, execute, and record an amendment to the declaration reflecting the reallocations. Any remnant of a unit remaining after part of a unit is taken under this subsection is thereafter a common element.
  2. Except as provided in subsection (1) of this section, if part of a unit is acquired by eminent domain, the award shall compensate the unit owner for the reduction in value of the unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides:
    1. The unit’s allocated interests are reduced in proportion to the reduction in the size of the unit; and
    2. The portion of the allocated interests divested from the partially acquired unit are automatically reallocated to that unit and the remaining units in proportion to the respective allocated interests of those units before the taking, with the partially acquired unit participating in the reallocation on the basis of its reduced allocated interests.
  3. If part of the common elements is acquired by eminent domain, the portion of the award attributable to the common elements taken shall be paid to the association and, unless the declaration provides otherwise, the award attributable to the acquisition of a limited common element shall be equally divided among the owners of the units to which that limited common element was allocated at the time of acquisition.
  4. The court decree shall be recorded in every county in which any portion of the condominium is located.

History. Enact. Acts 2010, ch. 97, § 7, effective January 1, 2011.

381.9115. Supplemental general principles of law applicable to KRS 381.9101 to 381.9207.

Unless displaced by a particular provision of KRS 381.9101 to 381.9207 , the principles of law and equity, including the law of corporations and unincorporated associations, the law of real property, and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause, shall supplement KRS 381.9101 to 381.9207 .

History. Enact. Acts 2010, ch. 97, § 8, effective January 1, 2011.

381.9117. Construction against implicit repeal of KRS 381.9101 to 381.9207.

KRS 381.9101 to 381.9207 being a general act intended as a unified coverage of its subject matter, no part of it shall be deemed to be impliedly repealed by subsequent legislation if that construction can reasonably be avoided.

History. Enact. Acts 2010, ch. 97, § 9, effective January 1, 2011.

381.9119. Purposes and policies of KRS 381.9101 to 381.9207 — Kentucky Condominium Act to be liberally construed.

  1. KRS 381.9101 to 381.9207 shall be liberally construed and applied to promote its underlying purposes and policies.
  2. The underlying purposes and policies of KRS 381.9101 to 381.9207 are:
    1. To simplify, clarify, and modernize the law governing condominiums; and
    2. To make uniform the law among the various jurisdictions.

History. Enact. Acts 2010, ch. 97, § 10, effective January 1, 2011.

381.9121. Severability of invalid provision or application.

If any provision of KRS 381.9101 to 381.9207 or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of KRS 381.9101 to 381.9207 that can be given effect without the invalid provision or application, and to this end the provisions of KRS 381.9101 to 381.9207 are severable.

History. Enact. Acts 2010, ch. 97, § 11, effective January 1, 2011.

381.9123. Obligation of good faith.

Every contract or duty governed by KRS 381.9101 to 381.9207 imposes an obligation of good faith in its performance or enforcement.

History. Enact. Acts 2010, ch. 97, § 12, effective January 1, 2011.

Creation, Alteration, and Termination of Condominiums

381.9125. Creation of condominium.

A condominium may be created pursuant to KRS 381.9101 to 381.9207 only by recording a declaration executed in the same manner as a deed. The declaration shall be recorded in every county in which any portion of the condominium is located, and shall be indexed in the name of the condominium, the association, and each person executing the declaration. The county clerk shall determine the methods and mechanics for recording and storing any plans and plats associated with a declaration or amendment of a declaration.

History. Enact. Acts 2010, ch. 97, § 13, effective January 1, 2011.

381.9127. Unit boundaries.

  1. If walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements unless otherwise specified in the declaration.
  2. If any chute, flue, duct, wire, conduit, heating system, air conditioning system, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one (1) unit or any portion of the common elements is a part of the common elements unless otherwise specified in the declaration.
  3. Subject to subsection (2) of this section, all spaces, interior partitions, and other fixtures and improvements within the boundaries of a unit are a part of the unit.
  4. Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit.
  5. Any sprinkler system, alarm system, or other system of protection that serves more than one (1) unit, unless all units served are owned by the same owner, shall be part of the common elements.
  6. All interior hallways, stairways, and other interior space, including all fixtures located within these spaces, that are located outside of a unit shall be limited common elements allocated exclusively to the units appurtenant to or otherwise accessible from such interior spaces.

History. Enact. Acts 2010, ch. 97, § 14, effective January 1, 2011.

381.9129. Construction and validity of declaration and bylaws.

  1. All provisions of the declaration and bylaws are severable.
  2. The rule against perpetuities shall not be applied to defeat any provision of the declaration, bylaws, rules, or regulations adopted pursuant to KRS 381.9167 .
  3. In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with KRS 381.9101 to 381.9207 .
  4. Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with KRS 381.9101 to 381.9207 .

History. Enact. Acts 2010, ch. 97, § 15, effective January 1, 2011.

381.9131. Description of units.

After the declaration is recorded, a description of a unit which sets forth the name of the condominium, the recording data for the deed and declaration, the county in which the condominium is located, and the identifying number of the unit, is a sufficient legal description of that unit and all rights, obligations, and interests appurtenant to that unit. The numbering system of units shall be adequate to easily distinguish each unit, including those built at different times.

History. Enact. Acts 2010, ch. 97, § 16, effective January 1, 2011.

381.9133. Contents of declaration.

  1. The declaration for a condominium shall contain:
    1. The name of the condominium which shall include the word “condominium” or be followed by the words “a condominium,” and the association;
    2. The name of every county in which any part of the condominium is situated;
    3. A legally sufficient description of the real estate included in the condominium;
    4. A statement of the maximum number of units which the declarant reserves the right to create;
    5. A description of the boundaries of each unit created by the declaration, including the unit’s identifying number;
    6. A description of any limited common elements as provided in KRS 381.9141 (2)(h), except for those limited common elements specified in KRS 381.9127(2), (4), and (6);
    7. A description of any real estate, except real estate subject to development rights, which may be allocated subsequently as limited common elements, other than limited common elements specified in KRS 381.9127(2), (4), and (6), together with a statement that they may be so allocated;
    8. A description of any development rights and other special declarant rights reserved by the declarant, together with a legally sufficient description of the real estate to which each of those rights applies, and a time limit within which each of those rights must be exercised;
    9. If any development right may be exercised with respect to different parcels of real estate at different times, a statement to that effect together with:
        1. A statement fixing the boundaries of those portions and identifying the proposed order in which those portions may be subjected to the exercise of each development right; or 1. a. A statement fixing the boundaries of those portions and identifying the proposed order in which those portions may be subjected to the exercise of each development right; or
        2. A statement that no assurances are made concerning the boundaries or order in which the exercise of development rights may occur; and
      1. A statement as to whether, if any development right is exercised in any portion of the real estate subject to that development right, that development right must be exercised in all or in any other portion of the remainder of that real estate;
    10. Any other conditions or limitations under which the rights described in paragraph (i) of this subsection may be exercised or will lapse;
    11. An allocation to each unit of the allocated interests in the manner described in KRS 381.9137 ;
    12. Any restrictions on use, occupancy, and alienation of the units;
    13. The recording data for recorded easements and licenses appurtenant to or included in the condominium or to which any portion of the condominium is or may become subject by virtue of a reservation in the declaration; and
    14. All matters required by KRS 381.9135 , 381.9137 , 381.9139 , 381.9141 , 381.9153 , and 381.9169(4).
  2. The declaration may contain any other matters the declarant deems appropriate.

History. Enact. Acts 2010, ch. 97, § 17, effective January 1, 2011.

381.9135. Leasehold condominiums.

  1. A memorandum of lease shall be recorded with respect to any lease the expiration or termination of which may terminate the condominium or reduce its size. Every lessor of those leases shall sign the memorandum of lease, and the memorandum of lease shall state:
    1. The elements of recording for the lease;
    2. The date on which the lease is scheduled to expire;
    3. A legally sufficient description of the real estate subject to the lease;
    4. Any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement that they do not have those rights;
    5. Any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of the lease, or a statement that they do not have those rights; and
    6. Any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have those rights.
  2. After the declaration for a leasehold condominium is recorded, neither the lessor nor his or her successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of his or her share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the lease. A unit owner’s leasehold interest is not affected by failure of any other person to pay rent or fulfill any other covenant.
  3. Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder are acquired.
  4. If the expiration or termination of a lease decreases the number of units in a condominium, the allocated interests shall be reallocated in accordance with KRS 381.9113(1), as though those units had been taken by eminent domain. Reallocations shall be confirmed by an amendment to the declaration prepared, executed, and recorded by the association.

History. Enact. Acts 2010, ch. 97, § 18, effective January 1, 2011.

381.9137. Allocation of common element interests, votes, and common expense liabilities.

  1. The declaration shall allocate a fraction or percentage of undivided interests in the common elements and in the common expenses of the association, and a portion of the votes in the association, to each unit and state the formulas used to establish those allocations. Those allocations shall not discriminate in favor of units owned by the declarant.
  2. If units may be added to or withdrawn from the condominium, the declaration shall state the formulas to be used to reallocate the allocated interests among all units included in the condominium after the addition or withdrawal.
  3. The declaration may provide:
    1. That different allocations of votes shall be made to the units on particular matters specified in the declaration; and
    2. For class voting on specified issues affecting the class if necessary to protect valid interests of the class. A declarant shall not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by KRS 381.9101 to 381.9207 , and units shall not constitute a class because they are owned by a declarant.
  4. The declaration shall not permit cumulative voting, including cumulative voting for the purpose of electing members of the executive board.
  5. Unless otherwise stated in the declaration, the declarant retains full voting rights to any unit until it conveyed.
  6. Except for minor variations due to rounding, the sum of the undivided interests in the common elements and common expense liabilities allocated at any time to all the units shall each equal one (1), if stated as fractions, or one hundred percent (100%), if stated as percentages. In the event of a discrepancy between an allocated interest and the result derived from application of the pertinent formula, the allocated interest prevails in the absence of error in specifying the allocated interest.
  7. The common elements are not subject to partition, and any purported conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to which that interest is allocated, shall be void.

History. Enact. Acts 2010, ch. 97, § 19, effective January 1, 2011.

381.9139. Limited common elements.

  1. Except for the limited common elements described in KRS 381.9127(2), (4), and (6), the declaration shall specify to which unit or units each limited common element is allocated. That allocation shall not be altered without the consent of the unit owners whose units are affected.
  2. Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall provide a copy thereof to the association, which shall record it after receiving all fees and other costs associated with recording the instrument. The amendment shall be recorded in the names of the parties and the condominium.
  3. A common element not previously allocated as a limited common element shall not be so allocated, except pursuant to provisions in the declaration made in accordance with KRS 381.9133(1)(g). The allocations shall be made by amendments to the declaration.

History. Enact. Acts 2010, ch. 97, § 20, effective January 1, 2011.

381.9141. Plats and plans.

  1. Plats and plans are a part of the declaration. Separate plats and plans are not required by KRS 381.9101 to 381.9207 if all the information required by this section is contained in either a plat or plan. Each plat and plan shall be clear and legible and contain a certification that the plat or plan contains all information required by this section.
  2. Each plat shall contain:
    1. The name and a survey or general schematic map of the entire condominium;
    2. The location and dimensions of all real estate not subject to development rights, or subject only to the development right to withdraw, and the location and dimensions of all existing improvements within that real estate;
    3. A legally sufficient description of any real estate subject to development rights, labeled to identify the rights applicable to each parcel;
    4. The extent of any encroachments by or upon any portion of the condominium;
    5. The location, with reference to an established datum, of any horizontal unit boundaries not shown or projected on plans recorded pursuant to subsection (4) of this section and that unit’s identifying number;
    6. A legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled as “leasehold real estate”;
    7. The distance between noncontiguous parcels of real estate comprising the condominium;
    8. The location and dimensions of limited common elements, including porches, balconies, and patios, other than parking spaces and the other limited common elements described in KRS 381.9127(2), (4), and (6); and
    9. In the case of real estate not subject to development rights, all other matters customarily shown on land surveys prepared in accordance with standards established pursuant to KRS 322.290 .
  3. A plat may also show the intended location and dimensions of any contemplated improvement to be constructed anywhere within the condominium. Any contemplated improvement shown shall be labeled either “MUST BE BUILT” or “NEED NOT BE BUILT.”
  4. To the extent not shown or projected on the plats, plans of the units shall show or project:
    1. Any horizontal unit boundaries exclusive of elevations, with reference to an established datum, and that unit’s identifying number; and
    2. Any units in which the declarant has reserved the right to create additional units or common elements, identified appropriately.
  5. Unless the declaration provides otherwise, the horizontal boundaries of part of a unit located outside of a building have the same elevation as the horizontal boundaries of the inside part, and need not be depicted on the plats and plans.
  6. Upon exercising any development right, the declarant shall record either new plats and plans necessary to conform to the requirements of subsections (1), (2), and (4) of this section, or new certifications of plats and plans previously recorded if those plats and plans otherwise conform to the requirements of subsections (1), (2), and (4) of this section.
  7. Any certification of a plat or plan required by KRS 381.9125 or this section shall be made by a professional land surveyor, licensed architect, or professional engineer.

History. Enact. Acts 2010, ch. 97, § 21, effective January 1, 2011.

381.9143. Exercise of development rights.

  1. To exercise any development right reserved under KRS 381.9133(1)(h), the declarant shall prepare, execute, and record an amendment to the declaration and comply with KRS 381.9141 . The declarant is the unit owner of any units thereby created. The amendment to the declaration shall assign an identifying number to each new unit created, and, except in the case of subdivision or conversion of units described in subsection (3) of this section, reallocate the allocated interests among all units. The amendment shall describe any common elements and any limited common elements thereby created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required by KRS 381.9139 .
  2. Development rights may be reserved within any real estate added to the condominium if the amendment adding that real estate includes all matters required by KRS 381.9133 or 381.9135 , as the case may be, and the plats and plans include all matters required by KRS 381.9141 . This provision does not extend the time limit on the exercise of development rights imposed by the declaration under KRS 381.9133 (1)(h).
  3. If a declarant exercises a development right to subdivide or convert a unit previously created into additional units, common elements, or both, the declaration shall be amended as follows:
    1. If the declarant converts the unit entirely to common elements, the amendment to the declaration shall reallocate all the allocated interests of that unit among the other units as if that unit had been taken by eminent domain; or
    2. If the declarant subdivides the unit into two (2) or more units, whether or not any part of the unit is converted into common elements, the amendment to the declaration shall reallocate all the allocated interests of the unit among the units created by the subdivision in any reasonable manner prescribed by the declarant.
  4. If the declaration provides, pursuant to KRS 381.9133(1)(h), that all or a portion of the real estate is subject to the development right of withdrawal, then the following shall apply:
    1. If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser without the written consent of all unit owners owning units within the real estate; and
    2. If a portion or portions are subject to withdrawal, no portion may be withdrawn after a unit in that portion has been conveyed to a purchaser without the written consent of all unit owners owning units within that portion.

History. Enact. Acts 2010, ch. 97, § 22, effective January 1, 2011.

381.9145. Alteration of units.

Subject to the provisions of the declaration and other provisions of law, a unit owner:

  1. May make any improvements or alterations to his or her unit that do not impair the structural integrity, utility components, or mechanical systems or lessen the support of any portion of the condominium;
  2. Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without the written permission of the association; and
  3. After acquiring an adjoining unit or an adjoining part of an adjoining unit, may remove or alter any intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those acts do not impair the structural integrity, utility components, or mechanical systems or lessen the support of any portion of the condominium. Removal of partitions or creation of apertures under this subsection is not an alteration of boundaries and neither creates a merged unit nor modifies the basis for the calculation and collection of assessments.

History. Enact. Acts 2010, ch. 97, § 23, effective January 1, 2011; 2012, ch. 99, § 3, effective April 11, 2012.

381.9147. Relocation of boundaries between adjoining units.

  1. Subject to the provisions of the declaration and other provisions of law, the boundaries between adjoining units may be relocated by an amendment to the declaration upon application to the association by the owners of those units. If the owners of the adjoining units have specified a reallocation between their units of their allocated interests, the application shall state the proposed reallocations. Unless the executive board determines, within thirty (30) days, that the reallocations are unreasonable, the association shall prepare an amendment that identifies the units involved, states the reallocations, is executed by those unit owners, contains words of conveyance between them, and upon recordation, is indexed in the name of the grantor and the grantee.
  2. The association shall prepare and record plats or plans necessary to show the altered boundaries between adjoining units, and their dimensions and identifying numbers.
  3. All costs associated with the preparation and recording of the documents, plats, and plans required by this section shall be paid by the unit owners.

History. Enact. Acts 2010, ch. 97, § 24, effective January 1, 2011.

381.9149. Subdivision of units.

  1. If the declaration expressly so permits, a unit may be subdivided into two (2) or more units. Subject to the provisions of the declaration and other provisions of law, upon application of a unit owner to subdivide a unit, the association shall prepare, execute, and record an amendment to the declaration, including the plats and plans, subdividing that unit.
  2. The amendment to the declaration shall be executed by the owner of the unit to be subdivided, assign an identifying number to each unit created, and reallocate the allocated interests formerly allocated to the subdivided unit to the new units in any reasonable manner prescribed by the owner of the subdivided unit.
  3. All costs associated with the preparation and recording of the documents, plats, and plans required by subsection (1) of this section shall be paid by the owner of the unit being subdivided.

History. Enact. Acts 2010, ch. 97, § 25, effective January 1, 2011.

381.9151. Easement for encroachments.

To the extent that any unit or common element encroaches on any other unit or common element, a valid easement for the encroachment exists. The easement does not relieve a unit owner of liability in case of his or her willful misconduct or relieve a declarant or any other person of liability for failure to adhere to the plats and plans.

History. Enact. Acts 2010, ch. 97, § 26, effective January 1, 2011.

381.9153. Easement rights.

Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably necessary for the purpose of discharging a declarant’s obligations or exercising special declarant rights, whether arising under KRS 381.9101 to 381.9207 or reserved in the declaration.

History. Enact. Acts 2010, ch. 97, § 27, effective January 1, 2011.

381.9155. Amendment of declaration.

  1. Except in cases of amendments that may be executed by a declarant under KRS 381.9141(6) or 381.9143 ; the association under KRS 381.9113 , 381.9135(4), 381.9139(3), 381.9147(1), or 381.9149 ; or certain unit owners under KRS 381.9139(2), 381.9147(1), or 381.9149 (2), and except as limited by subsection (4) of this section and KRS 381.9187(6), the declaration, including the plats and plans, may be amended only by vote or agreement of unit owners of units to which at least sixty-seven percent (67%) of the votes in the association are allocated, or any larger majority specified in the declaration. The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use.
  2. An action to challenge the validity of an amendment adopted by the association pursuant to this section shall not be brought more than one (1) year after the amendment is recorded.
  3. Every amendment to the declaration shall be recorded in every county in which any portion of the condominium is located, and is effective only upon recordation. An amendment shall be indexed in the name of the condominium and the association and in the name of the parties executing the amendment.
  4. Except to the extent expressly permitted or required by other provisions of KRS 381.9101 to 381.9207 , an amendment shall not create or increase special declarant rights, increase the number of units, change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners.
  5. Amendments to the declaration required by KRS 381.9101 to 381.9207 to be recorded by the association shall be prepared, executed, recorded, and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.

History. Enact. Acts 2010, ch. 97, § 28, effective January 1, 2011; 2012, ch. 99, § 12, effective April 11, 2012.

381.9157. Termination of condominium.

  1. Except in the case of a taking of all the units by eminent domain, a condominium may be terminated only by agreement of unit owners of units to which at least eighty percent (80%) of the votes in the association are allocated, or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units in the condominium are restricted exclusively to nonresidential uses.
  2. An agreement to terminate a condominium shall be evidenced by the execution of a termination agreement, or ratification thereof, in the same manner as a deed, by the requisite number of unit owners. The termination agreement shall specify a date after which the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof shall be recorded in every county in which a portion of the condominium is situated, and is effective only upon recordation.
  3. In the case of a condominium containing only units having horizontal boundaries described in the declaration, a termination agreement may provide that all the common elements and units of the condominium shall be sold following termination. If, pursuant to the agreement, any real estate in the condominium is to be sold following termination, the termination agreement shall set forth the minimum terms of the sale.
  4. In the case of a condominium containing any units not having horizontal boundaries described in the declaration, a termination agreement may provide for sale of the common elements, but shall not require that the units be sold following termination, unless the declaration as originally recorded provided otherwise or unless all the unit owners consent to the sale.
  5. The association, on behalf of the unit owners, may contract for the sale of real estate in the condominium, but the contract is not binding on the unit owners until approved pursuant to subsections (1) and (2) of this section. If any real estate in the condominium is to be sold following termination, title to that real estate, upon termination, vests in the association as trustee for the holders of all interests in the units. Thereafter, the association has all powers necessary and appropriate to effect the sale. Until the sale has been concluded and the proceeds thereof distributed, the association continues in existence with all powers it had before termination. Proceeds of the sale shall be distributed to unit owners and lienholders as their interests may appear, in proportion to the respective interests of unit owners as provided in subsection (8) of this section. Unless otherwise specified in the termination agreement, as long as the association holds title to the real estate, each unit owner and his or her successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his or her unit. During the period of that occupancy, each unit owner and his or her successors in interest remain liable for all assessments and other obligations imposed on unit owners by KRS 381.9101 to 381.9207 or the declaration.
  6. If the real estate constituting the condominium is not to be sold following termination, title to the common elements and, in a condominium containing only units having horizontal boundaries described in the declaration, title to all the real estate in the condominium, vests in the unit owners upon termination as tenants in common in proportion to their respective interests as provided in subsection (8) of this section, and liens on the units shift accordingly. While the tenancy in common exists, each unit owner and his or her successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his or her unit.
  7. Following termination of the condominium, the proceeds of any sale of real estate, together with the assets of the association, are held by the association as trustee for unit owners and holders of liens on the units as their interests may appear. Following termination, creditors of the association holding liens on the units, which were recorded before termination, may enforce those liens in the same manner as any lienholder. All other creditors of the association are to be treated as if they had perfected liens on the units immediately before termination.
  8. The respective interests of unit owners referred to in subsections (5), (6), and (7) of this section are as follows:
    1. Except as provided in paragraph (b) of this subsection, the respective interests of unit owners are the fair market values of their units, limited common elements, and common element interests immediately before the termination, as determined by one (1) or more independent appraisers selected by the association. The decision of the independent appraisers shall be distributed to the unit owners and becomes final unless disapproved within thirty (30) days after distribution by unit owners of units to which twenty-five percent (25%) of the votes in the association are allocated. The proportion of any unit owner’s interest to that of all unit owners is determined by dividing the fair market value of that unit owner’s unit and common element interest by the total fair market values of all the units and common elements; and
    2. If any unit or any limited common element is destroyed to the extent that an appraisal of the fair market value thereof before destruction cannot be made, the interests of all unit owners are their respective common element interests immediately before the termination.
  9. Except as provided in subsection (10) of this section, foreclosure or enforcement of a lien or encumbrance against the entire condominium does not of itself terminate the condominium, and foreclosure or enforcement of a lien or encumbrance against a portion of the condominium, other than withdrawable real estate, does not withdraw that portion from the condominium. Foreclosure or enforcement of a lien or encumbrance against withdrawable real estate does not of itself withdraw that real estate from the condominium, but the person taking title thereto has the right to require from the association, upon request, an amendment excluding the real estate from the condominium.
  10. If a lien or encumbrance against a portion of the real estate comprising the condominium has priority over the declaration, the parties foreclosing the lien or encumbrance may, upon foreclosure, record an instrument excluding the real estate subject to that lien or encumbrance from the condominium. The provisions of this subsection shall not apply to any common elements constituting a portion of the real estate to the extent the common elements as described in and subject to the declaration have been developed.

History. Enact. Acts 2010, ch. 97, § 29, effective January 1, 2011.

381.9159. Rights of secured lenders.

The declaration may require that all or a specified number or percentage of the mortgagees encumbering the units approve specified actions of the unit owners or the association as a condition to the effectiveness of those actions, but a requirement for approval shall not operate to:

  1. Deny or delegate control over the general administrative affairs of the association by the unit owners or the executive board; or
  2. Prevent the association or the executive board from commencing, intervening in, or settling any litigation or proceeding, or receiving and distributing any insurance proceeds except as provided in KRS 381.9187 .

History. Enact. Acts 2010, ch. 97, § 30, effective January 1, 2011.

381.9161. Master associations.

  1. If the declaration for a condominium provides that any of the powers described in KRS 381.9167 are to be exercised by or may be delegated to a for-profit or nonprofit corporation or unincorporated association which exercises those or other powers on behalf of one (1) or more condominiums or for the benefit of the unit owners of one (1) or more condominiums, all provisions of KRS 381.9101 to 381.9207 applicable to unit owners’ associations apply to any such corporation or unincorporated association, except as modified by this section.
  2. Unless a master association is acting in the capacity of an association described in KRS 381.9165 , it may exercise the powers set forth in KRS 381.9167(1)(b) only to the extent expressly permitted in the declarations of condominiums which are part of the master association or expressly described in the delegations of power from those condominiums to the master association.
  3. If the declaration of any condominium provides that the executive board may delegate certain powers to a master association, the members of the executive board have no liability for the acts or omissions of the master association with respect to those powers following delegation.
  4. The rights and responsibilities of unit owners with respect to the unit owners’ association set forth in KRS 381.9169 , 381.9177 , 381.9179 , 381.9181 , and 381.9185 apply in the conduct of the affairs of a master association only to those persons who elect the board of a master association, whether or not those persons are otherwise unit owners within the meaning of KRS 381.9101 to 381.9207 .
  5. Notwithstanding the provisions of KRS 381.9169(6) with respect to the election of the executive board of an association by all unit owners after the period of declarant control ends and even if a master association is also an association described in KRS 381.9165 , the certificate of incorporation or other instrument creating the master association and the declaration of each condominium the powers of which are assigned by the declaration or delegated to the master association may provide that the executive board of the master association shall be elected after the period of declarant control in any of the following ways:
    1. All unit owners of all condominiums subject to the master association may elect all members of that executive board;
    2. All members of the executive boards of all condominiums subject to the master association may elect all members of that executive board;
    3. All unit owners of each condominium subject to the master association may elect specified members of that executive board; or
    4. All members of the executive board of each condominium subject to the master association may elect specified members of that executive board.

History. Enact. Acts 2010, ch. 97, § 31, effective January 1, 2011.

381.9163. Merger or consolidation of condominiums.

  1. Any two (2) or more condominiums by agreement of the unit owners as provided in subsection (2) of this section, may be merged or consolidated into a single condominium. In the event of a merger or consolidation, unless the agreement otherwise provides, the resultant condominium is, for all purposes, the legal successor of all of the pre-existing condominiums and the operations and activities of all associations of the pre-existing condominiums shall be merged or consolidated into a single association which shall hold all powers, rights, obligations, assets, and liabilities of all pre-existing associations.
  2. In addition to any other requirements of the declaration, the merger or consolidation of two (2) or more condominiums pursuant to subsection (1) of this section shall be evidenced by a recorded agreement duly executed by the president of the association of each of the pre-existing condominiums following approval by owners of units to which are allocated the percentage of votes in each condominium required to terminate that condominium. Any such agreement shall be recorded in every county in which a portion of the condominium is located and is not effective until recorded.
  3. Every merger or consolidation agreement shall provide for the reallocation of the allocated interests in the new association among the units of the resultant condominium either:
    1. By stating the reallocations or the formulas upon which they are based; or
    2. By stating the percentage of overall allocated interests of the new condominium which are allocated to all of the units comprising each of the pre-existing condominiums, and providing that the portion of the percentages allocated to each unit formerly comprising a part of the pre-existing condominium shall be equal to the percentages of allocated interests allocated to that unit by the declaration of the pre-existing condominium.

History. Enact. Acts 2010, ch. 97, § 32, effective January 1, 2011.

Management of Condominium

381.9165. Organization of unit owners’ association.

Unless stated otherwise in the declaration, a unit owners’ association shall be organized no later than the date the first unit in the condominium is conveyed. The membership of the association shall at all times consist exclusively of all the unit owners or, following termination of the condominium, of all former unit owners entitled to distributions of proceeds under KRS 381.9157 , or their heirs, successors, or assigns. The association shall be organized as a for-profit or nonprofit corporation or as an unincorporated association.

History. Enact. Acts 2010, ch. 97, § 33, effective January 1, 2011.

381.9167. Powers of unit owners’ association — Emergency assessments.

  1. Except as provided in subsection (2) of this section and subject to the provisions of the declaration, the association, even if unincorporated, may:
    1. Adopt and amend bylaws, rules, and regulations;
    2. Adopt and amend budgets for revenues, expenditures, and reserves, and collect assessments for common expenses from unit owners;
    3. Hire and discharge managers and other employees, agents, and independent contractors;
    4. Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two (2) or more unit owners on matters affecting the condominium;
    5. Make contracts and incur liabilities;
    6. Regulate the use, maintenance, repair, replacement, and modification of common elements, and authorize access to any unit for those purposes;
    7. Cause additional improvements to be made as a part of the common elements;
    8. Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property, except that common elements may only be conveyed or subjected to a lien or security interest as provided in KRS 381.9185 ;
    9. Grant easements, leases, licenses, and concessions through or over the common elements;
    10. Impose and receive payments, fees, or charges:
      1. For the use, rental, or operation of the common elements other than limited common elements described in KRS 381.9127(2), (4), and (6);
      2. For services provided to unit owners; and
      3. To cover emergency or extraordinary circumstances affecting the condominium or any part thereof;
    11. Impose charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association that may include reimbursement to the association of reasonable fees and costs, including attorney fees, associated with the enforcement of this paragraph;
    12. Impose reasonable charges for the preparation and recordation of amendments to the declaration, certificates required by KRS 381.9203 , or statements of unpaid assessments, except that:
      1. Any fee imposed for the preparation of a certificate shall not exceed the lesser of two hundred twenty-five dollars ($225) or eighty percent (80%) of the current monthly assessment fee charged that unit by the association; and
      2. No more than fifty dollars ($50) shall be charged to update a previous certificate issued in the same fiscal year of the association;
    13. Provide for the indemnification of its officers and executive board and maintain directors’ and officers’ liability insurance;
    14. Assign its right to future income, including the right to receive common expense assessments, for the purpose of securing financial accommodations obtained by the association to perform its duties and obligations under the declaration or KRS 381.9101 to 381.9207 ;
    15. Exercise any other powers conferred by the declaration or bylaws;
    16. Exercise all other powers that may be exercised in this Commonwealth by legal entities of the same type as the association; and
    17. Exercise any other powers necessary and proper for the governance and operation of the association.
  2. The declaration shall not impose limitations on the power of the association to deal with the declarant that are more restrictive than the limitations imposed on the power of the association to deal with other persons.
  3. Notwithstanding the declaration, an association may impose an emergency assessment against any unit affected to:
    1. Comply with a judicial order; or
    2. Repair an emergency condition of any common structural, utility, or mechanical component which has made, or is in imminent danger of making, any unit, common element, or limited common element unsafe, uninhabitable, or uninsurable, provided the association is first provided an opinion affixed with a professional seal from a professional engineer or licensed architect stating the emergency condition.
  4. The emergency assessment provided for in subsection (3) of this section shall be made upon the vote of:
    1. A simple majority of unit owners present at a special called meeting. If the declaration does not provide for special meetings, one (1) may be called under this subsection to address the issues identified in subsection (3) of this section; or
    2. Seventy-five percent (75%) of the members of the association’s executive board.

Any emergency assessment made under this subsection may be reduced or rescinded by a vote of a simple majority of total unit owners at a special meeting.

History. Enact. Acts 2010, ch. 97, § 34, effective January 1, 2011; 2012, ch. 99, § 4, effective April 11, 2012.

381.9169. Executive board members and officers.

  1. Except as provided in the declaration, the bylaws, or subsection (2) of this section, the executive board may act in all instances on behalf of the association. In the performance of their duties, the officers and members of the executive board shall act in accordance with KRS 381.9170 .
  2. The executive board shall not act on behalf of the association to amend the declaration, to terminate the condominium, or to elect members of the executive board or determine the qualifications, powers, and duties, or terms of office of executive board members, but the executive board may fill vacancies in its membership for the unexpired portion of any term.
  3. If the executive board adopts a budget for the condominium, the board shall:
    1. Provide a summary of the budget to all unit owners within thirty (30) days after the adoption; and
    2. If the adopted budget contains an increase of greater than fifteen percent (15%) from the previous year’s budget, set a date for a meeting of the unit owners to consider ratification of the budget, which meeting shall not be less than fourteen (14) days nor more than thirty (30) days after providing the summary. The budget shall be deemed ratified, whether or not a quorum is present, unless at that meeting a majority of all the unit owners, or any larger vote specified in the declaration, reject the budget. If the budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as a subsequent budget is adopted by the executive board in conformity with this subsection.
  4. Except as provided in subsection (5) of this section, the declaration may provide for a period of declarant control of the association, during which period a declarant, or persons designated by him or her, may appoint and remove the officers and members of the executive board. Regardless of the period provided in the declaration, a period of declarant control terminates no later than the earlier of:
    1. Sixty (60) days after conveyance of seventy-five percent (75%) of the units which may be created to unit owners other than a declarant;
    2. Two (2) years after all declarants have ceased to offer units for sale in the ordinary course of business;
    3. Two (2) years after any development right to add new units was last exercised; or
    4. Seven (7) years after the first unit was conveyed to a unit owner other than a declarant.

      A declarant may voluntarily surrender the right to appoint and remove officers and members of the executive board before termination of that period, but in that event he or she may require, for the duration of the period of declarant control, that specified actions of the association or executive board, as described in a recorded instrument executed by the declarant, be approved by the declarant before they become effective.

  5. Not later than sixty (60) days after conveyance of twenty-five percent (25%) of the units which may be created to unit owners other than a declarant, at least one (1) member and not less than twenty-five percent (25%) of the members of the executive board shall be elected by unit owners other than the declarant. Not later than sixty (60) days after conveyance of fifty percent (50%) of the units which may be created to unit owners other than a declarant, not less than thirty-three and one-third percent (33-1/3%) of the members of the executive board shall be elected by unit owners other than the declarant.
  6. Not later than the termination of any period of declarant control, the unit owners shall elect an executive board of at least three (3) members, a majority of whom shall be unit owners or owners of equity interests in units. The executive board shall elect the officers. The executive board members and officers shall take office upon election.
  7. Any provision of the declaration or bylaws to the contrary notwithstanding, the unit owners, by a two-thirds (2/3) vote of all persons present and entitled to vote at any meeting of the unit owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant.

History. Enact. Acts 2010, ch. 97, § 35, effective January 1, 2011; 2012, ch. 99, § 5, effective April 11, 2012.

381.9170. Discharge of board member’s duties — Standards for monetary damages and injunctive relief.

  1. A board member shall discharge his or her duties as an officer or a member of the executive board, including his or her duties as a member of a committee:
    1. In good faith;
    2. On an informed basis; and
    3. In a manner he or she honestly believes to be in the best interests of the corporation.
  2. Such board member shall be considered to discharge his or her duties on an informed basis if he or she makes, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, inquiry into the business and affairs of the association, or into a particular action to be taken or decision to be made.
  3. In discharging his or her duties, such board member shall be entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by:
    1. One (1) or more officers or employees of the association whom the board member honestly believes to be reliable and competent in the matters presented;
    2. Legal counsel, public accountants, or other persons as to matters the director honestly believes are within the person’s professional or expert competence; or
    3. A committee of the executive board of which he or she is not a member if the board member honestly believes the committee merits confidence.
  4. A board member of an association shall not be considered to act in good faith if he or she has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (3) of this section unwarranted.
  5. In addition to any other limitation on such board member’s liability for monetary damages contained in any provision of the association’s articles of incorporation adopted in accordance with state law, any action taken as a board member, or any failure to take any action as a board member, shall not be the basis for monetary damages or injunctive relief unless:
    1. The board member has breached or failed to perform the duties of the board member’s office in compliance with this section; and
    2. In the case of an action for monetary damages, the breach or failure to perform constitutes willful misconduct or wanton or reckless disregard for human rights, safety, or property.
  6. A person bringing an action for monetary damages under this section shall have the burden of proving by clear and convincing evidence the provisions of subsection (5)(a) and (b) of this section, and the burden of proving that the breach or failure to perform was the legal cause of the damages suffered.

History. Enact. Acts 2012, ch. 99, § 11, effective April 11, 2012.

381.9171. Transfer of special declarant rights.

  1. No special declarant right created or reserved under KRS 381.9101 to 381.9207 may be transferred except by an instrument evidencing the transfer recorded in every county in which any portion of the condominium is located. The instrument is not effective unless executed by the transferee.
  2. Upon transfer of any special declarant right, the liability of a transferor declarant is as follows:
    1. A transferor is not relieved of any obligation or liability arising before the transfer and remains liable for warranty obligations imposed upon him or her by KRS 381.9101 to 381.9207 . Lack of privity does not deprive any unit owner of standing to maintain an action to enforce any obligation of the transferor;
    2. If a successor to any special declarant right is an affiliate of a declarant, the transferor is jointly and severally liable with the successor for any obligations or liabilities of the successor relating to the condominium;
    3. If a transferor retains any special declarant right, but transfers other special declarant rights to a successor who is not an affiliate of the declarant, the transferor is liable for any obligations or liabilities imposed on a declarant by KRS 381.9101 to 381.9207 or by the declaration relating to the retained special declarant rights and arising after the transfer; and
    4. A transferor has no liability for any act or omission or any breach of a contractual or warranty obligation arising from the exercise of a special declarant right by a successor declarant who is not an affiliate of the transferor.
  3. Unless otherwise provided in a mortgage, in case of foreclosure of a mortgage, tax sale, judicial sale, or sale under Bankruptcy Code or receivership proceedings, of any units owned by a declarant or real estate in a condominium subject to development rights, a person acquiring title to all the real estate being foreclosed or sold, but only upon his or her request, succeeds to all special declarant rights related to that real estate held by that declarant. The judgment or instrument conveying title shall provide for transfer of only the special declarant rights requested.
  4. Upon foreclosure, tax sale, judicial sale, or sale under Bankruptcy Code or receivership proceedings, of all units and other real estate in a condominium owned by a declarant:
    1. The declarant ceases to have any special declarant rights; and
    2. The period of declarant control terminates unless the judgment or instrument conveying title provides for transfer of all special declarant rights held by that declarant to a successor declarant.
  5. The liabilities and obligations of a person who succeeds to special declarant rights are as follows:
    1. A successor to any special declarant right who is an affiliate of a declarant is subject to all obligations and liabilities imposed on the transferor by KRS 381.9101 to 381.9207 or by the declaration;
    2. A successor to any special declarant right, other than a successor described in paragraph (c) or (d) of this subsection, who is not an affiliate of a declarant, is subject to all obligations and liabilities imposed by KRS 381.9101 to 381.9207 or the declaration:
      1. On a declarant which relate to his or her exercise or nonexercise of special declarant rights; or
      2. On his or her transferor, other than:
        1. Misrepresentations by any previous declarant;
        2. Warranty obligations on improvements made by any previous declarant, or made before the condominium was created;
        3. Breach of any fiduciary obligation by any previous declarant or his or her appointees to the executive board; or
        4. Any liability or obligation imposed on the transferor as a result of the transferor’s acts or omissions after the transfer;
    3. A successor to only a right reserved in the declaration to maintain models, sales offices, and signs, if he or she is not an affiliate of a declarant, shall not exercise any other special declarant right, and is not subject to any liability or obligation as a declarant; and
    4. A successor to all special declarant rights held by his or her transferor who is not an affiliate of that declarant and who succeeded to those rights pursuant to a deed in lieu of foreclosure or a judgment or instrument conveying title to units under subsection (3) of this section, may declare his or her intention in a recorded instrument to hold those rights solely for transfer to another person. Thereafter, until transferring all special declarant rights to any person acquiring title to any unit owned by the successor, or until recording an instrument permitting exercise of all those rights, that successor shall not exercise any of those rights other than a right held by his or her transferor to control the executive board in accordance with KRS 381.9169(4) for the duration of any period of declarant control, and any attempted exercise of those rights is void. So long as a successor declarant may not exercise special declarant rights under this subsection, he or she is not subject to any liability or obligation as a declarant other than liability for his or her acts and omissions under KRS 381.9169(4).
  6. Nothing in this section subjects any successor to a special declarant right to any claims against or other obligations of a transferor declarant, other than claims and obligations arising under KRS 381.9101 to 381.9207 or the declaration.

History. Enact. Acts 2010, ch. 97, § 36, effective January 1, 2011.

381.9173. Bylaws.

  1. The bylaws of the association shall provide for:
    1. The number of members of the executive board and the titles of the officers of the association;
    2. Election by the executive board of a president, treasurer, secretary, and any other officers of the association the bylaws specify;
    3. The qualifications, powers and duties, terms of office, and manner of electing and removing executive board members and officers and filling vacancies;
    4. Which, if any, of its powers the executive board or officers may delegate to other persons or to a managing agent;
    5. Which of its officers may prepare, execute, certify, and record amendments to the declaration on behalf of the association; and
    6. The method of amending the bylaws.
  2. Subject to the provisions of the declaration, the bylaws may provide for any other matters the association deems necessary and appropriate.

History. Enact. Acts 2010, ch. 97, § 37, effective January 1, 2011.

381.9175. Upkeep of condominium — Expenses and income in connection with real estate subject to development rights.

  1. Except as provided in subsection (2) of this section, KRS 381.9187(6), or as otherwise provided by the declaration, the association is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for maintenance, repair, and replacement of his or her unit. Each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through his or her unit reasonably necessary for those purposes. If damage is inflicted on the common elements, or on any unit through which access is taken, the unit owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair thereof.
  2. In addition to the liability that a declarant as a unit owner has under KRS 381.9101 to 381.9207 , the declarant alone is liable for all expenses in connection with real estate subject to development rights. No other unit owner and no other portion of the condominium is subject to a claim for payment of those expenses. Unless the declaration provides otherwise, any income or proceeds from real estate subject to development rights inures to the declarant.

History. Enact. Acts 2010, ch. 97, § 38, effective January 1, 2011; 2012, ch. 99, § 13, effective April 11, 2012.

381.9177. Meetings of the association.

A meeting of the association shall be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by unit owners having twenty percent (20%), or any lower percentage specified in the bylaws, of the votes in the association. Not less than ten (10) days nor more than sixty (60) days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting shall state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove a director or officer.

History. Enact. Acts 2010, ch. 97, § 39, effective January 1, 2011.

381.9179. Quorums.

  1. Unless the bylaws provide otherwise, a quorum is deemed present throughout any meeting of the association if persons entitled to cast ten percent (10%) of the votes which may be cast for election of the executive board are present in person or by proxy at the beginning of the meeting.
  2. Unless the bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the executive board if persons entitled to cast fifty percent (50%) of the votes on that board are present at the beginning of the meeting.

History. Enact. Acts 2010, ch. 97, § 40, effective January 1, 2011; 2012, ch. 99, § 6, effective April 11, 2012.

381.9181. Voting — Proxies.

  1. If only one (1) of the multiple owners of a unit is present at a meeting of the association, he or she is entitled to cast all the votes allocated to that unit. If more than one (1) of the multiple owners of a unit are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners, unless the declaration expressly provides otherwise. There is majority agreement if any one (1) of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.
  2. Votes allocated to a unit may be cast pursuant to proxy duly executed by a unit owner. If a unit is owned by more than one (1) person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section, except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one (1) year after its date, unless it specifies a shorter term.
  3. If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units:
    1. Subsections (1) and (2) of this section apply to lessees as if they were unit owners;
    2. Unit owners who have leased their units to other persons shall not cast votes on those specified matters;
    3. Lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were unit owners; and
    4. Unit owners shall also be given notice, as provided in KRS 381.9177 , of all meetings at which lessees may be entitled to vote.
  4. No votes allocated to a unit owned by the association may be cast.

History. Enact. Acts 2010, ch. 97, § 41, effective January 1, 2011.

381.9183. Tort and contract liability.

  1. Neither the association nor any unit owner except the declarant shall be liable for that declarant’s torts in connection with any part of the condominium which that declarant has the responsibility to maintain.
  2. An action alleging a wrong done by the association shall be brought against the association and not against any unit owner.
  3. If the wrong occurred during any period of declarant control and the association gives the declarant reasonable notice of and an opportunity to defend against the action, the declarant who then controlled the association shall be liable to the association or to any unit owner:
    1. For all tort losses not covered by insurance suffered by the association or that unit owner; and
    2. For all costs which the association would not have incurred but for a breach of contract or other wrongful act or omission.
  4. Whenever the declarant is liable to the association under this section, the declarant shall be liable for all litigation expenses, including reasonable attorneys fees, incurred by the association.
  5. Any statute of limitation affecting the association’s right of action under this section is tolled until the period of declarant control terminates. A unit owner is not precluded from bringing an action contemplated by this section because he or she is a unit owner or a member or officer of the association. Liens resulting from judgments against the association shall be governed by KRS 381.9195 .

History. Enact. Acts 2010, ch. 97, § 42, effective January 1, 2011.

381.9185. Conveyance or encumbrance of common elements.

  1. Portions of the common elements may be conveyed or subjected to a lien or security interest by the association if persons entitled to cast at least eighty percent (80%) of the votes in the association, including eighty percent (80%) of the votes allocated to units not owned by a declarant, or any larger percentage the declaration specifies, agree to that action; however, all the owners of units to which any limited common element is allocated shall agree in order to convey that limited common element or subject it to a lien or security interest. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential uses. Proceeds of the sale are an asset of the association.
  2. An agreement to convey common elements or subject them to a lien or security interest shall be evidenced by the execution of an agreement, or ratifications thereof, in the same manner as a deed, by the requisite number of unit owners. The agreement shall specify a date after which the agreement will be void unless recorded before that date. The agreement and all ratifications thereof shall be recorded in every county in which a portion of the condominium is situated, and shall be effective only upon recordation.
  3. The association, on behalf of the unit owners, may contract to convey common elements, or subject them to a lien or security interest, but the contract is not enforceable against the association until approved pursuant to subsections (1) and (2) of this section. Thereafter, the association has all powers necessary and appropriate to effect the conveyance or encumbrance, including the power to execute deeds or other instruments.
  4. Any purported conveyance, encumbrance, judicial sale, or other voluntary transfer of common elements, unless made pursuant to this section, shall be void.
  5. A conveyance or encumbrance of common elements pursuant to this section shall not deprive any unit of its rights of access and support.
  6. Unless the declaration otherwise provides, a conveyance or encumbrance of common elements pursuant to this section does not affect the priority or validity of pre-existing encumbrances.

History. Enact. Acts 2010, ch. 97, § 43, effective January 1, 2011.

381.9187. Insurance.

  1. Commencing not later than the time of the first conveyance of a unit to a person other than a declarant, the association shall maintain, to the extent reasonably available:
    1. Property insurance on the common elements insuring against fire and extended coverage perils and such other risks as may be determined by the association. The total amount of insurance after application of any deductibles shall be not less than one hundred percent (100%) of the actual cash value of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, and other items normally excluded from property policies; and
    2. Liability insurance, including medical payments insurance, in an amount determined by the executive board but not less than any amount specified in the declaration, covering all occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the common elements.
  2. If the insurance described in subsection (1) of this section is not reasonably available, the association shall immediately cause notice of that fact to be hand-delivered or sent prepaid by United States mail to all unit owners. The declaration may require the association to carry any other insurance, and the association may carry any other insurance it deems appropriate to protect the association or the unit owners.
  3. Insurance policies carried pursuant to subsection (1) of this section shall provide that:
    1. Each unit owner is an insured person under the policy with respect to liability arising out of his or her interest in the common elements or membership in the association;
    2. The insurer waives its right to subrogation under the policy against any unit owner or member of his or her household;
    3. No act or omission by any unit owner, unless acting within the scope of his or her authority on behalf of the association, will void the policy or be a condition to recovery under the policy; and
    4. If, at the time of a loss under the policy, there is other insurance in the name of a unit owner covering the same risk covered by the policy, the association’s policy provides primary insurance.
  4. Any loss covered by the property policy under subsection (1) of this section shall be adjusted with the association, but the insurance proceeds for that loss are payable to any insurance trustee designated for that purpose, or otherwise to the association, and not to any mortgagee. The insurance trustee or the association shall hold any insurance proceeds in trust for unit owners and lienholders as their interests may appear. Subject to subsection (6) of this section, the proceeds shall be disbursed first for the repair or restoration of the damaged property, and unit owners and lienholders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored, or the condominium is terminated.
  5. An insurance policy issued to the association shall not prevent a unit owner from obtaining insurance for his or her own benefit.
  6. Disposition of insurance proceeds shall be made as follows:
    1. Any portion of the condominium for which insurance is required under this section and which is damaged or destroyed shall be repaired or replaced promptly by the association unless:
      1. The condominium is terminated;
      2. Repair or replacement would be illegal under any state statute or local health or safety ordinance; or
      3. Eighty percent (80%) of the unit owners, including every owner of a unit or assigned limited common element which will not be rebuilt, vote not to rebuild. The cost of repair or replacement in excess of insurance proceeds and reserves shall be a common expense;
    2. If the entire condominium is not repaired or replaced:
      1. The insurance proceeds attributable to the damaged common elements shall be used to restore the damaged area to a condition compatible with the remainder of the condominium;
      2. The insurance proceeds attributable to units and limited common elements which are not rebuilt shall be distributed to the owners of those units and the owners of the units to which those limited common elements were allocated, or to lienholders, as their interests may appear; and
      3. The remainder of the proceeds shall be distributed to all the unit owners or lienholders, as their interests may appear, in proportion to the common element interests of all the units. If the unit owners vote not to rebuild any unit, that unit’s allocated interests are automatically reallocated upon the vote as if the unit had been acquired by eminent domain under KRS 381.9113 , and the association shall promptly prepare, execute, and record an amendment to the declaration reflecting the reallocations; and
    3. Notwithstanding the provisions of this subsection, KRS 381.9157 governs the distribution of insurance proceeds if the condominium is terminated.
  7. The provisions of this section may be varied or waived in the case of a condominium all of whose units are restricted to nonresidential use.

History. Enact. Acts 2010, ch. 97, § 44, effective January 1, 2011; 2012, ch. 99, § 7, effective April 11, 2012.

Legislative Research Commission Note.

(4/11/2012). In subsection (4) of this statute, a reference to “subsection (7)” has been changed to read “subsection (6),” in conformity with the renumbering of subsections under 2012 Ky. Acts ch. 99, sec. 7. The Reviser of Statutes has made this correction of a manifest clerical or typographical error under KRS 7.136(1).

381.9189. Surplus funds.

Unless otherwise provided in the declaration, any surplus funds of the association remaining after payment of or provision for common expenses and any prepayment of reserves may be paid to the unit owners in proportion to their common expense liabilities or credited to them to reduce their future common expense assessments.

History. Enact. Acts 2010, ch. 97, § 45, effective January 1, 2011.

381.9191. Assessments for common expenses.

  1. Until the association makes a common expense assessment, the declarant shall pay all common expenses. After any assessment has been made by the association, assessments shall be made at least annually and based on a budget adopted at least annually by the association.
  2. Except for assessments under subsections (3), (4), and (5) of this section, all common expenses shall be assessed against all the units in accordance with the allocations set forth in the declaration pursuant to KRS 381.9137(1). Any past due common expense assessment or installment thereof shall bear interest at the rate established by the association not exceeding eighteen percent (18%) per year.
  3. To the extent required by the declaration:
    1. Any common expense associated with the maintenance, repair, or replacement of a limited common element shall be assessed against the units to which that limited common element is assigned, equally, or in any other proportion that the declaration provides;
    2. Any common expense or portion thereof benefiting fewer than all of the units shall be assessed exclusively against the units benefited; and
    3. The costs of insurance shall be assessed in proportion to risk and the costs of utilities shall be assessed in proportion to usage.
  4. Assessments may be made to pay a judgment against the association and, if made, shall only be made against the units in the condominium at the time the judgment was entered, in proportion to their common expense liabilities.
  5. If any common expense is caused by the misconduct of any unit owner, the association may assess that expense exclusively against his or her unit.
  6. If common expense liabilities are reallocated, common expense assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated common expense liabilities.

History. Enact. Acts 2010, ch. 97, § 46, effective January 1, 2011.

381.9193. Lien for assessments.

  1. The association shall have a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due and, if the assessment is payable in installments, the lien shall be for the full amount of the assessment at the time the first installment becomes due. The association’s lien may be foreclosed in like manner as a mortgage on real estate. Unless the declaration otherwise provides, fees, charges, late charges, reasonable collection costs, attorney fees, fines, and interest charged pursuant to KRS 381.9167(1)(j) to (l), shall be secured by the lien and enforceable as assessments under this section.
  2. A lien under this section shall take priority over all other liens and encumbrances on a unit, except:
    1. Liens and encumbrances recorded before the recordation of the declaration;
    2. A mortgage on the unit recorded before the date on which the assessment sought to be enforced became delinquent; and
    3. Liens for real estate taxes and other governmental assessments or charges against the unit.
  3. Unless the declaration otherwise provides, if two (2) or more associations have liens for assessments created at any time on the same real estate, those liens shall have equal priority.
  4. Recording of the declaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for assessment under this section shall be required.
  5. A lien for unpaid assessments shall be extinguished unless proceedings to enforce the lien are instituted within five (5) years after the full amount of the assessments becomes due.
  6. Nothing in this section shall be construed to prohibit actions or suits to recover sums for which subsection (1) of this section creates a lien or to prohibit an association from taking a deed in lieu of foreclosure.
  7. A judgment or decree in any action brought under this section shall include costs and reasonable attorney’s fees for the prevailing party.
  8. The association shall, upon written request, provide a unit owner a recordable statement setting forth the amount of unpaid assessments against his or her unit. The statement shall be delivered within ten (10) business days after receipt of the request and shall be binding on the association, the executive board, and every unit owner.

History. Enact. Acts 2010, ch. 97, § 47, effective January 1, 2011.

381.9195. Other liens affecting the condominium.

  1. Except as provided in subsection (2) of this section, a judgment for money against the association, if recorded, shall not be a lien on the common elements but shall be a lien in favor of the judgment lienholder against all of the units in the condominium at the time the judgment was entered. No other property of a unit owner shall be subject to the claims of creditors of the association.
  2. If the association has granted a lien or security interest in the common elements to a creditor of the association pursuant to KRS 381.9185 , the holder of that lien or security interest shall exercise its right against the common elements before its judgment lien on any unit may be enforced.
  3. Whether perfected before or after the creation of the condominium, if a lien other than a mortgage, including a judgment lien or lien securing the obligation to pay for work performed or materials supplied before creation of the condominium, becomes effective against two (2) or more units, the unit owner of an affected unit may pay to the lienholder the amount of the lien attributable to his or her unit, and the lienholder, upon receipt of payment, shall promptly deliver a release of the lien covering that unit. The amount of the payment shall be proportionate to the ratio which that unit owner’s common expense liability bears to the common expense liabilities of all unit owners whose units are subject to the lien. After payment, the association shall not assess or have a lien against that unit owner’s unit for any portion of the common expenses incurred in connection with that lien.
  4. A judgment against the association shall be indexed in the name of the condominium and the association and, when so indexed, shall be notice of the lien against the units.

History. Enact. Acts 2010, ch. 97, § 48, effective January 1, 2011.

381.9197. Association records — Financial report.

  1. The association shall keep financial records sufficiently detailed to enable the association to comply with KRS 381.9203 and, except for the statement of cash receipts and disbursements which shall be kept on a cash basis, all financial statements shall be prepared in accordance with generally accepted accounting principles. All financial and other records shall be made reasonably available for examination by any unit owner and his or her authorized agents.
  2. Not later than one hundred fifty (150) days after the end of the fiscal year, or annually on a date provided in the declaration or bylaws, the association shall cause to be prepared by an independent accountant or certified public accountant a financial report for the preceding fiscal year. No later than thirty (30) days after the financial report is prepared and received by the executive board, the association shall make it available for examination by any unit owner and, upon request and payment of a reasonable fee, shall provide a unit owner with a copy of the financial report.
  3. The type of financial report the association shall have prepared under this section shall be determined as follows:
    1. An association with total annual revenues of less than one hundred thousand dollars ($100,000) shall have prepared a financial statement of cash receipts and disbursements that disclose all sources of income and expenses by account and classification;
    2. An association with total annual revenues of at least one hundred thousand dollars ($100,000) but less than two hundred fifty thousand dollars ($250,000) shall have prepared a financial report under the standards of a compilation by a certified public accountant;
    3. An association with total annual revenues of at least two hundred fifty thousand dollars ($250,000) but less than five hundred thousand dollars ($500,000) shall have prepared a financial report under the standards of a review by a certified public accountant; and
    4. An association with total annual revenues of five hundred thousand dollars ($500,000) or greater shall have prepared a financial report under the standards of an audit by a certified public accountant.

The executive board of an association, in its sole discretion, may elect to have the financial report required by this subsection prepared in accordance with a higher standard of care than required for that association’s annual revenue level.

History. Enact. Acts 2010, ch. 97, § 49, effective January 1, 2011; 2012, ch. 99, § 8, effective April 11, 2012.

381.9199. Association as trustee.

With respect to a third person dealing with the association in the association’s capacity as a trustee:

  1. The existence of trust powers and their proper exercise by the association may be assumed without inquiry;
  2. A third person is not bound to inquire whether the association has power to act as trustee or is properly exercising trust powers;
  3. A third person, without actual knowledge that the association is exceeding or improperly exercising its powers, is fully protected in dealing with the association as if it possessed and properly exercised the powers it purports to exercise; and
  4. A third person is not bound to ensure the proper application of trust assets paid or delivered to the association in its capacity as trustee.

History. Enact. Acts 2010, ch. 97, § 50, effective January 1, 2011.

Protection of Condominium Purchasers

381.9201. Applicability of KRS 381.9201, 381.9205, and 381.9207 — Modification or waiver by agreement — Certificate not required in certain cases.

  1. This section and KRS 381.9205 and 381.9207 apply to all units subject to KRS 381.9101 to 381.9207 , except as provided in subsection (2) of this section or as modified or waived by agreement of purchasers of units in a condominium in which all units are restricted to nonresidential use.
  2. The certificate referred to in KRS 381.9203 shall not be required in the case of:
    1. A gratuitous disposition of a unit;
    2. A disposition pursuant to court order;
    3. A disposition by a government or governmental agency;
    4. A disposition by foreclosure or deed in lieu of foreclosure;
    5. A disposition to a person in the business of selling real estate who intends to offer those units to purchasers, and where the purchaser has modified or waived the requirements of KRS 381.9203 by agreement; or
    6. A disposition that may be canceled at any time and for any reason by the purchaser without penalty.

History. Enact. Acts 2010, ch. 97, § 51, effective January 1, 2011; 2012, ch. 99, § 9, effective April 11, 2012.

381.9203. Documentation to be furnished by seller of unit — Certificate.

  1. Except as provided in KRS 381.9201(2), a seller of a unit shall furnish to a purchaser or purchaser’s agent before execution of any contract for sale of a unit, or otherwise before conveyance, a copy of the declaration, other than the plats and plans, and a copy of the bylaws, the rules or regulations of the association, and a certificate, current to the date of issuance and signed and dated by the association’s manager or authorized agent, containing:
    1. A statement disclosing the effect on the proposed disposition of any right of first refusal or other restraint on the free alienability of the unit;
    2. A statement setting forth the amount of the monthly common expense assessment and any unpaid common expense, emergency assessment, or special assessment currently due and payable from the selling unit owner;
    3. A statement of any other fees payable by unit owners;
    4. A statement of any capital expenditures anticipated by the association for the current and, if known, next two (2) fiscal years;
    5. A statement of the amount of any reserves for capital expenditures, if any, and of any portions of those reserves designated by the association for any specified projects;
    6. The most recent regularly prepared balance sheet and income and expense statement, if any, of the association;
    7. The current operating budget of the association;
    8. The date of the most current financial report prepared for the association pursuant to KRS 381.9197 ;
    9. A statement of any unsatisfied judgments against the association, the status of any pending suits in which the association is a defendant, or any pending suits in which the association is a named party and the amount in dispute or contest is more than ten thousand dollars ($10,000);
    10. A statement describing any insurance coverage maintained by the association or an attachment of a certificate of insurance issued to the association; and
    11. If any portion of the condominium is situated upon a leasehold estate, a statement of the remaining term of any leasehold estate affecting the condominium and the provisions governing any extension or renewal thereof.
  2. The association shall, within ten (10) days after receipt of a written request by a unit owner, furnish a certificate containing the information necessary to enable the unit owner to comply with subsection (1) of this section. A unit owner or unit owner’s agent providing a purchaser with the certificate issued pursuant to this subsection shall not be liable to the purchaser for any erroneous information provided by the association and included in the certificate.
  3. A unit owner or unit owner’s agent shall not be liable to a purchaser for the failure or delay of the association to provide the certificate in a timely manner, but the sales contract is voidable by the purchaser until the certificate has been provided and for five (5) days thereafter or until conveyance, whichever first occurs.
  4. An association may not deny the validity of any statement in the certificate.
  5. Failure to provide a certificate does not void a deed to a purchaser.

History. Enact. Acts 2010, ch. 97, § 52, effective January 1, 2011; 2012, ch. 99, § 10, effective April 11, 2012.

381.9205. Release of liens.

Before conveying real estate to the association, the declarant shall have that real estate released from all liens, the foreclosure of which would deprive unit owners of any right of access to or easement of support of their units.

History. Enact. Acts 2010, ch. 97, § 53, effective January 1, 2011.

381.9207. Declarant’s obligation to complete and restore.

  1. The declarant shall complete all improvements labeled “MUST BE BUILT” on plats or plans prepared pursuant to KRS 381.9141 .
  2. The declarant is subject to liability for the prompt repair and restoration, to a condition compatible with the remainder of the condominium, of any portion of the condominium affected by the exercise of rights reserved or created by KRS 381.9143 , 381.9145 , 381.9147 , 381.9149 , and 381.9153 .

History. Enact. Acts 2010, ch. 97, § 54, effective January 1, 2011.

Mineral Deeds

381.930. Purposes of KRS 381.935 to 381.945.

The purposes of KRS 381.935 to 381.945 are as follows:

  1. To facilitate and require the demonstration of a clear understanding between the owners of surface and mineral estates in land concerning their respective rights to use and occupy or injure the surface of the land;
  2. To protect the security of titles to land and improvements thereto;
  3. To promote the free alienability of land;
  4. To prevent hardship and injustice to surface or mineral owners arising from uncertainty of the law;
  5. To promote the conservation and the full and efficient use of all natural resources of the state, including the land, the making of improvements to the land, the growth of agriculture, the development of new industry and the general economic well-being of the state and its people;
  6. To codify a rule of construction for mineral deeds relating to coal extraction so as to implement the intention of the parties at the time the instrument was created; and
  7. To foster certainty and uniformity in the operation of the law.

History. Enact. Acts 1984, ch. 28, § 1, effective July 13, 1984.

NOTES TO DECISIONS

Cited:

Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

Research References and Practice Aids

Journal of Mineral Law & Policy.

Comments, Akers v. Baldwin: The Broad Form Deed Dilemma Revisited, 4 J.M.L & P. 213 (1988).

Northern Kentucky Law Review.

Greenwell, On the Constitutionality of Kentucky’s Mineral Deed Act, 13 N. Ky. L. Rev. 219 (1986).

Note, Ward v. Harding: Kentucky Strips Miners of Dominate Rights, Burying a Century of Litigation, 21 N. Ky. L. Rev. 649 (1994).

381.935. Definitions.

For the purpose of KRS 381.940 , “method” and “methods” mean underground, surface, auger, or open pit mining and nothing in KRS 381.940 shall be interpreted to adversely affect the use of modern equipment or machinery with respect to mining methods permitted under KRS 381.940.

History. Enact. Acts 1984, ch. 28, § 3, effective July 13, 1984.

Research References and Practice Aids

Journal of Mineral Law & Policy.

Comments, Akers v. Baldwin: The Broad Form Deed Dilemma Revisited, 4 J. M. L. & P. 213 (1988).

Northern Kentucky Law Review.

Greenwell, On the Constitutionality of Kentucky’s Mineral Deed Act, 13 N. Ky. L. Rev. 219 (1986).

381.940. Rules of construction for mineral deeds relating to coal extraction.

In any instrument heretofore or hereafter executed purporting to sever the surface and mineral estates or to grant a mineral estate or to grant a right to extract minerals, which fails to state or describe in express and specific terms the method of coal extraction to be employed, or where said instrument contains language subordinating the surface estate to the mineral estate, it shall be held, in the absence of clear and convincing evidence to the contrary, that the intention of the parties to the instrument was that the coal be extracted only by the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed, and that the mineral estate be dominant to the surface estate only for the purposes of coal extraction by the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed.

History. Enact. Acts 1984, ch. 28, § 2, effective July 13, 1984.

Compiler’s Notes.

This section was declared unconstitutional in Akers v. Baldwin, 736 S.W.2d 294 ( Ky. 1987 ).

NOTES TO DECISIONS

1.Constitutionality.

By enacting this section, the General Assembly has arbitrarily determined the rights of the parties and their successors to past transactions; therefore, this section is unconstitutional as clear intrusion into judicial power. Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

2.Commonly Used Extraction Method.

Where deed which conveyed land reserved certain mineral rights to grantor and contained no express or specific terms in pertaining to the method of coal extraction to be used and as there was no clear and convincing evidence to the contrary, it had to be held that the intention of the parties was that the coal was to be extracted only by the methods commonly used in the area affected at the time the instrument was executed, and the mineral estate was dominant to the surface estate only for the commonly known methods of commercial coal extraction, that is, for underground mining, for although there was some slight history of surface pit mining, there was no history of strip mining that would be considered commonly known to be used in the area for commercial coal extraction. United States v. Stearns Co., 595 F. Supp. 808, 1984 U.S. Dist. LEXIS 22919 (E.D. Ky. 1984 ).

3.Limiting Clauses in Deed.

Where clauses in deed limited the grantor mineral owner’s rights to disturb the surface estate, required surface supports during underground mining, prohibited hydraulic mining (a form of strip mining), restricted the destruction of timber, and specified that all mining tunnels must be open for inspection by government agents, the provisions indicated that the 1937 deed was not intended to reserve for grantor strip mining rights and was not equivalent to the broad form deeds discussed in Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).United States v. Stearns Co., 949 F.2d 223, 1991 U.S. App. LEXIS 27072 (6th Cir. Ky. 1991 ).

4.Broad Form Deeds.

In Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ), the Kentucky Supreme Court was overruling only that part of Commerce Union Bank v. Kinkade, 540 S.W.2d 861, 1976 Ky. LEXIS 37 ( Ky. 1976 ), cert. denied, 430 U.S. 915, 97 S. Ct. 1326, 51 L. Ed. 2d 593, 1977 U.S. LEXIS 1036 (1977), which discussed broad form deeds and the status of the mineral rights under those deeds. United States v. Stearns Co., 949 F.2d 223, 1991 U.S. App. LEXIS 27072 (6th Cir. Ky. 1991 ).

Cited:

United States v. Stearns Coal & Lumber Co., 816 F.2d 279, 1987 U.S. App. LEXIS 5177 (6th Cir. 1987), cert. denied, Stearns Co. v. United States, 484 U.S. 953, 108 S. Ct. 344, 98 L. Ed. 2d 370, 1987 U.S. LEXIS 4772 (1987); United States v. Stearns Co., 873 F.2d 134, 1989 U.S. App. LEXIS 5670 (6th Cir. 1989).

Research References and Practice Aids

Journal of Mineral Law & Policy.

Comments, Akers v. Baldwin: The Broad Form Deed Dilemma Revisited, 4 J. M. L. & P. 213 (1988).

Northern Kentucky Law Review.

Greenwell, On the Constitutionality of Kentucky’s Mineral Deed Act, 13 N. Ky. L. Rev. 219 (1986).

Note, Ward v. Harding: Kentucky Strips Miners of Dominate Rights, Burying a Century of Litigation, 21 N. Ky. L. Rev. 649 (1994).

381.945. Written agreement in deed directing how surface to be reclaimed.

In any deed in which the minerals are severed from the surface, the present owners of the surface rights may enter into a written agreement directing how the surface shall be reclaimed, and how the property shall be left after the extraction of the minerals, and in compliance with federal and state rules and regulations.

History. Enact. Acts 1984, ch. 28, § 4, effective July 13, 1984.

NOTES TO DECISIONS

Cited:

Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

Research References and Practice Aids

Journal of Mineral Law & Policy.

Comments, Akers v. Baldwin: The Broad Form Deed Dilemma Revisited, 4 J. M. L. & P. 213 (1988).

Northern Kentucky Law Review.

Greenwell, On the Constitutionality of Kentucky’s Mineral Deed Act, 13 N. Ky. L. Rev. 219 (1986).

Penalties

381.990. Penalties.

  1. Any officer who certifies an abstract in violation of KRS 381.240 or 381.250 shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each offense. In addition to such fine, the officer shall be liable personally and on his official bond to the person in possession of the lands, and to any and all other persons aggrieved thereby, to an action for damages sustained by such persons by reason of such certificate.
  2. Any person who violates any of the provisions of KRS 381.690 to 381.710 shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each offense.
  3. Any person who fails to comply with the provisions of KRS 381.780 shall be guilty of a misdemeanor and shall be fined twenty-five dollars ($25) for each offense. Each day that the violation continues shall constitute a separate offense.
  4. Any person or corporation who violates KRS 381.697 shall be subject to a fine of not less than twenty-five dollars ($25) nor more than two hundred fifty dollars ($250).
  5. Any person who fails to comply with any of the provisions of KRS 381.860 may be fined not more than one hundred dollars ($100) per day for each offense, and the county attorney and the Attorney General may prosecute the violator. In addition to the fine, the violator may be liable personally to any and all persons aggrieved by the violation and subject to an action for damages, plus court costs and plaintiffs’ attorneys’ fees.

History. 2379a-3, 2741p-4: amend. Acts 1970, ch. 282, § 1(4); 1972, ch. 284, § 3; 1988, ch. 115, § 2, effective July 15, 1988.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Establish Title by Adverse Possession, Form 303.01.

CHAPTER 382 Conveyances and Encumbrances

382.010. Estate — Owner may convey — When deed or will necessary.

The owner may convey any interest in real property not in the adverse possession of another; but no estate of inheritance or freehold, or for a term of more than one (1) year, in real property shall be conveyed, except by deed or will.

History. 490.

NOTES TO DECISIONS

1.Oral Agreements.

An oral agreement by the owner of land to permit another to have the use, rents and profits of the land for the latter’s life, in consideration of paying the taxes and maintaining the property, is not enforceable whether regarded as a lease for life or a gift of a life estate. Cannon v. Carr, 292 Ky. 793 , 168 S.W.2d 21, 1943 Ky. LEXIS 740 ( Ky. 1943 ).

2.Conveyable Interests.

When will postponed period of distribution of testator’s estate to his children, a devisee could sell his undivided interest at any time. Roederer v. Hess, 112 Ky. 807 , 66 S.W. 1012, 23 Ky. L. Rptr. 2165 , 1902 Ky. LEXIS 231 ( Ky. 1902 ).

An option upon real property is such an estate as is subject to sale and mortgage. Roberts v. Kinnaird, 148 Ky. 75 , 146 S.W. 35, 1912 Ky. LEXIS 398 ( Ky. 1912 ). See Yellow Chief Coal Co.'s Trustee v. Johnson, 166 Ky. 663 , 179 S.W. 599, 1915 Ky. LEXIS 746 ( Ky. 1915 ).

Person who took a defeasible fee and holders of contingent remainder may join in deed and convey a good title. Goodman v. Carpenter, 189 Ky. 83 , 224 S.W. 676, 1920 Ky. LEXIS 379 ( Ky. 1920 ).

Grantor of land for school, with reversion to grantor if land was ever used for any other purpose, could convey her vested reversionary right. Fayette County Board of Education v. Bryan, 263 Ky. 61 , 91 S.W.2d 990, 1936 Ky. LEXIS 133 ( Ky. 1936 ). (See KRS 381.218 abolishing possibility of reverter and substituting right of entry.).

The conveyance of a fee on a condition subsequent creates a possibility of a reversion in the grantor or his heirs. Fayette County Board of Education v. Bryan, 263 Ky. 61 , 91 S.W.2d 990, 1936 Ky. LEXIS 133 ( Ky. 1936 ). (See KRS 381.218 abolishing possibility of reverter and substituting right of entry.).

Whatever interest legatee did have in land could be conveyed, and was subject to attachment and execution and sale. Fischer v. Porter, 263 Ky. 372 , 92 S.W.2d 368, 1936 Ky. LEXIS 183 ( Ky. 1936 ).

An adverse possessor may sell or devise his estate in land. Howard v. Mitchell, 268 Ky. 429 , 105 S.W.2d 128, 1936 Ky. LEXIS 775 ( Ky. 1936 ).

An estate in land is the interest one has, or what he can dispose of or pass on to others; a title to land is the evidence of his right, the extent of his interest, or the means whereby he is able to assert, maintain or continue his possession. Howard v. Mitchell, 268 Ky. 429 , 105 S.W.2d 128, 1936 Ky. LEXIS 775 ( Ky. 1936 ).

It is the policy in this state to make all interests in or claims to real estate the subject of sale or devise by will. Newsom v. Barnes, 282 Ky. 264 , 138 S.W.2d 475, 1940 Ky. LEXIS 164 ( Ky. 1940 ).

Whether an interest by devise in lands was vested or contingent, it was vendible, and subject to sale for satisfaction of debts. Overton v. Means, 11 Ky. Op. 1, 2 Ky. L. Rptr. 211 , 1881 Ky. LEXIS 94 (Ky. Ct. App. Feb. 1, 1881).

A contingent remainder in land was a vendible estate, and could be conveyed or mortgaged by the contingent remainderman. White's Trustee v. White, 86 Ky. 602 , 7 S.W. 26, 9 Ky. L. Rptr. 757 , 1888 Ky. LEXIS 20 ( Ky. 1888 ).

An option upon real property was such an estate as was subject to sale and mortgage. Bank of Louisville v. Baumeister, 87 Ky. 6 , 7 S.W. 170, 9 Ky. L. Rptr. 845 , 1888 Ky. LEXIS 29 ( Ky. 1888 ).

While remaindermen owned a remainder interest in the subject property, they were free to transfer their interest and were also free to encumber that interest in the property with an easement without the consent and signature of the holder of a life estate interest in the property. However, as a remainder interest, the encumbrance only became effective once the life tenancy expired. Hogg v. Hogg, 619 S.W.3d 921, 2020 Ky. App. LEXIS 124 (Ky. Ct. App. 2020).

3.— Trusts.

Where trust instrument did not prohibit, and where cestui que trust for life and remainderman were the same person, that person and trustee could by deed convey a perfect title to trust real estate. Brown v. McCommas, 195 Ky. 337 , 242 S.W. 362, 1922 Ky. LEXIS 319 ( Ky. 1922 ).

KRS 381.180 and this section authorize the subjection of every kind of estate held or possessed in trust to the debts and charges of the person to whose use or to whose benefit the trust is created. Keith v. First Nat'l Bank & Trust Co., 256 Ky. 88 , 75 S.W.2d 747, 1934 Ky. LEXIS 356 ( Ky. 1934 ) (decision prior to 1966 amendment to KRS 381.180 .).

Where testatrix devised two-thirds interest in land in trust for son until daughter attained age of 21, or her sooner death, at which time the two-thirds interest was to become the son’s property, son did not violate trust provision by conveying his interest in the property, hence forfeiture would not be declared against son’s grantee. Newsom v. Barnes, 282 Ky. 264 , 138 S.W.2d 475, 1940 Ky. LEXIS 164 ( Ky. 1940 ).

Where legal title to property was in trustee each devisee owned a beneficial interest which was vested subject to being defeated if he should die before expiration of the trust period and which each devisee could sell or assign and which was subject to execution and sale. Meade v. Rowe's Ex'r & Trustee, 298 Ky. 111 , 182 S.W.2d 30, 1944 Ky. LEXIS 845 ( Ky. 1944 ).

4.— Contingent Remainders.

A contingent remainder interest in land passed under a deed of assignment. McAllister v. Ohio Val. Banking & Trust Co., 114 Ky. 540 , 71 S.W. 509, 24 Ky. L. Rptr. 1307 , 1903 Ky. LEXIS 13 ( Ky. 1903 ).

A contingent remainder in land is a vendible estate, and may be conveyed or mortgaged by the contingent remainderman. Davis v. Willson, 115 Ky. 639 , 74 S.W. 696, 25 Ky. L. Rptr. 21 , 1903 Ky. LEXIS 142 ( Ky. 1903 ). See People's Trust Co. v. Deweese, 143 Ky. 730 , 137 S.W. 201, 1911 Ky. LEXIS 473 ( Ky. 1911 ); Fulton v. Teager, 183 Ky. 381 , 209 S.W. 535, 1919 Ky. LEXIS 520 ( Ky. 1919 ); Lindenberger v. Cornell, 190 Ky. 844 , 229 S.W. 54, 1921 Ky. LEXIS 514 ( Ky. 1921 ); Roy v. West, 194 Ky. 96 , 238 S.W. 167, 1922 Ky. LEXIS 101 ( Ky. 1922 ); Thurman v. Northwestern Mut. Life Ins. Co., 245 Ky. 281 , 53 S.W.2d 568, 1932 Ky. LEXIS 592 ( Ky. 1932 ); Cox v. Corrigan-McKinney Steel Co., 248 Ky. 426 , 58 S.W.2d 625, 1933 Ky. LEXIS 240 ( Ky. 1933 ); Hurst v. Russell, 257 Ky. 78 , 77 S.W.2d 355, 1934 Ky. LEXIS 508 ( Ky. 1934 ); Caperton v. Smith's Trustee, 268 Ky. 223 , 104 S.W.2d 440, 1937 Ky. LEXIS 437 ( Ky. 1937 ).

A contingent remainder of any kind may be devised by the contingent remainderman, subject to vesting of his interest. Caperton v. Smith's Trustee, 268 Ky. 223 , 104 S.W.2d 440, 1937 Ky. LEXIS 437 ( Ky. 1937 ).

5.— Executory Devise.

This section authorizes the conveyance of an executory devise. Stallcup v. Cronley's Trustee, 117 Ky. 547 , 78 S.W. 441, 25 Ky. L. Rptr. 1675 , 1904 Ky. LEXIS 215 ( Ky. 1904 ).

A contingent interest, or a vested defeasible one, in nature of executory devise, in lands can be the subject of sale and conveyance. Fulton v. Teager, 183 Ky. 381 , 209 S.W. 535, 1919 Ky. LEXIS 520 ( Ky. 1919 ). See Roy v. West, 194 Ky. 96 , 238 S.W. 167, 1922 Ky. LEXIS 101 ( Ky. 1922 ); Clay v. Clay, 199 Ky. 4 , 250 S.W. 829, 1923 Ky. LEXIS 788 ( Ky. 1923 ); Thurman v. Northwestern Mut. Life Ins. Co., 245 Ky. 281 , 53 S.W.2d 568, 1932 Ky. LEXIS 592 ( Ky. 1932 ).

Devisees could by joint deed convey future interests, which were held to be executory devises or shifting uses and not remainders. McWilliams v. Havely, 214 Ky. 320 , 283 S.W. 103, 1926 Ky. LEXIS 330 ( Ky. 1926 ).

An executory devise in fee, subject to defeasance, may be disposed of by will or deed. Good Samaritan Hospital v. First Presbyterian Church, 286 Ky. 462 , 151 S.W.2d 78, 1941 Ky. LEXIS 295 ( Ky. 1941 ).

“Executory interests” may be conveyed. Vittitow v. Birk, 290 Ky. 235 , 160 S.W.2d 624, 1942 Ky. LEXIS 376 ( Ky. 1942 ).

The fixed and ascertained owners of executory interest could convey an indefeasible fee. Cooper v. Cooper, 392 S.W.2d 662, 1965 Ky. LEXIS 288 ( Ky. 1965 ).

6.Nonconveyable Interests.

A homestead right is not an estate in land, but an exemption from execution and is not conveyable. Howard v. Mitchell, 268 Ky. 429 , 105 S.W.2d 128, 1936 Ky. LEXIS 775 ( Ky. 1936 ).

The conveyance of an expectancy is void. Engle v. Walters, 282 Ky. 732 , 140 S.W.2d 402, 1940 Ky. LEXIS 260 ( Ky. 1940 ).

7.Establishment of Boundary Lines.

Where there is a bona fide dispute as to location of boundary line between adjoining landowners, and they agree on dividing line and mark line or build fence thereon, agreement is not prohibited by statute of frauds, nor within law regulating conveyances, since parties have not undertaken to pass title but simply agreed to make certain that which they regard as uncertain. Garvin v. Threlkeld, 173 Ky. 262 , 190 S.W. 1092, 1917 Ky. LEXIS 447 ( Ky. 1917 ). See Holbrooks v. Wright, 187 Ky. 732 , 220 S.W. 524, 1919 Ky. LEXIS 390 ( Ky. 1919 ); Hill v. Kerr, 277 Ky. 105 , 125 S.W.2d 1005, 1939 Ky. LEXIS 618 ( Ky. 1939 ).

The mere establishment of a true dividing line is not a sale or transfer of land, and hence not an agreement within the statute of frauds, requiring it to be in writing and signed. Standifer v. Combs, 184 Ky. 708 , 212 S.W. 921, 1919 Ky. LEXIS 124 ( Ky. 1919 ).

8.Acts of Conveyance.

Under the statutes, the courts of this state have never enforced or sanctioned parol declarations of trusts made by the owner of the legal title to anyone. Sherley v. Sherley, 97 Ky. 512 , 31 S.W. 275, 17 Ky. L. Rptr. 450 , 1895 Ky. LEXIS 223 ( Ky. 1895 ).

A mere oral agreement is of no binding force whatsoever upon the seller. Hartig v. Schrader, 190 Ky. 511 , 227 S.W. 815, 1921 Ky. LEXIS 472 ( Ky. 1921 ).

The sale of land in this state means either the execution and delivery of a conveyance therefor in the manner prescribed by statute, or entering into a binding, written contract which may be enforced in the courts. Hartig v. Schrader, 190 Ky. 511 , 227 S.W. 815, 1921 Ky. LEXIS 472 ( Ky. 1921 ).

Provision that “the owner may convey any interest in lands not in adverse possession of another” did not prevent the court by its commissioner from selling land for delinquent taxes and making a valid deed to the purchaser while lands were in the adverse possession of persons other than the owner. Flinn v. Blakeman, 254 Ky. 416 , 71 S.W.2d 961, 1934 Ky. LEXIS 90 ( Ky. 1934 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

Grantor who had reserved life estate did not make a valid conveyance of that interest by an indorsement on margin of page on which deed was recorded. Miller v. Prater, 267 Ky. 11 , 100 S.W.2d 842, 1937 Ky. LEXIS 269 ( Ky. 1937 ).

The only requisites to a valid conveyance of land were that it be in writing and sealed and delivered. Sicard v. Davis, 31 U.S. 124, 8 L. Ed. 342, 1832 U.S. LEXIS 461 (U.S. 1832).

9.— Will.

Where a will devises property to those who would otherwise take under the statutes of descent and distribution, the devisees take under the statutes and not under the will. Holoway v. Crumbaugh, 275 Ky. 377 , 121 S.W.2d 924, 1938 Ky. LEXIS 437 ( Ky. 1938 ).

Where husband and wife held land as tenants in common with right of survivorship, and husband, in his will, devised the land to wife for life but made no disposition of the remainder, wife was not deprived of her fee estate under the deed by accepting the other benefits of the will. York v. Adams, 277 Ky. 577 , 126 S.W.2d 1077, 1939 Ky. LEXIS 693 ( Ky. 1939 ).

10.— Deeds.

Delivery of deed to bank, where part of purchase price had been paid and purchaser placed in possession, was sufficient to vest purchaser with interest in the land that could be mortgaged. Roberts v. Kinnaird, 148 Ky. 75 , 146 S.W. 35, 1912 Ky. LEXIS 398 ( Ky. 1912 ).

In this jurisdiction, where title to property can be conveyed by deed but use and possession retained until a future time, it seems that delivery of deed to a third person, to be delivered to grantee at grantor’s death, can be construed to be the passing of the present interest in title of subject of deed and retention by grantor of use and possession during his life, and when deed is delivered to grantee, as between parties to it and their privies, it will relate back for purpose of vesting title to delivery of deed to third person for grantee. Kirby v. Hulette, 174 Ky. 257 , 192 S.W. 63, 1917 Ky. LEXIS 187 ( Ky. 1917 ).

When the parties to the plat dedicating a street entered upon the plat the restrictions written on the face of it, these restrictions became a part of the plat and were recordable and when recorded the restrictions on the plat might, under this section, be treated as a deed conveying an interest in lots. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

He may convey his life estate and never exercise power of sale of remainder, in which event it would die with him. Roby v. Arterburn, 269 Ky. 816 , 108 S.W.2d 873, 1937 Ky. LEXIS 672 ( Ky. 1937 ).

He may convey his life estate to one person and the remainder to another. Roby v. Arterburn, 269 Ky. 816 , 108 S.W.2d 873, 1937 Ky. LEXIS 672 ( Ky. 1937 ).

When party holding deed of life estate, with power of sale of remainder executes a deed purporting to convey a fee-simple title to the whole or any part of this property, his life estate passes because he owns that and has, under KRS 381.040 , power to convey it and the remainder passes because of the power given him in his father’s will. Roby v. Arterburn, 269 Ky. 816 , 108 S.W.2d 873, 1937 Ky. LEXIS 672 ( Ky. 1937 ).

An absolute deed is notice to heirs not joining therein that grantors are claiming as absolute owners, and the transaction is beginning of adverse possession. Sparkman v. Mocabee, 289 Ky. 324 , 158 S.W.2d 621, 1942 Ky. LEXIS 540 ( Ky. 1942 ).

The name of a grantee may be inserted anytime before or after delivery of a deed so long as it does not constitute fraud on the grantor only if the person filling in the name has authority from the grantor or is instructed by him to do so. Hill v. Hill, 299 Ky. 351 , 185 S.W.2d 245, 1945 Ky. LEXIS 403 ( Ky. 1945 ).

Where husband, after delivery to him of deed conveying land to him only, wrote in his wife’s name as a grantee, such action was not effective to vest wife with an interest in the land, since the only way he could vest any part to her was to convey it to her by deed. Hill v. Hill, 299 Ky. 351 , 185 S.W.2d 245, 1945 Ky. LEXIS 403 ( Ky. 1945 ).

11.— Exceptions.

An exception in a conveyance in favor of a stranger to the instrument gives or conveys nothing to him or to the grantee. Slone v. Kentucky West Virginia Gas Co., 289 Ky. 623 , 159 S.W.2d 993, 1942 Ky. LEXIS 611 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

An exception in a conveyance must be in favor of the grantor. Slone v. Kentucky West Virginia Gas Co., 289 Ky. 623 , 159 S.W.2d 993, 1942 Ky. LEXIS 611 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

An exception in a deed withholds from the grantee title to some existing part of the property embraced by the description, which would otherwise pass under the instrument. Slone v. Kentucky West Virginia Gas Co., 289 Ky. 623 , 159 S.W.2d 993, 1942 Ky. LEXIS 611 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

12.Construction of Instruments.

If the testator’s intention can be ascertained from the language employed in his will, that intention controls, regardless of collateral and subsidiary rules which may be employed in arriving at the intention when it is obscure. Jones v. Jones' Ex'rs, 198 Ky. 756 , 250 S.W. 92, 1923 Ky. LEXIS 559 ( Ky. 1923 ). See State Bank v. Rose's Adm'r, 219 Ky. 562 , 293 S.W. 1087, 1927 Ky. LEXIS 393 ( Ky. 1927 ).

If the intention of the parties can be determined, it will control the construction of a written instrument though it is inaptly or awkwardly expressed or out of touch with other parts of the instrument. Hall v. Meade, 244 Ky. 718 , 51 S.W.2d 974, 1932 Ky. LEXIS 504 ( Ky. 1932 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

The rule that wills must be construed, if possible, as to avoid imputing to testator an intention to die intestate as to part of his property has no application in the construction of deeds. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

Under the rule permitting and requiring a survey of the whole instrument by the court, it was determined that it was intended to be an inter partes deed and not a testamentary paper and that grantor reserved to himself a life estate in the described premises and also a similar estate to his wife if she survived him and that the interest of his two (2) sons would commence at the death of grantee and his wife. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

13.— Deeds.

If the granting clause and the habendum clause of a deed are irreconcilable, and the other parts of the deed do not make appear which the grantor intended should control, the granting clause will prevail. Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ).

Confused and ambiguous language in deed will be construed against grantor and in favor of grantee. Campbell v. Wells, 278 Ky. 209 , 128 S.W.2d 592, 1939 Ky. LEXIS 408 ( Ky. 1939 ).

Conveyances of real estate will be construed as transferring an absolute title rather than a lesser one, if the language employed is susceptible of two constructions. Campbell v. Wells, 278 Ky. 209 , 128 S.W.2d 592, 1939 Ky. LEXIS 408 ( Ky. 1939 ).

Where language in deed is ambiguous, parol evidence as to surrounding conditions may be considered by the court in ascertaining the intent of the parties. Linn v. Milliken, 279 Ky. 771 , 132 S.W.2d 62, 1939 Ky. LEXIS 347 ( Ky. 1939 ).

If the effect of an instrument is to sever the estate and invest the title to a certain part of it in another, it is a deed, regardless of what it is called. Terrill v. Kentucky Block Cannel Coal Co., 290 Ky. 35 , 160 S.W.2d 326, 1942 Ky. LEXIS 343 ( Ky. 1942 ).

Where instrument, executed by successor of grantor of 999-year coal lease to successor of grantee of lease, purported to convey all of coal to grantee forever, with a covenant of general warranty which recited a consideration of a fixed sum, and reserved no rights in coal to grantor, the instrument was a deed and not a lease. Terrill v. Kentucky Block Cannel Coal Co., 290 Ky. 35 , 160 S.W.2d 326, 1942 Ky. LEXIS 343 ( Ky. 1942 ).

If the intention of the parties is apparent from an examination of a deed from its four corners without regard to its technical and formal divisions, it will be given effect even though, in doing so, technical rules of construction will be violated. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

The rule that an habendum creating an estate contradictory or repugnant to that given in the granting clause must be rejected is not a rule of property, but is merely a rule of construction, which will be resorted to only where the court cannot determine which of the clauses was intended to be controlling. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

Recitation in deed that mineral rights “belong” to named persons, not parties to the deed, did not constitute conveyance of mineral rights to them. Flynn v. Fike, 291 Ky. 316 , 164 S.W.2d 470, 1942 Ky. LEXIS 227 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

Title to realty may not be conveyed without words of conveyance or langauge indicating an intention to convey or transfer title. Flynn v. Fike, 291 Ky. 316 , 164 S.W.2d 470, 1942 Ky. LEXIS 227 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

A grantor and those in privity with him are precluded from asserting as against the grantee and his successors anything in derogation of the deed or from denying the truth of any material fact in it. Fordson Coal Co. v. Howard, 293 Ky. 138 , 168 S.W.2d 588, 1943 Ky. LEXIS 580 ( Ky. 1943 ).

14.— — Reservation or Exceptions.

In a deed, a reservation or exception, to be effective, must be made in favor of one (1) of the grantors and not to a stranger to the deed for a reservation in favor of a stranger is of no effect even though the deed is signed and acknowledged by him. Flynn v. Fike, 291 Ky. 316 , 164 S.W.2d 470, 1942 Ky. LEXIS 227 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

A misnomer will not defeat an attempted reservation or exception. Clark v. Pauley, 291 Ky. 637 , 165 S.W.2d 161, 1942 Ky. LEXIS 284 ( Ky. 1942 ).

A reservation creates some new right in the grantor issuing out of the thing granted, while an exception withholds from the grantee title to some part of the property vested in the grantor which would otherwise pass under the deed. Clark v. Pauley, 291 Ky. 637 , 165 S.W.2d 161, 1942 Ky. LEXIS 284 ( Ky. 1942 ).

