Request By:
Honorable Drewie Muncy
Attorney at Law
Box 411
Inez, Kentucky 41224
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General for an opinion concerning a deed to real property. The following restriction appears in this deed:
"It is agreed by and between the parties hereto that the above parcel so excepted shall be used only for residential purposes, and any violation thereof shall cause such property so excepted to forthwith vest in the party of the second part, its successors and assigns."
You informed us that the Martin County Board of Education is the second part in the above referred portion of the deed.
You further stated that at an August meeting of the Martin County Board of Education, the Board was requested to execute a quitclaim deed pertaining to its future interest in this property. However, the Board felt a statement by this office should be sought that the Board had the authority to execute such a deed.
Each local board of education is "a body politic and corporate with perpetual succession." KRS 160.160. By this same statute it is further provided in relevant part:
"It may sue and be sued; make contracts; purchase, receive, hold and sell property;"
As relates to property disposal, the state board of education, pursuant to KRS 156.160(12), has adopted the following regulation on school property disposal, 702 KAR 4:090:
"Section 1. School property proposed for disposal shall be surplus to the need for the educational program as approved by the latest facilities survey or by an amendment thereto. Request for approval shall be submitted in writing to the Superintendent of Public Instruction. Disposal may be implemented upon approval."
With the above statutes and regulation in mind, it is our opinion the Martin County Board of Education may enter into a quitclaim deed relative to its future interest in the above-described real property. We believe support for this conclusion rests on the similar facts involved in the case of Carson Park Riding Cl. v. Friendly Home for Child., Ky., 421 S.W.2d 832 (1967). In this case