Purported “reservation” of mineral rights in a deed was actually an “exception.” Clark v. Pauley, 291 Ky. 637 , 165 S.W.2d 161, 1942 Ky. LEXIS 284 ( Ky. 1942 ).

Reservations or exceptions of doubtful meaning will be construed most strongly against the grantor. Clark v. Pauley, 291 Ky. 637 , 165 S.W.2d 161, 1942 Ky. LEXIS 284 ( Ky. 1942 ).

Where deed purported to convey entire fee simple, but at time of conveyance grantor actually owned an undivided interest in the land, “reservation” of mineral rights in favor of grantor was effective only as to undivided portion of mineral rights equal to grantor’s undivided interest in land. Clark v. Pauley, 291 Ky. 637 , 165 S.W.2d 161, 1942 Ky. LEXIS 284 ( Ky. 1942 ).

15.Rescission Prior to Delivery of Deed.

Where the homeowners executed a gift letter stating that they were conveying equity in the house, but they rescinded their gift prior to the delivery of a deed, there was no gift and the proposed donees had no interest in the subject property. Leasor v. Bailey, 714 S.W.2d 156, 1986 Ky. App. LEXIS 1117 (Ky. Ct. App. 1986), aff'd, 734 S.W.2d 462, 1987 Ky. LEXIS 228 ( Ky. 1987 ).

Cited:

Nunn v. Wright, 303 Ky. 288 , 197 S.W.2d 439, 1946 Ky. LEXIS 839 ( Ky. 1946 ); Ellis v. Ellis, 275 S.W.2d 909, 1955 Ky. LEXIS 390 ( Ky. 1955 ).

Opinions of Attorney General.

A county fiscal court cannot enact an ordinance providing for mandatory recordation by lessees of all conveyances of less than fee simple title in oil shale since the recordation provisions have no basic causal connection with the statutory purpose of conservation and preservation of natural resources and flood control set forth in subdivisions (3)(h) and (3)(i) of KRS 67.083 , and since the subject matter of land title instrument recordation is preempted by KRS Chapter 382. OAG 81-414 .

Fixture filings are to be filed in the office where a mortgage on real estate would be filed or recorded. Fixture filings are not required to be recorded with mortgages in a mortgage book, but a duplicate filing may be made in the mortgage book at the request of the secured party if the fixture filing complies with KRS Chapter 382; however, there is no statutory direction as to the chronological order of filing. OAG 87-52 .

Research References and Practice Aids

Cross-References.

Administration of trusts and estates, KRS chs. 386 to 389.

Attorneys, KRS ch. 30.

Business and financial institutions, KRS chs. 287 to 292, 299, 303 to 307.

Cities and counties, powers regarding property, KRS ch. 65.

Commerce and trade, KRS chs. 355, 359, 360, 362 to 367.

Commercial Code, filing and recording chattel mortgages, financing statements or security agreements, KRS 355.9-403.

Contracts, KRS chs. 371, 372.

Control of property of members of armed forces and veterans, KRS ch. 384.

Conveyance or mortgage of real estate where husband or wife is incompetent, KRS 392.140 , 404.050 .

Conveyances in consideration of gambling debts to be void, KRS 372.010 .

Credit, KRS chs. 376 to 380.

Deeds construed to convey buildings and appurtenances on land, KRS 381.200 .

Descent and distribution, KRS chs. 391 to 397.

Eminent domain, KRS ch. 416.

Estate may be conveyed to begin in future, KRS 381.040 .

Evidence and lost records, KRS ch. 422.

Fraudulent and preferential conveyances, KRS ch. 378.

Gifts to minors, KRS ch. 385.

Judgment in inquest proceedings to be filed with county court clerk, as notice to subsequent purchasers, KRS 202.145 .

Landlord and tenant, KRS ch. 383.

Legal notices, KRS ch. 424.

Lien for unpaid unemployment compensation contributions, KRS 341.310 .

Local or special acts not to be passed concerning estates of persons under disability or legalizing invalid instruments, Const., §§ 59(6), 59(12).

Mortgage guaranty insurance, KRS ch. 295.

Notaries and commissioners, KRS ch. 423.

Regulation of oil leases, KRS 353.020 .

Report of mortgage assignment required, KRS 132.520 .

Restrictions on use of property, KRS ch. 381.

Right of reversion may be sold, KRS 381.210 .

Sale or conveyance of land adversely held, KRS 372.070 .

Statute of frauds, KRS 371.010 .

Suit against grantors or obligors to supply lost record, KRS 422.270 .

Title to property, KRS ch. 381.

Transfer of tax claims, certificate to be filed, KRS 134.100 .

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Kentucky Law Journal.

Winn, The Examination of Titles in Kentucky, 27 Ky. L.J. 194 (1939).

Gilmer, Formalities and Requisites of a Deed in Kentucky, 43 Ky. L.J. 481 (1955).

Dukeminier, Kentucky Perpetuities Law Restated and Reformed, 49 Ky. L.J. 3 (1960).

Whiteside, Amending the Uniform Commercial Code, 51 Ky. L.J. 3 (1962).

Fitzgerald, The Crazy Quilt of Commercial Law: A Study in Legislative Patchwork, 54 Ky. L.J. 85 (1965).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Comment, In Kentucky, A Lease versus a Sale of Coal in Place, 7 N. Ky. L. Rev. 439 (1980).

382.020. Deeds of release.

Every deed of release shall be executed as deeds are executed and shall be as effectual for the purposes therein expressed, without the execution of a lease, as if a lease had been executed.

History. 492, 498.

Research References and Practice Aids

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Kentucky Law Journal.

Whiteside, Lewis, Kentucky’s Commercial Code — Some Initial Problems in Security, 50 Ky. L.J. 61 (1961).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Receipts and Releases, § 198.00.

382.030. General warranty — Words that constitute.

A covenant by a grantor in a deed, “that he will warrant the property hereby conveyed,” or words of like import, or the words “with warranty,” or “with general warranty,” in any deed, have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, would forever warrant and defend the property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of all persons whatever.

History. 493.

NOTES TO DECISIONS

1.General Warranty.

Under this section, a general warranty includes all common-law covenants. Waggener v. Howsley's Adm'r, 164 Ky. 113 , 175 S.W. 4, 1915 Ky. LEXIS 334 ( Ky. 1915 ). See Eli v. Trent, 195 Ky. 26 , 241 S.W. 324, 1922 Ky. LEXIS 265 ( Ky. 1922 ).

An unbroken covenant passes to subsequent transferees with the title, but when broken it automatically becomes a chose in action and does not pass with the transfer of title but only by express assignment. Eli v. Trent, 195 Ky. 26 , 241 S.W. 324, 1922 Ky. LEXIS 265 ( Ky. 1922 ).

There is no implied warranty in a deed containing covenants of special warranty. Kentucky River Coal Corp. v. Swift Coal & Timber Co., 221 Ky. 593 , 299 S.W. 201, 1927 Ky. LEXIS 778 ( Ky. 1927 ).

A general warranty included all common-law covenants. Butt v. Riffe, 78 Ky. 352 , 1880 Ky. LEXIS 19 ( Ky. 1880 ). See Smith v. Jones, 97 Ky. 670 , 31 S.W. 475, 17 Ky. L. Rptr. 456 , 1895 Ky. LEXIS 228 ( Ky. 1895 ).

A covenant of general warranty was sufficient to compel the grantor, before receiving the full amount of the purchase money, to pay off and discharge all outstanding unpaid liens on the property. Smith v. Jones, 97 Ky. 670 , 31 S.W. 475, 17 Ky. L. Rptr. 456 , 1895 Ky. LEXIS 228 ( Ky. 1895 ).

It had often been held by the Court of Appeals that a covenant of general warranty in a deed to land was in substance equivalent to the several special covenants in use under the common law, as that one was seized of the land sold, that he had good and perfect right to convey, that the land was free from incumbrances, that the grantee should quietly enjoy possession, and that the grantor would warrant and defend the title against all claims of all persons. Smith v. Jones, 97 Ky. 670 , 31 S.W. 475, 17 Ky. L. Rptr. 456 , 1895 Ky. LEXIS 228 ( Ky. 1895 ).

2.Warranty as to Quantity.

“With covenant of general warranty” in deed only applied to title, and did not warrant the number of acres conveyed. Burton v. Cowles' Adm'x, 156 Ky. 100 , 160 S.W. 782, 1913 Ky. LEXIS 381 ( Ky. 1913 ).

The use of the phrase “more or less” in describing a boundary line relieves a stated distance of exactness, thereby meaning that the parties are to risk the quantity of land conveyed; it also implies a waiver of warranty as to specified quantity. Salyer v. Poulos, 276 Ky. 143 , 122 S.W.2d 996, 1938 Ky. LEXIS 522 ( Ky. 1938 ).

Where deed contained covenant that grantor “is seized of a good, indefeasible estate in fee simple to the hereinafter described land,” grantee could recover for deficiency of acreage without alleging or proving an eviction. Kentucky Nat'l Park Com. v. Dennison, 281 Ky. 61 , 134 S.W.2d 973, 1939 Ky. LEXIS 9 ( Ky. 1939 ).

Where defendant purchased one tract of land from plaintiff, and an adjoining tract from group of heirs one of whom was plaintiff, and there was a deficiency of acreage in tract conveyed by plaintiff because of overlapping of tract conveyed by heirs, defendant could recover from plaintiff for deficiency notwithstanding fact that defendant knew of deficiency at time of purchasing heirs’ tract. Kentucky Nat'l Park Com. v. Dennison, 281 Ky. 61 , 134 S.W.2d 973, 1939 Ky. LEXIS 9 ( Ky. 1939 ).

3.Breach of Warranty.

To enable a vendee to recover for breach of general warranty of title, he must allege and prove that he has been evicted or that the vendor is insolvent or a nonresident. Walker v. Robinson, 163 Ky. 618 , 174 S.W. 503, 1915 Ky. LEXIS 303 ( Ky. 1915 ).

To enable a vendor to recover for breach of general warranty of title, he must allege and prove that his title be adjudged inferior in a suit at law between him and the superior title holder. Waggener v. Howsley's Adm'r, 164 Ky. 113 , 175 S.W. 4, 1915 Ky. LEXIS 334 ( Ky. 1915 ).

Covenant of title in deed to land, to which grantor does not have title and to which he does not and cannot deliver possession, is breached when the conveyance is made and cause of action accrues at once. Foxwell v. Justice, 191 Ky. 749 , 231 S.W. 509, 1921 Ky. LEXIS 387 ( Ky. 1921 ). See Eli v. Trent, 195 Ky. 26 , 241 S.W. 324, 1922 Ky. LEXIS 265 ( Ky. 1922 ).

A breach of warranty in the deed occurred immediately upon the execution of the deed since the grantor had no title in the minerals which he purported to convey and did not and could not put grantee in possession of them so consequently the warranty was immediately transformed into a chose in action and ceased to be a covenant running with the land on which a subsequent grantee could recover without assignment of the cause of action against the original warrantor. Eli v. Trent, 195 Ky. 26 , 241 S.W. 324, 1922 Ky. LEXIS 265 ( Ky. 1922 ).

A remote grantee cannot maintain action for breach of real covenant that occurred before the grant to him; the right of action is personal to him in whose time the covenant is broken, and, unless he assigns it, he is the only person that can bring suit. Eli v. Trent, 195 Ky. 26 , 241 S.W. 324, 1922 Ky. LEXIS 265 ( Ky. 1922 ).

While there are many Kentucky decisions holding that a remote grantee can recover on the original warranty, in every such case the breach occurred during the time of occupancy of the complainant, by an eviction or other act necessarily resulting in a breach. Eli v. Trent, 195 Ky. 26 , 241 S.W. 324, 1922 Ky. LEXIS 265 ( Ky. 1922 ).

An action before an eviction may be maintained on the covenant that the grantor is seized of good title, if the title is defective. Hope Syndicate v. Southland Petroleum Co., 207 Ky. 473 , 269 S.W. 517, 1925 Ky. LEXIS 115 ( Ky. 1925 ).

A vendee in possession under a general warranty deed must sue at law for any breach of warranty and may not have equitable relief of cancellation in absence of extraordinary circumstances, but a vendee not in possession, and who cannot lawfully be put in possession because vendor had no title, may sue in equity for rescission. Creech v. Jenkins, 276 Ky. 163 , 123 S.W.2d 267, 1938 Ky. LEXIS 540 ( Ky. 1938 ).

Although it is the rule that to enable a vendee to recover for the breach of a general warranty of title he must allege and prove that he has been evicted, this rule does not apply to other express covenants which have been broken. Kentucky Nat'l Park Com. v. Dennison, 281 Ky. 61 , 134 S.W.2d 973, 1939 Ky. LEXIS 9 ( Ky. 1939 ).

When a covenant of warranty in a deed is broken, it immediately becomes a chose in action in favor of the grantee in the deed, and the right to sue the original grantor for breach of the covenant does not pass to subsequent grantees in the absence of an express assignment. Howard v. Montgomery, 293 Ky. 291 , 168 S.W.2d 991, 1943 Ky. LEXIS 604 ( Ky. 1943 ).

The existence of a private right of way across land conveyed by warranty deed is a breach of the covenant of general warranty, and the grantee’s knowledge of the right of way affords no protection to the grantor from his covenant. Whitley Lodge of Knights of Pythias v. West, 293 Ky. 341 , 168 S.W.2d 1009, 1943 Ky. LEXIS 613 ( Ky. 1943 ).

An action cannot be maintained by a vendee of land upon warranty of title until he is either evicted or his title is adjudged inferior in a suit to recover the land. Pendleton v. Centre College of Kentucky, 818 S.W.2d 616, 1991 Ky. App. LEXIS 122 (Ky. Ct. App. 1991).

Covenant of title in deed to land, to which grantor did not have title and to which he did not and could not deliver possession, was breached when the conveyance was made and cause of action accrued at once. Butt v. Riffe, 78 Ky. 352 , 1880 Ky. LEXIS 19 ( Ky. 1880 ).

To enable a vendee to recover for breach of general warranty of title, he had to allege and prove that he had been evicted. Jones v. Jones, 87 Ky. 82 , 7 S.W. 886, 9 Ky. L. Rptr. 942 , 1888 Ky. LEXIS 47 ( Ky. 1888 ).

4.Exception from Warranty.

The fact that grantor in deed excepted a portion of the conveyed property from the warranty clause did not constitute an admission that grantor did not claim title to such portion. Conyers' Adm'x v. McGee, 294 Ky. 382 , 171 S.W.2d 450, 1943 Ky. LEXIS 436 ( Ky. 1943 ).

5.Waiver.

Grantee may waive his right to rely upon a covenant inserted in a deed for his protection. Whitley Lodge of Knights of Pythias v. West, 293 Ky. 341 , 168 S.W.2d 1009, 1943 Ky. LEXIS 613 ( Ky. 1943 ).

Where grantees discovered existence of right of way before delivery of deed, and at first refused to accept deed because of right of way, but later decided to accept deed after grantor had told them that the only alternative was to call the deal off, there was at least a jury question as to whether grantees had waived their right to rely on the covenant of general warranty. Whitley Lodge of Knights of Pythias v. West, 293 Ky. 341 , 168 S.W.2d 1009, 1943 Ky. LEXIS 613 ( Ky. 1943 ).

6.Lease of Real Property.

Allegation, in action by lessee, that he “had learned” that lessor was not the owner of the leased property, and that lessee had been disturbed in his possession by acts of a third party who claimed the land, but without stating that third party held a paramount title or held title under the lessor, or that in committing the wrongful conduct complained of was acting under the authority or with the sanction of the lessor, failed to state a cause of action. Evans v. Williams, 291 Ky. 484 , 165 S.W.2d 52, 1942 Ky. LEXIS 277 ( Ky. 1942 ).

In a lease of real property there is an implied covenant that the lessor will protect the lessee from interference with the use or enjoyment of the premises by acts of the lessor and those claiming through or under him, or by anyone lawfully asserting a paramount title. Evans v. Williams, 291 Ky. 484 , 165 S.W.2d 52, 1942 Ky. LEXIS 277 ( Ky. 1942 ).

7.Oil Leases.

Where, in conveyance of oil leases, lessors inserted special covenants, in addition to general warranty, that lessors had title to land conveyed by leases, counterclaim in a suit to recover on notes given for the oil leases, based upon the defect in title could be maintained without a prior eviction. Hope Syndicate v. Southland Petroleum Co., 207 Ky. 473 , 269 S.W. 517, 1925 Ky. LEXIS 115 ( Ky. 1925 ).

8.Railroad Right of Way.

A conveyance to a railroad specifically for a right of way conveys only an easement, and the fact that the deed contains a warranty or designates the conveyed interest as a fee is not controlling. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

A deed must be interpreted as a whole and in the light of the circumstances under which it was made; and, in construing an indefinite and ambiguous conveyance of property specifically for a railroad right of way, the court will consider the fact that much railroad right of way is expressly or by operation of law limited to an easement, which is usually sufficient for the use intended. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

Grantor conveyed a narrow strip of land, described by reference to a surveyed line on which railroad tracks were to be laid, “unto the party of the second part and its successors and assigns . . . . . for railroad right of way . . . . . to have and to hold . . . . . unto the party of the second part and its successors and assigns forever, with covenant of general warranty of title.” Held, the deed conveyed an easement for railroad purposes, and not a fee, and the easement reverted to the grantor when the strip was abandoned. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

In a deed conveying a railroad right of way, the phrase “for railroad right of way” cannot be rejected as surplusage for it is presumed that no clause or word in a deed is used without meaning or intent, the words quoted are a declaration of purpose. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

9.Defective Title.

The grantee’s knowledge of the grantor’s defective title is no bar to an action upon covenant of seisin. Ralston v. Thacker, 932 S.W.2d 384, 1996 Ky. App. LEXIS 129 (Ky. Ct. App. 1996).

10.Damages.

Considering oil and gas leases, the proper measure of damages upon partial failure of the covenants of seisin and of warranty of title is that proportion of the bonus money and/or delay rentals representing the value of the loss resulting from failure of title. Ralston v. Thacker, 932 S.W.2d 384, 1996 Ky. App. LEXIS 129 (Ky. Ct. App. 1996).

11.Statute of Limitations.

KRS 413.010 is the applicable statute of limitations in an action upon breach of a general warranty. Ralston v. Thacker, 932 S.W.2d 384, 1996 Ky. App. LEXIS 129 (Ky. Ct. App. 1996).

Cited:

Blankenship v. Stovall, 862 S.W.2d 333, 1993 Ky. App. LEXIS 88 (Ky. Ct. App. 1993); Seigle v. Jasper, 867 S.W.2d 476, 1993 Ky. App. LEXIS 144 (Ky. Ct. App. 1993).

Research References and Practice Aids

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Northern Kentucky Law Review.

Abraham Lincoln Issue: Note: Abraham Lincoln and the Evolution of a Fee Simple Deed, 36 N. Ky. L. Rev. 333 (2009).

382.040. Special warranty — Words that constitute.

A covenant by a grantor, “that he will warrant specially the property thereby conveyed,” or words of like import, or the words “with special warranty,” in any deed, have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, would forever warrant and defend the property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of the grantor and all persons claiming by, through, or under him.

History. 493.

NOTES TO DECISIONS

1.Construction.

This section is but a reenactment of a former law which, in turn, was only a statutory statement of the effect of the common-law covenant of special warranty. Kentucky River Coal Corp. v. Swift Coal & Timber Co., 221 Ky. 593 , 299 S.W. 201, 1927 Ky. LEXIS 778 ( Ky. 1927 ).

2.Coverage.

Deed granting exclusive privilege of making, mining and getting oil on or from the land and also conveying the privilege with special warranty covenants that grantors will warrant property to grantees, their heirs and assigns against the claims and demands of the grantors and all persons claiming through or under them and estops one claiming under grantor to deny the rights of the grantees in the deed to what was thereby conveyed. Gray-Mellon Oil Co. v. Fairchild, 219 Ky. 143 , 292 S.W. 743, 1927 Ky. LEXIS 290 ( Ky. 1927 ).

Covenants of special warranty, as defined in this section, go no further than to protect the grantee from claims under a title from the grantor or those in privity with him, and do not protect against a claim under a title against the grantor. Kentucky River Coal Corp. v. Swift Coal & Timber Co., 221 Ky. 593 , 299 S.W. 201, 1927 Ky. LEXIS 778 ( Ky. 1927 ).

There was no implied warranty of the title in a deed of special warranty. Kentucky River Coal Corp. v. Swift Coal & Timber Co., 221 Ky. 593 , 299 S.W. 201, 1927 Ky. LEXIS 778 ( Ky. 1927 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

382.050. Married women — Conveyance of real property. [Repealed.]

Compiler’s Notes.

This section (506) was repealed by Acts 1942, ch. 152, § 7.

382.060. Conveyance to dead person vests title in his heirs.

When a patent is issued or a deed is made to a person who is dead at the issuing of the patent or the making of the deed, the heirs of such patentee or vendee shall take, hold and enjoy the title to the estate so patented or conveyed as if such patent had issued or deed had been made to such heirs by name.

History. 2063.

NOTES TO DECISIONS

1.Title in Heirs.

Under this section, children who accepted deed made to their deceased mother were vested with whatever title that would have passed to their mother. Northern Lake Ice Co. v. Orr, 102 Ky. 586 , 44 S.W. 216, 19 Ky. L. Rptr. 1634 , 1898 Ky. LEXIS 21 ( Ky. 1898 ).

Under this section, a sheriff’s deed made to heirs of purchaser at execution sale is valid. Jones v. Webb, 59 S.W. 858, 22 Ky. L. Rptr. 1100 (1900).

Although grantee was dead when deed was made, under this section his heirs take as though the deed had been made to them by name. Likens v. Pate, 160 Ky. 319 , 169 S.W. 734, 1914 Ky. LEXIS 446 ( Ky. 1914 ).

A patent issued 20 years after the death of the patentee vests title in the heirs. York Coal & Coke Co. v. Hamilton, 182 Ky. 345 , 206 S.W. 616, 1918 Ky. LEXIS 375 ( Ky. 1918 ).

In Kentucky, an entry made in the name of a dead man enured to the benefit of the heirs of the deceased. Galt v. Galloway, 29 U.S. 332, 7 L. Ed. 876, 1830 U.S. LEXIS 481 (U.S. 1830).

2.Entry and Survey.

It is not material that the entry and survey of the land were made after the death of the person in whose name the patent was issued. Davis v. Davis, 157 Ky. 530 , 163 S.W. 468, 1914 Ky. LEXIS 314 ( Ky. 1914 ). See Cox v. Prewitt, 88 Ky. 156 , 10 S.W. 432, 10 Ky. L. Rptr. 734 , 1889 Ky. LEXIS 13 ( Ky. 1889 ).

Research References and Practice Aids

Cross-References.

Vacant lands, rights of settlers; surveys and issue of patents, KRS 56.190 to 56.210 , 56.230 .

382.070. No lien unless unpaid consideration stated.

When any real property is conveyed, and any part of the consideration remains unpaid, the grantor shall not have a lien for the unpaid consideration against bona fide creditors and purchasers unless the deed states what part of the consideration remains unpaid.

History. 2358.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section that grantor would not have a lien unless unpaid consideration was stated to give definite notice to creditors and buyers of the extent to which the purchase prive remained unpaid. Whiteley v. Central Trust Co., 76 F. 74, 1896 U.S. App. LEXIS 2101 (6th Cir. Ky. 1896 ).

2.Construction.

The converse of this section is necessarily true; that is, when the consideration is shown in the conveyance not to have been paid, a lien exists for its payment. Webster v. Cadwallader, 133 Ky. 500 , 118 S.W. 327, 1909 Ky. LEXIS 192 ( Ky. 1909 ).

3.Application.

A vendor’s lien is never implied against warranties in any case where the circumstances show that the existence of such a lien could not have been intended, and would be in antagonism to the manifest intention to clear the title of such impediments. Blake v. Pine Mountain Iron & Coal Co., 76 F. 624, 1896 U.S. App. LEXIS 2162 (6th Cir. Ky. 1896 ).

As against vendee or volunteers under him this section was not applicable and lien for purchase price was good on particular estate or interest conveyed and for which the price was to be paid although the deed was silent in that regard. White v. Taylor, 107 Ky. 20 , 52 S.W. 820, 21 Ky. L. Rptr. 602 , 1899 Ky. LEXIS 123 ( Ky. 1899 ). See Ford v. Ford's Ex'r, 233 Ky. 673 , 26 S.W.2d 551, 1930 Ky. LEXIS 637 ( Ky. 1930 ).

As between vendor and vendee this section is inapplicable and the vendor is entitled to a lien for unpaid purchase money, although the conveyance gives no notice that any part of the purchase money remains unpaid. Taylor v. United States Bldg. & Loan Assn's Assignee, 110 Ky. 84 , 60 S.W. 927, 22 Ky. L. Rptr. 1560 , 1901 Ky. LEXIS 56 ( Ky. 1901 ).

This section has no application where there has been no delivery of the deed. Coppage v. Murphy, 139 Ky. 564 , 68 S.W. 416, 24 Ky. L. Rptr. 257 , 1902 Ky. LEXIS 6 ( Ky. 1902 ).

As between the vendor and vendee this section does not apply and the vendor, in the absence of an agreement to the contrary, has a lien for the unpaid portion of the purchase money although it does not appear from the deed that any part thereof remains unpaid. Pace v. Berry, 176 Ky. 61 , 195 S.W. 131, 1917 Ky. LEXIS 10 ( Ky. 1917 ).

Where G. and P. deeded property to M., who deeded the same property to T., who deeded it to B. and the only deed put of record was a deed from G. and P. to B. which did not show any unpaid consideration, T. was in fact the grantor of B. and the evidence failing to show any agreement that T. was not to have a lien on the property, he was entitled to a lien as between him and B. for the portion of the purchase price going to him and his assignee acquired the same lien since this section was not applicable between vendor and vendee. Pace v. Berry, 176 Ky. 61 , 195 S.W. 131, 1917 Ky. LEXIS 10 ( Ky. 1917 ).

As between the parties, grantor would have a lien for the purchase money under the provisions of this section where there was no fraud on part of grantor and the purchaser could not retain the title to the property without being liable to the grantor for the purchase price even though he did not sign the notes nor sign or acknowledge the mortgage. Starbird v. Blair, 227 Ky. 258 , 12 S.W.2d 693, 1928 Ky. LEXIS 501 ( Ky. 1928 ).

This section does not apply between parties to deed and grantor has lien for all unpaid purchase money as between parties to the deed whether unpaid purchase money be stated in the deed or not. Uppington v. Cooper, 279 Ky. 305 , 130 S.W.2d 733, 1939 Ky. LEXIS 265 ( Ky. 1939 ).

Although there was no reservation of a lien between the parties under this section, there was a lien between the parties for payment of purchase money notes and personal representative of grantor should have attempted to collect the notes. Cawood v. Cawood's Adm'x, 285 Ky. 201 , 147 S.W.2d 88, 1940 Ky. LEXIS 605 ( Ky. 1940 ).

While the law giving grantor no lien unless unpaid consideration was stated was not expressly made to apply to mortgages, there was no reason why the description of the debt to be secured should not have been sufficient to enable creditors and purchasers to discover the amount by reasonable diligence. Morris v. Murray, 82 Ky. 36 , 5 Ky. L. Rptr. 774 , 5 Ky. L. Rptr. 821 , 1884 Ky. LEXIS 34 (Ky. Ct. App. 1884).

4.Basis for Vendor’s Lien.

A lien exists as to vendees although it does not appear from deed that the purchase money remains unpaid, but in such cases the lien would not exist as against bona fide creditors and purchasers. Hagins v. Sewell, 124 Ky. 588 , 99 S.W. 673, 30 Ky. L. Rptr. 750 , 1907 Ky. LEXIS 219 ( Ky. 1907 ).

The vendor’s lien is a creature of equity and rests upon the principle that one who gets the estate of another ought not in conscience be allowed to keep it without paying the consideration. Ford v. Ford's Ex'r, 233 Ky. 673 , 26 S.W.2d 551, 1930 Ky. LEXIS 637 ( Ky. 1930 ).

As between vendor and vendee, the vendor was entitled to a lien for unpaid purchase money, although the conveyance gave no notice that any part of the purchase money remained unpaid. Blevins v. Blankenship, 7 S.W. 175, 9 Ky. L. Rptr. 851 (1888).

5.Nature of Lien.

Vendor’s lien is a statutory lien within the meaning of KRS 21.060. Snyder v. Rhinehart, 274 Ky. 274 , 118 S.W.2d 543, 1938 Ky. LEXIS 252 ( Ky. 1938 ).

A lien upon land sold to a remote vendee was a charge upon the land, which should not have existed any longer than the statutory existence of the note creating it. Tate v. Hawkins, 81 Ky. 577 , 5 Ky. L. Rptr. 626 , 1884 Ky. LEXIS 11 (Ky. Ct. App. 1884).

6.Reservation of Rentals for Life.

A reservation of rentals for life is valid, and is a condition that runs with the land. Hence it is not necessary that the deed retain a lien, it being evident that the rentals are a part of the consideration and that the consideration is not fully paid. Haven v. Wallace, 290 Ky. 314 , 160 S.W.2d 619, 1942 Ky. LEXIS 375 ( Ky. 1942 ).

7.Sufficient Statement.

While it was not stipulated in deed that a lien was retained, it was sufficient under this section that deed stated what part of consideration remained unpaid, and lien was properly adjudged. Hagins v. Sewell, 124 Ky. 588 , 99 S.W. 673, 30 Ky. L. Rptr. 750 , 1907 Ky. LEXIS 219 ( Ky. 1907 ).

From the time deed showing on its face that grantee assumed purchase money notes as part of the consideration was recorded there was a valid lien to secure the payment of the purchase money notes regardless of whether the notes and mortgage were valid. Starbird v. Blair, 227 Ky. 258 , 12 S.W.2d 693, 1928 Ky. LEXIS 501 ( Ky. 1928 ).

Deed was held to retain lien on property to secure all deferred payments including amounts representing price paid for personal property. Smith v. Turner, 248 Ky. 116 , 58 S.W.2d 258, 1933 Ky. LEXIS 190 ( Ky. 1933 ). But see In re Leckie Freeburn Coal Co., 405 F.2d 1043, 1969 U.S. App. LEXIS 9150 (6th Cir. Ky.), cert. denied, 395 U.S. 960, 89 S. Ct. 2101, 23 L. Ed. 2d 746, 1969 U.S. LEXIS 3173 (U.S. 1969).

Where a deed recites that part of the purchase price is unpaid, the grantor has a lien for the unpaid price against subsequent creditors and purchasers. Commonwealth Life Ins. Co. v. Eline, 274 Ky. 539 , 119 S.W.2d 637, 1938 Ky. LEXIS 299 ( Ky. 1938 ).

Where recorded deed from mother to son contained provision that son should take care of mother and furnish board and room, mother had a lien to secure her support superior to that of son’s creditors. Inez Deposit Bank v. Pinson, 276 Ky. 84 , 122 S.W.2d 1031, 1938 Ky. LEXIS 534 ( Ky. 1938 ).

This section requires such recital in the deed as will clearly notify creditors and subsequent purchasers that the consideration or some part thereof has not been paid, and exactly what part remains unpaid. Uppington v. Cooper, 279 Ky. 305 , 130 S.W.2d 733, 1939 Ky. LEXIS 265 ( Ky. 1939 ).

Where deed from grantor to grantees contained provision that the consideration was for support of a third party, bank taking a mortgage on the property from grantees was not an innocent purchaser for value but was charged with notice. Gabbard v. Truett, 248 S.W.2d 711, 1952 Ky. LEXIS 751 ( Ky. 1952 ). See Inez Deposit Bank v. Pinson, 276 Ky. 84 , 122 S.W.2d 1031, 1938 Ky. LEXIS 534 ( Ky. 1938 ).

8.Insufficient Statement.

A deed did not expressly state “what part of the consideration remained unpaid” where the principal consideration was covenants by railroad to put up and keep in good repair a good and lawful fence, to build a depot and switch which grantor could use without charge, and to permit grantor and his family free travel over the line of the railroad on its trains. Whiteley v. Central Trust Co., 76 F. 74, 1896 U.S. App. LEXIS 2101 (6th Cir. Ky. 1896 ).

Where printed form of deed contained near the bottom the words “A lien is hereby retained on the property herein conveyed to secure the deferred payments” but in its granting clause recited that the sale was for $3,000 “cash in hand paid, the receipt of which is hereby acknowledged” there appeared to be no unpaid purchase money and no lien could exist by virtue of this section. Harris v. Shaffer, 197 Ky. 54 , 246 S.W. 26, 1922 Ky. LEXIS 624 ( Ky. 1922 ).

Where immediately after the description a deed contained the statement that “A lien is retained to secure payment of the unpaid purchase money” the statement was not sufficient to give the vendor a lien as against judgment creditors where the deed specifically recited as consideration “the sum of one dollar and other considerations of value, the receipt of which is hereby acknowledged.” Stephens' Adm'x v. Union Cent. Life Ins. Co., 226 Ky. 233 , 10 S.W.2d 833, 1928 Ky. LEXIS 68 ( Ky. 1928 ).

Where broker proposed to take the purchaser’s note for $1,000 in lieu of cash for his commission, he could not have asserted a lien on the land to the prejudice of vendor and he would have no lien under the statute as against purchasers or creditors unless reserved in deed under this section. Zachem v. S. G. Adkins & Son, 232 Ky. 119 , 22 S.W.2d 413, 1929 Ky. LEXIS 404 ( Ky. 1929 ).

Where the seller of a lot did not comply with the prerequisites of this section in establishing a lien for the unpaid sale price, the seller had no lien on the property when it was subsequently mortgaged to another by the buyer. May v. Finance & Realty Co., 451 S.W.2d 155, 1970 Ky. LEXIS 376 ( Ky. 1970 ).

9.Recording Contract of Sale.

Where vendor did not reserve to himself as against subsequent vendees any lien upon or right to or easement in the property he is conveying, he may protect himself against subsequent vendees, notwithstanding the omission from his deed, by recording the contract of sale before his vendee has parted with title and possession. Bailey v. Southern R. Co., 112 Ky. 424 , 60 S.W. 631, 1901 Ky. LEXIS 281 ( Ky. 1901 ).

10.Liens in Favor of Third Persons.

Where a contract reserving a vendor’s lien on land for the benefit of third persons was separate from the title bond, and was not recorded, the equities of a bona fide purchaser of the title bond were superior to those of persons for whose benefit such lien was reserved. Hurst v. Hurst, 76 S.W. 325, 25 Ky. L. Rptr. 714 (1903).

A lien may be retained in a deed in favor of an unnamed third person. Campbell v. Salyer, 290 Ky. 493 , 161 S.W.2d 596, 1942 Ky. LEXIS 405 ( Ky. 1942 ).

A lien retained in deed in favor of third person not designated in deed attaches on delivery of deed and thus is created by the deed and not by verbal arrangement. Campbell v. Salyer, 290 Ky. 493 , 161 S.W.2d 596, 1942 Ky. LEXIS 405 ( Ky. 1942 ).

A lien retained in deed in favor of third person not designated in deed is notice to subsequent purchasers or encumbrancers upon recording of the deed. Campbell v. Salyer, 290 Ky. 493 , 161 S.W.2d 596, 1942 Ky. LEXIS 405 ( Ky. 1942 ).

A lien retained in deed in favor of third person not designated in deed may be enforced by the third person. Campbell v. Salyer, 290 Ky. 493 , 161 S.W.2d 596, 1942 Ky. LEXIS 405 ( Ky. 1942 ).

11.Retention of Possession by Grantor.

Though the deed recited the consideration as paid, the fact that the grantor remained in possession of the premises was sufficient to put the creditor upon inquiry as to the nature and condition of his holding. Coppage v. Murphy, 139 Ky. 564 , 68 S.W. 416, 24 Ky. L. Rptr. 257 , 1902 Ky. LEXIS 6 ( Ky. 1902 ).

12.Retention of Lien Until Grantor’s Death.

The retention of a lien until the grantor’s death in an 1884 deed to grantor’s daughter without a statement of the nature or purpose of the lien did not prevent the passing of title but merely gave grantor the right to foreclose and where daughter conveyed mineral rights in 1887 and her father died without foreclosing the lien purchaser had valid title to the mineral rights. Johnson v. Pittsburgh Consol. Coal Co., 220 F.2d 24, 1955 U.S. App. LEXIS 4869 (6th Cir. Ky. 1955 ).

13.Lis Pendens Purchaser.

One who took a mortgage on land pending an action to enforce a vendor’s lien thereon was a lis pendens purchaser, and therefore bound by a judgment rendered in that action enforcing the lien, even though the deed to the mortgagor did not show purchase money was unpaid. Taylor v. United States Bldg. & Loan Assn's Assignee, 110 Ky. 84 , 60 S.W. 927, 22 Ky. L. Rptr. 1560 , 1901 Ky. LEXIS 56 ( Ky. 1901 ).

14.Purchasers with Notice.

Although a vendor’s lien was not reserved in the deed, grantor was entitled to one against the lands for the unpaid remainder of its purchase price as against the wife of grantee to whom he conveyed as a volunteer without consideration and with knowledge of the fraud. Miller v. Wilson, 253 Ky. 266 , 69 S.W.2d 385, 1934 Ky. LEXIS 653 ( Ky. 1934 ).

Grantor would have been entitled to vendor’s lien as security for unpaid part of purchase price, even if he had not done all that he could to restore what he had received under exchange contract. Miller v. Wilson, 253 Ky. 266 , 69 S.W.2d 385, 1934 Ky. LEXIS 653 ( Ky. 1934 ).

A vendor’s lien would exist without expressly mentioning it in deed, and therefore a purchaser with knowledge of unexpressed lien in the deed would be subordinated to it. Gillardi v. Henry, 272 Ky. 188 , 113 S.W.2d 1158, 1938 Ky. LEXIS 102 ( Ky. 1938 ).

The fact that the deed recites that the consideration has been paid does not prevent enforcement of the vendor’s lien for the amount actually unpaid against any purchaser from the vendee who is not a bona fide purchaser for value. Sparkman v. Triplett, 292 Ky. 569 , 167 S.W.2d 323, 1942 Ky. LEXIS 142 ( Ky. 1942 ).

Where sole consideration of conveyance by vendee of land to third person was latter’s agreement to support vendee during his lifetime, such third person was not a bona fide purchaser, and he took the land subject to the lien of the original vendor, notwithstanding that unpaid consideration was not recited in the deed. Sparkman v. Triplett, 292 Ky. 569 , 167 S.W.2d 323, 1942 Ky. LEXIS 142 ( Ky. 1942 ).

15.Bona Fide Purchasers.

Contract concerning land is a recordable paper and where it contains conditions not put in and executed in pursuance of it, innocent purchaser from vendee will not be bound by stipulations of contract. Bailey v. Southern R. Co., 112 Ky. 424 , 60 S.W. 631, 1901 Ky. LEXIS 281 ( Ky. 1901 ).

Where deed acknowledged consideration in full and there was no evidence or intimation that purchasers from grantee had any notice or knowledge of vendor’s outstanding equity, vendor did not have a lien against them for the unpaid purchase money. Jackson v. Engle, 230 Ky. 558 , 20 S.W.2d 460, 1929 Ky. LEXIS 139 ( Ky. 1929 ).

Grantor could not assert lien for purchaser money which had been recited in the deed as paid against a subsequent purchaser for value without notice. Napier v. Baker, 235 Ky. 724 , 32 S.W.2d 49, 1930 Ky. LEXIS 449 ( Ky. 1930 ).

16.Personal Property.

Real and personal estate having been sold in gross without a separate valuation, the vendor, where there are no intervening rights, has a lien upon the real estate for the unpaid price of both the real and personal estate. Doty v. Deposit Bldg. & Loan Ass'n, 103 Ky. 710 , 46 S.W. 219, 20 Ky. L. Rptr. 625 , 1898 Ky. LEXIS 120 ( Ky. 1898 ).

Lien may be retained in deed conveying real estate to secure the price of personal property that is sold at same time by the vendor to the vendee. Smith v. Turner, 248 Ky. 116 , 58 S.W.2d 258, 1933 Ky. LEXIS 190 ( Ky. 1933 ) (decision prior to amendment of KRS 382.270 and enactment of the Uniform Commercial Code.).

Chattels annexed to the freehold prior to the deed or mortgage, which were essential to its enjoyment, would pass by conveyance and be covered by the lien. But if attached after the deed or mortgage was executed, and not mentioned in it, they would not be subject to the lien, unless so attached that they could not be removed without injuring the property. Clore v. Lambert, 78 Ky. 224 , 1879 Ky. LEXIS 90 ( Ky. 1879 ).

17.Extent of Lien.

Inasmuch as grantor conveyed merely a life estate in one-third of the real estate her lien for purchase money, in the absence of a contract enlarging it, would extend only to the life estate which she conveyed and which terminated at her death. Ford v. Ford's Ex'r, 233 Ky. 673 , 26 S.W.2d 551, 1930 Ky. LEXIS 637 ( Ky. 1930 ).

Where under the deed each of the notes was equally secured by the lien on the land, and, if the land did not sell for enough to pay them, the amount would have been prorated between the three notes when maker paid off one of the notes, the whole of the land was in lien for the other two notes. Treas v. Bank of Marshall County, 234 Ky. 376 , 28 S.W.2d 43, 1930 Ky. LEXIS 188 ( Ky. 1930 ).

Where at the death of a landowner his 113 acre farm was partitioned between his widow and two children and one of the children sold her 42 acres to a man who married the widow and subsequently the widow, her second husband and the remaining heir conveyed the 113 acre farm in one deed to a purchaser for $500 cash and five notes, one payable to the second husband and the other four to the widow and remaining heir, the widow and remaining heir had no vendors’ lien on the 42 acre tract for their unpaid notes and when purchaser paid the note to the second husband and the mortgage he had assumed on the 42 acre tract he owned it. Hayes v. Burton, 256 Ky. 726 , 77 S.W.2d 12, 1934 Ky. LEXIS 486 ( Ky. 1934 ).

18.Waiver.

Where the vendor surrendered the purchaser’s note for the price, and accepted in lieu thereof the joint note of the purchaser and W., embracing therein also the price of land sold to W., he waived his lien, as against a subsequent purchaser who took an assignment of the title bond, which failed to show that any part of the purchase money remained unpaid. Brown v. Blankenship, 108 Ky. 464 , 56 S.W. 817, 22 Ky. L. Rptr. 143 , 1900 Ky. LEXIS 66 ( Ky. 1900 ).

Vendor, by executing a deed without reciting what part of the purchase money remained unpaid, waived his lien, and could not by any subsequent notice revive it. Bailey v. Southern R. Co., 112 Ky. 424 , 60 S.W. 631, 1901 Ky. LEXIS 281 ( Ky. 1901 ).

Acceptance by vendor of collateral security for unpaid portion of purchase price did not constitute a waiver of the vendor’s lien. Sparkman v. Triplett, 292 Ky. 569 , 167 S.W.2d 323, 1942 Ky. LEXIS 142 ( Ky. 1942 ).

The acceptance of other or additional security by a vendor was a waiver of his lien. McClure v. Harris, 51 Ky. 261 , 1851 Ky. LEXIS 57 ( Ky. 1851 ).

The prescribed recital in the deed was equivalent to an express declaration of a lien; and consequently when a lien was thus secured, no contemporaneous or collateral security could defeat it. Beyland v. Sewell, 67 Ky. 637 , 1868 Ky. LEXIS 211 ( Ky. 1868 ).

An assignee of purchase notes did not waive his lien by accepting personal security, unless it was so intended. Bradley v. Curtis, 79 Ky. 327 , 2 Ky. L. Rptr. 329 , 1881 Ky. LEXIS 29 (Ky. Ct. App. 1881).

19.Estoppel.

Vendors were estopped form claiming against the subsequent purchasers a lien in excess of the title bond. Vanderpool v. Stewart, 212 Ky. 373 , 279 S.W. 645, 1926 Ky. LEXIS 149 ( Ky. 1926 ).

20.Creditor’s Right to Enforce Lien.

When grantor’s creditor is not named in deed but is secured by a lien, the creditor’s right to enforce the lien against the grantee is not based on subrogation. Campbell v. Salyer, 290 Ky. 493 , 161 S.W.2d 596, 1942 Ky. LEXIS 405 ( Ky. 1942 ).

Trustee’s complaint, which sought to avoid the creditors’ lien on the real property as unperfected against the trustee as a hypothetical bona fide purchaser and/or a hypothetical judicial lien creditor, was dismissed with prejudice where the deed was sufficient to defeat the claim of the trustee because the deed complied with Kentucky law regarding acknowledgement and it gave adequate notice of the creditors’ lien because (1) the deed was clearly titled “General Warranty Deed with Lien” and stated that the consideration was secured by a promissory note, (2) set out in a separate paragraph was the statement that a lien was retained to secure the unpaid purchase price, (3) although the amount of indebtedness shown was incorrect, it was less than the actual amount of indebtedness, which by common sense was the amount secured, and (4) although the final maturity date shown was incorrect, it was off by one (1) payment, one (1) month. Charles v. Stump (In re Charles), 2004 Bankr. LEXIS 1741 (Bankr. E.D. Ky. Oct. 19, 2004).

Where debtor purchasers of assets had defaulted on the payment of the promissory note, the seller held an equitable lien under Kentucky law, including KRS 382.070 , and its lien was entitled to priority over any hypothetical creditor under 11 U.S.C.S. § 544. NAJA, LLC v. Jack's Co., LLC (In re Dynamis Group, LLC), 441 B.R. 841, 2011 Bankr. LEXIS 1 (Bankr. W.D. Ky. 2011 ).

21.Statute of Limitations.

Action to enforce vendor’s lien is governed by same statute of limitations as applies to action to recover unpaid portion of purchase price which lien secures. Sparkman v. Triplett, 292 Ky. 569 , 167 S.W.2d 323, 1942 Ky. LEXIS 142 ( Ky. 1942 ).

22.Priority.

The superiority of a vendor’s lien over the right of dower is well settled and where the entire title was taken in name of son to secure money advanced to his father for purchase of the land, the son was entitled to the equivalent of a vendor’s lien which was superior to dower right of father’s widow. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

Where holder of vendor’s lien under this section for unpaid balance of consideration for conveyance of real property to mortgagor filed a counterclaim to action to recover on note and enforce real estate mortgage, judgment was erroneous for want of supporting evidence that mortgage lien was superior for any sum to vendor’s lien. Moore v. Bates, 332 S.W.2d 636, 1960 Ky. LEXIS 166 ( Ky. 1960 ).

23.Equitable Lien.

Although the deed acknowledged receipt of all of the purchase money and there was no reference to any lien retained, the vendor in the absence of his agreement to the contrary, had an equitable lien on the property for the unpaid purchase money against subsequent purchasers from grantee with actual notice and knowledge of the outstanding notes executed for the deferred purchase price and of grantor’s lien. Jackson v. Engle, 230 Ky. 558 , 20 S.W.2d 460, 1929 Ky. LEXIS 139 ( Ky. 1929 ).

Research References and Practice Aids

Cross-References.

Deeds to be fraudulent against existing debts and liabilities of person paying consideration, KRS 381.170 .

382.075. Uniform Real Property Electronic Recording Act — Recording of electronic document — Electronic signature — Powers and duties of county clerk.

  1. If a law requires, as a condition for recording by the county clerk upon the records relating to real property, that a document be an original, be on paper or another tangible medium, or be in writing, the requirement shall be satisfied by an electronic document that complies with the requirements of KRS 423.300 to 423.455 .
  2. If a law requires, as a condition for recording, that a document be signed, the requirement is satisfied by an electronic signature.
  3. A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.
  4. As used in this section, “paper document” means a document that is received by the clerk in a form that is not electronic. A clerk:
    1. May receive, index, store, archive, and transmit electronic documents;
    2. May provide for access to, and search and retrieval of, documents and information by electronic means;
    3. Who accepts electronic documents for recording shall continue to accept paper documents as authorized by state law and shall place entries for both types of documents in the same index;
    4. May convert paper documents accepted for recording into electronic form;
    5. May convert into electronic form information recorded before the clerk began to record electronic documents;
    6. May accept electronically any fee, levy, or tax that the clerk is authorized to collect; and
    7. May agree with other officials of a state or a political subdivision of that state, or of the United States, on procedures or processes to facilitate the electronic satisfaction of prior approvals and conditions precedent to recording and the electronic payment of fees, levies, and taxes that the clerk is authorized to accept.
  5. This section shall be known and may be cited as the “Uniform Real Property Electronic Recording Act.” In applying and construing this section, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

HISTORY: 2019 ch. 86, § 33, effective January 1, 2020.

382.076. Paper copy of electronic record relating to real property — Certificate — Notice — Exception for plats, maps, and surveys.

  1. If a law requires that an instrument relating to real property within the Commonwealth, to be admitted to the public record and recorded, to an original, be on paper or another tangible medium, be in writing, or be signed, the requirement shall be satisfied by a paper copy of an electronic record, including an electronic record bearing an electronic signature, that a notary public has certified, pursuant to subsection (3) of this section, to be a true and correct copy of the record that was originally in electronic form and bearing an electronic signature.
  2. A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied by a paper copy of an electronic document bearing an electronic signature of the person authorized to perform that act, and all other information required to be included, that a notary public has certified, pursuant to subsection (3) of this section, to be a true and correct copy of a document that was originally in electronic form and bearing an electronic signature of the person. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.
  3. A county clerk shall record a paper copy of a document that was originally in electronic form and that is otherwise entitled to be recorded under the laws of this state, if the paper copy has been certified to be a true and correct copy of the electronic record by a notary public as evidenced by a certificate attached to or made a part of the record. The certificate:
    1. Shall:
      1. Be signed and dated by the notary public;
      2. Identify the jurisdiction in which the certification is performed;
      3. Contain the title of the notary public; and
      4. Indicate the number and date of expiration, if any, of the notary public’s commission; and
    2. May include an official stamp of the notary public affixed to or embossed on the certificate.
  4. The following form of certificate is sufficient for the purposes of this section, if completed with the information required by subsection (3) of this section:
  5. A notary public duly commissioned under the laws of this Commonwealth or of another state within the United States has the authority to make the certification provided in this section.
  6. A notary public making the certification provided in this section shall:
    1. Personally print or supervise the printing of the electronic document onto paper;
    2. Not make any changes or modifications to the electronic document other than the certification described in subsection (3) of this section; and
    3. Confirm that the electronic document has been rendered tamper-evident.
  7. If a certificate is completed with the information required by subsection (3) of this section and is attached to or made a part of a paper record, the certificate shall be considered conclusive evidence that the requirements of this section have been satisfied with respect to the record.
  8. A record purporting to convey or encumber real property or any interest therein that has been recorded by a clerk for the jurisdiction in which the real property is located, although the record may not have been certified in accordance with the provisions of this section, shall import the same notice to third persons from the time of recording as if the record had been certified in accordance with the provisions of this section.
  9. This section shall not apply to a plat, map, or survey of real property if under another law of this state, or under a rule, regulation, or ordinance applicable to a clerk:
    1. There are requirements of format or medium for the execution, creation, or recording of the plat, map, or survey beyond the requirements applicable to a deed to real property; or
    2. The plat, map, or survey must be recorded in a different location than a deed to real property.

State of [County] of I certify that the foregoing and annexed document [document title],[document date, if applicable], and containing is a true and correct copy of an electronic document bearing one (1) or more electronic signatures. entitled dated pages Executed this [date] [Signature of notary public] Stamp [ ] Notary Public [My commission expires: ] [My notary registration number is: ]

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HISTORY: 2019 ch. 86, § 34, effective January 1, 2020.

382.077. Immediate recording — Priority of documents.

Documents physically presented to a county clerk for recording during regular business hours shall be considered for immediate recording if requested by the party presenting the documents, except that the county clerk may refuse unreasonable requests. Documents delivered by all other methods shall be processed as they are received, with priority assigned by the date the documents are received. All documents received on a given date shall have equal priority, and the county clerk shall have discretion to decide in what order documents are processed. A county clerk shall be held harmless for any disputes that arise regarding the timing of a recorded document.

HISTORY: 2019 ch. 86, § 40, effective January 1, 2020.

382.080. Recording of conveyance for longer than five years and of marriage agreement.

  1. No deed conveying any title to or interest in real property, or lease of oil, gas, coal or mineral right and privilege, for a longer time than five (5) years, nor any agreement in consideration of marriage, shall be good against a purchaser for a valuable consideration without notice thereof, or any creditor, unless the deed is acknowledged by the party who executes it, or is proved and lodged for record in the proper office, as prescribed by law.
  2. The provisions of this section shall apply with like protection to the creditor of, or innocent purchaser from, the heir or devisee of the grantor.

History. 494.

NOTES TO DECISIONS

1.Application.

Any lease of mineral rights that is duly signed and acknowledged may be recorded, although it might be void as between the parties on account of some vice in its execution or infirmity in its terms or conditions. Loeb v. Conley, 160 Ky. 91 , 169 S.W. 575, 1914 Ky. LEXIS 405 ( Ky. 1914 ).

Recording of contract for sale of standing timber would not have effect given to recording of certain conveyances by this section, but branding of standing trees has effect of recording of sale contract. Burris v. Stepp, 162 Ky. 269 , 172 S.W. 526, 1915 Ky. LEXIS 55 ( Ky. 1915 ). (See KRS 364.120.).

Recording act is not confined in its application to subsequent and immediate purchasers from the same grantor, but applies as well to successive and remote purchasers who acquire title through the same grantor. Lantzy v. Swango, 216 Ky. 547 , 288 S.W. 315, 1926 Ky. LEXIS 969 ( Ky. 1926 ).

Recording statutes do not include street improvement liens; purchaser of property is chargeable with notice of ordinance and proceedings of city council by which improvement lien is created. Jackson's Heirs v. Willson, 226 Ky. 211 , 10 S.W.2d 816, 1928 Ky. LEXIS 58 ( Ky. 1928 ). See also Hughes v. Wallace, 118 S.W. 324, 1909 Ky. LEXIS 494 ( Ky. 1909 ).

Oral agreement by adjoining landowners, in settlement of bona fide boundary dispute, as to location of boundary line, executed by erection of joint division fence and subsequently acquiescence, is valid, and is not prohibited by statute of frauds or provisions as to formality of deeds. Turner v. McCarty, 276 Ky. 481 , 124 S.W.2d 753, 1939 Ky. LEXIS 543 ( Ky. 1939 ).

2.Indexing.

The failure of the county clerk to comply with the provisions of KRS 382.200 and 382.210 as to the indexing of all instruments which affect the title to real estate, does not affect the validity of the constructive notice which is given by placing such an instrument on record as provided by this section. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

Where the clerk records an instrument which is recordable in his office as provided by this section, it is notice to all parties as provided by law, and this notice exists regardless of whether the clerk has properly indexed the instrument. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

3.Conveyances.

An oil and gas lease conveys an interest in real estate and is within the statute. Vanderpool's Guardian v. Louisville Gas & Electric Co., 251 Ky. 337 , 65 S.W.2d 69, 1933 Ky. LEXIS 876 ( Ky. 1933 ).

Where rules and regulations of pipeline company required a division order to be executed so it could have a record showing to whom payment should be made, the division order did not operate as a conveyance of the unaccrued royalty since such a division order was separate and distinct from a conveyance of the royalty. Williams' Adm'r v. Union Bank & Trust Co., 283 Ky. 644 , 143 S.W.2d 297, 1940 Ky. LEXIS 408 ( Ky. 1940 ).

4.Purchasers for Value Without Notice.

While, under this section, grantee without any notice of adverse claim would have been entitled to recover land, he cannot do so where actual possession of adverse claimant was in existence at time grantee received conveyance. Everidge v. Martin, 164 Ky. 497 , 175 S.W. 1004, 1915 Ky. LEXIS 404 ( Ky. 1915 ).

To be a bona fide purchaser without notice, the purchase money must in fact have been paid before notice; the purchaser of property takes it subject to a prior equity if he acquires notice thereof at any time before payment of consideration. Rader v. Shaffer, 186 Ky. 802 , 218 S.W. 292, 1920 Ky. LEXIS 42 ( Ky. 1920 ). See Payton v. Norris, 240 Ky. 555 , 42 S.W.2d 723, 1931 Ky. LEXIS 441 ( Ky. 1931 ).

Evidence that showed that defendant at the time he accepted the deed had full knowledge of an unrecorded deed conveying the same property supported verdict finding that defendant was not innocent purchaser without notice. Cornett v. Maddin, 277 Ky. 480 , 126 S.W.2d 871, 1939 Ky. LEXIS 680 ( Ky. 1939 ).

The defense that one is an innocent purchaser of land without notice must be pleaded. Cornett v. Maddin, 277 Ky. 480 , 126 S.W.2d 871, 1939 Ky. LEXIS 680 ( Ky. 1939 ).

One who stands by silently and sees another purchase property from a third person, without giving information that the property is his, is estopped from asserting title against the purchaser. Chestnut v. Allen, 282 Ky. 703 , 139 S.W.2d 729 ( Ky. 1940 ).

A parol trust cannot be invoked to defeat the title of a bona fide purchaser for value. Gabbard v. Gabbard, 294 Ky. 572 , 172 S.W.2d 214, 1943 Ky. LEXIS 492 ( Ky. 1943 ).

Lessees of oil and gas lease were purchasers for value under this section where consideration was stated as $1.00 and keeping covenants, including a covenant to be kept for payment of delayed rentals in the amount of 50¢ per acre annually in advance, and the lessees had paid an amount equal to one year’s rental or $244 prior to receiving notice although they had not put down a well prior to receiving notice. Anderson v. United Fuel Gas Co., 351 S.W.2d 520, 1961 Ky. LEXIS 177 ( Ky. 1961 ).

5.Purchasers with Actual Notice.

One who takes a conveyance to land, with actual notice that another has previously purchased it, holds title as trustee for the former purchaser, but where latter was paid for land by grantee, and deed was executed directly to grantee from original owner, to save expense, purchaser was estopped to claim title. Gillig v. Stofer, 279 Ky. 349 , 130 S.W.2d 762, 1939 Ky. LEXIS 273 ( Ky. 1939 ).

6.Unacknowledged Deeds.

An unacknowledged or defectively acknowledged deed is good between the parties and those claiming under them, though not recordable. Cornett v. Maddin, 277 Ky. 480 , 126 S.W.2d 871, 1939 Ky. LEXIS 680 ( Ky. 1939 ).

An unacknowledged deed, although not recordable, passes title between the parties where no intervening equities are affected. Jones v. Driver, 282 Ky. 82 , 137 S.W.2d 729, 1940 Ky. LEXIS 123 ( Ky. 1940 ).

An unacknowledged deed was valid as between grantee and devisees of grantor. Jones v. Driver, 282 Ky. 82 , 137 S.W.2d 729, 1940 Ky. LEXIS 123 ( Ky. 1940 ).

A deed properly signed although not acknowledged or recorded was good as between the parties. Blankenship v. Green, 283 Ky. 700 , 143 S.W.2d 294, 1940 Ky. LEXIS 407 ( Ky. 1940 ).

7.Recorded Deeds.

The constructive notice furnished by a recorded instrument, insofar as the boundary of the land and every other material fact recited therein is concerned, is equally as conclusive as would be actual notice acquired by a personal examination of the recorded instrument or actual notice acquired by or through other means; every person must take notice of its contents to the same extent as if he had personal knowledge of every fact that it recites. Loeb v. Conley, 160 Ky. 91 , 169 S.W. 575, 1914 Ky. LEXIS 405 ( Ky. 1914 ).

Purchaser for value without notice, who has acquired legal title by conveyance duly recorded, has claim superior to that of purchaser under prior unrecorded deed. Lantzy v. Swango, 216 Ky. 547 , 288 S.W. 315, 1926 Ky. LEXIS 969 ( Ky. 1926 ).

Subsequent purchaser had the right to rely upon the recitation in the recorded deed to his grantor that consideration had been paid in full. Dishman v. Marsh, 278 Ky. 21 , 128 S.W.2d 235, 1939 Ky. LEXIS 390 ( Ky. 1939 ).

A purchaser of land is charged with notice of an encumbrance created by an instrument which is of record, even though the primary purpose of such an instrument is not the creation of such encumbrance, but the conveyance of neighboring property. Harp v. Parker, 278 Ky. 78 , 128 S.W.2d 211, 1939 Ky. LEXIS 382 ( Ky. 1939 ).

A subsequent grantee of property was charged with notice of building restriction retained by his grantor in a prior recorded deed conveying part of grantor’s property to another party. Harp v. Parker, 278 Ky. 78 , 128 S.W.2d 211, 1939 Ky. LEXIS 382 ( Ky. 1939 ).

Owner of land is charged with knowledge of all recorded instruments in his chain of title. Blackburn v. Piney Oil & Gas Co., 278 Ky. 191 , 128 S.W.2d 192, 1939 Ky. LEXIS 377 ( Ky. 1939 ).

Where deed creating life estate with remainder was recorded, grantee of life tenant could not claim, as against remainderman, that improvements made by him were made in good faith without knowledge of remainderman’s interest. Adkins v. Hackworth, 279 Ky. 352 , 130 S.W.2d 774, 1939 Ky. LEXIS 277 ( Ky. 1939 ).

A lien retained in deed in favor of third person not designated in deed is notice to subsequent purchasers or encumbrancers upon recording of the deed. Campbell v. Salyer, 290 Ky. 493 , 161 S.W.2d 596, 1942 Ky. LEXIS 405 ( Ky. 1942 ).

Grantor was not obligated by law that provided that the instruments which have been or may be recorded shall be delivered to the party entitled to the same, and law that provided that unrecorded deeds are not good against creditors or purchasers for valuable consideration without notice to record deed, and failure of clerk to copy deleted words and to indicate deletion could not be charged to grantor. Rowe v. Chesapeake Mineral Co., 156 F.2d 752, 1946 U.S. App. LEXIS 3283 (6th Cir. Ky.), cert. denied, 329 U.S. 776, 67 S. Ct. 190, 91 L. Ed. 667, 1946 U.S. LEXIS 1780 (U.S. 1946).

8.Recorded Mortgages.

Where deed from mother to son contained provision that son should take care of mother and furnish board and room, and son later mortgaged real estate, mortgagee, whose mortgage was recorded, was not bound by judgment cancelling deed in suit by mother against son in which mortgagee was not made a party. Inez Deposit Bank v. Pinson, 276 Ky. 84 , 122 S.W.2d 1031, 1938 Ky. LEXIS 534 ( Ky. 1938 ).

9.Unrecorded Deeds.

Such instruments as are mentioned in this section, though unrecorded, are not void, but valid against purchasers at sale under execution or otherwise when notice has been given, and likewise against creditors. Perry v. Trimble, 76 S.W. 343, 25 Ky. L. Rptr. 725 (1903).

Innocent purchasers of lands under deeds made by heirs will prevail against unrecorded deeds or deed not recorded in proper county, made by an ancestor. Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ).

Recordation, or at least lodgment for record, was necessary to give constructive notice of a deed to a purchaser for value, and without actual notice, and against the claim of such a purchaser, a deed not recorded as required by law, could not be read as evidence. Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ).

Purchaser of interest in realty for valuable consideration without notice is not affected by unrecorded deed. Vanderpool's Guardian v. Louisville Gas & Electric Co., 251 Ky. 337 , 65 S.W.2d 69, 1933 Ky. LEXIS 876 ( Ky. 1933 ).

Evidence that defendant made no objection to numerous transactions by grantor of land, of a character evidencing ownership, was sufficient to support finding that plaintiff, at time of purchase of land, had no actual knowledge of defendant’s unrecorded deed. Chestnut v. Allen, 282 Ky. 703 , 139 S.W.2d 729 ( Ky. 1940 ).

10.Unrecorded Leases.

Where purchaser of property had actual notice of unrecorded lease by virtue of knowledge that lessee was constructing buildings and appurtenances on premises, he took property subject to lease. Estes v. Gatliff, 291 Ky. 93 , 163 S.W.2d 273, 1942 Ky. LEXIS 180 ( Ky. 1942 ).

11.Record Destroyed by Fire.

Where vendee has recorded his deed but the record thereof has been destroyed by fire, his failure to rerecord deed for an unreasonable period of time or to have lost record supplied by statutory method is such negligence that an innocent purchaser for value during the time deed was unrecorded will be protected under the rule that, where loss must fall on one of two innocent parties, it will be put on him whose negligence has made the loss possible. Lantzy v. Swango, 216 Ky. 547 , 288 S.W. 315, 1926 Ky. LEXIS 969 ( Ky. 1926 ).

12.Valuable Consideration.

Where only partial or nominal consideration of $1.00 had been paid before purchaser learned of existence of prior oil and gas lease, the first lease was superior although recorded later. Rader v. Shaffer, 186 Ky. 802 , 218 S.W. 292, 1920 Ky. LEXIS 42 ( Ky. 1920 ); Payton v. Norris, 240 Ky. 555 , 42 S.W.2d 723, 1931 Ky. LEXIS 441 ( Ky. 1931 ).

13.Marriage Agreements.

There is a confidential relationship between prospective husband and wife, and if one practices fraud upon the other and does not reveal to him or her the terms of their antenuptial contract, the recording of the contract does not serve as constructive notice of the fraud to the defrauded party. Clore v. Clore, 280 Ky. 131 , 132 S.W.2d 548, 1939 Ky. LEXIS 71 ( Ky. 1939 ).

14.Undisclosed Heirs.

Although this section seeks to redress the evils of prior unrecorded deeds, mortgages and leases by making them ineffectual against subsequent bona fide purchasers, it does not void other interests which are not required to be recorded; accordingly, bona fide purchasers of real property, who took pursuant to warranty deed and affidavit of descent which purported to list all heirs at law, from some of the heirs of the former owner were not entitled to the protection of this section against the interest of an undisclosed heir and took subject to the interest of such heir. Sirls v. Jordan, 625 S.W.2d 106, 1981 Ky. App. LEXIS 301 (Ky. Ct. App. 1981).

Cited:

In re Leckie Freeburn Coal Co., 405 F.2d 1043, 1969 U.S. App. LEXIS 9150 (6th Cir. 1969), cert. denied, Foster v. Hamblin, 395 U.S. 960, 89 S. Ct. 2101, 23 L. Ed. 2d 746, 1969 U.S. LEXIS 3173 (1969); Scoggan v. Hoff, 165 F. Supp. 424, 1958 U.S. Dist. LEXIS 3704 (D. Ky. 1958 ); Hughes v. Wallace, 118 S.W. 324, 1909 Ky. LEXIS 494 ( Ky. 1909 ).

Opinions of Attorney General.

The proper manner of recording an instrument assigning various oil and gas leasehold interests would be the spreading of the entire document, including the exhibits, upon the record. OAG 72-152 .

To be enforceable and to be good against a purchaser for valuable consideration without notice, deed restrictions must be recorded in the office of the clerk of the county court of the county in which a greater part of the land lies. OAG 73-115 .

While this section does not expressly provide for the indicating of the immediate source of title, it would appear that for the sake of properly identifying the land in coal mining leases and in giving constructive notice to third parties, the showing of the immediate source of title is implicit in this section. OAG 75-32 .

A coal lease for five (5) years or less would be recordable if it contains the entire agreement and is properly executed as required by law. A coal lease in excess of five (5) years requires recordation. OAG 82-296 .

Although this section, standing alone, may contain some suggestion that a coal lease of five (5) years or less may not require recordation, and unrecorded might prevail against a bona fide purchaser for value without notice, such construction is not in conformity with the Kentucky law (including KRS 382.100 and 382.270 ) as interpreted by the courts. A coal lease of five years or less, to be good against a bona fide purchaser for value without notice, must be properly recorded in the county clerk’s office. OAG 82-296 .

The explicit language of this section envisions the recording of the entire contents of the lease, subject to proper signatures and execution pursuant to KRS 382.130 . OAG 82-296 .

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Mohan & Byrd, You Cannot Change 500 Years of Property Law at 5:00 P.M. on a Friday — Dower as Applied in Kentucky., 33 N. Ky. L. Rev. 335 (2006).

Treatises

Petrilli, Kentucky Family Law, Antenuptial Agreements, § 13.6.

Petrilli, Kentucky Family Law, Business Transactions, § 15.4.

382.090. Recording of options or offers to sell.

Any option or offer to sell real or other property, or any interest therein, when acknowledged or proven as deeds are required to be, may be recorded in the county in which the property is situated, in the same offices in which deeds are recorded, and in a separate book kept for that purpose, and the record of all such recorded options or offers to sell, shall, from the time of lodging them for record, be notice of such contracts to all persons.

History. 494a.

NOTES TO DECISIONS

1.Notice to Subsequent Purchasers.

Where company purchased land after proper acknowledgment and recording of an option to purchase given by grantor to a third party, the company was not an innocent purchaser for value without notice. Chesbrough v. Vizard Inv. Co., 156 Ky. 149 , 160 S.W. 725, 1913 Ky. LEXIS 364 ( Ky. 1913 ).

An option contract, being an interest in lands, when properly acknowledged is a recordable instrument, and when it is properly recorded it gives notice to subsequent purchasers from the owner. Fields & Combs v. Vizard Inv. Co., 168 Ky. 744 , 182 S.W. 934, 1916 Ky. LEXIS 621 ( Ky. 1916 ).

Cited:

Harrison v. Harold Cox Concrete Constr. Co., 440 F. Supp. 859, 1977 U.S. Dist. LEXIS 14441 (W.D. Ky. 1977 ).

Research References and Practice Aids

ALR

Pre-emptive rights to realty as violation of rule against perpetuities or rule concerning restraints on alienation. 40 A.L.R.3d 920.

382.100. Contracts for sale of real property may be recorded.

Any contract for the sale of real property or any interest therein, when acknowledged or proven as deeds are required to be, may be recorded in the county in which the property is situated, in the same offices and books in which deeds are recorded, and the record of any such contract recorded shall, from the time of lodging the contract for record, be notice of the contract to all persons.

History. 500.

NOTES TO DECISIONS

1.Construction.

To determine whether judgment creditor, who had levied execution and filed lis pendens notice against debtor’s property prior to the recording of debtor’s contract for sale and deed to third party, had a lien as against third party grantee where creditor was without actual notice of grantee’s claim, this section must be read in connection with KRS 382.270 and 382.450 . Bradshaw v. Dunlap, 217 Ky. 644 , 290 S.W. 501, 1927 Ky. LEXIS 42 ( Ky. 1927 ).

2.Application.

This section only applies to contracts which are not deeds; the instrument in question was a deed and was governed by KRS 382.270 . Miller v. Tennessee Chemical Co., 251 Ky. 30 , 64 S.W.2d 437, 1933 Ky. LEXIS 805 ( Ky. 1933 ).

A written instrument purporting to provide for an agreed division of the partnership profits between four realtors as partners was not such an instrument as was legally recordable so as to constitute constructive notice of the contract to all persons dealing with the property therein described. Eubanks v. Wilson, 252 Ky. 110 , 66 S.W.2d 65, 1933 Ky. LEXIS 1003 ( Ky. 1933 ).

3.Failure to Acknowledge.

A contract which was recorded although it was not acknowledged by the company president who executed it nor witnessed by two witnesses did not serve to impart constructive notice. Horseshoe Coal Co. v. Fields, 207 Ky. 172 , 268 S.W. 1078, 1925 Ky. LEXIS 46 ( Ky. 1925 ).

Contract, though recorded, did not give constructive notice as it was never acknowledged by the parties. Ashurst v. Cooper's Adm'rs, 218 Ky. 459 , 291 S.W. 730, 1927 Ky. LEXIS 181 ( Ky. 1927 ).

4.Failure to Record.

Where a vendor’s lien on the land was reserved in a separate contract which was not recorded and not in the title bond itself, the lien of the third person reserved in the contract was inferior to that of the bona fide purchaser. Hurst v. Hurst, 76 S.W. 325, 25 Ky. L. Rptr. 714 (1903).

5.Notice.

Where vendor did not reserve to himself as against subsequent vendees any lien upon or right to or easement in the property he is conveying, he may protect himself against subsequent vendees, notwithstanding the omission from his deed, by recording the contract of sale before his vendee has parted with title and possession. Bailey v. Southern R. Co., 112 Ky. 424 , 60 S.W. 631, 1901 Ky. LEXIS 281 ( Ky. 1901 ).

The recording of a title bond imparts to it no more legal force, except as serving notice to creditors and purchasers, than if it were not recorded. Burkhart v. Loughridge, 116 Ky. 604 , 76 S.W. 397, 25 Ky. L. Rptr. 815 , 1903 Ky. LEXIS 223 ( Ky. 1903 ).

Since recording of title bond was notice that purchase money had been paid, title was acquired as against vendor by third person who purchased property from vendee, without notice and in good faith, pending suit by vendor to enforce lien for unpaid price but where vendor had failed to file notice of lis pendens as required. Begley v. Combs, 106 S.W. 246, 32 Ky. L. Rptr. 538 (1907).

Prior to the enactment of this section bonds for title to land and other contracts with reference to interests therein were not authorized by law to be acknowledged and proved as deeds, and could not be recorded, and hence could not impart notice to subsequent purchasers. Richards v. Potter, 124 S.W. 850, 1910 Ky. LEXIS 645 ( Ky. 1910 ).

A title bond was lodged for record before deed and grantee in deed took with constructive notice of rights under the title bond where deed was presented to deputy clerk who told grantee and his attorney the deed could not be lodged for record until it contained revenue stamps and while they went out to get the stamps the title bond was lodged for record. Eversole v. Huff, 205 Ky. 314 , 265 S.W. 797, 1924 Ky. LEXIS 103 ( Ky. 1924 ).

Where execution was levied on debtor’s land and lis pendens notice filed by a judgment creditor without actual notice of contract of sale and deed by debtor to a third party and prior to recording by third party, the judgment creditor had a lien on the land against third party grantee, the land could be sold to satisfy the judgment creditor’s lien although before adoption of this section, KRS 382.270 and 382.450 , which must all be read together, if the judgment creditor had notice before the sale under the execution he had no preference. Bradshaw v. Dunlap, 217 Ky. 644 , 290 S.W. 501, 1927 Ky. LEXIS 42 ( Ky. 1927 ).

6.Proof of Execution of Title Bond.

Unlike a deed duly acknowledged or certified, or an official copy of such deed, a title bond does not prove itself, but its execution by the putative makers must be shown affirmatively by the party relying on it or claiming under it and its being recorded under this section does not change this rule. Burkhart v. Loughridge, 116 Ky. 604 , 76 S.W. 397, 25 Ky. L. Rptr. 815 , 1903 Ky. LEXIS 223 ( Ky. 1903 ).

Opinions of Attorney General.

A coal lease for five (5) years or less would be recordable if it contains the entire agreement and is properly executed as required by law. OAG 82-296 .

Although KRS 382.080 , standing alone, may contain some suggestion that a coal lease of five (5) years or less may not require recordation, and unrecorded might prevail against a bona fide purchaser for value without notice, such construction is not in conformity with the Kentucky law (including this section and KRS 382.270 ) as interpreted by the courts. A coal lease of five (5) years or less, to be good against a bona fide purchaser for value without notice, must be properly recorded in the county clerk’s office. OAG 82-296 .

The statute of frauds, KRS 371.010 , has no relation to the system of constructive notice established pursuant to this section and KRS 382.270 . Therefore, the recording of a memorandum of a coal lease will not suffice to be effective against bona fide purchasers for value without notice. OAG 82-296 .

This section and KRS 382.270 emphasize that no conveyance of any interest in land shall be valid against a purchaser for valuable consideration, without notice thereof, unless duly lodged for record. OAG 82-296 .

Research References and Practice Aids

Cross-References.

Contract for game refuge; recordation, KRS 150.240 .

382.110. Recording of deeds and mortgages — Place of recording — Use of certified copies of original records — Contents of deed — Filing of deed in lieu of foreclosure — Time for filing deed.

  1. All deeds, mortgages and other instruments required by law to be recorded to be effectual against purchasers without notice, or creditors, shall be recorded in the county clerk’s office of the county in which the property conveyed, or the greater part thereof, is located.
  2. No county clerk or deputy county clerk shall admit to record any deed of conveyance of any interest in real property equal to or greater than a life estate, unless the deed plainly specifies and refers to the immediate source from which the grantor derived title to the property or the interest conveyed therein.
  3. An authentic photocopy of any original record may be certified, as a true, complete, unaltered copy of the original record on file by the official public custodian of the record. A certified copy of a document certified by the official public custodian of that document may be submitted for filing in any other filing officer’s jurisdiction as though it were the original record. However, no county clerk or deputy county clerk shall accept for filing any original document or certified copy of any document unless the original document and its certified copy conforms to all statutory requirements for filing the document under KRS Chapter 382. The provisions of this subsection shall apply only to a record generated and filed in Kentucky, and only if the certified copy thereof is to be utilized in Kentucky. If the record is a foreign record or a Kentucky record to be filed or utilized in a foreign jurisdiction, then this subsection shall not apply and applicable federal, Kentucky, or foreign law shall apply.
  4. If the source of title is a deed or other recorded writing, the deed offered for record shall refer to the former deed or writing, and give the office, book and page where recorded, and the date thereof. If the property or interest therein is obtained by inheritance or in any other way than by recorded instrument of writing, the deed offered for record shall state clearly and accurately how and from whom the title thereto was obtained by the grantor.
  5. If the title to the property or interest conveyed is obtained from two (2) or more sources, the deed offered for record shall plainly specify and refer to each of the sources in the manner provided in subsections (2) and (4), and shall show which part of the property, or interest therein, was obtained from each of the sources.
  6. No grantor shall lodge for record, and no county clerk or deputy shall receive and permit to be lodged for record, any deed that does not comply with the provisions of this section.
  7. No clerk or deputy clerk shall be liable to the fine imposed by subsection (1) of KRS 382.990 because of any erroneous or false references in any such deed, nor because of the omission of a reference required by law where it does not appear on the face of such deed that the title to the property or interest conveyed was obtained from more than one (1) source.
  8. This section does not apply to deeds made by any court commissioner, sheriff or by any officer of court in pursuance of his duty as such officer, nor to any deed or instrument made and acknowledged before March 20, 1928. No deed shall be invalid because it is lodged contrary to the provisions of this section.
  9. A mortgage holder shall file a deed in lieu of foreclosure in the county clerk’s office of the county in which the property conveyed, or the greater part thereof, is located, no later than forty-five (45) days after the date the deed in lieu of foreclosure is executed.
  10. A deed filed pursuant to KRS 426.577 shall be filed by the grantee within five (5) business days of receipt of the deed from the commissioner appointed by a court to convey the property.

History. Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 495; 2005, ch. 69, § 2, effective June 20, 2005; 2012, ch. 44, § 1, effective July 12, 2012; 2016 ch. 11, § 2, effective July 15, 2016.

NOTES TO DECISIONS

1.In General.

The zoning ordinances assisted the county clerk and the Property Valuation Administrator (PVA) in properly performing their statutorily required duties, including the county clerk’s duty to record lawful deeds under KRS 382.110 and KRS 382.335 , and the PVA’s duty to maintain lists of all real property additions to the property tax rolls for the county under KRS 132.015 . A ruling that the ordinances interfered with those duties ignored that, under KRS 100.277 , a planning commission was authorized to approve plats of subdivisions of land, such approval had to be obtained before plats may be recorded, and instruments referring to unapproved plats or subdivisions were void. Campbell County Fiscal Court v. Nash, 2008 Ky. App. LEXIS 373 (Ky. Ct. App. Dec. 12, 2008), review granted, transferred, 2010 Ky. LEXIS 40 (Ky. Jan. 13, 2010).

2.Application.

The receipt by the clerk and the recordation in the deed book of a lease which also created a nonpossessory security interest in personal property was not sufficient to perfect the security interest under the terms of the Uniform Commercial Code nor was it constructive notice of the security interest created therein. In re Leckie Freeburn Coal Co., 405 F.2d 1043, 1969 U.S. App. LEXIS 9150 (6th Cir. 1969), cert. denied, Foster v. Hamblin, 395 U.S. 960, 89 S. Ct. 2101, 23 L. Ed. 2d 746, 1969 U.S. LEXIS 3173 (1969). (See KRS 355.9-401 to 355.9-406.).

Recording statutes do not include street improvement liens. Jackson's Heirs v. Willson, 226 Ky. 211 , 10 S.W.2d 816, 1928 Ky. LEXIS 58 ( Ky. 1928 ).

3.Place of Recording.

This section allows a deed conveying land lying partly in two (2) or more counties to be recorded in that county in which the greater part lies, and makes such record full constructive notice. Shively v. Gilpin, 66 S.W. 763, 23 Ky. L. Rptr. 2090 (1902).

A chattel mortgage is required to be recorded in the county of the mortgagor’s residence, that being, in legal contemplation, the situs of the property. Riley v. Commonwealth, 275 Ky. 370 , 121 S.W.2d 921, 1938 Ky. LEXIS 436 ( Ky. 1938 ). (See KRS 355.9-401 to 355.9-406.).

Where New York law provided that a mortgage of residents be recorded in the county of residence but that mortgages of nonresidents be recorded where the chattel was at the time of execution, a mortgage executed by a Kentucky resident on a chattel located in Brooklyn, New York, was valid when recorded in Brooklyn, New York. National Fire Ins. Co. v. Collinsworth, 288 Ky. 398 , 156 S.W.2d 157, 1941 Ky. LEXIS 102 ( Ky. 1941 ). (See KRS 355.9-401 to 355.9-403.).

The better and usual practice of recording is to record deeds and other instruments affecting title to real estate in each county in which any part of the real estate affected is situated. Branaman v. Black Tam Mining Co., 446 S.W.2d 573, 1969 Ky. LEXIS 129 ( Ky. 1969 ).

Where three (3) separate tracts of land were conveyed by the same deed, although the greater portion of the three (3) tracts combined was situated in Union County but one tract was situated in Webster County, the deed to the tract in Webster County was properly filed in Webster County and afforded constructive notice. Branaman v. Black Tam Mining Co., 446 S.W.2d 573, 1969 Ky. LEXIS 129 ( Ky. 1969 ).

4.Source of Grantor’s Title.

The fact that deed to vendor in contract for sale of land did not specify source of title was no justification for vendee’s refusal to perform, where deed to grantor was recorded. McPherson v. Gordon, 96 S.W. 791, 29 Ky. L. Rptr. 1073 , 29 Ky. L. Rptr. 826 , 1906 Ky. LEXIS 287 ( Ky. 1906 ).

A deed conveyed good title as between parties, though it did not state name of grantor’s grantor or page of record upon which his deed was recorded. Perkins v. J. M. Robinson, 124 S.W. 310, 1910 Ky. LEXIS 641 ( Ky. 1910 ).

A tendered deed which stated “And being the same property conveyed to Jos. F. Overstreet by J. C. Woodward and wife by deed dated April 18, 1890, and of record in Deed Book 88, page 112, Fayette County Court Clerk’s office. The said John M. Overstreet, Robt. S. Overstreet, Jennie O. Stagg, Robt. J. Mann and Fannie Mann Rsesigiue (the last two named being the only children and heirs at law of Maggie Overstreet) all being of lawful age, and being all and the only heirs at law of Jos. F. Overstreet, deceased” conformed to requirements of this section, as to statement of manner of derivation of title to grantor. Gormley v. Overstreet, 155 Ky. 820 , 160 S.W. 483, 1913 Ky. LEXIS 341 ( Ky. 1913 ).

Certain deed did not conform to the requirements of this section as to derivation of title to grantor, and should not have been recorded by clerk. Fordson Coal Co. v. Wells, 245 Ky. 291 , 53 S.W.2d 564, 1932 Ky. LEXIS 591 ( Ky. 1932 ).

Where deed recites that described land is the same as that conveyed by a previous deed in grantor’s chain of title, the deed will be treated as conveying all of the land described in the previous deed, even though the description in the instant deed covers a smaller boundary than that in the previous deed. Elliott v. Green, 294 Ky. 660 , 172 S.W.2d 442, 1943 Ky. LEXIS 504 ( Ky. 1943 ).

A deed is good between grantor and grantee although the source of title is not recited in the deed. Blackburn v. Pond Creek Coal & Land Co., 287 S.W.2d 610, 1956 Ky. LEXIS 474 ( Ky. 1956 ).

5.Reference to Deed Book and Page.

A deed tendered by vendor under accepted proposition of sale containing a reference to deed book and page in which conveyance to vendor was recorded could have been recorded under this section and was sufficient tender of deed. McPherson v. Gordon, 96 S.W. 791, 29 Ky. L. Rptr. 1073 , 29 Ky. L. Rptr. 826 , 1906 Ky. LEXIS 287 ( Ky. 1906 ).

A deed is effective as between the parties even though the instrument is unrecordable because the numbers and pages of the deed books referred to in the sources of title were not filled in as required by this section. Sprowles v. Eversole, 307 Ky. 191 , 210 S.W.2d 346, 1948 Ky. LEXIS 703 ( Ky. 1948 ).

6.Accuracy of Description.

If recorded instrument furnishes marks by which the land can be identified or sufficient to put an intended purchaser upon notice, it constitutes constructive notice, though the description is not accurate. Loeb v. Conley, 160 Ky. 91 , 169 S.W. 575, 1914 Ky. LEXIS 405 ( Ky. 1914 ).

7.Signature and Acknowledgment.

A deed duly executed and acknowledged was binding between the parties and those taking from them by descent, even if not constructive notice to subsequent purchasers where it was lodged with clerk for record but clerk recorded only the body of the deed and the signature and not the clerk’s certificate of acknowledgment. Cain v. Gray, 146 Ky. 402 , 142 S.W. 715, 1912 Ky. LEXIS 81 ( Ky. 1912 ).

A mortgage cannot be legally lodged for record until it has been acknowledged. State Bank of Stearns v. Stephens, 265 Ky. 615 , 97 S.W.2d 553, 1936 Ky. LEXIS 550 ( Ky. 1936 ).

Where record of deed in clerk’s office did not show signature or acknowledgment by one of persons named as grantors, testimony of witness that in case in federal court he heard brother of such person testify that he saw such person sign and acknowledge deed was not competent, and therefore could not overcome record. Fordson Coal Co. v. Vanover, 291 Ky. 447 , 164 S.W.2d 966, 1942 Ky. LEXIS 251 ( Ky. 1942 ).

8.Date of Recording.

The date of recording of a deed does not control, since a deed is effective as between parties without recording, but it is a circumstance which may be considered. Williams v. Thomas, 285 Ky. 776 , 149 S.W.2d 525, 1941 Ky. LEXIS 470 ( Ky. 1941 ).

9.Delivery of Deed.

The general rule is that the lodging of a deed for record in the proper office by the grantor is sufficient to constitute a delivery. Nunn v. Justice, 278 Ky. 811 , 129 S.W.2d 564, 1939 Ky. LEXIS 500 ( Ky. 1939 ).

Where grantees were present when deeds were drawn and lodged of record by grantors and took part in the transaction, the lodging of record undoubtedly constituted valid delivery of the deeds. Nunn v. Justice, 278 Ky. 811 , 129 S.W.2d 564, 1939 Ky. LEXIS 500 ( Ky. 1939 ).

Where deed, in which corporation was named as grantee was found, after the death of an officer of the corporation who had charge of the papers and deeds of the corporation, among the papers of such officer, the presumption thereby arising, that the deed had been delivered to the corporation was not overcome by the fact that the deed had not been recorded. Stearns Coal & Lumber Co. v. Douglas, 299 Ky. 314 , 185 S.W.2d 385, 1944 Ky. LEXIS 1045 ( Ky. 1944 ).

The possession of a deed by the grantee, and its recording, is presumptive evidence that the deed was delivered. Wells v. Butcher, 299 Ky. 332 , 185 S.W.2d 406, 1945 Ky. LEXIS 418 ( Ky. 1945 ).

10.Mortgages.

Recording of mortgages executed by person in possession of land was notice to holders of legal title that person in possession was claiming title adverse to them. Myers v. Bates, 291 Ky. 650 , 165 S.W.2d 340, 1942 Ky. LEXIS 295 ( Ky. 1942 ).

Circuit Court did not clearly err in determining that the first of two (2) banks did not have a valid legal mortgage and/or a valid equitable mortgage on the subject property, as that bank’s debtor was not the true owner of the property, and thus, lacked the power to mortgage it; hence, the first bank acquired no power to assert a lien on the property and could not claim that the second bank was depriving it of money or benefits. Citizens Bank of N. Ky., Inc. v. PBNK, Inc., 2006 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 17, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 826 (Ky. Ct. App. Feb. 17, 2006).

Where a mortgage and deed were properly acknowledged and proved as required by KRS 382.270 and properly recorded pursuant to KRS 382.110 as of the date the Chapter 7 debtors filed their petition, then as a matter of law a trustee was on constructive notice of the mortgage, which negated his use of 11 U.S.C.S. § 544(a)(3) to avoid a bank’s mortgage because he would not have been a bona fide purchaser under state law. Flener v. Monticello Banking Co. (In re Estes), 429 B.R. 872, 2010 Bankr. LEXIS 1560 (Bankr. W.D. Ky. 2010 ).

Because the plain language of the mortgage contract did not grant the lender a lien on debtor’s manufactured home as personal property, the lender did not obtain a security interest in the manufactured home through the mortgage contract, and even if the lender had obtained a lien against the manufactured home by way of the mortgage contract, it was undisputed that the lender did not note the security interest on the certificate of title, and the filing of a lis pendens could not serve to perfect a security interest in a manufactured home; accordingly, before the state-court foreclosure judgment, the lender did not have a perfected lien on debtor’s manufactured home. Dickson v. Countrywide Home Loans (In re Dickson), 655 F.3d 585, 2011 FED App. 0242P, 2011 U.S. App. LEXIS 17830 (6th Cir. 2011).

11.Improperly Recorded Deed.

Although a deed is not properly recorded it is a valid transfer of title and is effective as between the grantor and grantee. Howard v. Kelsay, 230 Ky. 61 , 18 S.W.2d 884, 1929 Ky. LEXIS 23 ( Ky. 1929 ).

12.Failure to Record.

A second deed conveyed nothing to a third party and it was significant that third party did not attempt to have the deed recorded in the county where 40 of 50 acres was located as provided by this section where purchaser had the first deed to the property executed in his name and the second deed executed to the third party to assist him in obtaining a liquor license. Edwards v. Wilson, 286 Ky. 636 , 151 S.W.2d 756, 1941 Ky. LEXIS 318 ( Ky. 1941 ).

Failure to record deed does not affect title as between grantor and grantee, where there has been a delivery and acceptance. Fitzpatrick v. Layne, 291 Ky. 523 , 165 S.W.2d 13, 1942 Ky. LEXIS 263 ( Ky. 1942 ).

13.Burden of Proof.

Burden of proof of invalidity of recorded conveyance must be sustained by clear and convincing testimony. Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ).

Recording or other statutory evidence of due execution of recorded conveyance furnishes strong presumptive evidence of its execution, and burden is on one contesting validity to prove facts relied on as a basis of contest. Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ).

Cited:

Scoggan v. Hoff, 165 F. Supp. 424, 1958 U.S. Dist. LEXIS 3704 (D. Ky. 1958 ); Hughes v. Wallace, 118 S.W. 324, 1909 Ky. LEXIS 494 ( Ky. 1909 ).

Opinions of Attorney General.

Under this section, a deed that recites the source of title but omits the recording data of the source deed cannot be accepted for recordation. OAG 67-549 .

Where the grantor held title by adverse possession, a recital in the deed clearly and accurately stating the nature of and circumstances surrounding the immediate source of the title claim would make the deed recordable. OAG 68-270 .

Where the grantor held title to property by virtue of a lost deed and adverse possession, a recitation of such facts in the deed would make the deed recordable. OAG 68-270 .

Where a deed embraces land in more than one (1) county the real estate transfer tax imposed by KRS 142.050 would be computed on the value of all the property conveyed in such a deed. OAG 68-285 .

Deeds and related affidavits of descent should be lodged for record and recorded and indexed as separate instruments. OAG 68-531 .

This section would apply to easements which are presently vested easements granted in perpetuity. OAG 72-559 .

A clerk has no authority to write in a deed missing information relative to the immediate source of title, or relative to any other missing information. OAG 72-657 .

Where a deed does not show any deed recording data or an affidavit of descent as to the immediate source of the grantor’s title it is not recordable. OAG 75-150 .

The lease of the mineral interest in a parcel of land for a term of 20 years is not equal to or greater than a life estate and, therefore, is not subject to the provisions of this section. OAG 76-683 .

Since the county clerk must be permitted to complete his timely recording of deeds and mortgages, the clerk is not required to indicate a specific page number for an instrument until the recording has been completed. OAG 77-169 .

Because of the complexity and uncertainty surrounding quitclaim deeds as to any interest conveyed, this section was not intended to apply to quitclaim deeds. OAG 77-278 .

Where a deed contains land conveyed under one (1) boundary as contiguous property, then subsection (1) of this section requires the deed to be recorded in the county in which a greater portion of the one contiguous tract lies; if the deed, or other instrument required to be recorded, involves two (2) or more tracts which are not contiguous, then, as to a particular tract of the instrument, the instrument must be recorded in the county in which a greater portion of the particular tract of land lies. OAG 78-294 .

Where a land instrument is recorded in two (2) counties, the clerk in each county should be paid any applicable clerk’s fees. OAG 78-294 .

The county clerk cannot change or alter any such record even though all parties would agree to it. OAG 79-52 .

Where A owns Blackacre and wishes to convey it to B by a general warranty deed, which contains as a description only the date and recording information as to deed book, deed page and county of the deed by which A took title to Blackacre, such a description is sufficient under this section to require the clerk to record the deed from A to B, since reference is made in the general warranty deed to the immediate source of title, which source fully describes the land, and, taken together, they yield the information necessary for the clerk to record the deed. OAG 81-100 .

Where a deed states: “the Grantor does hereby bargain, sell, alien, grant, and convey unto the grantee, its successors or assigns, that certain real property located in Warren County, Kentucky, more particularly described on Exhibit A attached hereto and made a part hereof,” and exhibit “A” gives a specific description of the property, refers to a plat book in which the lot plat is recorded and also gives the immediate source of title as required by subsection (2) of this section, such instrument, as relates to the land description, is sufficient for purposes of recording by a county clerk. OAG 81-283 .

There is no law or legal principle prohibiting a grantee who has tendered a deed and land purchase contract to the county clerk from retrieving them from the clerk prior to recordation. OAG 81-392 .

An unrecorded deed, if otherwise validly executed, delivered and accepted, is good against the grantor and his heirs; however, the deed is not valid as to a creditor or other purchaser without actual notice of the transaction. OAG 83-276 .

Where a county clerk located a number of duly executed and acknowledged deeds that were delivered to the clerk’s office some 20 to 30 years ago for recordation, but the deeds were in fact never recorded, the deeds were correct in form and remained recordable; accordingly, the county clerk should record such instruments, unless beforehand he received an order of a court of law or the fiscal court not to record. OAG 83-276 .

The county clerk has no authority to fill in and complete blanks left in deeds, mortgages, etc., which are filed for recording. OAG 83-496 .

Subsection (1) of this section was designed to cover only contiguous land in a single tract or boundary; thus, where a deed contains noncontiguous property and more than one (1) boundary of land lying in two (2) or more counties, such deed, to give constructive notice as to all land in the deed, must be recorded in the respective counties in which each parcel is located. OAG 84-48 .

Where the land description of purchased property in reality embraced one (1) boundary, but involved a land strip contiguously extending through four (4) counties, the deed was properly recorded in the county in which the greater part of the land conveyed lay; the correct recording in the county containing the greater land area provided constructive notice as to all of the land described in the deed and no additional recording in the other three (3) counties was necessary or legally required. Thus, the clerks in the other three (3) counties could and should have legally refused to record such deed. OAG 84-48 .

Research References and Practice Aids

Cross-References.

Brand for timber, recording of, KRS 364.070.

Cemetery owned by sixth-class city, record of plat and title to lots, KRS 88.120 .

Mayor of fifth-class city to sign all conveyances made by city, KRS 87.130 .

Mineral lease of ward’s property, procedure and recording, KRS 387.150 , 387.160 , 387.250 .

Railroads to record lease or contract, KRS 277.110 .

Recording of insurance conveyances, KRS 304.2-050 .

Recording of wills, deposit with clerk, KRS 394.110 , 394.300 .

Register of transfers of real property in first-class cities, KRS 91.320 .

State lands, purchases and leases for governmental purposes, KRS 56.030 , 56.040 , 56.060 .

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Kentucky Law Journal.

Kentucky Law Survey, Weinberg, Graham and Stipanowich, Modernizing Kentucky’s Uniform Commercial Code, 73 Ky. L.J. 515 (1984-85).

Treatises

Petrilli, Kentucky Family Law, Court Procedure, § 23.34.

382.120. Real property acquired by descent — Requirements for conveyance of — Indexing — Clerk’s fees.

  1. Before any deed to real property, the title to which has passed to the grantor under the laws of descent, is filed for record the grantor or grantee, or the agent or attorney or either, shall present to the county clerk the affidavit of the grantor or any one (1) of the heirs at law or next of kin of the ancestor of the grantor, or of two (2) residents of this state, each of whom has personal knowledge of the facts, which affidavit shall set forth:
    1. The name of the ancestor;
    2. The date of the ancestor’s death;
    3. Whether the ancestor was married or single, and if married, the name of the surviving spouse and his or her address;
    4. The place of residence at the time of the ancestor’s death, if known to the affiant or affiants;
    5. The fact that the ancestor died intestate; and
    6. The names, ages and addresses, so far as known or ascertainable, of each of such ancestor’s heir at law and next of kin, who by his death inherited such real property, and the relationship of each to the ancestor and the interest in such real property inherited by each.
  2. The affidavit shall be filed with the clerk of the county in which the real property is situated, at or before the time when the deed or conveyance is filed with the clerk for record, and shall be recorded in the record of deeds, and indexed in the general index of deeds in the name of such ancestor as grantor, and in the name of each of such heirs at law or next of kin as grantees, in the same manner as if such names occurred in a deed of conveyance from the ancestor to the heirs at law. For indexing and recording the affidavit, the clerk shall receive the same fees as are allowed for recording and indexing deeds.
  3. No county clerk or deputy clerk shall receive or permit to be lodged for record any such deed until the affidavit has been presented to him, but nothing in this section shall prevent the recording from being legal of any such deed lodged for record prior to the filing of the affidavit.

History. 495a-1, 495a-2: amend. Acts 1980, ch. 259, § 2, effective July 15, 1980.

NOTES TO DECISIONS

1.Affidavit.

This section, which merely sets out the steps an intestate heir must take to enable him to file a deed and convey his interest, does not invest the required affidavit of descent with the effect of a warranty of title. Sirls v. Jordan, 625 S.W.2d 106, 1981 Ky. App. LEXIS 301 (Ky. Ct. App. 1981).

Although the contents of the affidavit of descent required by this section provides the potential purchaser of real property with notice of the source of title claimed by the grantor, this section does not raise the affidavit to the level of conclusive proof of heirship. Sirls v. Jordan, 625 S.W.2d 106, 1981 Ky. App. LEXIS 301 (Ky. Ct. App. 1981).

The legislature anticipated the risk of fraud inherent in the affidavit of descent required by this section because it supplied a statutory cause of action in subsection (2) of KRS 382.990 for an injured party against a person who knowingly makes a false statement in an affidavit of descent. Sirls v. Jordan, 625 S.W.2d 106, 1981 Ky. App. LEXIS 301 (Ky. Ct. App. 1981).

2.— Time of Filing.

The required affidavit may be filed at any time prior to recording the purchaser’s deed. Parrish v. Redmon, 285 Ky. 613 , 148 S.W.2d 680, 1941 Ky. LEXIS 417 ( Ky. 1941 ).

3.Pleadings.

Pleadings simply stating claimants to fee simple title were the heirs of a named individual was a mere conclusion and should have been amended to prove in the regular way they were the heirs of the person named and this section would have given a good idea what should have been shown. Sumner v. Borders, 266 Ky. 401 , 98 S.W.2d 918, 1936 Ky. LEXIS 652 ( Ky. 1936 ).

Cited:

Craton v. Fritschner, 309 Ky. 683 , 218 S.W.2d 14, 1949 Ky. LEXIS 732 ( Ky. 1949 ).

Opinions of Attorney General.

A clerk must record an otherwise properly executed deed which sets out as its source of title an affidavit of descent as is provided in the statute. OAG 61-986 .

Deeds and related affidavits of descent should be lodged for record and recorded and indexed as separate instruments. OAG 68-531 .

If Acts 1966, chapter 210, is constitutional, it repealed this section by implication as applied to Campbell County so that the courthouse district commissioners have no responsibility in connection with the subject index work. OAG 72-176 .

This section mandatorily requires the filing of the affidavit of descent prior to or contemporaneously with the recording of the deed in question. OAG 72-439 .

If any deed subsequent to one which cannot be recorded due to a lack of affidavit involves an inheritance, then such deed is recordable if it meets the requirements of this section but if any such deed involves a deed of transfer, then it would not be recordable. OAG 72-439 .

Affidavits of descent need not include a statement of the fair market value of the property transferred by intestacy. OAG 91-165 .

Under KRS 382.135 , the personal representative of an estate is required to file an affidavit setting forth the value of the interests, but affidavits of descent, under this section, need not contain a statement of value. OAG 91-165 .

Research References and Practice Aids

Cross-References.

Clerk’s fees, KRS 64.010 .

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Kentucky Law Journal.

Patton, Omission of Realty in Probate Administration, 42 Ky. L.J. 666 (1954).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Descent of Real Estate, Form 230.15.

382.130. When deeds executed in this state to be admitted to record.

Deeds executed in this state may be admitted to record:

  1. On the acknowledgment, before the proper clerk, by the party making the deed;
  2. By the proof of two (2) subscribing witnesses, or by the proof of one (1) subscribing witness, who also proves the attestation of the other;
  3. By the proof of two (2) witnesses that the subscribing witnesses are both dead; and also like proof of the signature of one (1) of them and of the grantor;
  4. By like proof that both of the subscribing witnesses are out of the state, or that one (1) is so absent and the other is dead; and also like proof of the signature of one (1) of the witnesses and of the grantor; or
  5. On the certificate of a county clerk of this state, or any notary public, that the deed has been acknowledged before him by the party making the deed or proved before him in the manner required by subsection (2), (3) or (4).

History. 501.

NOTES TO DECISIONS

Analysis

1.Acknowledgment.

Where clerk’s certificate showed deed was acknowledged by subscribing witnesses but not by grantor, the execution of the deed was not properly proven, and the clerk was not authorized to record it and a copy of it was not admissible as evidence. Middlesborough Waterworks Co. v. Neal, 105 Ky. 586 , 49 S.W. 428, 20 Ky. L. Rptr. 1403 , 1899 Ky. LEXIS 244 ( Ky. 1899 ).

A deed, duly signed and delivered by grantor and accepted by grantee, although not acknowledged, was valid as between parties, and those claiming under them, but was not recordable. Travis v. Saunders, 198 Ky. 742 , 249 S.W. 1040, 1923 Ky. LEXIS 549 ( Ky. 1923 ).

An acknowledgment within the legislative meaning of that word as employed in the act, is a form of declaration or admission before an authorized public officer by a person who has executed an instrument, that such instrument is his act and deed. Billington v. Dunn, 217 Ky. 164 , 289 S.W. 213, 1926 Ky. LEXIS 40 ( Ky. 1926 ).

It is the duty of the county clerk under KRS 61.060 to take acknowledgments to certify in writing to the acknowledgment and no facts officially stated in the certificate can be questioned except on allegation of fraud in party benefited thereby or mistake on the part of the officer unless in a direct proceeding against clerk or his sureties. Morgan County Nat'l Bank v. Crace, 249 Ky. 461 , 61 S.W.2d 10, 1933 Ky. LEXIS 552 ( Ky. 1933 ).

Under this section a mortgage cannot be legally lodged of record until acknowledged and by KRS 378.070 an attack upon a preferential mortgage must be made within six months after it is legally lodged of record, but where a preferential mortgage is not properly acknowledged an attack on it can be commenced at any time. State Bank of Stearns v. Stephens, 265 Ky. 615 , 97 S.W.2d 553, 1936 Ky. LEXIS 550 ( Ky. 1936 ).

Contract in form of a deed with a lien retained for payment of purchase price, but without a certificate of acknowledgment, had force and effect of a deed as between vendor and vendee and operated to pass the title to vendor. Adams v. Boone Fiscal Court, 271 Ky. 729 , 113 S.W.2d 1, 1937 Ky. LEXIS 262 ( Ky. 1937 ).

A notary’s certificate of acknowledgment upon a deed purports absolute verity unless attacked in the manner outlined in KRS 61.060 . The presumption is in favor of the officer’s act, and the burden is upon the parties asserting fraud or mistake to establish it, not merely by a preponderance of the evidence, but by clear and convincing evidence such as to leave no doubt. Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

Although a deed may have been defectively acknowledged yet it was good between the parties and passed title from grantor to grantee, for as a general rule an unacknowledged deed passes title between the parties and those claiming under them although it is not a recordable instrument. Cornett v. Maddin, 277 Ky. 480 , 126 S.W.2d 871, 1939 Ky. LEXIS 680 ( Ky. 1939 ).

An unacknowledged deed, although not recordable, passes title between the parties where no intervening equities are affected. Jones v. Driver, 282 Ky. 82 , 137 S.W.2d 729, 1940 Ky. LEXIS 123 ( Ky. 1940 ).

An unacknowledged deed was valid as between grantee and devisees of grantor. Jones v. Driver, 282 Ky. 82 , 137 S.W.2d 729, 1940 Ky. LEXIS 123 ( Ky. 1940 ).

If a deed is properly signed it is good as between the parties although it is not acknowledged or recorded. Blankenship v. Green, 283 Ky. 700 , 143 S.W.2d 294, 1940 Ky. LEXIS 407 ( Ky. 1940 ).

A person who signs and acknowledges a deed in which he is not named as a grantor is not bound by the deed and acquires no rights under it. Flynn v. Fike, 291 Ky. 316 , 164 S.W.2d 470, 1942 Ky. LEXIS 227 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

Acknowledgment before an officer not authorized to take acknowledgments did not give any effect to a deed, although it could be recorded, but such an instrument could be treated as a title bond. Simpson's Ex'x v. Loving, 66 Ky. 458 , 1867 Ky. LEXIS 200 ( Ky. 1867 ).

2.Proper Clerk.

The acts of a clerk in taking and certifying an acknowledgment are ministerial, and not void although the clerk is an interested party. Eversole v. Huff, 205 Ky. 314 , 265 S.W. 797, 1924 Ky. LEXIS 103 ( Ky. 1924 ).

Deputy clerk had the right to sign the name of the principal clerk to the certificate of acknowledgment, and his official acts should have been done in the name of the principal clerk, and not in the name of the deputy. Talbott's Devisees v. Hooser, 75 Ky. 408 , 1876 Ky. LEXIS 109 ( Ky. 1876 ).

Minor could act as deputy clerk and take acknowledgments to deeds. Talbott's Devisees v. Hooser, 75 Ky. 408 , 1876 Ky. LEXIS 109 ( Ky. 1876 ).

After expiration of term clerk could not lawfully sign his name officially on a deed book, and thereby give validity to a deed which was recorded but not signed by him. Fitzgerald v. Milliken, 83 Ky. 70 , 7 Ky. L. Rptr. 11 , 1885 Ky. LEXIS 38 (Ky. Ct. App. 1885).

The failure of deputy clerk to sign his principal’s name to certificate of acknowledgment did not render his acts invalid. Humphrey's Ex'r v. Wade, 84 Ky. 391 , 1 S.W. 648, 8 Ky. L. Rptr. 384 , 1886 Ky. LEXIS 79 ( Ky. 1886 ). See Beuley v. Curtis, 92 Ky. 505 , 18 S.W. 357, 13 Ky. L. Rptr. 703 , 1892 Ky. LEXIS 15 ( Ky. 1892 ).

The acts of a clerk in taking and certifying an acknowledgment were ministerial, and not void although the clerk was an interested party. Stevenson v. Brasher, 90 Ky. 23 , 13 S.W. 242, 11 Ky. L. Rptr. 799 , 1890 Ky. LEXIS 36 ( Ky. 1890 ).

3.Liability of Clerk.

Clerk is liable for taking acknowledgment of an impostor or a forgery unless he can prove due care and diligence was used to prevent the fraud. Commonwealth use of Green v. Johnson, 123 Ky. 437 , 96 S.W. 801, 29 Ky. L. Rptr. 897 , 1906 Ky. LEXIS 176 ( Ky. 1906 ). See Samuels v. Brand, 119 Ky. 13 , 82 S.W. 977, 26 Ky. L. Rptr. 943 , 1904 Ky. LEXIS 135 ( Ky. 1904 ).

4.Liability of Notary Public.

Surety on notary’s bond was liable for loss resulting from notary’s certifying void deed. Aetna Casualty & Surety Co. v. Commonwealth, 233 Ky. 142 , 25 S.W.2d 51, 1930 Ky. LEXIS 510 ( Ky. 1930 ).

5.Unrecordable Instruments.

A mere affidavit with jurat does not authorize the recordation of a written instrument, and unless the instrument is a recordable one the entry of it upon the record does not constitute constructive notice to third persons. Billington v. Dunn, 217 Ky. 164 , 289 S.W. 213, 1926 Ky. LEXIS 40 ( Ky. 1926 ).

Although mortgages to secure future advances to the mortgagor or the performance of other obligations than one existing at the date thereof are valid, a mortgage which did not reveal the date and maturity of the obligation secured was not a recordable instrument under KRS 382.330 . Trio Realty Co. v. Queenan, 360 S.W.2d 747, 1962 Ky. LEXIS 225 ( Ky. 1962 ).

6.Failure to Name Grantee.

A deed naming no grantee therein, executed and acknowledged by grantor, was void for lack of a grantee. Aetna Casualty & Surety Co. v. Commonwealth, 233 Ky. 142 , 25 S.W.2d 51, 1930 Ky. LEXIS 510 ( Ky. 1930 ).

7.Deed Unsigned by Grantor.

Deed not signed by grantor is not valid even though acknowledged before clerk, and clerk has no authority to record it. Helton v. Asher, 103 Ky. 730 , 46 S.W. 22, 20 Ky. L. Rptr. 935 , 1898 Ky. LEXIS 118 ( Ky. 1898 ). See Limbach v. Bolin, 169 Ky. 204 , 183 S.W. 495, 1916 Ky. LEXIS 673 ( Ky. 1916 ) ( Ky. 1916 ).

8.Deed of Married Woman.

Deed of married woman may be recorded after her death, and if properly executed will pass the title to grantee. Crawford v. Tate, 105 Ky. 502 , 49 S.W. 307, 20 Ky. L. Rptr. 1314 , 1899 Ky. LEXIS 232 ( Ky. 1899 ).

9.Conditional Sales Contract.

An acknowledgment of a conditional sales contract before a deputy county clerk in accordance with this section was recordable. Quillen v. Commonwealth, 275 Ky. 158 , 120 S.W.2d 1047, 1938 Ky. LEXIS 389 ( Ky. 1938 ) (decision prior to 1960 amendment of KRS 382.200 ). See Uniform Commercial Code KRS 355.9-401 to 355.9-406.

10.Presumptions and Burden of Proof.

Where the execution of a deed was denied by defendant, and it was never legally acknowledged by him, and his signature was by mark, and no proof of its execution was adduced, its authenticity was not established. Abner v. Creech, 79 S.W. 247, 25 Ky. L. Rptr. 1981 (1904).

The burden is on one contesting validity of a recorded instrument to prove facts relied on as a basis of contest since courts generally have construed the record, when they were acknowledged with a valid certificate, or other statutory evidence of their due execution as furnishing strong presumptive evidence of this execution. Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ).

The burden upon the one contesting validity of recorded instrument must be sustained by clear and convincing testimony. Kentland Coal & Coke Co. v. Levine, 224 Ky. 75 , 5 S.W.2d 280, 1928 Ky. LEXIS 525 ( Ky. 1928 ).

Where notary testified that defendant did sign and acknowledge deed, and he was not impeached, a denial by defendant supported only to a limited extent by corroborating circumstances was not sufficient to prove forgery. Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

Cited:

Charles v. Stump (In re Charles), — B.R. —, 2004 Bankr. LEXIS 1741 (Bankr. E.D. Ky. 2004 ).

Notes to Unpublished Decisions

1.Application.

Unpublished decision: KRS 382.130 and 382.160 did not apply to a mortgage that was executed by the debtors before a notary public, because it was not an instrument acknowledged before a clerk or an officer of the state. Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

Opinions of Attorney General.

All deeds may be acknowledged before the circuit court clerk, who in such instance is the proper clerk. OAG 68-271 .

A grantor, husband, may sign a deed in a notary’s presence by making his mark, and his acknowledgment of his execution of the deed may be validly taken before the notary public. OAG 68-438 .

No witnesses to a grantor’s “mark” signature to a deed are necessary since the acknowledgment certificate signed by the notary is sufficient. OAG 68-438 .

A deed dated in 1884 which does not contain an acknowledgment of the grantor’s signature may not be recorded by the county clerk. OAG 74-717 .

A photocopy of a deed, mortgage, lease or other instrument, is not a recordable instrument within the literal and practical meaning of this section. OAG 75-725 .

Where the five (5) basic requisites of an effective deed of real estate conveyance have been followed, the fact that the deed states a later date than the date of the acknowledgment is insignificant. OAG 77-150 .

Where a mineral lease was executed before two (2) subscribing witnesses, but no acknowledgment before the clerk or deputy or a notary by the grantor appeared on the lease, in order for the lease to be properly recordable the two (2) subscribing witnesses must execute a certificate of acknowledgment before the clerk or notary public. OAG 77-295 .

The explicit language of KRS 382.080 envisions the recording of the entire contents of the lease, subject to proper signatures and execution pursuant to this section. OAG 82-296 .

KRS 382.300 imposes, as a condition for the clerk’s recording of a deed, the requirement that the grantor’s signature be acknowledged or proved before him as required by law; the signature of the grantor must be acknowledged or proven, under one of the five (5) alternatives as specifically outlined in this section, if the deed is to be recordable. Thus, where a deed lodged in the clerk’s office was not properly acknowledged or proven (grantor’s signature) as required by this section and KRS 382.300 , it is unrecordable, although it passes title between the parties where no intervening equities are affected. OAG 83-365 .

Research References and Practice Aids

Cross-References.

Acknowledgment of instruments by commissioned officers of armed forces, KRS 384.080 .

Recordability of instrument certified by notary in county other than that of his residence, KRS 423.020 .

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Northern Kentucky Law Review.

Article: From Main Street to Wall Street: Mortgage Loan Securitization and New Challenges Facing Foreclosure Plaintiffs in Kentucky, 36 N. Ky. L. Rev. 395 (2009).

Treatises

Petrilli, Kentucky Family Law, Business Transactions, § 15.4.

382.135. Statement of consideration or market value and mailing and in-care-of addresses required in deed to real property — Exceptions — Affidavit of personal representative — Clerk prohibited from filing noncompliant deed.

  1. In addition to any other requirement imposed by law, a deed to real property shall contain the following:
    1. The full name of the grantor and grantee;
    2. The mailing addresses of the grantor and grantee;
    3. A statement of the full consideration;
    4. A statement indicating the in-care-of address to which the property tax bill for the year in which the property is transferred may be sent; and
      1. In the case of a transfer other than by gift, or with nominal or no consideration a sworn, notarized certificate signed by the grantor or his or her agent and the grantee or his or her agent, or the parent or guardian of a person under eighteen (18) years old, that the consideration reflected in the deed is the full consideration paid for the property; or (e) 1. In the case of a transfer other than by gift, or with nominal or no consideration a sworn, notarized certificate signed by the grantor or his or her agent and the grantee or his or her agent, or the parent or guardian of a person under eighteen (18) years old, that the consideration reflected in the deed is the full consideration paid for the property; or
      2. In the case of a transfer either by gift or with nominal or no consideration, a sworn, notarized certificate signed by the grantor or his or her agent and the grantee or his or her agent, or the parent or guardian of a person under eighteen (18) years old, stating that the transfer is by gift and setting forth the estimated fair cash value of the property.
  2. The deed filing requirements listed in subsection (1)(c), (d), and (e) of this section shall not apply to:
    1. Deeds which only convey utility easements;
    2. Deeds which transfer property through a court action pursuant to a divorce proceeding;
    3. Deeds which convey rights-of-way that involve governmental agencies;
    4. Deeds which convey cemetery lots;
    5. Deeds which correct errors in previous deeds conveying the same property from the same grantor to the same grantee; or
    6. Deeds which convey real property to a local airport board.
  3. In the case of an exchange of properties, the fair cash value of the property being exchanged shall be stated in the body of the deed.
  4. In the event of a transfer of property by will or under the laws of intestate succession, the personal representative of the estate, prior to closing out the estate, shall file an affidavit with the county clerk of each county in which any of the property is located, which shall contain the following:
    1. The names and addresses of the persons receiving each property passing by will or intestate succession; and
    2. The full or fair market value of each property as estimated or established for any purpose in the handling of the estate, or a statement that no such values were estimated or established.
  5. No county clerk or deputy clerk shall lodge for record, and no county clerk or deputy shall receive and permit to be lodged for record, any deed that does not comply with the provisions of this section.
  6. For purposes of subsection (1)(a) of this section, the full name of the grantor and grantee shall be determined as follows:
    1. As provided in KRS 355.9-503(1); or
    2. For a business entity, it shall be synonymous with its real name determined as provided in KRS 365.015(1)(b) and (c); or
    3. For an individual, his or her surname and his or her first personal name or initial, middle personal name or names, or initial or initials, or any combination thereof that includes the individual’s surname.
  7. The receipt for record and recording of any instrument by the county clerk not in compliance with this section shall not prevent the record of filing of the instrument from becoming notice as otherwise provided by law, nor impair the admissibility of the record as evidence.

HISTORY: Enact. Acts 1990, ch. 411, § 4, effective July 13, 1990; 1992, ch. 263, § 8, effective July 14, 1992; 2005, ch. 171, § 1, effective June 20, 2005; 2008, ch. 143, § 3, effective August 1, 2008; 2010, ch. 32, § 1, effective July 15, 2010; 2016 ch. 86, § 15, effective July 15, 2016; 2017 ch. 193, § 22, effective June 29, 2017; 2018 ch. 117, § 1, effective July 14, 2018.

NOTES TO DECISIONS

1.In General.

KRS 382.135 does not contravene the common law regarding the validity of any deed. As between the grantor and grantee, and third parties with notice, even a complete failure to include the consideration certificate called for in KRS 382.135 will not affect the validity of a deed if that deed contains the fundamental elements necessary to a valid and enforceable deed. The deed will remain unrecordable, however, until it substantially complies with KRS 382.135. Smith v. Vest, 265 S.W.3d 246, 2007 Ky. App. LEXIS 466 (Ky. Ct. App. 2007).

While KRS 382.135 requires a certificate of consideration on a deed, it does not contravene Kentucky common law regarding deeds. The common law in Kentucky regarding deeds provides that it is fundamentally necessary that a conveyance identify the grantor or grantors in the body of the instrument in order to pass valid title. Branham v. Estate of Elkins, 425 S.W.3d 103, 2014 Ky. App. LEXIS 17 (Ky. Ct. App. 2014).

2.Enforceable Deed.

A deed was valid and enforceable between the parties since the deed identified the grantor and the grantees, the parties admitted that the property was transferred into three equal shares, with right of survivorship, between the father, the daughter, and the husband, the husband accepted the deed, and the lodging of the deed for record in the proper office by the grantor was sufficient to constitute a delivery; it was irrelevant whether the deed was recordable under KRS 382.135 . Smith v. Vest, 265 S.W.3d 246, 2007 Ky. App. LEXIS 466 (Ky. Ct. App. 2007).

The deed in question is a valid deed if it contains the fundamental elements necessary to a valid and enforceable deed, which are: (1) a grantor and grantee; (2) delivery and acceptance; (3) a divesting of title by grantor and a vesting of title in the grantee. If each of these elements is present, the deed’s recordability in this case is irrelevant. Smith v. Vest, 265 S.W.3d 246, 2007 Ky. App. LEXIS 466 (Ky. Ct. App. 2007).

3.Substantial Compliance

County clerk properly permitted the filing of a deed where it substantially complied with KRS 382.135 ; the mailing addresses were clearly stated in the deed, the consideration of the parties’ mutual desire that they effect ownership of the property jointly with rights of survivorship was sufficient, the parties substantially complied with KRS 382.135 (1)(d) even though the certificate of consideration did not state that it was a gift, and the deed did not have to be signed by the grantee. Smith v. Vest, 265 S.W.3d 246, 2007 Ky. App. LEXIS 466 (Ky. Ct. App. 2007).

4.Requirements.

Appellants argued that the sale of property to a company was contingent on their receipt of the proceeds from easements, but the court disagreed because, in part, appellants affirmed that the total consideration for the property was $250,000, and KRS 382.135 requires all deeds to contain a statement of the full consideration paid or a statement of the fair cash value of the property; the court would violate the spirit of the statute if the court rewarded appellants for under-reporting the consideration they believed they were due by almost $300,000.00. Campbell v. Drescher, 2011 Ky. App. LEXIS 169 (Ky. Ct. App. Sept. 16, 2011).

Cited:

Charles v. Stump (In re Charles), — B.R. —, 2004 Bankr. LEXIS 1741 (Bankr. E.D. Ky. 2004 ).

Opinions of Attorney General.

The personal representative of an estate is required to file an affidavit setting forth the value of the interests, but affidavits of descent, under KRS 382.120 , need not contain a statement of value. OAG 91-165 .

If the legislature intended by subsection (1)(d) of this section to require a statement of the estimated fair cash value of property being transferred only in the case of a transfer by gift, and that such requirement did not apply to a transfer with nominal or no consideration, it would have been unnecessary to make reference to a transfer with nominal or no consideration; the clear purpose of subsection (1)(d), as indicated by its express terms, is to address both a transfer by gift and a transfer with nominal or no consideration. OAG 96-21 .

Research References and Practice Aids

Northern Kentucky Law Review.

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Value, Form 233.22.

382.140. Recording of deeds executed out of state. [Repealed]

HISTORY: 502; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

382.150. Recording of deeds executed in foreign country.

Deeds not executed within the United States or any of its dependencies, may be admitted to record when certified, under his seal of office, by any foreign minister, officer in the consular service of the United States, secretary of legation of the United States, or by the secretary of foreign affairs or a notary public of the nation in which the acknowledgment is made, or by the judge or clerk of a superior court of the nation where the deed is executed, to have been acknowledged or proven before him in the manner prescribed by law.

History. 503.

Research References and Practice Aids

Cross-References.

Acknowledgment of instruments by commissioned officers of armed forces, KRS 384.080 .

382.160. Certificate of acknowledgment or proof of deed.

  1. Where the acknowledgment of a deed is taken by an officer of this state or by an officer residing out of this state, he may simply certify that it was acknowledged before him, and when it was done.
  2. Where a deed is proved by persons other than the subscribing witnesses, the officer shall state the name and residence of each person in his certificate.

History. 504, 507.

NOTES TO DECISIONS

Analysis

1.Effect of Certificate of Acknowledgment.

The fact that a deed was not acknowledged at the time or before the person named in the certificate of acknowledgment does not invalidate the deed. The only effect of the certificate of acknowledgment is to enable the deed to be recorded. United States Trust Co. v. Frakes, 282 Ky. 683 , 139 S.W.2d 759, 1940 Ky. LEXIS 239 ( Ky. 1940 ). (See KRS 382.230 .).

2.Execution by Grantor.

Where clerk’s certificate showed deed was acknowledged by subscribing witnesses but not by grantor as required by KRS 382.130 , the execution of the deed was not properly proven, and the clerk was not authorized to record it and a copy of it was not admissible as evidence. Middlesborough Waterworks Co. v. Neal, 105 Ky. 586 , 49 S.W. 428, 20 Ky. L. Rptr. 1403 , 1899 Ky. LEXIS 244 ( Ky. 1899 ).

3.Deed of Married Woman.

A deed of a married woman executed out of state at a time when married women were excluded from the operation of this law where the certificate of notary failed to show the examination of grantor separate and apart from her husband, amendment of this section and KRS 382.230 to include married women cured such deed. Eckles v. Wood, 143 Ky. 451 , 136 S.W. 907, 1911 Ky. LEXIS 441 ( Ky. 1911 ). See Allee v. Baxter, 207 Ky. 391 , 269 S.W. 318, 1925 Ky. LEXIS 94 ( Ky. 1925 ); see also KRS 382.230 (3).

The acknowledgment of the grantor to an 1887 deed was sufficient under prior law although it failed to state an examination of the wife separate and apart from the husband. Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ). (See KRS 382.230(3).).

Deed was not void for failure of clerk who took the acknowledgment to certify that married woman was examined and acknowledged the deed to be her voluntary act, separate and apart from her husband, as was then required since this section and KRS 382.230 as amended expressly validate all deeds so certified prior to the amendment. Hackney v. Smith, 209 Ky. 806 , 273 S.W. 476, 1925 Ky. LEXIS 606 ( Ky. 1925 ).

The acknowledgment of the grantor was sufficient although it failed to state an examination of the wife separate and apart from the husband. Dowell v. Mitchell, 82 Ky. 47 , 5 Ky. L. Rptr. 746 , 1884 Ky. LEXIS 36 (Ky. Ct. App. 1884). (See KRS 382.230(3).).

4.Defectively Acknowledged Deed.

An unacknowledged or defectively acknowledged deed is good between the parties and those claiming under them, though not recordable. Cornett v. Maddin, 277 Ky. 480 , 126 S.W.2d 871, 1939 Ky. LEXIS 680 ( Ky. 1939 ).

5.Presumptions and Burden of Proof.

A notary’s certificate of acknowledgment upon a deed purports absolute verity unless attacked in the manner provided in KRS 61.060 . The presumption is in favor of the officer’s act, and the burden is upon the parties asserting fraud or mistake to establish it, not merely by a preponderance of the evidence, but by clear and convincing evidence such as to leave no doubt. Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

Where notary testified that defendant did sign and acknowledge deed, and he was not impeached, denial by defendant supported only to a limited extent by corroborating circumstances was not sufficient to prove forgery. Turner v. Howard, 277 Ky. 172 , 126 S.W.2d 135, 1939 Ky. LEXIS 635 ( Ky. 1939 ).

Certificate of notary public that mortgage was signed and acknowledged before him imported verity to the instrument. Catron v. Jones, 281 Ky. 163 , 135 S.W.2d 419, 1939 Ky. LEXIS 27 ( Ky. 1939 ).

Notes to Unpublished Decisions

1.Application.

Unpublished decision: KRS 382.130 and 382.160 did not apply to a mortgage that was executed by the debtors before a notary public, because it was not an instrument acknowledged before a clerk or an officer of the state. Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Abraham Lincoln Issue: Note: Abraham Lincoln and the Evolution of a Fee Simple Deed, 36 N. Ky. L. Rev. 333 (2009).

382.170. Recording of deeds executed according to laws of United States.

The requirements of this chapter as to the acknowledgment or proof of the execution of deeds, shall not apply to deeds made or executed under and in accordance with the laws of the United States. Such deeds, when executed, shall be entitled to be recorded in this state, and shall have the same force and effect as though they had been acknowledged or proved and recorded in accordance with the laws of this state.

History. 516.

382.180. Instrument in foreign language — Recording of.

If a deed or power of attorney, written in any language other than the English, is produced to the proper recording officer, and offered for record, and if the person offering it produces a correct English translation thereof, to be filed in the office and recorded with the deed or power of attorney, the clerk shall record in the proper book both the original and copy.

History. 517.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Durable Power of Attorney, Form 269.06.

382.190. Unrecorded deeds to be advertised by clerk. [Repealed]

HISTORY: 512; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

382.200. Cross-index of conveyances — Filing and recording chattel mortgages, financing statements, and security agreements.

  1. Except as provided in subsection (2) of this section and KRS 382.077 , each county clerk shall make and keep an alphabetical cross-index of all conveyances recorded in his office, and when a mortgage or deed of trust, or any other conveyance, lease, or contract is lodged in his office for record, he shall, at once and before attending to any other business, place the names of the parties to the instrument upon the cross-index in his office, and shall within six (6) days thereafter record the instrument.
  2. Chattel mortgages, financing statements or security agreements shall be filed and recorded in the manner set out in KRS 355.9-519.

HISTORY: 513: amend. Acts 1960, ch. 9, § 1, effective July 1, 1960; 2000, ch. 408, § 183, effective July 1, 2001; 2019 ch. 86, § 41, effective January 1, 2020.

NOTES TO DECISIONS

1.Construction.

This section required the county clerk to keep and maintain a general alphabetical cross-index of all instruments therein referred to and not an alphabetical cross-index for each book. Bentley v. Letcher County, 143 Ky. 585 , 136 S.W. 1008, 1911 Ky. LEXIS 452 ( Ky. 1911 ). See Smith v. Chapman, 153 Ky. 70 , 154 S.W. 915, 1913 Ky. LEXIS 792 ( Ky. 1913 ).

2.Duty of Clerk.

It was the duty of the clerk to keep a current general alphabetical index but no duty devolved upon a county clerk or his deputy to go back prior to his present term of office and make up a general index which should have been but was not kept up currently. Land v. Lewis, 299 Ky. 866 , 186 S.W.2d 803, 1945 Ky. LEXIS 496 ( Ky. 1945 ).

3.Failure of Clerk to Index.

Although the clerk failed to index deed, and grantee withdrew his deed without seeing that the proper index had been made the record of the deed was notice to subsequent purchasers. Herndon v. Ogg, 119 Ky. 814 , 84 S.W. 754, 27 Ky. L. Rptr. 268 , 1905 Ky. LEXIS 40 ( Ky. 1905 ).

The rights of one to whom recordable instrument was made were not affected by failure of clerk to index same. Herndon v. Ogg, 119 Ky. 814 , 84 S.W. 754, 27 Ky. L. Rptr. 268 , 1905 Ky. LEXIS 40 ( Ky. 1905 ). See Great Western Petroleum Corp. v. Samson, 192 Ky. 814 , 234 S.W. 727, 1921 Ky. LEXIS 164 ( Ky. 1921 ); Kentucky River Coal Corp. v. Sumner, 195 Ky. 119 , 241 S.W. 820, 1922 Ky. LEXIS 284 ( Ky. 1922 ).

The failure of the county clerk to keep the required index was an act of nonfeasance for which he would be made liable to any one who might be damaged thereby. Kentucky River Coal Corp. v. Sumner, 195 Ky. 119 , 241 S.W. 820, 1922 Ky. LEXIS 284 ( Ky. 1922 ).

The failure of the county clerk to comply with the provisions of this section and KRS 382.210 as to the indexing of all instruments which affected the title to real estate, did not affect the validity of the constructive notice which was given by placing such an instrument on record. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

Where the clerk recorded an instrument which was recordable in his office, it was notice to all parties as provided by law, and this notice existed regardless of whether the clerk had properly indexed the instrument. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

4.One Way Indexing.

The indexing of deeds “one way” did not satisfy the requirements of the law. Smith v. Chapman, 153 Ky. 70 , 154 S.W. 915, 1913 Ky. LEXIS 792 ( Ky. 1913 ).

5.Indexing in Wrong Names.

A party who purchased property covered by a mortgage indexed in the wrong names of the parties, after he had the record examined by a competent attorney who assured him vendor’s title was free from encumbrance, and who purchased property relying upon such assurance, and without knowledge of encumbrance, could recover of the clerk and his surety. Title Guaranty & Surety Co. v. Commonwealth, 141 Ky. 570 , 133 S.W. 577, 1911 Ky. LEXIS 67 ( Ky. 1911 ).

6.Indexing in Individual Mortgage Book.

The fact that a mortgage was indexed in individual mortgage book was not a compliance with the law. Title Guaranty & Surety Co. v. Commonwealth, 141 Ky. 570 , 133 S.W. 577, 1911 Ky. LEXIS 67 ( Ky. 1911 ).

7.Compensation of Clerk.

A county clerk could not recover from the county for preparing vowel indexes of deed books, mortgage books, and marriage bonds, unless the record of the fiscal court showed either authorization for the work or an agreement to accept and pay. Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ).

It being the county clerk’s statutory duty to prepare small individual books, and the statutes specifying no fee therefor, the fiscal court could make him no allowance therefor. Mills v. Lantrip, 170 Ky. 81 , 185 S.W. 514, 1916 Ky. LEXIS 21 ( Ky. 1916 ).

Cited:

In re Leckie Freeburn Coal Co., 405 F.2d 1043, 1969 U.S. App. LEXIS 9150 (6th Cir. 1969), cert. denied, Foster v. Hamblin, 395 U.S. 960, 89 S. Ct. 2101, 23 L. Ed. 2d 746, 1969 U.S. LEXIS 3173 (1969); Harrison v. Harold Cox Concrete Constr. Co., 440 F. Supp. 859, 1977 U.S. Dist. LEXIS 14441 (W.D. Ky. 1977 ); Cooper v. First Citizens Bank (In re Jones), 186 B.R. 71, 1995 Bankr. LEXIS 1281 (Bankr. W.D. Ky. 1995 ).

Opinions of Attorney General.

This section requires the county clerk to cross-index the mortgage and an assignment contained in the mortgage, showing the linkage between the mortgage and the assignment thereof; the section, in spite of the constructive notice afforded in the proper recording of the mortgage-assignment instrument, requires a proper indexing of the assignment portion as well as the mortgage portion of the instrument, since both transactions affect the title to the real estate in question. OAG 84-78 .

Research References and Practice Aids

Cross-References.

Indexer in counties containing city of first class, KRS 28.220.

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for County Clerks, § 14.00.

382.205. General cross indexes — Adoption and maintenance.

  1. Any county where indexes to the records of deeds, mortgages, wills, marriages, or other public records have been or may hereafter be prepared by the Work Projects Administration or other appropriate agency of the United States government, or by order of the fiscal court of any county, such indexes or any of them may be adopted as the official general cross indexes of such records in the manner provided by this section in addition to each individual book index. Upon the completion of any such indexing project by an appropriate federal agency or by a person or persons acting under the authority of a fiscal court, or at any time thereafter, any citizen of the county may petition the county judge/executive to have said index adopted as the official index. Upon the filing of the petition, the county judge/executive may forthwith by appropriate order designate a licensed attorney practicing in the county who with the county attorney and county clerk shall comprise a commission to examine the index proposed to be adopted and ascertain whether the index is a complete and accurate index of the records to which it pertains. The commission shall thereupon make such examination as may be necessary to ascertain to its satisfaction whether such index is complete and accurate. Upon completion of such examination, the commission shall make a written report to the county judge/executive of the results thereof and of its recommendations, which report shall lie over for exceptions for sixty (60) days. Notice of the filing of said report shall be given by the clerk by publication pursuant to KRS Chapter 424. Exceptions may be filed by any interested person, and if filed shall be heard and determined as in other cases. If no exceptions are filed thereto, or upon the exceptions (if any) the county judge/executive shall hear such proof as may be thought proper respecting the report filed by the clerk and the exceptions, and shall determine whether the said index is complete and accurate, and if it is determined that the index is complete and accurate, an order shall be entered adopting said index; provided, that if from such report or such proof it appears that corrections or additions should be made to such index in order to render it accurate and complete, the order may direct that such corrections or additions shall be made by the clerk, and in that event it shall be the duty of the clerk to make such corrections or additions forthwith, and upon his report that he has done so an order shall be entered adopting the index as so corrected. If adopted, said index shall thereupon become the official general cross index of the records to which it pertains, and all persons shall be entitled to rely thereon to the same extent as if the index had been prepared by the county clerk. Upon the adoption of any such index, it shall be the duty of the clerk to bring same up to date from the point at which same ceased to be made by the agency which prepared it, and to continue and maintain said index thereafter in lieu of the indexing system theretofore used, except he will continue to keep the regular individual book index, and to index all instruments lodged for record in conformity therewith. The indexes theretofore used shall not be destroyed after the adoption of the new indexes, but shall be safely kept by the clerk as other records are kept, subject to inspection by any person interested therein.
  2. Expenses incurred by the county clerk under the provisions of this section shall be paid by the fiscal court of the county.

History. Enact. Acts 1942, ch. 37, §§ 1, 2; 1950, ch. 140; 1966, ch. 239, § 220; 1976 (Ex. Sess.), ch. 14, § 310, effective January 2, 1978; 1978, ch. 384, § 510, effective June 17, 1978.

Opinions of Attorney General.

A clerk may refuse to record a deed, affidavit of descent or any other instrument relating to real property where the tendered instrument is not accompanied by the proper recording fee; however, the clerk may not refuse to record a tendered instrument merely because it does not bear the proper group indexing number under this section; if the clerk refused to record an instrument because it wasn’t accompanied by the proper fee, the clerk would not be liable if in the interim another party filed an instrument which, because it was first recorded, gave that party a superior lien; if, on the other hand, the clerk’s refusal to record arises from the fact that the instrument does not bear the proper group index number, the injured party may have a cause of action against the clerk for damages sustained. OAG 80-464 .

Research References and Practice Aids

Cross-References.

Legal notices, KRS ch. 424.

382.210. General index of real property records in courthouse districts — Contracts for indexing work.

  1. In counties in which a courthouse district has been created and provisions made for appointment of commissioners in that district, the commissioners may direct that the clerk of such county shall, in such district, in addition to the alphabetical cross-index provided for in KRS 382.200 , have made in books prepared for that purpose, general indexes to the records of all the real property in the district by placing under the heads of the original surveyed sections or surveys, or parts of a section or survey, squares, subdivisions, or lots on the left page of such index book:
    1. A plat showing the survey, or part of section thereof, subdivision, square, or lots indexed on the page;
    2. The name of the grantor or grantors;
    3. Next to the right the name of the grantee or grantees;
    4. The number and page of the record where the instrument is found recorded;
    5. The character of the instrument, to be followed by a pertinent description of the property conveyed by the deed, lease, or assignment of lease or other instrument of writing affecting the lot or land described; and
    6. On the opposite page, in like manner, all the mortgages, liens or other encumbrances affecting such real estate.
  2. The clerk of each county having a courthouse district shall, when so directed by the commissioners, prepare the proper specifications for an additional indexing system to bring up and complete the system to the date the new system is installed. He shall advertise for bids for the work under the specifications prepared and shall, with the approval of the commissioners, enter into a contract with the lowest and best bidder for the work. Before entering into contract with the successful bidder, the clerk shall require him to give bond for the faithful performance of the contract in a sum fixed by the commissioners and the bond shall be approved by the commissioners. The cost or expense of the work shall be paid by the commissioners out of the funds of the courthouse district.
  3. When the general indexes are completed, they shall constitute the official indexes, and the clerk of the county shall keep them up by indexing therein all conveyances in the district within one (1) month from the time they are lodged for record, and when so indexed the alphabetical cross-index of such instruments need no longer be preserved. When such records or any part of them become defaced or injured, the clerk shall transcribe them into new books, which shall be as valid in law as the original record, and the transcript therefrom shall be received and taken as of the same force and effect. The cost of such transcription shall be paid for out of the funds of the courthouse district.
  4. In courthouse districts in which additional sectional indexes have been prepared, the commissioners may employ a competent person to keep up the indexes, in order that such additional indexes may be kept correctly and accurately. The commissioners shall pay such person a salary of not over two thousand four hundred dollars ($2,400) per annum out of the funds of the courthouse district.

History. 513.

Research References and Practice Aids

Cross-References.

Records may be transcribed, when KRS 28.270.

Transcribed records entitled to credit of original, KRS 28.290.

382.220. General index of real property records in counties containing urban-county government or city with population of 20,000 or more — Contracts for indexing work.

  1. Except in counties having a courthouse district as provided in KRS 382.210 , the fiscal court in each county containing an urban-county government or a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census may in its discretion direct the county clerk to have made in books prepared for that purpose general indexes of the records of all the real property in the county according to a system approved by the fiscal court or the legislative body of the urban-county government. The county clerk shall advertise for bids for all the work necessary to install the system under specifications approved by the county judge/executive or mayor of the urban-county government and shall, with the approval of the fiscal court or the legislative body of the urban-county government, enter into a contract with the lowest and best bidder for the work, after requiring him to give bond for the faithful performance of the contract in a sum to be fixed by the fiscal court or the legislative body of the urban-county government and approved by the county judge/executive or mayor of the urban-county government, and when the work has been completed to its satisfaction, the fiscal court or the legislative body of the urban-county government shall direct the payment agreed upon out of the general fund of the county.
  2. When general indexes are completed they shall constitute the official indexes and the clerk of the county shall keep the indexes up to date by indexing therein the records of all real property within one (1) month from the time they are lodged for record, and when so indexed the alphabetical cross-index of such instruments need no longer be preserved, and when such records or any part of them become defaced or injured the clerk shall transcribe the defaced or injured records into new books, which shall be as valid in law as the original record.
  3. In order that such additional indexes may be kept correctly and accurately, the fiscal court or the legislative body of the urban-county government may employ a competent person to keep the system of indexing and shall pay such person a sum not less than two thousand four hundred dollars ($2,400) nor more than four thousand dollars ($4,000) per annum, out of the general funds of the county.

History. 1840c; amend. Acts 1950, ch. 17; 2014, ch. 92, § 307, effective January 1, 2015.

NOTES TO DECISIONS

1.Construction.

This section does not supersede KRS 28.270. Land v. Lewis, 299 Ky. 866 , 186 S.W.2d 803, 1945 Ky. LEXIS 496 ( Ky. 1945 ).

382.225. Duties of county clerk as to general indexes in certain counties containing city with population of 20,000 or more.

The fiscal court in counties having a population of less than seventy-five thousand (75,000) and an assessed valuation of more than one hundred million (100,000,000) and containing a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census may in its discretion direct the county clerk to have made in books proper for that purpose general indexes of all records in the office of the county clerk according to a system approved by the fiscal court. When the general indexes are thus completed they shall constitute the official indexes and the clerk of the county shall keep the indexes up to date by indexing therein the records of all property within one (1) month from the date they are lodged for record, and when they are so indexed, the alphabetical cross-index of such instruments need no longer be preserved and when such records or any part of them become defaced or injured, the clerk shall transcribe the defaced or injured records into new books, and they shall be as valid in law as the original record. The fiscal court may in its discretion require the county clerk and his deputies to make such indexes as provided by this section without additional compensation or may allow the said clerk for his services rendered by him and his deputies reasonable compensation.

History. Enact. Acts 1942, ch. 207, § 2; 2014, ch. 92, § 308, effective January 1, 2015.

382.230. Conveyance not void because of error of clerk — Validation of prior certification and proof.

  1. No conveyance of real property shall be void or invalid because of a failure by the county clerk to incorporate in his certificate to such conveyance an endorsement of acknowledgment made by his deputy thereon.
  2. When acknowledgments to conveyances of real property have been taken by a deputy clerk, and a note or memorandum thereof endorsed by him on the conveyance, and a certificate of such acknowledgment has been afterward written out by the principal clerk and signed by him as having been done by such deputy or as if the acknowledgment had been before such principal clerk, such conveyance and certificate, and the recording thereof, shall be valid although the note or memorandum made by the deputy was not copied into the certificate.
  3. No conveyance of real property certified, proven or lodged for record prior to June 17, 1924, shall be void or invalid because it was not certified, proven, or lodged for record as required by the law in force at the time, if it was certified or proven in the manner prescribed by the Act of 1910 c 82, or by KRS 382.130 or 382.150 .

HISTORY: 514; 2019 ch. 86, § 39, effective January 1, 2020.

NOTES TO DECISIONS

1.Conveyances Not Void.

A deed of a married woman executed out of state at a time when married women were excluded from the operation of the law where the certificate of notary failed to show the examination of grantor separate and apart from her husband, amendment of this section and KRS 382.160 to include married women cured such deed. Eckles v. Wood, 143 Ky. 451 , 136 S.W. 907, 1911 Ky. LEXIS 441 ( Ky. 1911 ). See Allee v. Baxter, 207 Ky. 391 , 269 S.W. 318, 1925 Ky. LEXIS 94 ( Ky. 1925 ).

The fact that the signature to the certificate of acknowledgment and record indorsed on deed was not in handwriting of the then clerk was not fatal. Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

Deed was not void for failure of clerk who took the acknowledgment to certify that married woman was examined and acknowledged the deed to be her voluntary act, separate and apart from her husband at a time when married women were excluded from the operation of this law, since amendment to this section and KRS 382.160 to include such women cured such deeds. Hackney v. Smith, 209 Ky. 806 , 273 S.W. 476, 1925 Ky. LEXIS 606 ( Ky. 1925 ).

Cited:

Trabue v. Tichenor, 695 S.W.2d 432, 1985 Ky. App. LEXIS 614 (Ky. Ct. App. 1985).

382.240. Delivery of recorded instruments — Destruction of unclaimed instruments.

Each instrument that is recorded shall be delivered to the party entitled thereto. The county clerk shall require prepayment of postage and a three dollar ($3) reimbursement for delivery of said instruments at the time they are left for record in his office. If the county clerk is unable to locate the parties entitled thereto, he shall retain the instruments for at least one (1) year. The clerk may then destroy the instruments.

HISTORY: 519: amend. Acts 1982, ch. 323, § 1, effective July 15, 1982; 2019 ch. 86, § 44, effective January 1, 2020.

Opinions of Attorney General.

After the survivor or new corporation sends one of the triplicate originals of the articles of corporate merger or consolidation to the county clerk for filing and recording, and after the clerk so records the instrument, the clerk must deliver the triplicate original to the survivor or new corporation, pursuant to this section. Where the clerk cannot locate the party or parties entitled to such instrument, he shall retain such instrument for at least two (2) years, after which he may destroy the instrument, provided he enters the required notice in the newspaper; the county clerk cannot retain such recorded instrument where the person entitled to the instrument is known and located. OAG 83-18 .

382.250. Acknowledgment before deputy clerk — Duty of clerk.

If the deputy of any county clerk takes the acknowledgment of a deed or other instrument, and writes thereon the certificate of acknowledgment, the instrument or deed, together with the certificate of the deputy, shall be recorded. If the deputy only endorses a memorandum of the acknowledgment on the deed or instrument, then the principal clerk shall write the certificate as if the acknowledgment had been taken before him, and the deed or instrument shall be as valid as if the certificate had been written in full by the deputy.

History. 515.

NOTES TO DECISIONS

1.Validity of Acknowledgment.

The fact that the signature to the certificate of acknowledgment and record indorsed on deed was not in handwriting of the then clerk was not fatal. Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

382.260. Deed not legally lodged for record unless tax paid.

No deed shall be held to be legally lodged for record until the tax is paid thereon.

History. 520.

NOTES TO DECISIONS

1.Nonpayment of Tax.

A deed acknowledged and left for record, without the payment of the tax thereon, is valid as between parties and persons having actual notice, though not constructive notice to creditors or purchasers. Martin v. Bates, 50 S.W. 38, 20 Ky. L. Rptr. 1798 (1899).

A deed was not legally lodged for record until the state tax had been paid thereon, and was not notice to bona fide purchaser. Cates v. Cates, 152 Ky. 47 , 153 S.W. 10, 1913 Ky. LEXIS 593 ( Ky. 1913 ).

Opinions of Attorney General.

The affixing of the federal documentary stamps to a deed prior to its being recorded by the clerk is unnecessary and not a condition precedent to its acceptance by the clerk. OAG 66-162 .

The clerk can place the federal documentary stamps on deeds after they have been photographed, at the request of the parties, instead of before. OAG 66-162 .

Research References and Practice Aids

Cross-References.

Clerk to record tax lien, KRS 134.420 .

Lienholder may pay tax, KRS 134.080 .

Tax on conveying and recording real property, KRS 142.010 .

382.270. Instruments not valid against purchasers or creditors unless acknowledged or proved — Exemption for instruments otherwise lodged for record.

No deed or deed of trust or mortgage conveying a legal or equitable title to real property shall be lodged for record and, thus, valid against a purchaser for a valuable consideration, without notice thereof, or against creditors, until such deed or mortgage is acknowledged or proved according to law. However, if a deed or deed of trust or mortgage conveying a legal or equitable title to real property is not so acknowledged or proved according to law, but is or has been otherwise lodged for record, such deed or deed of trust or mortgage conveying a legal or equitable title to real property or creating a mortgage lien on real property shall be deemed to be validly lodged for record for purposes of KRS Chapter 382, and all interested parties shall be on constructive notice of the contents thereof. As used in this section “creditors” includes all creditors irrespective of whether or not they have acquired a lien by legal or equitable proceedings or by voluntary conveyance.

History. 496: amend. Acts 1962, ch. 83, § 16; 2006, ch. 183, § 16, effective July 12, 2006; 2010, ch. 155, § 2, effective July 15, 2010.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

It is not in violation of any provision of the federal constitution for a state to provide that a conveyance of land shall be ineffectual against bona fide purchaser or creditor unless recorded. Begley v. Erasmie, 205 Ky. 240 , 265 S.W. 833, 1924 Ky. LEXIS 123 ( Ky. 1924 ), dismissed, Begley v. Erasime, 273 U.S. 655, 47 S. Ct. 342, 71 L. Ed. 825, 1927 U.S. LEXIS 731 (1927). See Gannon v. Johnston, 243 U.S. 108, 37 S. Ct. 330, 61 L. Ed. 622, 1917 U.S. LEXIS 2099 (U.S. 1917).

2.Purpose.

The object of this section was to protect subsequent purchasers and creditors and it is immaterial whether the deed was made by a prior holder of the title or to enforce a statutory lien through judicial proceeding. Rouse v. Craig Realty Co., 203 Ky. 697 , 262 S.W. 1083, 1924 Ky. LEXIS 973 ( Ky. 1924 ); Rouse's Adm'r v. McDonald, 203 Ky. 702 , 262 S.W. 1085, 1924 Ky. LEXIS 974 ( Ky. 1924 ).

3.Construction.

It is policy of law that title to real property should be made matter of record and bona fide purchasers are not bound by a matter not of record, unless they have notice of such facts as would put a reasonable man on notice. Terry v. Ellsworth, 236 Ky. 54 , 32 S.W.2d 558, 1930 Ky. LEXIS 682 ( Ky. 1930 ).

The court is disinclined to favor latent claims founded on the neglect of well-known statutory provisions as against purchasers for value. Terry v. Ellsworth, 236 Ky. 54 , 32 S.W.2d 558, 1930 Ky. LEXIS 682 ( Ky. 1930 ).

It is only where the rights of innocent purchasers or creditors within the meaning of this section are involved that recordation becomes a factor. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

This section is not a matter of “pure race” to recordation but rather “race-notice”; it is not the first to record, but the first to record without notice, who achieves superiority. Minix v. Maggard, 652 S.W.2d 93, 1983 Ky. App. LEXIS 292 (Ky. Ct. App. 1983).

4.Application.

Recording statutes do not include street improvement liens; purchaser of property is chargeable with notice of ordinance and proceedings of city council by which improvement lien is created. Jackson's Heirs v. Willson, 226 Ky. 211 , 10 S.W.2d 816, 1928 Ky. LEXIS 58 ( Ky. 1928 ). See Hughes v. Wallace, 118 S.W. 324, 1909 Ky. LEXIS 494 ( Ky. 1909 ).

This section did not apply where record owners of real estate held by them and an undisclosed joint owner had been sold and creditor of record owners sued them on promissory notes and undertook to attach funds in the hands of the purchaser of the real estate as garnishee, all of which funds belonged to the undisclosed joint owner as the record owners had already received their share, and the unrecorded joint owner’s claim to the money was superior to the record owner’s attachment creditor since the attachment creditor acquired no greater rights than his debtors, the record owners, had at the time of the attachment order, which were none. Amick v. Goodykoontz, 241 Ky. 315 , 43 S.W.2d 1000, 1931 Ky. LEXIS 72 ( Ky. 1931 ).

Since the instrument in question was a deed this section applied, and KRS 382.100 which applies only to recording of contracts which are not deeds was not applicable. Miller v. Tennessee Chemical Co., 251 Ky. 30 , 64 S.W.2d 437, 1933 Ky. LEXIS 805 ( Ky. 1933 ).

Oil and gas lease conveys interest in real estate within recording statute. Vanderpool's Guardian v. Louisville Gas & Electric Co., 251 Ky. 337 , 65 S.W.2d 69, 1933 Ky. LEXIS 876 ( Ky. 1933 ).

This section applies to creditors becoming such subsequent to conveyance and antecedent creditors who, at some time prior to recording, had secured some equity in the property. A creditor on a note, executed before conveyance and renewed after conveyance but before recording was not a “subsequent creditor” entitled to set aside conveyance, since renewal did not change the status of the debt but only the evidence thereof. First Nat'l Bank v. Williamson, 273 Ky. 116 , 115 S.W.2d 565, 1938 Ky. LEXIS 586 ( Ky. 1938 ).

The statutes which require recording of mortgages and deeds of real and personal property do not embrace choses in action or claims for debt and an unrecorded assignment of an indemnity agreement between highway contractor and surety on its bond to state highway department of all the contractor’s rights created an equitable lien superior to a subsequent attachment lien by contractor’s judgment creditors. National Surety Corp. v. Massachusetts Bonding & Ins. Co., 280 Ky. 785 , 134 S.W.2d 611, 1939 Ky. LEXIS 201 ( Ky. 1939 ), (decision prior to 1960 amendment of KRS 382.200 and 1962 amendment of this section).

This section does not apply to any secured transaction falling within the scope of the Uniform Commercial Code. Lincoln Bank & Trust Co. v. Queenan, 344 S.W.2d 383, 1961 Ky. LEXIS 223 ( Ky. 1961 ) (decision prior to 1962 amendment). (See KRS 382.200(2)).

Since KRS 382.270 , KRS 382.280 and Kentucky case law do not address the specific situation of the judgment lien in this case, the rationale in the Restatement (Third) of Property should control: third parties who lend money used to purchase real estate in exchange for a mortgage hold special priority over all other recorded liens and judgments except where agreed otherwise by the parties or specified by statute. Ky. Legal Sys. Corp. v. Dunn, 205 S.W.3d 235, 2006 Ky. App. LEXIS 111 (Ky. Ct. App. 2006).

Because Chapter 7 Trustee’s status under 11 USCS § 544 vested at the time of filing of the debtors’ petition, which was well before amended KRS 382.270 was even enacted, retroactive application of amended KRS 382.270 would have impaired the Trustee’s vested rights as a bona fide purchaser, and was therefore unenforceable. 353 B.R. 513, 2006 Bankr. LEXIS 2908.

Where a mortgage was improperly recorded, a party could be placed on inquiry notice through a subsequently recorded lis pendens so that a reasonably prudent person would be apprised to inquire into the matter and discover the existence of the mortgage. Johnson v. CIT Group/Consumer Fin., Inc. (In re Franklin), 2006 Bankr. LEXIS 3738 (Bankr. E.D. Ky. Jan. 25, 2006).

Chapter 13 Trustee could avoid creditor’s mortgage where the mortgage was defective under the provisions of KRS 423.130 because the certificate of acknowledgment did not identify the debtors as the persons who acknowledged the mortgage. Creditor could not rely on an amendment to KRS 382.270 as a defense because the amended KRS 382.270 did not apply retroactively. Burden v. CIT Group/Consumer Fin., Inc. (In re Armstrong), 366 B.R. 716, 2007 Bankr. LEXIS 1337 (Bankr. E.D. Ky. 2007 ).

Where a mortgage executed by a bankruptcy debtor was defectively acknowledged, a recent amendment to KRS 382.270 which protected defectively acknowledged and previously recorded mortgages could not be applied retroactively to protect the mortgage from avoidance by the trustee, since such application would conflict with federal law which provided that the trustee’s rights as a bona fide purchaser vested pre-amendment at the time the bankruptcy case was filed. Select Portfolio Servs. v. Burden (In re Trujillo), 378 B.R. 526, 2007 Bankr. LEXIS 3786 (B.A.P. 6th Cir. 2007).

Where a mortgage was defectively acknowledged and the borrower filed a Chapter 7 bankruptcy petition on February 16, 2006, the 2006 amendment to KRS 382.270 , effective July 12, 2006, could not be applied retroactively so as to divest the bankruptcy trustee of his vested rights as a bona fide purchaser. Kendrick v. CIT Small Bus. Lending Corp. (In re Gruseck & Son), 2008 Bankr. LEXIS 1030 (B.A.P. 6th Cir. Apr. 16, 2008).

Where a debtor executed a mortgage on real property in favor of a creditor, but the certificate of acknowledgment did not contain the identity of the debtor as the person who acknowledged the mortgage or the date, as required by KRS 423.130 , an amendment to KRS 382.270 , which became effective after the debtor’s petition had been filed, could not be applied retroactively to divest the trustee of his rights as a bona fide purchaser because the rights became vested as of the commencement of the bankruptcy case. Countrywide Home Loans, Inc. v. Gardner (In re Henson), 2008 Bankr. LEXIS 1953 (B.A.P. 6th Cir. July 9, 2008).

5.Creditors.

The only creditors included by this section were such subsequent creditors without notice as had acquired by their own activity a hold or lien on the property before the instrument involved was recorded. In re Watson, 201 F. 962, 1912 U.S. Dist. LEXIS 1069 (D. Ky. 1912 ), aff'd, 216 F. 483, 1914 U.S. App. LEXIS 1361 (6th Cir. Ky. 1914 ).

“All creditor” as used in the last sentence of this section means subsequent creditors, whether they may be secured or unsecured, and such antecedent creditors who at some time prior to the recording of the mortgage or deed of trust have secured some equity in the property. Mason & Moody v. Scruggs, 207 Ky. 66 , 268 S.W. 833, 1925 Ky. LEXIS 16 ( Ky. 1925 ). See Larimore v. Perkinson, 208 Ky. 382 , 271 S.W. 69, 1925 Ky. LEXIS 292 ( Ky. 1925 ); Kerrick v. West, 211 Ky. 807 , 278 S.W. 128, 1925 Ky. LEXIS 972 (Ky. 1925); Reynolds v. Sizemore, 233 Ky. 122 , 25 S.W.2d 48, 1930 Ky. LEXIS 509 ( Ky. 1930 ); Sears v. Cain, 242 Ky. 702 , 47 S.W.2d 513, 1932 Ky. LEXIS 338 ( Ky. 1932 ); Calloway v. Howard, 247 Ky. 730 , 57 S.W.2d 677, 1933 Ky. LEXIS 451 ( Ky. 1933 ); Huff v. Russell, 267 Ky. 515 , 102 S.W.2d 984, 1937 Ky. LEXIS 343 ( Ky. 1937 ).

By antecedent creditors are meant those whose debts were created before the debtor made the transfer which was not lodged for record. By subsequent creditors are meant those whose debts were created after the debtor made the transfer and before the transfer was lodged for record. Larimore v. Perkinson, 208 Ky. 382 , 271 S.W. 69, 1925 Ky. LEXIS 292 ( Ky. 1925 ). See Stone v. Keith, 218 Ky. 11 , 290 S.W. 1042, 1927 Ky. LEXIS 92 ( Ky. 1927 ).

It is only an antecedent creditor who must, in order to come within the protection of this section, acquire a lien on the real property prior to the recording of instrument transferring or encumbering it. Davis v. Allen, 280 Ky. 798 , 134 S.W.2d 617, 1939 Ky. LEXIS 203 ( Ky. 1939 ).

The term “all creditors” as used in this section means subsequent creditors, whether they be secured or unsecured, and such antecedent creditors who at some time prior to the recording of the mortgage or deed of trust have secured some equity in the property in question. Meade v. Wells, 309 Ky. 748 , 218 S.W.2d 972, 1949 Ky. LEXIS 803 ( Ky. 1949 ).

Whatever the interest vested in the state by the forfeiture statute (KRS 242.310 ) it does not qualify the commonwealth as a creditor within the meaning of this section and thereby render an unrecorded or improperly recorded lien invalid against the commonwealth. Bratcher v. Ashley, 243 S.W.2d 1011, 1951 Ky. LEXIS 1197 ( Ky. 1951 ).

The no-knowledge requirement applies to creditors as well as purchasers, since the creditor stands on the same footing as the purchaser. Borg-Warner Acceptance Corp. v. First Nat'l Bank, 577 S.W.2d 29, 1979 Ky. App. LEXIS 371 (Ky. Ct. App. 1979), overruled, State St. Bank & Trust Co. v. Heck's Inc., 963 S.W.2d 626, 1998 Ky. LEXIS 27 ( Ky. 1998 ).

6.Purchaser for Valuable Consideration Without Notice.

A subsequent purchaser will not be protected against an older equity unless he both pays the price and receives the conveyance of the legal title before notice of the prior claim and it is immaterial whether the sale is a private sale or an execution sale. Cline v. Osborne, 68 S.W. 1083, 24 Ky. L. Rptr. 511 , 1902 Ky. LEXIS 421 (Ky. Ct. App. 1902).

One of the essential requisites to make a subsequent purchaser of land without notice a bona fide or innocent purchaser so that his equity will prevail over a prior title of which he had neither actual nor constructive notice, is that his purchase must be for a valuable consideration, which has been paid by him. Kentucky River Coal Corp. v. Sumner, 195 Ky. 119 , 241 S.W. 820, 1922 Ky. LEXIS 284 ( Ky. 1922 ).

The defense that one is an innocent purchaser of land without notice must be pleaded. Long v. Howard, 229 Ky. 369 , 17 S.W.2d 207, 1929 Ky. LEXIS 747 ( Ky. 1929 ). See Cornett v. Maddin, 277 Ky. 480 , 126 S.W.2d 871, 1939 Ky. LEXIS 680 ( Ky. 1939 ).

When a good faith purchaser has inspected the record and found nothing there informing him of an outstanding equity, his vendor being in possession, he should be protected. Terry v. Ellsworth, 236 Ky. 54 , 32 S.W.2d 558, 1930 Ky. LEXIS 682 ( Ky. 1930 ).

Evidence that showed that defendant at the time he accepted the deed had full knowledge of an unrecorded deed conveying the same properly supported verdict finding that defendant was not innocent purchaser without notice. Cornett v. Maddin, 277 Ky. 480 , 126 S.W.2d 871, 1939 Ky. LEXIS 680 ( Ky. 1939 ).

7.Unrecorded Instruments.

Such instruments as are mentioned in this section, though unrecorded, are not void, but valid against purchasers at sale under execution or otherwise when notice has been given, and likewise against creditors. Perry v. Trimble, 76 S.W. 343, 25 Ky. L. Rptr. 725 (1903).

Where by partnership agreement joint owners conveyed coal rights and the grantee assigned his rights under the agreement to a third party and neither the partnership agreement nor the assignment was recorded, levy of execution against the joint owners by a judgment creditor was a prior lien. Mann Bros. v. Ball, 230 Ky. 129 , 18 S.W.2d 946, 1929 Ky. LEXIS 27 ( Ky. 1929 ).

Where a chattel mortgage failed to give the address of the mortgagor, the location of the property, or other descriptive details, its recording did not constitute compliance with the recording requirement of this section. Hart County Deposit Bank v. Hatfield, 236 Ky. 725 , 33 S.W.2d 660, 1930 Ky. LEXIS 815 ( Ky. 1930 ) (decision prior to 1962 amendment.).

Bona fide purchasers of property are not bound by a matter not of record, unless they have notice of such facts as would put reasonable man on notice. Terry v. Ellsworth, 236 Ky. 54 , 32 S.W.2d 558, 1930 Ky. LEXIS 682 ( Ky. 1930 ).

An unrecorded bill of sale to hotel furnishings taken as security was not valid as a prior lien against the tax liens of either the city or the state. Allin v. Harrodsburg, 247 Ky. 360 , 57 S.W.2d 45, 1933 Ky. LEXIS 406 ( Ky. 1933 ) (decision prior to 1962 amendment.).

8.Recorded Instruments.

Where grantee and his attorney went to the clerk’s office and attorney examined the record and reported to grantee it was clear and presented grantee’s deed to deputy clerk for recording and the deputy clerk told them he would not file the deed without revenue stamps and they went out to get the stamps and title bond was filed while they were gone, grantee in the deed had constructive notice of the rights under the title bond and they were prior to the subsequently recorded deed of grantor. Eversole v. Huff, 205 Ky. 314 , 265 S.W. 797, 1924 Ky. LEXIS 103 ( Ky. 1924 ).

Everyone purchasing real property, title to which is affected by instrument which is recorded, is bound by provisions of such instrument and restrictions written on the front of a plat become a part of the plat and are recordable with it. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

Where attachment of debtor’s interest in a one-half interest in oil leases had been placed in hands of the sheriff and levied and lis pendens notices had been filed in clerk’s office before debtor’s assignment of his interest in the leases had been filed for record and before attaching creditors had knowledge or notice of the sale or assignment, the attaching creditors, by the levy of their attachments before the assignment and transfer of the leases was filed for record, acquired a superior right to have the interest in the leases appropriated to a satisfaction of their debts although assignees paid valuable consideration. Huff v. Russell, 267 Ky. 515 , 102 S.W.2d 984, 1937 Ky. LEXIS 343 ( Ky. 1937 ).

A purchaser of land is charged with notice of an incumbrance created by an instrument which is of record, even though the primary purpose of such instrument is not the creation of such incumbrance, but the conveyance of neighboring property. Harp v. Parker, 278 Ky. 78 , 128 S.W.2d 211, 1939 Ky. LEXIS 382 ( Ky. 1939 ).

Owner of land is charged with knowledge of all recorded instruments in his chain of title. Blackburn v. Piney Oil & Gas Co., 278 Ky. 191 , 128 S.W.2d 192, 1939 Ky. LEXIS 377 ( Ky. 1939 ).

9.Priority.

Where a defective mortgage was given on certain real property in October, 1973, federal tax liens were filed on the land in April and July, 1974, and a lis pendens notice of execution was filed in May, 1974, this section, in conjunction with 26 USCS § 6323, would give the properly filed documents priority in order of their filing, and the resulting equitable mortgage, although to be given effect, would be subject to the higher priorities of the tax liens and execution. Borg-Warner Acceptance Corp. v. First Nat'l Bank, 577 S.W.2d 29, 1979 Ky. App. LEXIS 371 (Ky. Ct. App. 1979), overruled, State St. Bank & Trust Co. v. Heck's Inc., 963 S.W.2d 626, 1998 Ky. LEXIS 27 ( Ky. 1998 ).

Under this section, it is not the first to record but the first to record without actual notice of a preexisting instrument who achieves priority. State St. Bank & Trust Co. v. Heck's Inc., 963 S.W.2d 626, 1998 Ky. LEXIS 27 ( Ky. 1998 ).

Case Mortg. Elec. Registration Sys., Inc. v. Roberts reaffirmed that Kentucky is a race-notice jurisdiction and a prior interest in real property takes priority over a subsequent interest that was taken with notice of the prior interest; as Roberts was rendered six years after Kentucky Legal Sys. Corp. v. Dunn and is binding on Kentucky's intermediate appellate courts, Roberts overrules Dunn by implication, and as applied in this case, the circuit court erred in finding that the lien of plaintiff was superior to a prior judgment lien filed by defendant. Hays v. Nationstar Mortg. LLC, 510 S.W.3d 327, 2017 Ky. App. LEXIS 1 (Ky. Ct. App. 2017).

10.Verbal Contracts.

Where real property is sold by verbal contract, and the record title as well as the possession is left in the seller, the transaction is void as against creditors or purchasers for a valuable consideration without notice of the facts. Mason & Moody v. Scruggs, 207 Ky. 66 , 268 S.W. 833, 1925 Ky. LEXIS 16 ( Ky. 1925 ). See Larimore v. Perkinson, 208 Ky. 382 , 271 S.W. 69, 1925 Ky. LEXIS 292 ( Ky. 1925 ); Chrisman v. Greer, 239 Ky. 373 , 39 S.W.2d 676, 1931 Ky. LEXIS 795 ( Ky. 1931 ).

11.Equities Not Reduced to Writing.

The common-law rule that one who took a conveyance of the right, title and interest of his vendor acquired only such chances of title as was in his vendor and stood in the same relation to any outstanding equities and unrecorded deeds which his grantor occupied, has been modified somewhat with respect to quitclaim deeds and other written muniments of title which have been made recordable under the acts of the several states requiring such instruments to be recorded before effective against purchasers and creditors but the rule applies only to deeds and other writings purporting to convey title or an interest in property and has no reference to and can have no application whatever to outstanding equities not evidenced by such deed or other writing and not recordable. Arnett v. Stephens, 199 Ky. 730 , 251 S.W. 947, 1923 Ky. LEXIS 910 ( Ky. 1923 ).

12.Equity of Reformation.

Equity of reformation to include grantor’s royalties from the lease of the land was superior to rights of attachment creditors or general creditors, who stood in the same position as debtor, but reformation was subject to rights of innocent assignee or purchaser for value without notice. First Nat'l Bank v. Williamson, 273 Ky. 116 , 115 S.W.2d 565, 1938 Ky. LEXIS 586 ( Ky. 1938 ).

13.Trust Agreement.

Unrecorded agreement by holder of record title to land, to hold title in trust for others, would not be valid as against an innocent purchaser for value whose deed was recorded. Wells v. Butcher, 299 Ky. 332 , 185 S.W.2d 406, 1945 Ky. LEXIS 418 ( Ky. 1945 ).

14.Mortgages.

A promissory note reciting a lien, to be created by a subsequent agreement, was not evidence of an agreement to mortgage real property giving priority over attaching creditor with notice of note. Schmidt v. Carter's Adm'r, 95 Ky. 1 , 23 S.W. 364, 15 Ky. L. Rptr. 402 , 1893 Ky. LEXIS 113 ( Ky. 1 893).

The law is well settled that property added to the plant of a street railroad, and which becomes an essential and integral part of its road, passes under a mortgage previously executed and recorded covering its entire property and road constructed and to be constructed, although the property is furnished under a contract by which the title is to remain in the seller until payment is made. Westinghouse Electric Mfg. Co. v. Citizens S. R. Co., 68 S.W. 463, 24 Ky. L. Rptr. 334 , 1902 Ky. LEXIS 296 (Ky. Ct. App. 1902).

Mortgage, to be recorded, must be deposited in proper office with someone having authority to receive it and recording fees must be paid. Carter Guaranty Co. v. Cumberland & M. R. Co., 219 Ky. 207 , 292 S.W. 812, 1927 Ky. LEXIS 323 ( Ky. 1927 ).

Circuit Court did not clearly err in determining that the first of two (2) banks did not have a valid legal mortgage and/or a valid equitable mortgage on the subject property, as that bank’s debtor was not the true owner of the property, and thus, lacked the power to mortgage it; hence, the first bank acquired no power to assert a lien on the property and could not claim that the second bank was depriving it of money or benefits. Citizens Bank of N. Ky., Inc. v. PBNK, Inc., 2006 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 17, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 826 (Ky. Ct. App. Feb. 17, 2006).

Mortgage granting a company a security interest in a debtor’s property was improperly acknowledged under KRS 423.130 because the name of the mortgagor, the name of the county, and the date of the acknowledgment were left blank following the debtor’s signature. Because the mortgage was defectively acknowledged, any attempted conveyance was invalid as against a bona fide purchaser for value pursuant to KRS 382.270 ; and a bankruptcy trustee, who stood in the position of a bona fide purchaser pursuant to 11 U.S.C.S. § 544(a)(3) when the debtor filed a bankruptcy petition, could therefore avoid the mortgage pursuant to § 544(a)(Schlarman v. SunTrust Mortg., Inc. (In re Helvey), 2006 Bankr. LEXIS 1619 (Bankr. E.D. Ky. Aug. 2, 2006).

Where a mortgage was not properly executed according to KRS 382.140 and KRS 423.130 through 423.160 , the mortgage did not provide a bankruptcy trustee, as a bona fide purchaser of property, with constructive notice of the prior unrecordable interest. Accordingly, the attempted conveyance of a mortgage by debtors was invalid as to a bona fide purchaser for value pursuant to KRS 382.270 , and the trustee, standing in the shoes of such a bona fide purchaser under 11 USCS § 544(a)(3), was permitted to avoid the mortgage. Miller v. Raisor (In re Raisor), 2006 Bankr. LEXIS 3785 (Bankr. E.D. Ky. Mar. 31, 2006).

Mortgage was not properly acknowledged where the undisputed facts showed that debtor’s wife did not personally sign the mortgage and she did not personally appear before the notary who attested to that fact; the notary was the mortgage creditor’s agent. Additionally, debtor signed the mortgage using his wife’s Power of Attorney even though she was not incapacitated as required by the Power of Attorney, and this fact was also known to the mortgage creditor; the mortgage was void ab initio and of no effect. JPMorgan Chase Bank, N.A. v. Kenneth R. Woods & Katherine R. Woods Living Trust (In re Woods), 422 B.R. 102, 2010 Bankr. LEXIS 172 (Bankr. W.D. Ky. 2010 ).

Where a mortgage and deed were properly acknowledged and proved as required by KRS 382.270 and properly recorded pursuant to KRS 382.110 as of the date the Chapter 7 debtors filed their petition, then as a matter of law a trustee was on constructive notice of the mortgage, which negated his use of 11 U.S.C.S. § 544(a)(3) to avoid a bank’s mortgage because he would not have been a bona fide purchaser under state law. Flener v. Monticello Banking Co. (In re Estes), 429 B.R. 872, 2010 Bankr. LEXIS 1560 (Bankr. W.D. Ky. 2010 ).

Defect in the notarial acknowledgement did not render the bank mortgage void; the mortgage was recorded in May 2006, prior to the effective date of the statute, and therefore fell within the statute’s “saving” provision, and the mortgage may not be voided on the grounds of any alleged defect in the notarization. Fifth Third Bank, Michigan, Inc. v. JPMorgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 943 (W.D. Ky. Jan. 4, 2011).

15.—Unrecorded.

An unrecorded mortgage is invalid as to purchasers for a valuable consideration and creditors. Wicks v. McConnell, 102 Ky. 434 , 43 S.W. 205, 20 Ky. L. Rptr. 84 , 1897 Ky. LEXIS 85 ( Ky. 1897 ). See Clift v. Williams, 105 Ky. 559 , 49 S.W. 328, 1899 Ky. LEXIS 239 ( Ky. 1899 ); Rankin v. McFarlane Carriage Co., 75 S.W. 221, 25 Ky. L. Rptr. 258 (1903); City Bank & Trust Co. v. Planters' Bank & Trust Co., 176 Ky. 500 , 195 S.W. 1124, 1917 Ky. LEXIS 87 ( Ky. 1917 ).

Where the mineral rights in land were mortgaged October 22, 1899, which mortgage was not recorded until August 22, 1903, and on April 14, 1902, the mortgagor executed a title bond to such rights, which was recorded August 17, 1902, the purchaser taking without knowledge of the mortgage, he took the land free from the mortgage, though the deed given in accordance with the title bond was not executed until after the mortgage had been recorded in the county, such conveyance relating back to the date of the title bond. Tennis Coal Co. v. Asher & Hensley, 143 Ky. 223 , 136 S.W. 197, 1911 Ky. LEXIS 366 ( Ky. 1911 ).

An unrecorded mortgage of which a subsequent mortgagee knew at the time he accepted his mortgage must prevail over his subsequent mortgage. Cox v. Guaranty Bank & Trust Co., 199 Ky. 115 , 250 S.W. 804, 1923 Ky. LEXIS 772 ( Ky. 1923 ).

The failure of the owner or holder to record mortgage and pay tax will neither invalidate the mortgage, nor prevent its enforcement by him as against the mortgagor and all others except purchasers without notice and creditors, but to make its validity invulnerable to attack from such purchasers and creditor he must have it recorded as required by this section. Middendorf v. Goodale, 202 Ky. 118 , 259 S.W. 59, 1923 Ky. LEXIS 360 ( Ky. 1923 ).

Without proof that mortgage was delivered to the clerk or someone having authority to receive it in the office of the clerk and the fees paid thereon, it was not lodged for record and it was not superior to attachment lien. Carter Guaranty Co. v. Cumberland & M. R. Co., 219 Ky. 207 , 292 S.W. 812, 1927 Ky. LEXIS 323 ( Ky. 1927 ).

Upon payment of indebtedness to county and county board of education, surety company was entitled by subrogation to a lien on certain real estate owned by sheriff and this lien was superior to that of unrecorded mortgage of which no claim was made that any officer of the commonwealth, county, board of education or surety company had actual knowledge of mortgage or of facts sufficient to put him on inquiry. Fidelity & Deposit Co. v. Commonwealth, 249 Ky. 170 , 60 S.W.2d 345, 1933 Ky. LEXIS 483 ( Ky. 1933 ).

A deed to real property given by the United States District Director of the Internal Revenue Service (IRS), pursuant to a federal tax sale, did not “cut off” or discharge an unrecorded purchase money mortgage, where the purchaser at the tax sale had actual notice of the prior purchase money security interest. Minix v. Maggard, 652 S.W.2d 93, 1983 Ky. App. LEXIS 292 (Ky. Ct. App. 1983).

Under Kentucky law, an unrecorded, or an equitable mortgage is not protected against claims of creditors without notice. Citizens State Bank v. United States, 932 F.2d 490, 1991 U.S. App. LEXIS 8206 (6th Cir. Ky. 1991 ).

Bankruptcy trustee was permitted to avoid an unrecorded mortgage under 11 USCS § 544(a) and KRS 382.270 to the extent that it encumbered the bankruptcy estate’s interest in the property. Johnson v. Fifth Third Bank, Inc. (In re Carnes), 2005 Bankr. LEXIS 5 (Bankr. E.D. Ky. Jan. 5, 2005).

16.— —Creditors.

The lien acquired by the levy of an attachment by an antecedent creditor without notice has priority over an unrecorded mortgage which was in existence at the time the debt was incurred. Wicks v. McConnell, 102 Ky. 434 , 43 S.W. 205, 20 Ky. L. Rptr. 84 , 1897 Ky. LEXIS 85 ( Ky. 1897 ) (decision prior to 1962 amendment).

An unrecorded real estate mortgage is inferior to a lien subsequently acquired by a chattel mortgagee who gave credit without notice of such prior lien. Westinghouse Electric Mfg. Co. v. Citizens S. R. Co., 68 S.W. 463, 24 Ky. L. Rptr. 334 , 1902 Ky. LEXIS 296 (Ky. Ct. App. 1902).

An unrecorded mortgage is not good as against antecedent creditors, who, at some time prior to the recording of the mortgage or deed of trust, have secured some equity in the property, nor good against creditors who become such subsequent to the making of such mortgage and prior to its recording. Mason & Moody v. Scruggs, 207 Ky. 66 , 268 S.W. 833, 1925 Ky. LEXIS 16 ( Ky. 1925 ). See Larimore v. Perkinson, 208 Ky. 382 , 271 S.W. 69, 1925 Ky. LEXIS 292 ( Ky. 1925 ); Kerrick v. West, 211 Ky. 807 , 278 S.W. 128, 1925 Ky. LEXIS 972 (Ky. 1925); Stone v. Keith, 218 Ky. 11 , 290 S.W. 1042, 1927 Ky. LEXIS 92 ( Ky. 1927 ); Reynolds v. Sizemore, 233 Ky. 122 , 25 S.W.2d 48, 1930 Ky. LEXIS 509 ( Ky. 1930 ); Sears v. Cain, 242 Ky. 702 , 47 S.W.2d 513, 1932 Ky. LEXIS 338 ( Ky. 1932 ); Calloway v. Howard, 247 Ky. 730 , 57 S.W.2d 677, 1933 Ky. LEXIS 451 ( Ky. 1933 ); Huff v. Russell, 267 Ky. 515 , 102 S.W.2d 984, 1937 Ky. LEXIS 343 ( Ky. 1937 ) (decision prior to the 1962 amendment.).

Unrecorded mortgage was valid against all creditors with notice. Eastern Const. Co. v. Carson Const. Co.'s Trustee, 242 Ky. 648 , 47 S.W.2d 67, 1932 Ky. LEXIS 331 ( Ky. 1932 ).

An unrecorded mortgage is not good as against creditors and the word “creditors” includes all creditors irrespective of whether they acquired lien by legal or equitable proceedings or by voluntary conveyance. Peck v. Trail, 251 Ky. 377 , 65 S.W.2d 83, 1933 Ky. LEXIS 883 ( Ky. 1933 ).

Where intervening petition of administratrix in an action of a creditor for sale of land of debtor did not allege recording of lien allegedly secured by her decedent on the debtor’s land by payment of mortgage on the land under an oral agreement, thus becoming subrogated to the rights of the former mortgagee, and in fact there could have been no recording because it was not claimed by virtue of a writing, such alleged lien was not valid as against the lien of judgment creditor. Clay City Nat'l Bank v. Bush, 280 Ky. 406 , 133 S.W.2d 522, 1939 Ky. LEXIS 132 ( Ky. 1939 ).

17.—Lodged for Record.

Though a mortgage is duly lodged for record, if it is afterwards withdrawn by the grantee, or by his authority, express or implied, and while it is thus out of the clerk’s office the property is purchased by another, without notice of the mortgage, it will not be enforced to the prejudice of an innocent purchaser. Webb v. Austin, 58 S.W. 808, 22 Ky. L. Rptr. 764 , 1900 Ky. LEXIS 288 (Ky. Ct. App. 1900).

Under this section, a real estate mortgage which was duly acknowledged and lodged for record is valid against a purchaser for a valuable consideration without notice, though not in fact recorded. Webb v. Austin, 58 S.W. 808, 22 Ky. L. Rptr. 764 , 1900 Ky. LEXIS 288 (Ky. Ct. App. 1900).

Where Chapter 7 debtors were not present before the notary when they signed certificates of acknowledgment on a mortgage, the mortgage was nonetheless “lodged of record” under KRS 382.270 because it was properly recorded in the appropriate county clerk’s office. Kendrick v. Deutsche Bank Nat'l Trust Co. (In re St. Clair), 380 B.R. 478, 2008 Bankr. LEXIS 37 (B.A.P. 6th Cir. 2008).

18.—Recorded.

Where subsequent mortgagee knew of the existence of two prior unrecorded mortgages on the same real property given by the same parties and that the debts they were given to secure were then unsatisfied, the subsequent mortgagee was not entitled to priority although his mortgage was recorded first. Flowers v. Moorman & Hill, 86 S.W. 545, 27 Ky. L. Rptr. 728 (1905).

Where mortgagee took a mortgage upon real property upon which a prior unrecorded mortgage already existed knowing of the existence of the prior mortgage, the fact that the subsequent mortgage was to secure an indebtedness incurred several months before the prior mortgage was executed did not change the priority of the prior mortgage which was valid from the day of its execution over the subsequent mortgage. Cox v. Guaranty Bank & Trust Co., 199 Ky. 115 , 250 S.W. 804, 1923 Ky. LEXIS 772 ( Ky. 1923 ).

This section protects general creditors represented by trustee in bankruptcy of mortgagor, against mortgage recorded before bankruptcy proceeding, where debts due creditors were created subsequent to execution of mortgage but without notice of it. In re Berea Baking Co., 9 F.2d 135, 1925 U.S. Dist. LEXIS 1314 (D. Ky. 1925 ).

Creditor by his attachment which was sued out and levied after real estate mortgage had gone to record gained by it no priority but share equally with the holder of the real estate mortgage. Kerrick v. West, 211 Ky. 807 , 278 S.W. 128, 1925 Ky. LEXIS 972 ( Ky. 1925 ).

Equity of purchaser of land under title bond after mortgage was properly recorded was inferior to subsequent purchaser of mortgage bonds secured by the mortgage. Gayle v. Greasy Creek Coal & Land Co., 249 Ky. 251 , 60 S.W.2d 599, 1932 Ky. LEXIS 888 ( Ky. 1932 ).

Where purchaser under title bond had knowledge that mortgage bonds secured by a mortgage on real estate, which mortgage was recorded, were in the hands of the creditors of the issuer, he held subject to the mortgage. Gayle v. Greasy Creek Coal & Land Co., 249 Ky. 251 , 60 S.W.2d 599, 1932 Ky. LEXIS 888 ( Ky. 1932 ).

Trustee in bankruptcy representing only antecedent creditors, none of whom acquired any equity in property prior to recording of mortgage, could not set aside mortgage as voidable preference because not recorded until within four months of filing of bankruptcy petition. In re Gibson, 65 F.2d 921, 1933 U.S. App. LEXIS 3209 (6th Cir. 1933), revg. in part In re Duker Ave. Meat Market, 2 F.2d 699, 1924 U.S. App. LEXIS 2149 (1924). See National Bond & Inv. Co. v. Jones, 78 F.2d 601, 1935 U.S. App. LEXIS 3801 (6th Cir. Ky. 1935 ).

Where deed from mother to son contained provision that son should take care of mother and furnish board and room, and son later mortgaged real estate, mortgagee, whose mortgage was recorded, was not bound by judgment canceling deed in suit by mother against son in which mortgagee was not made a party. Inez Deposit Bank v. Pinson, 276 Ky. 84 , 122 S.W.2d 1031, 1938 Ky. LEXIS 534 ( Ky. 1938 ).

Recording of mortgages to real estate executed by person in possession of land was notice to holders of legal title that person in possession was claiming title adverse to them. Myers v. Bates, 291 Ky. 650 , 165 S.W.2d 340, 1942 Ky. LEXIS 295 ( Ky. 1942 ).

Where the vendor retained a vendor’s lien (KRS 382.070 ) on a tract of land deeded to a purchaser, where lots had previously been sold by unrecorded contracts but where title was not to be given until the lots were paid for in full and where the defendant held an execution lien for sewage work done on the tract of land, the vendor’s lien on foreclosure of the mortgage was superior to the execution lien on the entire property including the equities of each purchaser in the property under unrecorded contracts for deed. Thompson-Kissel Co. v. National Bankers Life Ins. Co., 436 S.W.2d 80, 1968 Ky. LEXIS 180 ( Ky. 1968 ).

Even if the Second Power of Attorney was not signed by the husband or recorded, the trustee was on constructive notice of the mortgage because the mortgage was recorded well before the bankruptcy was filed. KRS 382.270 made it clear that the recording of the mortgage was sufficient notice to the trustee regardless of any technical defect under KRS ch. 382, which would include any defect in recording a power of attorney pursuant to KRS 382.370 . Rogan v. CitiMortgage, Inc. (In re Dillard), 2012 Bankr. LEXIS 2214 (Bankr. E.D. Ky. May 17, 2012).

Recording of the mortgage put the bankruptcy trustee on constructive notice of its contents, regardless of whether the First Power of Attorney was recorded. Rogan v. Wachovia Mortg. Corp. (In re Jacobs), 2012 Bankr. LEXIS 2217 (Bankr. E.D. Ky. May 17, 2012).

KRS 382.270 made it clear that the recording of the mortgage was sufficient notice to the Trustee regardless of any technical defect under KRS ch. 382, which would include any defect in noting debtor’s position as general partner of the partnership in the signature or acknowledgement. Rogan v. Farmers Home Admin. (In re Tuttle), 2012 Bankr. LEXIS 3658 (Bankr. E.D. Ky. Aug. 6, 2012).

19.— — Insufficient Form.

Mortgage not acknowledged or proved to have been executed before two witnesses according to KRS 392.130 is not a recordable instrument and consequently filing in the clerk’s office of the unrecordable instrument will not constitute constructive notice. Smith v. Jackson, 232 Ky. 76 , 22 S.W.2d 420, 1929 Ky. LEXIS 393 ( Ky. 1929 ) (decision prior to 1962 amendment.).

A real estate mortgage recorded with the amount left blank did not give judgment creditor without actual knowledge constructive notice and where he caused execution to issue and to be levied on the real estate he acquired an equity superior to the mortgage although the mortgage was rerecorded with the amount filled in prior to the execution sale. People's Bank v. Morgan County Nat'l Bank, 266 Ky. 308 , 98 S.W.2d 936, 1936 Ky. LEXIS 658 ( Ky. 1936 ).

The rights of a subsequent mortgagee for value without notice were not affected by an alleged trust, in favor of purchaser at commissioner’s sale who received less than his share, by purchaser of adjacent parcel who received more than his share because the commissioner’s deed described land by metes and bounds and then mistakenly recited the number of acres to be more than the acreage conveyed. Metropolitan Life Ins. Co. v. Hoskins, 273 Ky. 563 , 117 S.W.2d 180, 1937 Ky. LEXIS 705 ( Ky. 1937 ).

Where a recorded mortgage did not have a valid acknowledgment pursuant to KRS 382.270 , the mortgage was treated as if it had never been recorded. Because the defective mortgage was treated as though it was never recorded, the assignment of the mortgage to the creditor was outside the chain of title, and the mortgage was avoided pursuant to 11 U.S.C.S. § 544(a)(3). Lyon v. Franklin Mortg. Funding (In re Shannon), 343 B.R. 585, 2006 Bankr. LEXIS 1087 (Bankr. E.D. Ky. 2006 ).

Where a mortgage was not properly acknowledged in that the notary was not present to certify that the debtors appeared before her when they signed the mortgage, the defective mortgage was not saved by the 2006 amendment to KRS 382.270 . The amendment did not apply retroactively to deprive the Trustee of his status as a bona fide purchaser as of the date of filing of the bankruptcy. Spradlin v. U.S. Bank N.A., N.D. (In re Williams), 2006 Bankr. LEXIS 3020 (Bankr. E.D. Ky. Nov. 9, 2006).

It was not error for a bankruptcy court to find that an acknowledgement on a creditor’s mortgage document was defective and that the mortgage could be avoided by a trustee pursuant to 11 USCS § 544 because the acknowledgement did not comply with the requirements of KRS 423.130 that were in effect at the time when the notary paragraph stated only “acknowledged before me” and did not state the names of the signors or the date signed. Burden v. CIT Group/Consumer Finance Inc. (In re Wilson), 2007 Bankr. LEXIS 3800 (B.A.P. 6th Cir. Nov. 14, 2007).

Two (2) mortgages which Chapter 7 debtors granted five (5) years before they declared bankruptcy were avoidable under 11 USCS § 544 because a notary who acknowledged the debtors’ signatures did not comply with KRS 382.270 which required him to include the debtors’ names in the body of the acknowledgments, and assignments the mortgagee made were also defective and not recordable under KRS 382.290 because they did not contain an adequate description of the notes. MG Invs. Inc. v. Johnson (In re Cocanougher), 378 B.R. 518, 2007 Bankr. LEXIS 3801 (B.A.P. 6th Cir. 2007).

20.Deeds.

Rights of a creditor who obtains a lien on property, the record title to which is in his debtor, cannot be defeated by a subsequent decree having the effect of transferring that title as of a date antecedent to the acquisition of the lien. First Nat'l Bank v. Williamson, 273 Ky. 116 , 115 S.W.2d 565, 1938 Ky. LEXIS 586 ( Ky. 1938 ).

Reformation of a deed making it convey the property the parties intended does not defeat an attachment lien of a bona fide creditor levied on the property while it stood in the name of the debtor. Eastern Kentucky Production Credit Ass'n v. Scott, 247 S.W.2d 983, 1952 Ky. LEXIS 728 ( Ky. 1952 ).

21.— Unrecorded.

A voluntary conveyance of debtor’s real estate, made before creation of liability but not lodged for record until after creation of the liability, is void as to such liability. Daniels v. Goff, 192 Ky. 15 , 232 S.W. 66, 1921 Ky. LEXIS 11 ( Ky. 1921 ).

A deed may not be properly recorded unless the statute is complied with, but although it is not properly recorded it is a valid transfer of title effective as between the grantor and the grantee. Howard v. Kelsay, 230 Ky. 61 , 18 S.W.2d 884, 1929 Ky. LEXIS 23 ( Ky. 1929 ).

A voluntary conveyance by a husband of his interest in real property jointly held by him and his wife, to his wife without consideration, where the property had been purchased with the proceeds of the sale of real property previously held by them in joint title, which had been placed in a bank account in the wife’s name was on suit by trustee in bankruptcy subject to payment of debts of the husband incurred prior to the conveyance and after the conveyance and during the time the deed remained unrecorded, and where the real property had been sold one half of the sale price should have been paid to the wife, together with $1,000 which could have been claimed by the husband as his homestead out of the other one half and the balance of the other one half should be paid to the trustee in bankruptcy for distribution among the creditors entitled thereto. Vaughn's Trustee in Bankruptcy v. Vaughn, 262 Ky. 181 , 89 S.W.2d 884, 1936 Ky. LEXIS 13 ( Ky. 1936 ).

An unrecorded deed is not good as against a purchaser for value without notice or against subsequent creditors, or antecedent creditors who prior to the recording of the deed have secured some equity in the property. Noble v. Hubbard, 286 Ky. 100 , 149 S.W.2d 775, 1941 Ky. LEXIS 218 ( Ky. 1941 ).

Purchaser of a fractional interest in a mineral lease three (3) days prior to a quiet title suit against the seller, who did not record his deed until after suit was filed, was not an indispensable party and although purchaser of the fractional interest and the plaintiff were residents of Florida the Federal District Court in Kentucky did not lose jurisdiction. Delta Drilling Co. v. Arnett, 186 F.2d 481, 1950 U.S. App. LEXIS 3832 (6th Cir. Ky. 1950 ), cert. denied, 340 U.S. 954, 71 S. Ct. 574, 95 L. Ed. 688, 1951 U.S. LEXIS 2079 (U.S. 1951).

Under law that provided that a conveyance was not good against a purchaser for a valuable consideration with no notice or a creditor unless such conveyance was in writing and acknowledged, a properly executed deed would be conclusive in a suit between grantee and grantor, although never recorded. Sicard v. Davis, 31 U.S. 124, 8 L. Ed. 342, 1832 U.S. LEXIS 461 (U.S. 1832).

22.— — Rights Between the Parties.

An unacknowledged deed, although not recordable, passes title between the parties and those claiming under them where no intervening equities are affected. Cornett v. Maddin, 277 Ky. 480 , 126 S.W.2d 871, 1939 Ky. LEXIS 680 ( Ky. 1939 ). See Jones v. Driver, 282 Ky. 82 , 137 S.W.2d 729, 1940 Ky. LEXIS 123 ( Ky. 1940 ).

23.— — Creditors.

A deed made as a gift to grandchildren and not recorded is void as to prior and subsequent creditors. Clevinger v. Nunnery, 140 Ky. 592 , 131 S.W. 519, 1910 Ky. LEXIS 346 ( Ky. 1910 ). See Hatfield v. Cline, 143 Ky. 565 , 137 S.W. 212, 1911 Ky. LEXIS 475 ( Ky. 1911 ).

Unrecorded written contract to convey and subsequent unrecorded conveyance of land were not good against creditors. Briggs v. Muir, Wilson & Muir, 204 Ky. 135 , 263 S.W. 740, 1924 Ky. LEXIS 426 ( Ky. 1924 ).

Deed from husband to wife for consideration but not recorded until after husband contracted debt was void against creditor except to extent of homestead exemption. Larimore v. Perkinson, 208 Ky. 382 , 271 S.W. 69, 1925 Ky. LEXIS 292 ( Ky. 1925 ). See Union Bank & Trust Co. v. Ponder, 220 Ky. 365 , 295 S.W. 140, 1927 Ky. LEXIS 520 ( Ky. 1927 ).

All the provisions of the law, including this section, KRS 382.100 and 382.450 must be read together to determine whether a judgment creditor had a lien on real property superior to grantee, and where judgment creditor, without actual notice of grantee’s claim, had execution levied against debtor’s property and lis pendens notice filed before grantee’s deed was recorded, the judgment creditor had a claim superior to grantee and could have the debtor’s land sold to satisfy his debt. Bradshaw v. Dunlap, 217 Ky. 644 , 290 S.W. 501, 1927 Ky. LEXIS 42 ( Ky. 1927 ).

An unrecorded deed to property sold by judgment debtor eight days prior to levy of execution by judgment creditor without notice was inferior to the claim of the judgment creditor on the property. Mason v. Southern Deposit Bank, 229 Ky. 728 , 17 S.W.2d 1022, 1929 Ky. LEXIS 838 ( Ky. 1929 ).

Judgment creditor having shown good faith in her execution proceedings against real property in the name of her judgment debtor, in that she was without notice of any possessory or unrecorded title rights held by grantee of alleged unrecorded deed who was not in possession at the time of the levy, acquired a good and valid execution lien upon the property for the amount of her judgment debt prior and paramount to grantee’s right or title to the property claimed under and by virtue of his alleged unrecorded deed. Calloway v. Howard, 247 Ky. 730 , 57 S.W.2d 677, 1933 Ky. LEXIS 451 ( Ky. 1933 ).

An unrecorded deed is not valid against creditors until acknowledged or proved according to law and lodged for record and the word “creditors” means subsequent creditors, secured or unsecured, and such antecedent creditors who at some time prior to the recording of the deed had secured some equity in the property. Arnett v. Stewart, 266 Ky. 557 , 99 S.W.2d 704, 1936 Ky. LEXIS 697 ( Ky. 1936 ).

Execution creditor had knowledge of vendees rights under unrecorded deed and his lien was inferior where grandfather had transferred his store stock and real estate to his son and grandson for consideration and creditors were notified of sale and the execution creditor continued to do business with grandson under the changed name. Ashland Grocery Co. v. Martin, 267 Ky. 677 , 103 S.W.2d 72, 1937 Ky. LEXIS 364 ( Ky. 1937 ).

Where sheriff levied execution on “all right, title and interest” of debtor in land, lien of execution creditor was superior to that of grantee in unrecorded deed from debtor, since, as between creditor and grantee, deed was void. Kentucky River Coal Corp. v. Culton, 276 Ky. 418 , 124 S.W.2d 82, 1938 Ky. LEXIS 555 ( Ky. 1938 ).

Unrecorded deed from husband to wife was void as to attaching antecedent creditor of husband. Union Bank & Trust Co. v. Rice, 279 Ky. 629 , 131 S.W.2d 493, 1939 Ky. LEXIS 317 ( Ky. 1939 ).

If the indebtedness out of which judgment arose was incurred subsequent to date of unrecorded conveyance it would be immaterial whether judgment creditor had notice of the unrecorded conveyance at the time the execution was levied, for in such a case the sole question would be whether judgment creditor had knowledge of conveyance at time he extended the credit. Davis v. Allen, 280 Ky. 798 , 134 S.W.2d 617, 1939 Ky. LEXIS 203 ( Ky. 1939 ).

24.— — Purchasers for Value Without Notice.

A deed which was never recorded or lodged for record cannot be held to be constructive notice to a subsequent purchaser from the same grantor without actual notice of the prior deed. Goosby v. Johnson, 69 S.W. 697, 24 Ky. L. Rptr. 610 , 1902 Ky. LEXIS 486 (Ky. Ct. App. 1902).

In the absence of actual notice a subsequent purchaser from grantor acquires a title superior to a deed made by his grantor to a prior grantee which was never lodged for record or recorded. Goosby v. Johnson, 69 S.W. 697, 24 Ky. L. Rptr. 610 , 1902 Ky. LEXIS 486 (Ky. Ct. App. 1902).

Where grantee in deed of standing timber transferred his interest therein to R. by an indorsement on back of deed, which was not recorded after indorsement, R. was not entitled to trees, treated as real estate, as against subsequent bona fide purchaser from transferor. V. Bowerman & Co. v. Taylor, 127 Ky. 812 , 106 S.W. 846, 32 Ky. L. Rptr. 671 , 1908 Ky. LEXIS 23 ( Ky. 1908 ).

In the absence of notice, a purchaser for value, who has acquired the legal title by conveyance, recorded or lodged for record, has superior claim to a purchaser under a prior unrecorded deed. Salyer v. Elkhorn Land & Improv. Co., 167 Ky. 111 , 180 S.W. 38, 1915 Ky. LEXIS 802 ( Ky. 1915 ).

An innocent purchaser of land takes a perfect title to the same even against infants under an unrecorded deed. Carrier v. Kavanaugh, 198 Ky. 25 , 247 S.W. 1107, 1923 Ky. LEXIS 367 ( Ky. 1923 ).

Purchaser of land in the name of husband who in good faith attempted to find out from the record whether the husband had good title to the land, and who had no information concerning the sale under court order of land belonging to his wife and the heirs of her body, and reinvestment of the proceeds in the husband’s land was an innocent purchaser of the husband’s land under this section where the deed by the husband of his land to his wife and the heirs of her body was acknowledged and certified but was destroyed without recording. Carrier v. Kavanaugh, 198 Ky. 25 , 247 S.W. 1107, 1923 Ky. LEXIS 367 ( Ky. 1923 ).

A bona fide subsequent purchaser is not a bona fide purchaser as to any of the purchase money paid subsequent to receiving notice of the prior unrecorded conveyance. Rouse v. Craig Realty Co., 203 Ky. 697 , 262 S.W. 1083, 1924 Ky. LEXIS 973 ( Ky. 1924 ); Rouse's Adm'r v. McDonald, 203 Ky. 702 , 262 S.W. 1085, 1924 Ky. LEXIS 974 ( Ky. 1924 ).

Although first purchaser of land did not record his deed, it is incumbent on subsequent purchaser of the same land to show bona fides of his transaction. Rouse v. Craig Realty Co., 203 Ky. 697 , 262 S.W. 1083, 1924 Ky. LEXIS 973 ( Ky. 1924 ); Rouse's Adm'r v. McDonald, 203 Ky. 702 , 262 S.W. 1085, 1924 Ky. LEXIS 974 ( Ky. 1924 ).

Where the first purchaser fails to record his deed, if another person without notice thereof innocently purchases the land and accepts a deed therefor, the latter’s title will not be affected by the subsequent recording of the first deed even though prior in point of time. Rouse v. Craig Realty Co., 203 Ky. 697 , 262 S.W. 1083, 1924 Ky. LEXIS 973 ( Ky. 1924 ); Rouse's Adm'r v. McDonald, 203 Ky. 702 , 262 S.W. 1085, 1924 Ky. LEXIS 974 ( Ky. 1924 ).

Where common grantor’s deed to son and son’s wife was unrecorded, wife’s heirs could not recover interest against innocent purchaser for value. Creech v. Wisconsin Steel, Coal & Coke Co., 218 Ky. 306 , 291 S.W. 385, 1927 Ky. LEXIS 157 ( Ky. 1927 ).

Where there was no evidence or intimation that a purchaser from vendor’s grantee had any notice or knowledge before he purchased the property of vendor’s outstanding equity for the unpaid purchase price, vendor was not entitled to a lien on the land. Jackson v. Engle, 230 Ky. 558 , 20 S.W.2d 460, 1929 Ky. LEXIS 139 ( Ky. 1929 ).

Where an owner neglects to record his title, every presumption is in favor of a subsequent purchaser and the loss, if any, should fall on the party who has failed to have his deed recorded and not on a good faith purchaser for value. Terry v. Ellsworth, 236 Ky. 54 , 32 S.W.2d 558, 1930 Ky. LEXIS 682 ( Ky. 1930 ).

Purchaser of an interest in land for a valuable consideration without notice is not affected by an unrecorded deed. Vanderpool's Guardian v. Louisville Gas & Electric Co., 251 Ky. 337 , 65 S.W.2d 69, 1933 Ky. LEXIS 876 ( Ky. 1933 ).

A purchaser of a recorded oil and gas lease for a valuable consideration and without notice of a deed of release which was not lodged of record took a perfect title even against infants. Vanderpool's Guardian v. Louisville Gas & Electric Co., 251 Ky. 337 , 65 S.W.2d 69, 1933 Ky. LEXIS 876 ( Ky. 1933 ).

Grantee from a husband, after the husband had conveyed the same realty to his wife, who did not pay the purchase price until after the recordation of the husband’s deed to the wife, was not a purchaser for value and a later title bond executed by the husband and wife conveyed good title to the real estate. Givens v. Turner, 272 Ky. 211 , 113 S.W.2d 1166, 1938 Ky. LEXIS 104 ( Ky. 1938 ).

Where, before the recording of plaintiff’s deed, the grantor’s execution creditors had bought in the land at an execution sale and the defendants had bought the grantor’s equity of redemption at a subsequent sale, and, after the recording of plaintiff’s deed, defendants purchased the interest of the execution creditors and received a sheriff’s deed, defendants were bona fide purchasers within the meaning of this section, since their purchase of the interest of the execution creditors amounted to a redemption, and the title under the sheriff’s deed related back to the time when the execution was levied and the lien created. Kentucky River Coal Corp. v. Culton, 276 Ky. 418 , 124 S.W.2d 82, 1938 Ky. LEXIS 555 ( Ky. 1938 ).

Evidence that defendant made no objection to numerous transactions by grantor of land, of a character evidencing ownership, was sufficient to support finding that plaintiff, at time of purchase of land, had no actual knowledge of defendant’s unrecorded deed. Chestnut v. Allen, 282 Ky. 703 , 139 S.W.2d 729 ( Ky. 1940 ).

Finding of jury that vendee did not have actual notice of prior unrecorded deed from vendor to his stepdaughter was not flagrantly against the evidence where evidence that vendee had notice consisted of the testimony of two strangers to the transactions that in casual conversation with the vendee they told him of the deed, and the testimony of grantor that he told vendee about the deed before the sale was closed and vendee denied this testimony and vendee’s son testified he was present when the sale was closed and grantor did not say anything about the deed. Halusek v. Tomlison, 353 S.W.2d 191, 1962 Ky. LEXIS 6 ( Ky. 1962 ).

25.— — Possession as Actual Notice.

Where possession of the property is taken by the purchaser, and maintained thereafter, it operates as notice to creditors and purchasers. Warden v. Addington, 131 Ky. 296 , 115 S.W. 241, 1909 Ky. LEXIS 35 ( Ky. 1909 ). See Stone v. Keith, 218 Ky. 11 , 290 S.W. 1042, 1927 Ky. LEXIS 92 ( Ky. 1927 ); Chrisman v. Greer, 239 Ky. 373 , 39 S.W.2d 676, 1931 Ky. LEXIS 795 ( Ky. 1931 ); Ashland Grocery Co. v. Martin, 267 Ky. 677 , 103 S.W.2d 72, 1937 Ky. LEXIS 364 ( Ky. 1937 ).

The words “without notice” in this section apply to creditors as well as purchasers for a valuable consideration, and the possession of the grantee in unrecorded deed was sufficient notice. Stone v. Keith, 218 Ky. 11 , 290 S.W. 1042, 1927 Ky. LEXIS 92 ( Ky. 1927 ). See Sears v. Cain, 242 Ky. 702 , 47 S.W.2d 513, 1932 Ky. LEXIS 338 ( Ky. 1932 ).

Where possession of son to real estate conveyed to him by deed from his father was actual, open and unequivocal, it was such as to put all persons dealing with the title on inquiry and was notice of whatever title the son claimed although the deed was never recorded and was destroyed by the father after the son returned the deed to the father with instructions to record it. Powell's Trustee in Bankruptcy v. Powell, 232 Ky. 27 , 22 S.W.2d 293, 1929 Ky. LEXIS 383 ( Ky. 1929 ).

In an action by purchasers to enjoin delivery of sheriff’s deed and to set aside levy and sale thereunder, the burden was on the execution creditor to allege and prove that at the time he acquired his lien he had no notice of the prior unrecorded conveyance of the real estate where purchasers were in possession. Sears v. Cain, 242 Ky. 702 , 47 S.W.2d 513, 1932 Ky. LEXIS 338 ( Ky. 1932 ).

Burden of establishing actual notice is upon grantee of unrecorded deed. Davis v. Allen, 280 Ky. 798 , 134 S.W.2d 617, 1939 Ky. LEXIS 203 ( Ky. 1939 ).

Where property is sold by unrecorded deed and possession is taken by purchaser and maintained thereafter it operates as notice to creditors and purchasers, but where record title holder continues to reside in the property with the purchaser the latter’s possession is not inconsistent with title in former and does not constitute notice. Davis v. Allen, 280 Ky. 798 , 134 S.W.2d 617, 1939 Ky. LEXIS 203 ( Ky. 1939 ).

Where, at time deed was executed and delivered, grantee was occupying and living upon a tract of land adjoining the tract conveyed by the deed, the delivery of the deed had the effect of placing the grantee in constructive, actual possession of the conveyed tract, and of constituting sufficient notice to put subsequent purchasers on inquiry, even though the deed was not put to record. McKinney v. Isaacs, 299 Ky. 458 , 185 S.W.2d 963, 1945 Ky. LEXIS 452 ( Ky. 1945 ).

26.— Recorded.

Where grantee legally lodged deed which contained all the required entries and certificates for record and the clerk recorded only the body and signature but not the certificate of acknowledgment and made a memorandum on the deed that it had been recorded, grantee when she took it from the office had the evidence of it having been recorded and was not required to look at the record books to ascertain whether it had been recorded, but could assume that it had and it was constructive notice and binding on subsequent purchasers. Cain v. Gray, 146 Ky. 402 , 142 S.W. 715, 1912 Ky. LEXIS 81 ( Ky. 1912 ), overruling Herndon v. Ogg, 119 Ky. 814 , 27 Ky. L. Rptr. 268 , 84 S.W. 754, 1905 Ky. LEXIS 40 ( Ky. 1905 ) to the extent of conflict.

Where plaintiff was a bona fide purchaser for value and his deed was on record when land was purchased by mortgagee in proceedings brought by mortgagee to enforce his mortgage lien, plaintiff’s title was superior to the title of mortgagee and the successor to mortgagee’s title unless deed executed by mortgagor to purchaser was not a recordable instrument. Holland v. Stubblefield, 182 Ky. 282 , 206 S.W. 459, 1918 Ky. LEXIS 351 ( Ky. 1918 ).

Grantee of mineral lands was charged with constructive notice of rights of others then in possession of and living on the land, claiming under deeds without mineral reservations, which were recordable, to extent of boundaries described in such deeds. Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

A county clerk’s failure to keep the required alphabetical index for indexing deeds delivered to him for recording may make him liable to anyone who may be damaged thereby, but it does not defeat the effect of the delivery of a deed for record as constructive notice to all persons after that time. Kentucky River Coal Corp. v. Sumner, 195 Ky. 119 , 241 S.W. 820, 1922 Ky. LEXIS 284 ( Ky. 1922 ).

The failure of the county clerk to comply with the provisions of KRS 382.200 and 382.210 as to the indexing of all instruments which affect the title to real estate, does not affect the validity of the constructive notice which is given by placing such an instrument on record. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

Where the clerk records an instrument which is recordable in his office, it is notice to all parties as provided by law, and this notice exists regardless of whether the clerk has properly indexed the instrument. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

An innocent purchaser from vendor who had received land by a recorded deed showing the payment of a valuable consideration had the right to rely upon the recitation in the deed that the consideration had been paid in full. Dishman v. Marsh, 278 Ky. 21 , 128 S.W.2d 235, 1939 Ky. LEXIS 390 ( Ky. 1939 ).

Subsequent grantee was charged with notice of building restriction retained by his grantor in a prior recorded deed from his grantor to another. Harp v. Parker, 278 Ky. 78 , 128 S.W.2d 211, 1939 Ky. LEXIS 382 ( Ky. 1939 ).

Though deed, absolute on its face, was in legal effect a mortgage as between parties to transaction, innocent purchaser from grantee, relying on recorded deed, would be protected. Hatfield v. Corbin Bldg. Supply Co., 279 Ky. 30 , 129 S.W.2d 1025, 1939 Ky. LEXIS 236 ( Ky. 1939 ).

Where deed creating a life estate with remainder was recorded, grantee of life tenant could not claim, as against remainderman, that improvements made by him were made in good faith without knowledge of remainderman’s interest. Adkins v. Hackworth, 279 Ky. 352 , 130 S.W.2d 774, 1939 Ky. LEXIS 277 ( Ky. 1939 ).

26.Recorded.

Chapter 7 trustee’s strong arm powers did not allow him to avoid unrecorded land sale contract between sellers and debtors, as sellers retained legal interest, which was treated as security interest under Kentucky law, which was evidenced by properly recorded deed. Sellers’ legal/security interest was never part of debtors’ property and never became property of estate. Higgason v. Porter (In re New), 2013 Bankr. LEXIS 3662 (Bankr. E.D. Ky. Aug. 30, 2013).

27.Estoppel.

Vendor of land under title bond was estopped from claiming against the purchasers a lien in excess of that shown by the title bond. Vanderpool v. Stewart, 212 Ky. 373 , 279 S.W. 645, 1926 Ky. LEXIS 149 ( Ky. 1926 ).

Widow was estopped from claiming the lands conveyed in deed to her from husband, which deed was not recorded until after his death, as against lien of surety company who paid for the defalcations of her husband while he was sheriff but she was not estopped from claiming her dower interest in the property. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

One who stands by silently and sees another purchase real property from a third person, without giving information that the property is his, is estopped from asserting title against the purchaser. Chestnut v. Allen, 282 Ky. 703 , 139 S.W.2d 729 ( Ky. 1940 ).

28.Taxes.

Any taxes by a city or by a county assessed against particular real estate which was sold pursuant to foreclosure would have a priority over a recorded mortgage. Midland-Guardian Co. v. McElroy, 563 S.W.2d 752, 1978 Ky. App. LEXIS 490 (Ky. Ct. App. 1978).

Inasmuch as lienholders could have neither actual nor constructive notice of personal property taxes accruing two (2), three (3) and four (4) years after the lien, any portion of the tax bills of a city or a county on real or personal property other than the property assessed would be subject to the general principle of “first in time, first in right.” Midland-Guardian Co. v. McElroy, 563 S.W.2d 752, 1978 Ky. App. LEXIS 490 (Ky. Ct. App. 1978).

29.Assignment of Extraction Lease.

Where seller of land assigned rights to all moneys becoming due by virtue of a lease, and lease provided that lessee would extract minimum amount of coal so that lessee was required to pay minimum royalty regardless of amount of coal removed, the payments actually were rent classifiable as real property; thus, the assignment of the lease involved transfer of title to real property and failure of assignee of mining lease claiming title to mineral rights to show that purchaser had notice of the assignment prior to the time he received the deeds to the property rendered the assignment of the lease invalid and purchaser was entitled to have title to the property quieted. Godley v. Kentucky Resources Corp., 640 F.2d 831, 1981 U.S. App. LEXIS 20513 (6th Cir. Ky. 1981 ).

30.Lease.
31.— Filing.

Because bank filed notice of its lien in the county clerk’s office in order to give notice to the public of its interest in the real property pursuant to this section, it had a valid and properly perfected lien interest in the property and bankruptcy trustee’s action seeking to avoid bank’s second mortgage on the property was dismissed. Cooper v. First Citizens Bank (In re Jones), 186 B.R. 71, 1995 Bankr. LEXIS 1281 (Bankr. W.D. Ky. 1995 ).

32.Proof of Notice.

Proof of notice under this section need not be by direct testimony, but may be established by all degrees and grades of evidence, including circumstantial evidence. State St. Bank & Trust Co. v. Heck's Inc., 963 S.W.2d 626, 1998 Ky. LEXIS 27 ( Ky. 1998 ).

Cited:

Smith v. Holland, 298 Ky. 598 , 183 S.W.2d 647, 1944 Ky. LEXIS 963 ( Ky. 1944 ); Commonwealth v. Hallahan, 391 S.W.2d 378, 1965 Ky. LEXIS 305 ( Ky. 1965 ); General Motors Acceptance Corp. v. Hodge, 485 S.W.2d 894, 1972 Ky. LEXIS 145 ( Ky. 1972 ); Charles v. Stump (In re Charles), — B.R. —, 2004 Bankr. LEXIS 1741 (Bankr. E.D. Ky. 2004 ); Mortgage Elec. Registration Sys. v. Roberts, 366 S.W.3d 405, 2012 Ky. LEXIS 74 ( Ky. 2012 ).

Notes to Unpublished Decisions

Analysis

1.Constitutionality.

Unpublished decision: Chapter 13 trustee could avoid a mortgage given by the debtors to the creditors because the notary certificate in the mortgage did not comply with KRS 423.130 and therefore did not provide the notice required to bona fide purchasers under KRS 382.270 , because the notary did not identify who signed the mortgage in the certificate of acknowledgment. Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

Unpublished decision: Chapter 13 trustee could avoid a mortgage given by the debtors to the creditors because the notary certificate in the mortgage did not comply with KRS 423.130 and therefore did not provide the notice required to bona fide purchasers under KRS 382.270 , because the notary did not identify who signed the mortgage in the certificate of acknowledgment. Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

2.Mortgages.
3.— Recorded.
4.— — Insufficient Form.

Unpublished decision: District court erred in finding that a deficient but recorded mortgage gave notice to the bankruptcy trustee because, under KRS 382.270 , an improperly executed security interest that was recorded failed to provide constructive notice. The strong arm provision of the federal bankruptcy law, 11 U.S.C.S. § 544(a)(3), specifically prohibited trustees from having actual knowledge of the security interest; thus, the trustee could only be charged with constructive notice. Rogan v. America's Wholesale Lender (In re Vance), 99 Fed. Appx. 25, 2004 U.S. App. LEXIS 7171 (6th Cir. Ky. 2004 ).

Unpublished decision: Based upon the plain meaning of KRS 423.130 , as well as Sixth Circuit caselaw, a notary had to identify who signed the mortgage in the Certificate of Acknowledgment. Therefore the bankruptcy court and the Bankruptcy Appellate Panel correctly concluded that the mortgage did not provide constructive notice under KRS 382.270 to subsequent purchasers or creditors because it was not properly acknowledged under Kentucky law and was consequently subject to avoidance by the trustee pursuant to 11 U.S.C.S. § 544, and that it should have been preserved for the benefit of the estate pursuant to 11 U.S.C.S. § 551; accordingly, the court affirmed the order of the bankruptcy court granting summary judgment to the trustee. Burden v. CIT Group/Consumer Fin., Inc. (In re Wilson), 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. Mar. 19, 2009).

Opinions of Attorney General.

The statement in subsection (1) of KRS 355.9-313 that KRS chapter 355 does not prevent the creation of an encumbrance upon fixtures or real estate pursuant to the Kentucky law which is applicable to real estate, attests to a legislative intent that the real estate mortgage or lien concept and the existing statutory formalities of this section and KRS 382.330 remain inviolate and unchanged. OAG 81-144 .

A coal lease for five years or less would be recordable if it contains the entire agreement and is properly executed as required by law. OAG 82-296 .

Although KRS 382.080 , standing alone, may contain some suggestion that a coal lease of five years or less may not require recordation, and unrecorded might prevail against a bona fide purchaser for value without notice, such construction is not in conformity with the Kentucky law (including KRS 382.100 and this section) as interpreted by the courts. A coal lease of five years or less, to be good against a bona fide purchaser for value without notice, must be properly recorded in the county clerk’s office. OAG 82-296 .

The statute of frauds, KRS 371.010 , has no relation to the system of constructive notice established pursuant to KRS 382.100 and this section. Therefore, the recording of a memorandum of a coal lease will not suffice to be effective against bona fide purchasers for value without notice. OAG 82-296 .

An unrecorded deed, if otherwise validly executed, delivered and accepted, is good against the grantor and his heirs; however, the deed is not valid as to a creditor or other purchaser without actual notice of the transaction. OAG 83-276 .

An unrecorded deed would be valid and would prevail over a subsequent deed where the subsequent grantee knew or had notice of the unrecorded deed prior to the subsequent grantee’s purchase, or had information sufficient to put him on inquiry that would have led to its discovery, such information being equivalent to notice. OAG 83-276 .

Where a subsequent grantee or creditor has no actual knowledge or notice of such prior deed or has no information sufficient to put the subsequent grantee on inquiry that would lead to the discovery of the prior deed upon a search, the prior and unrecorded deed would not be valid against such creditor or subsequent grantee. OAG 83-276 .

Research References and Practice Aids

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

A Defective Acknowledgement: Avoiding a Recorded Mortgage in Bankruptcy, Vol. 69, No. 3, May 2005, Ky. Bench & Bar 5.

Kentucky Law Journal.

Roberts, Conditional Sales in Kentucky, 25 Ky. L.J. 125 (1937).

Nowka and Taylor, Kentucky Employees’ Wage Liens: A Sneak Attack on Creditors, but Beware of the Bankruptcy Trustee, 84 Ky. L.J. 317 (1995-96).

382.280. Order in which deeds and mortgages take effect.

Except as provided in KRS 382.077 , all bona fide deeds of trust or mortgages shall take effect in the order that they are legally acknowledged or proved and lodged for record.

HISTORY: 497; 2019 ch. 86, § 42, effective January 1, 2020.

NOTES TO DECISIONS

1.Priority.

A second mortgagee with notice, actual or constructive, does not have priority over a first mortgagee by recording his mortgage first. Flowers v. Moorman & Hill, 86 S.W. 545, 27 Ky. L. Rptr. 728 (1905).

A recorded mortgage is superior to a prior unrecorded mortgage, if it was a recordable instrument and the debt was created and the mortgage accepted without notice of the prior mortgage. City Bank & Trust Co. v. Planters' Bank & Trust Co., 176 Ky. 500 , 195 S.W. 1124, 1917 Ky. LEXIS 87 ( Ky. 1917 ).

Provision in mortgage that lien therein created should be superior to all others could not affect prior recorded mortgage. Avey v. Via, 225 Ky. 155 , 7 S.W.2d 1057, 1928 Ky. LEXIS 739 ( Ky. 1928 ).

Any taxes by a city or by a county assessed against particular real estate which was sold pursuant to foreclosure would have a priority over a recorded mortgage. Midland-Guardian Co. v. McElroy, 563 S.W.2d 752, 1978 Ky. App. LEXIS 490 (Ky. Ct. App. 1978).

Since KRS 382.270 , KRS 382.280 and Kentucky case law do not address the specific situation of the judgment lien in this case, the rationale in the Restatement (Third) of Property should control: third parties who lend money used to purchase real estate in exchange for a mortgage hold special priority over all other recorded liens and judgments except where agreed otherwise by the parties or specified by statute. Ky. Legal Sys. Corp. v. Dunn, 205 S.W.3d 235, 2006 Ky. App. LEXIS 111 (Ky. Ct. App. 2006).

Where a judgment lienholder recorded its lien before another mortgage was created on the property and later assigned, the judgment lien had priority under the recording statute, KRS 382.280 . The doctrine of equitable subrogation did not apply, because an adequate title search would have prevented the assignee’s potential loss. Roberts v. Mortgage Elec. Registration Sys., 2009 Ky. App. LEXIS 209 (Ky. Ct. App. Oct. 30, 2009).

Pursuant to the plain terms of KRS 382.280 , appellee bank held the prior and superior lien in residential real property owned in fee simple where it was undisputed that the bank’s lien upon the property constituted the first in time recorded lien and that appellant was unaware of the bank’s prior recorded lien due to an error by its title examiner. The equities of the case did not favor application of equitable subrogation. W.M. Specialty Mortg., LLC v. Cmty. Trust Bank, Inc., 2011 Ky. App. LEXIS 33 (Ky. Ct. App. Feb. 18, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. Feb. 18, 2011).

2.Recording.

Deed must be deemed to have been recorded on the day it was lodged for record, notwithstanding the full certificate of record bears date 18 days later. Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

The general rule is that the lodging of a deed for record in the proper office is sufficient to constitute a delivery. Nunn v. Justice, 278 Ky. 811 , 129 S.W.2d 564, 1939 Ky. LEXIS 500 ( Ky. 1939 ).

Where daughters, grantees in deeds from their parents, were present when deeds were drawn and lodged for record, and took part in the transaction, under the circumstances the lodging for record undoubtedly constituted a valid delivery of deeds. Nunn v. Justice, 278 Ky. 811 , 129 S.W.2d 564, 1939 Ky. LEXIS 500 ( Ky. 1939 ).

382.290. Recording of mortgages and deeds retaining liens — Assignment — Discharge — Form of record — Clerk’s fee.

  1. In recording mortgages and deeds in which liens are retained (except railroad mortgages securing bonds payable to bearer), there shall be left a blank space immediately after the record of the deed or mortgage of at least two (2) full lines for each note or obligation named in the deed or mortgage, or in the alternative, at the option of the county clerk, a marginal entry record may be kept for the same purposes as the blank space. Each entry in the marginal entry record shall be linked to its respective referenced instrument in the indexing system for the referenced instruments.
  2. No county clerk or deputy county clerk shall admit to record any mortgage or deed in which liens are retained unless the mortgage or deed in which a lien is retained plainly specifies and refers to the immediate source from which the mortgagor or grantor derived title to the property or the interest encumbered therein.
  3. When any note named in any deed or mortgage is assigned to any other person, the assignor may, over his own hand, attested by the clerk, note such assignment in the blank space, or in a marginal entry record, beside a listing of the book and page of the document being assigned, and when any one (1) or more of the notes named in any deed or mortgage is paid, or otherwise released or satisfied, the holder of the note, and who appears from the record to be such holder, may release the lien, so far as such note is concerned, by release, over his own hand, attested by the clerk. Each entry in the marginal entry record shall be linked to its respective referenced instrument in the indexing system for the referenced instrument.
  4. No person who does not, from such record or assignment of record, appear at the time to be the legal holder of any note secured by lien in any deed or mortgage, shall be permitted to release the lien securing any such note, and any release made in contravention of this section shall be void; but this section does not change the existing law if no such entry is made.
  5. For each assignment and release so made and attested by the clerk, he may charge a fee pursuant to KRS 64.012 to be paid by the person executing the release or noting the assignment.
  6. If such assignment of a note is made by separate instrument or by deed assigning the note, or in a marginal entry record, the instrument of writing or deed or marginal entry record shall set forth the date of notes assigned, a brief description of notes, the name and post office address of assignee, and the deed book and page of the instrument wherein the lien or mortgage is recorded and the clerk or deputy clerk receiving such instrument of writing or deed of assignment for record shall at the option of the county clerk immediately either link the assignment and its filing location to its respective referenced instrument in the indexing system for the referenced instrument, or endorse at the foot of the record in the space provided in subsection (1) of this section, “The notes mentioned herein (giving a brief description of notes assigned) have been transferred and assigned to (insert name and address of assignee) by deed of assignment (or describe instrument) dated and recorded in deed book  . . . . .  page  . . . . . ,” and attest such certificate. For making such notation on the record the clerk shall be allowed a fee pursuant to KRS 64.012 for each notation so made, to be paid by the party filing the instrument of writing or deed of assignment.
  7. No holder of a note secured by lien retained in either deed or mortgage shall lodge for record, and no clerk or deputy clerk shall receive and permit to be lodged for record, any deed or instrument of writing that does not comply with the provisions of this section.

History. 498a: amend. Acts 1978, ch. 84, § 15, effective June 17, 1978; 1982, ch. 323, § 2, effective July 15, 1982; 2015 ch. 65, § 1, effective June 24, 2015; 2016 ch. 11, § 3, effective July 15, 2016.

NOTES TO DECISIONS

1.Purpose.

Purpose of recording statutes is to protect bona fide purchasers and creditors without notice; here mortgagee was on notice, and failure to have lien notes assigned of record did not mislead or prejudice him. In re May, 10 F. Supp. 829, 1935 U.S. Dist. LEXIS 1801 (D. Ky. 1935 ).

2.Assignment.

Where fact of transfer of note was not noted on margin of deed book as required by this section, children of maker of note receiving as creditors and not as heirs of father’s estate were not bound by father’s knowledge of claim against him based on note and creditor holding the transferred note could not compel contribution after settlement of estate although she had no actual notice of the settlement. Hill v. Mayes, 117 Ky. 877 , 79 S.W. 276, 25 Ky. L. Rptr. 2023 , 1904 Ky. LEXIS 257 ( Ky. 1904 ).

The assignment of a note given as part of the purchase price of land carries with it the vendor’s lien in the deed retained to the extent of the note so assigned. Hicks' Committee v. Smith, 158 Ky. 752 , 166 S.W. 248, 1914 Ky. LEXIS 711 ( Ky. 1914 ).

Where assignee of note secured by lien on land failed to cause the change in ownership to appear upon deed records and permitted the maker to retain possession of original liens upon their being renewed, and the maker obtained from another a loan secured by mortgage upon the land in question, the latter lien of mortgage was superior to that of owner of purchase money lien. Hicks' Committee v. Smith, 158 Ky. 752 , 166 S.W. 248, 1914 Ky. LEXIS 711 ( Ky. 1914 ).

Where purchaser of land gave three purchase money notes, one of which was sold and assigned but assignment not noted on record as required by this section, and where land was later sold in foreclosure proceedings on mortgage assumed by purchaser, but assignee of note was not made a party, and land was sold to original owner and assignor of note who then gave new mortgage to bank having no notice of assignment of the purchase money note, the bank occupied a better position than the assignee of the note whose losses were solely attributable to his own negligence in failing to have his lien assigned of record since the lien securing the three notes was extinguished by the judgment of sale and execution of the commissioner’s deed as effectively as if released in the margin of the recorded deed. Metcalf v. Tewmey, 220 Ky. 787 , 295 S.W. 1052, 1927 Ky. LEXIS 629 ( Ky. 1927 ).

Two (2) mortgages which Chapter 7 debtors granted five (5) years before they declared bankruptcy were avoidable under 11 USCS § 544 because a notary who acknowledged the debtors’ signatures did not comply with KRS 382.270 which required him to include the debtors’ names in the body of the acknowledgments, and assignments the mortgagee made were also defective and not recordable under KRS 382.290 because they did not contain an adequate description of the notes. MG Invs. Inc. v. Johnson (In re Cocanougher), 378 B.R. 518, 2007 Bankr. LEXIS 3801 (B.A.P. 6th Cir. 2007).

3.Release.

A lien for purchase money retained in a deed may only be released by the owner of the lien or by another thereunto duly authorized by power of attorney executed and acknowledged and recorded according to law; and he who releases the lien must do so in person and in the presence of the clerk, who attests his act. Hicks' Committee v. Smith, 158 Ky. 752 , 166 S.W. 248, 1914 Ky. LEXIS 711 ( Ky. 1914 ).

Attempted release by attorney on deed was not valid; release must be made as provided in this section. Phillips v. Arnett, 164 Ky. 426 , 175 S.W. 660, 1915 Ky. LEXIS 388 ( Ky. 1915 ).

Failure to release lien by statutory method did not prevent running of statute of limitations. Phillips v. Arnett, 164 Ky. 426 , 175 S.W. 660, 1915 Ky. LEXIS 388 ( Ky. 1915 ).

Any attempted release by a person other than one entitled to do so is void. Ethington v. Rigg, 173 Ky. 355 , 191 S.W. 98, 1917 Ky. LEXIS 463 ( Ky. 1917 ).

Where a note is payable to several obligees, any one of them may execute a valid release of note on record upon payment to him. Ethington v. Rigg, 173 Ky. 355 , 191 S.W. 98, 1917 Ky. LEXIS 463 ( Ky. 1917 ).

Where attempted release is signed by one of the vendors, not in his individual capacity but as agent for a designated class of heirs, such release is invalid in absence of a showing of proof of agency. Ethington v. Rigg, 173 Ky. 355 , 191 S.W. 98, 1917 Ky. LEXIS 463 ( Ky. 1917 ).

Where sum was paid to father by order of circuit court to be invested by him in land for his benefit for life, but with remainder to his daughter, who took a mortgage on the land and mortgage was satisfied, a release of record by the named mortgagee and also by the guardian of mortgagor’s infant daughter was an effective release. Bean v. Brown, 202 Ky. 215 , 259 S.W. 47, 1924 Ky. LEXIS 684 ( Ky. 1924 ).

4.Discharge.

The requirements of KRS 382.360 and this section could only be fulfilled by a deed of release executed by the holder of purchase money lien notes as shown by the record, thus deed from purchasers, the parties against whom the lien indebtedness existed, to the original vendor of the land conveyed did not discharge the purchase money lien. In re May, 10 F. Supp. 829, 1935 U.S. Dist. LEXIS 1801 (D. Ky. 1935 ).

5.Unreleased Lien.

The existence of an unreleased lien which can be satisfied out of the purchase price is no defense to an action for specific performance of a contract of sale of real estate. Bean v. Brown, 202 Ky. 215 , 259 S.W. 47, 1924 Ky. LEXIS 684 ( Ky. 1924 ).

Opinions of Attorney General.

The proper fee to be charged by the clerk for receiving and recording an assignment of a lien note is $3.25. OAG 62-973 .

A separate ledger system for the keeping of records of releases, assignments and annotations by the clerk in connection with the microfilming under KRS 171.660 and 171.670 of original instruments lodged for record by the county clerk would not comply with this section and KRS 382.360 due to the absence of juxtaposition of the release, assignment or annotation with the instrument lodged for record. OAG 75-386 .

A card-film system used in connection with the microfilming under KRS 171.660 and 171.670 of original instruments lodged for record by the county clerk, by which marginal releases, assignments and annotations are typed on one side of the card-film and then attested and signed by the clerk, thus becoming an integral part of the permanent microfilm record, complies with this section and KRS 382.360 . OAG 75-386 .

This section and KRS 382.360 do not preclude the microfilming, under the authority of KRS 171.660 and 171.670 , of original instruments lodged for record by the county clerk, which microfilm would constitute the clerk’s record. OAG 75-386 .

The appropriate fees charged by a county clerk where similar mortgages are assigned by one instrument would be $1.00 on each mortgage effectively assigned under the assignment instrument pursuant to KRS 142.010(1)(d), 25 cents (25¢) for each effectively assigned mortgage mentioned in the assignment instrument under KRS 382.290 and $3.50 for the clerk’s recording fee as provided for in KRS 64.010 (repealed) as a proper fee for recording a mortgage of real estate where the record does not exceed 12,000 words. OAG 76-447 .

The proper procedure for clearing records of a mistakenly filed mortgage is to have the parties to the mortgage file a deed of release or other instrument which complies with the statutory requirements necessary to terminate any mortgage except this deed of release or instrument should contain a clause which makes it clear that the release is being made only for the purposes of clearing the records in the county in which the mortgage was mistakenly filed and that the mortgage has been filed and continues to be in effect in the county of _________ where the land or the greater portion thereof lies) which instrument should be filed in the county where the original mortgage was filed and for which charge of the same fee for recording this instrument and noting the release should be made as if the mortgage had been properly filed in the first place; a marginal notation should be made on the mortgage book, reflecting that the release is being made only for the purpose of clearing the record and that the mortgage is properly filed in _________ county and is still in effect. OAG 79-21 .

In connection with transfer of notes secured by mortgages on single-family dwellings within the Commonwealth of Kentucky, the county clerk is entitled to a fee for noting the assignment on the real estate mortgages presently on file in his office, pursuant to this section and KRS 64.012 . OAG 82-264 .

Research References and Practice Aids

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

382.295. Recording master form for mortgages — Incorporation by reference of contents.

  1. An instrument containing forms of covenants, conditions, obligations, powers, and other clauses of a mortgage may be recorded in the county clerk’s office of any county, and the county clerk of such county, upon the request of any person, on tender of the lawful fees therefor, shall record the same. Every such instrument shall be entitled on the face thereof as a “Master form recorded by  . . . . .  (name of person causing the instrument to be recorded).” The instrument need not be acknowledged to be entitled to record.
  2. When any such instrument is recorded, the county clerk shall index the instrument under the name of the person causing it to be recorded in the manner provided for miscellaneous instruments relating to real estate.
  3. After the form mentioned in subsection (1) of this section is recorded, any of the provisions of such master form instrument may be incorporated by reference in any mortgage of real estate situated within this state, if the reference in the mortgage states that the master form instrument was recorded in the county in which the mortgage is offered for record and states the date when and the book and page or pages where the master form instrument was recorded. The recording of any mortgage which has so incorporated by reference therein any of the provisions of a master form instrument recorded as provided in this section shall have like effect as if the provisions of the master form so incorporated by reference had been set forth fully in the mortgage.

History. Enact. Acts 1970, ch. 88, §§ 1-3.

382.297. Amendment of recorded mortgage by affidavit of amendment.

A recorded mortgage may be amended by an affidavit of amendment prepared by an attorney to correct clerical errors or omitted information. An affidavit of amendment may not change any term, dollar amount, or interest rate in the mortgage, unless signed by the mortgagor and secured party. An affidavit of amendment may not change the parties or the collateral of a recorded mortgage, but may be used to correct a manifest clerical or typographical error such as spelling, punctuation, or numbering mistakes in typing or printing. The attorney preparing the affidavit shall certify in the affidavit that notice of filing the amendment has been given to the mortgagor by mailing a copy of the amendment to the mortgagor at the address shown on the original mortgage. A subsequent release of the mortgage releases any amendments to the original mortgage.

History. Enact. Acts 2006, ch. 183, § 19, effective July 12, 2006; 2015 ch. 65, § 2, effective June 24, 2015; 2016 ch. 11, § 4, effective July 15, 2016.

NOTES TO DECISIONS

1.Bankruptcy Proceeding.

Bankruptcy trustee could avoid a mortgage held by a creditor because the mortgage was defective under KRS 382.330 when it was filed without a stated maturity date and the creditor’s post-petition attempt to amend the mortgage to provide a stated maturity date, pursuant to KRS 382.297 , did not impact the trustee’s status as a bona fide purchaser under 11 USCS § 544. Burden v. Branch Banking & Tr. Co. (In re Potter), 2008 Bankr. LEXIS 495 (Bankr. E.D. Ky. Mar. 5, 2008).

Opinions of Attorney General.

The County Clerk does not have the authority to refuse to file amended mortgages. KRS 382.297 contemplates that amended mortgages may change dollar amounts, interest rates or terms of the original mortgage with the agreement of the parties to the transaction. If there is any question on the legitimacy of the filing it is for a court of law to make that ruling. OAG 2009-02 .

382.300. Duty of clerk concerning instruments lodged for record — Reproduction of clerk’s signature on photographic copy.

  1. Every county clerk shall record all deeds, mortgages and powers of attorney that are lodged for record, properly certified, or that are acknowledged or proved before him as required by law. He shall also record the certificates endorsed on such instrument, and shall certify the time when the instrument was lodged in his office for record. If acknowledged or proved before him, he shall also certify the time of acknowledgment or proof, and by whom proved, and that the instrument and the certificate thereon have been duly recorded in his office.
  2. Whenever, either heretofore or hereafter, any recordable instrument of writing bearing the certificate of the clerk showing its recording shall have been copied of record by any photographic, photocopying, or other mechanical process for reproducing on the record the instrument and certificate, the clerk’s signature, by either the clerk or his deputy, so reproduced with such certificate shall have the same effect as if subscribed by the clerk on the record.

History. 511: amend. Acts 1952, ch. 123, effective June 19, 1952.

NOTES TO DECISIONS

1.Construction.

All sections of statute relating to recording of instruments affecting title to real estate must be read and considered together. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

2.Unrecordable Instruments.

Where clerk’s certificate showed deed was “acknowledged by the subscribing witnesses,” rather than by grantor, the execution was not properly proven and the clerk was not authorized to record the deed. Middlesborough Waterworks Co. v. Neal, 105 Ky. 586 , 49 S.W. 428, 20 Ky. L. Rptr. 1403 , 1899 Ky. LEXIS 244 ( Ky. 1899 ). (See KRS 382.040 .).

3.Recorded Instruments.

Restrictions written on face of plat were recordable with it. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

Where plat and plan dedicating street was properly recorded, the failure of clerk to properly index instrument did not affect validity of constructive notice given by recording. Seat v. Louisville & Jefferson County Land Co., 219 Ky. 418 , 293 S.W. 986, 1927 Ky. LEXIS 374 ( Ky. 1927 ).

4.Failure to Record Certificate of Acknowledgment.

Where deed but not certificate of acknowledgment was recorded, and it was placed upon record in such a way as to make it appear that it was not a recordable instrument and of no greater effect than a bond for title, it did not give constructive notice to subsequent purchasers or creditors. Cain v. Gray, 146 Ky. 402 , 142 S.W. 715, 1912 Ky. LEXIS 81 ( Ky. 1912 ).

5.Failure to Add Recording Certificate.

Failure of the clerk to add a recording certificate or to copy such certificate in the deed book does not invalidate the deed or its recordation. Culton v. Simpson, 277 Ky. 808 , 127 S.W.2d 826, 1939 Ky. LEXIS 728 ( Ky. 1939 ).

6.Proof of Execution.

The clerk is not authorized to admit a mortgage to record without proof of its execution, and if he does record it without such proof it will not furnish constructive notice to purchasers or creditors. Starr Piano Co. v. Petrey, 168 Ky. 530 , 182 S.W. 624, 1916 Ky. LEXIS 584 ( Ky. 1916 ).

7.Certification of Time.

The purpose of subsection (1) of this section requiring the clerk to certify the time the instrument was lodged in his office for record was to make certain the time when it afforded constructive notice to third parties of change of title. Culton v. Simpson, 277 Ky. 808 , 127 S.W.2d 826, 1939 Ky. LEXIS 728 ( Ky. 1939 ).

8.Recording by Successor Clerk.

A deed that is made, acknowledged and certified according to law during the term of one county clerk, though not filed or lodged for record during his term, may be lodged for record and recorded during the term of his successor. Hunt v. Nance, 122 Ky. 274 , 92 S.W. 6, 28 Ky. L. Rptr. 1188 , 1906 Ky. LEXIS 58 ( Ky. 1906 ).

9.Presumptions.

It is presumed the clerk did exactly what his certificate states was done. Middlesborough Waterworks Co. v. Neal, 105 Ky. 586 , 49 S.W. 428, 20 Ky. L. Rptr. 1403 , 1899 Ky. LEXIS 244 ( Ky. 1899 ).

Opinions of Attorney General.

Where the county clerk recorded an original deed, such that the recording was in exact conformity with the wording of the original deed, and where the original deed was then subsequently taken from the clerk’s office and altered in the body thereof by the parties, the clerk would have no lawful authority to alter or amend, in any manner, the original recording of the deed in the clerk’s office. OAG 65-79 .

A county court clerk’s duties do not require him to perform lien searches. OAG 66-730 .

A deed of release must be executed in the manner provided in KRS 382.130 . OAG 69-335 .

A deed dated in 1884 which does not contain an acknowledgment of the grantor’s signature may not be recorded by the county clerk. OAG 74-717 .

Inasmuch as this section requires no specific form of certificate covering the lodging and recording of instruments by the clerk, an electric clock stamp would be a substantial compliance with this section as a recording certificate. OAG 77-545 .

This section imposes, as a condition for the clerk’s recording of a deed, the requirement that the grantor’s signature be acknowledged or proved before him as required by law; the signature of the grantor must be acknowledged or proven, under one of the five (5) alternatives as specifically outlined in KRS 382.130 , if the deed is to be recordable. Thus, where a deed lodged in the clerk’s office was not properly acknowledged or proven (grantor’s signature) as required by KRS 382.130 and this section, it is unrecordable, although it passes title between the parties where no intervening equities are affected. OAG 83-365 .

The County Clerk does not have the authority to refuse to file amended mortgages. KRS 382.297 contemplates that amended mortgages may change dollar amounts, interest rates or terms of the original mortgage with the agreement of the parties to the transaction. If there is any question on the legitimacy of the filing it is for a court of law to make that ruling. OAG 2009-02 .

382.310. Clerk may complete acknowledgment and record of predecessor.

If the office of any county clerk has been vacated, leaving therein any instrument unrecorded, which from an official endorsement thereon appears to have been acknowledged or proved in part, his successor may receive the complete acknowledgment and record the same, stating the facts in his certificate. If any such instrument appears to have been acknowledged or proved ready for record, or to have been acknowledged or proved before another officer, and certified according to law, and lodged in his office for record, or is produced to his successor for record, the successor of such clerk shall record the instrument, making his certificate conform to the facts.

History. 510.

NOTES TO DECISIONS

1.Acts of Successor.

A deed that is made, acknowledged and certified according to law during the term of one county clerk, though not filed or lodged for record during his term, may be lodged for record and recorded during the term of his successor. Hunt v. Nance, 122 Ky. 274 , 92 S.W. 6, 28 Ky. L. Rptr. 1188 , 1906 Ky. LEXIS 58 ( Ky. 1906 ).

2.Acts After Termination of Office.

After one has ceased to be clerk, he cannot sign his name officially to clerk’s certificate of acknowledgment to deed already recorded. Fitzgerald v. Milliken, 83 Ky. 70 , 7 Ky. L. Rptr. 11 , 1885 Ky. LEXIS 38 (Ky. Ct. App. 1885).

382.320. Clerk may correct errors and omissions of predecessor.

  1. If the office of any county clerk has been vacated, leaving any instrument recorded in his office, the original of which has never been taken therefrom, and in the record of which, or the authentication thereof, there is a deviation from the original, the successor shall correct such record by making it an exact copy of the original instrument and authentication.
  2. Whenever the clerk who has vacated his office has failed to put his name to the certificate on any instrument which he has recorded, or to the record thereof, and the original has not been removed from his office, the successor shall sign the name of his predecessor to the certificate, and shall make a note on the record at the foot of the certificate, of any act so done.

History. 509.

382.330. Instrument not to be recorded unless date of maturity shown — Exception.

No county clerk shall record a deed or deed of trust or mortgage covering real property by which the payment of any indebtedness is secured unless the deed or deed of trust or mortgage states the date and the maturity of the obligations thereby secured which have been already issued or which are to be issued forthwith. In the case of obligations due on demand, the requirement of stating the maturity thereof shall be satisfied by stating that such obligations are “due on demand.”

History. 511a-1: amend. Acts 1962, ch. 83, § 17; 1978, ch. 373, § 1, effective June 17, 1978.

NOTES TO DECISIONS

1.Application.

This statute does not apply to any secured transaction falling within the scope of the Uniform Commercial Code. Lincoln Bank & Trust Co. v. Queenan, 344 S.W.2d 383, 1961 Ky. LEXIS 223 ( Ky. 1961 ) (decision prior to 1962 amendment.).

2.Omission of Date and Maturity.

Under this section a mortgage which does not reveal the date and maturity of the obligation secured thereby is not a recordable instrument. Trio Realty Co. v. Queenan, 360 S.W.2d 747, 1962 Ky. LEXIS 225 ( Ky. 1962 ).

Where a mortgage instrument that was recorded recited no maturity date, but was in perfectly recordable form in all other particulars, the mortgage was sufficiently perfected, despite its technical deficiency, to defeat a claim against the real estate by a bankruptcy trustee. In re Taylor, 18 B.R. 128, 1982 Bankr. LEXIS 4758 (Bankr. W.D. Ky. 1982 ).

Mortgage that did not provide the maturity of the obligation secured by it did not comply with KRS 382.330 , and was thus not a recordable instrument and was not sufficient notice to a bona fide purchaser or judgment lien creditor. Accordingly, the trustee could avoid the mortgage under 11 U.S.C.S. § 544. Gardner v. Green Tree Servicing, LLC (In re Bradley), 2005 Bankr. LEXIS 469 (Bankr. E.D. Ky. Mar. 24, 2005).

United States Bankruptcy Court for the Eastern District of Kentucky, Frankfort Division, is of the opinion that KRS 382.330 is not satisfied by a party having to assume what is the maturity of the obligation secured by a recorded mortgage, nor is KRS 382.330 satisfied by having to refer to evidence extrinsic to the recorded document. Accordingly, although a maturity date could have been determined by reference to extrinsic evidence, the mortgage nonetheless failed to comply with KRS 382.330 and was subject to avoidance under 11 U.S.C.S. § 544. Gardner v. Green Tree Servicing, LLC (In re Bradley), 2005 Bankr. LEXIS 469 (Bankr. E.D. Ky. Mar. 24, 2005).

Bankruptcy trustee could avoid a mortgage held by a creditor because the mortgage was defective under KRS 382.330 when it was filed without a stated maturity date and the creditor’s post-petition attempt to amend the mortgage to provide a stated maturity date, pursuant to KRS 382.297 , did not impact the trustee’s status as a bona fide purchaser under 11 USCS § 544. Burden v. Branch Banking & Tr. Co. (In re Potter), 2008 Bankr. LEXIS 495 (Bankr. E.D. Ky. Mar. 5, 2008).

3.Incorrect Maturity Date.

Trustee’s complaint, which sought to avoid the creditors’ lien on the real property as unperfected against the trustee as a hypothetical bona fide purchaser and/or a hypothetical judicial lien creditor, was dismissed with prejudice where the deed was sufficient to defeat the claim of the trustee because the deed complied with Kentucky law regarding acknowledgement and it gave adequate notice of the creditors’ lien because (1) the deed was clearly titled “General Warranty Deed with Lien” and stated that the consideration was secured by a promissory note, (2) set out in a separate paragraph was the statement that a lien was retained to secure the unpaid purchase price, (3) although the amount of indebtedness shown was incorrect, it was less than the actual amount of indebtedness, which by common sense was the amount secured, and (4) although the final maturity date shown was incorrect, it was off by one (1) payment, one (1) month. Charles v. Stump (In re Charles), 2004 Bankr. LEXIS 1741 (Bankr. E.D. Ky. Oct. 19, 2004).

4.Promissory Notes.

Where mortgage erroneously stated that there was “a promissory note of even date,” although there were actually 11 promissory notes, but did state that the principal sum owing was $86,600.00, and that it was payable with interest on demand, but not later than December 5, 1975, which was the final maturity date, such mortgage satisfied the requirements of this section. In re Blieden, 49 B.R. 386, 1985 Bankr. LEXIS 6640 (Bankr. W.D. Ky. 1985 ).

Cited:

Commonwealth v. Hallahan, 391 S.W.2d 378, 1965 Ky. LEXIS 305 ( Ky. 1965 ); General Motors Acceptance Corp. v. Hodge, 485 S.W.2d 894, 1972 Ky. LEXIS 145 ( Ky. 1972 ).

Opinions of Attorney General.

Chattel mortgages, financing statements and security agreements are to be filed and recorded in the manner set out in section 9-403 of the Uniform Commercial Code. OAG 60-428 .

An “Assignment of Rents and Agreement not to Transfer or Encumber Real Property,” which sets out the parties, the promissory note which stands as consideration, a description of the affected property and an agreement by the borrowers that they will not create or allow any further liens upon the property and that they assign all rents, etc., to the bank, must bear the maturity date of the obligations thereby secured in order to be valid, and the county clerk should not record the document absent inclusion of the maturity date. The clerk is free to choose whether it shall be recorded and indexed in the mortgage book, the deed book or the miscellaneous book, but the mortgage book is the most appropriate place for filing these documents because they are most typically used as an adjunct to other rights arising by virtue of a mortgage agreement. OAG 80-3 .

The statement in subsection (1) of KRS 355.9-313, that KRS chapter 355 does not prevent the creation of an encumbrance upon fixtures or real estate pursuant to the Kentucky law which is applicable to real estate, attests to the legislative intent that the real estate mortgage or lien concept and the existing statutory formalities of KRS 382.270 and this section remain inviolate and unchanged. OAG 81-144 .

Research References and Practice Aids

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

382.335. Certain information to be included in instruments in order for them to be recorded.

  1. No county clerk shall receive or permit the recording of any instrument by which the title to real estate or personal property, or any interest therein or lien thereon, is conveyed, granted, encumbered, assigned, or otherwise disposed of; nor receive any instrument or permit any instrument, provided by law, to be recorded as evidence of title to real estate, unless the instrument has endorsed on it, a printed, typewritten, or stamped statement showing the name and address of the individual who prepared the instrument, and the statement is signed by the individual. The person who prepared the instrument may execute his or her signature by affixing a facsimile of his or her signature on the instrument. This subsection shall not apply to any instrument executed or acknowledged prior to July 1, 1962.
  2. No county clerk shall receive or permit the recording of any instrument by which the title to real estate or any interest therein is conveyed, granted, assigned, or otherwise disposed of unless the instrument contains the mailing address of the grantee or assignee. This subsection shall not apply to any instrument executed or acknowledged prior to July 1, 1970.
  3. This section shall not apply to wills or to statutory liens in favor of the Commonwealth.
  4. No county clerk shall receive, or permit the recording of, any instrument by which real estate, or any interest therein, is conveyed, granted, assigned, transferred, or otherwise disposed of unless the instrument complies with the official indexing system of the county. The indexing system shall have been in place for at least twenty-four (24) months prior to July 15, 1994 or shall be implemented for the purpose of allowing computerized searching for the instruments of record of the county clerk. If a county clerk requires a parcel identification number on an instrument before recording, the clerk shall provide a computer terminal, at no charge to the public, for use in finding the parcel identification number. The county clerk may make reasonable rules about the use of the computer terminal, requests for a parcel identification number, or both.
  5. The receipt for record and recording of any instrument by the county clerk without compliance with the provisions of this section shall not prevent the record of filing of the instrument from becoming notice as otherwise provided by law, nor impair the admissibility of the record as evidence.

History. Enact. Acts 1962, ch. 23; 1970, ch. 164, § 1; 1972, ch. 134, § 1; 1990, ch. 164, § 3, effective July 13, 1990; 1994, ch. 293, § 1, effective July 15, 1994; 2010, ch. 133, § 72, effective July 15, 2010; 2010, ch. 151, § 113, effective January 1, 2011.

Legislative Research Commission Note.

(1/1/2011). This section was amended by 2010 Ky. Acts chs. 133 and 151, which are virtually identical and have been codified together.

NOTES TO DECISIONS

1.In General.

The zoning ordinances assisted the county clerk and the Property Valuation Administrator (PVA) in properly performing their statutorily required duties, including the county clerk’s duty to record lawful deeds under KRS 382.110 and KRS 382.335 , and the PVA’s duty to maintain lists of all real property additions to the property tax rolls for the county under KRS 132.015 . A ruling that the ordinances interfered with those duties ignored that, under KRS 100.277 , a planning commission was authorized to approve plats of subdivisions of land, such approval had to be obtained before plats may be recorded, and instruments referring to unapproved plats or subdivisions were void. Campbell County Fiscal Court v. Nash, 2008 Ky. App. LEXIS 373 (Ky. Ct. App. Dec. 12, 2008), review granted, transferred, 2010 Ky. LEXIS 40 (Ky. Jan. 13, 2010).

2.Inspection by Legal Counsel.

A printed real estate form completed by a lay employe of a lending agency must be inspected, approved, and endorsed by legal counsel, who takes the responsibility as the drafter, or its completion and use is considered the unauthorized practice of law. Federal Intermediate Credit Bank v. Kentucky Bar Asso., 540 S.W.2d 14, 1976 Ky. LEXIS 33 ( Ky. 1976 ).

3.Compliance.

Contractor’s first lien statement complied with KRS 376.080 and was timely, because the signature of the contractor’s attorney and agent on the first lien statement and the prepared by statement listing the attorney’s name and address, but not separately signed by him, was sufficient to meet the requirements of KRS 382.335(1). Since the county clerk improperly rejected the first lien statement, the doctrine of equitable tolling allowed the second lien statement to relate back to the filing of the first lien statement. PBI Bank, Inc. v. Schnabel Found. Co., 392 S.W.3d 421, 2013 Ky. App. LEXIS 13 (Ky. Ct. App. 2013).

Cited:

Trio Realty Co. v. Queenan, 360 S.W.2d 747, 1962 Ky. LEXIS 225 ( Ky. 1962 ); Harrison v. Harold Cox Concrete Constr. Co., 440 F. Supp. 859, 1977 U.S. Dist. LEXIS 14441 (W.D. Ky. 1977 ).

Opinions of Attorney General.

The drafting of instruments such as those described in this section constitutes the practice of law, but if such document is presented and is signed by a person who is not a lawyer, it must be accepted for recording. OAG 62-515 .

Deeds of release of liens on real estate are included in the coverage of this section and must bear the signature of the author. OAG 62-629 .

The test of whether the instrument must contain a statement concerning authorship is: Does the instrument convey, grant, encumber, assign or otherwise dispose of an interest in real or personal property, and does the law require that the instrument be recorded? OAG 62-630 .

Financing statements need not bear the signed statement showing who prepared the instrument. OAG 62-631 .

The statement does not have to be certified but must merely show the name and address of the individual who prepared it and his signature. OAG 62-647 .

If the person who prepared the instrument has the statement of authorship with his address and signature on it, the clerk must record the instrument. OAG 62-700 .

It is not the clerk’s duty to determine whether the person who prepared the instrument is an attorney and to refuse to record the instrument if that person is not. OAG 62-700 .

Any instrument which conveys, grants, encumbers, assigns or otherwise disposes of an interest in real estate or personal property comes within the provisions of this section and such would include deeds, mortgages, a release of lien or deed or release, wills, bills of sale. OAG 62-714 .

The absence of the required certification could make the instrument defective as a properly recorded one. OAG 62-714 .

This section does not include automobile bills of sale. OAG 62-714 .

This section does not include financing statements required to be filed under the Uniform Commercial Code. OAG 62-714 .

Where a copy of the chattel instrument is filed instead of a financing statement, it shall be considered as a financing statement if it meets all the requirements of a financing statement and need not contain the statement of authorship required by this section. OAG 62-787 .

Affidavits of descent require the authorship statement provided for in this section. OAG 62-958 .

Final settlement papers do not require the statement of authorship. OAG 62-958 .

A deed prepared by a master commissioner following a judicial sale must bear the statement of authorship before the county court clerk shall record it. OAG 62-985 .

A power of attorney is not required to bear the signed statement of authorship. OAG 62-1100 .

This section does not impose on the county clerk a responsibility to determine that an instrument presented for recordation was prepared by a licensed attorney. OAG 68-400 .

If a person having a lien on personalty that is to become a fixture wishes to do so he may record it as a real estate mortgage if it meets the requirements of a mortgage, but it is not necessary. OAG 68-407 .

A notary public would be considered to be the person who prepared a deed within the meaning of this section when he copied the form of the prior deed and completed a new instrument by changing the names of the parties and the dates. OAG 69-280 .

The law contemplates a mailing address ordinarily used by such grantee. OAG 70-539 .

The phrase “mailing address” means an address that is deemed to be sufficient for mail delivery purposes. OAG 70-539 .

The mailing address requirement mentioned in subsection (2) of this section applies to oil and gas leases executed or acknowledged on July 1, 1970 or thereafter, because an oil lease involves a conveyance of real property. OAG 71-198 .

For documents that are required to show the identity of the draftsman, the mere signing of such instrument by an attorney or party to the instrument that “I have seen and approved” would not be sufficient compliance with the law. OAG 71-445 .

Under the express wording of the law, the actual draftsman (the person who prepared the instrument) must by a printed, typewritten or stamped statement show the name and address of the draftsman and the draftsman must sign his name to such statement. OAG 71-445 .

The principal types of instruments covered by this section include deeds, releases of liens or deeds of release, mortgages, leases, assignments of leasehold interests, contracts for sale of land, options to sell land, assignments or mortgages and notes, assignments of land sale contracts, deeds of assignment, easements, statutory liens, articles of incorporation and articles of dissolution relating to private corporations. OAG 72-711 .

A power of attorney is not an instrument which must have indorsed on it a printed, typewritten or stamped statement showing the name and address of the individual who prepared the instrument and the signature of the individual who prepared such statement. OAG 73-736 .

The name of the draftsman must appear on instruments such as contracts, chattel mortgages, and leases of personal property or instruments in which title to personal property or real estate is conveyed, granted, encumbered, or otherwise disposed of before such instruments can be recorded by the county clerk. OAG 74-76 .

Research References and Practice Aids

Kentucky Law Journal.

Barret, Unauthorized Practice of Law — The Full Service Bank that Was: Bank Cashier Enjoined from Preparing Real Estate Mortgages to Secure Bank Loans, 61 Ky. L.J. 300 (1972).

Northern Kentucky Law Review.

Kentucky Survey Issue: Article: The 2010 Amendments to Kentucky’s Business Entity Laws, 38 N. Ky. L. Rev. 383 (2011).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Lis Pendens — Notice of Filing of Action, Form 312.01.

382.337. Filing of affidavit to correct or supplement certain information contained in deed.

Any party to a deed or the attorney who prepared the deed or other persons with personal knowledge may execute and file with the county clerk his or her affidavit to correct or supplement information regarding the marital status of any party to a deed, or to supplement or correct information contained in or absent from the acknowledgment or notary portion of a deed, and for no other purpose. Nothing in this section is intended to replace any existing statutory requirement regarding the execution and filing of deeds. The affidavit shall contain the name, address, and signature of the person who prepared the instrument as required by KRS 382.335 .

History. Enact. Acts 2006, ch. 183, § 20, effective July 12, 2006.

382.340. Mortgages executed by public utility corporations — Recording — Effect.

  1. Mortgages executed by corporations, authorized to operate railroads, motor transportation lines, electric light, heat and power plants, water plants, telegraph and telephone lines, pipelines for the transportation or distribution of natural or manufactured gas, or a mixture of same, which cover rights-of-way, franchises, pipelines, pole lines, easements, railroad tracks, engines, cars, motor equipment or any tangible personal property, or after-acquired property of whatever kind, may create a lien upon such property, or any interest therein, and may secure all renewals and extensions of any loan secured thereby and the note evidencing the same, and may secure any additional indebtedness whether direct, indirect, existing, future, contingent or otherwise, to the extent authorized by the mortgage or deed of trust, if the mortgage by its terms stipulates the maximum additional indebtedness which may be secured thereby. All such mortgages which cover rights-of-way, franchises, pipelines, pole lines, easements, railroad tracks, engines, motor equipment or any tangible personal property shall be duly acknowledged as required by law and recorded as mortgages on real estate are required to be recorded only in the county in Kentucky in which the principal office of the corporation is located.
  2. If the mortgage covers other real property in addition to rights-of-way, franchises, pipelines, pole lines, easements, railroad tracks, engines, cars, motor equipment or tangible personal property, then the mortgage shall also be recorded in each county in which such other real property is located.
  3. When such mortgage is lodged for record, as herein provided, it shall be effective against purchasers for a valuable consideration without notice and against creditors as defined in KRS 382.270 .

History. 495a-4: amend. Acts 1942, ch. 101, § 1; 1960, ch. 250, § 2; 1964, ch. 118, § 2; 1966, ch. 164, § 2; 1968, ch. 121, § 1; 1968, ch. 152, § 157.

NOTES TO DECISIONS

Cited:

Lincoln Bank & Trust Co. v. Queenan, 344 S.W.2d 383, 1961 Ky. LEXIS 223 ( Ky. 1961 ); Trio Realty Co. v. Queenan, 360 S.W.2d 747, 1962 Ky. LEXIS 225 ( Ky. 1962 ); Harrison v. Harold Cox Concrete Constr. Co., 440 F. Supp. 859, 1977 U.S. Dist. LEXIS 14441 (W.D. Ky. 1977 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Weinberg, Graham and Stipanowich, Modernizing Kentucky’s Uniform Commercial Code, 73 Ky. L.J. 515 (1984-85).

382.350. Removal of property from land covered by lien.

Any person who, with actual or constructive notice of a recorded real property mortgage or vendor’s lien, and without the written consent of the record holder thereof, purchases, severs or removes from the land covered by the mortgage or lien, any standing timber, buildings, minerals, or improvements in the nature of fixtures real, covered by and included in the mortgage or lien, and who converts such property to his own use, shall take such property subject to the mortgage or vendor’s liens, and the respective priorities thereof, and shall be liable to the holders of the mortgages or liens for a return of such property or for the reasonable market value thereof at the time of the purchase or severance or removal and conversion thereof at the option of the holder of the mortgage or lien. But no holder of a mortgage or a vendor’s lien shall recover more than the amount of the indebtedness secured by his mortgage or vendor’s lien, and any amount recovered by the holder of the mortgage or vendor’s lien shall be credited on the indebtedness secured thereby.

History. 498b.

NOTES TO DECISIONS

1.Liability of Mortgagor to Mortgagee.

Under this section mortgagor of surface of property and improvements thereon was liable to his mortgagees after a sale of mortgaged coal crusher, without their written consent, for its return or for the reasonable market value at the time of removal and where mortgagor made no showing he was unable to comply with the alternative requirement of producing the value of the mortgaged property sold there was no merit in his contention that he was threatened with imprisonment for debt in violation of Const., § 18. Farmer v. Cassinelli, 303 S.W.2d 555, 1957 Ky. LEXIS 270 ( Ky. 1957 ).

Research References and Practice Aids

Cross-References.

Removal of property from land covered by lien, penalty, KRS 434.200 .

Kentucky Law Journal.

Glenn, Foreclosure Receiverships in Kentucky, 25 Ky. L.J. 26 (1936).

382.360. Discharge of liens by deed or mortgage — Assignment of mortgage — Effect.

  1. Liens by deed or mortgage may be discharged by an entry acknowledging their satisfaction on the margin of the record thereof, or in the alternative, at the option of the county clerk, in a marginal entry record, signed by the person entitled thereto, or his or her personal representative or agent, and attested by the clerk, or may be discharged by a separate deed of release, which shall recite the date of the instrument and deed book and the page wherein it is recorded. Such release in the case of a mortgage or deed of trust shall have the effect to reinstate the title in the mortgagor or grantor or person entitled thereto. Each entry in the marginal entry record shall be linked to its respective referenced instrument in the indexing system for the referenced instruments.
  2. If a lien or mortgage is released by a deed of release, the clerk shall immediately, at the option of the clerk, either link the release and its filing location to its respective referenced instrument in the indexing system for the referenced instrument, or endorse on the margin of the record wherein the lien is retained “Released by deed of release (stating whether in whole or in part) lodged for record (giving date, deed book and page wherein such deed of release may be found)” and the clerk shall also attest such certificate.
  3. When a mortgage is assigned to another person, the assignee shall file the assignment for recording with the county clerk within thirty (30) days of the assignment and the county clerk shall attest the assignment and shall note the assignment in the blank space, or in a marginal entry record, beside a listing of the book and page of the document being assigned. Provided, however, that an assignee that reassigns the note prior to the thirtieth day after first acquiring the assignment may request that the subsequent assignee file the unfiled assignment with the new reassignment.
  4. Delivering an assignment to the assignee or a lien release to the mortgagor shall not substitute for filing the assignment or release with the county clerk, as required by this section.
  5. Notwithstanding the provisions of this section, nothing in this chapter shall require the legal holder of any note secured by lien in any deed or mortgage to file a release of any mortgage when the mortgage securing such paid note also secures a note or other obligation which remains unpaid.
  6. Failure of an assignee to record a mortgage assignment shall not affect the validity or perfection, or invalidity or lack of perfection, of a mortgage lien under applicable law.

HISTORY: 498: amend. Acts 1982, ch. 323, § 3, effective July 15, 1982; 2006, ch. 183, § 17, effective July 12, 2006; 2019 ch. 86, § 45, effective January 1, 2020.

NOTES TO DECISIONS

Analysis

1.Application.

Whether the estate of the assignee is regarded as merely equitable, and, nothing more than a lien, this section applies. Cunningham v. Estill, 68 S.W. 1081, 24 Ky. L. Rptr. 559 , 1902 Ky. LEXIS 436 (Ky. Ct. App. 1902).

Under KRS 382.360(1), where a creditor mistakenly released its mortgage, the release dissolved the creditor’s interest in the property, and the creditor thus retained no interest in the property and there was no interest for Chapter 7 trustee to avoid. Even if the bankruptcy court considered the creditor’s possible equitable right to reinstate the mortgage to be an interest in the property that the trustee could avoid, the bankruptcy estate would have succeeded only to a released mortgage that would be subordinate to the intervening judicial lien creditors. Baker v. Hodge (In re Hodge), 2004 Bankr. LEXIS 1477 (Bankr. E.D. Ky. Sept. 28, 2004).

2.Release.

Any attempted release by a person other than one entitled to do so is void. Ethington v. Rigg, 173 Ky. 355 , 191 S.W. 98, 1917 Ky. LEXIS 463 ( Ky. 1917 ).

Where a note is payable to several obligees, any one of them may execute a valid release of note on record upon payment to him. Ethington v. Rigg, 173 Ky. 355 , 191 S.W. 98, 1917 Ky. LEXIS 463 ( Ky. 1917 ).

Where attempted release is signed by one of the vendors, not in his individual capacity but as agent for a designated class of heirs, such release is invalid in absence of a showing of proof of agency. Ethington v. Rigg, 173 Ky. 355 , 191 S.W. 98, 1917 Ky. LEXIS 463 ( Ky. 1917 ).

Where creditor released its first mortgage even though the debtor still owed a balance, it could not rely on its second mortgage to encompass this balance as there was nothing in the agreement referred to in the second mortgage which suggested that it was anything but a free-standing agreement to borrow a sum certain; it did not implicate the debtor’s obligation under the first mortgage. Thus, under KRS 382.260(1), the first mortgage was dissolved. In re Colemire, 2007 Bankr. LEXIS 2816 (Bankr. E.D. Ky. Aug. 27, 2007).

When a release did not recite the date of execution of the mortgage on a second parcel of property or at a minimum the correct deed and page recitation as required by KRS 382.360(1), the release did not terminate the bank’s lien on the second property and a Chapter 7 trustee could not avoid the bank’s security interest under 11 USCS § 544(b). Dunlap v. Fifth Third Mortgage Co. (In re Kerr), 390 B.R. 334, 2008 Bankr. LEXIS 1936 (Bankr. W.D. Ky. 2008 ).

3.Discharge.

Deed did not fulfill statutory requirements from purchasers to vendors of land under agreement to cancel vendor’s lien and did not discharge vendor’s lien by separate instrument. In re May, 10 F. Supp. 829, 1935 U.S. Dist. LEXIS 1801 (D. Ky. 1935 ).

No merger effecting the extinguishment of the lien resulted from vendor’s acceptance of reconveyance of tracts of land from persons owing purchase money notes secured by lien if bankrupt did not intend such result or if there was an outstanding or intervening interest or equity to be preserved. In re May, 10 F. Supp. 829, 1935 U.S. Dist. LEXIS 1801 (D. Ky. 1935 ).

A payment by mortgagor in good faith to the party to whom the record showed the right to receive it, without notice or knowledge of assignee’s interest in mortgage, and in accordance with the terms of mortgagor’s contract, and the release of the lien by the apparent holder thereof were valid and the mortgage was discharged. Mutual Life Ins. Co. v. Hall, 50 S.W. 254, 20 Ky. L. Rptr. 1880 (1899).

Purchaser of property who paid the mortgage to the mortgagee of record was not put on inquiry as to its assignment by statement of mortgagee’s president that the bonds were in another city and that he would send over and get them and deliver them to him and accept payment and discharge of mortgage by mortgagee of record was valid. Mutual Life Ins. Co. v. Hall, 50 S.W. 254, 20 Ky. L. Rptr. 1880 (1899).

Plaintiff failed to state a claim against defendant under the statutes pertaining to assignment of a mortgage and assignment of liens because defendant, as the assignor, was not obligated to file the assignment. Cline v. Kondaur Capital Corp. (In re Cline), 2013 Bankr. LEXIS 4433 (Bankr. E.D. Ky. Oct. 23, 2013).

5.Assignment.

Debtor’s claim that defendant lender failed to record an assignment of the mortgage note with the county clerk’s office in violation of KRS 382.360 and 382.365(3) was dismissed because the statutes required the assignee, not the assignor, to file the assignment. Cline v. Kondaur Capital Corp. (In re Cline), 2013 Bankr. LEXIS 3569 (Bankr. E.D. Ky. Aug. 27, 2013).

Court would not reconsider its finding that the counties lacked a private right of action to enforce the requirement of this section that mortgage assignments be recorded as they were not among the three categories of persons that the Kentucky General Assembly protected when it passed the statute because the counties merely reasserted the same arguments that the court considered and rejected based on controlling Sixth Circuit precedent. Boyd County ex rel. Hedrick v. MERSCORP, Inc., 985 F. Supp. 2d 823, 2014 U.S. Dist. LEXIS 59921 (E.D. Ky. 2014 ).

Court would not certify the question of whether the counties were authorized to enforce the recording statute to the Kentucky Supreme Court because it could not be said that there was no controlling precedent for the court to apply, and the counties proposed question would not be determinative of the case. Boyd County ex rel. Hedrick v. MERSCORP, Inc., 985 F. Supp. 2d 823, 2014 U.S. Dist. LEXIS 59921 (E.D. Ky. 2014 ).

6.Damages.

Because the damages for failing to record a mortgage assignment provided for in the Kentucky recording statutes were not properly characterized as a fine or penalty, but as liquidated damages, the Housing and Economic Recovery Act of 2008 did not prohibit them from being assessed against the Federal Housing Finance Agency or the Federal National Mortgage Association (“Fannie Mae”). Higgins v. BAC Home Loans Servicing, LP, 2014 U.S. Dist. LEXIS 43278 (E.D. Ky. Mar. 31, 2014).

Notes to Unpublished Decisions

1.Challenge.

Unpublished decision: Court clerks had U.S. Const. art. III standing to bring the action alleging violation of KRS 382.360(3) since they alleged an injury to their financial interests; the clerks alleged that defendants’ acts or omissions deprived them of fees and interfered with their duties as custodians of property records, and the fact that the alleged injuries affected their official duties not did not deprive them of standing. Christian County Clerk v. Mortgage Elec. Registration Sys., 515 Fed. Appx. 451, 2013 FED App. 0177N, 2013 U.S. App. LEXIS 3526 (6th Cir. Ky. 2013 ).

Unpublished decision: Court clerks had no private right of action to sue defendants for any alleged violation of Kentucky’s recording requirements because the clerks had no actionable claim directly under KRS 382.360 , and because the clerks were not within the class of persons intended to be protected by KRS 382.360 , they had no KRS 446.070 claim. Christian County Clerk v. Mortgage Elec. Registration Sys., 515 Fed. Appx. 451, 2013 FED App. 0177N, 2013 U.S. App. LEXIS 3526 (6th Cir. Ky. 2013 ).

Opinions of Attorney General.

The fee for recording a deed of release is $2.25 which includes making the marginal reference or notation prescribed by subsection (2) of this section. OAG 70-617 .

The fee for recording a marginal release is 75¢. OAG 70-617 .

Marginal notations on 48 leases of record that the leases had been assigned could not be construed as a formal document of assignment under this section. OAG 72-152 .

A clerk has no authority to supply missing information or correct information on a deed of release. OAG 72-657 .

A separate ledger system for the keeping of records of releases, assignments and annotations by the clerk in connection with the microfilming under KRS 171.660 and 171.670 of original instruments lodged for record by the county clerk would not comply with KRS 382.290 and this section due to the absence of juxtaposition of the release, assignment or annotation with the instrument lodged for record. OAG 75-386 .

A card-film system used in connection with the microfilming under KRS 171.660 and 171.670 of original instruments lodged for record by the county clerk, by which marginal releases, assignments and annotations are typed on one side of the card-film and then attested and signed by the clerk, thus becoming an integral part of the permanent microfilm record, complies with KRS 382.290 and this section. OAG 75-386 .

KRS 382.290 and this section do not preclude the microfilming, under the authority of KRS 171.660 and 171.670 , of original instruments lodged for record by the county clerk, which microfilm would constitute the clerk’s record. OAG 75-386 .

The proper procedure for clearing records of a mistakenly filed mortgage is to have the parties to the mortgage file a deed of release or other instrument which complies with the statutory requirements necessary to terminate any mortgage except this deed of release or instrument should contain a clause which makes it clear that the release is being made only for the purposes of clearing the records in the county in which the mortgage was mistakenly filed and that the mortgage has been filed and continues to be in effect in the county of _________ (where the land or the greater portion thereof lies) which instrument should be filed in the county where the original mortgage was filed and for which charge of the same fee for recording this instrument and noting the release should be made as if the mortgage had been properly filed in the first place; a marginal notation should be made on the mortgage book, reflecting that the release is being made only for the purpose of clearing the record and that the mortgage is properly filed in _________ county and is still in effect. OAG 79-21 .

Under KRS 64.012 , as amended in the 1980 regular session, the correct fee for recording a deed of release of a mortgage is $5.00 for each such instrument; the $5.00 fee for recording the deed of release includes one marginal notation made pursuant to subsection (2) of this section, then for each additional marginal notation relating to the deed of release, the fee is $1.50; thus where one deed of release is lodged for record, but which releases two different mortgages, the total fee is $6.50. OAG 80-484 .

Where the Farmers Home Loan Administration lodged with the county clerk a release of real estate mortgage instrument, qualifying as “deed of release” under this section and expressly referring to three (3) different mortgages by book and page numbers, the clerk needed only charge to $5.00 for the first mortgage and $1.50 for each additional mortgage rather than $5.00 for each mortgage, since the explicit reference to this section in KRS 64.012 , as well as the immediate juxtaposition of the $1.50 fee for “each additional marginal notation” to the $5.00 fee for recording and certifying a deed of release, must be read together to make sense. OAG 81-329 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Receipts and Releases, § 198.00.

382.365. Release of lien, with notice to property owner, within thirty days of satisfaction — Assignments of liens — Proceeding against lienholder in District Court or Circuit Court — Liability of lienholder when lien not released or notice not sent — Notice to state or lienholder — Damages.

  1. A holder of a lien on real property, including a lien provided for in KRS 376.010 , shall release the lien in the county clerk’s office where the lien is recorded within thirty (30) days from the date of satisfaction.
  2. An assignee of a lien on real property shall record the assignment in the county clerk’s office as required by KRS 382.360 . Failure of an assignee to record a mortgage assignment shall not affect the validity or perfection, or invalidity or lack of perfection, of a mortgage lien under applicable law.
  3. A proceeding may be filed by any owner of real property or any party acquiring an interest in the real property in District Court or Circuit Court against a lienholder that violates subsection (1) or (2) of this section. A proceeding filed under this section shall be given precedence over other matters pending before the court.
  4. Upon proof to the court of the lien being satisfied by payment in full to the final lienholder or final assignee, the court shall enter a judgment noting the identity of the final lienholder or final assignee and authorizing and directing the master commissioner of the court to execute and file with the county clerk the requisite release or assignments or both, as appropriate. The judgment shall be with costs including a reasonable attorney’s fee. If the court finds that the lienholder received written notice of its failure to release and lacked good cause for not releasing the lien, the lienholder shall be liable to the owner of the real property or to a party with an interest in the real property in the amount of one hundred dollars ($100) per day for each day, beginning on the fifteenth day after receipt of the written notice, of the violation for which good cause did not exist. This written notice shall be properly addressed and sent by certified mail or delivered in person to the final lienholder or final assignee as follows:
    1. For a corporation, to an officer at the lienholder’s principal address or to an agent for process located in Kentucky; however, if the corporation is a foreign corporation and has not appointed an agent for process in Kentucky, then to the agent for process in the state of domicile of the corporation;
    2. For an individual, to the individual at the address shown on the mortgage, at the lienholder’s residence or place of business, or at an address to which the lienholder has directed that correspondence or payoff be sent;
    3. For a trust or an estate, to a fiduciary at the address shown on the mortgage or at an address to which the lienholder has directed that correspondence or payoff be sent; and
    4. For any other entity, including but not limited to limited liability companies, partnerships, limited partnerships, limited liability partnerships, and associations, to an officer, partner, or member at the entity’s principal place of business or to an agent for process.
  5. A lienholder that continues to fail to release a satisfied real estate lien, without good cause, within forty-five (45) days from the date of written notice shall be liable to the owner of the real property or to a party with an interest in the real property for an additional four hundred dollars ($400) per day for each day for which good cause did not exist after the forty-fifth day from the date of written notice, for a total of five hundred dollars ($500) per day for each day for which good cause did not exist after the forty-fifth day from the date of written notice. The lienholder shall also be liable for any actual expense including a reasonable attorney’s fee incurred by the owner or a party with an interest in the real property in securing the release of real property by such violation and in securing an award of damages. Damages under this subsection for failure to record an assignment pursuant to KRS 382.360(3) shall not exceed three (3) times the actual damages, plus attorney’s fees and court costs, but in no event less than five hundred dollars ($500).
  6. The former holder of a lien on real property shall send by regular mail a copy of the lien release to the property owner at his or her last known address within seven (7) days of the release. A former lienholder that violates this subsection shall be liable to the owner of the real property for fifty dollars ($50) and any actual expense incurred by the owner in obtaining documentation of the lien release.
  7. For the purposes of this section, “date of satisfaction” means that date of receipt by a holder of a lien on real property of a sum of money in the form of a certified check, cashier’s check, wired transferred funds, or other form of payment satisfactory to the lienholder that is sufficient to pay the principal, interest, and other costs owing on the obligation that is secured by the lien on the property.
  8. The provisions of this section shall not apply when a lienholder is deceased and the estate of the lienholder has not been settled.
  9. The state licensing agency, if applicable, or any holder of a lien on real property shall be notified of the disposition of any actions brought under this section against the lienholder.
  10. The provisions of this section shall be held and construed as ancillary and supplemental to any other remedy provided by law.
  11. If more than one (1) owner or party with an interest in the real property brings an action to recover damages under this section, any statutory damages shall be allocated equally among recovering parties in the absence of agreement otherwise among said parties. The entry of a judgment awarding damages shall bar a subsequent action by any other person or entity to recover damages for the same violation.

History. Enact. Acts 1978, ch. 331, § 1, effective June 17, 1978; 1986, ch. 191, § 1, effective July 15, 1986; 1988, ch. 259, § 3, effective July 15, 1988; 1998, ch. 280, § 1, effective July 15, 1998; 1998, ch. 507, § 1, effective July 15, 1998; 2000, ch. 412, § 1, effective July 14, 2000; 2006, ch. 183, § 18, effective July 12, 2006.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

KRS 382.365 is not unconstitutional under the Due Process Clause and Ky. Const. § 2 as a mortgagor has a duty to act reasonably and in good faith and the mortgagor’s rights flow from a contract, in which there is an implied covenant of good faith and fair dealing; further, the exclusion of line of credit and revolving credit plan mortgages from KRS 382.365 does not violate Ky. Const. § 59. Union Planters Bank, N.A. v. Hutson, 210 S.W.3d 163, 2006 Ky. App. LEXIS 170 (Ky. Ct. App. 2006).

2.Notice.

Unlike those cases where mailing a communication is an effective means of giving notice, KRS 382.365 expressly requires that a notice must be received before a penalty may be imposed; it is an element of the cause of action and is the date from which the penalties are calculated. Union Planters Bank, N.A. v. Hutson, 210 S.W.3d 163, 2006 Ky. App. LEXIS 170 (Ky. Ct. App. 2006).

Circuit Court erred in holding that when a facsimile was transmitted to a mortgagee, a facsimile could not constitute written notice under KRS 382.365 because under the 2004 version of KRS 382.365 , which was the version in effect at the time that the facsimile was transmitted, a facsimile transmission, if received by the recipient, constituted “written notice”; because the 2004 version of the statute does not define what constitutes “written notice,” only reasonable notice is required to be provided. Riley v. Flagstar Bank, FSB, 316 S.W.3d 884, 2009 Ky. App. LEXIS 43 (Ky. Ct. App. 2009).

The current version of KRS 382.365 does not apply retroactively because the legislature did not specify in the current version of KRS 382.365 that the provisions concerning written notice were to be applied retroactively, and there is no legislative intent for those provisions to be so applied. Riley v. Flagstar Bank, FSB, 316 S.W.3d 884, 2009 Ky. App. LEXIS 43 (Ky. Ct. App. 2009).

Circuit Court erred in holding that an attorney’s signature stamp on a facsimile cast doubt on whether notice of the failure to release a lien was sufficient because a mortgagee did not argue that the attorney did not sanction the use of his signature stamp on the letter that was sent by facsimile. Riley v. Flagstar Bank, FSB, 316 S.W.3d 884, 2009 Ky. App. LEXIS 43 (Ky. Ct. App. 2009).

In mortgagors’ action alleging that a mortgagee owed them penalties under KRS 382.365 for failing to release a lien, the Circuit Court erred in finding that the original lender should have been given written notice because the original lender was not a lienholder at the time a facsimile was transmitted to the mortgagee and could not release a lien it no longer held, and in an affidavit, the mortgagee’s vice president acknowledged that the mortgagee held the lien; therefore, the mortgagee was the “lienholder” of the lien on mortgagors’ property, and the lien on the property was ultimately released by the mortgagee after the mortgagors filed their lawsuit. Riley v. Flagstar Bank, FSB, 316 S.W.3d 884, 2009 Ky. App. LEXIS 43 (Ky. Ct. App. 2009).

Where mortgagors also bore some of the fault for not promptly notifying the agent for their lender of information required to correct the release of their deed of trust to render it effective, so statutory damages were not awarded under former KRS 382.365 (2005). Hall v. Mortgage Elec. Registration Sys., 396 S.W.3d 301, 2012 Ky. LEXIS 85 ( Ky. 2012 ).

Property owners’ failure to comply with all elements of the notice requirements in KRS 382.365(4), made mandatory by the word “shall” in accordance with KRS 446.080(4), precluded a statutory penalty against a lender for erroneous filing of a mortgage lien and failure to release the lien, even if the lender actually received the notice and knew of the problem with the mortgage lien. CitiFinancial, Inc. v. Bratton, 2012 Ky. App. Unpub. LEXIS 1020 (Ky. Ct. App. Aug. 31, 2012), aff'd on other grounds, 415 S.W.3d 625, 2013 Ky. LEXIS 650 ( Ky. 2013 ).

3.Liquidated Damages.

Since under KRS 382.365 the mortgagors had a duty to act reasonably and in good faith and the mortgagors’ rights flowed from a contract, in which there was an implied covenant of good faith and fair dealing, the mortgagors were not entitled to sleep on their rights and unfairly inflate the liquidated damages. Union Planters Bank, N.A. v. Hutson, 210 S.W.3d 163, 2006 Ky. App. LEXIS 170 (Ky. Ct. App. 2006).

Because the damages for failing to record a mortgage assignment provided for in the Kentucky recording statutes were not properly characterized as a fine or penalty, but as liquidated damages, the Housing and Economic Recovery Act of 2008 did not prohibit them from being assessed against the Federal Housing Finance Agency or the Federal National Mortgage Association (“Fannie Mae”). Higgins v. BAC Home Loans Servicing, LP, 2014 U.S. Dist. LEXIS 43278 (E.D. Ky. Mar. 31, 2014).

4.Penalties.

Circuit Court erred in finding that when a mortgage was not released, the mortgagee still had a valid and active lien on the property based on a re-finance transaction carried out by the mortgagors, wherein they borrowed additional monies from the mortgagee to pay it off because KRS 382.365 did not contain an exception to its provisions concerning penalties to be awarded for a lienholder’s failure to release a lien; the statute does not provide that penalties are unwarranted in the event that the lienholder that failed to release the lien held a subsequent lien on the property. Riley v. Flagstar Bank, FSB, 316 S.W.3d 884, 2009 Ky. App. LEXIS 43 (Ky. Ct. App. 2009).

Homeowners were not entitled to statutory penalties under KRS 382.365(4) because a finance company’s error in recording a release of deed was inadvertent, could have easily been cured upon notice from the homeowners, and did not impact the homeowners’ ability to procure another loan. Hall v. Mortgage Elec. Registration Sys., 2010 Ky. App. LEXIS 135 (Ky. Ct. App. July 23, 2010).

Trial court erred in denying a subservicer's summary judgment motion because the mortgage trustee executed a limited power of attorney (LPOA) to the mortgage servicer that gave the servicer authority to execute an additional LPOA to the subservicer, the subservicer's documents complied with the technical requirements for recording, and the county clerk's rejection of the deed of release exposed both the subservicer and the underlying mortgage-backed securitized trust to potentially harsh penalties for failure to timely release the mortgage. Select Portfolio Servicing, Inc. v. Blevins, 494 S.W.3d 510, 2016 Ky. App. LEXIS 115 (Ky. Ct. App. 2016).

5.Challenge.

Trial court erred in awarding summary judgment and damages to the owners because there was no proof that a mortgage given by the buyers of a parcel of the owners’ land to the lender was satisfied, and the statute at issue did not to a situation where the lender erroneously filed the mortgage on the owners’ property. Bratton v. CitiFinancial, Inc., 415 S.W.3d 625, 2013 Ky. LEXIS 650 ( Ky. 2013 ).

Trial court properly granted a lender summary judgment because a borrower failed to carry her burden of proving a novation or that the underlying obligation had been satisfied; the borrower's former husband continued to make payments on the debt the couple incurred, and the plain language of a subsequent note and agreement expressly referred to the original note and its obligations and the property as collateral and indicated the intent to modify rather than replace the loan obligation. Forcht v. Forcht Bank, N.A., 533 S.W.3d 695, 2017 Ky. App. LEXIS 269 (Ky. Ct. App. 2017).

6.Assignment.

Debtor’s claim that defendant lender failed to record an assignment of the mortgage note with the county clerk’s office in violation of KRS 382.360 and 382.365(3) was dismissed because the statutes required the assignee, not the assignor, to file the assignment. Cline v. Kondaur Capital Corp. (In re Cline), 2013 Bankr. LEXIS 3569 (Bankr. E.D. Ky. Aug. 27, 2013).

Plaintiff failed to state a claim against defendant under the statutes pertaining to assignment of a mortgage and assignment of liens because defendant, as the assignor, was not obligated to file the assignment. Cline v. Kondaur Capital Corp. (In re Cline), 2013 Bankr. LEXIS 4433 (Bankr. E.D. Ky. Oct. 23, 2013).

Notes to Unpublished Decisions

1.Challenge.

Unpublished decision: Court clerks had no private right of action to sue defendants for any alleged violation of Kentucky’s recording requirements because the clerks had no actionable claim directly under KRS 382.360 , and because the clerks were not within the class of persons intended to be protected by KRS 382.360 , they had no KRS 446.070 claim. Christian County Clerk v. Mortgage Elec. Registration Sys., 515 Fed. Appx. 451, 2013 FED App. 0177N, 2013 U.S. App. LEXIS 3526 (6th Cir. Ky. 2013 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Attorneys’ Fees Recoverable in Kentucky Liti- gation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

Kentucky Law Journal.

Kentucky Law Survey, Coleman and Peltier, Mechanics’ Liens, 68 Ky. L.J. 681 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Receipts and Releases, § 198.00.

Caldwell’s Kentucky Form Book, 5th Ed., Release of Mechanic’s and Materialman’s Lien, Form 152.03.

382.370. Power of attorney to convey or release property — Recording — Revocation.

Powers of attorney to convey or release real or personal property, or any interest therein, may be acknowledged, proved and recorded in the proper office, in the manner prescribed for recording conveyances. If the conveyance made under a power, is required by law to be recorded or lodged for record, to make the same valid against creditors and purchasers, then the power must be lodged or recorded in like manner, and no such power so recorded shall be deemed to be revoked by any act of the party by whom it was executed, except from the time when there has been lodged for record in the office in which the power is recorded a written revocation, executed and proved or acknowledged in the manner prescribed for conveyances, or a memorandum of revocation made on the margin of the record thereof, which memorandum is signed by the party executing the same, and attested by the clerk.

History. 499.

NOTES TO DECISIONS

1.Improper Acknowledgment.

The record on the deed book of a power of attorney under which deed was executed in 1853 was not admissible where power was acknowledged before a Virginia justice of the peace, who was not authorized to take such acknowledgment under the law of Virginia. Ball v. Loughridge, 100 S.W. 275, 30 Ky. L. Rptr. 1123 , 1907 Ky. LEXIS 348 ( Ky. 1907 ). (See KRS 382.140 .).

2.Place of Recording.

A power of attorney must be recorded in county where deed is properly recorded. Godsey v. Standifer, 31 Ky. 44 , 101 S.W. 921, 31 Ky. L. Rptr. 44 , 1907 Ky. LEXIS 358 (Ky. Ct. App. 1907).

3.Unrecorded Power of Attorney.

A deed made by an attorney in fact, in pursuance of an unrecorded power of attorney, is good as between the grantor and those claiming under the grantee where no right of creditor is involved even though evidence is insufficient to establish its contents or due execution since an agent with verbal authority to convey land could bind his principal and put grantee in hostile and adverse possession of which grantor would be presumed to have notice. Godsey v. Standifer, 31 Ky. 44 , 101 S.W. 921, 31 Ky. L. Rptr. 44 , 1907 Ky. LEXIS 358 (Ky. Ct. App. 1907).

Trustee asserted that the First Power of Attorney, the only power of attorney in effect at the time the wife signed the mortgage on her husband’s behalf, had to be recorded pursuant to KRS 382.370 to put the trustee on notice of the husband and wife’s interest; the court agreed with the mortgage company that the Second Power of Attorney put third parties on notice that they could rely on the document for “any and all aspects in order to effectuate the purchase of this property.” The husband’s intent to ratify his wife’s act in signing the mortgage was clear; moreover, as the Second Power of Attorney had been recorded pursuant KRS 382.370 , the trustee had constructive notice and the mortgage could not be avoided pursuant to 11 U.S.C.S. § 544. Rogan v. CitiMortgage, Inc. (In re Dillard), 2012 Bankr. LEXIS 2214 (Bankr. E.D. Ky. May 17, 2012).

4.Release of Lien.

Attempted release of purchase money lien was not made by any one duly authorized by power of attorney acknowledged and recorded according to law. Hicks' Committee v. Smith, 158 Ky. 752 , 166 S.W. 248, 1914 Ky. LEXIS 711 ( Ky. 1914 ).

5.Contracts.

Where a contract, required to be in writing and recorded, is made under a power of attorney, as to third parties the power of attorney must also be recorded. State Bank of Stearns v. Stephens, 265 Ky. 615 , 97 S.W.2d 553, 1936 Ky. LEXIS 550 ( Ky. 1936 ).

6.Lease by Agent.

Where tenant enters into possession as tenant of corporation, under terms of lease executed with agent of corporation, and corporation recognizes tenancy and accepts rent under the contract, neither party can complain that the agent did not have power of attorney under corporate seal or that the lease was improperly executed. Coldiron v. Good Coal Co., 276 Ky. 833 , 125 S.W.2d 757, 1939 Ky. LEXIS 601 ( Ky. 1939 ).

7.Invalid Mortgage.

Circuit Court did not clearly err in determining that the first of two (2) banks did not have a valid legal mortgage and/or a valid equitable mortgage on the subject property, as that bank’s debtor was not the true owner of the property, and thus, lacked the power to mortgage it; hence, the first bank acquired no power to assert a lien on the property and could not claim that the second bank was depriving it of money or benefits. Citizens Bank of N. Ky., Inc. v. PBNK, Inc., 2006 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 17, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 826 (Ky. Ct. App. Feb. 17, 2006).

8.Bankruptcy.

Fact that a party to a transaction involving a power of attorney might have an argument regarding the authority of the attorney-in-fact does not deprive a mortgage of its notice function under Kentucky law as against a trustee acting as a judicial lien creditor. Rogan v. JPMorgan Chase Bank, N.A. (In re Engle), 2015 Bankr. LEXIS 116 (Bankr. E.D. Ky. Jan. 14, 2015).

9.Requirements for Recording.

Trial court erred in denying a subservicer's summary judgment motion because the mortgage trustee executed a limited power of attorney (LPOA) to the mortgage servicer that gave the servicer authority to execute an additional LPOA to the subservicer, the subservicer's documents complied with the technical requirements for recording, and the county clerk's rejection of the deed of release exposed both the subservicer and the underlying mortgage-backed securitized trust to potentially harsh penalties for failure to timely release the mortgage. Select Portfolio Servicing, Inc. v. Blevins, 494 S.W.3d 510, 2016 Ky. App. LEXIS 115 (Ky. Ct. App. 2016).

Cited:

Harrison v. Harold Cox Concrete Constr. Co., 440 F. Supp. 859, 1977 U.S. Dist. LEXIS 14441 (W.D. Ky. 1977 ).

Opinions of Attorney General.

Where the author refuses to sign the statement of authorship and the clerk thereby refuses to refuses to record the instrument, the injured or interested party may file an action for mandatory injunction against the recalcitrant author. OAG 62-714 .

Deeds and powers of attorney, relating to the land involved in the deed, should be recorded and indexed as separate instruments. OAG 68-531 .

A certificate of title for an automobile is not required by law to be recorded or lodged for record within the meaning of this section, and, accordingly, a power of attorney to transfer ownership of an automobile is not required to be recorded or lodged for record within the meaning of that phrase in this section. OAG 93-82 .

Research References and Practice Aids

Cross-References.

Conveyance by married woman through agent, KRS 404.030 .

Power of attorney executed by person serving in or present with armed forces in time of war, when revoked by death, KRS 384.010 to 384.040 .

Release of power, execution and delivery of, KRS 386.095 .

Kentucky Bench & Bar.

Treece, Powers of Attorney, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 26.

Northern Kentucky Law Review.

A Survey of Key Issues Kentucky Elder Law, 29 N. Ky. L. Rev. 139 (2002).

382.380. Statement of amount and maturity to be filed before additional securities are issued.

If a deed of trust or mortgage is made to a trustee or to a mortgagee to secure the payment of bonds or other obligations to be issued thereafter, the grantor in the deed of trust or the mortgagor in the mortgage, when or before such additional bonds or other obligations are issued, shall cause to be recorded in the office of the county clerk of the county in which such deed of trust or mortgage was first recorded, a statement by the grantor or the mortgagor acknowledged as deeds are required to be acknowledged, setting forth the amount, the date, the maturity and the description of such additional obligations, and until such statement is so lodged for record no such bonds or other obligations shall be issued by the grantor or the mortgagor or certified by the trustee.

History. 511a-2.

382.385. Mortgage on real estate to secure payment of sums due under line of credit or revolving credit plan — Priority of liens — Mortgage amendment — Release of lien.

  1. As used in this section:
    1. “Line of credit” means a note, commitment, instrument, or agreement in writing between a lender and a debtor pursuant to which:
      1. The lender may extend loans, advances, or other extensions of credit to, or for the benefit of, the debtor; and
      2. The total amount of loans, advances, or extensions of credit outstanding may increase or decrease from time to time.
    2. “Revolving credit plan” means an arrangement between a lender and a debtor pursuant to which:
      1. The lender may extend credit to the debtor by permitting the debtor to make purchases of goods, services, and anything else of value or obtain loans, from time to time, directly from the lender or indirectly by use of a credit card, check, or other device, as the plan may provide;
      2. The unpaid balances of purchases made, the principal of loans obtained, and finance and other appropriate charges are debited to the debtor’s account;
      3. A finance charge, if made, is not precomputed, but is computed on the outstanding unpaid balances of the debtor’s account from time to time; and
      4. The lender renders bills or statements to the debtor at regular intervals, which need not be a calendar month (the “billing cycle”), the amount of which bills or statements is payable by and due from the debtor on a specified date stated in the bill or statement or, at the debtor’s option, may be paid in installments.
    1. Any mortgage of real property may secure payment of any or all sums due and payable by the debtor under a line of credit or under a revolving credit plan if the mortgage: (2) (a) Any mortgage of real property may secure payment of any or all sums due and payable by the debtor under a line of credit or under a revolving credit plan if the mortgage:
      1. States, in substance or effect, that the parties intend that the mortgage secures the line of credit or revolving credit plan;
      2. Specifies the maximum principal amount of credit which may be extended under the line of credit or the maximum credit limit of the revolving credit plan which, in each case, may be outstanding at any time or times under the line of credit or plan, and which is to be secured by the mortgage.
    2. The mortgage shall remain in full force and effect until released of record as provided in subsection (5) of this section and the validity, continued effectiveness, and priority of the mortgage shall not be affected or impaired by the fact that no loan, advance, or extension of credit is made at the time of the execution or recordation of the mortgage, or that the outstanding balance due under the line of credit or revolving credit plan secured by the mortgage is zero at any time or times.
  2. Except as provided in paragraphs (a), (b), (c), and (d) of this subsection or in any written subordination or other written agreement entered into by the lender relating to the priority of the mortgage referred to in subsection (2) of this section, the lien of the mortgage referred to in subsection (2) of this section shall be superior to any liens or encumbrances of any kind created or arising after recordation of the mortgage, even to the extent of sums advanced by the lender with actual or constructive notice of a subsequently created lien, but the lien of the mortgage shall be inferior to:
    1. Real estate tax liens and liens for public improvement assessments explicitly stated by statute to be superior to other nontax liens;
    2. Any construction funds advanced under, or any additional indebtedness incurred within the meaning of KRS 382.520 and secured by, the lien of any mortgage recorded prior to the mortgage referred to in subsection (2) of this section;
    3. Any sums specifically authorized to be advanced under any mortgage recorded prior to the mortgage referred to in subsection (2) of this section for, or paid on account of, taxes, charges, fines, and assessments against covering the property described in the mortgage or to effect insurance thereon; or
    4. Valid mechanics’ or materialmen’s liens, with respect to which all filing and other requirements of KRS Chapter 376 have been satisfied, for the performance of labor or furnishing of materials for those purposes set forth in KRS 376.010(1) with respect to an owner-occupied, single or double-family dwelling, but only to the extent of sums advanced by the lender after the filing of the statement required under the applicable section of KRS Chapter 376.
    1. The debtor or his agent may, at any time or times, request the lender to amend the mortgage to reduce the maximum amount of credit specified in the mortgage referred to in subsection (2) of this section which may be extended under the line of credit or revolving credit plan by sending by certified mail, return receipt requested, or physically delivering to the lender at the address and to the person or department, if any, specified in the agreement establishing the line of credit or revolving credit plan, a written request signed and acknowledged by all debtors obligated under the line of credit or revolving credit plan. The request shall: (4) (a) The debtor or his agent may, at any time or times, request the lender to amend the mortgage to reduce the maximum amount of credit specified in the mortgage referred to in subsection (2) of this section which may be extended under the line of credit or revolving credit plan by sending by certified mail, return receipt requested, or physically delivering to the lender at the address and to the person or department, if any, specified in the agreement establishing the line of credit or revolving credit plan, a written request signed and acknowledged by all debtors obligated under the line of credit or revolving credit plan. The request shall:
      1. Specifically, and not by implication, describe the line of credit or revolving credit plan by account or other identifying number and request that the line of credit or plan be amended by reducing the maximum amount of credit which may be extended under the line of credit or the amount of the credit limit of the revolving credit plan which, in either case, may be outstanding from time to time under the line of credit or revolving credit plan, to an amount specified in the notice. The amount may not, however, be less than the balance owing under the line of credit or revolving credit plan at the time the request referred to in this paragraph is received;
      2. Identify the real property covered by the mortgage referred to in subsection (2) of this section to which the request relates and give the date, volume, and first page of the records of the county clerk where the mortgage is recorded, which information shall be provided to the debtor within sixty (60) days of recording by the lender; and
      3. Be accompanied by funds sufficient to pay the filing fee for recording the amendment referred to in paragraph (b) of this subsection.
    2. Within ten (10) business days after actual receipt of the request referred to in paragraph (a) of this subsection and of the funds sufficient to pay the filing fee, the lender shall record in the office of the county clerk in which the mortgage referred to in subsection (2) of this section is recorded an amendment to the mortgage reflecting the reduction in the maximum amount of credit at any time or times outstanding which may be extended under the line of credit or revolving credit plan secured by the mortgage.
    3. If within the ten (10) day period the lender fails to record the amendment to the mortgage referred to in paragraph (b) of this subsection, the debtor may record a copy of the written request referred to in paragraph (a) of this subsection upon payment of the same filing fee as provided for in an amendment to a mortgage. If the request complies with all the requirements of this section, the recording of the request shall constitute and be deemed to be an amendment to the line of credit or revolving credit plan and the mortgage to the extent described in the request.
  3. The lender shall be obligated to release the lien of the mortgage referred to in subsection (2) of this section:
    1. If the line of credit or revolving credit plan is closed or terminated in accordance with its terms and all amounts owed by the debtor thereunder are paid in full; or
    2. Upon the written request to release the mortgage signed by all debtors or their agents obligated under the line of credit or revolving credit plan, which notice shall be sent by certified mail, return receipt requested, or physically delivered to the lender. The lender shall file a properly executed satisfaction of the mortgage upon payment of the balance owing under the line of credit or revolving credit plan at the time the request is received. From and after the request, the debtor shall have no right to request or demand that the lender extend credit under the line of credit or revolving credit plan, and the lender shall be released from all obligations and commitments to extend credit thereunder.
  4. The provisions of KRS 382.330 , 382.365 , 382.430 , and 382.520 shall not be applicable to the mortgage referred to in subsection (2) of this section.
  5. This section is not exclusive and shall not prohibit the use of other types of mortgages or other instruments given for the purpose of creating a lien on real property permitted by law.

History. Enact. Acts 1992, ch. 49, § 1, effective July 14, 1992.

Research References and Practice Aids

Northern Kentucky Law Review.

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

382.390. Rolling stock of railroads; conditional sale or lien to be recorded. [Repealed.]

Compiler’s Notes.

This section (2496) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.400. Contract may provide for conditional sale. [Repealed.]

Compiler’s Notes.

This section (2497) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.410. Recording of payment of purchase money. [Repealed.]

Compiler’s Notes.

This section (2498) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.420. Ownership to be shown on engine and cars. [Repealed.]

Compiler’s Notes.

This section (2499) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.430. Instrument constituting lien to give mailing address of lienholder.

  1. No mortgage, conveyance, or other instrument or writing constituting a lien or other security for any note or other evidence of indebtedness shall be received for record by any county clerk unless such mortgage, conveyance, or other writing gives a mailing address of the lienholder.
  2. Should there be an assignment of such mortgage, conveyance, or other instrument or writing constituting a lien or other security for any note or other evidence of indebtedness, of record in the clerk’s office, the assignment shall state the address of the assignee.
  3. For the purposes of this chapter, a mortgage that has been recorded with any county clerk shall not be deemed invalid or ineffective as constructive notice for failure to include the county of residence or the principal place of business of the mortgagee or holder of the note or other evidence of indebtedness.

History. 4051a; 2010, ch. 155, § 3, effective July 15, 2010; 2012, ch. 132, § 100, effective July 12, 2012.

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate the due process provision of the Kentucky constitution. Shrader v. Semonin, 123 Ky. 605 , 96 S.W. 904, 29 Ky. L. Rptr. 1089 , 1906 Ky. LEXIS 190 ( Ky. 1906 ).

2.Liability for Taxes.

If it is made to appear satisfactorily that the assignee of notes has in fact listed them for taxation himself, the assignor is thereby relieved. Goodrum v. Flowers, 162 Ky. 724 , 172 S.W. 1062, 1915 Ky. LEXIS 131 ( Ky. 1915 ). See Shrader v. Semonin, 123 Ky. 605 , 96 S.W. 904, 29 Ky. L. Rptr. 1089 , 1906 Ky. LEXIS 190 ( Ky. 1906 ); Commonwealth v. Crume, 142 Ky. 180 , 133 S.W. 1161, 1911 Ky. LEXIS 147 ( Ky. 1911 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Article: From Main Street to Wall Street: Mortgage Loan Securitization and New Challenges Facing Foreclosure Plaintiffs in Kentucky, 36 N. Ky. L. Rev. 395 (2009).

382.440. Memorandum of actions affecting real property to be filed.

  1. No action, cross-action, counterclaim, or any other proceeding, except actions for forcible detainer or forcible entry or detainer, commenced or filed in any court of this state, in which the title to, or the possession or use of, or any lien, tax, assessment or charge on real property, or any interest therein, is in any manner affected or involved, nor any order nor judgment therein, nor any sale or other proceeding, nor any proceeding in, nor judgment or decree rendered, in a district court of the United States, shall in any manner affect the right, title or interest of any subsequent purchaser, lessee, or encumbrancer of such real property, or interest for value and without notice thereof, except from the time there is filed, in the office of the county clerk of the county in which such real property or the greater part thereof lies, a memorandum stating:
    1. The number of the action, if it is numbered, and the style of such action or proceeding and the court in which it is commenced, or is pending;
    2. The name of the person whose right, title, interest in, or claim to, real property is involved or affected; and
    3. A description of the real property in the county thereby affected.
  2. Such notice may be filed by any party in interest. No notice shall extend to the interest of any person not designated therein, nor to any real property or interest except that described therein, and when any amendment is made in the action or proceeding changing the description of the real property, or interest involved or affected, or extending the claim against the property, the party filing such notice shall file a new notice.
  3. Where the real property so affected consists of tracts lying in different counties, a separate notice shall be filed in each county as to the tract lying in that county.

History. 2358a-1: amend. Acts 1944, ch. 21, § 1.

NOTES TO DECISIONS

1.Purpose.

This section was enacted to protect lis pendens purchasers by requiring notice of pendency of actions to enforce liens to be filed and recorded in much the same way that a deed must be recorded. Perkins v. Ogilvie, 140 Ky. 412 , 131 S.W. 200, 1910 Ky. LEXIS 286 ( Ky. 1910 ).

Purpose of this section is to protect the innocent and not to afford a means of harassing the mortgagee in his attempt to enforce his lien against the property. Jones v. Arthur, 244 S.W.2d 469, 1951 Ky. LEXIS 1289 ( Ky. 1951 ).

This section was enacted for the purpose of protecting bona fide purchasers for value without notice of the previous levy of an execution. Blackerby v. Monarch Equipment, 259 S.W.2d 683, 1953 Ky. LEXIS 966 ( Ky. 1953 ).

This section was enacted to protect the subsequent bona fide purchaser of the property, and the statute does not purport to create any additional rights that a party might have in the property. Leonard v. Farmers & Traders Bank, 605 S.W.2d 770, 1980 Ky. App. LEXIS 355 (Ky. Ct. App. 1980).

This section is not intended to establish priority among creditors, but to give notice to subsequent purchasers of property of a cloud on the title. Strong v. First Nationwide Mortg. Corp., 959 S.W.2d 785, 1998 Ky. App. LEXIS 4 (Ky. Ct. App. 1998).

2.Construction.

This section and KRS 382.450 relating to lis pendens notices, do not have the effect of invalidating execution liens. In re Wesley Corp., 18 F. Supp. 347, 1937 U.S. Dist. LEXIS 2091 (D. Ky. 1937 ).

The requirement of filing of notice of an attachment lien in no sense impairs or affects the obligation of a contract entered into prior to enactment of the statute by action of attachment brought subsequent to enactment of the statute. Boltz v. Boain, 90 S.W. 593, 28 Ky. L. Rptr. 842 (1906).

The doctrine of lis pendens, as to persons and property within its operation, is that the court having jurisdiction of the suit or action is entitled to proceed to the final exercise of that jurisdiction and that it is beyond the power of any of the parties to the action to prevent its doing so by any transfer or other act made or done after the service of the writ or the happening of such other act as may be necessary to the commencement of the lis pendens and the final judgment or decree of the court may be carried into effect notwithstanding the attempted dealing with the subject matter of the action. Roberts v. Cardwell, 154 Ky. 483 , 157 S.W. 711, 1913 Ky. LEXIS 82 ( Ky. 1913 ).

This section has no retrospective effect. Likens v. Pate, 160 Ky. 319 , 169 S.W. 734, 1914 Ky. LEXIS 446 ( Ky. 1914 ).

At common law a purchaser pendente lite took subject to a judgment rendered in the action and was bound thereby, but under this section, this rule does not apply to a subsequent purchaser for value and without notice, unless notice as herein provided is filed in county clerk’s office. Watts v. Noble, 203 Ky. 644 , 262 S.W. 1114, 1924 Ky. LEXIS 988 ( Ky. 1924 ).

Prior to adoption of this section the lis pendens doctrine was recognized as part of the common law of the state and was applicable to all kinds of personal property with the exception of negotiable instruments and articles of ordinary commerce sold in the usual way and the adoption of this section did not abrogate but only modified the lis pendens doctrine theretofore in effect and left same in full force and effect with reference to proceedings affecting all kinds of personal property within the doctrine. P. A. Stark Piano Co. v. Fannin, 212 Ky. 640 , 279 S.W. 1080, 1926 Ky. LEXIS 211 ( Ky. 1926 ).

Lis pendens is notice of all facts apparent on the face of the pleadings and exhibits and of all other facts of which they would put a person of ordinary prudence on inquiry. Ben Williamson & Co. v. Hall, 290 Ky. 672 , 161 S.W.2d 905, 1942 Ky. LEXIS 421 ( Ky. 1942 ).

3.Application.

Under KRS 132.290 the city has a lien for taxes for five years, which cannot be defeated by a sale, alienation of the property, or any other means; and, if the city, within the five years undertakes to collect its taxes by suit or other method, it is not required to give notice under this section but if the city attempts to or desires to extend its lien so as to make it effective for longer than five years against a purchaser of the property, without notice, it must give the lis pendens notice. Carter v. Louisville, 147 Ky. 791 , 145 S.W. 739, 1912 Ky. LEXIS 334 ( Ky. 1912 ).

The lis pendens statute does not apply to a case where a person sells, leases, or encumbers realty not his own and which he never had owned. Tennis Coal Co. v. Sackett, 172 Ky. 729 , 190 S.W. 130, 1916 Ky. LEXIS 280 ( Ky. 1916 ).

This section, requiring lis pendens in order to affect right or title of subsequent purchaser of realty for value and without notice, is necessarily in order that proceeding or judgment may affect title of purchaser of realty involved in suit in state or federal court. Tennis Coal Co. v. Sackett, 172 Ky. 729 , 190 S.W. 130, 1916 Ky. LEXIS 280 ( Ky. 1916 ).

Where claim was under a prior purchase this section had no application although under the facts stated in the petition the property was liable for sewer assessment. Rouse v. Craig Realty Co., 203 Ky. 697 , 262 S.W. 1083, 1924 Ky. LEXIS 973 ( Ky. 1924 ).

This section providing for notice of a lis pendens had no application to actions previously filed. Cruse's Ex'r v. Haggard, 241 Ky. 442 , 44 S.W.2d 290, 444 S.W.2d 290, 1931 Ky. LEXIS 167 ( Ky. 1931 ). See Roberts v. Cardwell, 154 Ky. 483 , 157 S.W. 711, 1913 Ky. LEXIS 82 ( Ky. 1913 ).

KRS 426.690 requires only lien holders at the time of the filing of the foreclosure petition to be named as parties; pursuant to KRS 382.440 and case law, the filing of a foreclosure petition alone is insufficient to bind pendente lite lien filers to the judgment. U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 2007 Ky. App. LEXIS 284 (Ky. Ct. App. 2007).

Second mortgage holder had a priority security interest in a manufactured home because a lis pendens did not apply to personal property, the mere filing of a notice of lis pendens was insufficient to independently create a security interest, and it did not affect the priority of competing security interests. A first mortgage holder did not perfect a security interest in the home as personal property by placing a notation on a certificate of title, as required by KRS 186A.190 , and the manufactured home remained personal property due to a failure to comply with KRS 186A.297 . Citizens Nat'l Bank v. Wash. Mut. Bank, 309 S.W.3d 792, 2010 Ky. App. LEXIS 67 (Ky. Ct. App. 2010).

4.Time of Effectiveness.

A lis pendens notice filed after action was filed and summons issued was effective from time it was filed in the county clerk’s office, and purchaser from owner before she was served with the summons could not forestall enforcement of the lien in the pending suit and was bound by the judgment entered. Breslin v. Gray, 283 Ky. 785 , 143 S.W.2d 452, 1940 Ky. LEXIS 409 ( Ky. 1940 ).

5.Loss of Lis Pendens by Delay.

The prosecution of the suit with reasonable diligence is essential to the continued operation of the law of lis pendens, and the benefit of a lis pendens may be lost by an unusual or unreasonable delay which is not satisfactorily explained or accounted for. Roberts v. Cardwell, 154 Ky. 483 , 157 S.W. 711, 1913 Ky. LEXIS 82 ( Ky. 1913 ). See Louisville Asphalt Co. v. Cobb, 310 Ky. 126 , 220 S.W.2d 110, 1949 Ky. LEXIS 867 ( Ky. 1949 ).

Unexplained delays in the prosecution of a creditor’s suit for the sale of a decedent’s realty held to make a prima facie case of laches, and, unless explained, to give a purchaser pendente lite title by adverse possession. Roberts v. Cardwell, 154 Ky. 483 , 157 S.W. 711, 1913 Ky. LEXIS 82 ( Ky. 1913 ).

6.Failure to File Notice.

One purchasing property after judgment of county court directing opening of a drain, at expense of lands benefited, but before contract for construction had been let, could not resist payment of assessment on ground not notice of lis pendens had been filed as no one had a lien at that time. Scherm v. Garrett, 26 Ky. L. Rptr. 186 (1904).

Since recording of title bond was notice that purchase money had been paid, title was acquired as against vendor by third person who purchased property from vendee, without notice and in good faith, pending suit by vendor to enforce lien for unpaid price but where vendor had failed to file notice of lis pendens as required. Begley v. Combs, 106 S.W. 246, 32 Ky. L. Rptr. 538 (1907).

Where vendor executed and delivered a title bond to vendee reciting all the consideration was paid although a $200 note for part of the purchase price was unpaid and the title bond was recorded and when vendee failed to pay the $200 note and vendor instituted an action to enforce the lien for the unpaid purchase money without filing a lis pendens notice as required by this section and pending appeal of the action the vendee sold the property to a third person, the third person acquired title as against the vendor as the evidence was sufficient to hold the third party a bona fide purchaser without notice. Begley v. Combs, 106 S.W. 246, 32 Ky. L. Rptr. 538 (1907).

The pendency of action to enforce a lien against real property could not affect the rights of a lessee without actual notice where no notice had been filed and recorded under this section. Perkins v. Ogilvie, 140 Ky. 412 , 131 S.W. 200, 1910 Ky. LEXIS 286 ( Ky. 1910 ).

Since the enactment of this section, the filing of petition seeking to enforce local improvement lien does not create a lis pendens notice, nor does an ordinance directing improvement of property or an ordinance charging the property with the cost of the improvement. Trapp's Adm'r v. Bailey, 152 Ky. 369 , 153 S.W. 472, 1913 Ky. LEXIS 669 ( Ky. 1913 ).

Failure to file notice of lien or ownership eliminated from the case the question of constructive notice, and left the question one of actual notice only. Winlock v. Munday, 156 Ky. 806 , 162 S.W. 76, 1914 Ky. LEXIS 191 ( Ky. 1914 ).

No lis pendens notice was required for enforcement of street improvement lien against heirs of purchaser purchasing prior to the time suit was brought. Jackson's Heirs v. Willson, 226 Ky. 211 , 10 S.W.2d 816, 1928 Ky. LEXIS 58 ( Ky. 1928 ).

Where husband transferred property with the fraudulent purpose of defeating the lien adjudged by the court as a continuing obligation to his divorced wife, if the grantee participated in that fraudulent purpose the wife under KRS 378.010 was entitled to have that conveyance set aside and her lien protected and enforced even though wife had not filed lis pendens notice in divorce case. Englert v. Weitlauf, 227 Ky. 195 , 12 S.W.2d 315, 1928 Ky. LEXIS 490 ( Ky. 1928 ).

Purchaser of land, while suit to collect assessments was pending, and grantee under her were bound by subsequent proceedings in suit, even though lis pendens was not filed. Thompson v. Board of Drainage Comm'rs, 258 Ky. 68 , 79 S.W.2d 381, 1935 Ky. LEXIS 113 ( Ky. 1935 ).

Where execution and attachment creditors took the necessary steps to perfect their liens, such creditors were encumbrancers within the meaning of this section and took priority over the judgment creditor who failed to file notice of lis pendens. Commercial Transport Corp. v. Robinson Grain Co., 345 F. Supp. 342, 1972 U.S. Dist. LEXIS 15305 (W.D. Ky. 1972 ).

7.— Subsequent Purchasers for Value Without Notice.

Where grantor company conveyed property, pending an action against it by city to enforce payment of taxes, to wife of husband who paid the consideration and who had full notice of the lien for taxes, the wife was not a subsequent purchaser for value without notice and took the property subject to the lien for taxes. City of Middlesborough v. Coal & Iron Bank, 110 S.W. 355, 33 Ky. L. Rptr. 469 , 1908 Ky. LEXIS 333 (Ky. Ct. App. 1908).

A purchaser seeking to show that he is an innocent purchaser without notice of the pendency of an action involving a controversy as to rights in the land purchased cannot rely on the fact that a notice of the pendency of the action was not filed, but he must show that he did not know of the action, and relied on the record title. Syck v. Hellier, 140 Ky. 388 , 131 S.W. 30, 1910 Ky. LEXIS 257 ( Ky. 1910 ).

Third parties and strangers to a suit to enforce a lien upon real property who are without actual notice are not now chargeable with constructive notice of the suit, unless the statutory notice is given. Donacher v. Tafferty, 147 Ky. 337 , 144 S.W. 13, 1912 Ky. LEXIS 231 ( Ky. 1912 ). See Perkins v. Ogilvie, 140 Ky. 412 , 131 S.W. 200, 1910 Ky. LEXIS 286 ( Ky. 1910 ).

This section protects only a purchaser for value, without notice of pre-existing lien. Combs v. Miller, 149 Ky. 546 , 149 S.W. 906, 1912 Ky. LEXIS 664 ( Ky. 1912 ).

Although action to enforce apportionment warrants was instituted originally before the statute of limitations had run, where no lis pendens notice was given, it did have the effect of extending the statutory period beyond five years against purchasers for value without actual notice. Trapp's Adm'r v. Bailey, 152 Ky. 369 , 153 S.W. 472, 1913 Ky. LEXIS 669 ( Ky. 1913 ).

In an action to enforce apportionment warrants, where the petition was amended to bring in subsequent purchasers, their answers averring failure to file lis pendens and purchase for value without notice brought them within and they were protected by this section. Trapp's Adm'r v. Bailey, 152 Ky. 369 , 153 S.W. 472, 1913 Ky. LEXIS 669 ( Ky. 1913 ).

Where name in which partnership property is held does not give notice of its partnership character, and lis pendens notice was not filed, a purchaser or encumbrancer, without notice of partnership character, will hold as against equities of partners. Cain's Adm'r v. Hubble, 184 Ky. 38 , 211 S.W. 413, 1919 Ky. LEXIS 25 ( Ky. 1919 ).

Innocent purchasers without notice for value are fully protected in their purchase of land where no lis pendens notice is filed as required by this section and they may file a petition to be made parties to an action to enforce execution against judgment debtor’s land. Roark v. Bank of Fountain Run, 184 Ky. 109 , 211 S.W. 561, 1919 Ky. LEXIS 38 ( Ky. 1919 ).

The common-law rule that a purchaser pendente lite took subject to the judgment rendered in the action and was bound thereby does not apply to a subsequent purchaser for value and without notice, unless notice as provided by this section is filed in the county clerk’s office but purchaser must plead, and if denied show, that he is a subsequent purchaser for value and without notice for if he is not he is bound by the judgment. Watts v. Noble, 203 Ky. 644 , 262 S.W. 1114, 1924 Ky. LEXIS 988 ( Ky. 1924 ).

To be an innocent purchaser the vendee must not only have bought without notice, but he must have paid consideration before he had notice of the infirmity in the title. Watts v. Noble, 203 Ky. 644 , 262 S.W. 1114, 1924 Ky. LEXIS 988 ( Ky. 1924 ).

8.— Actual Notice.

Appellees failing to file notice of their lien under this section should have been required to introduce proof to make it clear that appellant had actual notice of attachment lien before she purchased lots and the evidence was insufficient to do this. Boltz v. Boain, 90 S.W. 593, 28 Ky. L. Rptr. 842 (1906).

If purchaser knew facts at the time of purchase which were reasonably sufficient to put an ordinarily prudent man on inquiry as to the title of heirs from which he was buying and which would have revealed the interests under judgment for settlement of estate and he neglected to make reasonable inquiry to ascertain the facts, he was guilty of such negligence as would bar his rights to defeat the interests of the heirs although no lis pendens notice was filed in the action to settle the estate. Dick v. Jasper, 195 Ky. 539 , 242 S.W. 834, 1922 Ky. LEXIS 345 ( Ky. 1922 ).

9.Recording.

When a lis pendens notice is sufficient in form, and is filed in the proper office, the party filing it will be protected, although the clerk may fail to discharge his duty in connection with it and the fact the clerk indexed it under the wrong alphabetical letter or that purchaser’s attorney did not put him in possession of facts within his knowledge or that his attorney was not diligent and the purchaser did not have actual knowledge will not help him. Fletcher v. Wireman, 152 Ky. 565 , 153 S.W. 982, 1913 Ky. LEXIS 714 ( Ky. 1913 ).

The law does not impose upon the party filing a lis pendens notice the duty to see that it is properly recorded and when the notice is sufficient in form and is filed in the proper office the party filing it will be protected although the clerk may fail to discharge his duty in connection therewith and even though attorney filing the notice knew that no regular book for recording lis pendens notices was kept. Preece v. Hardin, 253 Ky. 226 , 69 S.W.2d 361, 1934 Ky. LEXIS 645 ( Ky. 1934 ).

Where prior to purchase of real estate a lis pendens notice had been filed in the clerk’s office and indexed but not recorded, purchaser had constructive notice and took subject to attachment lien. Preece v. Hardin, 253 Ky. 226 , 69 S.W.2d 361, 1934 Ky. LEXIS 645 ( Ky. 1934 ).

10.Entry Prior to Suit.

Purchaser who entered on land under title bond nearly two years before action was brought between others was not a lis pendens purchaser and was not bound by consent judgment therein where he was not a party to the action. Bowen v. Jameson, 223 Ky. 493 , 4 S.W.2d 401, 1927 Ky. LEXIS 963 ( Ky. 1927 ).

11.Notice Filed.

Where notice was filed under this section when action was instituted to enforce trust on land specifically described in petition, persons who purchased from defendant pending action took subject to his rights, though they had no actual notice of action. Friedman v. Janssen, 66 S.W. 752, 23 Ky. L. Rptr. 2151 (1901).

Where notice of lis pendens has been filed, a bona fide purchaser for value is substituted to the rights of his vendor and where action for specific performance on a contract to a third party is decided against his vendor, the bona fide purchaser for value may recover the difference between what he paid vendor for the land and what he receives from third party under specific performance of the contract. Fletcher v. Wireman, 152 Ky. 565 , 153 S.W. 982, 1913 Ky. LEXIS 714 ( Ky. 1913 ).

A judgment in an action where notice is filed under this section must be given the same effect as if purchasers pendente lite had acquired no interest or had been parties from the commencement of the proceeding, and their interests are absolutely concluded by the final determination of the suit. Roberts v. Cardwell, 154 Ky. 483 , 157 S.W. 711, 1913 Ky. LEXIS 82 ( Ky. 1913 ).

Purchasers from defendant in action to quiet title were lis pendens purchasers of real property and their purchase did not change, alter or enlarge the rights of plaintiff. Jones v. O'Connell, 237 Ky. 219 , 35 S.W.2d 290, 1931 Ky. LEXIS 582 ( Ky. 1931 ).

A lis pendens notice filed pursuant to this section of quiet title action decided in favor of appellee’s grantor was notice to appellant, son of the husband and wife against whom the title was quieted, and possession could not ripen into adverse possession. Collett v. Fordson Coal Co., 270 Ky. 242 , 109 S.W.2d 628, 1937 Ky. LEXIS 66 ( Ky. 1937 ).

A purchaser of property after a lis pendens notice has been duly filed against it by a contractor to enforce an improvement lien, but before service of summons, takes subject to the lien. Breslin v. Gray, 283 Ky. 785 , 143 S.W.2d 452, 1940 Ky. LEXIS 409 ( Ky. 1940 ).

Lis pendens notice reciting claim of lien on real property of decedent was sufficiently broad to cover amended petition filed five years later claiming lien on property of decedent’s heirs, the same claim being involved, and a mortgage executed subsequent to filing of action was inferior to plaintiff’s lien. Ben Williamson & Co. v. Hall, 290 Ky. 672 , 161 S.W.2d 905, 1942 Ky. LEXIS 421 ( Ky. 1942 ). See Thompson v. Hall, 290 Ky. 664 , 162 S.W.2d 196, 1942 Ky. LEXIS 460 ( Ky. 1942 ).

Lis pendens notice filed pursuant to this section of suit for specific performance of a private contract to convey apartment house gave bank who purchased at judicial sale in a mortgage foreclosure suit, and subsequent purchasers from the bank, warning that they would take conveyance of the legal title subject to equitable estate should the suit be successful and such subsequent purchases were no bar to specific performance. Rice v. Merritt, 310 S.W.2d 529, 1957 Ky. LEXIS 164 ( Ky. 1957 ).

A foreign judgment holder’s filing and service of a lis pendens notice under this section was not sufficient compliance with the requirements of KRS 426.720 so as to create a lien on a date before the recording of a tax lien by the Internal Revenue Service. Redondo Constr. Corp. v. United States, 157 F.3d 1060, 1998 FED App. 0310P, 1998 U.S. App. LEXIS 26082 (6th Cir. Ky. 1998 ).

It was undisputed that the bank filed a lis pendens notice in compliance with KRS 382.440 and listed the mortgage corporation as a party in interest; it did not matter that the bank was the party that actually filed the lis pendens notice. Rather, because the mortgage corporation was designated as a party in interest on the notice, the bankruptcy trustee was on constructive notice of its interest; it would have made little sense to require a creditor, already listed on a lis pendens notice, to file another lis pendens notice to protect its interest. Rogan v. Wachovia Mortg. Corp. (In re Jacobs), 2012 Bankr. LEXIS 2217 (Bankr. E.D. Ky. May 17, 2012).

12.Lien Acquired After Filing of Petition.

The interest of a pendente lite lienholder in real property does not survive the judicial sale of the property incident to a foreclosure action to which the lienholder was neither a party nor had actual notice of the proceedings. While KRS 426.690 clearly requires the plaintiff in a foreclosure action to name the holders of other liens in its petition, there is no statutory requirement to name those who acquire a lien after the filing of the petition. Cumberland Lumber Co. v. First & Farmers Bank, Inc., 838 S.W.2d 403, 1992 Ky. App. LEXIS 90 (Ky. Ct. App. 1992).

13.Zoning Changes.

Practitioners representing protesters of zoning changes can more thoroughly protect their clients’ interests by filing notices of lis pendens, by obtaining quicker services of pro- cess, and by seeking injunctions to prevent the issuance of building permits on contested properties; furthermore those individuals representing buyers, owners, builders or lenders must be certain that any new construction or building modifications be done in good faith; finally, those individuals responsible for enforcing local zoning laws must be extremely cautious in issuing building permits in order to assure that the character and integrity of a zone is maintained. Petty v. Barrentine, 594 S.W.2d 903, 1980 Ky. App. LEXIS 297 (Ky. Ct. App. 1980).

14.Lis Pendens.

The filing of lis pendens does not independently create a lien against property, and does not take priority over liens filed subsequent to lis pendens but prior to the entry of a dissolution decree. Strong v. First Nationwide Mortg. Corp., 959 S.W.2d 785, 1998 Ky. App. LEXIS 4 (Ky. Ct. App. 1998).

Creditors were entitled to summary judgment on the bankruptcy trustee’s claim that the estate had priority on the proceeds from the sale of encumbered property, pursuant to 11 USCS § 544; even if the mortgage was defective under KRS 423.130 , the subsequently filed lis pendens, properly recorded pursuant to KRS 382.440 , put the trustee on, at a minimum, inquiry notice concerning creditors’ underlying interest in the property and the trustee did not thus have status as a bona fide purchaser. Johnson v. CIT Group/Consumer Fin., Inc. (In re Franklin), 2006 Bankr. LEXIS 3738 (Bankr. E.D. Ky. Jan. 25, 2006).

Appellant had nothing more than a general creditor’s claim against an estate, and thus the claim against appellee did not have a direct attachment to the real property in question, and the recording of a lis pendens, for purposes of KRS 382.440 , was inappropriate and ineffective to encumber a sale of the property to appellee. Guerin v. Fulkerson, 354 S.W.3d 161, 2011 Ky. App. LEXIS 189 (Ky. Ct. App. 2011).

Although it was determined that a commercial property lessee had asserted no valid right, title, interest in, or claim to the disputed premises, as it had the right to maintain its notice of lis pendens throughout the pendency of the action pursuant to KRS 382.440 , the trial court erred when it dissolved the notice of lis pendens. Sohal Props., LLC v. MOA Props., LLC, 2011 Ky. App. LEXIS 205 (Ky. Ct. App. Oct. 21, 2011).

One who took a mortgage on land pending an action to enforce a vendor’s lien thereon was under the common law a lis pendens purchaser, and therefore bound by a judgment rendered in that action enforcing the lien, though the deed to the mortgagor did not show that the purchase money was unpaid, and therefore but for the pending action the mortgagee would not have been affected by the lien which existed as between the parties to the deed. Taylor v. United States Bldg. & Loan Assn's Assignee, 110 Ky. 84 , 60 S.W. 927, 22 Ky. L. Rptr. 1560 , 1901 Ky. LEXIS 56 ( Ky. 1901 ).

Cited:

Mann v. Humphrey’s Adm’x, 267 Ky. 406 , 102 S.W.2d 342, 1937 Ky. LEXIS 329 ( Ky. 1937 ); First Owensboro Bank & Trust Co. v. Wells, 282 Ky. 88 , 137 S.W.2d 732, 1940 Ky. LEXIS 124 (1940); Commonwealth, Dep’t of Highways v. Widner, 388 S.W.2d 583, 1965 Ky. LEXIS 437 ( Ky. 1965 ); Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ); USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 1982 U.S. App. LEXIS 25304 (6th Cir. 1982); USACO Coal Co. v. Carbomin Energy, Inc., 539 F. Supp. 807, 1982 U.S. Dist. LEXIS 9600 (W.D. Ky. 1982 ); In re Pendleton, 40 B.R. 306, 1984 Bankr. LEXIS 6271 (Bankr. W.D. Ky. 1984 ); 1400 Willow Council of Co-Owners, Inc. v. Ballard, — S.W.3d —, 2010 Ky. App. LEXIS 94 (Ky. Ct. App. 2010).

Opinions of Attorney General.

A lis pendens cannot be taken from the quarterly court or other court inferior to the circuit court. OAG 71-317 .

The law relates to actions affecting real property only. OAG 71-317 .

There is no specific time limitation for filing and enforcing lis pendens. OAG 71-317 .

A creditor, bona fide or other purchaser, who has no actual notice of a pending suit to enforce a mechanic’s lien may disregard a mechanic’s lien which has been filed longer than one year where no lis pendens affecting the subject property appears of record during the one year period of limitations. OAG 78-339 .

A filed mechanic’s lien is not the type of fact which would raise a duty of inquiry under the rationale of Dick v. Jasper, 195 Ky. 539 , 242 S.W. 834, 1922 Ky. LEXIS 345 (1922) where the one year statute of limitations has passed and no lis pendens has appeared of record. OAG 78-339 .

The purpose of this section is to protect those who would be lis pendens purchasers by requiring notice to be filed of the pendency of an action to enforce the lien, and it is clear that a mechanic’s lien falls within the literal language and intended purview of this section. OAG 78-339 .

This section was enacted after KRS 376.090(2), and, therefore, the provisions and requirements of this section shall control those of KRS 376.090(2) where the two are in conflict. OAG 78-339 .

Where the purchaser of a delinquent tax bill pays the total bond sale bill to the sheriff for the purchase of the real property for delinquent taxes, the purchased delinquent tax bills are not property recordable in the lis pendens book under this section, since the clerk of the court must maintain a “certificates of delinquency” book under KRS 134.450 for such purposes; however, if the purchaser institutes a suit to enforce his lien in the property after three (3) years from the issuance of the certificate of delinquency have elapsed, the purchaser may file a memorandum of such litigation in the lis pendens book. OAG 81-82 .

Research References and Practice Aids

Kentucky Bench & Bar.

Baker and Baker, Title Examination in Kentucky, 48 Ky. Bench & B. 12 (1984).

Kentucky Law Journal.

Mayne, Creditors’ Bills and Actions to Set Aside Fraudulent Conveyances — Prerequisite to Suit, 39 Ky. L.J. 105 (1950).

Northern Kentucky Law Review.

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Defects in Lis Pendens — Constructive Notice, Form 312.02.

Caldwell’s Kentucky Form Book, 5th Ed., Judgment and Order of Sale, Plaintiff is First Lien Holder, Form 301.07.

Caldwell’s Kentucky Form Book, 5th Ed., Lis Pendens — Notice of Filing of Action, Form 312.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lis Pendens, § 312.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Vendor and Purchaser, § 314.00.

Petrilli, Kentucky Family Law, Court Procedure, § 23.23.

382.450. Memorandum of attachment or execution to be filed.

  1. No attachment or execution, nor any levy or sale under either, shall in any manner affect the right, title to, or interest of a subsequent purchaser, lessee or encumbrancer without notice thereof of any real estate or any interest therein upon which such attachment or execution is levied, except from the time there is filed, as provided in KRS 382.440 , a memorandum, showing the number and style of the action in which the attachment or execution issued, the court from which it issued, the number, if any, of such attachment or execution, the date thereof, and the name of the persons in whose favor and against whom it issued.
  2. Any of the notices provided for in this section or in KRS 382.440 may be filed by any party in interest.

History. 2358a-2.

NOTES TO DECISIONS

1.Constitutionality.

The requirement of filing of notice of an attachment lien in no sense impairs or affects the obligation of a contract entered into prior to enactment of statute when levy of attachment is made after enactment of the statute. Boltz v. Boain, 90 S.W. 593, 28 Ky. L. Rptr. 842 (1906).

2.Purpose.

This section was enacted for the purpose of protecting bona fide purchasers for value without notice of the previous levy of an execution. Blackerby v. Monarch Equipment, 259 S.W.2d 683, 1953 Ky. LEXIS 966 ( Ky. 1953 ).

3.Construction.

Although before adoption of the statutes an execution creditor acquired no preference if he had notice before the sale under the execution, now all the provisions of the statutes must be read together, including KRS 382.100 , 382.270 , 382.440 and this section, and a subsequent creditor who acquired a lien upon debtor’s real estate by the levy of execution and perfection of his lien by filing lis pendens notice in the county clerk’s office before he had notice of the claim of a grantee under a deed from the debtor, and before the deed was lodged of record, had preference over the lien of the grantee. Bradshaw v. Dunlap, 217 Ky. 644 , 290 S.W. 501, 1927 Ky. LEXIS 42 ( Ky. 1927 ).

This section and KRS 382.440 relating to lis pendens notices do not have the effect of invalidating execution liens. In re Wesley Corp., 18 F. Supp. 347, 1937 U.S. Dist. LEXIS 2091 (D. Ky. 1937 ).

Lis pendens notices charge third parties with notice of the liens involved, and of their rights thereunder. Bailey v. Bailey, 286 Ky. 582 , 151 S.W.2d 374, 1941 Ky. LEXIS 298 ( Ky. 1941 ).

4.Application.

This section applies to all executions, whether issued before or after the enactment of the statute. Park v. McReynolds, 111 Ky. 651 , 64 S.W. 517, 23 Ky. L. Rptr. 894 , 1901 Ky. LEXIS 239 ( Ky. 1901 ). See Hunziker v. Supreme Lodge K. P., 117 Ky. 418 , 78 S.W. 201, 25 Ky. L. Rptr. 1510 , 1904 Ky. LEXIS 207 ( Ky. 1904 ).

This applies to actions of all kinds in which it is sought to subject in any manner real estate against a purchaser for value without notice of the lien sought to be enforced. Trapp's Adm'r v. Bailey, 152 Ky. 369 , 153 S.W. 472, 1913 Ky. LEXIS 669 ( Ky. 1913 ). See Daniel v. Holtclaw, 160 Ky. 522 , 169 S.W. 1013, 1914 Ky. LEXIS 502 ( Ky. 1914 ).

Liens allowed attorneys under KRS 30.200, upon lands recovered by them, are subject to the provisions of this section. Daugherty v. Pond Creek Coal Co., 171 Ky. 604 , 188 S.W. 624, 1916 Ky. LEXIS 383 ( Ky. 1916 ).

5.Date.

The primary purpose of requiring the date of attachment to be contained in the body of the lis pendens notice is to put subsequent purchasers and encumbrancers on notice and where a prior lis pendens, correct in every respect except the date was not contained in the body of the notice, was not only on record but the date of filing was attached by the county clerk, persons filing an attachment on the property subsequently filed with notice of the lis pendens and the lis pendens took precedent over the attachments filed subsequently. Burton-Whayne Co. v. Farmers' & Drovers' Bank, 130 Ky. 389 , 113 S.W. 445, 1908 Ky. LEXIS 281 (Ky.), modified, 130 Ky. 395 , 114 S.W. 288 ( Ky. 1908 ).

6.Persons Protected.

Execution levy does not affect a subsequent purchaser or innocent encumbrancer without notice, unless memorandum of levy is filed. Ponder v. Boaz, 67 S.W. 833, 23 Ky. L. Rptr. 2429 , 1902 Ky. LEXIS 330 (Ky. Ct. App. 1902).

The purchaser, without notice of a lien upon property upon which an execution had been levied but no memorandum of the levy had been filed in the county clerk’s office under this section, was pro tanto a purchaser of the property, and therefore within the protection of his section although those from whom she purchased may have had notice of the levy. Ponder v. Boaz, 67 S.W. 833, 23 Ky. L. Rptr. 2429 , 1902 Ky. LEXIS 330 (Ky. Ct. App. 1902).

7.Failure to File Notice.

Where an order of attachment was obtained and levied on land but notice of the pendency of the action was not given as required by this section, a subsequent purchaser for value and without notice, was not affected by the levy of the attachment. White v. Manning, 82 S.W. 607, 26 Ky. L. Rptr. 887 , 1904 Ky. LEXIS 420 (Ky. Ct. App. 1904).

A failure to comply with this section will defeat any lien based upon an attachment or execution, as against a subsequent purchaser without notice. Donacher v. Tafferty, 147 Ky. 337 , 144 S.W. 13, 1912 Ky. LEXIS 231 ( Ky. 1912 ). See Combs v. Miller, 149 Ky. 546 , 149 S.W. 906, 1912 Ky. LEXIS 664 ( Ky. 1912 ); Trapp's Adm'r v. Bailey, 152 Ky. 369 , 153 S.W. 472, 1913 Ky. LEXIS 669 ( Ky. 1913 ); Conley v. Mayo, 157 Ky. 445 , 163 S.W. 243, 1914 Ky. LEXIS 301 ( Ky. 1914 ); Daugherty v. Pond Creek Coal Co., 171 Ky. 604 , 188 S.W. 624, 1916 Ky. LEXIS 383 ( Ky. 1916 ).

The doctrine of lis pendens that prevailed before enactment of this section does not now obtain and third parties and strangers to a suit to enforce a lien upon property who are without actual notice are not now chargeable with notice of suit, unless the statutory notice is given. Donacher v. Tafferty, 147 Ky. 337 , 144 S.W. 13, 1912 Ky. LEXIS 231 ( Ky. 1912 ). See Perkins v. Ogilvie, 140 Ky. 412 , 131 S.W. 200, 1910 Ky. LEXIS 286 ( Ky. 1910 ).

Whatever right was acquired by purchaser at execution sale, as against subsequent purchaser for value by deed from owner, was lost by his failure, or that of plaintiff in execution, to have memorandum of execution sale recorded. Conley v. Mayo, 157 Ky. 445 , 163 S.W. 243, 1914 Ky. LEXIS 301 ( Ky. 1914 ).

The lis pendens statute was not intended to restrict inquiry to the record only; neither was it intended to repeal the champerty statutes so adverse possession by execution creditor put subsequent purchaser on notice and to that extent invalidated his purchase. Daniel v. Holtclaw, 160 Ky. 522 , 169 S.W. 1013, 1914 Ky. LEXIS 502 ( Ky. 1914 ).

Where a lis pendens notice is not filed, a delay of several years in selling real property under an execution works an abandonment of the lien as to creditors and persons acquiring intervening rights. Mullins v. Staton, 287 Ky. 296 , 152 S.W.2d 939, 1941 Ky. LEXIS 528 ( Ky. 1941 ).

Where execution and attachment creditors took the necessary steps to perfect their liens, such creditors were encumbrancers within the meaning of this section and took priority over the judgment creditor who failed to file notice of lis pendens. Commercial Transport Corp. v. Robinson Grain Co., 345 F. Supp. 342, 1972 U.S. Dist. LEXIS 15305 (W.D. Ky. 1972 ).

8.Notice Filed.

An execution lis pendens proceeding could not be effective for any purpose unless and only so long as it was duly prosecuted and in the absence of a showing to the contrary it must be conclusively presumed after 11 years that such a lis pendens had been abandoned or concluded. Whittaker v. Chenault, 192 Ky. 81 , 232 S.W. 391, 1921 Ky. LEXIS 27 ( Ky. 1921 ).

This section and KRS 382.270 must be read in connection with KRS 382.100 and where execution was levied and lis pendens notice filed by a judgment creditor without notice of grantee’s claim before debtor’s deed to grantee was recorded, the judgment creditor had lien on real estate as against grantee and could have the land sold to satisfy it. Bradshaw v. Dunlap, 217 Ky. 644 , 290 S.W. 501, 1927 Ky. LEXIS 42 ( Ky. 1927 ).

By the express provisions of KRS 382.270 judgment debtor’s deed was void against creditor without notice who acquired levy of execution on the property and filed a lis pendens notice as provided by this section eight days after the judgment debtor executed the deed to a third party but before the deed was recorded. Mason v. Southern Deposit Bank, 229 Ky. 728 , 17 S.W.2d 1022, 1929 Ky. LEXIS 838 ( Ky. 1929 ).

Judgment creditor having filed notice under this section and having shown good faith in her execution proceedings against real estate of judgment debtor and who was without notice of any possessory or unrecorded title rights acquired a good and valid execution lien upon the property for the amount of her debt, which was prior and paramount to right or title of grantee under alleged unrecorded deed who was not in possession at the time of the levy. Calloway v. Howard, 247 Ky. 730 , 57 S.W.2d 677, 1933 Ky. LEXIS 451 ( Ky. 1933 ).

Where plaintiff had filed lis pendens notice upon levy of an execution on real estate, a delay in sale of property for three (3) years and seven months was held not to constitute abandonment of the execution lien. Bailey v. Bailey, 286 Ky. 582 , 151 S.W.2d 374, 1941 Ky. LEXIS 298 ( Ky. 1941 ).

9.Application of Proceeds of Sale.

Under this section proceeds of sale of three (3) tracts of land on the levy of a judgment creditor, all of which tracts were subject to a prior first mortgage and the second of which was subject to a prior second mortgage, should be applied pro rata to the first mortgage and since marshalling of assets does not apply in Kentucky the second mortgagee should receive what was left out of the second tract upon which it held a mortgage and the judgment creditor should receive what was left from the first and third tracts. Bronaugh v. Burley Tobacco Co., 212 Ky. 680 , 280 S.W. 97, 1926 Ky. LEXIS 215 ( Ky. 1926 ).

10.Actual Notice.

Party who failed to comply with positive terms of this section in filing notice of his lien in the clerk’s office had the burden of proof and he should have been required to introduce proof to make it clear or at least sufficient proof to satisfy the mind that subsequent grantee did not have notice of the attachment lien on the land before he made the purchase and parted with his money. Boltz v. Boain, 90 S.W. 593, 28 Ky. L. Rptr. 842 (1906).

Where evidence clearly disclosed that assignee had actual notice of attachments before he filed or caused the transfer and assignment to be recorded, the sufficiency of the lis pendens notices was immaterial and attaching creditor had priority over debtor’s assignee. Huff v. Russell, 267 Ky. 515 , 102 S.W.2d 984, 1937 Ky. LEXIS 343 ( Ky. 1937 ).

11.Amendment.

Amendment of return, nine years after levy by officer who levied the attachment, by giving a more particular description of the property levied upon could not relate back and cut off rights of an intervening purchaser. Hatcher v. Wagner, 120 Ky. 603 , 87 S.W. 778, 27 Ky. L. Rptr. 1016 , 1905 Ky. LEXIS 142 ( Ky. 1905 ).

12.Jurisdiction.

The court which first acquires jurisdiction of specific property by seizure or otherwise, thereby withdraws it from the jurisdiction of every other court so far as it is necessary to accomplish the purpose of the suit and is entitled to retain such control as is requisite to effectuate its final judgment or decree, so where execution of a personal judgment obtained in one county was returned “no property found” and plaintiff brought an equitable action in the same court to enforce collection of her judgment and a general order of attachment was issued in that action against judgment debtor’s property in another county and addressed to the sheriff of the other county and the land of the judgment creditor’s wife in that county was levied on and lis pendens notice filed, the circuit court of the first county acquired jurisdiction and the circuit court of the second county could not on suit of judgment creditor’s wife vacate attachment levy and have lis pendens notice declared void. Wilson v. Gibbs, 213 Ky. 268 , 280 S.W. 1109, 1926 Ky. LEXIS 495 ( Ky. 1926 ).

Cited:

Egyptian Supply Co. v. Boyd, 117 F.2d 608, 1941 U.S. App. LEXIS 4289 (6th Cir. 1941).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Lis Pendens; Notice of Execution, Form 151.25.

382.460. Notice to be endorsed, recorded and indexed — Fees.

  1. The clerk shall number the notices filed under KRS 382.440 and 382.450 , in the order in which they are received, shall endorse on each notice the day and hour of the receipt and the name of the person filing it and shall record the same in a book to be kept for that purpose. He shall forthwith index the notices mentioned in KRS 382.440 by their numbers and by the name of each person whose interest is therein stated to be affected, and the notices mentioned in KRS 382.450 by their numbers and by the names of each person against whom the attachment or execution is stated to have issued.
  2. For recording each notice mentioned in KRS 382.450 and for the notices mentioned in KRS 382.440 the clerk shall receive a fee pursuant to KRS 64.012 for each tract of land therein separately described. The fees shall be paid in advance, and shall be taxed as part of the costs of the party filing the notices in the action, attachment or execution.

History. 2358a-3: amend. Acts 1978, ch. 84, § 16, effective June 17, 1978.

NOTES TO DECISIONS

1.Recording.

The law does not impose upon the party filing a lis pendens notice the duty to see that it is properly recorded and when the notice is sufficient in form and is filed in the proper office the party filing it will be protected although the clerk may fail to discharge his duty in connection therewith and even though attorney filing the notice knew that no regular book for recording lis pendens notices was kept. Preece v. Hardin, 253 Ky. 226 , 69 S.W.2d 361, 1934 Ky. LEXIS 645 ( Ky. 1934 ).

382.470. Discharge of notice — Fees.

Any notice mentioned in KRS 382.440 and 382.450 may be discharged and annulled by an entry to that effect on the margin of the record thereof, or at the option of the county clerk, in a marginal entry record kept for the same purpose, signed by the person filing the notice or by his or their attorney of record in the action, or by a writing executed, acknowledged, and recorded in the manner provided for conveyance of land. The clerk shall, at the option of the clerk, either link the discharge and its filing location to its respective referenced instrument in the indexing system for the referenced instrument, or enter a memorandum of such discharge on the margin of such record for which he shall charge a fee pursuant to KRS 64.012 , to be paid in advance. Each entry in the marginal entry record shall be linked to its respective referenced instrument in the indexing system for the referenced instrument.

History. 2358a-4: amend. Acts 1982, ch. 323, § 4, effective July 15, 1982; 2006, ch. 255, § 32, effective January 1, 2007.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lis Pendens, § 312.00.

Caldwell’s Kentucky Form Book, 5th Ed., Release of Lis Pendens, Form 312.03.

382.480. Filing of federal liens.

  1. Notices of tax liens payable to the United States and certificates discharging such liens shall be filed by the collector of internal revenue, in duplicate, in the office of the county clerk of each county within which the property subject to the lien is located.
  2. When a notice of a federal tax lien is filed, the county clerk shall forthwith enter the same in an alphabetical federal tax lien index, showing on one (1) line the name and residence of the taxpayer named in the notice, the collector’s serial number of such notice, the date and hour of filing, and the amount of tax and penalties. He shall endorse on both the original and duplicate copies of the notice the date and hour of filing and shall mail the duplicate to the collector of internal revenue from whom received. The county clerk shall file and keep all original notices so filed, in numerical order, in a file designated “Federal Tax Lien Notices,” or in the encumbrance book.
  3. Notices of all other liens payable to the United States, including, but not limited to environmental protection liens, and certificates discharging such liens shall be filed, in duplicate, in the office of the county clerk of each county within which the property subject to the lien is located.
  4. When a notice of a federal lien as provided by subsection (3) of this section is filed, the county clerk shall forthwith enter the same in an alphabetical federal lien index, showing on one (1) line the name and residence of the property owner named in the notice, identifying the specific lien holder, the date and hour of filing, and the amount of the lien. He shall indorse on both the original and duplicate copies of the notice the date and hour of filing and shall mail the duplicate to the lien holder from whom received. The county clerk shall file and keep all original notices so filed, in numerical order, in a file designated “Federal Lien Notices,” or in the encumbrance book.

History. 4281t-8, 4281t-9: amend. Acts 1988, ch. 343, § 2, effective July 15, 1988.

NOTES TO DECISIONS

1.Personal Property.

Although the provisions of this chapter deal predominantly with real property, there is no reason to restrict the application of this section to such property, and a federal tax lien on personal property was properly filed under this section. Harrison v. Harold Cox Concrete Constr. Co., 440 F. Supp. 859, 1977 U.S. Dist. LEXIS 14441 (W.D. Ky. 1977 ).

Opinions of Attorney General.

The filing of federal tax liens in the county clerk’s office would be evidence of the effective date of the tax lien. OAG 80-510 .

Research References and Practice Aids

Cross-References.

Federal tax lien not valid against purchasers without notice until notice filed, 26 USCS 1562.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Lis Pendens; Notice of Execution, Form 151.25.

382.490. Discharge of federal liens.

  1. When a certificate of discharge of any tax lien issued by the collector of internal revenue is filed in the office of the county clerk where the original notice of the lien is filed, the county clerk shall enter the certificate, with the date of filing, in the federal tax lien index, on the same line where the notice of the lien so discharged is entered, and shall permanently attach the original certificate of discharge to the original notice of lien. He shall mail the duplicate to the collector of internal revenue from whom received.
  2. When a certificate of discharge of any lien as provided by KRS 382.480(3) is filed, the county clerk shall enter the certificate, with the date of filing, in a federal lien index, on the same line where the notice of the lien so discharged is entered, and shall permanently attach the original certificate of discharge to the original notice of lien. He shall mail the duplicate to the lien holder from whom received.

History. 4281t-10: amend. Acts 1988, ch. 343, § 3, effective July 15, 1988.

382.500. Clerk’s fees for filing.

The county clerk shall be entitled to receive from the Internal Revenue Service a fee pursuant to KRS 64.012 for each notice of tax lien so filed, and a like fee for each lien discharged.

History. 4281t-12: amend. Acts 1978, ch. 84, § 17, effective June 17, 1978.

382.510. Lis pendens notices concerning proceedings in bankruptcy.

Any county clerk shall receive for record and record any certified copy of any matter in reference to bankruptcy which any Act of Congress of the United States may provide for as being necessary to be filed in the county wherein lands of a bankrupt are situated in order to be notice of said bankruptcy. Such certified copy shall be recorded in the record of deeds and indexed in the general index of deeds in the name of the bankrupt, as grantor, and in the name of the trustee in bankruptcy or receiver (if any), as grantee. The county clerk shall be entitled to a fee pursuant to KRS 64.012 for recording each such certified copy, to be paid by the person who offers the copy for recording.

History. Enact. Acts 1944, ch. 21, § 2; 1978, ch. 84, § 18, effective June 17, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Lis Pendens; Notice of Execution, Form 151.25.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lis Pendens, § 312.00.

382.520. Renewal, extension, interest rate modification, or additional loan under mortgage on real estate — Superiority of lien — Release of lien, when.

  1. In all cases where a loan is secured by a real estate mortgage, the mortgage originally executed and delivered by the borrower to the lender shall secure payment of all renewals, extensions, or interest rate modifications of the loan and the note evidencing it, whether so provided in the mortgage or not.
  2. The mortgage referred to in subsection (1) of this section may secure any additional indebtedness, whether direct, indirect, existing, future, contingent, or otherwise, to the extent expressly authorized by the mortgage, if the mortgage by its terms stipulates the maximum additional indebtedness which may be secured thereby. Except as provided in subsection (3) of this section, the mortgage lien authorized by this subsection shall be superior to any liens or encumbrances of any kind created after recordation of such mortgage, even to the extent of sums advanced by a lender with actual or constructive notice of a subsequently created lien, provided, however, any mortgagee upon receipt of a written request of a mortgagor must release of record the lien to secure additional indebtedness as exceeds the balance of such additional indebtedness at the time of the request.
    1. The written request referred to in subsection (2) of this section shall be signed by the mortgagor or his agent or attorney, and shall set forth a description of the real property to which the request relates, the date, parties to, the volume and initial page of the record of the mortgage referred to in subsection (1) of this section, and a description of the nature, amount, and holder of the lien or encumbrance which the mortgagor intends to place upon such real property. The request shall be deemed to have been received by the holder of the mortgage referred to in subsection (1) of this section only when delivered to the holder by certified mail, return receipt requested, at the address of the holder appearing of record on the mortgage or an assignment thereof; (3) (a) The written request referred to in subsection (2) of this section shall be signed by the mortgagor or his agent or attorney, and shall set forth a description of the real property to which the request relates, the date, parties to, the volume and initial page of the record of the mortgage referred to in subsection (1) of this section, and a description of the nature, amount, and holder of the lien or encumbrance which the mortgagor intends to place upon such real property. The request shall be deemed to have been received by the holder of the mortgage referred to in subsection (1) of this section only when delivered to the holder by certified mail, return receipt requested, at the address of the holder appearing of record on the mortgage or an assignment thereof;
    2. If within ten (10) business days after receipt of the written request referred to in this subsection, the holder of the mortgage referred to in subsection (1) of this section fails to release that amount of the lien to secure additional indebtedness to the extent described in the request, the mortgagor may record in the office of the county clerk in which the mortgage referred to in subsection (1) of this section is recorded a copy of the written request upon payment of the same filing fee as provided for a release of a mortgage;
    3. If, after a copy of the written request is recorded, an advance is made by the holder of the mortgage referred to in subsection (1) of this section, then the lien of the mortgage for the unpaid balance of the advance so made shall be subordinate to the lien or encumbrance described in the request.

History. Enact. Acts 1948, ch. 196; 1960, ch. 89; 1968, ch. 152, § 158; 1980, ch. 168, § 1, effective July 15, 1980; 1982, ch. 323, § 6, effective July 15, 1982; 1986, ch. 103, § 1, effective July 15, 1986; 1992, ch. 49, § 2, effective July 14, 1992; 2014, ch. 31, § 1, effective July 15, 2014; 2015 ch. 48, § 1, effective June 24, 2015.

NOTES TO DECISIONS

1.Construction.

The meaning of this section is that if the mortgage states the limit of indebtedness and it is in excess of the face amount of the mortgage, security of the amount up to the limit of indebtedness over the face amount is allowed; thus, it covers future loans. Bank of Maysville v. Brock, 375 S.W.2d 814, 1964 Ky. LEXIS 434 ( Ky. 1964 ).

A notice in a mortgage that a lien covers the amount loaned, plus possible future advances, has been held to grant priority to the future advances against a lien filed after the initial mortgage but before the advances. Liberty Nat'l Bank & Trust Co. v. Vanderkraats, 899 S.W.2d 511, 1995 Ky. App. LEXIS 114 (Ky. Ct. App. 1995).

A materialman’s lien is created pursuant to this section upon the delivery of labor or materials and is perfected upon the filing of a lien statement. Metal Sales Mfg. Corp. v. Newton, 12 S.W.3d 691, 1999 Ky. App. LEXIS 37 (Ky. Ct. App. 1999).

Term “additional indebtedness,” as used in the statute, is not intended to require a mortgage to identify the maximum amount of the indebtedness resulting from the original loan, including interest and other fees. Rather, “additional indebtedness” refers to new, future, or additional amounts loaned between the parties. Asher v. Morgan Stanley Mortg. (In re Asher), 2020 Bankr. LEXIS 1342 (Bankr. E.D. Ky. May 22, 2020).

2.Additional Indebtedness.

Properly recorded mortgage was notice of the original face amount of $86,000.00 and also an additional $5,000.00, since the mortgage stipulated that the maximum additional indebtedness which might be secured thereby was the sum of $5,000.00. In re Blieden, 49 B.R. 386, 1985 Bankr. LEXIS 6640 (Bankr. W.D. Ky. 1985 ).

Mechanic’s lienholder’s lien was superior to a mortgagee’s security interest in the same real property because once the mortgagee’s mortgage, which had been created before the mechanic’s lien was filed, was paid, it could not use the future advances clause in that mortgage to assert that a subsequent loan to the mortgagor was secured by the earlier mortgage and that, therefore, its mortgage was superior to the mechanic’s lien. Peoples Bank v. Stout's Feed Store, Inc., 2003 Ky. App. Unpub. LEXIS 680 (Ky. Ct. App. May 23, 2003).

Extent of additional indebtedness could be determined by the exercise of ordinary discretion and diligence merely by referring to the mortgage. The future advance clause clearly secured additional indebtedness up to $129,225 and was valid under KRS 382.520(2). Citizens Commerce Nat'l Bank v. Republic Bank & Trust Co. (In re Ware), 2011 Bankr. LEXIS 4712 (Bankr. E.D. Ky. Nov. 29, 2011).

Trial court properly granted a lender summary judgment because a borrower failed to carry her burden of proving a novation or that the underlying obligation had been satisfied; the borrower's former husband continued to make payments on the debt the couple incurred, and the plain language of a subsequent note and agreement expressly referred to the original note and its obligations and the property as collateral and indicated the intent to modify rather than replace the loan obligation. Forcht v. Forcht Bank, N.A., 533 S.W.3d 695, 2017 Ky. App. LEXIS 269 (Ky. Ct. App. 2017).

Cited:

Wells Fargo Fin. Ky., Inc. v. Thomer, 315 S.W.3d 335, 2010 Ky. App. LEXIS 78 (Ky. Ct. App. 2010).

Opinions of Attorney General.

Since a vendor lien is retained by the grantor in a deed to secure any indebtedness on the purchase price whereas a real estate mortgage is a separate instrument, subdivision (3)(b) of this section would not be applicable to vendor liens or to real estate mortgages which by their terms fail to secure additional amounts. OAG 91-74 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

382.600. Construction of KRS 382.600 to 382.730. [Repealed.]

Compiler’s Notes.

This section (523b-1, 523b-16, 523b-18) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.610. Personal property that may be mortgaged, rank of mortgage. [Repealed.]

Compiler’s Notes.

This section (523b-1, 523b-4: amend. Acts 1958, ch. 77, Art. 10, § 10-107) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.620. Mortgage to secure future advances. [Repealed.]

Compiler’s Notes.

This section (523b-2) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.635. Exception to general rule — Tobacco crops. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 71; 1960, ch. 250, § 3) was repealed by Acts 1962, ch. 83, § 21.

382.640. Provisions in mortgage to Federal agency for sale or exchange of mortgaged goods. [Repealed.]

Compiler’s Notes.

This section (523b-5) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.650. Execution and acknowledgment. [Repealed.]

Compiler’s Notes.

This section (523b-6) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.660. Affidavit as to consideration not necessary. [Repealed.]

Compiler’s Notes.

This section (523b-7) was repealed by Acts 1960, ch. 250, § 5, effective July 1, 1960.

382.670. Recording of chattel mortgages. [Repealed.]

Compiler’s Notes.

This section (523b-8) was repealed by Acts 1960, ch. 9, § 2.

382.675. Recording motor vehicle liens. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 82, § 11; 1962, ch. 83, § 18) was repealed by Acts 2006, ch. 242, § 64, effective July 12, 2006.

382.680. Assignment or discharge; recording of. [Repealed.]

Compiler’s Notes.

This section (523b-8, 523b-9,523b-10, 523b-12, 523b-13) was repealed by Acts 1958, ch. 77, Art. 10, § 10-103.

382.690. Waiver or subordination; recording of. [Repealed.]

Compiler’s Notes.

This section (523b-9) was repealed by Acts 1958, ch. 77, Art. 10, § 10-103.

382.700. Fees for recording. [Repealed.]

Compiler’s Notes.

This section (523a-6) was repealed by Acts 1958, ch. 77, Art. 10, § 10-103.

382.710. Removal of mortgaged property from county; release of property from mortgage lien. [Repealed.]

Compiler’s Notes.

This section (523b-14) was repealed by Acts 1958, ch. 77, Art. 10, § 10-103.

382.720. Catchline at repeal: Mortgage invalid after three years unless statement filed; exceptions. [Repealed.]

Compiler’s Notes.

This section (523b-11: amend. Acts 1954, ch. 24, §§ 1 and 2, effective June 17, 1954) was repealed by Acts 1958, ch. 77, Art. 10, § 10-103.

382.730. Foreclosure by federal agencies. [Repealed.]

Compiler’s Notes.

This section (523b-15) was repealed by Acts 1960, ch. 250, § 5.

382.740. Filing security interest in motor vehicle. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 10, § 1) was repealed by Acts 1962, ch. 83, § 21.

382.750. Filing statement that refers to financing statement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 11, § 1) was repealed by Acts 1962, ch. 83, § 21.

382.760. County clerk’s delivery of statement under commercial code. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 11, § 2) was repealed by Acts 1962, ch. 83, § 21.

382.770. Requirement that serial number of property be included in financing statement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 13, § 1) was repealed by Acts 1962, ch. 83, § 21.

382.780. Requirement that financing statement state debt of $200 or more. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 13, § 2) was repealed by Acts 1962, ch. 83, § 21.

382.790. Mandatory termination statement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 53, § 1) was repealed by Acts 1962, ch. 83, § 21.

Private Transfer Fee Obligations

382.792. Definitions for KRS 382.792 to 382.796.

As used in KRS 382.792 to 382.796 :

  1. “Payee” means the person or entity who claims the right to receive or collect a private transfer fee payable under a private transfer obligation;
  2. “Private transfer fee” means a fee or charge payable upon the transfer of an interest in real property, or payable for the right to make or accept the transfer, regardless of whether the fee or charge is a fixed amount or is stated as a percentage of the value of the property, the purchase price, or other consideration given for the transfer. A private transfer fee shall not include:
    1. Any consideration payable by the grantee to the grantor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the grantee based upon any subsequent appreciation, development, or sale of the property if such additional consideration is payable on a one (1) time basis only and the obligation to make such payment does not bind successors in title to the property. For the purposes of this paragraph, an interest in real property may include a separate mineral estate and its appurtenant surface access rights;
    2. Any commission payable to a licensed real estate broker for the transfer of real property pursuant to an agreement between the broker and the grantor or the grantee, including but not limited to any subsequent additional commission for that transfer payable by the grantor or the grantee based upon any subsequent appreciation, development, or sale of the property;
    3. Any interest, charges, fees, or other amounts payable by a borrower to a lender pursuant to a loan secured by a mortgage against real property, including but not limited to any fee payable to the lender for consenting to an assumption of the loan or a transfer of the real property subject to the mortgage, any fees or charges payable to the lender for estoppel letters or certificates, and any shared appreciation interest or profit participation or other consideration and payable to the lender in connection with the loan;
    4. Any rent, reimbursement, charge, fee, or other amount payable by a lessee to a lessor under a lease, including but not limited to any fee payable to the lessor for consenting to an assignment, subletting, encumbrance, or transfer of the lease;
    5. Any consideration payable to the holder of an option to purchase an interest in real property or the holder of a right of first refusal or first offer to purchase an interest in real property for waiving, releasing, or not exercising the option or right upon the transfer of the real property to another person;
    6. Any tax, fee, charge, assessment, fine, or other amount payable to or imposed by a governmental authority;
    7. Any fee, charge, assessment, dues, fine, contribution, or other amount payable to a homeowners’, condominium, cooperative, mobile home, or property owners’ association pursuant to a declaration or covenant or law applicable to such association, including but not limited to fees or charges payable for estoppel letters or certificates issued by the association or its authorized agent;
    8. Any fee, charge, assessment, dues, fine, contribution, or other amount imposed by a declaration or covenant encumbering real property, and payable solely to a nonprofit or charitable organization for the purpose of supporting cultural, educational, charitable, recreational, environmental, conservation, or other similar activities benefiting the real property subject to the declaration or covenant or the community in which the real property is located; and
    9. Any fee, charge, assessment, dues, fine, contribution, or other amount pertaining solely to the purchase or transfer of a club membership relating to real property owned by the member, including but not limited to any amount determined by reference to the value, purchaser price, or other consideration given for the transfer of the real property;
  3. “Private transfer fee obligation” means an obligation arising under a declaration or covenant recorded against the title to real property or under any other contractual agreement or promise, whether or not recorded, that requires or purports to require the payment of a private transfer fee upon a subsequent transfer of an interest in real property; and
  4. “Transfer” means the sale, gift, conveyance, assignment, inheritance, or other transfer of an ownership interest in real property.

History. Enact. Acts 2012, ch. 118, § 1, effective April 11, 2012.

382.794. Private transfer fee obligations prohibited — Liability for damages and costs — Buyer’s waiver of rights void.

On and after April 11, 2012:

  1. Private transfer fee obligations, whether recorded or not, shall be prohibited and any contract, covenant, or other instrument that attempts to create a private transfer fee obligation shall be void and unenforceable as against public policy;
  2. Any person who records or enters into an agreement imposing a private transfer fee obligation in that person’s favor shall be liable for:
    1. Any and all damages resulting from the imposition of the private transfer fee obligation on the transfer of an interest in the real property, including but not limited to the amount of any transfer fee paid by a party to the transfer; and
    2. All attorneys fees, expenses, and costs incurred by a party to the transfer or mortgagee of the real property to recover any private transfer fee paid or in connection with an action to quiet title.

      Where an agent acts on behalf of a principal to record or secure a private transfer fee obligation, liability shall be assessed against the principal rather than the agent; and

  3. Any provision in a contract, covenant, or other instrument that purports to waive the rights of a buyer under this section shall be void.

History. Enact. Acts 2012, ch. 118, § 2, effective April 11, 2012.

382.796. Conspicuous notice of all fees and obligations to be included in real estate purchase contracts — Civil remedies — Buyer’s waiver of rights void.

On and after April 11, 2012:

  1. Any contract or other instrument used for the sale of real property which obligates the buyer to pay a fee to the seller upon the subsequent resale of the real property, whether the fee or charge is a fixed amount or is stated as a percentage of the value of the property, the purchase price, or other consideration given for the subsequent transfer, shall include a conspicuous provision:
    1. Disclosing the existence of the obligation;
    2. Describing the obligation; and
    3. Stating that private transfer fee obligations, as that term is defined in KRS 382.792 , are prohibited under KRS 382.794 ;
  2. A contract or other instrument for the sale of real property subject to the provisions of this section and found not to be in compliance shall be void and shall:
    1. Not be enforceable by the seller against the buyer;
    2. Not subject the buyer to any liability to the seller for any damages; and
    3. Require the seller to return all deposits made in connection with the sale of the real property;
    1. If a private transfer fee obligation is not discovered until after title of the property has passed to the buyer, the buyer may recover any and all damages resulting from the failure to disclose the obligation, including but not limited to: (3) (a) If a private transfer fee obligation is not discovered until after title of the property has passed to the buyer, the buyer may recover any and all damages resulting from the failure to disclose the obligation, including but not limited to:
      1. The amount of any obligation paid by the buyer to the seller, including interest thereon; or
      2. The difference between the market value of the real property if it were not subject to a private transfer fee obligation and the market value of the real property as subject to a private transfer fee obligation; and
    2. Attorneys fees, expenses, and costs incurred by the buyer in seeking the remedies under this section; and
  3. Any provision in a contract, covenant, or other instrument that purports to waive the rights of a buyer under this section shall be void.

History. Enact. Acts 2012, ch. 118, § 3, effective April 11, 2012.

Legislative Research Commission Note.

(4/11/2012). The internal numbering of subsection (3) of this statute has been modified by the Reviser of Statutes from the way it appeared in 2012 Ky. Acts ch. 118, sec. 3, under the authority of KRS 7.136(1). The words in the text were not changed.

Conservation Easements

382.800. Definitions.

As used in KRS 382.810 to 382.860 , unless the context otherwise requires:

  1. “Conservation easement” means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations, the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.
  2. “Holder” means:
    1. A governmental body empowered to hold an interest in real property under the laws of this state or the United States; or
    2. A charitable corporation, charitable association, or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open-space values of real property, assuring the availability of real property for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.
  3. “Third-party right of enforcement” means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association, or charitable trust, which, although eligible to be a holder, is not a holder.

History. Enact. Acts 1988, ch. 251, § 1, effective July 15, 1988.

Research References and Practice Aids

Journal of Mineral Law & Policy.

Comments, Preservation of Kentucky's Diminishing Farmland: A Statutory Analysis, 5 J.M.L. & P. 305 (1989-90).

Journal of Natural Resources & Environmental Law.

Articles, Private Land Use Controls and Biodiversity Preservation in Kentucky, 11 J. Nat. Resources & Envtl. L. 281 (1995-96).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Easements, § 316.00.

382.810. Creation — Acceptance and recordation necessary — Duration — Preexisting property interest.

  1. Except as otherwise provided in KRS 382.810 to 382.860 , a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements.
  2. No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement shall arise under a conservation easement before its acceptance by the holder and a recordation of the acceptance.
  3. Except as provided in KRS 382.820(2), a conservation easement shall be unlimited in duration unless the instrument creating it otherwise provides.
  4. An interest in real property in existence at the time a conservation easement is created shall not be impaired by it unless the owner of the interest is a party to the conservation easement or consents to it.

History. Enact. Acts 1988, ch. 251, § 2, effective July 15, 1988.

382.820. Actions affecting easements.

  1. An action affecting a conservation easement may be brought by:
    1. An owner of an interest in the real property burdened by the easement;
    2. A holder of the easement;
    3. A person having a third-party right of enforcement; or
    4. A person authorized by other law.
  2. KRS 382.810 to 382.860 shall not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity.

History. Enact. Acts 1988, ch. 251, § 3, effective July 15, 1988.

382.830. Validity of easement.

A conservation easement shall be valid even though:

  1. It is not appurtenant to an interest in real property;
  2. It can be or has been assigned to another holder;
  3. It is not of a character that has been recognized traditionally at common law;
  4. It imposes a negative burden;
  5. It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;
  6. The benefit does not touch or concern real property; or
  7. There is no privity of estate or of contract.

History. Enact. Acts 1988, ch. 251, § 4, effective July 15, 1988.

382.840. Applicability and effect.

  1. KRS 382.800 to 382.860 shall apply to any interest created after July 15, 1988, which complies with KRS 382.800 to 382.860 , whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise.
  2. KRS 382.800 to 382.860 shall apply to any interest created before July 15, 1988, if it would have been enforceable had it been created after July 15, 1988, unless retroactive application contravenes the constitution or laws of this state or the United States.
  3. KRS 382.800 to 382.860 shall not invalidate any interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise, that is enforceable under other law of this state.

History. Enact. Acts 1988, ch. 251, § 5, effective July 15, 1988.

382.850. Transfer of easement — Effect on mining operations and on eminent domain powers.

  1. A conservation easement shall not be transferred by owners of property in which there are outstanding subsurface rights without the prior written consent of the owners of the subsurface rights.
  2. A conservation easement shall not operate to limit, preclude, delete or require waivers for the conduct of coal mining operations, including the transportation of coal, upon any part or all of adjacent or surrounding properties; and shall not operate to impair or restrict any right or power of eminent domain created by statute, and all such rights and powers shall be exercisable as if the conservation easement did not exist.

History. Enact. Acts 1988, ch. 251, § 6, effective July 15, 1988.

382.860. Application and construction — Uniformity of interpretation.

KRS 382.800 to 382.860 shall be applied and construed to effectuate its general purpose to make uniform the laws with respect to conservation easements among states enacting them.

History. Enact. Acts 1988, ch. 251, § 7, effective July 15, 1988.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Easements, § 316.00.

Penalties

382.990. Penalties.

  1. Any grantor of a deed or any holder of a note who lodges for record a deed, instrument, or deed assigning a note or a deed of release or an instrument wherein there is a release, and any county clerk or deputy county clerk who receives and permits to be lodged for record any such instrument or deed contrary to the provisions of KRS 382.110 , 382.120 , 382.290 , or 382.360 , shall be guilty of a violation; the clerk or deputy who actually receives and files the instrument for record shall incur the penalty, but no clerk or deputy shall be fined because of any false or erroneous statement in the instrument filed.
  2. Any person who willfully and fraudulently makes affidavit to any statement mentioned in KRS 382.120 , which is false, knowing the statement to be false, shall be guilty of a Class A misdemeanor, and in addition shall be liable to any person who may be injured by the making, filing, recording, or use of the affidavit.
  3. Any person who causes to be recorded in a county clerk’s office a deed, deed of trust, or mortgage in violation of KRS 382.330 , or fails to file the statement required by KRS 382.380 , shall be guilty of a Class A misdemeanor.
  4. Any county clerk who records a deed or mortgage in violation of KRS 382.330 shall be guilty of a violation.
  5. Any county clerk who, by himself or deputy, fails to perform any duty enjoined upon him by any of the provisions of KRS 382.110 , 382.160 , 382.180 to 382.200 , 382.210 , 382.250 , 382.300 to 382.320 , 382.360 , or 382.370 shall be guilty of a violation.
  6. Any person who knowingly and intentionally gives a false name or address in any instrument or assignment mentioned in KRS 382.430 , shall be guilty of a Class A misdemeanor.
  7. Any county clerk who fails to perform his duties under KRS 382.430 , shall be guilty of a violation.
  8. Any person who willfully and fraudulently gives a false statement as to the full actual consideration of property or the full estimated value under KRS 382.135 , shall be guilty of a Class D felony.
  9. Any mortgage holder that fails to file a deed in lieu of foreclosure pursuant to KRS 382.110(9) shall be guilty of a violation.

History. 495, 495a-3, 498, 498a, 511a-3, 522, 4051a: amend Acts 1990, ch. 411, § 5, effective July 13, 1990; 1992, ch. 463, § 44, effective July 14, 1992; 2012, ch. 44, § 2, effective July 12, 2012.

NOTES TO DECISIONS

1.County Clerk.

County clerk properly declined to record a mortgage made to secure future advances to mortgagor or the performance of other obligations than one existing at the date of the mortgage which mortgage did not state the date and maturity of the obligation secured, as provided by KRS 382.330 , and the recording of which would have subjected the clerk to a one-hundred ($100) dollar penalty under subsection (4) of this section. Trio Realty Co. v. Queenan, 360 S.W.2d 747, 1962 Ky. LEXIS 225 ( Ky. 1962 ).

2.Affidavit of Descent.

The legislature anticipated the risk of fraud inherent in the affidavit of descent required by KRS 382.120 because it supplied a statutory cause of action in subsection (2) of this section for an injured party against a person who knowingly makes a false statement in an affidavit of descent. Sirls v. Jordan, 625 S.W.2d 106, 1981 Ky. App. LEXIS 301 (Ky. Ct. App. 1981).

Opinions of Attorney General.

A deed dated in 1884 which does not contain an acknowledgment of the grantor’s signature may not be recorded by the county clerk in view of KRS 382.300 and if the clerk does record it he would be subject to the penalty of this section. OAG 74-717 .

Research References and Practice Aids

Cross-References.

False swearing, punishment for, KRS 432.170 .

CHAPTER 383 Rental of Property — Forcible Entry and Detainer — Uniform Residential Landlord and Tenant Act

383.010. Recovery of rent — Interest — Persons entitled to and liable for.

  1. Rent may be recovered by distress, attachment or action, and shall bear six percent (6%) interest per annum from the time it is due.
  2. If the owner or holder alienates or assigns his estate, term or the rent thereafter to fall due thereon, the alienee or assignee may recover the rent that falls due thereafter.
  3. The personal representative of a person to whom any rent was due and unpaid at the time of his death shall have the same remedy by action or by distress, for the recovery of the arrears of such rent, that the decedent would have had if living.
  4. A person entitled to rents depending upon the life of another may, notwithstanding the death of the latter, have the same remedy, by action or distress, for the rents in arrears, as he might have had if such person were living.
  5. Rent may be recovered from the lessee or other person owing it, or his assignee or undertenant, or the representative of either by any of the remedies given in this chapter. But, the assignee or subtenant shall be liable only for the rent accrued after his interest began.
  6. The same remedies to recover arrearages of rent due on a lease for life or lives shall be allowed as if the lease were for years.

History. 2299, 2304, 2305, 2318, 2319, 2321.

NOTES TO DECISIONS

1.Relationship of Landlord and Tenant.

Where wholesaler, under an agreement, consigned shoes to retailer for sale on commission which was to cover rental of sufficient space for sale and fitting and the agreement contained a provision that the shoes were at all times to belong to the wholesaler and the retailer was to return unsold shoes, the wholesaler was not a subtenant and the retailer’s landlord could not assert a landlord’s lien on the shoes for rent. Mercantile Realty Co. v. Allen Edmonds Shoe Corp., 263 Ky. 597 , 92 S.W.2d 837, 1936 Ky. LEXIS 222 ( Ky. 1936 ).

Where purchaser of property had actual notice of lease, he assumed the relation of landlord and was bound by the terms of the lease. Estes v. Gatliff, 291 Ky. 93 , 163 S.W.2d 273, 1942 Ky. LEXIS 180 ( Ky. 1942 ).

To create the relation of landlord and tenant no particular words were necessary but it was indispensable that it should have appeared to have been the intention of one (1) party to dispossess himself of the premises, and of the other to enter and occupy as the former himself had the right to do, pursuant to the agreement between them. Waller v. Morgan, 57 Ky. 136 , 1857 Ky. LEXIS 23 ( Ky. 1857 ).

2.Recovery of Rent.
3.— Distress.

Bankruptcy court may properly, by summary proceeding, take possession of property seized under distress warrant and administer it, recognizing, however, the landlord’s lien. Louisville Realty Co. v. Johnson, 290 F. 176, 1923 U.S. App. LEXIS 1779 (6th Cir. Ky. 1923 ).

The fundamental element of “distress” is the taking of another’s personal property out of his possession, either for holding or for sale, in order to obtain satisfaction of a past due rent claim and the cutting off of gas and electric service for nonpayment of past due bill was not “distress” as the term is understood in the law of landlord and tenant. Lesher v. Louisville Gas & Electric Co., 49 F. Supp. 88, 1943 U.S. Dist. LEXIS 2818 (D. Ky. 1943 ).

Subsection (2) of this section does not grant to the assignee of a rent note the right of distress. Hutsell v. Deposit Bank of Paris, 102 Ky. 410 , 43 S.W. 469, 19 Ky. L. Rptr. 1481 , 1897 Ky. LEXIS 117 ( Ky. 1897 ).

Where an assignee of rent note procured a distress warrant against a tenant and subtenants, who executed a bond with sureties to discharge the levy, upon motion for judgment against the sureties the court determined that the assignee of a rent note is not entitled to the right of distress, in absence of a statutory provision therefor, unless the lease or land also be included in the assignment. Hutsell v. Deposit Bank of Paris, 102 Ky. 410 , 43 S.W. 469, 19 Ky. L. Rptr. 1481 , 1897 Ky. LEXIS 117 ( Ky. 1897 ).

The law of distress is neither contrary to nor in conflict with the federal and state constitutions, as depriving the tenant of his property without due process of law. Garnett v. Jennings, 44 S.W. 382, 19 Ky. L. Rptr. 1712 (1898).

Subsection (1) of this section does not restrict the remedy of distress to any particular kinds of rent. Ruth v. Robinson, 268 Ky. 843 , 106 S.W.2d 91, 1937 Ky. LEXIS 542 ( Ky. 1937 ).

Distress for rent proceeding is not within purview of KRS 426.006 or any other rule of law requiring that lienees be made parties. Chiquelin v. Linker, 323 S.W.2d 583, 1959 Ky. LEXIS 332 ( Ky. 1959 ). See Swift & Co. v. Campbell, 360 S.W.2d 213, 1962 Ky. LEXIS 218 ( Ky. 1962 ).

The distress remedy is strictly a proceeding in rem. Chiquelin v. Linker, 323 S.W.2d 583, 1959 Ky. LEXIS 332 ( Ky. 1959 ).

Distress remedy provided by this section is a special statutory proceeding complete within itself. Rules of Civil Procedure concerning notice and parties do not apply. Swift & Co. v. Campbell, 360 S.W.2d 213, 1962 Ky. LEXIS 218 ( Ky. 1962 ).

4.— Interest.

Under subsection (1) of this section, judgment against sureties on supersedeas bond for interest from the expiration of the year was proper. Van Meter v. Parker, 43 S.W. 200, 19 Ky. L. Rptr. 1229 (1897).

5.— Forcible Entry and Detainer.

In view of subsection (2) of this section the general rule that in an action of forcible entry and detainer no question of title is involved, does not prevent the tenant, in landlord’s action, from showing that during the tenancy the landlord has conveyed the premises. Roberts v. Asher, 264 Ky. 73 , 94 S.W.2d 289, 1936 Ky. LEXIS 275 ( Ky. 1936 ).

6.— Persons Entitled.

When grantee purchased property he became entitled to all the rights of grantor under existing lease both by assignment of lease to it and under the provisions of subsection (2) of this section and was entitled to the rent. Ventura Hotel Co. v. Pabst Brewing Co., 109 S.W. 354, 33 Ky. L. Rptr. 149 , 1908 Ky. LEXIS 347 (Ky. Ct. App. 1908). See Roberts v. Asher, 264 Ky. 73 , 94 S.W.2d 289, 1936 Ky. LEXIS 275 ( Ky. 1936 ).

A covenant to pay an agreed rent is a covenant which runs with the land and binds both the lessee and the grantee of the reversionary interest, which the grantee or assignee may enforce against the lessee, for the simple and fundamental reason that the grantee by his purchase is vested with all the legal rights and remedies as would have been available to his grantor as against the lessee. Weber v. C. & C. Dry Goods Co., 253 Ky. 439 , 69 S.W.2d 731, 1934 Ky. LEXIS 674 ( Ky. 1934 ).

Under subsection (2) of this section and the principles thereof followed prior to its enactment, a conveyance of a reversion transfers the entire interest in a leasehold including unaccrued rents, for which the assignee or grantee may recover of his vendor’s lessee, who becomes the tenant of such assignee or vendee by virtue of such conveyance or assignment. Weber v. C. & C. Dry Goods Co., 253 Ky. 439 , 69 S.W.2d 731, 1934 Ky. LEXIS 674 ( Ky. 1934 ).

The grantee of the landlord is not a stranger within the meaning of KRS 383.100 which applies only to strangers or the general rule on the subject. Roberts v. Asher, 264 Ky. 73 , 94 S.W.2d 289, 1936 Ky. LEXIS 275 ( Ky. 1936 ).

KRS 383.100 does not prevent the grantee of property from recovering rents accruing after the conveyance, as he is entitled to do under subsection (2) of this section. Carr v. Smith, 281 Ky. 750 , 137 S.W.2d 415, 1940 Ky. LEXIS 107 ( Ky. 1940 ).

Where new owner of property notified tenant to pay rent to her, and that former owner had no authority to collect rents, her failure to take further legal steps to prevent former owner from collecting rents, or to prevent tenant from paying rent to former owner, did not estop new owner from suing to collect rents. Carr v. Smith, 281 Ky. 750 , 137 S.W.2d 415, 1940 Ky. LEXIS 107 ( Ky. 1940 ).

7.— Liability.

Assignee of a lease takes it subject to all covenants contained in it. Meyer Bros.' Assignee v. Gaertner, 106 Ky. 481 , 50 S.W. 971, 21 Ky. L. Rptr. 52 , 1899 Ky. LEXIS 71 ( Ky. 1899 ).

Assignee of lease who takes assignment with landlord’s consent becomes liable for rent subsequently accruing with a lien for its enforcement for one (1) year’s rent, and this liability cannot be put off by him by assignment of remainder of term. Meyer Bros.' Assignee v. Gaertner, 106 Ky. 481 , 50 S.W. 971, 21 Ky. L. Rptr. 52 , 1899 Ky. LEXIS 71 ( Ky. 1899 ). See KRS 383.070 .

The law gives the landlord a superior lien, for not exceeding one (1) year’s rent, due or to become due, on all property of tenant, subtenant, or assignee on the premises, subject to execution; the liability of assignee or subtenant being only for the rent accrued after his interest began. Meyer Bros.' Assignee v. Gaertner, 106 Ky. 481 , 50 S.W. 971, 21 Ky. L. Rptr. 52 , 1899 Ky. LEXIS 71 ( Ky. 1899 ). See KRS 383.070 .

Although at common law the property even of a stranger, if on the leased premises, was, in some circumstances, subject to the landlord’s lien for rent, under Kentucky law only the personal property of the lessee, the assignee, or under tenant or subtenant is liable to distress and wife of tenant who was under no obligation to pay her husband rent or share her proceeds with him was not an assignee or subtenant and her property was not subject to the landlord’s lien for rent. Fite v. Briedenback, 127 Ky. 504 , 105 S.W. 1182, 32 Ky. L. Rptr. 400 , 1907 Ky. LEXIS 159 ( Ky. 1907 ). See First Nat'l Bank v. Trimble, 229 Ky. 280 , 17 S.W.2d 223, 1929 Ky. LEXIS 754 ( Ky. 1929 ).

Subsection (5) of this section changes the common-law rule and permits a recovery of rent from an undertenant or subtenant, as well as an assignee, but only for the rent accrued after his interest began. Bowling v. Garber, 250 Ky. 137 , 61 S.W.2d 1102, 1933 Ky. LEXIS 658 ( Ky. 1933 ).

Subsection (5) of this section does not deal with the extent of the landlord’s lien, but KRS 383.070 is controlling. Bowling v. Garber, 250 Ky. 137 , 61 S.W.2d 1102, 1933 Ky. LEXIS 658 ( Ky. 1933 ).

Where original lessor asserted lien on personal property of subtenant then on premises of store building for 11 months rent by suit and attachment and, before matter was heard by court subtenant paid two (2) months rent and vacated, court should have adjudged a lien on the personal property of the subtenant for the remaining nine months of the term under the sublease although tenant had vacated since KRS 383.070 does not make the lien depend upon the occupancy of the premises but gives a lien for the specified time for rent “due or to become due.” Bowling v. Garber, 250 Ky. 137 , 61 S.W.2d 1102, 1933 Ky. LEXIS 658 ( Ky. 1933 ).

If lessee transfers his whole term or interest or transfers only a part of the premises for the whole term the person to whom he transfers is an assignee of the part transferred to him and as such is bound by the covenants of the original lease to pay the full rent, including the payment of taxes therein provided for, on failure of original lessee to pay them. Condolidated Coach Corp. v. Consolidated Realty Co., 251 Ky. 614 , 65 S.W.2d 724, 1933 Ky. LEXIS 927 ( Ky. 1933 ).

8.Forfeiture of Lease.

Contracts providing for the termination of leases when rent is not paid are universally upheld. Wonder Blue Gem Coal Co. v. Louisville Property Co., 137 Ky. 339 , 125 S.W. 732, 1910 Ky. LEXIS 577 ( Ky. 1910 ). See Buehner v. Kohn, 148 Ky. 831 , 147 S.W. 762, 1912 Ky. LEXIS 540 ( Ky. 1912 ).

Nonpayment of rent does not work forfeiture of lease in absence of express provision to that effect in the contract. Where lease provided for forfeiture upon written notice of cancellation in event of nonpayment of rent, tenant seeking to recover damages for wrongful eviction was not required to allege that he had paid rent. Estes v. Gatliff, 291 Ky. 93 , 163 S.W.2d 273, 1942 Ky. LEXIS 180 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Attachments and distress warrants, bonds for, KRS 425.265 , 426.620 .

Attachments, proceedings on, KRS 425.305 to 425.370 .

Breach of cooperative marketing contract, action against landlord or lessor for, KRS 272.230 .

Controversy between lessor and lessee, forfeitures that do not apply to, KRS 372.130 .

Conveyances for term of more than five years must be recorded to be good against creditor or purchaser for value without notice, KRS 382.080 .

Death of holder of estate, effect of, KRS 395.340 , 395.350 .

Executions on bonds and distress warrants, KRS 426.670 to 426.680 .

Leasehold estates included in general devise, KRS 394.340 .

Leases by state, regulations for, KRS 56.030 , 56.040 .

Oil and gas leases, consolidation of where contingent future interests, or incompetents or minors, are involved, KRS 353.210 to 353.290 .

Oil and gas leases, execution by trustee where contingent future interests are involved, KRS 353.300 to 353.380 .

Redevelopment projects, special rental agreements pending acquisition of property for, KRS 99.250 .

Renting of premises for betting prohibited, penalties, KRS 436.440 .

State lands and buildings, KRS ch. 56.

Tenant paying taxes owed by landlord may recover, KRS 134.080 .

Kentucky Law Journal.

Yeager, Liability of Sublessee and Assignee to Owner for Rent, 32 Ky. L.J. 214 (1944).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

ALR

Validity and construction of statute or ordinance authorizing withholding or payment into escrow of rent for period during which premises are not properly maintained by landlord. 40 A.L.R.3d 821.

383.020. Property subject to distress or attachment for rent — Damages for illegal distraint, attachment, or wrongful removal.

  1. A distress warrant or attachment for rent shall bind, and may be levied upon, any personal property of the original tenant found in the county, and the personal property of the assignee or undertenant found on the leased premises. If the tenant has removed his property to another county, the distress or attachment may be directed to that county.
  2. If property is distrained for any rent not due, or attached for any rent not due or accruing, or taken under any attachment sued out without good cause, the owner of the property may, in an action against the party suing out the warrant of distress or the attachment, recover double damages for the wrongful seizure, and if the property is sold, for double the value thereof.
  3. Any person who wrongfully takes or removes property distrained or attached for rent, from any person having the legal custody of it, shall be liable to the person aggrieved for treble damages, with costs. If the property distrained, after the wrongful taking or removal, comes to the possession of the owner by his wrongful procurement, he shall in like manner be liable to the person aggrieved.

History. 2307, 2312, 2313.

NOTES TO DECISIONS

1.Tenant’s Remedies.

If tenant prefers not to do so, or is unable to replevy or to discharge under KRS 383.063 or suspend under KRS 383.068 , he may bring an action for the recovery of the property under KRS 383.061 , or he may proceed under KRS 411.080 or subsection (2) of this section, or at common law, to recover damages for wrongfully procuring the distress warrant. Board v. Luigart, 150 Ky. 791 , 151 S.W. 9, 1912 Ky. LEXIS 998 ( Ky. 1912 ). See Rothenburger v. Dix, 254 Ky. 107 , 71 S.W.2d 30, 1934 Ky. LEXIS 46 ( Ky. 1934 ).

Instead of suing under subsection (2) of this section the tenant may bring a common-law action for damages against the person wrongfully procuring the distress warrant or attachment and the officer executing same, for the wrongful seizure and sale of his property under the writ; but in such case double damages cannot be recovered. Board v. Luigart, 150 Ky. 791 , 151 S.W. 9, 1912 Ky. LEXIS 998 ( Ky. 1912 ).

2.Nature of Distress.

The distress remedy is strictly a proceeding in rem and is not within the purview of KRS 426.006 or any rule of law requiring that other lienees be made parties. Chiquelin v. Linker, 323 S.W.2d 583, 1959 Ky. LEXIS 332 ( Ky. 1959 ).

3.Property Subject to Distress or Attachment.

Assignee of lease who takes assignment with landlord’s consent becomes liable for rent subsequently accruing with a lien for its enforcement for one year’s rent, and this liability cannot be put off by him by an assignment of remainder of term. Meyer Bros.' Assignee v. Gaertner, 106 Ky. 481 , 50 S.W. 971, 21 Ky. L. Rptr. 52 , 1899 Ky. LEXIS 71 ( Ky. 1899 ). See KRS 383.070 .

The law gives the landlord a superior lien, for not exceeding one year’s rent, due or to become due, on all property of tenant, subtenant, or assignee on the premises, subject to execution; the liability of assignee or subtenant being only for the rent accrued after his interest began. Meyer Bros.' Assignee v. Gaertner, 106 Ky. 481 , 50 S.W. 971, 21 Ky. L. Rptr. 52 , 1899 Ky. LEXIS 71 ( Ky. 1899 ). See KRS 383.070 .

4.Actions for Double Damages.

Where petition for wrongful distress did not recite subsection (2) of this section or conclude to the damage of the plaintiff contrary to the form of the law the court properly refused instruction to jury to find for plaintiff double the value of tenant’s share of tobacco sold under distress warrant if tenants were not indebted to landlord for rent. Garnett v. Jennings, 44 S.W. 382, 19 Ky. L. Rptr. 1712 (1898).

The double damages or double the value of the property sold provided for in subsection (2) of this section is in the nature of a penalty for which the person wrongfully suing out the attachment or distress is alone liable. Board v. Luigart, 150 Ky. 791 , 151 S.W. 9, 1912 Ky. LEXIS 998 ( Ky. 1912 ).

Subsection (2) of this section is a highly penal law, and will not be extended beyond the letter of its terms. Shields' Adm'rs v. Chesser, 167 Ky. 532 , 180 S.W. 968, 1915 Ky. LEXIS 879 ( Ky. 1915 ).

The sale of personal property under an attachment mentioned in this section contemplates a sale in accordance with the provisions of the code and law upon that subject, and not a mere conversion of the property and where wrongful attachment was dismissed after death of plaintiff and the attached property was not sold, plaintiff’s personal representative was not liable for double damages under subsection (2) of this section. Shields' Adm'rs v. Chesser, 167 Ky. 532 , 180 S.W. 968, 1915 Ky. LEXIS 879 ( Ky. 1915 ).

5.Actions on Attachment Bond.

An allegation that defendants caused an attachment and distress to be issued and wrongfully caused said attachment to be levied on tenant’s household goods alleged only the issuance of attachment and levy, and where there was no allegation that distress warrant was issued plaintiff could not recover on attachment bond. Watts v. Hurst, 61 S.W. 261, 22 Ky. L. Rptr. 1703 , 1901 Ky. LEXIS 641 (Ky. Ct. App. 1901).

No action will lie on an attachment bond for maliciously suing out an attachment until the attachment shall have been discharged, and such final disposition of it must be alleged. Watts v. Hurst, 61 S.W. 261, 22 Ky. L. Rptr. 1703 , 1901 Ky. LEXIS 641 (Ky. Ct. App. 1901).

Research References and Practice Aids

Cross-References.

Distraint or attachment without good cause, action and damages for, KRS 411.080 .

Cross-References.

See note to KRS 383.010 . Fite v. Briedenback, 127 Ky. 504 , 32 Ky. L. Rptr. 400 , 105 S.W. 1182, 1907 Ky. LEXIS 159 ( Ky. 1907 ).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Guardian and Ward of Minors, § 261.00.

383.030. Attachment for rent — Procedure.

  1. If any person is liable for rent due not later than one year thereafter, whether payable in money or some other thing, the person to whom the rent is owing or his agent or attorney may file an affidavit in the district court if the amount involved is less than $1,500 and otherwise in the Circuit Court of the county in which the tenement lies, stating that there are reasonable grounds for belief, and that he does believe, that unless an attachment is issued he will lose his rent. The court shall then issue an attachment for the rent against the personal property of the person liable for the rent, to any county the person suing out the attachment may desire. But the attachment shall not issue until the plaintiff has given bond, with good surety, to indemnify the defendant should it appear that the attachment has been wrongfully obtained.
  2. Attachments for rent issued shall be returned before the court issuing the attachment. The proceedings thereon shall be the same as on other attachments according to KRS Chapter 425 and the Rules of Civil Procedure.
  3. The defendant may deny the tenancy or his liability to pay rent, as stated in the affidavit. He may repossess himself of the property by executing bond in a manner similar to that prescribed in KRS Chapter 425, subject to similar proceedings if forfeited, as is prescribed by KRS Chapter 425 and the Rules of Civil Procedure on such a bond.

History. 2302, 2303: amend. Acts 1966, ch. 255, § 263; 1976 (Ex. Sess.), ch. 14, § 311, effective January 2, 1978.

NOTES TO DECISIONS

1.Application.

In a 42 U.S.C.S. § 1983 case in which a renter asserted a Fourth Amendment claim against two deputies because they assisted his landlords in wrongfully seizing all his personal property without due process during the execution of an eviction order, and the deputies appealed the district court’s denial of their motion for summary judgment on the basis of qualified immunity, the deputies pointed to KRS 383.070 , which allowed a landlord lien on a tenant’s personal property to secure payment of rent. Not only was a Fourth Amendment violation clearly established, but, pursuant to KRS 383.030 , § 383.070 merely gives a landlord gives the landlord a lien on the personal property—the lien does not give a landlord carte blanche to take possession of the tenant’s property without going through the proper judicial processes. Cochran v. Gilliam, 656 F.3d 300, 2011 FED App. 0252P, 2011 U.S. App. LEXIS 18448 (6th Cir. Ky. 2011 ).

The remedy under subsection (1) of this section by landlord’s attachment is not available to assignee of note given for rent, where holder of note is not assignee of reversion. Hutsell v. Deposit Bank of Paris, 102 Ky. 410 , 43 S.W. 469, 19 Ky. L. Rptr. 1481 , 1897 Ky. LEXIS 117 ( Ky. 1897 ).

2.Attachment for Rent.

Under subsection (1) of this section, a landlord may have an attachment for rent when there are reasonable grounds for belief, and he does in fact believe, that, unless an attachment issue, he will lose his rent. Porter v. Sparks, 43 S.W. 220, 19 Ky. L. Rptr. 1211 (1897).

Landlord was justified in procuring attachment where he was under impression that unless he did so he would lose lien for rent, and where it also appeared lessee was insolvent and had mortgaged his share of crop without knowledge or consent of lessor of premises. McLemore v. Treadway, 191 Ky. 306 , 230 S.W. 56, 1921 Ky. LEXIS 310 ( Ky. 1921 ). See also Kassel v. Snead, 52 S.W. 1058, 21 Ky. L. Rptr. 777 , 1899 Ky. LEXIS 323 (Kan. Ct. App. 1899); O'Bryan v. Shipp, 53 S.W. 1034, 21 Ky. L. Rptr. 1068 , 1899 Ky. LEXIS 591 (Ky. Ct. App. 1899).

Lessee was not relieved from his original obligation to pay rent under written lease unless he performed the services in lieu of payment under an alleged oral contract and levy on lessee’s personal property under this section was valid. Olympic Realty Co. v. Kamer, 283 Ky. 432 , 141 S.W.2d 293, 1940 Ky. LEXIS 334 ( Ky. 1940 ).

3.— Procedure.

A landlord suing out an attachment for rent under subsection (1) of this section is not held to the same strictness of proof to substantiate the grounds as in a case of attachment to secure payment of an ordinary debt. Kassel v. Snead, 52 S.W. 1058, 21 Ky. L. Rptr. 777 , 1899 Ky. LEXIS 323 (Kan. Ct. App. 1899); Ward v. Grigsby, 55 S.W. 436, 21 Ky. L. Rptr. 1406 , 1900 Ky. LEXIS 516 (Ky. Ct. App. 1900); Clark v. Burton, 106 S.W. 823, 32 Ky. L. Rptr. 559 (1908). See McLemore v. Treadway, 191 Ky. 306 , 230 S.W. 56, 1921 Ky. LEXIS 310 ( Ky. 1921 ).

Under subsection (1) of this section no petition is required and KRS 425.185 through 425.215 need not be followed to obtain attachment for enforcement of a rent claim. Old Blue Ribbon Distillers, Inc. v. Caldwell, 273 Ky. 378 , 116 S.W.2d 653, 1938 Ky. LEXIS 638 ( Ky. 1938 ).

Trial court properly found that a coal mining landlord held a valid first priority landlord’s lien in the tenant’s remaining property because the landlord was not bound by the strict attachment motion requirements and had complied with all the necessary requirements to perfect its lien in the subject property, and the landlord was entitled to 11 months’ rent because it had “sued out” within the 120-day requirement. Taggart Global Operations, LLC v. Elk Horn Coal Co., LLC, 415 S.W.3d 665, 2013 Ky. App. LEXIS 155 (Ky. Ct. App. 2013).

Attachment would be quashed if issued before bond was given. Hucheson v. Ross, 9 Ky. 349 , 1820 Ky. LEXIS 71 ( Ky. 1820 ).

The fact that the justice who issued the attachment had not returned the affidavit and bond to the proper court or had not delivered them to the sheriff with the order of attachment was not sufficient to repel the legal presumption that he performed his duty in taking affidavit and bond. Brandt v. Hyatt, 70 Ky. 363 , 1870 Ky. LEXIS 73 ( Ky. 1870 ).

Before an attachment could issue the affidavit required by the law had to be made. An affidavit was a written declaration, signed and sworn to. Bishop v. McQuerry, 76 Ky. 417 , 1877 Ky. LEXIS 79 ( Ky. 1877 ). See Brandt v. Hyatt, 70 Ky. 363 , 1870 Ky. LEXIS 73 ( Ky. 1870 ).

4.Other Remedies.

Where an attachment was sought to enforce unmatured notes given in consideration of a lease, the creditor asserted that his action was for indemnity for a debt not yet due, and the action was not brought before a justice of the peace, a police judge, or a judge of the quarterly court of the county in which the land was located, the action was under KRS 425.375 and not this section. Bush v. Niblack, 241 Ky. 113 , 43 S.W.2d 505, 1931 Ky. LEXIS 28 ( Ky. 1931 ).

Attachments are summary proceedings, and their technical requisites are strictly construed. Carr v. Smith, 281 Ky. 750 , 137 S.W.2d 415, 1940 Ky. LEXIS 107 ( Ky. 1940 ).

Petition for attachment under KRS 425.185 positively alleging plaintiff’s right to recover rents, and that claim is just, and thereafter alleging that plaintiff “believes she ought to recover,” and the jurat recites that the allegations of petition are true “as she verily believes,” is sufficient to support a general order of attachment. Carr v. Smith, 281 Ky. 750 , 137 S.W.2d 415, 1940 Ky. LEXIS 107 ( Ky. 1940 ).

Opinions of Attorney General.

Where a plaintiff files for attachment under this section the judge of the quarterly court should not collect $5.00 for state tax since there was no original action in quarterly court under this law. Instead, after the return of the attachment by the sheriff to the circuit court, the clerk should collect the state tax of $5.00 before the court proceeds further. Only one state tax of $5.00 is required to be paid in the original action of a case. OAG 63-802 .

Research References and Practice Aids

Cross-References.

Attachments, proceedings on, KRS 425.305 to 425.370 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.040. Distress for rent due in money. [Repealed.]

Compiler’s Notes.

This section (2301, 2306) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.050. Sale of distrained property for rent. [Repealed.]

Compiler’s Notes.

This section (2309) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.060. Replevy of distrained property — Effect of irregular act after distress. [Repealed.]

Compiler’s Notes.

This section (2308, 2310, 2311) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.061. Action to recover possession of distrained property. [Repealed.]

Compiler’s Notes.

This section (C.C. sec. 33, Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.062. Provisions concerning bonds for distress warrants. [Repealed.]

Compiler’s Notes.

This section (C.C. sec. 652, Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.063. Discharge of levy upon execution of bond — Appraisement. [Repealed.]

Compiler’s Notes.

This section (C.C. sec. 653, Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.064. Motion for judgment by bond obligee — Defenses. [Repealed.]

Compiler’s Notes.

This section (C.C. sec. 654, Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.065. Trial of motion made before justice — Appeal. [Repealed.]

Compiler’s Notes.

This section (C.C. sec. 655, Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.066. Trial of motion made in court. [Repealed.]

Compiler’s Notes.

This section (C.C. sec. 656, Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.067. Judgment against defendants — Execution. [Repealed.]

Compiler’s Notes.

This section (C.C. sec. 657, Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.068. Suspension of warrant upon execution of bond. [Repealed.]

Compiler’s Notes.

This section (C.C. sec. 658, Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.070. Lien for rent — Priority of.

  1. A landlord renting premises for farming or coal mining purposes shall have a lien on the produce of the premises rented and the fixtures, household furniture, and other personal property owned by the tenant, or undertenant, after possession is taken under the lease, but the lien shall not be for more than one (1) year’s rent due and to become due, nor for any rent which has been due for more than eleven (11) months.
  2. Every other landlord shall have a lien on the fixtures, household furniture, and other personal property of the tenant or undertenant, from the time possession is taken under the lease, to secure the landlord in the payment of four (4) months’ rent, due or to become due, but such lien shall not be effective for any rent which is past due for more than one hundred and twenty (120) days.
  3. If sued out within one hundred and twenty (120) days from the time the rent is due, a distress or attachment for rent secured by a lien under subsection (1) or subsection (2) shall, to the extent of four (4) months’ rent, be superior to and satisfied before other liens upon the personal property of a lessee, assignee or undertenant, created while the property is on the leased premises, whether the rent accrued before or after the creation of the other liens. If the rent is for premises leased for coal mining purposes, the superiority given the lien by this subsection shall be to the extent of one (1) year’s rent.
  4. If any property subject to a lien under this section is removed openly from the leased premises, without fraudulent intent, and not returned, the landlord’s lien given by this section shall continue on the property so removed only for fifteen (15) days from the date of its removal. The landlord may enforce his lien against the property wherever found.

History. 2316, 2317.

NOTES TO DECISIONS

1.Construction.

In a 42 U.S.C.S. § 1983 case in which a renter asserted a Fourth Amendment claim against two deputies because they assisted his landlords in wrongfully seizing all his personal property without due process during the execution of an eviction order, and the deputies appealed the district court’s denial of their motion for summary judgment on the basis of qualified immunity, the deputies pointed to KRS 383.070 , which allowed a landlord lien on a tenant’s personal property to secure payment of rent. Not only was a Fourth Amendment violation clearly established, but, pursuant to KRS 383.030 , § 383.070 merely gives a landlord gives the landlord a lien on the personal property—the lien does not give a landlord carte blanche to take possession of the tenant’s property without going through the proper judicial processes. Cochran v. Gilliam, 656 F.3d 300, 2011 FED App. 0252P, 2011 U.S. App. LEXIS 18448 (6th Cir. Ky. 2011 ).

This section and KRS 383.080 give the landlord a lien, for not exceeding one (1) year’s rent (now four (4) months), due or to become due, on all property of tenant, subtenant, or assignee on the premises, subject to execution inferior only to valid lien on property when it is brought on the premises; the liability of assignee or subtenant being only for the rent accrued after his interest began. Meyer Bros.' Assignee v. Gaertner, 106 Ky. 481 , 50 S.W. 971, 21 Ky. L. Rptr. 52 , 1899 Ky. LEXIS 71 ( Ky. 1899 ).

This section deals alone with the status, independent of a contract enlarging or restricting it, and it is still competent for the parties to contract with respect to property of the tenant or leased premises. Jones v. Louisville Tobacco Warehouse Co., 135 Ky. 832 , 123 S.W. 307 ( Ky. 1909 ). See In re Wesley Corp., 18 F. Supp. 347, 1937 U.S. Dist. LEXIS 2091 (D. Ky. 1937 ); National Bank of Kentucky v. Kentucky River Coal Corp., 230 Ky. 683 , 20 S.W.2d 724, 1929 Ky. LEXIS 162 ( Ky. 1929 ).

This section and KRS 383.010(5) change the common-law rule and permit a recovery of rent from an undertenant or subtenant, as well as an assignee, but only for the rent accrued after his interest began. Bowling v. Garber, 250 Ky. 137 , 61 S.W.2d 1102, 1933 Ky. LEXIS 658 ( Ky. 1933 ).

2.Application.

Relationship of landlord and tenant between husband and wife gave her, under this section, a lien regardless of the contract between them which was attacked because it was unrecorded. Jones v. Louisville Tobacco Warehouse Co., 135 Ky. 832 , 123 S.W. 307 ( Ky. 1909 ).

3.Occupancy.

This section does not make landlord’s lien depend upon occupancy of premises by tenant or subtenant, but gives lien for specified time for rent due or to become due. Bowling v. Garber, 250 Ky. 137 , 61 S.W.2d 1102, 1933 Ky. LEXIS 658 ( Ky. 1933 ).

4.Rents.

Royalties contracted to be paid by the lessee to the lessor for use of coal property are regarded as rents. Caudill Coal Co. v. Solner Mining Co., 198 Ky. 243 , 248 S.W. 533, 1923 Ky. LEXIS 418 ( Ky. 1923 ).

5.Vesting of Lien.

This section and KRS 383.080 , referring to steps by which lien is enforced, or to conditions under which it may be lost, do not defer vesting of lien until such steps are taken or until such conditions can no longer arise, though lien may be waived or landlord may be estopped from asserting it and landlord was entitled to lien for one (1) year’s rent where 1932 amendment reducing lien to four (4) months’ rent became effective after execution of lease and after tenant took possession. Jones v. Fidelity & Columbia Trust Co., 73 F.2d 446, 1934 U.S. App. LEXIS 2728 (6th Cir. Ky. 1934 ).

6.Property Subject to Lien.

Two (2) methods are given by law to secure liens upon crops to be raised in the future, (1) the one secured by this section, and (2) a mortgage lien created after the crops are pitched. Rives v. Christie, 104 Ky. 82 , 46 S.W. 204, 20 Ky. L. Rptr. 526 , 1898 Ky. LEXIS 126 ( Ky. 1898 ).

Only the personal property of lessee, assignee, undertenant or subtenant is liable for distress for rent, and not personal property owned by wife of tenant which was on leased premises. Fite v. Briedenback, 127 Ky. 504 , 105 S.W. 1182, 32 Ky. L. Rptr. 400 , 1907 Ky. LEXIS 159 ( Ky. 1907 ). See First Nat'l Bank v. Trimble, 229 Ky. 280 , 17 S.W.2d 223, 1929 Ky. LEXIS 754 ( Ky. 1929 ).

Where theater company leased building to amusement company and a receiver appointed for the amusement company continued to operate the business of the amusement company, the ticket receipts from the theater received by the receiver were not personal property since the term personal property was meant only to include tangible personal property and the lessor had no statutory landlord’s lien on the receipts. Louisville Gayety Theater Co. v. Ragan, 186 Ky. 672 , 217 S.W. 929, 1920 Ky. LEXIS 17 ( Ky. 1920 ).

This section did not give landlord’s lien upon the proceeds of sale of tobacco although it gave a lien on the tobacco and a lease contract authorizing tenant to sell the tobacco did not operate to give landlord lien on proceeds deposited in bank. Day's Ex'x v. Traders' Nat'l Bank, 232 Ky. 662 , 24 S.W.2d 576, 1930 Ky. LEXIS 59 ( Ky. 1930 ).

7.Liability of Assignee.

Assignee of lease for storehouse who takes assignment with landlord’s consent becomes liable for rent subsequently accruing with a lien for its enforcement for one (1) year’s (now four (4) months’) rent, and this liability cannot be put off by him by an assignment of remainder of term. Meyer Bros.' Assignee v. Gaertner, 106 Ky. 481 , 50 S.W. 971, 21 Ky. L. Rptr. 52 , 1899 Ky. LEXIS 71 ( Ky. 1899 ).

8.Purchaser Under Distress Remedy.

Where the lien was created after the property was placed on the premises and the property is sold under the distress remedy, the purchaser takes free of the lien. Chiquelin v. Linker, 323 S.W.2d 583, 1959 Ky. LEXIS 332 ( Ky. 1959 ).

9.Possession by Landlord.

Where wife never relinquished landlord’s lien and her husband transferred tobacco crop to her in satisfaction of the lien and she consigned it to a factor for her account under KRS 359.010, the consignment was in line to preserve her dominant equity and when the factor accepted the consignment on her account it undertook as her agent to sell the tobacco on her account alone and to remit to her the proceeds of the sale less commissions and expense in the matter and the 15 day and 120 day provisions of this section had no application since when she took charge of the tobacco to sell it on account of her liens in liquidation of the rent due her from her husband they were merged in her consummated equity and the factor who accepted her consignment, who was her husband’s creditor, was estopped from denying her title to the property. Jones v. Louisville Tobacco Warehouse Co., 135 Ky. 832 , 123 S.W. 307 ( Ky. 1909 ).

10.Preservation of Lien by Suit to Cancel Lease.

A landlord who brought action to enforce his lien for rent under a coal mining lease and to terminate the contract for nonpayment of rent and who was granted an injunction restraining the lessee from disposing of the property on the premises was not required to take out a distress warrant or attachment to preserve his lien but he had no superior lien beyond the rent which had fallen due within 120 days before suit was filed since rent should stop on the filing of petition and landlord having elected to terminate the lease and enjoin lessee from disposing of property he put it out of lessee’s power to operated the leased premises. Wonder Blue Gem Coal Co. v. Louisville Property Co., 137 Ky. 339 , 125 S.W. 732, 1910 Ky. LEXIS 577 ( Ky. 1910 ). See Caudill Coal Co. v. Solner Mining Co., 198 Ky. 243 , 248 S.W. 533, 1923 Ky. LEXIS 418 ( Ky. 1923 ).

11.Failure to Adjudge Lien.

Since judgment obtained by lessors of coal land included rent due under lease, which was adequately secured, they were not prejudiced by trial court’s failure to adjudge them a landlord’s lien on lessee’s mine cars used in their mining operations. North Star Co. v. Howard, 341 S.W.2d 251, 1960 Ky. LEXIS 74 ( Ky. 1960 ).

12.Removal of Property by Lessee.

Landlord, by permitting tenant to remove year’s crop of potatoes from premises, lost whatever landlord’s lien he may have had upon such crop for 1931 rent although 11 months had not expired. Martin v. St. Matthews Produce Exchange, 265 Ky. 26 , 95 S.W.2d 1119, 1936 Ky. LEXIS 445 ( Ky. 1936 ).

13.Vacation of Premises by Lessee.

Original lessor was entitled to lien obtained by suit and attachment on personal property of subtenant of business building for remaining nine (9) months (period now limited to four (4) months) of his term under sublease, although subtenant had vacated premises. Bowling v. Garber, 250 Ky. 137 , 61 S.W.2d 1102, 1933 Ky. LEXIS 658 ( Ky. 1933 ).

14.Waiver of Lien.

Landlord exercising option to take possession and use tenant’s properties and equipment by giving notice was not, as against tenant’s general creditors, entitled to lien for rents accruing after such notice, though injunction prevented taking possession unless giving bond. Kaye v. Macmillan, 60 F.2d 7, 1932 U.S. App. LEXIS 2430 (6th Cir. Ky. 1932 ).

Landlord’s acts and approval of tenant’s ostensible sale of rock asphalt showed waiver of landlord’s lien thereon in favor of buyers. Kaye v. Macmillan, 60 F.2d 7, 1932 U.S. App. LEXIS 2430 (6th Cir. Ky. 1932 ).

15.Priority.

Under this section, giving the landlord a lien for rent on the personal property of the tenant superior to all “valid liens” created before the property was carried on the premises, his lien is superior to the mere claim for the purchase money of the one who sold the articles to the tenant without a conditional sale contract or other purchase money security interest. Kloak Bros. & Co. v. Joseph, 150 Ky. 508 , 150 S.W. 651, 1912 Ky. LEXIS 927 ( Ky. 1912 ).

Materialman’s lien created before property was placed on demised premises took priority over lien of landlord. Louisville Woolen Mills v. Tapp, 239 F. 463, 1917 U.S. App. LEXIS 2228 (6th Cir. Ky. 1917 ). (See also KRS 376.040 .).

Lessor of coal lands was entitled to a line for coal royalties accrued within 11 months prior to his action and his lien had priority to claims not secured by a lien although no distress warrant had been issued. Caudill Coal Co. v. Solner Mining Co., 198 Ky. 243 , 248 S.W. 533, 1923 Ky. LEXIS 418 ( Ky. 1923 ).

Mechanic’s lien on improvements made by lessee after he took possession was inferior to lien of lessor existing under this section to secure the landlord in the payment of rent. Mayfield Planing Mills, Inc. v. Jackson Purchase Stock Yards Co., 248 Ky. 449 , 58 S.W.2d 617, 1933 Ky. LEXIS 236 ( Ky. 1933 ). (Also see KRS 376.040 .).

Landlord was entitled to superior lien to chattel mortgage to extent of four (4) months’ rent, where tenant, while occupying leased hotel, gave mortgage on furniture to secure loan, and thereafter, although not then in default for rent, vacated premises while term had more than two (2) years to run. Dean v. Stillwell, 284 Ky. 639 , 145 S.W.2d 830, 1940 Ky. LEXIS 554 ( Ky. 1940 ).

Under this section liens created after the property is placed on the premises are inferior to the landlord’s lien and there is no provision for the prevailing of such liens against a distress proceeding. Chiquelin v. Linker, 323 S.W.2d 583, 1959 Ky. LEXIS 332 ( Ky. 1959 ).

Trial court properly found that a coal mining landlord held a valid first priority landlord’s lien in the tenant’s remaining property because the landlord was not bound by the strict attachment motion requirements and had complied with all the necessary requirements to perfect its lien in the subject property, and the landlord was entitled to 11 months’ rent because it had “sued out” within the 120-day requirement. Taggart Global Operations, LLC v. Elk Horn Coal Co., LLC, 415 S.W.3d 665, 2013 Ky. App. LEXIS 155 (Ky. Ct. App. 2013).

16.Bankruptcy.

Bankrupt’s lessor of city real estate was entitled to enforce against bankrupt lessee’s assets a lien for one (1) year’s (now four (4) months’) rent to accrue under lease from date of bankruptcy, less rent paid by trustee during such term and further sums received during term to reduce loss. Courtney v. Fidelity Trust Co., 219 F. 57, 1914 U.S. App. LEXIS 1637 (6th Cir. 1914), mdfg. In re J. Sapinsky & Sons, 206 F. 523, 1913 U.S. Dist. LEXIS 1445 (D. Ky. 1913 ), modified, Courtney v. Fidelity Trust Co., 219 F. 57, 1914 U.S. App. LEXIS 1637 (6th Cir. Ky. 1914 ).

Formal proof of claims required by Federal Bankruptcy Act has no application to right of secured creditor to enforce his lien. Courtney v. Fidelity Trust Co., 219 F. 57, 1914 U.S. App. LEXIS 1637 (6th Cir. 1914), mdfg. In re J. Sapinsky & Sons, 206 F. 523, 1913 U.S. Dist. LEXIS 1445 (D. Ky. 1913 ), modified, Courtney v. Fidelity Trust Co., 219 F. 57, 1914 U.S. App. LEXIS 1637 (6th Cir. Ky. 1914 ).

Landlord with statutory lien on personal property of tenant on rented city real estate for one (1) year’s (now four (4) months’) rent to accrue, had right to share in proceeds of sale of such property by bankrupt tenant’s trustee. Courtney v. Fidelity Trust Co., 219 F. 57, 1914 U.S. App. LEXIS 1637 (6th Cir. 1914), mdfg. In re J. Sapinsky & Sons, 206 F. 523, 1913 U.S. Dist. LEXIS 1445 (D. Ky. 1913 ), modified, Courtney v. Fidelity Trust Co., 219 F. 57, 1914 U.S. App. LEXIS 1637 (6th Cir. Ky. 1914 ).

Landlord had lien, under this section, upon bankrupt’s property on leased premises to secure payment of rent due and to become due for one (1) year (now four (4) months) from adjudication. In re J. Bacon & Sons, 224 F. 764, 1915 U.S. Dist. LEXIS 1410 (D. Ky. 1915 ); aff’d. in part and reversed in part Kinkead v. J. Bacon & Sons, 230 F. 362, 1916 U.S. App. LEXIS 1443 (6th Cir. Ky.), cert. denied, 241 U.S. 680, 36 S. Ct. 728, 60 L. Ed. 1234, 1916 U.S. LEXIS 1704 (U.S. 1916).

Bankruptcy court may properly, by summary proceedings, take possession of property seized under distress warrant issued 11 days before bankruptcy on default of rent which occurred within four (4) months of bankruptcy where judicial sale had not yet been made under the distress warrant and administer it, recognizing, however, the landlord’s lien. Louisville Realty Co. v. Johnson, 290 F. 176, 1923 U.S. App. LEXIS 1779 (6th Cir. Ky. 1923 ).

Where judicial sale had been made to the landlord on levy of distress warrant for landlord’s lien prior to filing of bankruptcy, the lien was converted into a title and the purchaser was claiming the property adversely to the bankrupt and his estate so jurisdiction by summary proceeding was lacking and an attack by the trustee on the sale for inadequacy of consideration should have been by plenary suit. In re Kentucky Book Mfg. Co., 30 F. Supp. 400, 1939 U.S. Dist. LEXIS 2042 (D. Ky. 1939 ).

In bankruptcy proceeding landlord’s claim for unpaid rent was a landlord’s lien but was inferior to payments due from bankrupt under unemployment compensation act. In re Auto Electric Repair & Parts Co., 41 F. Supp. 3, 1941 U.S. Dist. LEXIS 2592 (D. Ky. 1941 ). (See KRS 134.420 .).

17.Contract Liens.

In a suit in equity by landlord, who had taken no steps to enforce his landlord’s lien on tobacco raised by tenant on the rented premises within the time prescribed by this section, against creditors of tenant who had obtained attachments and levied on tobacco crop and insurance company to whom tenant had mortgaged the crop under a mortgage reciting that tenant expressly warranted his title in the tobacco against all claims except $450 rent claim on the tobacco, the creditor’s liens took precedence in the proceeds of the tobacco which pending the litigation was sold and the proceeds paid to the court receiver over the unrecorded and hidden lien of landlord in contract executed between the landlord and tenant but the landlord’s lien was superior to mortgage which on its face showed mortgagee had actual knowledge of landlord’s lien. Bowles' Ex'r v. Jones, 123 Ky. 395 , 96 S.W. 1121, 29 Ky. L. Rptr. 1022 , 1906 Ky. LEXIS 193 ( Ky. 1906 ).

Where coal lease provided for payment of royalties during entire term of lease it created a binding contract lien since this section creating a lien for one (1) year’s rent in no wise prevented parties from contracting for a further lien, and statutory lien did not affect contract lien which could be enforced although statutory lien did not exist. National Bank of Kentucky v. Kentucky River Coal Corp., 230 Ky. 683 , 20 S.W.2d 724, 1929 Ky. LEXIS 162 ( Ky. 1929 ). See In re Wesley Corp., 18 F. Supp. 347, 1937 U.S. Dist. LEXIS 2091 (D. Ky. 1937 ).

Where 1931 rent had been covered by tenant’s promissory note and while 1932 crop was being harvested landlord insisted on payment of the rent and tenant agreed in lieu of distress and levy on the crop to turn over the produce house receipts for the 1932 crop to the landlord on the two (2) years’ rent and the produce house issuing the receipts was not a warehouseman but an agent for sale of the crops who had no lien on the crops but had a verbal promise by the tenant made before the crop was planted that it would have an opportunity to collect its debt for fertilizer and seed furnished tenant and the tenant did turn over the receipts to the landlord and paid the 1932 rent pending the action, the landlord did not have a landlord’s lien on the crop as he permitted the crop to be removed and the only rent due had been due for more than 11 months, but only the interest acquired by the pledge of the receipts which was the right tenant had or to the net after the issuer deducted its claim. Martin v. St. Matthews Produce Exchange, 265 Ky. 26 , 95 S.W.2d 1119, 1936 Ky. LEXIS 445 ( Ky. 1936 ).

Where landlord recorded lease of coal land providing provision for lien on personal property of lessee as security for the rent in the county where the land was located and lessee was a Kentucky corporation with its principal office in an other county, a bank who, without actual knowledge of the lease, accepted a chattel mortgage on 50 mine cars of tenant had first lien on the mine cars since it was incumbent upon the landlord to file its contract lien-instrument in the county where the corporation had its principal office to obtain priority over the bank mortgage. North Star Co. v. Howard, 341 S.W.2d 251, 1960 Ky. LEXIS 74 ( Ky. 1960 ).

Cited:

Kentucky Farm & Cattle Co. v. Williams, 140 F. Supp. 449, 1956 U.S. Dist. LEXIS 3484 (D. Ky. 1956 ).

Research References and Practice Aids

Cross-References.

Lien on interest of lessee of mineral rights, for labor and materials furnished, KRS 376.140 .

Kentucky Law Journal.

Lester, Security Interests in Thoroughbred and Standardbred Horses: A Transactional Approach, 70 Ky. L.J. 1065 (1981-82).

Bland, Insolvencies in Farming and Agribusinesses, 73 Ky. L.J. 795 (1984-85).

Sales and Use Tax Planning for the Horse Industry, 78 Ky. L.J. 601 (1989-90).

383.080. Rights of other lienholders on property of tenant as against landlord.

  1. If, after the commencement of any tenancy, a lien is created on the property upon the leased premises liable for rent, the party making or acquiring the lien may remove the property from the premises only after paying to the person entitled to the rent so much as is in arrears, and securing to him so much as is to become due; what is so paid and secured not being more altogether than rent for the period of time for which the landlord has a lien under KRS 383.070 .
  2. If the property is taken under execution or attachment, the officer shall, out of the proceeds of the property found on the leased premises and levied on or taken by him, make payment of the rent payable in money; in an amount equal to that for which the landlord has a lien under KRS 383.070 , unless a bond of indemnity is executed. The plaintiff in the execution or attachment may compel a sale of the property under his process by executing to the officer a bond of indemnity such as provided for in KRS Ch. 425, and the remedy provided in KRS Ch. 425 and the Rules of Civil Procedure, on a bond of indemnity, shall operate in favor of the person to whom the rent is payable or other claimant of the property on the bond.
  3. All valid liens upon the personal property of a lessee, assignee, or undertenant, created before the property is carried upon the leased premises, shall prevail against a distress warrant or attachment for rent.

History. 2314, 2315, 2316: amend. Acts 1966, ch. 255, § 264.

NOTES TO DECISIONS

1.Contract Liens of Landlord.

The lien created by a recorded lease stipulating that the lessor shall have a lien on the fixtures, personal property, and improvements for the rent does not attach to property subsequently acquired by the lessee and placed on the premises as against the creditors of the lessee. Wonder Blue Gem Coal Co. v. Louisville Property Co., 137 Ky. 339 , 125 S.W. 732, 1910 Ky. LEXIS 577 ( Ky. 1910 ).

A landlord did not have a landlord’s lien under KRS 383.070 on the proceeds of the sale of tobacco where he authorized the tenant under a lease contract to sell the tobacco (whether or not it was recorded was not shown) and the lease contract gave him no lien on the proceeds of the sale of the crop which were deposited in a bank who attached the funds to satisfy a judgment acquired by it prior to the lease contract. Day's Ex'x v. Traders' Nat'l Bank, 232 Ky. 662 , 24 S.W.2d 576, 1930 Ky. LEXIS 59 ( Ky. 1930 ).

2.Time of Creation.
3.— Before Placing on Leased Premises.

Materialman’s lien, created before property was placed on demised premises, took priority over lien of landlord. Louisville Woolen Mills v. Tapp, 239 F. 463, 1917 U.S. App. LEXIS 2228 (6th Cir. Ky. 1917 ).

As a general rule, a statutory lien does not take precedence over a prior contractual lien unless the statute clearly shows that the statutory lien is intended to override the prior lien. Indiana Truck Corp. v. Hurry Up Broadway Co., 222 Ky. 521 , 1 S.W.2d 990, 1928 Ky. LEXIS 202 ( Ky. 1928 ).

Bona fide mortgages, duly recorded, are protected against landlord’s liens. Indiana Truck Corp. v. Hurry Up Broadway Co., 222 Ky. 521 , 1 S.W.2d 990, 1928 Ky. LEXIS 202 ( Ky. 1928 ).

Effect of recorded conditional sales contract was to vest title to mine cars in purchaser with lien in favor of seller for the purchaser price and when purchaser placed the cars in a mine he was leasing, the lien of the seller of the mine cars had priority over lien of lessor of the mine for royalties. Montgomery Coal Corp. v. Allais, 223 Ky. 107 , 3 S.W.2d 180, 1928 Ky. LEXIS 290 ( Ky. 1928 ).

Where mortgage lien on furniture was created while the furniture was on leased hotel premises the landlord had a superior lien to the extent of four months rent of $800. Dean v. Stillwell, 284 Ky. 639 , 145 S.W.2d 830, 1940 Ky. LEXIS 554 ( Ky. 1940 ).

Where the seller’s lien for purchase money was recorded before the property was placed in the mine, such lien was entitled to priority over the lessor’s claim for royalty and the lienholder was entitled to a separate sale of the equipment. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

This section expressly provides that all valid liens upon personal property of the lessee created before the property is taken upon the leased premises shall prevail against a distress warrant or attachment for rent. Brunswick-Balke Collender Co. v. Owens, 298 Ky. 469 , 183 S.W.2d 484, 1944 Ky. LEXIS 931 ( Ky. 1944 ).

The legislature by this section has said that a lien created before the property is placed on the premises will not be overcome by a distress action and will continue to exist and be in force though the property is sold at the distress sale and is in the hands of the purchaser. Chiquelin v. Linker, 323 S.W.2d 583, 1959 Ky. LEXIS 332 ( Ky. 1959 ). See Swift & Co. v. Campbell, 360 S.W.2d 213, 1962 Ky. LEXIS 218 ( Ky. 1962 ).

Where owner of ice cream cabinet leased it to restaurant operator who was in arrears with the rent and landlord proceeded by distress to distrain and sell her property within the building including the leased ice cream cabinet the owner whose interest existed before it was placed on the leased premises could recover the ice cream cabinet by an action for claim and delivery against the purchaser. Swift & Co. v. Campbell, 360 S.W.2d 213, 1962 Ky. LEXIS 218 ( Ky. 1962 ).

Research References and Practice Aids

Cross-References.

Attachments and distress warrants, bonds for, KRS 425.265 , 426.620 and 426.670 .

Kentucky Law Journal.

Bland, Insolvencies in Farming and Agribusinesses, 73 Ky. L.J. 795 (1984-85).

383.085. Assistance animals — Reasonable accommodations in dwellings — Limitation of liability — Penalty for misrepresentation of an assistance animal.

  1. As used in this section:
    1. “Assistance animal” means an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. This shall include a service animal specifically trained or equipped to perform tasks for a person with a disability, or an emotional support animal that provides support to alleviate one or more identified symptoms or effects of a person’s disability; and
    2. “Therapeutic relationship” means the provision of care, in good faith, to the person with a disability by:
      1. A licensed clinical social worker who holds a valid, unrestricted state license under KRS 335.100 and who maintains an active practice within the state;
      2. A professional counselor who holds a valid, unrestricted state license under KRS 335.525 and who maintains an active practice within the state;
      3. An advanced practice registered nurse who holds a valid, unrestricted state license under  KRS 314.042 and who maintains an active practice within the state;
      4. A psychologist who holds a valid, unrestricted state license under KRS 319.050 or 319.053 and who maintains an active practice within the state; or
      5. A physician who holds a valid, unrestricted state license under KRS 311.571 and who maintains an active practice within the state. An individual who moves from another state may provide documentation from a health-services provider who is licensed in that state, so long as the person with a disability has an ongoing therapeutic relationship with the provider. This definition shall not include a health-care provider described in this paragraph whose primary service is to provide documentation to a person requesting a reasonable accommodation in exchange for a fee.
  2. A person with a disability may submit a request for a reasonable accommodation to maintain an assistance animal in a dwelling. Unless the person’s disability or disability-related need is readily apparent, the person receiving the request may ask the person making the request to provide reliable documentation of the disability-related need for an assistance animal, including documentation from any person with whom the person making the request has or has had a therapeutic relationship.
  3. Unless the person making the request has a disability or disability-related need for an assistance animal that is readily apparent, a person receiving a request for a reasonable accommodation to maintain an assistance animal in a dwelling shall evaluate the request and any reliable supporting documentation to verify the disability-related need for the reasonable accommodation regarding an assistance animal. The person receiving the request may independently verify the authenticity of any supporting documentation.
  4. A person with a disability who is granted a reasonable accommodation to maintain an assistance animal in a dwelling shall comply with the rental agreement or any rules and regulations of the property owner applicable to all residents that do not interfere with an equal opportunity to use and enjoy the dwelling and any common areas of the premises. The person shall not be required to pay a pet fee or deposit or any additional rent to maintain an assistance animal in a dwelling, but shall be responsible for any physical damages to the dwelling if residents who maintain pets are responsible for physical damages to the dwelling caused by pets. Nothing in this section shall be construed to affect any cause of action against any resident for other damages under the laws of the Commonwealth.
  5. Notwithstanding any other law to the contrary, a landlord shall not be liable for injuries by a person’s assistance animal permitted on the landlord’s property as a reasonable accommodation to assist the person with a disability pursuant to the Fair Housing Act, as amended, 42 U.S.C. secs. 3601 et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. secs. 12101 et seq., and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. sec. 701 , or any other federal, state, or local law.
  6. A person commits the offense of misrepresentation of an assistance animal if the person knowingly:
    1. Misrepresents as a part of a request for a reasonable accommodation to maintain an assistance animal in a dwelling that the person has a disability or disability-related need for the use of an assistance animal;
    2. Makes materially false statements for the purpose of obtaining documentation for the use of an assistance animal in housing;
    3. Provides a document to another falsely stating that an animal is an assistance animal for use in housing;
    4. Fits an animal, which is not an assistance animal, with a harness, collar, vest, or sign that the pet is an assistance animal for use in housing;
    5. Engages in fraud, deceit, or dishonesty in providing documentation to a person as a part of a request for the use of an assistance animal in housing; or
    6. Provides documentation as a part of a request for an assistance animal in housing to a person for the primary purpose of obtaining a fee.
  7. Misrepresentation of an assistance animal is a violation with a fine of up to one thousand dollars ($1,000).

HISTORY: 2018 ch. 49, § 1, effective July 14, 2018; 2019 ch. 145, § 1, effective June 27, 2019.

383.090. Recovery of rent in absence of written contract.

If there is no written contract, a landlord may, by action, recover reasonable satisfaction for the use and occupation of his land. If on the trial a verbal contract reserving rent in a certain amount is proven, the verbal contract shall be evidence of the amount recoverable.

History. 2300.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Accrued Rent Under Implied Promise, Form 309.03.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Accrued Rent Under Verbal Contract, Form 309.02.

383.100. Attornment — When void — When unnecessary.

  1. The attornment of a tenant to a stranger shall be void, unless it be with the consent of the landlord, or pursuant to or in consequence of the judgment of a court.
  2. A conveyance or devise of a rent, reversion or remainder shall be valid without an attornment of the tenant, but no tenant who pays the rent to the grantor before notice of the conveyance shall suffer any damage thereby.

History. 2298.

NOTES TO DECISIONS

1.Construction.

Subsection (1) of this section does not prevent the grantee from recovering rents which fall due after the conveyance and where husband conveyed to wife who notified tenant of conveyance tenant should have paid rent to wife. Carr v. Smith, 281 Ky. 750 , 137 S.W.2d 415, 1940 Ky. LEXIS 107 ( Ky. 1940 ).

2.When Consent Required.

A tenant can, under no circumstances, after the lease and entry under his landlord, attorn to another without his consent, or deny the title or claim under which he entered, whether the title or claim be good or indifferent. Pittsburg, C., C. & S. L. R. Co. v. Dodd, 115 Ky. 176 , 72 S.W. 822, 1903 Ky. LEXIS 88 ( Ky. 1903 ).

Generally, although there are exceptions, a tenant in possession of premises cannot attorn to a stranger or lease the premises from a stranger, or in any manner or way renounce his allegiance to or set up a title hostile to his landlord, without first obtaining the consent of his landlord or renouncing his tenancy by removing from the leased premises. Kentucky Coal Lands Co. v. Baker, 155 Ky. 344 , 159 S.W. 943, 1913 Ky. LEXIS 262 ( Ky. 1913 ).

New owner of property is not a “stranger” within the meaning of this section, and a tenant may attorn to the owner without the former owner’s consent. Carr v. Smith, 281 Ky. 750 , 137 S.W.2d 415, 1940 Ky. LEXIS 107 ( Ky. 1940 ). See Roberts v. Asher, 264 Ky. 73 , 94 S.W.2d 289, 1936 Ky. LEXIS 275 ( Ky. 1936 ).

A tenant could, under no circumstances, after the lease and entry under his landlord, attorn to another without his consent, or deny the title or claim under which he entered, whether the title or claim was good or indifferent. Trabue v. Ramage, 80 Ky. 323 , 4 Ky. L. Rptr. 7 , 1882 Ky. LEXIS 58 (Ky. Ct. App. 1882).

3.Void Attornment.

A tenant may not attorn to a purchaser from the landlord without landlord’s consent until the purchase has been completed by delivery of title. Person who had contracted to purchase land, but who had not as yet received a deed, could not claim possession through an alleged attornment by the tenant of the land, for the purpose of maintaining an action for forcible entry, since he is a stranger and the attornment would be void. Noble v. Neace, 293 Ky. 496 , 169 S.W.2d 308, 1943 Ky. LEXIS 646 ( Ky. 1943 ).

4.Notice.

Under this section the assignee of a coal mining lease is protected in remitting rents or royalties to the original lessor until the receipt of actual notice, as distinguished from the constructive notice acquired by virtue of the recordation of the instrument of transfer, of the transfer of the original lessor’s interest in the lease. Anderson v. Island Creek Coal Co., 297 F. Supp. 283, 1969 U.S. Dist. LEXIS 10855 (W.D. Ky. 1969 ).

5.Assignment of Unmatured Rents.

Where unmatured rents are assigned to a third party, a purchaser of the “reversion” with knowledge of the assignment does not acquire the right to the rents. Tresslar Co. v. Fritts, 665 S.W.2d 314, 1984 Ky. App. LEXIS 466 (Ky. Ct. App. 1984).

Cited:

Great W. Land Mgmt. v. Slusher, 939 S.W.2d 865, 1996 Ky. LEXIS 71 ( Ky. 1996 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Brady, “Expert Testimony in Kentucky”, see article for analysis of court standards regarding expert testimony, 25 N. Ky. L. Rev. 2 (1998).

383.110. Landlord’s lien for money or supplies furnished — Enforcement of lien.

  1. A landlord shall have a superior lien, against which the tenant shall not be entitled to any exemption, upon the whole crop of the tenant raised upon the leased or rented premises to reimburse the landlord for money or property furnished to the tenant to enable him to raise the crop, or to subsist while carrying out his contract of tenancy. But, the lien of the landlord shall not continue for more than one hundred and twenty (120) days after the expiration of the term. If the property upon which there is a lien is removed openly from the leased premises, without fraudulent intent, and not returned, the landlord shall have a superior lien upon the property so removed for fifteen (15) days from the date of its removal, and may enforce his lien against the property wherever found.
  2. The landlord may enforce the lien given in subsection (1) of this section by distress or attachment, in the manner provided in this chapter for the collection of rent and subject to the same liability.

History. 2323, 2324.

NOTES TO DECISIONS

1.Application.

Landlord’s lien for advances under this section applied to sale of supplies and equipment to tenant entered into in contemplation of the tenancy giving it priority over mortgage of crop by tenant. First Nat'l Bank v. Pierce, 199 Ky. 58 , 250 S.W. 497, 1923 Ky. LEXIS 757 ( Ky. 1923 ).

2.Priority.

Tenant could not wrongfully take tobacco from landlord and place it in possession of warehouseman so as to create a lien upon it for warehouse charges superior to landlord’s right in it under this section, or deprive him of the right to have possession restored to him. Brown v. Noel, 52 S.W. 849, 21 Ky. L. Rptr. 648 , 1899 Ky. LEXIS 373 (Ky. Ct. App. 1899).

Evidence disclosed landlord did not have a lien within the meaning of subsection (1) of this section on tobacco crop of tenant and bank was awarded first lien under its mortgage on the crop. Royalty v. Winchester Bank, 264 S.W.2d 657, 1954 Ky. LEXIS 680 ( Ky. 1954 ).

3.Lien Independent of Statute.

Landlord who made advances to tenant upon agreement for lien upon crop, had a lien upon tenant’s share of crop independent of statute, and could enforce lien after 120 days from end of term by general attachment and levy on tenant’s share of crop. Browning v. Crawford, 145 Ky. 279 , 140 S.W. 530, 1911 Ky. LEXIS 843 ( Ky. 1911 ).

4.Enforcement.

Landlord’s lien for advances provided by subsection (1) was not lost where action to enforce was brought within 120 days after tobacco was wrongfully removed by tenant from barn furnished by landlord in compliance with contract although it was not brought within 120 days of removal from leased land on which it was grown. Brown v. Noel, 52 S.W. 849, 21 Ky. L. Rptr. 648 , 1899 Ky. LEXIS 373 (Ky. Ct. App. 1899).

The remedy given by subsection (2) of this section to enforce lien by distress warrant or attachment is simply cumulative and landlord could proceed by an action to enforce his lien as in other cases where liens exist on personal property. Brown v. Noel, 52 S.W. 849, 21 Ky. L. Rptr. 648 , 1899 Ky. LEXIS 373 (Ky. Ct. App. 1899).

Where tenant during period for which lien of landlord for advances existed delivered his interest in crop to landlord as security, the landlord’s lien was thereby preserved the same as if landlord had instituted legal proceedings to enforce lien. Marquess v. Ladd, 100 S.W. 305, 30 Ky. L. Rptr. 1142 (1907). See Jones v. Louisville Tobacco Warehouse Co., 135 Ky. 824 , 121 S.W. 633, 1909 Ky. LEXIS 253 ( Ky. 1909 ); Barlow v. Fuller, 157 Ky. 582 , 163 S.W. 742, 1914 Ky. LEXIS 332 ( Ky. 1914 ); Dark Tobacco Growers' Co-op. Ass'n v. Haddox, 214 Ky. 300 , 283 S.W. 81, 1926 Ky. LEXIS 317 ( Ky. 1926 ).

5.Time Advances Due.

It was incumbent on tenant to pay landlord for advances under this section before leaving premises and where he had made arrangements to move 30 miles away, his crop was all made and the larger part of the corn converted and he was getting ready to get away when distress warrant was sworn out without making arrangements for payment of advances which he admitted he owed, the landlord was authorized to distrain for the advances and tenant could not recover double damages or value for wrongful seizure and sale of crops under KRS 383.020 where the evidence was insufficient to show advances were not to be repaid until crops were sold since the general rule as to advances made without time being fixed for payment become due simultaneously with the promise applied rather than the rule that rent, no time being fixed for payment, is due at end of term. Thomson v. Tilton, 59 S.W. 485, 22 Ky. L. Rptr. 1004 (1900).

Cited:

Garnett v. Jennings, 44 S.W. 382, 19 Ky. L. Rptr. 1712 (1898).

Research References and Practice Aids

Kentucky Law Journal.

Bland, Insolvencies in Farming and Agribusinesses, 73 Ky. L.J. 795 (1984-85).

383.120. Contract for portion of crop for rent — Rights of landlord — Purchasers of crops.

  1. Contracts by which a landlord is to receive a portion of the crop planted or to be planted, as compensation for the use or rent of the land, shall vest in him the right to such a portion of the crop when planted as he has contracted for, though the crop may be planted or raised by a person other than the one contracted with or though a different kind of crop than the one contracted for be planted. For the taking of or injury to any of such crops, the landlord may recover damages against the wrongdoer. The landlord may also have an injunction against any person to prevent the taking or injury of his portion of the crops.
  2. This section does not bar the landlord from his right to the damages against the person contracted with that he may sustain by reason of the land being planted without his assent in a crop other than that contracted for, or not planted at all, or for failure to cultivate the crop in a proper manner.
  3. This section includes a purchaser without notice of a growing crop remaining on the premises, though severed from the land, but does not apply to a purchaser in good faith without notice of a crop, after it has been removed for twenty (20) days from the rented premises on which it was planted.

History. 2325.

NOTES TO DECISIONS

1.Application.

If a cropper, under KRS 383.130 , fails to begin labor contracted to be done by him, or having begun, without good cause fails to continue it, the landlord may maintain forcible detainer and dispossess him; and he might also be entitled to such of the remedies provided in this section as were applicable. Wood v. Garrison, 139 Ky. 603 , 62 S.W. 728, 23 Ky. L. Rptr. 295 , 1901 Ky. LEXIS 3 ( Ky. 1901 ).

Where landlord rents premises to tenant to be cultivated in designated crops and where landlord is to receive portions of the crop, and where custody and control of premises are vested completely in tenant for a specific term, this section only would apply. But where tenant is to furnish labor and landlord everything else, and tenant is to receive either so much in money or given proportion of crops raised as pay for his work, then tenant and his contract come within KRS 383.130 , and tenant is a “cropper,” a term applied to a person hired by landowner to cultivate the land, receiving for his compensation a portion of the crops raised but the entire ownership is in the owner of the land until division. Wood v. Garrison, 139 Ky. 603 , 62 S.W. 728, 23 Ky. L. Rptr. 295 , 1901 Ky. LEXIS 3 ( Ky. 1901 ).

2.Rights of Landlord.

Whether a person was, under the law of Kentucky, a mere cropper under KRS 383.130 or a person who had a contract with property owner under this section, such person or tenant was neither an indispensable or a necessary party to landlord’s action for damage or injury to crop under the Federal Rules of Civil Procedure since the landlord’s right to recover damages is separate and independent of the interest of the tenant and where tenant’s interest in the crops was less than the jurisdictional amount he could not be joined as plaintiff. De Jarnette v. Tennessee Gas Transmission Co., 22 F.R.D. 182, 1958 U.S. Dist. LEXIS 4342 (E.D. Ky. 1958 ).

383.130. Tenancy under contract to labor forfeited by breach.

When a tenant enters or holds premises by virtue of a contract in which it is stipulated that he is to labor for his landlord, and he fails to begin to labor, or if, having begun, without good cause fails to comply with his contract, his right to the premises shall at once cease, and he shall abandon them without demand or notice.

History. 2327.

NOTES TO DECISIONS

1.Construction.

This section should be construed to embrace all contracts of tenancy in which the tenant agrees, in consideration of use and possession of premises, to labor for landlord or make improvements, his services to take the place of rent. Hickman v. Fordyce, 179 Ky. 737 , 201 S.W. 307, 1918 Ky. LEXIS 284 ( Ky. 1918 ).

2.Relationship of Landlord and Tenant.

The mere right of an employe to occupy living quarters belonging to his employer does not create the landlord-tenant relation, and the right to occupy the house terminates when the employe ceases to work; but where the occupation of the living quarters is more than an incident to employment, and the employer has parted with the control of the premises by collecting rent or treating the use as part of the employe’s compensation, the landlord and tenant relation is created. Miracle v. Stewart, 278 Ky. 158 , 128 S.W.2d 613, 1939 Ky. LEXIS 413 ( Ky. 1939 ).

3.Nature of Tenant’s Interest.

In action by landlords against gas company for damages to their lands and crops, whether contract under which tenant raised two acres of corn was such as to bring it under KRS 383.120 or this section was immaterial since in either situation the tenant’s interest in the crop was not a joint interest with that of the landlord and the right of the landlord to recover damages from wrongdoer for taking of or injury to any of such crops was separate and independent of the interest of the tenant so tenant was neither an indispensable or necessary party to an action for injury to the crop within the meaning of the Federal Rules of Civil Procedure and he could not be joined as plaintiff where his interest was less than the jurisdictional amount. De Jarnette v. Tennessee Gas Transmission Co., 22 F.R.D. 182, 1958 U.S. Dist. LEXIS 4342 (E.D. Ky. 1958 ).

4.Termination of Employment as Forfeiture.

Where lease of dwelling by employer to employe provided that it should terminate at once on termination of employment, the court, in forcible detainer action, was without jurisdiction to determine whether employment was terminated in violation of national labor relations act when employe was discharged for union activities, but had jurisdiction, on undenied allegation that employment was terminated, to hold that lease was terminated, since fact that state court has no jurisdiction of questions arising under labor relations act does not deprive it of jurisdiction to determine landlord-tenant questions. Coldiron v. Good Coal Co., 276 Ky. 833 , 125 S.W.2d 757, 1939 Ky. LEXIS 601 ( Ky. 1939 ).

Where coal company extended an indulgence as to paying rent until such time as mine resumed operations or tenant found other employment no new tenancy at will was created requiring one (1) month’s notice to vacate but tenant held over under lease which was to terminate when his employment ceased. Kirk v. Eastern Coal Corp., 285 Ky. 422 , 148 S.W.2d 289, 1941 Ky. LEXIS 403 ( Ky. 1941 ).

5.Remedies of Landlord.

When tenant has failed and refused to perform as agreed, the landlord is entitled to repossess premises under writ of forcible detainer. Hickman v. Fordyce, 179 Ky. 737 , 201 S.W. 307, 1918 Ky. LEXIS 284 ( Ky. 1918 ).

Research References and Practice Aids

Cross-References.

See notes to KRS 383.120 . Wood v. Garrison (1901), 139 Ky. 603 , 62 S.W. 728, 1901 Ky. LEXIS 3 , 23 K.L.R. 295, 139 Ky. 603 , 62 S.W. 728, 1901 Ky. LEXIS 3 .

383.140. Termination of a tenancy at will or by sufferance. [Repealed.]

Compiler’s Notes.

This section (2326) was repealed by Acts 1974, ch. 378, § 45, effective August 1, 1974.

383.150. Tenant wrongfully refusing to deliver possession liable for double rent — When notice unnecessary. [Repealed.]

Compiler’s Notes.

This section (2293) was repealed by Acts 1974, ch. 378, § 45, effective August 1, 1974.

383.160. Holding over beyond term — Tenancy created by — Rights of parties.

  1. If, by contract, a term or tenancy for a year or more is to expire on a certain day, the tenant shall abandon the premises on that day, unless by express contract he secures the right to remain longer. If without such contract the tenant shall hold over, he shall not thereby acquire any right to hold or remain on the premises for ninety (90) days after said day, and possession may be recovered without demand or notice if proceedings are instituted within that time. But, if proceedings are not instituted within ninety (90) days after the day of expiration, then none shall be allowed until the expiration of one (1) year from the day the term or tenancy expired. At the end of that year the tenant shall abandon the premises without demand or notice, or stand in the same relation to his landlord that he did at the expiration of the term or tenancy aforesaid; and so from year to year, until he abandons the premises, is turned out of possession, or makes a new contract.
  2. If by contract a tenancy for less than a year is to expire on a certain day, the tenant shall abandon the premises on that day unless by express contract he secures the right to remain longer. If without such contract the tenant shall hold over he shall not thereby acquire any right to hold or remain on the premises for thirty (30) days after said day, and the possession may be recovered without demand or notice if proceedings are instituted within that time. But, if proceedings are not instituted within thirty (30) days after the day of expiration, then none shall be allowed until the expiration of sixty (60) days from the day the tenancy expired. At the end of that sixty (60) days the tenant shall abandon the premises without demand or notice, or stand in the same relation to his landlord that he did at the expiration of the tenancy aforesaid; and so on from time to time until he abandons the premises, is turned out of possession, or makes a new contract.

History. 2295, 2296.

NOTES TO DECISIONS

1.Construction.

Subsection (1) of this section is for the protection of both landlord and tenant, and where renting is for a year or more, to expire on a named day, the tenant may abandon the premises within 90 days after the term without liability for a longer period than he holds, unless he agrees to remain longer. He is a tenant by sufferance for 90 days and may be expelled without notice within that time, but if permitted to remain longer his tenancy as to time and price is regulated by the original contract. Long's Ex'rs v. Bischoff, 277 Ky. 842 , 127 S.W.2d 851, 1939 Ky. LEXIS 736 ( Ky. 1939 ).

2.Application.

Subsection (1) of this section does not apply to a parol lease void under the law of frauds. Wessells vs Rodifer, 97 S.W. 341, 30 Ky. L. Rptr. 51 , 1906 Ky. LEXIS 345 (Ky. Ct. App. 1906).

This section did not apply to a tenant who was a party to a suit for condemnation and who was awarded compensation for his leasehold but who because of the prolonged litigation between the condemnation and the owner was not disturbed in his tenancy and held over 90 days after its expiration. Harvey v. Board of Education, 202 Ky. 82 , 258 S.W. 956, 1924 Ky. LEXIS 669 ( Ky. 1924 ).

Limitation of this section does not apply where there is holding over of tenancy under contract. Wieck v. Glindmeyer, 229 Ky. 28 , 16 S.W.2d 487, 1929 Ky. LEXIS 672 ( Ky. 1929 ).

A tenancy from month to month is not a lease for the term of one month or a letting by the month which is for a fixed term and for which no notice is required under this section but is a lease for an indeterminate period for which a 30 day notice is required and landlord’s notice to “at once vacate premises” was insufficient to terminate tenancy from month to month. Pack v. Feuchtenberger, 232 Ky. 267 , 22 S.W.2d 914, 1929 Ky. LEXIS 438 ( Ky. 1929 ).

Where tenant lived in a hotel for a number of years but had no written contract with landlord and had under an oral agreement paid $25 per month in advance on or before the 15th day of each month this section did not apply as her occupancy was not under a contract for less than a year terminable on a certain day on which day she was required to surrender the premises without notice from the landlord but was a tenancy from month to month which entitled her to one month’s notice to terminate the lease. Hundley v. Milner Hotel Management Co., 114 F. Supp. 206, 1953 U.S. Dist. LEXIS 3945 (D. Ky. 1953 ), aff'd, 216 F.2d 613, 1954 U.S. App. LEXIS 3010 (6th Cir. Ky. 1954 ).

Where tenant did not extend a commercial lease under its terms which provided for a written notice to exercise its two (2) -year extensions, and where nothing in the lease between the parties suggested that they had elected not to be bound by subsection (1) of this section, neither optional two (2) -year extension was ever created but subsection (1) of this section did create a one-year tenancy. Masterson v. DeHart Paint & Varnish Co., 843 S.W.2d 332, 1992 Ky. LEXIS 182 ( Ky. 1992 ).

Lease’s hold-over clause applied when a landlord did not seek to recover property within 90 days of the lease’s expiration because (1) the lease’s unambiguous holdover terms had to be strictly enforced, (2) there was no reason to resort to statutory gap-filling provisions, and (3) the landlord’s failure to seek inflated rental amounts due under those terms did not invalidate that section’s purpose and effect. Stowe v. REALCO LLC, 551 S.W.3d 462, 2018 Ky. App. LEXIS 136 (Ky. Ct. App. 2018).

3.Adverse Possession.

Where, after expiration of lease, adverse claimant continued on property, presumption was that possession was not hostile but under subsection (1) of this section and would not become adverse until he repudiated landlord’s title and brought knowledge thereof home to him. Fordson Coal Co. v. Mills, 234 Ky. 64 , 27 S.W.2d 382, 1930 Ky. LEXIS 103 ( Ky. 1930 ).

4.Abandonment.

Abandonment of property is an intentional surrender or relinquishment of a claim or right to the property. Harper v. Johnson, 294 S.W.2d 928, 1956 Ky. LEXIS 145 ( Ky. 1956 ).

5.Holding Over.

Where tenant entered and took possession of land to construct a tramway under a writing providing for $35 per year with time of lease not to exceed three years, he was entitled to remain in possession for another year when he held over for 90 days after expiration of the three years and the landlord, under claim that the writing was not a lease but a license or easement, could not dispossess him by giving thirty day notice. Asher v. Johnson, 118 Ky. 702 , 82 S.W. 300, 26 Ky. L. Rptr. 586 , 1904 Ky. LEXIS 93 ( Ky. 1904 ).

Lessee who remained in possession for 90 days after the expiration of the term though its subtenants obtained the right to remain for the whole year holding under the contract, and so on from year to year until the premises were abandoned, or the landlord recovered possession, or made a new contract. Ventura Hotel Co. v. Pabst Brewing Co., 109 S.W. 354, 33 Ky. L. Rptr. 149 , 1908 Ky. LEXIS 347 (Ky. Ct. App. 1908).

A tenant for less than a year on holding over more than 30 days was not entitled to notice, as a prerequisite to the landlord’s right to sue for forcible detainer at the end of 60 days. Buehner v. Kohn, 148 Ky. 831 , 147 S.W. 762, 1912 Ky. LEXIS 540 ( Ky. 1912 ).

Where tenant had remained in possession of land for several years, and then landlord refused to lease to him for year but leased to another, this did not abolish relation of landlord and tenant when tenant continued to remain on the premises. Kentucky Coal Lands Co. v. Baker, 155 Ky. 344 , 159 S.W. 943, 1913 Ky. LEXIS 262 ( Ky. 1913 ).

Where no steps were taken to evict tenant within 90 days after expiration of five year lease in August, 1917, he remained a tenant by sufferance for another year, and suit instituted August 2, 1918 was not premature. Cincinnati, N. O. & T. P. R. Co. v. Depot Lunch Room, 190 Ky. 121 , 226 S.W. 387, 1920 Ky. LEXIS 545 ( Ky. 1920 ).

Lessees who held over for a period of 90 days after the expiration of their seven-year farm lease acquired the right to hold the premises until the expiration of the year, and so on from year to year until they abandoned the premises, were turned out of possession, or made a new contract. Payne v. Woolfolk's Adm'x, 196 Ky. 550 , 245 S.W. 151, 1922 Ky. LEXIS 561 ( Ky. 1922 ).

Forcible detainer proceedings will lie at any time during the first 90 days of the hold-over of a tenant for years and he is not entitled to demand or notice. Pontrich v. Neimann, 208 Ky. 715 , 271 S.W. 1049, 1925 Ky. LEXIS 373 ( Ky. 1925 ).

Purchaser of business from lessee under a one year lease which was not assigned to him could not acquire any rights by remaining over 90 days after expiration of the one year lease as he was a tenant at will when lessor accepted rents from him for no definite period for whom 30 days’ notice in writing to quit was sufficient. Rutherford v. Azarch, 266 Ky. 559 , 99 S.W.2d 719, 1936 Ky. LEXIS 704 ( Ky. 1936 ).

Where a lease is renewed by holding over under this section, it is presumed that the terms of the original lease are carried over into the extension provided by the law. Cass v. Home Tobacco Warehouse Co., 311 Ky. 95 , 223 S.W.2d 569, 1949 Ky. LEXIS 1062 ( Ky. 1949 ).

Where lessee of airport held over each year after the initial one year term for a period of 90 days and paid rent which was accepted by landlord, the holding over, payment and acceptance of rent was not limited to a stay of proceedings under this section but was sufficient to continue all the terms of the contract including an option to purchase. Lexington Flying Service, Inc. v. Anderson's Ex'r, 239 S.W.2d 945, 1951 Ky. LEXIS 914 ( Ky. 1951 ).

Where evidence of rescission of year to year tenancy was vague and contradictory tenant who retained possession for more than 90 days after the day of expiration of the year’s tenancy and planted and harvested corn was entitled to hold over for another year and was not a trespasser. Marshall v. Brann, 295 S.W.2d 574, 1956 Ky. LEXIS 176 ( Ky. 1956 ).

Under this section, once a lease’s terms and the holdover period expire, the landlord has the right to evict a tenant who remains in possession; absent eviction the tenant has a tenancy of sufferance and a tenancy at sufferance is a possessor interest sufficient to trigger the bankruptcy court’s jurisdiction. In re Convenient Food Mart No. 144, Inc., 968 F.2d 592, 1992 U.S. App. LEXIS 14988 (6th Cir. Ky. 1992 ).

District court properly granted summary judgment in favor of defendant on the issue of whether the lease was renewed through July 31, 2010, because plaintiff did not outwardly manifest an intent to exercise the renewal option; without some objective demonstration of intent to exercise the renewal option, plaintiff’s continued occupancy of the farmland was governed by KRS 383.160(1) rather than by the terms of the lease. Ala. Farmers Coop., Inc. v. Jordan, 440 Fed. Appx. 463, 2011 FED App. 0701N, 2011 U.S. App. LEXIS 20238 (6th Cir. Ky. 2011 ).

Plaintiff’s nonpayment of rent for more than a year after the lease expired could not possibly have manifested an intent to renew. Ala. Farmers Coop., Inc. v. Jordan, 440 Fed. Appx. 463, 2011 FED App. 0701N, 2011 U.S. App. LEXIS 20238 (6th Cir. Ky. 2011 ).

Circuit court properly entered summary judgment against a tenant because the tenant did not qualify as a holdover tenant where the lease at issue was for a one-year term starting January 20, 2011, the lease made no mention of a crop year, industry standards, or November 1 as the contract’s end date, the parties treated the contract as continuing after its expiration by operation of law into subsequent three one-year term contracts; thereafter, the tenant did not occupy the land for a period of 90 days after the expiration of the 2014 lease, and the owner and the tenant engaged in fruitless contract negotiations, after which the owner turned the tenant out of possession by informing it that the lands would be leased to another. Smithfield Farms, LLC v. Riverside Developers, LLC, 566 S.W.3d 566, 2018 Ky. App. LEXIS 226 (Ky. Ct. App. 2018).

6.New Agreements.

Where evidence supported finding that tenant holding over after expiration of year to year lease, had entered into new verbal agreement with landlord for month to month tenancy, rights of parties depended on new lease rather than old and landlord was entitled to possession after giving notice. Gaidry's Trustees v. Cooke, 301 Ky. 216 , 191 S.W.2d 390, 1945 Ky. LEXIS 727 ( Ky. 1945 ).

7.Acceptance of Rent After Term.

Acceptance of rent after expiration of original lease, where it is recited that it is received pursuant thereto, does not act as a renewal or extension of original lease. Cincinnati, N. O. & T. P. R. Co. v. Depot Lunch Room, 190 Ky. 121 , 226 S.W. 387, 1920 Ky. LEXIS 545 ( Ky. 1920 ).

Payment and acceptance of rental after original period covered by the written contract did not affect an extension of terms of the contract for additional period. Wieck v. Glindmeyer, 229 Ky. 28 , 16 S.W.2d 487, 1929 Ky. LEXIS 672 ( Ky. 1929 ).

Because a lessee failed to exercise a plain and unambiguous renewal option in accordance with its terms, it became a holdover tenant under KRS 383.160(1), and the lessee was not entitled to a declaration that it held a five-year tenancy and purchase option under the same terms and conditions as set forth in the original lease. The lease did not automatically renew by virtue of the lessee’s continued possession and payment of rent; rather, the renewal provision required the parties to enter a new lease. Ala. Farmers Coop., Inc. v. Jordan, 2010 U.S. Dist. LEXIS 32488 (W.D. Ky. Mar. 31, 2010).

8.Contract or Agreement for Renewal.

Where a lease provided for renewal for a year on the same terms, but that if the tenant held over after the term the tenancy might be terminated at the lessor’s option, the lessee having held over without a new lease, the tenancy was terminable under subsection (1) of this section. Grant v. Collins, 157 Ky. 36 , 162 S.W. 539, 1914 Ky. LEXIS 218 ( Ky. 1914 ).

The occupancy of lessee and the acceptance of the increased rent by lessor, which was more than passivity on her part, for four years after the expiration of the original five year term under a lease providing for renewal for a like term, in strict compliance with the provisions for the renewed term, fully demonstrated that the parties intended to and did use the word “renew” as synonymous with the word “extend” and lessee was entitled to a renewed term of five years and was not guilty of traverse. Klein v. Auto Parcel Delivery Co., 192 Ky. 583 , 234 S.W. 213, 1921 Ky. LEXIS 124 ( Ky. 1921 ).

Instructions properly submitted to the jury the question of whether parties had made any lease renewal contract and whether under the evidence tenant’s continued holding of the premises was an acceptance by it of the contract set forth in letter to him from owner where evidence was sharply in conflict. Vogt v. H. H. Newmark Co., 244 Ky. 91 , 50 S.W.2d 54, 1932 Ky. LEXIS 387 ( Ky. 1932 ).

Lease with privilege of renewal for stated period with rents to be paid monthly was not governed by the law but involved only the construction of the contract and was not to be confused with leases providing for the giving of notice, nor to be governed by the rules applicable to holding after an expiration of a term in which the lease did not provide for either its renewal or extension, but which terminated by its own terms at the expiration of the period covered by it which latter class of lease was governed by this section. Weber v. C. & C. Dry Goods Co., 253 Ky. 439 , 69 S.W.2d 731, 1934 Ky. LEXIS 674 ( Ky. 1934 ).

Ordinarily, a provision in a lease requiring written notice to the lessor of the lessee’s election to exercise his option to renew the lease must be strictly complied with, and the notice must be given at the time and in the manner specified, however, this requirement may be waived by the lessor. Deane v. Mitchell, 312 Ky. 389 , 227 S.W.2d 893, 1950 Ky. LEXIS 652 ( Ky. 1950 ).

9.Liability of Tenant for Rent.

A lessor’s acceptance of monthly rent after the term created a tenancy from month to month, and the tenant did not, by five months’ occupancy, become liable for a year’s rent. Hayes v. Nice Adamo Co., 162 Ky. 223 , 172 S.W. 512, 1915 Ky. LEXIS 48 ( Ky. 1915 ).

Where, during the term of the original lease, the landlord in writing notified the tenant that if he desired to remain in possession of the property for the rest of the year he would be required to pay an advance of $15 per month on the rent, and, although tenant objected to the increase in the rent and declined to execute a new lease at the increased rate, he held over after his term expired and for four months paid the rental monthly in advance at the increased rate, he became bound to the landlord for the balance of the year. Abraham v. Gheens, 205 Ky. 289 , 265 S.W. 778, 1924 Ky. LEXIS 93 ( Ky. 1924 ).

Where what was said to lessee by landlord’s agent was merely an emphatic way of advising him that if he did not like the proposed increase in rental terms for the next year he could move, it could not be construed to have made a new contract between the parties and lessee was not authorized to hold over for whatever period of time he desired and to vacate the premises at any time without any further liability for rent. Abraham v. Gheens, 205 Ky. 289 , 265 S.W. 778, 1924 Ky. LEXIS 93 ( Ky. 1924 ).

10.Contingent Limitation upon Term.

Provision in lease that lessee would surrender possession on payment of specified sum in case of bona fide sale of premises, imposes a contingent limitation upon the term which can be enforced by proceedings to recover possession, and does not limit lessor or his purchaser to a recover of damages. Cincinnati-Louisville Theater Co. v. Masonic Widows' & Orphans' Home, 272 F. 637, 1921 U.S. App. LEXIS 1662 (6th Cir. Ky. 1921 ).

11.Notice.

Where lease expired by its own limitation, no written demand from the landlord for possession was necessary in order to bring an action for forcible detainer. Andrews v. Erwin, 78 S.W. 902, 1904 Ky. LEXIS 278 ( Ky. 1904 ).

Where original lease for one year was not in writing and contained no option permitting lessee to retain the farm for another year it was within the statute of frauds and although lessee had performed certain work on the farm preparatory to the raising of other crops he had no right to remain in possession beyond the first year and notice to him to surrender possession at the end of the year, although given, was unnecessary. Gault v. Carpenter, 187 Ky. 25 , 218 S.W. 254, 1920 Ky. LEXIS 73 ( Ky. 1920 ).

Agreement between tenant and lessor that he should occupy the premises until the rent of the house and garden reimbursed him for his expense in repairing the house, but that he would surrender it at once if lessor sold the place fixed a definite time for the termination of the lease in event of sale and an agreement at the end of that year that tenant rented the farm for the following year for a part of the crop fixed a definite and determinate ending and neither agreement would under this section require a notice to quit. Slusher v. Lawson, 198 Ky. 358 , 248 S.W. 888, 1923 Ky. LEXIS 454 ( Ky. 1923 ).

Where proceedings had been timely instituted, Kentucky law did not require written notice to tenant in order for landlord to repossess the premises. In re Convenient Food Mart No. 144, Inc., 968 F.2d 592, 1992 U.S. App. LEXIS 14988 (6th Cir. Ky. 1992 ).

12.Removal of Improvements.

Where lease of flying field for one year contained clause permitting lessee to remove hangar at end of term, and lessee continued in possession of field for two years after expiration of lease, lessee would have right to remove hangar at termination of tenancy regardless of whether lease had been specifically renewed. Anderson v. Lexington, 301 Ky. 855 , 192 S.W.2d 361, 1946 Ky. LEXIS 500 ( Ky. 1946 ).

13.Priority of Lien for Rent.

Where holding over for three months created new tenancy from year to year, lien for rent accruing under new tenancy is inferior to materialman’s lien for property on premises at time second tenancy was created. Louisville Woolen Mills v. Tapp, 239 F. 463, 1917 U.S. App. LEXIS 2228 (6th Cir. Ky. 1917 ).

14.Purchase Option.

Where the lease confers the right to purchase at any time during the term, the option may be exercised during an extended or renewed term, acquired under an option in the lease for an extension or renewal on the terms and conditions of the original lease. Masterson v. George, 2007 Ky. App. LEXIS 252 (Ky. Ct. App. Aug. 10, 2007).

Cited:

American Coal Land Co. v. Miller, 182 Ky. 51 , 206 S.W. 18, 1918 Ky. LEXIS 313 ( Ky. 1918 ); Parker v. Smith, 211 Ky. 624 , 277 S.W. 986, 1925 Ky. LEXIS 935 ( Ky. 1925 ).

Research References and Practice Aids

Kentucky Law Journal.

Adkins, Damages — Some Situations in Which the Plaintiff is Not Required to Minimize Damages, 36 Ky. L.J. 134 (1947).

ALR

Binding effect on tenant holding over of covenants in expired lease. 49 A.L.R.2d 480.

383.170. Buildings destroyed without fault of tenant — Replacement of, and rent on.

Unless the contrary is expressly provided for in the written contract, the agreement of a lessee that he will repair or leave the premises in repair shall not bind him to erect similar buildings if, without his fault or neglect, the buildings are destroyed by fire or other casualty. A tenant, unless he otherwise contracts, shall not be liable for the rent for the remainder of his term of any building leased by him, and destroyed during the term by fire or other casualty without his fault or neglect.

History. 2297.

NOTES TO DECISIONS

1.Construction.

The provision of this section that “unless the contrary be expressly provided for in the writing, no agreement of a lessee that he will repair, or leave the premises in repair, shall have the effect of binding him to erect similar buildings, if without his fault or neglect, the same may be destroyed by fire, or other casualty,” has reference to cases where there is a partial loss by fire or other casualty, as well as where there is a total loss. Sun Ins. Office v. Varble, 103 Ky. 758 , 46 S.W. 486, 20 Ky. L. Rptr. 556 , 1898 Ky. LEXIS 122 ( Ky. 1898 ).

2.Liability of Lessee to Replace or Repair.

Provision of contract to surrender at end of term in as good order and condition as now could not make lessee liable for replacement of buildings destroyed by fire. Bentley v. Ballard & Herring, 162 Ky. 622 , 172 S.W. 1079, 1915 Ky. LEXIS 139 ( Ky. 1915 ).

Tenant who was not obligated under agreement to keep property in repair, was not obligated under this section to restore property in dilapidated condition. Walker v. Cosgrove, 209 Ky. 768 , 273 S.W. 450, 1925 Ky. LEXIS 596 ( Ky. 1925 ).

Where contract required lessees to keep building in good repair, the duty of restoring it to tenantable condition when it was rendered temporarily untenantable even by unforeseen casualty, but no extensive repairs were required, was on lessees. Abrams v. Simon, 243 Ky. 773 , 49 S.W.2d 1031, 1932 Ky. LEXIS 195 ( Ky. 1932 ).

3.Recovery by Lessee for Repairs.

The reasonable cost of repairs made by lessee to storehouse with the approval of lessor following a fire which practically destroyed the building could be recovered by lessee from lessor where facts were insufficient to show lessee was negligent although lease provided lessee should keep the building in repair and return it in as good condition as it was with ordinary wear and tear excepted. Hazard Bank & Trust Co. v. Hazard Mercantile Co., 220 Ky. 165 , 294 S.W. 1034, 1927 Ky. LEXIS 488 ( Ky. 1927 ).

4.Duty of Lessor to Repair or Rebuild.

No obligation was imposed by this section on the landlord to restore roof destroyed by wear and tear and in absence of a provision in the lease the common law applied and tenant could not set off the cost of replacing the roof against the rent although lease imposed no obligation on lessee to restore roof destroyed by wear and tear. Thomas v. Conrad, 114 Ky. 841 , 71 S.W. 903, 24 Ky. L. Rptr. 1630 , 1903 Ky. LEXIS 37 ( Ky. 1903 ).

This section does not impose an obligation upon the landlord to repair or rebuild, but its purpose was to modify the rigor of the common law, and to relieve the tenant from the liability to rebuild under covenant that he would keep the premises in repair, and to relieve him from the payment of rent during remainder of term if the leased building was destroyed by fire or other casualty without his fault or neglect. Thomas v. Conrad, 114 Ky. 841 , 71 S.W. 903, 24 Ky. L. Rptr. 1630 , 1903 Ky. LEXIS 37 ( Ky. 1903 ).

Under this section and an ordinance of the city of Louisville preventing construction of frame buildings, a lessee of a frame building who held an insurance policy on the building under covenant in lease that he was to rebuild in case of fire was excused from rebuilding when the premises was destroyed by fire. Albers v. Norton Co., 147 Ky. 187 , 144 S.W. 8, 1912 Ky. LEXIS 229 (Ky.), modified, 147 Ky. 751 , 145 S.W. 757, 1912 Ky. LEXIS 348 ( Ky. 1912 ).

Tenant was under no obligation to restore wall which fell because of excavation on adjoining lot since there was no distinct provision in the lease for repair upon such a casualty. King & Metzger v. Cassell, 150 Ky. 537 , 150 S.W. 682, 1912 Ky. LEXIS 943 ( Ky. 1912 ).

This section exempts tenants from duty to reconstruct a collapsed wall, though the lease required the tenants to return the premises in as good condition as when received, accident, etc., excepted. King & Metzger v. Cassell, 150 Ky. 537 , 150 S.W. 682, 1912 Ky. LEXIS 943 ( Ky. 1912 ).

Where a lease, complete in its terms, does not provide that the landlord shall repair the premises, a subsequent agreement for repairs is without consideration. King & Metzger v. Cassell, 150 Ky. 537 , 150 S.W. 682, 1912 Ky. LEXIS 943 ( Ky. 1912 ).

Where lessee gave lessor a lump sum bonus of $1,000 for the lease or “business location” and obligated himself to pay the regular rentals of $150 per month for 10 years or so long as he continued to use and hold the premises and there was no covenant by lessor against fire or to rebuild in case of fire, when a substantial part of the leased building was destroyed by fire a clause in the lease “it being understood, however, that all extraordinary repairs required on said building shall be done by the lessor at his expense,” did not require lessor to rebuild as the word “repair” does not include the word “rebuild.” Nixon v. Gammon, 191 Ky. 175 , 229 S.W. 75, 1921 Ky. LEXIS 263 ( Ky. 1921 ).

Where lease provided lessor was not required to rebuild if premises were destroyed by fire, lessor was entitled to declare lease terminated after fire and was not obligated to rebuild where the destruction was substantial since “destroyed” under the lease meant the same as under this section which has been construed to mean substantial. Winter v. Taylor, 224 Ky. 827 , 7 S.W.2d 209, 1928 Ky. LEXIS 673 ( Ky. 1928 ).

5.Destruction by Fire.

There can be no doubt that where only walls or parts of walls were left standing by fire there was a “practical destruction of building” for storeroom purposes and court did not err in refusing to submit the question to the jury. Hazard Bank & Trust Co. v. Hazard Mercantile Co., 220 Ky. 165 , 294 S.W. 1034, 1927 Ky. LEXIS 488 ( Ky. 1927 ).

6.Negligence of Lessee.

Fact that there was a dance in progress on the upper floor of the building and that no one representing lessee was present was wholly insufficient to show negligence of lessee. Hazard Bank & Trust Co. v. Hazard Mercantile Co., 220 Ky. 165 , 294 S.W. 1034, 1927 Ky. LEXIS 488 ( Ky. 1927 ).

7.Lessee’s Liability for Rent.

Where admitted by demurrer that representation of agent that, regardless of contract provision to contrary, statute would stop rent in case of destruction of hotel, was falsely and fraudulently made, payments under contract falling due after burning of hotel cannot be collected. Headley v. Pickering, 64 S.W. 527, 23 Ky. L. Rptr. 905 , 1901 Ky. LEXIS 477 (Ky. Ct. App. 1901).

Tenant is entitled to an abatement of rent if one of several buildings on leased premises is destroyed by fire or other cause without fault or neglect on his part, even though group of buildings were rented for one fixed sum. Scott Bros. v. Flood's Trustee, 124 Ky. 739 , 99 S.W. 967, 30 Ky. L. Rptr. 955 , 1907 Ky. LEXIS 234 ( Ky. 1907 ).

Under this section the tenant is relieved of rent for the remainder of his term if the premises are destroyed by fire but his right to contract otherwise is recognized. Montanus v. Buschmeyer, 158 Ky. 53 , 164 S.W. 802, 1914 Ky. LEXIS 592 ( Ky. 1914 ).

Liability of lessee for accruing rent was not extinguished, unless the building was rendered untenantable by an unforeseen casualty and the burden of proof was on lessee. Abrams v. Simon, 243 Ky. 773 , 49 S.W.2d 1031, 1932 Ky. LEXIS 195 ( Ky. 1932 ).

Neither this section nor the contract relieved lessee’s liability for rent where no damage was done to building by nearby fire and the only damage was temporary soaking of the premises with water. Abrams v. Simon, 243 Ky. 773 , 49 S.W.2d 1031, 1932 Ky. LEXIS 195 ( Ky. 1932 ).

All that is necessary to release the tenant is that the building be damaged to such an extent as to destroy its usefulness for the purpose for which he occupied it, and the landlord failed to repair the building within a reasonable time. Smith v. Gillen, 245 S.W.2d 596, 1952 Ky. LEXIS 597 ( Ky. 1952 ).

Lessees were not excused from payment of rent when building erected by individual to whom lessee had subleased part of the building in violation of lease was destroyed by fire. Venters v. Reynolds, 354 S.W.2d 521, 1961 Ky. LEXIS 13 ( Ky. 1961 ).

Where following a flood the tenant gave notice of its intent to cancel the lease but after the notice padlocked the premises and refused to give entry to the owner, the lessee retained possession of the property and was liable for the rent prescribed by the lease. Brunswick Corp. v. Goodie Inv. Inc., 451 S.W.2d 421, 1970 Ky. LEXIS 393 ( Ky. 1970 ).

8.Liability of Purchaser.

Where the purchaser of commercial property at a foreclosure sale was bound to honor leases in effect, it was entitled to a deposit made by one of the tenants made after the sale since the purchaser would be responsible for the return of the deposit if the premises were destroyed. Francis Co. v. Lincoln Federal Bldg. & Loan Asso., 445 S.W.2d 153, 1969 Ky. LEXIS 153 ( Ky. 1969 ).

9.Dissolution of Lease.

Unless leased premises are destroyed the lease is not dissolved, and the rights of lessor and lessee remain unaffected. Jones v. Fowler Drug Co., 120 Ky. 157 , 85 S.W. 721, 27 Ky. L. Rptr. 558 , 1905 Ky. LEXIS 79 (Ky. Ct. App. 1905).

10.Tenant’s Right to Possession.

Where room covered by lease was not injured by fire in building, that tenant may elect to retain possession under lease. Jones v. Fowler Drug Co., 120 Ky. 157 , 85 S.W. 721, 27 Ky. L. Rptr. 558 , 1905 Ky. LEXIS 79 (Ky. Ct. App. 1905).

11.Ordinary and Extraordinary Repairs.

Ordinary repairs are such as result from ordinary wear and tear of the building and its decay but extraordinary repairs are something greater than this or such as are made necessary by some unusual or unforeseen occurrence which does not destroy the building but merely renders it less suited to the use for which it was intended. Nixon v. Gammon, 191 Ky. 175 , 229 S.W. 75, 1921 Ky. LEXIS 263 ( Ky. 1921 ).

12.Eminent Domain.

The majority rule that taking of property under eminent domain terminates the lease and the reciprocal obligations thereof is consonant with the spirit of this section. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

Research References and Practice Aids

Cross-References.

Removal of improvements after expiration of estate, KRS 381.450 .

Waste, action and damages for, KRS 381.350 to 381.420 .

ALR

Condition of premises within contemplation of provision of lease or statute for termination of lease in event of destruction of or damage to property as result of fire, calamity, the elements, act of God, or the like. 61 A.L.R.2d 1445.

383.180. Conveyance of greater estate than owned, and assignment of tenancy — Effect.

  1. A conveyance made by a tenant for years, purporting to grant a greater estate than he has, shall not work a forfeiture of his estate, but shall pass to the grantee all the estate which the tenant could lawfully convey.
  2. Unless the landlord consents thereto in writing, every assignment, or transfer of his term or interests in the premises, or any portion thereof, by a tenant at will or by sufferance, or one who has a term less than two (2) years, shall operate as a forfeiture to the landlord. The landlord, after having given the occupant ten (10) days’ written notice to quit, may reenter and take possession, or may, by writ of forcible entry or detainer, or the proper procedure, recover possession of the premises from any occupant.

History. 2291, 2292.

NOTES TO DECISIONS

1.Application.

A contract which gives absolutely to tenant a certain fixed period and at the end of such term the option to extend the lease for a year at a time but not to exceed a given number of years is a contract for more than one year, and the landlord cannot oust his tenant under the terms of this section. Foreman Auto. Co. v. Morris, 198 Ky. 1 , 248 S.W. 486, 1922 Ky. LEXIS 437 ( Ky. 1 922 ).

Subsection (2) of this section did not apply to a lease of a building with the privilege of renewal for a year at a time for not more than 20 years with a provision obligating lessee to renew as long as it retained a designated car agency but under which lessee could continue the lease without continuing the agency as the lease was one for more than one year. Foreman Auto. Co. v. Morris, 198 Ky. 1 , 248 S.W. 486, 1922 Ky. LEXIS 437 ( Ky. 1 922 ).

The word “term” is intended to and refers to the original time for which the lease was to continue, and a tenant who originally had a term for two years or more could not be dispossessed under this section even though he had occupied the premise for a portion of the time and the remaining part was less than two years at the time of transfer. Foreman Auto. Co. v. Morris, 198 Ky. 1 , 248 S.W. 486, 1922 Ky. LEXIS 437 ( Ky. 1 922 ).

Subsection (2) of this section did not apply to a coal mining lease for a term of only one year, that contained a right that within one year the lessee could purchase the property. Hogg v. Forsythe, 198 Ky. 462 , 248 S.W. 1008, 1923 Ky. LEXIS 461 ( Ky. 1923 ).

2.Conveyance of Greater Estate than Owned.

A deed by the life tenant purporting to convey the fee only passes a life estate. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

An attempt by the life tenant to convey the fee does not affect the remainderman or his interest. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

While by the common law a tenant for life who executed a deed conveying the property in fee accelerated the remainder and gave the remainderman an immediate right of entry, this was remedied in this state by law prior to 1852. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

All that tenant in possession under lease could convey by deed was his tenancy. Fordson Coal Co. v. Wells, 245 Ky. 291 , 53 S.W.2d 564, 1932 Ky. LEXIS 591 ( Ky. 1932 ).

Where the only interest a widow had in property was her homestead right, her conveyance to son could pass only that right and not a fee simple title. Howard v. Mitchell, 268 Ky. 429 , 105 S.W.2d 128, 1936 Ky. LEXIS 775 ( Ky. 1936 ).

Deed of gift by parents to daughter of land occupied by them as tenants was fraudulent and void since they had nothing to convey. Kentucky River Coal Corp. v. Combs, 269 Ky. 365 , 107 S.W.2d 241, 1937 Ky. LEXIS 601 ( Ky. 1937 ).

3.Assignment.

Where a tenant having a term of one year assigned to another for the same term a portion of the rented premises, the assignee has a right of action against the assignor for failing to put him in possession, and the fact that the landlord refused to consent to the transfer constitutes no defense, for, although such a transfer without the written consent of the landlord operates under the law as a forfeiture to him, that fact does not render the transfer void as between the parties. Thompson v. Gray, 15 Ky. L. Rptr. 783 (1893).

The assignee of a tenant can obtain no greater rights as against his landlord than the tenant himself possessed. American Coal Land Co. v. Miller, 182 Ky. 51 , 206 S.W. 18, 1918 Ky. LEXIS 313 ( Ky. 1918 ).

Where written coal lease was for a term of two years, with privilege of extending the same for three years longer, an assignment under subsection (2) of this section did not operate as a forfeiture of the lease to the lessor. Addison v. Brandenburg, 202 Ky. 580 , 260 S.W. 381, 1924 Ky. LEXIS 767 ( Ky. 1924 ).

As lease was assignable without landlord’s consent, provision for extension of rental period passed to assignees when lease was assigned even though lease did not so provide. Edwards-Pickering Co. v. Rodes, 203 Ky. 95 , 261 S.W. 884, 1924 Ky. LEXIS 854 ( Ky. 1924 ).

Lease for two years or more is assignable, unless the right to transfer is restrained by terms of lease. Cities Service Oil Co. v. Taylor, 242 Ky. 157 , 45 S.W.2d 1039, 1932 Ky. LEXIS 235 ( Ky. 1932 ).

Restrictive covenant on the right to sublease did not prevent an assignment of a lease for 10 years or require compliance with conditions prescribed for subleasing as it at most merely constituted a ground for forfeiture at the option of the lessor which could be waived or relinquished by accepting rental from the assignee with knowledge of the assignment. Cities Service Oil Co. v. Taylor, 242 Ky. 157 , 45 S.W.2d 1039, 1932 Ky. LEXIS 235 ( Ky. 1932 ).

Where in seeking cancellation of lease the lessor charged violations of the contract by lessee’s attempted transfer of his lease without consent of lessor or his assignee, proof failed in that respect though it was shown that a third person had opened a new entry toward the right of the main entry of lessee under some sort of working agreement but lessor had knowledge of it and accepted royalties under it. Robinson v. Bailey, 278 Ky. 57 , 128 S.W.2d 179, 1939 Ky. LEXIS 374 ( Ky. 1939 ).

4.Subletting.

Sale of grazing privilege by lessee of land was not a subletting as contemplated by law so as to cause a forfeiture. Wright v. Shipp, 72 S.W. 1132, 24 Ky. L. Rptr. 1989 (1903).

A lease by a tenant for a term less than two years of a wall for advertising purposes, without the landlord’s consent, was void as to the landlord; and, the painting of the sign upon the wall by the sublessee being unlawful, the sublessee became liable to the landlord for the thereby sustained damages. Louisville Gunning System v. Parks, 126 Ky. 532 , 104 S.W. 331, 31 Ky. L. Rptr. 917 , 1907 Ky. LEXIS 70 ( Ky. 1907 ). See Louisville Gunning System v. Knighton, 104 S.W. 332, 31 Ky. L. Rptr. 923 (1907).

A provision in a lease against subletting without the written consent of the lessor may be waived by the parties. Sale v. Smith & Nixon Co., 147 Ky. 146 , 143 S.W. 737, 1912 Ky. LEXIS 173 ( Ky. 1912 ).

When a tenant or lessee conveys land to a third party, the third party becomes a subtenant and is bound by terms of lease of original tenant. Kentucky River Coal Corp. v. Combs, 269 Ky. 365 , 107 S.W.2d 241, 1937 Ky. LEXIS 601 ( Ky. 1937 ).

Lease of building and lot for lunch and drink establishment, containing prohibition against underletting, was not violated by tenant’s temporarily leasing space in front room to others during flood, where tenant retained control over the premises. Grassham v. Robertson, 277 Ky. 605 , 126 S.W.2d 1063, 1939 Ky. LEXIS 688 ( Ky. 1939 ).

5.Tenant at Will.

Attempted transfer by tenant at will would operate as forfeiture to owner. Niagara Fire Ins. Co. v. Layne, 162 Ky. 665 , 172 S.W. 1090, 1915 Ky. LEXIS 143 ( Ky. 1915 ).

Cited:

Haase v. Schickner, 92 S.W. 949, 29 Ky. L. Rptr. 87 (1906); Harrison v. Martin, 272 Ky. 307 , 114 S.W.2d 112, 1938 Ky. LEXIS 118 (1938).

Research References and Practice Aids

Cross-References.

Deed or warranty attempting to convey a greater estate than grantor has, effect of, KRS 381.150 .

Tenant for life conveying greater estate, effect, KRS 381.150 .

383.190. Death of tenant for life — Effect on lease of tenant for year.

If a tenant for life lets the land to another for the year and dies after March 1, the lessee shall hold the land until December 31 following, but shall pay a reasonable rent from the death of the tenant for life.

History. 3864.

Research References and Practice Aids

Cross-References.

Apportionment of rents on death of holder of estate, KRS 395.360 .

Holder of estate, effect of death of, KRS 395.340 , 395.350 .

383.195. Termination of tenancy at will or by sufferance.

In those jurisdictions where the Uniform Residential Landlord and Tenant Act is not in effect, a tenancy at will or by sufferance may be terminated by the landlord giving one (1) month’s notice, in writing, to the tenant requiring him to remove.

History. Enact. Acts 1984, ch. 176, § 44, effective July 13, 1984.

Compiler’s Notes.

The Uniform Residential Landlord and Tenant Act is compiled as KRS 383.500 to 383.715 .

NOTES TO DECISIONS

1.Burglary Defense.

Postconviction relief should have been granted because appellant received ineffective assistance of counsel based on advice to plead guilty to second-degree burglary under KRS 511.030 by determining, without any research, that the absence of an ownership or rental agreement negated any lawful status on the premises; this rendered the plea not knowingly and voluntarily entered into. There was no dispute that appellant legally resided at the location at issue, and a showing of a tenancy-at-will that was not terminated would have constituted a defense against the burglary charge. Farmer v. Commonwealth, 2012 Ky. App. LEXIS 221 (Ky. Ct. App. Oct. 19, 2012).

2.Forcible Detainer.

By operation of Ky. Rev. Stat. Ann. § 383.195 , the tenant's tenancy and right of possession did not terminate until one month after being notified to remove himself from the premises, and as a result, he could not have been guilty of forcible detainer until after his right of possession ended. Shinkle v. Turner, 496 S.W.3d 418, 2016 Ky. LEXIS 329 ( Ky. 2016 ).

Property owner had no statutory right to commence the forcible detainer action where the tenant's one-month period to vacate had not yet ended. Shinkle v. Turner, 496 S.W.3d 418, 2016 Ky. LEXIS 329 ( Ky. 2016 ).

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

Forcible Entry and Detainer

383.200. Definitions of forcible entry and detainer.

  1. The words “possession,” “entry,” “detainer,” in KRS 383.200 to 383.285 , refer to lands and tenants.
  2. A forcible entry is:
    1. An entry without the consent of the person having the actual possession;
    2. As to landlord, an entry upon the possession of his tenant at will or by sufferance, whether with or without the tenant’s consent.
  3. A forcible detainer is:
    1. The refusal of a tenant to give possession to his landlord after the expiration of his term; or of a tenant at will or by sufferance to give possession to the landlord after the determination of his will;
    2. The refusal of a tenant of a person who has made a forcible entry to give possession, on demand, to the person upon whose possession the forcible entry was made;
    3. The refusal of a person who has made a forcible entry upon the possession of one who acquired it by a forcible entry to give possession, on demand, to him upon whose possession the first forcible entry was made;
    4. The refusal of a person who has made a forcible entry upon the possession of a tenant for a term to deliver possession to the landlord, upon demand, after the term expires; and, if the term expires whilst a writ of forcible entry sued out by the tenant is pending, the landlord may, at his cost and for his benefit, prosecute it in the name of the tenant.

History. C. C. 452: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Construction.

Neither the title nor the legal right to possession is involved in a forcible entry proceeding, but, if the relation of landlord and tenant exists, an action of forcible detainer may be maintained by one having the right to possession. Moore v. Ramsey, 272 Ky. 582 , 114 S.W.2d 1101, 1938 Ky. LEXIS 165 ( Ky. 1938 ).

2.Question of Title.

Forcible entry and detainer proceedings do not in any wise involve the title to land in dispute, but simply whether the entry was without the consent of the person having actual possession. Caldwell v. McVean, 119 Ky. 30 , 82 S.W. 992, 26 Ky. L. Rptr. 948 , 1904 Ky. LEXIS 139 ( Ky. 1904 ).

Question of title cannot be tried in action of forcible entry and detainer. Lovely v. Stacey, 171 Ky. 338 , 188 S.W. 389, 1916 Ky. LEXIS 348 ( Ky. 1916 ).

3.Definition of Tenant.

Tenant is defined as one who occupies the lands or premises of another in subordination to that other’s title and with his assent, express or implied. Alexander v. Gardner, 123 Ky. 552 , 96 S.W. 818, 29 Ky. L. Rptr. 958 , 1906 Ky. LEXIS 179 ( Ky. 1906 ).

4.Forcible Entry.

A forcible entry is one without the consent of person having actual possession. Although appellant had right of entry, if appellee was in actual possession when entry was made without his consent, appellant was guilty of forcible entry. Young v. Young, 109 Ky. 123 , 58 S.W. 592, 58 S.W. 593, 1900 Ky. LEXIS 187 ( Ky. 1900 ).

None but those in actual possession when the forcible entry is made can maintain the writ, neither right of possession nor constructive possession will avail. Cuyler v. Estis, 64 S.W. 673, 23 Ky. L. Rptr. 1063 (1901).

If a tenancy be determined and the tenant has gone away and locked up the house, consenting that the legal owner, either in person or by his tenants, should take possession of the property, and he does so, under such a state of case he would not be guilty of forcible entry. Robinson v. Marshall, 78 S.W. 904, 25 Ky. L. Rptr. 1785 (1904).

Refusal to abide by arbitration decision did not constitute a forcible entry by party in possession both before and after arbitration, since agreement to arbitrate was not a surrender of actual possession. Hord v. Sartain, 86 S.W. 692, 27 Ky. L. Rptr. 796 (1905).

Actual possession by agent is sufficient to enable party to maintain action for forcible entry. McCormick v. McDowell, 121 Ky. 832 , 90 S.W. 541, 28 Ky. L. Rptr. 854 , 1906 Ky. LEXIS 261 ( Ky. 1906 ).

Defendant cannot justify an entry of land in possession of another by showing title or right of entry. McCormick v. McDowell, 121 Ky. 832 , 90 S.W. 541, 28 Ky. L. Rptr. 854 , 1906 Ky. LEXIS 261 ( Ky. 1906 ).

Only legitimate inquiry on trial of forcible entry is whether defendant entered upon land which at the time was in the actual possession of plaintiff. McCormick v. McDowell, 121 Ky. 832 , 90 S.W. 541, 28 Ky. L. Rptr. 854 , 1906 Ky. LEXIS 261 ( Ky. 1906 ).

Where land was vacant, both appellant and appellees had deeds, appellees, by their agent, first took possession and fenced land in, and appellant knocked fence down, made an entry and fenced lot in, appellant was clearly guilty of forcible entry under this section. Check v. Reiter, 102 S.W. 287, 31 Ky. L. Rptr. 249 (1907).

In proceedings of forcible entry, it does not matter how one gains possession of land, he is entitled to hold it until ousted by proper legal proceedings. Holman v. Parsons, 162 Ky. 454 , 172 S.W. 920, 1915 Ky. LEXIS 92 ( Ky. 1915 ).

In order to maintain an action of forcible entry, plaintiff must at the time of the alleged forcible entry be in actual possession, that is, in the occupancy, of the premises, and neither right of possession nor constructive possession is sufficient. Lovely v. Stacey, 171 Ky. 338 , 188 S.W. 389, 1916 Ky. LEXIS 348 ( Ky. 1916 ).

Where plaintiff was neither in actual occupancy of premises nor did the relation of landlord and tenant exist, an action of forcible entry does not lie and trial court erred in not directing a verdict in favor of defendant. Lovely v. Stacey, 171 Ky. 338 , 188 S.W. 389, 1916 Ky. LEXIS 348 ( Ky. 1916 ).

In forcible entry action, only question is whether defendant forcibly entered upon and was depriving plaintiff of possession. Conley v. Shepherd, 237 Ky. 128 , 35 S.W.2d 5, 1931 Ky. LEXIS 562 ( Ky. 1931 ).

Where it is established that defendant did not make a forcible entry, but came into possession of premises by lease, only the landlord could prosecute an action for forcible detainer against him. Hargis v. All-States Realty Co., 278 Ky. 82 , 128 S.W.2d 213, 1939 Ky. LEXIS 383 ( Ky. 1939 ).

Grantee who had not acquired title because deed had not been delivered could not maintain forcible entry action against grantor and tenant’s attornment to grantee was void under KRS 383.100 . Noble v. Neace, 293 Ky. 496 , 169 S.W.2d 308, 1943 Ky. LEXIS 646 ( Ky. 1943 ).

Action of forcible entry protects merely the actual possession of real estate to a party having such possession, regardless of how such possession was acquired, and neither title nor value is involved. Ledford v. Hall, 181 F.2d 494, 1950 U.S. App. LEXIS 2627 (6th Cir. Ky. 1950 ).

5.Possession.

Lease is admissible in evidence to show extent of possession thereunder. Clark v. Langenbach, 130 F. 755, 1904 U.S. App. LEXIS 4216 (6th Cir. Ky. 1904 ).

A widow who had surrendered her homestead under duress and in ignorance of her rights, although she had a right of entry and a suit was pending to determine title, was guilty of forcible entry when she took peaceable possession without consent, of vacant and locked house which was in actual possession of her nephew by marriage. Young v. Young, 109 Ky. 123 , 58 S.W. 592, 58 S.W. 593, 1900 Ky. LEXIS 187 ( Ky. 1900 ).

Generally, any overt acts indicating a purpose to occupy and not to abandon the premises, will satisfy the requirements as to possession. Robinson v. Marshall, 78 S.W. 904, 25 Ky. L. Rptr. 1785 (1904).

Where land in question was an island which plaintiff rented to tenants through an agent who controlled the land, plaintiff had possession even though land was not occupied by tenant at time of defendant’s entry. McCormick v. McDowell, 121 Ky. 832 , 90 S.W. 541, 28 Ky. L. Rptr. 854 , 1906 Ky. LEXIS 261 ( Ky. 1906 ).

Where a claimant enters upon land under a deed describing a boundary with sufficient accuracy that it can be run by a surveyor, and the boundary lines have been located and plainly marked, he is in actual possession to the full extent of the boundary described in his deed so long as he is in the actual possession of any part thereof claiming the whole, except insofar as portions thereof are held adversely by actual occupancy and user. New York-Kentucky Oil & Gas Co. v. Miller, 187 Ky. 742 , 220 S.W. 535, 1920 Ky. LEXIS 199 ( Ky. 1920 ).

Mortgagor who was in possession of land became tenant of landlord when mortgagee purchased the land at a foreclosure sale and the mortgagee who was then the landlord could obtain possession of the premises by forcible detainer. Pemberton v. Hardin, 258 Ky. 538 , 80 S.W.2d 589, 1935 Ky. LEXIS 204 ( Ky. 1935 ).

6.Procedure.

The procedure for forcible entry and detainer cases is provided in KRS 383.200 to 383.285 ; and is exclusive of all other remedies. Mayhew v. Kentucky River Coal Corp., 238 Ky. 509 , 38 S.W.2d 452, 1931 Ky. LEXIS 283 ( Ky. 1931 ). See Hoskins v. Morgan, 249 Ky. 576 , 61 S.W.2d 30, 1933 Ky. LEXIS 563 ( Ky. 1933 ).

A forcible entry and detainer action is intended to be a summary action, with procedures clearly limited by the provisions of this chapter; a trial court cannot expand upon these procedures by ordering discovery pursuant to such an action. Baker v. Ryan, 967 S.W.2d 591, 1997 Ky. App. LEXIS 90 (Ky. Ct. App. 1997).

7.Forcible Detainer.

Question of title is not involved in a forcible detainer action but only the right to possession so a judgment is not a bar to an action to recover property. Weber v. Grand Lodge, F. & A. M., 169 F. 522, 1909 U.S. App. LEXIS 4599 (6th Cir. Ky. 1909 ), cert. denied, 215 U.S. 606, 30 S. Ct. 406, 54 L. Ed. 346, 1909 U.S. LEXIS 1955 (U.S. 1909), overruled in part, Lindsey v. Greene, 649 F.2d 425, 1981 U.S. App. LEXIS 13180 (6th Cir. Ky. 1981 ).

Trustee of tenant in bankruptcy had no salable interest in lease or premises where tenant who was found guilty in an action of forcible detainer failed to file traverse. In re Van Da Grift Motor Car Co., 192 F. 1015, 1912 U.S. Dist. LEXIS 1847 (D. Ky. 1912 ).

In order to maintain writ of forcible detainer the relation of landlord and tenant must exist in some form. Cuyler v. Estis, 64 S.W. 673, 23 Ky. L. Rptr. 1063 (1901). See Alexander v. Gardner, 123 Ky. 552 , 96 S.W. 818, 29 Ky. L. Rptr. 958 , 1906 Ky. LEXIS 179 ( Ky. 1906 ); Lovely v. Stacey, 171 Ky. 338 , 188 S.W. 389, 1916 Ky. LEXIS 348 ( Ky. 1916 ).

Where lessee of distillery failed to pay the state and county tax at the time they became due this operated ipso facto to terminate his lease and his landlord was entitled to resort to the writ of forcible detainer to regain possession of his premises. Walker v. Dowling, 68 S.W. 135, 24 Ky. L. Rptr. 179 (1902).

Where lease specified five (5) year term, but provided that if lessee shall fail to clear, fence and cultivate land by certain date he shall forfeit all claim thereunder, no written notice or demand was necessary to bring action for forcible detainer. Andrews v. Erwin, 78 S.W. 902, 1904 Ky. LEXIS 278 ( Ky. 1904 ).

Where a lease expired by its own limitation, no written demand from landlord for possession was necessary in order to bring an action for forcible detainer. Andrews v. Erwin, 78 S.W. 902, 1904 Ky. LEXIS 278 ( Ky. 1904 ).

Where plaintiff first brought forcible entry action upon which verdict of not guilty was returned and then brought forcible detainer action, lower court did not err in excluding verdict and judgment of first action in second action. Johnson v. Gordon, 118 S.W. 372 ( Ky. 1909 ).

If possessor’s entry was forcible, having been made upon the possession of a tenant for a term, the landlord, after expiration of the term, upon demand and refusal, may maintain forcible detainer proceedings against such occupant. American Coal Land Co. v. Miller, 182 Ky. 51 , 206 S.W. 18, 1918 Ky. LEXIS 313 ( Ky. 1918 ).

Mortgagee was not required to secure a writ of possession in foreclosure suit where mortgagor agreed to surrender possession on stated dates and mortgagee suffered him to live on premises until those dates, since after mortgagee purchased the premises at foreclosure sale the relationship of landlord and tenant existed and consequently forcible detainer was the proper proceeding to obtain possession of the premises. Pemberton v. Hardin, 258 Ky. 538 , 80 S.W.2d 589, 1935 Ky. LEXIS 204 ( Ky. 1935 ).

Rule requiring plaintiff to have actual possession of property in order to maintain forcible detainer does not apply where landlord seeks to evict tenant. Pemberton v. Hardin, 258 Ky. 538 , 80 S.W.2d 589, 1935 Ky. LEXIS 204 ( Ky. 1935 ).

Subdivision (3)(a) of this section would not provide the basis for a forcible detainer action against the former owner of certain property who remained on the property after its sale unless the court determined as a matter of law that the former owner was a tenant at sufferance. Emmons v. Madden, 781 S.W.2d 529, 1989 Ky. App. LEXIS 155 (Ky. Ct. App. 1989).

District court erred by entering a judgment of forcible detainer against the tenant, thereby ordering the tenant to vacate a gas station and convenience store which it had leased from the landlord; the Petroleum Marketing Practices Act, 15 U.S.C.S. §§ 2801-2806, preempted state forcible detainer statutes, at least as applied to petroleum franchise agreements, and it was therefore improper for the district court to evict the tenant under state law, KRS 383.200(3)(a), Wis. Stat. § 799.40(1). Zad, LLC v. Bulk Petroleum Corp., 368 S.W.3d 122, 2012 Ky. App. LEXIS 76 (Ky. Ct. App. 2012).

Circuit court erred in affirming an order of eviction because the executive director of the housing authority, in filing the forcible detainer complaint and appearing at the hearing, was not acting on her own behalf but rather in the interest of the housing authority; thus, the executive director was engaging in the unauthorized practice of law. Hornsby v. Hous. Auth. of Dry Ridge, 566 S.W.3d 587, 2018 Ky. App. LEXIS 306 (Ky. Ct. App. 2018).

Rules dictate what is and is not the unauthorized practice of law and the courts are required to follow them; a forcible detainer complaint is a pleading that must be filed and practiced by an attorney. Hornsby v. Hous. Auth. of Dry Ridge, 566 S.W.3d 587, 2018 Ky. App. LEXIS 306 (Ky. Ct. App. 2018).

Some housing authorities authorize their executive directors to file and proceed with forcible detainer actions on behalf of the housing authority in the absence of a licensed attorney; trial courts, however, are not at liberty to circumvent or evade the rules and statutory provisions by turning a blind eye to the requirements for the sake of expedience. Hornsby v. Hous. Auth. of Dry Ridge, 566 S.W.3d 587, 2018 Ky. App. LEXIS 306 (Ky. Ct. App. 2018).

Circuit court erred in affirming the district court’s order finding a son guilty of forcible detainer because the district court lacked subject matter jurisdiction over the case since the parties did not have a landlord-tenant relationship; the mother held a possessory interest in the property through a life estate, and the son owned the same property through a remainder Cole v. Vincent, 2019 Ky. App. LEXIS 190 (October 25, 2019).

8.— Subtenant.

In forcible detainer action where first tenant assigned five (5) year lease to second party, subtenant held as entering, though not immediately, under the landlord, and as subject to all remedies existing against first tenant. Haase v. Schickner, 92 S.W. 949, 29 Ky. L. Rptr. 87 (1906).

Where defendant entered into possession under plaintiff’s tenant, she is guilty of forcible detainer, whether she entered with or against the consent of the tenant, having refused to vacate the premises upon demand of landlord after tenant’s term had expired. Johnson v. Gordon, 118 S.W. 372 ( Ky. 1909 ).

Where original tenant died and his brother took over premises on same day, action of forcible detainer will lie after expiration of original term whether taking was with or without consent of original term whether taking was with or without consent of original tenant. American Coal Land Co. v. Miller, 182 Ky. 51 , 206 S.W. 18, 1918 Ky. LEXIS 313 ( Ky. 1918 ).

Subtenant must be held as entering, though not immediately, under the landlord, and as such subject to all the remedies existing against the first tenant and is subject to forcible detainer. Cohen v. Henderson, 203 Ky. 32 , 261 S.W. 845, 1924 Ky. LEXIS 841 ( Ky. 1924 ).

In forcible detainer the only issue is right of possession regardless of the title and where landlord leased property under a written lease and lessee sublet, the relationship of landlord and tenant existed between the landlord and the sublessee and a direct contract between the landlord and the sublessee was not necessary. Baker v. Burton, 268 Ky. 358 , 104 S.W.2d 1081, 1937 Ky. LEXIS 456 ( Ky. 1937 ).

Cited:

Tolbert v. Young, 172 Ky. 269 , 189 S.W. 209, 1916 Ky. LEXIS 192 ( Ky. 1916 ); Chapman v. Baker, 312 Ky. 138 , 226 S.W.2d 769, 1950 Ky. LEXIS 603 ( Ky. 1950 ); Ferguson v. Housing Authority of Middlesboro, 499 F. Supp. 334, 1980 U.S. Dist. LEXIS 15935 (E.D. Ky. 1980 ); Hodges v. Metts, 676 F.2d 1133, 1982 U.S. App. LEXIS 19620 (6th Cir. 1982).

Opinions of Attorney General.

KRS 142.011 (repealed) imposes a tax of $15.00 upon each traverse of forcible entry or detainer. OAG 74-789 .

Where an organization establishes a temporary shelter in which individuals and families who have lost their homes or rental properties due to loss of income, condemnation or eviction can reside for seven (7) to ten (10) days without cost until they find new permanent residences, the organization cannot resort to a forcible detainer action pursuant to KRS 383.200 through KRS 383.285 , if the families fail to leave at the end of the period, since there is no landlord and tenant relationship sufficient to bring the families under KRS 383.505 through KRS 383.715 because there is no rental agreement that includes consideration to be paid by the persons using the shelter, as defined by subdivision (10) of KRS 383.545 , and because the persons receiving the shelter would not have the exclusive possession of the dwelling unit necessary to qualify them as “tenants” as defined in subdivision (15) of KRS 383.545 ; however, the organization could file a complaint for criminal trespass in the first degree, pursuant to KRS 511.060 . OAG 81-210 .

A proposed ordinance containing a provision allowing a landlord the right to immediately terminate a lease based on a tenant’s dangerous conduct was in conflict with the Uniform Residential Landlord and Tenant Act, KRS 383.505 to 383.715 , and the forcible entry and detainer provisions of KRS 383.200 et seq., and would, therefore, be invalid if enacted. OAG 83-251 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, Forcible Detainer In Kentucky Under The Residential Landlord and Tenant Act, 63 Ky. L.J. 1046 (1974-1975).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Forcible Detainer Complaint (AOC 216), Form 310.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

ALR

Retaliatory eviction of tenant for reporting landlord’s violation of law. 23 A.L.R.5th 140.

383.205. Time when tenancy created immaterial.

It is not material whether the tenant shall have received possession from his landlord or have become his tenant after obtaining possession.

History. C.C. 453: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Source of Possession.

In forcible detainer, direct contract between plaintiff and defendant is not necessary. All that is requisite, is tenancy, whether possession was received from landlord or not. Baker v. Burton, 268 Ky. 358 , 104 S.W.2d 1081, 1937 Ky. LEXIS 456 ( Ky. 1937 ).

383.210. Issual and form of warrant — Jury not summoned unless demanded.

  1. Upon complaint by a person aggrieved by a forcible entry or detainer to the District Court of the county in which the land or tenement, or a principal part thereof, lies, a warrant shall issue to the sheriff or any constable, in substance as follows: “The Commonwealth of Kentucky to the sheriff (or any constable) of  . . . . .  county: Whereas, A B hath made complaint that C D and E F did, on the  . . . . . . day of  . . . . . , forcibly enter into (or forcibly detain from the said A B) one (1) house and field on the waters of  . . . . . , in the county aforesaid (or other general description of the lands or tenements), which were in the peaceable possession of A B (or which the said C D and E F, tenants of the said A B, now hold against him): You are, therefore, commanded to summon a good and lawful jury of your county to meet on the premises, or at a place convenient thereto, on the  . . . . .  day of  . . . . . , to inquire into the forcible entry (or forcible detainer) aforesaid; and give to the said C D and E F at least three (3) days’ notice of the time and place of the meeting of the jury; and have then there this writ. Witness, etc.”
  2. In the trial of writs of forcible entry, forcible detainer or forcible entry and detainer, if neither party, in person or by agent or attorney, demand a jury, the trial thereof shall be by the court. No such writ shall hereafter direct the summoning of a jury, and the sheriff or other officer to whose hands such writ may come to do execution thereof shall not summon a jury in such proceedings, unless he be by either party notified in writing that a jury is demanded. At the calling of the cause for trial either party may demand a jury.

History. C.C. 454: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 312, effective January 2, 1978.

NOTES TO DECISIONS

1.Jurisdiction.

Judges or justices of peace presiding in cases of forcible entry and detainer have the power, under this section when a jury is not demanded, to try all questions, whether of law or fact. His judgment, however, requires some entry to complete it. Robertson v. Donelan, 138 Ky. 149 , 127 S.W. 754, 1910 Ky. LEXIS 53 ( Ky. 1910 ).

Police courts in cities of sixth class having a population of more than 250 have the same jurisdiction as justices of the peace to issue and try warrants of forcible entry and detainer, under Const., § 143 and KRS 26.030. Allen v. Moore, 173 Ky. 394 , 191 S.W. 93, 1917 Ky. LEXIS 461 ( Ky. 1917 ).

Circuit court erred in affirming a forcible detainer judgment against a tenant and in favor of the landlord because a forcible detainer complaint was a pleading that had to be filed and practiced by an attorney, and although the facility’s attorney represented the facility during the rest of the proceedings, an interim building manager’s filing of the forcible detainer complaint amounted to the unauthorized practice of law, and was insufficient to invoke the subject-matter jurisdiction of the district court. Meinshausen v. Friendship House of Louisville, Inc., 607 S.W.3d 199, 2020 Ky. App. LEXIS 84 (Ky. Ct. App. 2020).

2.Initiation of Proceedings.

Forcible detainer proceedings may be initiated by complaint. Tolbert v. Young, 172 Ky. 269 , 189 S.W. 209, 1916 Ky. LEXIS 192 ( Ky. 1916 ). See Johnson v. Hall Hotel Co., 306 Ky. 140 , 206 S.W.2d 490, 1947 Ky. LEXIS 973 ( Ky. 1947 ).

No affidavit or written statement is necessary to authorize issual of the writ. Tolbert v. Young, 172 Ky. 269 , 189 S.W. 209, 1916 Ky. LEXIS 192 ( Ky. 1916 ). See Tinsley v. Majorana, 240 S.W.2d 539, 1951 Ky. LEXIS 965 ( Ky. 1951 ).

3.Form.

It is not required in forcible entry and detainer proceedings that the boundaries of the land, the possession of which it is sought to recover, shall be set out in the warrant. It is only necessary that the warrant shall contain a general description of it. Trent v. Colvin, 35 S.W. 914, 18 Ky. L. Rptr. 173 (1896).

Description of property as “house and lot No. 603 St. Ann St., in Owensboro, Daviess County, Kentucky” was sufficient. Jolly v. Gilbert, 190 Ky. 1 , 226 S.W. 354, 1920 Ky. LEXIS 535 ( Ky. 1 920).

Warrant is sufficient if it conforms substantially with form prescribed by the law. Jolly v. Gilbert, 190 Ky. 1 , 226 S.W. 354, 1920 Ky. LEXIS 535 ( Ky. 1 920).

Warrant which follows form prescribed by this section is not defective. Parrish v. Karr, 255 Ky. 573 , 74 S.W.2d 937, 1934 Ky. LEXIS 267 ( Ky. 1934 ).

In a forcible detainer proceeding the warrant should show that the defendants, tenants of the complainant, now hold against him. Jobe v. Witten, 305 Ky. 457 , 204 S.W.2d 575, 1947 Ky. LEXIS 833 ( Ky. 1947 ).

4.Demand for Jury.

Where neither party requested a jury under subsection (2), the right to jury was waived and was equivalent to agreeing to submit the law and facts to the court. McHugh v. Knippert, 243 S.W.2d 654, 1951 Ky. LEXIS 1147 ( Ky. 1951 ).

5.Traverse.

Where appellee actually filed a petition for writ of forcible detainer setting out his control and supervision of buildings involved, that appellants were tenants, maintained a nuisance, their term had expired and written notice thereof served upon them, and that they refused to give possession and were detaining property, pleadings were sufficient to sustain judgment. Johnson v. Hall Hotel Co., 306 Ky. 140 , 206 S.W.2d 490, 1947 Ky. LEXIS 973 ( Ky. 1947 ).

Petition by tenant who was defendant in a forcible detainer action brought by landlord under this section and his sureties on traverse bond under KRS 383.255 to prohibit circuit court judge from further proceedings was denied since circuit court had jurisdiction of the subject matter and the parties and question of whether pleas of res judicata was available to petitioners was a justiciable issue within the court’s basic jurisdiction, other adequate remedy by appeal was available and there was no showing of irreparable injury. Beachcomber Club, Inc. v. Keith, 402 S.W.2d 689, 1966 Ky. LEXIS 371 ( Ky. 1966 ).

6.Reopening Action for Forcible Detainer.

Where landlord brought forcible detainer action on failure to pay rent, and during proceedings the cause was continued on condition that tenant pay back rent and keep up future payments, which was done, landlord was relegated to new proceedings for future arrearage and could not reopen this action. Daily v. Kelly, 304 Ky. 229 , 200 S.W.2d 114, 1946 Ky. LEXIS 931 ( Ky. 1946 ).

7.Notice.

Public interest exception to the mootness doctrine applied, and the court of appeals reviewed the merits of a tenant’s arguments, because both questions the tenant raised in the appeal, the notice requirements in forcible entry and detainer proceedings and the unauthorized practice of law in such proceedings, were questions of a public nature; there was need for additional guidance in future cases as to both questions, which were likely to recur in future forcible detainer cases. Phillips v. M & M Corbin Props., LLC, 593 S.W.3d 525, 2020 Ky. App. LEXIS 5 (Ky. Ct. App. 2020).

Circuit court erred in upholding the district court’s decision to deny a tenant’s motion to dismiss a forcible detainer complaint without addressing the merits of her argument because the notice requirement in a local rule had no application to forcible entry and detainer cases. Phillips v. M & M Corbin Props., LLC, 593 S.W.3d 525, 2020 Ky. App. LEXIS 5 (Ky. Ct. App. 2020).

District Court Local Rule 2(203) for the 34th Judicial District is inconsistent with Kentucky Revised Statutes Chapter 383 in relation to notice requirements because it would be impossible for all defendants to meet the five-day notice rule for filing motions; therefore, the notice requirement set forth in Local Rule 2(203) has no application to forcible entry and detainer cases. Phillips v. M & M Corbin Props., LLC, 593 S.W.3d 525, 2020 Ky. App. LEXIS 5 (Ky. Ct. App. 2020).

Cited:

Johnson v. Haynes, 330 S.W.2d 109, 1959 Ky. LEXIS 183 ( Ky. 1959 ); Stoll Oil Refining Co. v. Pierce, 337 S.W.2d 263, 1960 Ky. LEXIS 362 ( Ky. 1960 ).

Opinions of Attorney General.

It is a court process that the district court clerk should prepare the warrant or summons in actions for forcible entry or detainer. OAG 78-212 .

In jurisdictions not covered by the Uniform Residential Landlord and Tenant Act, no statutory or common-law requirement presently exists that would require the landlord to provide to the tenant, who has failed to pay his or her rent or has violated some other provision of the oral or written lease agreement, any notice prior to filing an action, pursuant to KRS 383.200 to 383.285 , for forcible entry and detainer; of course, once the landlord files the action, the tenant would have to be served with a summons and a copy of the complaint. OAG 83-216 .

Since the warrant described in this section is the document to be used to bring the defendant before the court in an eviction proceeding, regardless of whether or not the matter is to be tried by a jury, the warrant is judicial process; thus, the sheriff’s fee for executing the warrant by serving it on the defendant is ten dollars, pursuant to KRS 64.090 , which uses the term for “executing and returning process” in designating a fee of ten dollars. OAG 84-333 .

Where a jury is demanded in an eviction proceeding by either the plaintiff or defendant, pursuant to subsection (2) of this section, the sheriff must be paid the additional fee of eight dollars for summoning and attending a jury in a case of forcible entry and detainer, besides fees for summoning witnesses, as prescribed by KRS 64.090 . OAG 84-333 .

Research References and Practice Aids

Kentucky Bench & Bar.

Advisory Opinions, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 26.

Kentucky Law Journal.

Matthews, Kentucky Developments in 1954: Personal and Real Property, Future Interests and Trusts, 44 Ky. L.J. 37 (1955).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 310 Forcible Entry and Detainer, § 310.syn.

Caldwell’s Kentucky Form Book, 5th Ed., Writ of Forcible Entry or Detainer Under KRS 383.210 , Form 310.03.

383.215. Execution of warrant.

The officer shall give to each defendant notice, according to the directions of the warrant, and no inquiry shall be made against any defendant who has not been notified as aforesaid. If, however, the notice have been given to a defendant, but not three (3) days before the day of the meeting of the jury, the inquest shall, on his motion, be adjourned until the expiration of the three (3) days.

History. C. C. 455: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Constructive Notice.

Under this section which provides that officer having warrant shall give notice according to the direction of the warrant, constructive notice as provided by KRS 454.030 by leaving a copy of the warrant and notice with a member of the defendant’s family where he was temporarily out of the county was sufficient. Swanson v. Smith, 117 Ky. 116 , 77 S.W. 700, 25 Ky. L. Rptr. 1260 , 1903 Ky. LEXIS 286 ( Ky. 1903 ). See Weber v. Grand Lodge, F. & A. M., 169 F. 522, 1909 U.S. App. LEXIS 4599 (6th Cir. Ky. 1909 ), cert. denied, 215 U.S. 606, 30 S. Ct. 406, 54 L. Ed. 346, 1909 U.S. LEXIS 1955 (U.S. 1909), overruled in part, Lindsey v. Greene, 649 F.2d 425, 1981 U.S. App. LEXIS 13180 (6th Cir. Ky. 1981 ).

2.Failure to Serve Warrant.

Where a forcible detainer warrant was issued and magistrate rendered a default judgment although the warrant was never served upon defendant and defendant traversed the judgment within three days as provided in KRS 383.255 and the circuit court rendered a default judgment against him without an opportunity for him to present his defense and within three days he moved the circuit court to grant him a new trial the question was not moot even though defendant by then had possession of the premises and the appeal to circuit court should not have been dismissed since the question of whether he was guilty of forcible detainer at the time the warrant was issued and liability on the traverse bond were undecided. Bledsoe v. Leonhart, 305 Ky. 707 , 205 S.W.2d 483, 1947 Ky. LEXIS 906 ( Ky. 1947 ).

3.Notice requirements.

Public interest exception to the mootness doctrine applied, and the court of appeals reviewed the merits of a tenant’s arguments, because both questions the tenant raised in the appeal, the notice requirements in forcible entry and detainer proceedings and the unauthorized practice of law in such proceedings, were questions of a public nature; there was need for additional guidance in future cases as to both questions, which were likely to recur in future forcible detainer cases. Phillips v. M & M Corbin Props., LLC, 593 S.W.3d 525, 2020 Ky. App. LEXIS 5 (Ky. Ct. App. 2020).

Circuit court erred in upholding the district court’s decision to deny a tenant’s motion to dismiss a forcible detainer complaint without addressing the merits of her argument because the notice requirement in a local rule had no application to forcible entry and detainer cases. Phillips v. M & M Corbin Props., LLC, 593 S.W.3d 525, 2020 Ky. App. LEXIS 5 (Ky. Ct. App. 2020).

District Court Local Rule 2(203) for the 34th Judicial District is inconsistent with Kentucky Revised Statutes Chapter 383 in relation to notice requirements because it would be impossible for all defendants to meet the five-day notice rule for filing motions; therefore, the notice requirement set forth in Local Rule 2(203) has no application to forcible entry and detainer cases. Phillips v. M & M Corbin Props., LLC, 593 S.W.3d 525, 2020 Ky. App. LEXIS 5 (Ky. Ct. App. 2020).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.220. Return of warrant — Jury — Oath.

At the time for holding the inquisition, the officer shall return the warrant to the court with an indorsement stating when and upon whom it was executed and the place designated by the officer for holding the inquisition, together with a panel of the jury; whereupon, the clerk, whether the defendant is present or not, shall administer an oath to the jurors in substance as follows: “You, and each of you, shall well and truly inquire into and return whether or not the defendant (or defendants) is (or are) guilty of the forcible entry (or detainer) complained of in the warrant in this cause: so help you God.”

History. C.C. 456: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 313, effective January 2, 1978.

NOTES TO DECISIONS

1.Demand for Jury.

Where neither party requested a jury under KRS 383.210(2), the right to jury was waived and was equivalent to agreeing to submit the law and the facts to the court. McHugh v. Knippert, 243 S.W.2d 654, 1951 Ky. LEXIS 1147 ( Ky. 1951 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Oath to Jurors, Form 310.10.

Caldwell’s Kentucky Form Book, 5th Ed., Oath to Jury in Forcible Detainer, Form 11.10.

383.225. Duties of judge or justice. [Repealed.]

Compiler’s Notes.

This section (C.C. 457; Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.230. Witnesses, subpoenas and coercion of attendance.

The court may issue subpoenas for witnesses at the request of either party, and their attendance and testifying may be coerced by the court which conducts the inquest.

History. C.C. 458: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 314, effective January 2, 1978; 1978, ch. 384, § 111, effective June 17, 1978.

383.235. Verdict — Procedure in case of disagreement.

The jurors, after hearing the evidence, shall, by their inquest, say whether the defendants, or either of them, be guilty or not guilty of the forcible entry or detainer complained of; and shall return their inquest, signed by one of their body, to the court. If the jury do not agree, it may be discharged, and another be ordered to be summoned to meet, either immediately or at some future day to be then and there fixed and indorsed on the warrant; and this proceeding shall be continued until a jury agree.

History. C.C. 459: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 315, effective January 2, 1978.

NOTES TO DECISIONS

Cited:

Branham v. Malone, 367 F. Supp. 370, 1973 U.S. Dist. LEXIS 10785 (W.D. Ky. 1973 ), aff’d, 497 F.2d 923 (6th Cir. Ky. 1974 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.240. Form of judgment.

Upon the return of the inquest the court shall enter a judgment according to the inquisition, either for the plaintiff, in substance, that he have restitution of the premises aforesaid, and recover of the defendants his costs in this behalf expended; or for the defendants, in substance, that they recover of the plaintiff their costs in this behalf expended; or for the plaintiff against some of the defendants, and for the other defendants against the plaintiff, if some be found guilty and others not guilty.

History. C.C. 460: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 316, effective January 2, 1978.

NOTES TO DECISIONS

1.Judgment for Restitution and Costs.

Judgment for restitution and costs in forcible detainer action where warrant charged only forcible entry and jury found defendant guilty of forcible entry was not affected by a recital by inadvertence or as surplusage that defendant had been found guilty of a forcible entry and detainer since a judgment of restitution is authorized by KRS 383.245 and this section regardless of whether defendant has been found guilty of a forcible entry or of a forcible detainer, or both a forcible entry and forcible detainer and the judgment gave only the relief to which plaintiff was entitled on the verdict actually returned. Newsom v. Damron, 302 Ky. 79 , 193 S.W.2d 643, 1946 Ky. LEXIS 594 ( Ky. 1946 ).

Cited:

Weber v. Grand Lodge, F. & A. M., 169 F. 522, 1909 U.S. App. LEXIS 4599 (6th Cir. 1909), cert. denied, Weber v. Kentucky Free & Accepted Masons, 215 U.S. 606, 30 S. Ct. 406, 54 L. Ed. 346, 1909 U.S. LEXIS 1955 (1909), overruled, Lindsey v. Greene, 649 F.2d 425, 1981 U.S. App. LEXIS 13180 (6th Cir. 1981), overruled in part, Lindsey v. Greene, 649 F.2d 425, 1981 U.S. App. LEXIS 13180 (6th Cir. 1981); Ledford v. Hall, 181 F.2d 494, 1950 U.S. App. LEXIS 2627 (6th Cir. 1950).

Opinions of Attorney General.

The expense incurred by the sheriff in executing a writ of restitution may be taxed as costs. OAG 68-340 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Judgment in Favor of Defendant, Form 310.07.

Caldwell’s Kentucky Form Book, 5th Ed., Judgment in Favor of Plaintiff, Form 310.06.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.245. Proceedings upon failure to file appeal — Form and issual of warrant of restitution.

If the party against whom the inquisition is found fails to file an appeal of the inquisition with the court, on or before the seventh day after the finding of the inquest, the court shall, on request, issue execution for the costs; and, if the inquisition be in favor of the plaintiff, it shall also issue a warrant of restitution in substance as follows: “ _________ County. To the sheriff (or any constable) of _________ county, Whereas, C D and E F have been found guilty of a forcible entry in (or detainer of) one house and field, lying on the waters of _________ , in the county aforesaid (or other general description of the possessions), to the injury of A B: You are, therefore, in the name of the Commonwealth of Kentucky, commanded that, with the power of the county if necessary, you put the said A B in the possession of said premises; and make return within _________ days, how you have executed this warrant. Given under my hand this _________ day of _________ .

_______________________________________ District Judge”

History. C.C. 461: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 317, effective January 2, 1978.

NOTES TO DECISIONS

1.Computation of Time.

Sundays are not to be included in computation of time provided in this section. Roettger v. Riefkin, 130 Ky. 197 , 113 S.W. 88, 1908 Ky. LEXIS 254 ( Ky. 1908 ).

The day of the judgment must be counted as the first of the three (3) days allowed for filing the traverse. Royse v. Vigusin, 309 Ky. 89 , 216 S.W.2d 892, 1949 Ky. LEXIS 638 ( Ky. 1949 ).

2.Warrant of Restitution.

This section requires that the issual of the warrant of restitution, if the inquisition is in the favor of the plaintiff, must follow the failure of the unsuccessful party to file the traverse on or before the third day after the finding of the inquest. Swanson v. Smith, 117 Ky. 116 , 77 S.W. 700, 25 Ky. L. Rptr. 1260 , 1903 Ky. LEXIS 286 ( Ky. 1903 ).

Warrant, being fair on its face, protected the officer, but did not protect the persons who procured it to be issued before it was authorized by this section. Roettger v. Riefkin, 130 Ky. 197 , 113 S.W. 88, 1908 Ky. LEXIS 254 ( Ky. 1908 ).

Where forcible detainer was tried on Friday and warrant of restitution was issued on Monday, the warrant was premature and lower court erred in directing verdict for landlord in action by tenant for damages sustained as a result of dispossession. Roettger v. Riefkin, 130 Ky. 197 , 113 S.W. 88, 1908 Ky. LEXIS 254 ( Ky. 1908 ).

This section authorizes restitution for either forcible entry or forcible detainer. Newsom v. Damron, 302 Ky. 79 , 193 S.W.2d 643, 1946 Ky. LEXIS 594 ( Ky. 1946 ).

Where judgment was rendered on 20th and writ of restitution was issued and levied on 22nd, the writ was premature but that did not render it void, only voidable, and it is not subject to collateral attack. Brummett v. Cosson, 302 Ky. 618 , 195 S.W.2d 301, 1946 Ky. LEXIS 730 ( Ky. 1946 ).

Cited:

In re Van Da Grift Motor Car Co., 192 F. 1015, 1912 U.S. Dist. LEXIS 1847 (D. Ky. 1912 ); Branham v. Malone, 367 F. Supp. 370, 1973 U.S. Dist. LEXIS 10785 (W.D. Ky. 1973 ).

Opinions of Attorney General.

A writ of restitution requires the sheriff to remove the defendant and all his personal property from the subject real property. OAG 68-340 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Eviction Notice: Warrant for Possession (AOC 220), Form 310.08.

383.250. Preservation of papers, records and proceedings — Transcript.

The clerk of the court shall carefully preserve all papers, records and proceedings, relating to the cause; and shall deliver, to any person requiring it, a transcript thereof.

History. C.C. 462: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 318, effective January 2, 1978.

NOTES TO DECISIONS

1.Transcript.

Where inferior court fails to return the papers to circuit court as required by KRS 383.255 , its duty to do so may be enforced by the circuit court requiring the papers to be sent up, or the interested parties may under this section procure a transcript by paying therefor the price specified and present it in the circuit court. Mayhew v. Kentucky River Coal Corp., 238 Ky. 509 , 38 S.W.2d 452, 1931 Ky. LEXIS 283 ( Ky. 1931 ).

383.255. Time for filing appeal — Deposit of money with clerk — Return of papers or transcript to circuit court.

  1. If either party conceive himself aggrieved by the judgment of the court, he may file an appeal within seven (7) days next after the finding aforesaid, and shall deposit with the circuit court clerk the amount of rent owing and due from the onset of the forcible entry and detainer proceedings as well as the amount of all future rents, as it becomes owing and due in each succeeding month during the pendency of the appeal. The rental moneys collected in this account shall be distributed by court order at the conclusion of an appeal.
  2. Upon the aggrieved party perfecting his appeal by the payment of moneys into court pursuant to subsection (1) of this section the court shall stay all further proceedings on the inquisition, and return the whole of the papers and proceedings, or a fair transcript thereof, to the office of the circuit court of said county, within ten (10) days thereafter.

History. C.C. 463: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 319, effective January 2, 1978.

NOTES TO DECISIONS

1.Constitutionality.

When applied to an indigent person without sufficient funds to make the required payment into court, this section creates a financial barrier between him and the Circuit Court which forecloses his avenue of appeal; therefore, as to an indigent person, this section constitutes an unreasonable and, therefore, impermissible regulation of the exercise of the right of appeal secured by Const., § 115. Fickey v. Cross Creek Apartments, Ltd., 700 S.W.2d 807, 1985 Ky. App. LEXIS 697 (Ky. Ct. App. 1985).

2.Purpose.

The purpose of this section is twofold; the traverse preserves the right of the traversor to a trial in Circuit Court, and the traverse bond protects the adverse party and secures indemnity to him, if he is ultimately successful. Mayhew v. Kentucky River Coal Corp., 238 Ky. 509 , 38 S.W.2d 452, 1931 Ky. LEXIS 283 ( Ky. 1931 ).

3.Traverse.
4.— Filing.

The sole and exclusive remedy of the party aggrieved by an adverse finding is to traverse the inquest and a new trial cannot be had. Swanson v. Smith, 117 Ky. 116 , 77 S.W. 700, 25 Ky. L. Rptr. 1260 , 1903 Ky. LEXIS 286 ( Ky. 1903 ). See Chapman v. Baker, 312 Ky. 138 , 226 S.W.2d 769, 1950 Ky. LEXIS 603 ( Ky. 1950 ).

Recitation of filing of traverse in bond was not sufficient. The authentic way to show filing of the traverse is to let the fact appear of record. Berry v. Trice, 179 Ky. 594 , 201 S.W. 37, 1918 Ky. LEXIS 275 ( Ky. 1918 ).

In filing a traverse in a forcible detainer action defendant waived any objections to procedural errors relating to the original complaint or to the issuance or sufficiency of the warrant, where the defendant was given a trial de novo in Circuit Court and thus was not prejudiced by the alleged failure of the city court to serve a warrant prior to the initial proceeding. Mitchell v. Housing Authority of Harlan, 533 S.W.2d 217, 1976 Ky. LEXIS 110 ( Ky. 1976 ).

Where an appellant filed a traverse and was granted a trial de novo, the filing of the traverse waived any objections to procedural errors relating to the original complaint or the issuance or sufficiency of the warrant in the initial proceeding. Mitchell v. Housing Authority of Harlan, 533 S.W.2d 217, 1976 Ky. LEXIS 110 ( Ky. 1976 ).

5.— — Time.

The filing of a traverse after the prescribed time has no effect in either staying the proceedings or giving jurisdiction to the Circuit Court, according to well established principles governing appeals. Ficke v. Covington Sav. Bank & Trust Co., 193 Ky. 792 , 237 S.W. 662, 1922 Ky. LEXIS 79 ( Ky. 1922 ).

The day of rendition of the judgment on the inquest is counted as the first of the three (3) days within which the traverse must be filed. Black v. National Bank of Kentucky, 226 Ky. 152 , 10 S.W.2d 629, 1928 Ky. LEXIS 45 ( Ky. 1928 ).

The three (3) day limitation for filing a traverse means three (3) juridical days. Black v. National Bank of Kentucky, 226 Ky. 152 , 10 S.W.2d 629, 1928 Ky. LEXIS 45 ( Ky. 1928 ).

Court erred in quashing traverse bond and suspending the stay of restitution where traverse was filed after inquest but before judgment was entered. Mayhew v. Kentucky River Coal Corp., 238 Ky. 509 , 38 S.W.2d 452, 1931 Ky. LEXIS 283 ( Ky. 1931 ).

The failure of the justice to indorse the time when traverse and bond was filed or presented to him for filing, if they were so presented, is not ground for dismissal. Citizens Coal Co. v. Foley, 278 Ky. 573 , 129 S.W.2d 131, 1939 Ky. LEXIS 469 ( Ky. 1939 ).

Since the justice is required to return the papers and proceedings to the Circuit Court upon filing of a traverse and bond within the requisite time, the action of the justice in making such return to the Circuit Court creates a prima facie presumption that the traverse and bond were filed before him within the requisite time and failure to indorse them as filed afforded no ground for dismissal. Hall's Ex'rs v. Robinson, 291 Ky. 631 , 165 S.W.2d 163, 1942 Ky. LEXIS 285 ( Ky. 1942 ).

Day of rendition of judgment must be counted as the first of three (3) days within which traverse must be filed and where judgment was rendered on 10th of month and traverse filed on 13th, the action must be dismissed. Avery v. Davenport, 300 Ky. 865 , 190 S.W.2d 663, 1945 Ky. LEXIS 672 ( Ky. 1945 ).

Where traverse was filed on day after judgment but county judge did not enter filing on records of his court within three (3) days allowed, Circuit Court correctly overruled motion to dismiss appeal. Brock v. Ettin, 303 Ky. 225 , 197 S.W.2d 256, 1946 Ky. LEXIS 823 ( Ky. 1946 ).

Provisions of this section are mandatory and jurisdictional, and traverse and bond not having been filed within required time, Circuit Court should have dismissed appeal, had proper motion been made. Allen v. Caldwell, 306 Ky. 869 , 209 S.W.2d 712, 1948 Ky. LEXIS 670 ( Ky. 1948 ).

The day of the judgment must be counted as the first of the three (3) days allowed for filing the traverse. Royse v. Vigusin, 309 Ky. 89 , 216 S.W.2d 892, 1949 Ky. LEXIS 638 ( Ky. 1949 ).

Rule is that, in computing three (3) days within which the traverse must be filed, the day on which the verdict is rendered and the day on which the bond is executed must both be counted. Chapman v. Baker, 312 Ky. 138 , 226 S.W.2d 769, 1950 Ky. LEXIS 603 ( Ky. 1950 ).

Sundays and legal holidays are not counted, since the three (3) days referred to in the law are three (3) juridical days. Chapman v. Baker, 312 Ky. 138 , 226 S.W.2d 769, 1950 Ky. LEXIS 603 ( Ky. 1950 ).

Where traverse and traverse bond were left in the hands of person in charge of judge’s office within prescribed time and judge approved this bond and marked it filed on following day, there was a substantial meeting of the requirements of law relative to filing of traverse and traverse bond. Wilson v. Leftwich, 239 S.W.2d 474, 1951 Ky. LEXIS 896 ( Ky. 1951 ).

Where, within prescribed time, appellant left traverse and traverse bond in hands of person in charge of office of county judge, this was sufficient filing as to traverse since paper is filed when presented at proper office and left with person in charge thereof and fees for filing, if any, paid. Wilson v. Leftwich, 239 S.W.2d 474, 1951 Ky. LEXIS 896 ( Ky. 1951 ).

6.— — Failure.

Where bond was filed under this section, but no traverse as required thereby, Circuit Court properly dismissed appeal. Berry v. Trice, 179 Ky. 594 , 201 S.W. 37, 1918 Ky. LEXIS 275 ( Ky. 1918 ).

Where writ of restitution was issued prematurely but judgment was not traversed, no prejudice could result. Brummett v. Cosson, 302 Ky. 618 , 195 S.W.2d 301, 1946 Ky. LEXIS 730 ( Ky. 1946 ).

7.— — Dismissal.

A party who files traverse has a right to dismiss it. Terry v. Henry, 274 Ky. 778 , 120 S.W.2d 404, 1938 Ky. LEXIS 344 ( Ky. 1938 ).

8.Bond.

Lack of surety on bond is not corrected and appeal perfected, by obtaining additional signatures after expiration of time specified for filing. Slaughter v. Crouch, 64 S.W. 968, 23 Ky. L. Rptr. 1214 , 1901 Ky. LEXIS 562 (Ky. Ct. App. 1901).

Where only surety who signed bond within three (3) days provided by this section, was not to be bound thereon unless mortgage was executed by principal and such mortgage was not so executed, the bond was invalid and the court erred in not sustaining the motion to dismiss appeal. Slaughter v. Crouch, 64 S.W. 968, 23 Ky. L. Rptr. 1214 , 1901 Ky. LEXIS 562 (Ky. Ct. App. 1901).

A bond accepted and approved by illegally appointed deputy or substitute county judge is ineffective for any purpose and Circuit Court properly dismissed appeal of forcible detainer proceeding. Cox v. Allen, 188 Ky. 598 , 222 S.W. 932, 1920 Ky. LEXIS 329 ( Ky. 1920 ).

While a bond, required by this section, which is merely defective may be amended, one which is so insufficient as to be wholly invalid will be grounds for dismissal of the appeal. Cox v. Allen, 188 Ky. 598 , 222 S.W. 932, 1920 Ky. LEXIS 329 ( Ky. 1920 ).

If reasonable men may differ as to the sufficiency of the bond, the refusal to approve it is not arbitrary and mandamus will not lie. Trivette v. Stratton, 276 Ky. 774 , 125 S.W.2d 236, 1939 Ky. LEXIS 581 ( Ky. 1939 ).

Approval of bond by county judge on day following its filing where he was not in his office on the day of filing was a substantial meeting of requirements of law and would not warrant dismissal of appeal. Wilson v. Leftwich, 239 S.W.2d 474, 1951 Ky. LEXIS 896 ( Ky. 1951 ).

Where bond is not executed with a magistrate within three (3) days of the verdict there can be no appeal to the Circuit Court. Gray v. Holbrooks, 247 S.W.2d 213, 1952 Ky. LEXIS 676 ( Ky. 1952 ).

9.Return of Papers.

If the justice fails to return the papers to the office of the Circuit Court within the time prescribed, this does not constitute grounds for dismissal. Citizens Coal Co. v. Foley, 278 Ky. 573 , 129 S.W.2d 131, 1939 Ky. LEXIS 469 ( Ky. 1939 ).

Direction to trial judge or justice to return the papers to the Circuit Court within 10 days are directory, and rights of litigants should not be affected by his negligence in failing to do so within the stipulated period. Kidd v. Layne, 255 Ky. 42 , 72 S.W.2d 727, 1934 Ky. LEXIS 176 ( Ky. 1934 ).

10.Jurisdiction of Circuit Court.

Traverse must be filed with justice within three (3) days next after finding for the Circuit Court to have jurisdiction of appeal. Hoskins v. Morgan, 249 Ky. 576 , 61 S.W.2d 30, 1933 Ky. LEXIS 563 ( Ky. 1933 ).

Petition by tenant who was defendant in a forcible detainer action brought by landlord under KRS 383.210 and his sureties on traverse bond to prohibit Circuit Court judge from further proceedings was denied since Circuit Court had jurisdiction of the subject matter and the parties and question of whether plea of res judicata was available to petitioners was a justiciable issue within the court’s basic jurisdiction, other adequate remedy by appeal was available and there was no showing of irreparable injury. Beachcomber Club, Inc. v. Keith, 402 S.W.2d 689, 1966 Ky. LEXIS 371 ( Ky. 1966 ).

11.Agreement for Possession.

Where party who traverses obtains possession of the property by agreement, the forcible detainer action does not become moot since the questions of whether tenant was guilty of forcible detainer at the time the warrant was issued and of liability on the traverse bond must be determined, and motion for a new trial should be granted. Bledsoe v. Leonhart, 305 Ky. 707 , 205 S.W.2d 483, 1947 Ky. LEXIS 906 ( Ky. 1947 ).

12.Stay of Proceedings.

If an indigent person does not make the deposit of rent due, subsection (2) of this section, which has the effect of staying enforcement of the district court’s judgment, is not triggered, with the consequence being that the landlord might obtain possession of the premises before the appeal is disposed of. Fickey v. Cross Creek Apartments, Ltd., 700 S.W.2d 807, 1985 Ky. App. LEXIS 697 (Ky. Ct. App. 1985).

Cited:

In re Van Da Grift Motor Car Co., 192 F. 1015, 1912 U.S. Dist. LEXIS 1847 (D. Ky. 1912 ); Check v. Reiter, 102 S.W. 287, 31 Ky. L. Rptr. 249 (1907); Newbold v. Bosler, 298 Ky. 507 , 183 S.W.2d 481, 1944 Ky. LEXIS 929 ( Ky. 1944 ); Hudnall v. Fleenor, 300 Ky. 497 , 189 S.W.2d 724, 1945 Ky. LEXIS 585 ( Ky. 1945 ); Tinsley v. Majorana, 240 S.W.2d 539, 1951 Ky. LEXIS 965 ( Ky. 1951 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Appeals from Kentucky District Courts to Circuit Court, § 100.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.260. Recovery of damages and expenses.

Upon this deposit, if the appellant fails to prosecute his appeal, he and his surety shall be liable for the damages for withholding the possession which the appellee may be entitled to recover against the appellant, during the pendency of the appeal, either in the Circuit Court or Court of Appeals, as well as the reasonable expenses of the appellee in defending the appeal.

History. C.C. 464: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 320, effective January 2, 1978; 1978, ch. 384, § 112, effective June 17, 1978.

NOTES TO DECISIONS

1.Purpose.

This section fixes the liability of surety on traverse bond. Evans v. Cleaver, 29 S.W. 29, 16 Ky. L. Rptr. 499 (1895).

2.Recoverable Damages.

Surety is liable for withholding possession during the pending of the traverse in either the Circuit Court or Court of Appeals, and reasonable expenses of traversee in defending the traverse. Evans v. Cleaver, 29 S.W. 29, 16 Ky. L. Rptr. 499 (1895).

Such damages as are the natural and proximate result of the forcible entry and detainer may be recovered from the traverser, and the reasonable value of the rents and profits of the land is an element which should be considered. Caldwell v. McVean, 119 Ky. 30 , 82 S.W. 992, 26 Ky. L. Rptr. 948 , 1904 Ky. LEXIS 139 ( Ky. 1904 ).

Double rent for time tenant occupied property after forcible detainer proceedings was commenced and reasonable attorney’s fee was recoverable by landlord under this section. Parker v. Smith, 211 Ky. 624 , 277 S.W. 986, 1925 Ky. LEXIS 935 ( Ky. 1925 ).

In action on traverse bond, evidence should have been confined to the reasonable rental value of farm during time appellant was kept out of possession and to such damage as was caused by waste, if any. Nanney v. Hedden, 221 Ky. 542 , 299 S.W. 161, 1927 Ky. LEXIS 756 ( Ky. 1927 ).

3.Unrecoverable Losses.

Recovery cannot be had under this section for rents of property after possession thereof was returned to traversee. Columbia Trust Co. v. Reccius, 130 Ky. 719 , 113 S.W. 895, 1908 Ky. LEXIS 314 ( Ky. 1908 ).

Where recovery sought amount landlord had to pay in settlement of claim of prospective tenant and amount landlord paid agent to obtain another tenant, such items of damage are too remote and uncertain to permit recovery against surety. If entitled to recover such damages landlord must look alone to the traverser. Columbia Trust Co. v. Reccius, 130 Ky. 719 , 113 S.W. 895, 1908 Ky. LEXIS 314 ( Ky. 1908 ).

Traversee was not entitled to recover value of such crops as she might have grown on farm. Nanney v. Hedden, 221 Ky. 542 , 299 S.W. 161, 1927 Ky. LEXIS 756 ( Ky. 1927 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.265. Proceedings on traverse. [Repealed.]

Compiler’s Notes.

This section (C.C. 465; Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

383.270. Proceedings on judgments of circuit court.

After a cause is returned to the circuit court, execution for cost, or for restitution, shall issue from the office of that court, according to the judgment in the cause.

History. C.C. 466: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

383.275. Restraint of waste.

The court before whom such cause may be pending may restrain waste or destruction of the premises, and may enforce its order by fine and imprisonment or either.

History. C.C. 467: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 321, effective January 2, 1978.

NOTES TO DECISIONS

1.Independent Actions.

Since court before whom forcible detainer is pending may restrain waste or destruction of premises under this section, an owner may not bring an independent action to enjoin trespass or interference with use and possession of owner. Newton v. Farris, 183 Ky. 288 , 209 S.W. 38, 1919 Ky. LEXIS 474 ( Ky. 1919 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.280. Actions for trespass, waste, rent or profits not barred.

The proceedings under a writ of forcible entry or detainer shall not bar an action for trespass or waste or rent or mesne profits.

History. C.C. 468: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Actions for Trespass.

Owner of premises, notwithstanding the pendency of forcible detainer proceedings, had right to bring an action for trespass. Newton v. Farris, 183 Ky. 288 , 209 S.W. 38, 1919 Ky. LEXIS 474 ( Ky. 1919 ).

Cited:

Stoll Oil Refining Co. v. Pierce, 337 S.W.2d 263, 1960 Ky. LEXIS 362 ( Ky. 1960 ).

383.285. Limitation of action.

No inquisition of forcible entry or forcible detainer shall be taken at any time after two (2) years from the forcible entry or detainer complained of.

History. C.C. 469: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Application.

The limitation of this section does not apply where there is a holding over of the tenancy under a contract, for the law (see KRS 383.160 ) makes a continuing contract. Wieck v. Glindmeyer, 229 Ky. 28 , 16 S.W.2d 487, 1929 Ky. LEXIS 672 ( Ky. 1929 ).

2.Barred Actions.

Where entry occurred more than two years prior to issual of writ, the action was bared by this section. Agreement to arbitrate did not amount to surrender of possession and subsequent refusal to abide by decision of arbitrators did not, therefore, amount to a new forcible entry. Hord v. Sartain, 86 S.W. 692, 27 Ky. L. Rptr. 796 (1905).

Since more than two years had elapsed from the time when appellee entered upon property before forcible entry proceedings were instituted, judgment of lower court in peremptorily instructing jury to find for defendant was affirmed. McIntosh v. Colwell, 236 Ky. 641 , 33 S.W.2d 678, 1930 Ky. LEXIS 821 ( Ky. 1930 ).

Cited:

Delph v. Bank of Harlan, 292 Ky. 387 , 166 S.W.2d 852, 1942 Ky. LEXIS 98 ( Ky. 1942 ).

Protections Afforded Victims of Domestic Violence and Abuse or Dating Violence and Abuse

383.300. Protections for person with rental or lease agreement who is protected by domestic violence order or interpersonal protective order.

    1. This section shall apply only to leases or rental agreements created or renewed on or after the June 29, 2017. (1) (a) This section shall apply only to leases or rental agreements created or renewed on or after the June 29, 2017.
    2. A person who is both a named individual and a protected tenant shall not be eligible for the protections under this section.
  1. As used in this section:
    1. “Named individual” means a person identified in the protective orders listed in paragraph (b) of this subsection as restrained from contact with the protected tenant; and
      1. “Protected tenant” means a residential rental or leased housing tenant, applicant for tenancy, or a tenant with a minor household member, who is protected by a valid: (b) 1. “Protected tenant” means a residential rental or leased housing tenant, applicant for tenancy, or a tenant with a minor household member, who is protected by a valid:
        1. Domestic violence order issued pursuant to KRS 403.740 which restrains the adverse party from any unauthorized contact; or
        2. Interpersonal protective order issued pursuant to KRS 456.060 which restrains the adverse party from any unauthorized contact.
      2. For purposes of subsections (3) and (4) of this section, “protected tenant” also means a residential rental or leased housing tenant, applicant for tenancy, or a tenant with a minor household member who is protected by a valid:
        1. Emergency protective order issued pursuant to KRS 403.730 ;
        2. Temporary interpersonal protective order issued pursuant to KRS 456.040 ; or
        3. Pretrial release no contact order issued pursuant to KRS 431.064 .
    1. A landlord shall not terminate, fail to renew, refuse to enter into, or otherwise retaliate in the renting or leasing of a residence because of the person’s status as a protected tenant. (3) (a) A landlord shall not terminate, fail to renew, refuse to enter into, or otherwise retaliate in the renting or leasing of a residence because of the person’s status as a protected tenant.
    2. It shall be a defense to an action for possession of a rented or leased residential property if the court determines that:
      1. The tenant is a protected tenant; and
      2. The notice to vacate is substantially based on acts which violated the tenant’s protective order or led to the issuance of a protective order listed in subsection (2) of this section, including an action for possession based on complaints of noise, disturbances, or repeated presence of peace officers.
      1. After informing the landlord of an intention to install a new lock, a protected tenant, at his or her expense, may install a new lock to his or her dwelling by: (4) (a) 1. After informing the landlord of an intention to install a new lock, a protected tenant, at his or her expense, may install a new lock to his or her dwelling by:
        1. Rekeying the lock if the lock is in good working condition; or
        2. Replacing the entire locking mechanism with a locking mechanism of equal or better quality than the lock being replaced.
      2. The tenant shall provide a key to the new lock to the landlord upon request.
    1. Regardless of any provision in the lease or rental agreement, the landlord may refuse to provide a key to the new lock to a named individual, even if the named individual is a party to the lease or rental agreement.
    2. A named individual who has been excluded from leased or rented property under this section remains liable for rent.
    1. For a protected tenant who obtains a valid protective order listed in subsection (2)(b)1. of this section after entering into a lease or rental agreement, the lease or rental agreement may be terminated by providing the landlord with: (5) (a) For a protected tenant who obtains a valid protective order listed in subsection (2)(b)1. of this section after entering into a lease or rental agreement, the lease or rental agreement may be terminated by providing the landlord with:
      1. Written notice of termination to be effective on a date stated in the notice that is at least thirty (30) days after the landlord’s receipt of the notice; and
      2. A copy of the valid protective order.
    2. For a protected tenant who obtains a valid protective order listed in subsection (2)(b)1. of this section before entering into a lease or rental agreement, the lease or rental agreement may be terminated by:
      1. Providing the landlord with written notice of termination to be effective on a date stated in the notice that is at least thirty (30) days after the landlord’s receipt of the notice;
      2. Attaching a copy of the valid protective order; and
      3. Demonstrating a safety concern to the landlord that arises after execution of the lease.
    3. Upon termination of a lease or rental agreement under this section, the released protected tenant shall:
      1. Be liable for the rent due under the lease or rental agreement prorated to the effective date of the termination and payable at the time that would have been required by the terms of the lease or rental agreement;
      2. Not receive a negative credit entry, a negative character reference, or be liable for any other rent or fees due solely to the early termination of the tenancy; and
      3. Not be subject to any damages or penalties if a lease or rental agreement is terminated under this subsection fourteen (14) or more days prior to occupancy.
    4. Regardless of whether the named individual is a party to a lease or rental agreement terminated under this subsection, the named individual:
      1. Is deemed to have interfered with the terminated lease or rental agreement between the landlord and tenant; and
      2. Shall be civilly liable for all economic losses incurred by the landlord for the early lease termination, including unpaid rent, early lease termination fees, commissions and advertising costs incurred in reletting the premises, costs to repair damages to the premises, or any reductions in rent previously granted to the protected tenant.
  2. Regardless of conflicting provisions in a named individual’s rental agreement or lease, if a named individual and a protected tenant are cotenants, a landlord may:
    1. Refuse access to the property by a named individual unless the named individual is specifically permitted access by court order; and
    2. Pursue all available legal remedies against the named individual, including:
      1. Termination of the named individual’s rental agreement or lease;
      2. Eviction of the named individual, whether or not a lease or rental agreement between the landlord and the named individual exists; and
      3. Action for damages against the named individual for any unpaid rent owed by the named individual or any damages resulting from a violation of a valid protective order listed in subsection (2)(b)1. of this section.
  3. Notwithstanding the release of a protected tenant or an exclusion of a named individual from a lease or rental agreement under this section, if there are any remaining tenants residing in the dwelling unit, the tenancy shall continue for those tenants.
  4. A landlord is immune from civil liability if the landlord in good faith acts in accordance with this section.

HISTORY: 2017 ch. 191, § 1, effective June 29, 2017.

383.302. Prohibited inclusion in rental or lease agreement of authority to terminate on the basis of tenant’s request for assistance in emergencies.

  1. A landlord shall not include in a residential rental agreement or lease for housing a provision authorizing the landlord to terminate the agreement or to impose a penalty on a tenant for requests made by the tenant for assistance from peace officers or other assistance in response to emergencies.
  2. A residential rental agreement or lease provision prohibited by subsection (1) of this section is unenforceable. If a landlord enforces a rental agreement or lease containing provisions known by the landlord to be prohibited by this section, the tenant may recover actual damages sustained by the tenant, reasonable attorney’s fees, and all other costs incurred in bringing the action, and punitive damages of not more than two (2) months of periodic rent.
  3. This section shall apply only to leases or rental agreements created or renewed on or after June 29, 2017.

HISTORY: 2017 ch. 191, § 2, effective June 29, 2017.

Uniform Residential Landlord and Tenant Act

383.500. Local governments authorized to adopt provisions of the Uniform Residential Landlord and Tenant Act in their entirety and without amendment.

The General Assembly hereby authorizes cities, counties and urban-county governments to enact the provisions of the Uniform Residential Landlord and Tenant Act as set forth in KRS 383.505 to 383.705 . If adopted, these provisions shall be adopted in their entirety and without amendment. No other ordinance shall be enacted by a city, county or urban-county government which relates to the subjects embraced in KRS 383.505 to 383.705 .

History. Enact. Acts 1984, ch. 176, § 1, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Summary judgment for landlords in a tenant’s claim for personal injuries arising from the landlords’ failure to repair carpet in a leased apartment was proper because the Uniform Residential Landlord Tenant Act, KRS 383.500 et seq., did not alter the common-law rule that a lessor’s liability for breach of an agreement to repair leased premises was limited to the cost of repair. Miller v. Cundiff, 245 S.W.3d 786, 2007 Ky. App. LEXIS 143 (Ky. Ct. App. 2007).

Kentucky’s Uniform Residential Landlord Tenant Act (URLTA), KRS 383.500 et seq., did not protect the landlords from liability for the tenant’s personal injuries that she allegedly sustained when a part of her ceiling collapsed, apparently as a result of water damage from a leaking roof, because the URLTA did not alter the common law rule that the landlords could be liable for defects in common areas of the premises over which the landlords retained exclusive control, including the roof and the area between the roof and the tenant’s ceiling. Warren v. Winkle, 400 S.W.3d 755, 2013 Ky. App. LEXIS 81 (Ky. Ct. App. 2013).

In a residential landlord-tenant action, the court looked to the Uniform Residential Landlord and Tenant Act (URLTA), Ky. Rev. Stat. Ann. § 383.500 et seq., to ascertain the appropriate remedies where the county where the house was located had adopted the URLTA. Wildcat Prop. Mgmt., LLC v. Franzen, 2015 Ky. App. LEXIS 101 (Ky. Ct. App. July 10, 2015), review denied, ordered not published, 2016 Ky. LEXIS 135 (Ky. Mar. 9, 2016).

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.505. Purposes — Policies.

  1. KRS 383.505 to 383.715 shall be liberally construed and applied to promote its underlying purposes and policies.
  2. Underlying purposes and policies of KRS 383.505 to 383.715 are:
    1. To encourage landlords and tenants to maintain and improve the quality of housing; and
    2. To make uniform the law with respect to the subject of KRS 383.505 to 383.715 among those states which enact it.

History. Enact. Acts 1974, ch. 378, § 2; repealed and reenact., Acts 1984, ch. 176, § 2, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.505 (Acts 1974, ch. 378, § 2) was repealed and reenacted by Acts 1984, ch. 176, § 2, effective July 13, 1984.

NOTES TO DECISIONS

1.Constitutionality.

The former provisions of the Uniform Residential Landlord and Tenant Act ( KRS 383.505 to 383.715 ) which was limited by a former KRS 383.715 to apply only to counties containing cities of the first class and urban-county governments was special legislation within the prohibition of the Kentucky Constitution and was therefore invalid since the act only applied in two (2) of the 120 counties in the state, and the problems of public health, economic waste and substandard dwelling dealt with by the act were no less important in the other 118 counties in the commonwealth. Miles v. Shauntee, 664 S.W.2d 512, 1983 Ky. LEXIS 282 ( Ky. 1983 ).

Research References and Practice Aids

Kentucky Law Journal.

Comments, Forcible Detainer In Kentucky Under The Uniform Residential Landlord and Tenant Act, 63 Ky. L.J. 1046 (1974-1975).

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Claiming Lease Lawfully Terminated by Tenant Under KRS 383.625 , URLTA Jurisdiction, Form 309.11.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.510. Principles of law and equity.

Unless displaced by the provisions of KRS 383.505 to 383.715 , the principles of law and equity, including the law relating to capacity to contract, mutuality of obligations, principal and agent, real property, public health, safety and fire prevention, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause supplement its provisions.

History. Enact. Acts 1974, ch. 378, § 3; repealed and reenact., Acts 1984, ch. 176, § 3, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.510 (Acts 1974, ch. 378, § 3) was repealed and reenacted by Acts 1984, ch. 176, § 3, effective July 13, 1984.

NOTES TO DECISIONS

1.Damages.

Summary judgment for landlords in a tenant’s claim for personal injuries arising from the landlords’ failure to repair carpet in a leased apartment was proper because the Uniform Residential Landlord Tenant Act, KRS 383.500 et seq., did not alter the common-law rule that a lessor’s liability for breach of an agreement to repair leased premises was limited to the cost of repair. Miller v. Cundiff, 245 S.W.3d 786, 2007 Ky. App. LEXIS 143 (Ky. Ct. App. 2007).

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

383.515. Construction.

KRS 383.505 to 383.715 being a general act intended as a unified coverage of its subject matter, no part of it is to be construed as impliedly repealed by subsequent legislation if that construction can reasonably be avoided.

History. Enact. Acts 1974, ch. 378, § 4; repealed and reenact., Acts 1984, ch. 176, § 4, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.515 (Acts 1974, ch. 378, § 4) was repealed and reenacted by Acts 1984, ch. 176, § 4, effective July 13, 1984.

383.520. Administration of remedies — Enforcement.

  1. The remedies provided by KRS 383.505 to 383.715 shall be so administered that an aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages.
  2. Any right or obligation declared by KRS 383.505 to 383.715 is enforceable by action unless the provision declaring it specifies a different and limited effect.

History. Enact. Acts 1974, ch. 378, § 5; repealed and reenact., Acts 1984, ch. 176, § 5, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.520 (Acts 1974, ch. 378, § 5) was repealed and reenacted by Acts 1984, ch. 176, § 5, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Summary judgment for landlords in a tenant’s claim for personal injuries arising from the landlords’ failure to repair carpet in a leased apartment was proper because the Uniform Residential Landlord Tenant Act, KRS 383.500 et seq., did not alter the common-law rule that a lessor’s liability for breach of an agreement to repair leased premises was limited to the cost of repair. Miller v. Cundiff, 245 S.W.3d 786, 2007 Ky. App. LEXIS 143 (Ky. Ct. App. 2007).

383.525. Settlement of disputed claim or right.

A claim or right arising under KRS 383.505 to 383.715 or on a rental agreement, if disputed in good faith, may be settled by agreement.

History. Enact. Acts 1974, ch. 378, § 6; repealed and reenact., Acts 1984, ch. 176, § 6, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.520 (Acts 1974, ch. 378, § 6) was repealed and reenacted by Acts 1984, ch. 176, § 6, effective July 13, 1984.

383.530. Territorial application. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 378, § 7) was repealed by Acts 1984, ch. 176, § 43, effective July 13, 1984.

383.535. Exclusions from application.

The following arrangements are not governed by KRS 383.505 to 383.715 :

  1. Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational counseling, religious, or similar service.
  2. Occupancy under a contract of sale of a dwelling unit or the property of which it is a part, if the occupant is the purchaser or a person who succeeds to his interest.
  3. Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.
  4. Transient occupancy in a hotel, or motel, or lodgings subject to state transient lodgings or room occupancy excise tax act.
  5. Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises.
  6. Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.
  7. Occupancy of a dwelling unit located on land devoted to the production of livestock, livestock products, poultry, poultry products or the growing of tobacco or other crops including timber.

History. Repealed, reenact. and amend. Acts 1984, ch. 176, § 7, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.535 (Acts 1974, ch. 378, § 8) was repealed, reenacted and amended by Acts 1984, ch. 176, § 7, effective July 13, 1984.

Notes to Unpublished Decisions

1.Institutions.

Unpublished decision: Court of appeals affirmed the district court’s judgment finding that women who were evicted from a shelter where they lived did not have a protected interest under the Kentucky Uniform Residential Landlord and Tenant Act (KURLTA) and could not recover damages from the officers in a suit they filed under 42 U.S.C.S. § 1983. In reaching its decision, the court of appeals found that the shelter was an “institution” within the meaning of KRS 383.535(1) and was not subject to the KURLTA, and that, even if the shelter was subject to the KURLTA, the women who were evicted were not tenants under the KURLTA because they did not have a right to exclusive possession of bedrooms they were assigned by the shelter. Thomas v. Cohen, 453 F.3d 657, 2006 FED App. 0299N, 2006 U.S. App. LEXIS 7938 (6th Cir. Ky. 2006 ).

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.540. Jurisdiction — Service of process.

  1. The District Courts of this state may exercise jurisdiction over any landlord or tenant with respect to any conduct in this state governed by KRS 383.505 to 383.715 or with respect to any claim arising from a transaction subject to KRS 383.505 to 383.715 . In addition to any other method provided by rule or by statute, personal jurisdiction over a landlord or tenant may be acquired in a civil action or proceeding instituted in the court by the service of process in the manner provided by this section.
  2. If a landlord is not a resident of this state or is a corporation not authorized to do business in this state and engages in any conduct in this state governed by KRS 383.505 to 383.715 , or engages in a transaction subject to KRS 383.505 to 383.715 , he may designate an agent upon whom service of process may be made in this state. The agent shall be a resident of this state or a corporation authorized to do business in this state. The designation shall be in writing and filed with the Secretary of State. If no designation is made and filed or if process cannot be served in this state upon the designated agent, process may be served upon the Secretary of State, but service upon him is not effective unless the plaintiff or petitioner forthwith mails a copy of the process and pleading by registered or certified mail to the defendant or respondent at his last reasonably ascertainable address. An affidavit of compliance with this section shall be filed with the clerk of the court on or before the return day of the process, if any, or within any further time the court allows.

History. Enact. Acts 1974, ch. 378, § 9; 1976 (Ex. Sess.), ch. 14, § 322; repealed and reenact., Acts 1984, ch. 176, § 8, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.540 (Acts 1974, ch. 378, § 9; 1976 (Ex. Sess.), ch. 14, § 322) was repealed and reenacted by Acts 1984, ch. 176, § 8, effective July 13, 1984.

NOTES TO DECISIONS

Cited:

Baker v. Ryan, 967 S.W.2d 591, 1997 Ky. App. LEXIS 90 (Ky. Ct. App. 1997).

383.545. Definitions.

Subject to additional definitions contained in subsequent sections of KRS 383.505 to 383.715 which apply to specific sections or paragraphs thereof, and unless the context otherwise requires:

  1. “Action” includes recoupment, counterclaim, set-off suit in equity, and any other proceeding in which rights are determined, including an action for possession.
  2. “Building and housing codes” include any law, ordinance, or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance of any premises or dwelling unit.
  3. “Dwelling unit” means a structure or the part of a structure that is used as a home, residence, or sleeping place by one (1) person who maintains a household or by two (2) or more persons who maintain a common household.
  4. “Good faith” means honesty in fact in the conduct of the transaction concerned.
  5. “Landlord” means the owners, lessor, or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises who fails to disclose as required by KRS 383.585 .
  6. “Organization” includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two (2) or more persons having a joint or common interest, and any other legal or commercial entity.
  7. “Owner” means one (1) or more persons, jointly or severally, in whom is vested all or part of the legal title to property or all or part of the beneficial ownership and a right to present use and enjoyment of the premises. The term includes a mortgagee in possession.
  8. “Person” includes an individual or organization.
  9. “Premises” means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and facilities held out for the use of tenants generally or whose use is promised to the tenant.
  10. “Rent” means all payments except a security deposit as defined in this section to be made to the landlord under the rental agreement.
  11. “Rental agreement” means all agreements, written or oral, and valid rules and regulations adopted under KRS 383.610 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.
  12. “Roomer” or “boarder” means a tenant occupying a dwelling unit:
    1. Which lacks at least one (1) major bathroom facility or kitchen facility, such as a toilet, refrigerator, or a stove; and
    2. In a building where one (1) or more such major facilities are supplied to be used in common by the occupants of the tenant’s dwelling unit and by the occupants of one (1) or more other dwelling units; and
    3. In a building in which the landlord resides.
  13. “Security deposit” means an escrow payment made to the landlord under the rental agreement for the purpose of securing the landlord against financial loss due to damage to the premises occasioned by the tenant’s occupancy other than ordinary wear and tear.
  14. “Single family residence” means a structure maintained and used as a single dwelling unit. Notwithstanding that a dwelling unit shares one (1) or more walls with another dwelling unit, it is a single family residence if it has direct access to a street or thoroughfare and shares neither heating facilities, hot water equipment, nor any other essential facility or service with any other dwelling unit.
  15. “Tenant” means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.
  16. “Unconscionable” means an act or conduct which is willful and is so harsh and unjust as would be condemned or considered to be wrongful and would be shocking to the conscience of honest and fair-minded persons.
  17. “Willful” means with deliberate intention, not accidentally or inadvertently, and done according to a purpose.

History. Enact. Acts 1974, ch. 378, § 10; repealed and reenact., Acts 1984, ch. 176, § 9, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.545 (Acts 1974, ch. 378, § 10) was repealed and reenacted by Acts 1984, ch. 176, § 9, effective July 13, 1984.

NOTES TO DECISIONS

1.Willful.

Attorney’s fees should not have been awarded to a landlord because they were prohibited under KRS 383.570 , and willful noncompliance under KRS 383.660(3) was not shown by unkept promises of future rental payment and by leaving the property in less than perfect condition. The claim also failed because the tenant was not given notice of the acts or omissions alleged against him that would have authorized the application of KRS 383.660(3). O'Rourke v. Lexington Real Estate Co. L.L.C., 365 S.W.3d 584, 2011 Ky. App. LEXIS 190 (Ky. Ct. App. 2011).

In an adversary proceeding where the bankruptcy court found the debtor's liability to plaintiffs for willful and malicious damage to a rental apartment was nondischargeable, plaintiffs were entitled a statutory award of their reasonable attorney's fees because the debtor's breaches of the rental agreement were willful. Sager v. Bennett (In re Bennett), 2015 Bankr. LEXIS 32 (Bankr. E.D. Ky. Jan. 7, 2015).

Cited:

Cabinet for Health & Family Servs. v. J.M.G., 2015 Ky. LEXIS 2013 (Dec. 17, 2015).

Notes to Unpublished Decisions

1.Tenants

Unpublished decision: Court of appeals affirmed the district court’s judgment finding that women who were evicted from a shelter where they lived did not have a protected interest under the Kentucky Uniform Residential Landlord and Tenant Act (KURLTA) and could not recover damages from the officers in a suit they filed under 42 U.S.C.S. § 1983. In reaching its decision, the court of appeals found that the shelter was an “institution” within the meaning of KRS 383.535(1) and was not subject to the KURLTA, and that, even if the shelter was subject to the KURLTA, the women who were evicted were not tenants under the KURLTA because they did not have a right to exclusive possession of bedrooms they were assigned by the shelter. Thomas v. Cohen, 453 F.3d 657, 2006 FED App. 0299N, 2006 U.S. App. LEXIS 7938 (6th Cir. Ky. 2006 ).

383.550. “Good faith” obligation.

Every duty under KRS 383.505 to 383.715 and every act which must be performed as a condition precedent to the exercise of a right or remedy under KRS 383.505 to 383.715 imposes an obligation of good faith in its performance or enforcement.

History. Enact. Acts 1974, ch. 378, § 11; repealed and reenact., Acts 1984, ch. 176, § 10, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.550 (Acts 1974, ch. 378, § 11) was repealed and reenacted by Acts 1984, ch. 176, § 10, effective July 13, 1984.

383.555. Unconscionability.

  1. If the court, as a matter of law, finds:
    1. A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; or
    2. A settlement in which a party waives or agrees to forego a claim or right under KRS 383.505 to 383.715 or under a rental agreement was unconscionable when made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.
  2. If unconscionability is put into issue by a party or by the court upon its own motion, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose, and effect of the rental agreement or settlement to aid the court in making the determination.

History. Enact. Acts 1974, ch. 378, § 12; repealed and reenact., Acts 1984, ch. 176, § 11, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.555 (Acts 1974, ch. 378, § 12) was repealed and reenacted by Acts 1984, ch. 176, § 11, effective July 13, 1984.

383.560. Notice.

  1. A person has notice of a fact if:
    1. He has actual knowledge of it;
    2. He has received a notice or notification of it; or
    3. From all the facts and circumstances known to him at the time in question he has reason to know that it exists.
  2. A person knows or has knowledge of a fact if he has actual knowledge of it.
  3. A person notifies or gives a notice or notification to another person by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it. A person receives a notice or notification when:
    1. It comes to his attention; or
    2. In the case of the landlord, it is delivered in writing at the place of business of the landlord through which the rental agreement was made or at any place held out by him as the place for receipt of the communications, or mailed by certified mail to him at his place of business or at any place held out by him as the place for receipt of any communication;
    3. In the case of the tenant, it is delivered in hand to the tenant or mailed by registered or certified mail to him at the place held out by him as the place for receipt of the communication, or in the absence of such designation, to his last known place of residence.
  4. Notice, knowledge, or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting that transaction, and in any event from the time it would have been brought to his attention if the organization had exercised reasonable diligence.

History. Enact. Acts 1974, ch. 378, § 13; repealed and reenact., Acts 1984, ch. 176, § 12, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.560 (Acts 1974, ch. 378, § 13) was repealed and reenacted by Acts 1984, ch. 176, § 12, effective July 13, 1984.

Legislative Research Commission Note.

(6/8/2011). The Reviser of Statutes has corrected a manifest clerical or typographical error in subsection (4) of this statute by changing “Notice, knowledge or a notice or notification received by an organization if effective…” to read “Notice, knowledge, or a notice or notification received by an organization is effective…” under the authority of KRS 7.136 to conform with the text of the Uniform Residential Landlord and Tenant Act, Section 1.304(c) from which it was derived.

383.565. Terms and conditions of rental agreement.

  1. A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by KRS 383.505 to 383.715 or other rule of law, including rent, term of the agreement, and other provisions governing the rights and obligations of the parties.
  2. Rent is payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, rent is payable at the dwelling unit and periodic rent is payable at the beginning of any term of one (1) month or less and otherwise in equal monthly installments at the beginning of each month. Unless otherwise agreed, rent is uniformly apportionable from day-to-day.
  3. Unless the rental agreement fixes a definite term, the tenancy is week-to-week in case of a roomer who pays weekly rent, and in all other cases month-to-month.

History. Enact. Acts 1974, ch. 378, § 14; repealed and reenact., Acts 1984, ch. 176, § 13, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.565 (Acts 1974, ch. 378, § 14) was repealed and reenacted by Acts 1984, ch. 176, § 13, effective July 13, 1984.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Accrued Rent, Lease Expired, Form 309.01.

383.570. Prohibited provisions.

  1. A rental agreement may not provide that the tenant:
    1. Agrees to waive or forego rights or remedies under KRS 383.505 to 383.715 ;
    2. Authorizes any person to confess judgment on a claim arising out of the rental agreement;
    3. Agrees to pay the landlord’s attorney’s fees; or
    4. Agrees to the exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith.
  2. A provision prohibited by subsection (1) included in rental agreement is unenforceable.

History. Enact. Acts 1974, ch. 378, § 15; repealed and reenact., Acts 1984, ch. 176, § 14, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.570 (Acts 1974, ch. 378, § 15) was repealed and reenacted by Acts 1984, ch. 176, § 14, effective July 13, 1984.

NOTES TO DECISIONS

1.Attorney’s Fees.

Attorney’s fees should not have been awarded to a landlord because they were prohibited under KRS 383.570 , and willful noncompliance under KRS 383.660(3) was not shown by unkept promises of future rental payment and by leaving the property in less than perfect condition. The claim also failed because the tenant was not given notice of the acts or omissions alleged against him that would have authorized the application of KRS 383.660(3). O'Rourke v. Lexington Real Estate Co. L.L.C., 365 S.W.3d 584, 2011 Ky. App. LEXIS 190 (Ky. Ct. App. 2011).

In an adversary proceeding where the bankruptcy court found the debtor's liability to plaintiffs for willful and malicious damage to a rental apartment was nondischargeable, plaintiffs were entitled a statutory award of their reasonable attorney's fees because the debtor's breaches of the rental agreement were willful. Sager v. Bennett (In re Bennett), 2015 Bankr. LEXIS 32 (Bankr. E.D. Ky. Jan. 7, 2015).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Landlord for Failure to Disclose Known Defective, Form 131.03.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in Tort for Injuries to Tenant Arising from Failure to Disclose Known Defective Condition, Form 309.08.

383.575. Separation of rents and obligations.

A rental agreement, assignment, conveyance, trust deed, or security instrument may not permit the receipt of rent free of the obligation to comply with KRS 383.595(1).

History. Enact. Acts 1974, ch. 378, § 16; repealed and reenact., Acts 1984, ch. 176, § 15, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.575 (Acts 1974, ch. 378, § 16) was repealed and reenacted by Acts 1984, ch. 176, § 15, effective July 13, 1984.

383.580. Security deposits.

  1. All landlords of residential property requiring security deposits prior to occupancy shall be required to deposit all tenants’ security deposits in an account used only for that purpose, in any bank or other lending institution subject to regulation by the Commonwealth of Kentucky or any agency of the United States government. Prospective tenants shall be informed of the location of the separate account and the account number.
  2. Prior to tendering any consideration deemed to be a security deposit, the prospective tenant shall be presented with a comprehensive listing of any then-existing damage to the unit which would be the basis for a charge against the security deposit and the estimated dollar cost of repairing such damage. The tenant shall have the right to inspect the premises to ascertain the accuracy of such listing prior to taking occupancy. The landlord and the tenant shall sign the listing, which signatures shall be conclusive evidence of the accuracy of such listing, but shall not be construed to be conclusive to latent defects. If the tenant shall refuse to sign such listing, he shall state specifically in writing the items on the list to which he dissents, and shall sign such statement of dissent.
  3. At the termination of occupancy, the landlord shall inspect the premises and compile a comprehensive listing of any damage to the unit which is the basis for any charge against the security deposit and the estimated dollar cost of repairing such damage. The tenant shall then have the right to inspect the premises to ascertain the accuracy of such listing. The landlord and the tenant shall sign the listing, which signatures shall be conclusive evidence of the accuracy of such listing. If the tenant shall refuse to sign such listing, he shall state specifically in writing the items on the list to which he dissents, and shall sign such statement of dissent.
  4. No landlord shall be entitled to retain any portion of a security deposit if the security deposit was not deposited in a separate account as required by subsection (1) of this section and if the initial and final damage listings required by subsections (2) and (3) of this section are not provided.
  5. A tenant who disputes the accuracy of the final damage listing given pursuant to subsection (3) of this section may bring an action in District Court. Tenant’s claim shall be limited to those items from which the tenant specifically dissented in accordance with the provisions of subsection (3) of this section, or except as otherwise provided, and if the tenant shall fail to sign the listing or specifically dissent in accordance with subsection (3) of this section, the tenant shall not be entitled to recover any damages under this section.
  6. In the event a tenant leaves not paying his last month’s rent and does not demand a return of his deposit, the landlord may, after thirty (30) days, remove the deposit from the account and apply any such excess to the debt owing.
  7. In the event the tenant leaves not owing rent and having any refund due, the landlord shall send notification to the last known or reasonably determinable address, of the amount of any refund due the tenant. In the event the landlord shall not have received a response from the tenant within sixty (60) days from the sending of such notification, the landlord may remove the deposit from the account and retain it free from any claim of the tenant or any person claiming in his behalf.

History. Enact. Acts 1974, ch. 378, § 17; 1976 (Ex. Sess.), ch. 14, § 323; repealed and reenact., Acts 1984, ch. 176, § 16, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.580 (Acts 1974, ch. 378, § 17; 1976 (Ex. Sess.), ch. 14, § 323) was repealed and reenacted by Acts 1984, ch. 176, § 16, effective July 13, 1984.

NOTES TO DECISIONS

Cited:

O’Rourke v. Lexington Real Estate Co. L.L.C., 365 S.W.3d 584, 2011 Ky. App. LEXIS 190 (Ky. Ct. App. 2011).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Damage to Property Exceeding Security Deposit, Lease Expired, Form 309.04.

Caldwell’s Kentucky Form Book, 5th Ed., Statement as to Condition of Furnishings Where Security Deposit Involved, Form 310.09.

383.585. Disclosure.

  1. A landlord or any person authorized to enter into a rental agreement on his behalf shall disclose to the tenant in writing at or before the commencement of the tenancy the name and address of:
    1. The person authorized to manage the premises; and
    2. An owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and receiving and receipting for notices and demands.
  2. The information required to be furnished by this section shall be kept current and this section extends to and is enforceable against any successor landlord, owner, or manager.
  3. A person who fails to comply with subsection (1) becomes an agent of each person who is a landlord for:
    1. Service of process and receiving and receipting for notices and demands; and
    2. Performing the obligations of the landlord under KRS 383.505 to 383.715 and under the rental agreement and expending or making available for the purpose all rent collected from the premises.

History. Enact. Acts 1974, ch. 378, § 18; repealed and reenact., Acts 1984, ch. 176, § 17, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.585 (Acts 1974, ch. 378, § 18) was repealed and reenacted by Acts 1984, ch. 176, § 17, effective July 13, 1984.

Research References and Practice Aids

Kentucky Bench & Bar.

Advisory Opinions, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 26.

383.590. Possession of premises.

At the commencement of the term a landlord shall deliver possession of the premises to the tenant in compliance with the rental agreement and KRS 383.595 . The landlord may bring an action for possession against any person wrongfully in possession and may recover the damages provided in KRS 383.695(4).

History. Enact. Acts 1974, ch. 378, § 19; repealed and reenact., Acts 1984, ch. 176, § 18, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.590 (Acts 1974, ch. 378, § 19) was repealed and reenacted by Acts 1984, ch. 176, § 18, effective July 13, 1984.

NOTES TO DECISIONS

Cited:

Rogers v. Redmond, 727 S.W.2d 874, 1987 Ky. App. LEXIS 455 (Ky. Ct. App. 1987); Thomas v. Cohen, 304 F.3d 563, 2002 FED App. 0287P, 2002 U.S. App. LEXIS 17528 (6th Cir. Ky. 2002 ).

383.595. Landlord’s maintenance obligations and agreements.

  1. A landlord shall:
    1. Comply with the requirements of applicable building and housing codes materially affecting health and safety;
    2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
    3. Keep all common areas of the premises in a clean and safe condition;
    4. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him; and
    5. Supply running water and reasonable amounts of hot water at all times and reasonable heat between October 1 and May 1 except where the building that includes the dwelling unit is not required by law to be equipped for that purpose, or the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant and supplied by a direct public utility connection.
  2. If the duty imposed by paragraph (a) of subsection (1) is greater than any duty imposed by any other paragraph of that subsection, the landlord’s duty shall be determined by reference to paragraph (a) of subsection (1).
  3. The landlord and tenant of a single family residence may agree in writing that the tenant perform the landlord’s duties specified in paragraph (e) of subsection (1) and also specified repairs, maintenance tasks, alterations, and remodeling, but only if the transaction is entered into in good faith and not for the purpose of evading the obligations of the landlord.
  4. The landlord and tenant of any dwelling unit other than a single family residency may agree that the tenant is to perform specified repairs, maintenance tasks, alterations, or remodeling only if:
    1. The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord and is set forth in a separate writing signed by the parties and supported by adequate consideration;
    2. The work is not necessary to cure noncompliance with subsection (1)(a) of this section; and
    3. The agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.

History. Enact. Acts 1974, ch. 378, § 20; repealed and reenact., Acts 1984, ch. 176, § 19, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.595 (Acts 1974, ch. 378, § 20) was repealed and reenacted by Acts 1984, ch. 176, § 19, effective July 13, 1984.

NOTES TO DECISIONS

1.Damages.

Summary judgment for landlords in a tenant’s claim for personal injuries arising from the landlords’ failure to repair carpet in a leased apartment was proper because the Uniform Residential Landlord Tenant Act, KRS 383.500 et seq., did not alter the common-law rule that a lessor’s liability for breach of an agreement to repair leased premises was limited to the cost of repair. Miller v. Cundiff, 245 S.W.3d 786, 2007 Ky. App. LEXIS 143 (Ky. Ct. App. 2007).

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Payment for Repairs Made by Tenant Under KRS 383.635 , URLTA jurisdiction, Form 309.12.

Caldwell’s Kentucky Form Book, 5th Ed., Answer Claiming Lease Lawfully Terminated by Tenant Under KRS 383.625 , URLTA Jurisdiction, Form 309.11.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Tenant for Retaliatory Conduct of Landlord, Form 309.06.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.600. Limitation of liability.

  1. Unless otherwise agreed, a landlord who conveys premises that include a dwelling unit subject to a rental agreement in a good faith sale to a bona fide purchaser is relieved of liability under the rental agreement and KRS 383.505 to 383.715 as to events occurring after written notice to the tenant of the conveyance.
  2. Unless otherwise agreed, a manager of premises that include a dwelling unit is relieved of liability under the rental agreement and KRS 383.505 to 383.715 as to events occurring after written notice to the tenant of the termination of his management.

History. Enact. Acts 1974, ch. 378, § 21; repealed and reenact., Acts 1984, ch. 176, § 20, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.600 (Acts 1974, ch. 378, § 21) was repealed and reenacted by Acts 1984, ch. 176, § 20, effective July 13, 1984.

383.605. Tenant’s maintenance obligations.

A tenant shall:

  1. Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;
  2. Keep that part of the premises that he occupies and uses as clean and safe as the condition of the premises permit;
  3. Dispose from his dwelling unit all ashes, garbage, rubbish, and other waste in a clean and safe manner;
  4. Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits;
  5. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances including elevators in the premises;
  6. Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so; and
  7. Conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful enjoyment of the premises.

History. Enact. Acts 1974, ch. 378, § 22; repealed and reenact., Acts 1984, ch. 176, § 21, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.605 (Acts 1974, ch. 378, § 22) was repealed and reenacted by Acts 1984, ch. 176, § 21, effective July 13, 1984.

NOTES TO DECISIONS

1.Willful Breach.

In an adversary proceeding where the bankruptcy court found the debtor's liability to plaintiffs for willful and malicious damage to a rental apartment was nondischargeable, plaintiffs were entitled a statutory award of their reasonable attorney's fees because the debtor's breaches of the rental agreement and her statutory maintenance obligations were willful. Sager v. Bennett (In re Bennett), 2015 Bankr. LEXIS 32 (Bankr. E.D. Ky. Jan. 7, 2015).

383.610. Rules and regulations.

  1. A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant’s use and occupancy of the premises. It is enforceable against the tenant only if:
    1. Its purpose is to promote the convenience, safety, or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;
    2. It is reasonably related to the purpose for which it is adopted;
    3. It applies to all tenants in the premises in a fair manner;
    4. It is sufficiently explicit in its prohibition, direction, or limitation of the tenant’s conduct to fairly inform him of what he must or must not do to comply;
    5. It is not for the purpose of evading the obligations of the landlord; and
    6. The tenant has notice of it at the time he enters into the rental agreement, or when it is adopted.
  2. If a rule or regulation is adopted after the tenant enters into the rental agreement that works a substantial modification of his bargain it is not valid unless the tenant consents to it in writing.

History. Enact. Acts 1974, ch. 378, § 23; repealed and reenact., Acts 1984, ch. 176, § 22, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.610 (Acts 1974, ch. 378, § 23) was repealed and reenacted by Acts 1984, ch. 176, § 22, effective July 13, 1984.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.615. Access.

  1. A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations, or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen, or contractors.
  2. A landlord may enter the dwelling unit without consent of the tenant in case of emergency.
  3. A landlord shall not abuse the right of access or use it to harass the tenant. Except in case of emergency or unless it is impracticable to do so, the landlord shall give the tenant at least two (2) days’ notice of his intent to enter and may enter only at reasonable times.
  4. A landlord has no other right of access except:
    1. Pursuant to court order;
    2. As permitted by KRS 383.665 and 383.670(2); or
    3. Unless the tenant has abandoned or surrendered the premises.

History. Enact. Acts 1974, ch. 378, § 24; repealed and reenact., Acts 1984, ch. 176, § 23, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.615 (Acts 1974, ch. 378, § 24) was repealed and reenacted by Acts 1984, ch. 176, § 23, effective July 13, 1984.

NOTES TO DECISIONS

1.Search and Seizure.

When an agent and a detective came to a residence to conduct a knock and talk, it was impermissible to get a landlord to open the door; moreover, the exigent circumstances of plain smell were created when the agent and the detective improperly permitted the landlord to unlock the door. Hall v. Commonwealth, 438 S.W.3d 387, 2014 Ky. App. LEXIS 6 (Ky. Ct. App. 2014).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.620. Tenant’s use and occupancy.

Unless otherwise agreed, a tenant shall occupy his dwelling unit only as a dwelling unit. The rental agreement may require that the tenant notify the landlord of any anticipated extended absence from the premises in excess of seven (7) days no later than the first day of the extended absence.

History. Enact. Acts 1974, ch. 378, § 25; repealed and reenact., Acts 1984, ch. 176, § 24, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.620 (Acts 1974, ch. 378, § 25) was repealed and reenacted by Acts 1984, ch. 176, § 24, effective July 13, 1984.

383.625. Noncompliance by landlord.

  1. Except as provided in KRS 383.505 to 383.715 , if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with KRS 383.595 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty (30) days after receipt of the notice if the breach is not remedied in fourteen (14) days, and the rental agreement shall terminate as provided in the notice subject to the following:
    1. If the breach is remediable by repairs, the payment of damages or otherwise and the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate by reason of the breach.
    2. If substantially the same act or omission which constituted a prior noncompliance covered by subsection (1) of which notice was given recurs within six (6) months, the tenant may terminate the rental agreement upon at least fourteen (14) days’ written notice specifying the breach and the date of termination of the rental agreement.
    3. The tenant may not terminate for a condition caused by the deliberate or negligent act or omission of the tenant, a member of his family, or other person on the premises with his consent.
  2. Except as provided in KRS 383.505 to 383.715 , the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement of KRS 383.595 .
  3. The remedy provided in subsection (2) is in addition to any right of the tenant arising under subsection (1) of this section.
  4. If the rental agreement is terminated, the landlord shall return all prepaid rent.

History. Enact. Acts 1974, ch. 378, § 26; repealed and reenact., Acts 1984, ch. 176, § 25, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.625 (Acts 1974, ch. 378, § 26) was repealed and reenacted by Acts 1984, ch. 176, § 25, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Trial judge erred in denying the landlord's motion for summary judgment and granting the tenants' motion for partial summary judgment where the tenants failed to follow the statutory requirements set forth in Ky. Rev. Stat. Ann. §§ 383.625 , 383.630 , 383.635 , 383.640 , and 383.645 to resolve their alleged disputes as to habitability and had remained in the house until evicted. Wildcat Prop. Mgmt., LLC v. Franzen, 2015 Ky. App. LEXIS 101 (Ky. Ct. App. July 10, 2015), review denied, ordered not published, 2016 Ky. LEXIS 135 (Ky. Mar. 9, 2016).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Claiming Lease Lawfully Terminated by Tenant Under KRS 383.625 , URLTA Jurisdiction, Form 309.11.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Tenant for Failure to Supply Essential Services, URLTA Jurisdiction, Form 309.07.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 309 Landlord and Tenant, § 309.syn.

383.630. Landlord’s failure to deliver possession.

  1. If the landlord fails to deliver possession of the dwelling unit to the tenant as provided in KRS 383.590 , rent abates until possession is delivered and the tenant may:
    1. Terminate the rental agreement upon at least five (5) days’ written notice to the landlord and upon termination the landlord shall return all prepaid rent and damage fee; or
    2. Demand performance of the rental agreement by the landlord and, if the tenant elects, maintain an action for possession of the dwelling unit against the landlord or any person wrongfully in possession and recover the damages sustained by him.
  2. If a person’s failure to deliver possession is willful and not in good faith, an aggrieved person may recover from that person an amount not more than three (3) months’ periodic rent or threefold the actual damages sustained, whichever is greater, and reasonable attorney’s fees.

History. Enact. Acts 1974, ch. 378, § 27; repealed and reenact., Acts 1984, ch. 176, § 26, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.630 (Acts 1974, ch. 378, § 27) was repealed and reenacted by Acts 1984, ch. 176, § 26, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Trial judge erred in denying the landlord's motion for summary judgment and granting the tenants' motion for partial summary judgment where the tenants failed to follow the statutory requirements set forth in Ky. Rev. Stat. Ann. §§ 383.625 , 383.630 , 383.635 , 383.640 , and 383.645 to resolve their alleged disputes as to habitability and had remained in the house until evicted. Wildcat Prop. Mgmt., LLC v. Franzen, 2015 Ky. App. LEXIS 101 (Ky. Ct. App. July 10, 2015), review denied, ordered not published, 2016 Ky. LEXIS 135 (Ky. Mar. 9, 2016).

383.635. Remedies for noncompliance that affects health and safety.

  1. If the landlord willfully and materially fails to comply with the rental agreement or fails to comply with KRS 383.595 and such noncompliance materially affects health and safety and the reasonable cost of compliance is less than one hundred dollars ($100), or an amount equal to one-half (1/2) of the monthly rent, whichever amount is greater, the tenant may notify the landlord of his intention to correct the condition at the landlord’s expense. If the landlord willfully fails to comply within fourteen (14) days after being notified by the tenant in writing or as promptly as conditions require in case of emergency, the tenant may cause the work to be done in a workmanlike manner and, after submitting to the landlord an itemized statement for the work actually done and for which the tenant has paid in full, deduct from his rent the actual and reasonable cost or the fair and reasonable value of the work, not exceeding the amount specified in this subsection.
  2. A tenant may not repair at the landlord’s expense if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his family, or other person on the premises with his consent.

History. Enact. Acts 1974, ch. 378, § 28; repealed and reenact., Acts 1984, ch. 176, § 27, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.635 (Acts 1974, ch. 378, § 28) was repealed and reenacted by Acts 1984, ch. 176, § 27, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Trial judge erred in denying the landlord's motion for summary judgment and granting the tenants' motion for partial summary judgment where the tenants failed to follow the statutory requirements set forth in Ky. Rev. Stat. Ann. §§ 383.625 , 383.630 , 383.635 , 383.640 , and 383.645 to resolve their alleged disputes as to habitability and had remained in the house until evicted. Wildcat Prop. Mgmt., LLC v. Franzen, 2015 Ky. App. LEXIS 101 (Ky. Ct. App. July 10, 2015), review denied, ordered not published, 2016 Ky. LEXIS 135 (Ky. Mar. 9, 2016).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Payment for Repairs Made by Tenant Under KRS 383.635 , URLTA jurisdiction, Form 309.12.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Tenant for Failure to Supply Essential Services, URLTA Jurisdiction, Form 309.07.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 309 Landlord and Tenant, § 309.syn.

383.640. Wrongful failure to supply essential services.

  1. If, contrary to the rental agreement of KRS 383.595 , the landlord willfully fails to supply heat, running water, hot water, electric, gas, or other essential service, the tenant may give written notice to the landlord specifying the breach and may:
    1. Procure reasonable amounts of heat, hot water, running water, electric, gas, and the essential service during the period of the landlord’s noncompliance and deduct their actual and reasonable cost from the rent;
    2. Recover damages based upon the diminution in the fair rental value of the dwelling unit; or
    3. Procure reasonable substitute housing during the period of the landlord’s noncompliance, in which case the tenant is excused from paying rent for the period of the landlord’s noncompliance.
  2. In addition to a remedy provided in paragraph (c) of subsection (1) the tenant may recover reasonable attorney’s fees.
  3. If the tenant proceeds under this section, he may not proceed under KRS 383.625 or 383.635 as to that breach.
  4. Rights of the tenant under this section do not arise until he has given notice to the landlord or if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his family, or other person on the premises with his consent.

History. Enact. Acts 1974, ch. 378, § 29; repealed and reenact., Acts 1984, ch. 176, § 28, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.640 (Acts 1974, ch. 378, § 29) was repealed and reenacted by Acts 1984, ch. 176, § 28, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Trial judge erred in denying the landlord's motion for summary judgment and granting the tenants' motion for partial summary judgment where the tenants failed to follow the statutory requirements set forth in Ky. Rev. Stat. Ann. §§ 383.625 , 383.630 , 383.635 , 383.640 , and 383.645 to resolve their alleged disputes as to habitability and had remained in the house until evicted. Wildcat Prop. Mgmt., LLC v. Franzen, 2015 Ky. App. LEXIS 101 (Ky. Ct. App. July 10, 2015), review denied, ordered not published, 2016 Ky. LEXIS 135 (Ky. Mar. 9, 2016).

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Tenant for Failure to Supply Essential Services, URLTA Jurisdiction, Form 309.07.

383.645. Landlord’s noncompliance as defense to action for possession or rent.

  1. In an action for possession based upon nonpayment of the rent or in an action for rent when the tenant is in possession, the tenant may counterclaim for any amount he may recover under the rental agreement of KRS 383.565 . In that event the court from time to time may order the tenant to pay into court all or part of the rent accrued and thereafter accruing, and shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court, and the balance by the other party. If no rent remains due after application of this section, judgment shall be entered for the tenant in the action for possession. If the defense or counterclaim by the tenant is without merit and is not raised in good faith, the landlord may recover reasonable attorney’s fees.
  2. In an action for rent when the tenant is not in possession, he may counterclaim as provided in subsection (1) but is not required to pay any rent into court.

History. Enact. Acts 1974, ch. 378, § 30; repealed and reenact., Acts 1984, ch. 176, § 29, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.645 (Acts 1974, ch. 378, § 30) was repealed and reenacted by Acts 1984, ch. 176, § 29, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Trial judge erred in denying the landlord's motion for summary judgment and granting the tenants' motion for partial summary judgment where the tenants failed to follow the statutory requirements set forth in Ky. Rev. Stat. Ann. §§ 383.625 , 383.630 , 383.635 , 383.640 , and 383.645 to resolve their alleged disputes as to habitability and had remained in the house until evicted. Wildcat Prop. Mgmt., LLC v. Franzen, 2015 Ky. App. LEXIS 101 (Ky. Ct. App. July 10, 2015), review denied, ordered not published, 2016 Ky. LEXIS 135 (Ky. Mar. 9, 2016).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.650. Fire or casualty damage.

  1. If the dwelling unit or premises are damaged or destroyed by fire or casualty or so injured by the elements, act of God, or other cause to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant or the landlord may terminate the rental agreement upon fourteen (14) days’ notice; however, the tenant may immediately vacate the premises.
  2. If the rental agreement is terminated under provision of this section the landlord shall return all the unused portion of the prepaid rent. Accounting for rent in the event of termination or apportionment shall be made as of the date of the casualty.

History. Enact. Acts 1974, ch. 378, § 31; repealed and reenact., Acts 1984, ch. 176, § 30, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.650 (Acts 1974, ch. 378, § 31) was repealed and reenacted by Acts 1984, ch. 176, § 30, effective July 13, 1984.

383.655. Tenant’s remedies for unlawful ouster, exclusion or diminution of service.

If a landlord unlawfully removes or excludes the tenant from the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electric, gas, or other essential service, the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount not more than three (3) months periodic rent and a reasonable attorney’s fee. If the rental agreement is terminated, the landlord shall return all prepaid rent.

History. Enact Acts 1974, ch. 378, § 32; repealed and reenact., Acts 1984, ch. 176, § 31, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.655 (Acts 1974, ch. 378, § 32) was repealed and reenacted by Acts 1984, ch. 176, § 31, effective July 13, 1984.

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.660. Tenant’s noncompliance with rental agreement — Failure to pay rent.

  1. Except as provided in KRS 383.505 to 383.715 , if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with KRS 383.605 or 383.610 , the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than fourteen (14) days after receipt of the notice. If the breach is not remedied in fifteen (15) days, the rental agreement shall terminate as provided in the notice subject to the following. If the breach is remediable by repairs or the payment of damages or otherwise and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate. If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six (6) months, the landlord may terminate the rental agreement upon at least fourteen (14) days’ written notice specifying the breach and the date of termination of the rental agreement.
  2. If rent is unpaid when due and the tenant fails to pay rent within seven (7) days after written notice by the landlord of nonpayment and his intention to terminate the rental agreement if the rent is not paid within that period, the landlord may terminate the rental agreement.
  3. Except as provided in KRS 383.505 to 383.715 , the landlord may recover damages and obtain injunctive relief for any noncompliance by the tenant with the rental agreement or KRS 383.605 or 383.610 . If the tenant’s noncompliance is willful the landlord may recover actual damages and reasonable attorney’s fees.

History. Enact. Acts 1974, ch. 378, § 33; repealed and reenact., Acts 1984, ch. 176, § 32, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.660 (Acts 1974, ch. 378, § 33) was repealed and reenacted by Acts 1984, ch. 176, § 32, effective July 13, 1984.

NOTES TO DECISIONS

1.Applicability.

Circuit Court did not err in dismissing a housing authority’s forcible detainer action against a tenant on the ground that the tenant remedied the breach of the lease agreement under the Uniform Residential Landlord and Tenant Act (URLTA), KRS 383.660(1); the authority exercised its discretion and gave the tenant the rights conferred by the URLTA, including KRS 383.660(1), when it incorporated the URLTA into the lease; there is no prohibition in 42 USCS § 1437d(l)(6) against affording a public housing tenant the right to remedy the breach, no irreconcilable conflict between § 1437d(l)(6) and KRS 383.660(1), and the application of KRS 383.660(1) does not defeat the objectives of § 1437d(l)(6). Hous. Auth. of Covington v. Turner, 295 S.W.3d 123, 2009 Ky. App. LEXIS 72 (Ky. Ct. App. 2009).

2.Attorney’s Fees.

Attorney’s fees should not have been awarded to a landlord because they were prohibited under KRS 383.570 , and willful noncompliance under KRS 383.660(3) was not shown by unkept promises of future rental payment and by leaving the property in less than perfect condition. The claim also failed because the tenant was not given notice of the acts or omissions alleged against him that would have authorized the application of KRS 383.660(3). O'Rourke v. Lexington Real Estate Co. L.L.C., 365 S.W.3d 584, 2011 Ky. App. LEXIS 190 (Ky. Ct. App. 2011).

In an adversary proceeding where the bankruptcy court found the debtor's liability to plaintiffs for willful and malicious damage to a rental apartment was nondischargeable, plaintiffs were entitled a statutory award of their reasonable attorney's fees because the debtor's breaches of the rental agreement and her statutory maintenance obligations were willful. Sager v. Bennett (In re Bennett), 2015 Bankr. LEXIS 32 (Bankr. E.D. Ky. Jan. 7, 2015).

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.665. Tenant’s failure to maintain.

If there is noncompliance by the tenant with KRS 383.605 or 383.610 materially affecting health and safety that can be remedied by repair, replacement of a damaged item or cleaning, and the tenant fails to comply as promptly as conditions require in case of emergency or within fourteen (14) days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the dwelling unit and cause the work to be done in a workmanlike manner and submit the itemized bill for the actual and reasonable cost or the fair and reasonable value thereof as rent on the next date periodic rent is due, or if the rental agreement has terminated, for immediate payment.

History. Enact. Acts 1974, ch. 378, § 34; repealed and reenact., Acts 1984, ch. 176, § 33, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.665 (Acts 1974, ch. 378, § 34) was repealed and reenacted by Acts 1984, ch. 176, § 33, effective July 13, 1984.

383.670. Remedies for absence, nonuse and abandonment.

  1. If the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of seven (7) days as required in KRS 383.620 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.
  2. During any absence of the tenant in excess of seven (7) days, the landlord may enter the dwelling unit at times reasonably necessary.
  3. If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, it terminates as of the date of the new tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month-to-month or week-to-week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.

History. Enact. Acts 1974, ch. 378, § 35; repealed and reenact., Acts 1984, ch. 176, § 34, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.670 (Acts 1974, ch. 378, § 35) was repealed and reenacted by Acts 1984, ch. 176, § 34, effective July 13, 1984.

383.675. Waiver of landlord’s right to terminate.

Acceptance of rent with knowledge of a default by the tenant or acceptance of performance by him that varies from the terms of the rental agreement constitutes a waiver of the landlord’s right to terminate the rental agreement for that breach, unless otherwise agreed after the breach has occurred.

History. Enact. Acts 1974, ch. 378, § 36; repealed and reenact., Acts 1984, ch. 176, § 35, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.675 (Acts 1974, ch. 378, § 36) was repealed and reenacted by Acts 1984, ch. 176, § 35, effective July 13, 1984.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer to Forcible Detainer Complaint, Form 310.04.

383.680. Landlord’s lien or security interest — Distraint for rent.

  1. A lien or security interest on behalf of the landlord in the tenant’s household goods is not enforceable unless perfected before August 1, 1984.
  2. Distraint for rent is abolished.

History. Repealed, reenact. and amend. Acts 1984, ch. 176, § 36, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.680 (Acts 1974, ch. 378, § 37) was repealed, reenacted and amended by Acts 1984, ch. 176, § 36, effective July 13, 1984.

383.685. Remedy after termination.

If the rental agreement is terminated, the landlord may have a claim for possession and for rent and a separate claim for actual damages for breach of the rental agreement and reasonable attorney’s fees as provided in KRS 383.660(3).

History. Enact. Acts 1974, ch. 378, § 38; repealed and reenact., Acts 1984, ch. 176, § 37, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.685 (Acts 1974, ch. 378, § 38) was repealed and reenacted by Acts 1984, ch. 176, § 37, effective July 13, 1984.

383.690. Recovery of possession limited.

A landlord may not recover or take possession of the dwelling unit by action or otherwise, including willful diminution of services to the tenant by interrupting or causing the interruption of heat, electric, running water, hot water, gas, or other essential service to the tenant, except in case of abandonment, surrender, or as permitted in KRS 383.505 to 383.715 .

History. Enact. Acts 1974, ch. 378, § 39; repealed and reenact., Acts 1984, ch. 176, § 38, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.690 (Acts 1974, ch. 378, § 39) was repealed and reenacted by Acts 1974, ch. 176, § 38, effective July 13, 1984.

383.695. Periodic tenancy — Holdover remedies.

  1. The landlord or the tenant may terminate a week-to-week tenancy by a written notice given to the other at least seven (7) days before the termination date specified in the notice.
  2. The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty (30) days before the periodic rental date specified in the notice.
  3. The landlord or the tenant may terminate a tenancy begun upon the termination of a written lease by written notice given to the other at least ten (10) days before the termination date specified in the notice, except that if the tenant fails to pay rent within ten (10) days after the day it becomes due, the landlord may terminate the tenancy at any time without notice.
  4. If the tenant remains in possession without the landlord’s consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant’s holdover is willful and not in good faith the landlord may also recover an amount not more than three (3) months’ periodic rent or threefold the actual damages sustained by him, whichever is greater, and reasonable attorney’s fees. If the landlord consents to the tenant’s continued occupancy, KRS 383.565(3) applies.

History. Enact. Acts 1974, ch. 378, § 40; repealed and reenact., Acts 1984, ch. 176, § 39, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.695 (Acts 1974, ch. 378, § 40) was repealed and reenacted by Acts 1984, ch. 176, § 39, effective July 13, 1984.

NOTES TO DECISIONS

1.Notice to Vacate.

Mere nonpayment of rent does not relieve the landlord of his obligation to follow the proper statutory requirements; accordingly, as the landlord failed to give the tenant the required notice to vacate, the judgment evicting the tenant had to be reversed. Clay v. Terrill, 670 S.W.2d 492, 1984 Ky. App. LEXIS 507 (Ky. Ct. App. 1984).

Opinions of Attorney General.

Regardless of whether or not a particular local jurisdiction has enacted the provisions of the Uniform Residential Landlord and Tenant Act of 1984, a landlord may not terminate a month-to-month lease unless he gives at least one month’s (30 days) advance written notice to the tenant. OAG 85-62 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forcible Entry and Detainer, § 310.00.

383.700. Remedies for abuse of access.

  1. If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access, or terminate the rental agreement. In either case the landlord may recover actual damages and reasonable attorney’s fees.
  2. If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the reoccurrence of the conduct or terminate the rental agreement. In either case the tenant may recover actual damages and reasonable attorney’s fees.

History. Enact. Acts 1974, ch. 378, § 41; repealed and reenact., Acts 1984, ch. 176, § 40, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.700 (Acts 1974, ch. 378, § 41) was repealed and reenacted by Acts 1984, ch. 176, § 40, effective July 13, 1984.

383.705. Retaliatory conduct.

  1. Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession after:
    1. The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety;
    2. The tenant has complained to the landlord of a violation under KRS 383.595 ;
    3. The tenant has organized or become a member of a tenant’s union or similar organization.
  2. If the landlord acts in violation of subsection (1) of this section, the tenant is entitled to the remedies provided in KRS 383.655 and has a defense in any retaliatory action against him for possession. In an action by or against the tenant, evidence of a complaint within one (1) year before the alleged act of retaliation creates a presumption that the landlord’s conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of a proposed rent increase or diminution of services. “Presumption” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.
  3. Notwithstanding subsections (1) and (2) of this section, a landlord may bring an action for possession if:
    1. The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in his household or upon the premises with his consent;
    2. The tenant is in default in rent; or
    3. Compliance with the applicable building or housing code requires alteration, remodeling, or demolition which would effectively deprive the tenant of use of the dwelling unit.
  4. The maintenance of an action under subsection (3) of this section does not release the landlord from liability under KRS 383.625(2).

History. Enact. Acts 1974, ch. 378, § 42; repealed and reenact., Acts 1984, ch. 176, § 41, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.705 (Acts 1974, ch. 378, § 42) was repealed and reenacted by Acts 1984, ch. 176, § 41, effective July 13, 1984.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer to Forcible Detainer Complaint, Form 310.04.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Landlord and Tenant, § 309.00.

383.710. Validity of existing transactions. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 378, § 43) was repealed by Acts 1984, ch. 176, § 43, effective July 13, 1984.

383.715. Title of law.

KRS 383.505 to 383.705 shall be known and may be cited as the “Uniform Residential Landlord and Tenant Act.”

History. Repealed, reenact. and amend. Acts 1984, ch. 176, § 42, effective July 13, 1984.

Compiler’s Notes.

Former KRS 383.715 (Acts 1974, ch. 378, §§ 1, 46) was repealed, reenacted and amended by Acts 1984, ch. 176, § 42, effective July 13, 1984.

Research References and Practice Aids

Northern Kentucky Law Review.

2012 Kentucky Survey Issue: Article: Breaking Down Barriers to Justice: Surveying the Practical Application of Kentucky’s Landlord-Tenant Laws and Calling for Basic Reform, 39 N. Ky. L. Rev. 23 (2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Claiming Lease Lawfully Terminated by Tenant Under KRS 383.625 , URLTA Jurisdiction, Form 309.11.

CHAPTER 384 Control of Property and Exercise of Rights of Persons in Armed Forces — Contracts of Infant War Veterans

384.010. Power of attorney given by member of Armed Forces or person outside United States in war activity, when revoked by death.

No agency created by a power of attorney in writing given by a principal who is at the time of execution, or who, after executing such power of attorney, becomes, either

  1. A member of the armed forces of the United States, or
  2. A person serving as a merchant seaman outside the limits of the United States, or
  3. A person outside said limits by permission, assignment or direction of any department or official of the United States government, in connection with any activity pertaining to or connected with the prosecution of any war in which the United States is then engaged, shall be revoked or terminated by the death of the principal, as to the agent or other person who, without actual knowledge or actual notice of the death of the principal, shall have acted or shall act, in good faith, under or in reliance upon such power of attorney or agency, and any action so taken, unless otherwise invalid or unenforceable, shall be binding on the heirs, devisees, legatees, or personal representatives of the principal.

History. Enact. Acts 1944, ch. 100, § 1.

Research References and Practice Aids

Cross-References.

Proof of wills where witnesses are serving in or present with armed forces, KRS 394.235 .

Recording of power of attorney, revocation, KRS 382.370 .

Release of power, execution and delivery of, KRS 386.095 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Durable Power of Attorney, Form 269.06.

384.020. Affidavit by attorney as to absence of notice of death.

An affidavit, executed by the attorney-in-fact or agent, setting forth that he has not or had not, at the time of doing any act pursuant to the power of attorney, received actual knowledge or actual notice of the revocation or termination of the power of attorney, by death or otherwise, or notice of any facts indicating the same, shall, in the absence of fraud, be conclusive proof of the nonrevocation or nontermination of the power at such time. If the exercise of the power requires execution and delivery of any instrument which is recordable under the laws of this state, such affidavit (when authenticated for record in the manner prescribed by law) shall likewise be recordable.

History. Enact. Acts 1944, ch. 100, § 2.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Durable Power of Attorney, Form 269.06.

384.030. Report of “missing” not notice of death.

No report or listing, either official or otherwise, of “missing” or “missing in action,” as such words are used in military parlance, shall constitute or be interpreted as constituting actual knowledge or actual notice of the death of such principal or notice of any facts indicating the same, or shall operate to revoke the agency.

History. Enact. Acts 1944, ch. 100, § 3.

384.040. Effect of terms of power instrument.

KRS 384.010 to 384.030 shall not be construed so as to alter or affect any provision for revocation or termination contained in such power of attorney.

History. Enact. Acts 1944, ch. 100, § 4.

384.050. Appointment of conservator for property of member of Armed Forces or Merchant Seaman.

Whenever a person (hereinafter referred to as an absentee) serving in or with the Armed Forces of the United States, or serving as a merchant seaman, has been reported or listed as missing, or missing in action, or interned in a neutral country, or beleaguered, besieged, or captured by an enemy, and such person has an interest in any form of property in this state or is a legal resident of this state and has not provided an adequate power of attorney authorizing another to act in his behalf in regard to such property or interests, the District Court of the county of such absentee’s legal domicile or of the county where such property is situated, upon petition alleging the foregoing facts and showing the necessity for providing care of the property of such absentee, made by any person who would have an interest in the property of the absentee were such absentee deceased, or on the court’s own motion, after notice to, or on receipt of proper waivers from, the heirs and next of kin of the absentee as provided by law for the administration of an estate, and upon good cause being shown, may, after finding the facts to be as aforesaid, appoint a conservator to take charge of the absentee’s estate, under the supervision and subject to the further orders of the court.

History. Enact. Acts 1944, ch. 102, § 1; 1976 (Ex. Sess.), ch. 14, § 324, effective January 2, 1978.

384.060. Qualifications of conservator — Bond — Authority.

The court shall have full discretionary authority to appoint any suitable person as such conservator and may require such conservator to post an adequate surety bond and to make such reports as the court may deem necessary. The conservator shall have the same powers and authority as the guardian of the property of an infant or the guardian or conservator of a mentally disabled person, and shall be considered as an officer or arm of the court.

History. Enact. Acts 1944, ch. 102, § 2; 1982, ch. 141, § 97, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 106 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

384.070. Termination of conservatorship.

At any time upon petition signed by the absentee, or on petition of an attorney-in-fact acting under an adequate power of attorney granted by the absentee, the court shall direct the termination of the conservatorship and the transfer of all property held thereunder to the absentee or to the designated attorney-in-fact. Likewise, if at any time subsequent to the appointment of a conservator it shall appear that the absentee has died and an executor or administrator has been appointed for his estate, the court shall direct the termination of the conservatorship and the transfer of all property of the deceased absentee held thereunder to such executor or administrator, or to the person or persons otherwise entitled thereto under existing law.

History. Enact. Acts 1944, ch. 102, § 3.

384.080. Performance of notarial acts by commissioned officers of armed forces.

  1. In addition to the acknowledgment of instruments and the performance of official acts in respect to instruments in the manner and form and as otherwise authorized by law, instruments may be acknowledged, documents attested, oaths and affirmations administered, depositions and affidavits executed, and other such official acts performed, before or by any commissioned officer in active service of the Armed Forces of the United States for any person who either
    1. Is a member of the Armed Forces of the United States, or
    2. Is serving as a merchant seaman outside the limits of the United States, or
    3. Is outside said limits by permission, assignment or direction of any department or official of the United States government.
  2. Such acknowledgment of instruments, attestation of documents, administration of oaths and affirmations, execution of depositions and affidavits, and performance of other notarial acts, heretofore or hereafter made or taken, are hereby declared legal, valid and binding, and instruments and documents so acknowledged, authenticated, or sworn to shall be admissible in evidence and eligible to record in this state under the same circumstances, and with the same force and effect as if such acknowledgment, attestation, oath, affirmation, deposition, affidavit, or other official act, had been made or taken within this state before or by a duly qualified officer or official and under his appropriate certificate and seal of office as otherwise provided by law.
  3. In the taking of acknowledgments and the performing of other notarial acts requiring certification, a certificate endorsed upon or attached to the instrument or document, which shows the date of the notarial act and which states, in substance, that the person appearing before the officer acknowledges the instrument as his act or made or signed the instrument or document under oath, shall be sufficient for all intents and purposes.
  4. When the official signature of any such commissioned officer appears upon such instrument, document or certificate, it shall be prima facie evidence that the person making such oath or acknowledgment is within the purview of this section.

History. Enact. Acts 1944, ch. 103; 1962, ch. 160.

Opinions of Attorney General.

Dependents of military personnel, civilian employes of the armed forces and their dependents who are outside the limits of the United States by virtue of permission, assignment or direction of the United States government are included within paragraph (c) of subsection (1) of this section. OAG 63-86 .

Kentucky law does not permit commissioned officers or enlisted personnel to take acknowledgments or perform other notarial acts for spouses or other dependents of military personnel who are within the limits of Kentucky; however, commissioned officers and enlisted personnel may be appointed as notaries public by the Kentucky Secretary of State if they meet the requirements of KRS 423.010 . OAG 82-591 .

Research References and Practice Aids

Cross-References.

Administration of oath to member of armed forces in connection with absentee voting, KRS 126.310 .

384.090. Enforceability of contracts of infants executed to obtain benefits of federal law providing for the making or guaranty of loans to war veterans.

When the repayment, by the borrower, of money advanced or to be advanced under a contract of loan or credit has, on application of the borrower, been made by or guaranteed in whole or in part by the federal government or any agency thereof, under authority of federal law enacted for the benefit of war veterans, the borrower shall not thereafter be entitled to avoid the contract on the ground that he was an infant when the contract was made, nor shall he or his spouse be entitled, on the ground of infancy, to avoid any mortgage or other instrument of encumbrance executed contemporaneously with such contract for the purpose of securing the same, nor any contractual transaction in connection with such contract of loan or credit pursuant to which the borrower acquired title to or an interest in the property encumbered to secure the loan or credit. For the purpose of any litigation seeking to enforce the contract of loan or credit, or any encumbrance securing the same; for the purpose of any contract or conveyance executed under a settlement or refinancing plan approved by the federal authority by which the original loan or guaranty was made; and for the purpose of making and executing any contract or conveyance necessary to the full realization of the rights, privileges and benefits intended to be conferred by the federal law, pursuant to which the loan or guaranty was made, including contracts necessary for the proper utilization of the property acquired with the proceeds of such contract of loan or credit; the borrower and his spouse shall be deemed to be of full age.

History. Enact. Acts 1945, Ex. Sess., ch. 2; 1952, ch. 35, effective June 19, 1952.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.3.

Petrilli, Kentucky Family Law, Promise of Marriage, § 2.2.

CHAPTER 385 Uniform Transfers to Minors Act

385.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 1; 1960, ch. 108, § 1; 1964, ch. 21, § 2) was repealed by Acts 1966, ch. 202, § 11.

385.011. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 1; 1976, ch. 16, § 1; 1982, ch. 141, § 98, effective July 1, 1982) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.012. Definitions.

As used in KRS 385.022 to 385.222 :

  1. “Adult” means an individual who has attained the age of eighteen (18) years;
  2. “Benefit plan” means an employer’s plan for the benefit of an employee or partner;
  3. “Broker” means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person’s own account or for the account of others;
  4. “Conservator” means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor’s property or a person legally authorized to perform substantially the same functions;
  5. “Court” means District Court;
  6. “Custodial property” means:
    1. Any interest in property transferred to a custodian under KRS 385.032 to 385.222 ; and
    2. The income from and proceeds of that interest in property;
  7. “Custodian” means a person so designated under KRS 385.092 ; or a successor or substitute custodian designated under KRS 385.182 ;
  8. “Financial institution” means a bank, trust company savings institution or credit union, chartered and supervised under state or federal law;
  9. “Legal representative” means an individual’s personal representative or conservator;
  10. “Member of the minor’s family” means the minor’s parent, step-parent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption;
  11. “Minor” means an individual who has not attained the age of eighteen (18) years;
  12. “Person” means an individual, corporation, organization, or other legal entity;
  13. “Personal representative” means an executor, administrator, successor personal representative, or special administrator of a decedent’s estate or a person legally authorized to perform substantially the same functions;
  14. “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States;
  15. “Transfer” means a transaction that creates custodial property under KRS 385.092 ;
  16. “Transferor” means a person who makes a transfer under KRS 385.032 to 385.222 ;
  17. “Trust company” means a financial institution, corporation, or other legal entity, authorized to exercise general trust powers.

History. Enact. Acts 1986, ch. 182, § 1, effective July 15, 1986.

NOTES TO DECISIONS

1.Subject Matter Jurisdiction.

Father’s writ of prohibition to bar an accounting of funds held by him for his son was denied because under the Uniform Transfers to Minors Act, KRS 385.192 applied only to minors or one petitioning for a minor, and the son was no longer a minor; the proper court for an adult to file an accounting action was the circuit court. Peter v. Gibson, 336 S.W.3d 2, 2010 Ky. LEXIS 297 ( Ky. 2010 ).

Research References and Practice Aids

Comparative Legislation.

Uniform Transfers to Minors Act:

Ark Stat. Ann. §§ 9-26-201 to 9-26-227.

Ill Comp. Stat. ch. 760 20/1 to 20/24.

Ind Code Ann. §§ 30-2-8.5-1 to 30-2-8.5-39.

Md Rev. Stat. §§ 404.005 to 404.094.

Ohio Rev. Code Ann. §§ 1339.31 to 1339.39.

Va Code Ann. §§n 31-37 to 31-59.

W. Va Code §§ 36-7-1 to 36-7-24.

Kentucky Bench & Bar.

Morris, Estate Planning for Retirement Benefits, Volume 74, No. 6, November 2010, Ky. Bench & Bar 14.

385.020. Form of gift. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 2; 1960, ch. 108, § 2) was repealed by Acts 1966, ch. 202, § 11.

385.021. Manner of making gifts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 2; 1970, ch. 92, § 91) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.022. Scope and jurisdiction.

  1. KRS 385.012 to 385.222 apply to a transfer that refers to KRS 385.032 to 385.222 in the designation under KRS 385.092(1) by which the transfer is made if at the time of the transfer, the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to KRS 385.032 to 385.222 despite a subsequent change in residence of a transferor, the minor, or the custodian, or the removal of custodial property from this state.
  2. A person designated as custodian under KRS 385.032 to 385.222 is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.
  3. A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act, of another state is governed by the law of the designated state and may be executed and is enforceable in this state if at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state.

History. Enact. Acts 1986, ch. 182, § 2, effective July 15, 1986.

NOTES TO DECISIONS

1.Applicability.

Bankruptcy trustee could not avoid the debtors’ transfer of property made to their minor child on the basis that the transfer did not comply with the Kentucky Transfers to Minors Act, KRS ch. 385, because the fact that the transfer did not comport with the Act did not render the transfer invalid. Spradlin v. Burton (In re Burton), 2008 Bankr. LEXIS 1015 (Bankr. E.D. Ky. Apr. 11, 2008).

385.030. Effect of gift. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 3; 1960, ch. 108, § 3) was repealed by Acts 1966, ch. 202, § 11.

385.031. Effect of gift. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 3) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.032. Nomination of custodian.

  1. A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: “as custodian for — (name of minor) under the Kentucky Uniform Transfers to Minors Act.” The nomination may name one (1) or more persons as substitute custodians to whom the property must be transferred in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or in a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer, or other obligor of the contractual rights.
  2. A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under KRS 385.092(1).
  3. The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under KRS 385.092 . Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to KRS 385.092 .

History. Enact. Acts 1986, ch. 182, § 3, effective July 15, 1986.

385.040. Custodian’s duties and powers. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 4; 1960, ch. 108, § 4) was repealed by Acts 1966, ch. 202, § 11.

385.041. Duties and powers of custodian. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 4; 1978, ch. 137, § 16, effective June 17, 1978; 1978, ch. 384, § 113, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.042. Transfer by irrevocable gift or exercise of power of appointment.

A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to KRS 385.092 .

History. Enact. Acts 1986, ch. 182, § 4, effective July 15, 1986.

385.050. Custodian’s rights and compensation. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 5) was repealed by Acts 1966, ch. 202, § 11.

385.051. Custodian’s expenses — Compensation — Bond and liabilities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 5) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.052. Transfer authorized by will or trust.

  1. A personal representative or trustee may make an irrevocable transfer pursuant to KRS 385.092 to a custodian for the benefit of a minor as authorized in the governing will or trust.
  2. If the testator or settlor has nominated a custodian under KRS 385.032 to receive the custodial property, the transfer must be made to that person.
  3. If the testator or settlor has not nominated a custodian under KRS 385.032 , or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under KRS 385.092(1).

History. Enact. Acts 1986, ch. 182, § 5, effective July 15, 1986.

385.060. Freedom from duty of inquiry into authorization of purported donor or custodian. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 6) was repealed by Acts 1966, ch. 202, § 11.

385.061. Exemption of third persons from liability. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 6) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.062. Other transfer by fiduciary.

  1. Subject to subsection (3) of this section, a personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor pursuant to KRS 385.092 , in the absence of a will or under a will or trust that does not contain an authorization to do so.
  2. Subject to subsection (3) of this section, a conservator may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor pursuant to KRS 385.092 .
  3. A transfer under subsection (1) or (2) of this section may be made only if:
    1. The personal representative, trustee, or conservator considers the transfer to be in the best interest of the minor;
    2. The transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument; and
    3. The transfer is authorized by the court if it exceeds ten thousand dollars ($10,000) in value.

History. Enact. Acts 1986, ch. 182, § 6, effective July 15, 1986.

385.070. Successor custodian. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 7) was repealed by Acts 1966, ch. 202, § 11.

385.071. Resignation, death or removal of custodian — Bond — Designation of successor custodian. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 7; 1978, ch. 137, § 17, effective June 17, 1978; 1978, ch. 384, § 114, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.072. Transfer by obligor.

  1. Subject to subsections (2) and (3) of this section, a person not subject to KRS 385.052 or 385.062 who holds property of or owes a liquidated debt to a minor not having a conservator may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to KRS 385.092 .
  2. If a person having the right to do so under KRS 385.032 has nominated a custodian under that section to receive the custodial property, the transfer must be made to that person.
  3. If no custodian has been nominated under KRS 385.032 , or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this section may be made to an adult member of the minor’s family or to a trust company unless the property exceeds ten thousand dollars ($10,000) in value.

History. Enact. Acts 1986, ch. 182, § 7, effective July 15, 1986.

385.080. Requiring custodian to account. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 8) was repealed by Acts 1966, ch. 202, § 11.

385.081. Accounting of custodian. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 8) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.082. Receipt for custodial property.

A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to KRS 385.032 to 385.222 .

History. Enact. Acts 1986, ch. 182, § 8, effective July 15, 1986.

385.090. Construction of chapter. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 9) was repealed by Acts 1966, ch. 202, § 11.

385.091. Construction. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 9) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.092. Manner of creating custodial property and effecting transfer — Designation of initial custodian — Control.

  1. Custodial property is created and a transfer is made whenever:
    1. An uncertificated security or a certificated security in registered form is either:
      1. 1. Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for  _____________________________________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”; or
      2. Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for  _________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”; or
    2. Money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for _____________________________________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”;
    3. The ownership of a life or endowment insurance policy or annuity contract is either:
      1. Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for  _____________________________________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”; or
      2. Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: “as custodian for  _____________________________________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”;
    4. An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: “as custodian for  _____________________________________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”;
    5. An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for  _____________________________________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”;
    6. A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either:
      1. Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: “as custodian for _____________________________________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”; or
      2. Delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: “as custodian for  _____________________________________  (name of minor) under the Kentucky Uniform Transfers to Minors Act”; or
    7. An interest in any property not described in paragraphs (a) through (f) of this subsection is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (2) of this section.
  2. An instrument in the following form satisfies the requirements of paragraphs (a)2. and (g) of subsection (1) of this section:
  3. A transferor shall place the custodian in control of the custodial property as soon as practicable.

“TRANSFER UNDER THE KENTUCKYUNIFORM TRANSFERS TO MINORS ACT I, (name of transferor or name and representative capacity if a fiduciary) hereby transfer to (name of custodian), as custodian for (name of minor) under the Kentucky Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it). Dated: (Signature) (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the Kentucky Uniform Transfers to Minors Act. Dated: ” (Signature of Custodian)

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History. Enact. Acts 1986, ch. 182, § 9, effective July 15, 1986.

NOTES TO DECISIONS

1.Applicability.

Bankruptcy trustee could not avoid the debtors’ transfer of property made to their minor child on the basis that the transfer did not comply with the Kentucky Transfers to Minors Act, KRS ch. 385, because the fact that the transfer did not comport with the Act did not render the transfer invalid. Spradlin v. Burton (In re Burton), 2008 Bankr. LEXIS 1015 (Bankr. E.D. Ky. Apr. 11, 2008).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.14.

385.100. Short title. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 83, § 10) was repealed by Acts 1966, ch. 202, § 11.

385.101. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 202, § 10) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.102. Single custodianship.

A transfer may be made only for one (1) minor, and only one (1) person may be the custodian. All custodial property held under KRS 385.032 to 385.222 by the same custodian for the benefit of the same minor constitutes a single custodianship.

History. Enact. Acts 1986, ch. 182, § 10, effective July 15, 1986.

Intangible Property

385.110. Bequests of intangible property to minors. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 8, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.112. Validity and effect of transfer.

  1. The validity of a transfer made in a manner prescribed in KRS 385.032 to 385.222 is not affected by:
    1. Failure of the transferor to comply with KRS 385.092 (3) concerning possession and control;
    2. Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under KRS 385.092 (1); or
    3. Death or incapacity of a person nominated under KRS 385.032 or designated under KRS 385.092 as custodian or the disclaimer of the office by that person.
  2. A transfer made pursuant to KRS 385.092 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in KRS 385.032 to 385.222 , and neither the minor nor the minor’s legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in KRS 385.032 to 385.222 .
  3. By making a transfer, the transferor incorporates in the disposition all the provisions of KRS 385.032 to 385.222 and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in KRS 385.032 to 385.222 .

History. Enact. Acts 1986, ch. 182, § 11, effective July 15, 1986.

NOTES TO DECISIONS

Cited:

Hempel v. Hempel, 432 S.W.3d 730, 2014 Ky. App. LEXIS 80 (Ky. Ct. App. 2014).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.14.

385.120. Testator may provide bequest is subject to Kentucky Uniform Gifts to Minors Act. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 9, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.122. Care of custodial property.

  1. A custodian shall:
    1. Take control of custodial property;
    2. Register or record title to custodial property if appropriate; and
    3. Collect, hold, manage, invest, and reinvest custodial property.
  2. In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person, dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian’s discretion and without liability to the minor or the minor’s estate, may retain any custodial property received from a transferor.
  3. A custodian may invest in or pay premiums on life insurance or endowment policies on:
    1. The life of the minor only if the minor or the minor’s estate is the sole beneficiary; or
    2. The life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor’s estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary.
  4. A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor’s interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: “as a custodian for — (name of minor) under the Kentucky Uniform Transfers to Minors Act.”
  5. A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor’s tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of fourteen (14) years.

History. Enact. Acts 1986, ch. 182, § 12, effective July 15, 1986.

NOTES TO DECISIONS

1.Duties of Custodian.

Pursuant to KRS 385.122 , a mother was required to keep records as custodian of a minor child’s account and to make them available to the father for inspection at reasonable intervals. The mother presumably had transferred the custodial property belonging to another child when that child reached the age of majority, in accordance with KRS 385.202 , leaving only one of the accounts intact. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

Pursuant to KRS 385.122 , a mother was required to keep records as custodian of a minor child’s account and to make them available to the father for inspection at reasonable intervals. The mother presumably had transferred the custodial property belonging to another child when that child reached the age of majority, in accordance with KRS 385.202 , leaving only one of the accounts intact. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

385.130. Designation of custodian. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 10, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.132. Powers of custodian.

  1. A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only.
  2. This section does not relieve a custodian from liability for breach of KRS 385.122 .

History. Enact. Acts 1986, ch. 182, § 13, effective July 15, 1986.

385.140. Direct bequest to minor. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 11, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.142. Use of custodial property.

  1. A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to:
    1. The duty or ability of the custodian personally or of any other person to support the minor; or
    2. Any other income or property of the minor which may be applicable or available for that purpose.
  2. On petition of an interested person or the minor if the minor has attained the age of fourteen (14) years, the court may order the custodian to deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
  3. A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.

History. Enact. Acts 1986, ch. 182, § 14, effective July 15, 1986.

NOTES TO DECISIONS

1.Jurisdiction.

The Legislature intended to vest the district courts with jurisdiction to determine whether a UTMA custodian has breached the standard of care as defined by the Act, and is empowered to order any relief, including reimbursement of the accounts if the District Court determines that the custodian has breached her duties. Clendenin v. Privett, 2000 Ky. App. LEXIS 6 (Ky. Ct. App. Jan. 21, 2000), aff'd, 52 S.W.3d 530, 2001 Ky. LEXIS 130 ( Ky. 2001 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.14.

385.150. Distribution of bequest. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 12, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.152. Custodian’s expenses, compensation and bond.

  1. A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian’s duties.
  2. Except for one who is a transferor under KRS 385.042 , a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
  3. Except as provided in KRS 385.182(6), a custodian need not give a bond.

History. Enact. Acts 1986, ch. 182, § 15, effective July 15, 1986.

385.160. Successor custodians. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 13, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.162. Exemption of third person from liability.

A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:

  1. The validity of the purported custodian’s designation;
  2. The propriety of, or the authority under KRS 385.032 to 385.222 for, any act of the purported custodian;
  3. The validity or propriety under KRS 385.032 to 385.222 of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or
  4. The propriety of the application of any property of the minor delivered to the purported custodian.

History. Enact. Acts 1986, ch. 182, § 16, effective July 15, 1986.

385.170. Vacancy in custodianship. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 14, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.172. Liability to third persons.

  1. A claim based on:
    1. A contract entered into by a custodian acting in a custodial capacity;
    2. An obligation arising from the ownership or control of custodial property; or
    3. A tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.
  2. A custodian is not personally liable:
    1. On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or
    2. For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
  3. A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.

History. Enact. Acts 1986, ch. 182, § 17, effective July 15, 1986.

385.180. Duties of custodian. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 15, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.182. Renunciation, resignation, death or removal of custodian — Designation of successor custodian.

  1. A person nominated under KRS 385.032 or designated under KRS 385.092 as custodian may decline to serve by delivering a valid disclaimer to the person who made the nomination or to the transferor or the transferor’s legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under KRS 385.032 , the person who made the nomination may nominate a substitute custodian under KRS 385.032; otherwise the transferor or the transferor’s legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under KRS 385.092 (1). The custodian so designated has the rights of a successor custodian.
  2. A custodian at any time may designate a trust company or an adult other than a transferor under KRS 385.042 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed.
  3. A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of fourteen (14) years and to the successor custodian and by delivering the custodial property to the successor custodian.
  4. If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of fourteen (14) years, the minor may designate as successor custodian, in the manner prescribed in subsection (2) of this section, an adult member of the minor’s family, a conservator of the minor, or a trust company. If the minor has not attained the age of fourteen (14) years or fails to act within sixty (60) days after the ineligibility, death, or incapacity, the conservator of the minor becomes successor custodian. If the minor has no conservator or the conservator declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor’s family, or any other interested person may petition the court to designate a successor custodian.
  5. A custodian who declines to serve under subsection (1) of this section or resigns under subsection (3) of this section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
  6. A transferor, the legal representative of a transferor, an adult member of the minor’s family, a guardian of the person of the minor, the conservator of the minor, or the minor if the minor has attained the age of fourteen (14) years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under KRS 385.042 or to require the custodian to give appropriate bond.

History. Enact. Acts 1986, ch. 182, § 18, effective July 15, 1986.

385.190. Jurisdiction of undistributed property. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 16, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

385.192. Accounting by and determination of liability of custodian.

  1. A minor who has attained the age of fourteen (14) years, the minor’s guardian of the person or legal representative, an adult member of the minor’s family, a transferor, or a transferor’s legal representative may petition the court:
    1. For an accounting by the custodian or the custodian’s legal representative; or
    2. For a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under KRS 385.172 to which the minor or the minor’s legal representative was a party.
  2. A successor custodian may petition the court for an accounting by the predecessor custodian.
  3. The court, in a proceeding under KRS 385.032 to 385.222 or in any other proceeding, may require or permit the custodian or the custodian’s legal representative to account.
  4. If a custodian is removed under KRS 385.182(6), the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.

History. Enact. Acts 1986, ch. 182, § 19, effective July 15, 1986.

NOTES TO DECISIONS

1.Subject Matter Jurisdiction.

As there was no provision in the statute for concurrent jurisdiction with the Circuit Court, the Circuit Court lacked subject matter jurisdiction to hear the father’s petition; District Courts had exclusive subject matter jurisdiction over claims, even accounting claims. Privett v. Clendenin, 52 S.W.3d 530, 2001 Ky. LEXIS 130 ( Ky. 2001 ).

Father’s writ of prohibition to bar an accounting of funds held by him for his son was denied because under the Uniform Transfers to Minors Act, KRS 385.192 applied only to minors or one petitioning for a minor, and the son was no longer a minor; the proper court for an adult to file an accounting action was the circuit court. Peter v. Gibson, 336 S.W.3d 2, 2010 Ky. LEXIS 297 ( Ky. 2010 ).

385.200. Method for making bequests not exclusive. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 402, § 17, effective June 17, 1978) was repealed by Acts 1986, ch. 182, § 26, effective July 15, 1986.

NOTES TO DECISIONS

7.Forcible detainer.

Because a landlord was a limited liability company, the district court should have dismissed its detainer petition against a tenant since it was not filed by an attorney licensed to practice law in Kentucky; the forcible detainer petition was a void action because it was not filed by an attorney for the landlord. Phillips v. M & M Corbin Props., LLC, 593 S.W.3d 525, 2020 Ky. App. LEXIS 5 (Ky. Ct. App. 2020).

Property manager engaged in the unauthorized practice of law because she had no authority to file a forcible detainer petition or appear before the district court on behalf of the landlord as a non-attorney; the forcible detainer petition was a void action because it was not filed by an attorney for the landlord, which was a limited liability company. Phillips v. M & M Corbin Props., LLC, 593 S.W.3d 525, 2020 Ky. App. LEXIS 5 (Ky. Ct. App. 2020).

385.202. Termination of custodianship.

The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor’s estate upon the earlier of:

  1. The minor’s attainment of age eighteen (18) with respect to custodial property transferred under KRS 385.042 to 385.072 ; or
  2. The minor’s death.

History. Enact. Acts 1986, ch. 182, § 20, effective July 15, 1986.

NOTES TO DECISIONS

1.Transfer to Minor.

Pursuant to KRS 385.122 , a mother was required to keep records as custodian of a minor child’s account and to make them available to the father for inspection at reasonable intervals. The mother presumably had transferred the custodial property belonging to another child when that child reached the age of majority, in accordance with KRS 385.202 , leaving only one of the accounts intact. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

Cited:

Peter v. Gibson, 336 S.W.3d 2, 2010 Ky. LEXIS 297 ( Ky. 2010 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.14.

385.212. Applicability.

KRS 385.032 to 385.222 apply to a transfer within the scope of KRS 385.022 made after July 15, 1986, if:

  1. The transfer purports to have been made under the Uniform Gifts to Minors Act of Kentucky; or
  2. The instrument by which the transfer purports to have been made uses in substance the designation “as custodian under the Uniform Gifts to Minors Act” or “as custodian under the Uniform Transfers to Minors Act” of any other state, and the application of KRS 385.032 to 385.222 is necessary to validate the transfer.

History. Enact. Acts 1986, ch. 182, § 21, effective July 15, 1986.

385.222. Effect on existing custodianships.

  1. Any transfer of custodial property as now defined in KRS 385.012 made before July 15, 1986, is validated notwithstanding that there was no specific authority in the Uniform Gifts to Minors Act of Kentucky for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
  2. KRS 385.012 to 385.212 apply to all transfers made before July 15, 1986, in a manner and form prescribed in the Uniform Gifts to Minors Act of Kentucky, except insofar as the application impairs constitutionally vested rights.

History. Enact. Acts 1986, ch. 182, § 22, effective July 15, 1986.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.14.

385.232. Uniformity of application and construction.

KRS 385.012 to 385.242 shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of KRS 385.012 to 385.242 among states enacting it.

History. Enact. Acts 1986, ch. 182, § 23, effective July 15, 1986.

385.242. Severability.

To the extent that KRS 385.012 to 385.232 , by virtue of KRS 385.222(2), does not apply to transfers made in a manner prescribed in the Gifts to Minors Act of Kentucky or to the powers, duties, and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of the Gifts to Minors Act of Kentucky does not affect those transfers or those powers, duties, and immunities.

History. Enact. Acts 1986, ch. 182, § 25, effective July 15, 1986.

385.252. Short title.

KRS 385.012 to 385.242 may be cited as the “Kentucky Uniform Transfers to Minors Act.”

History. Enact. Acts 1986, ch. 182, § 24, effective July 15, 1986.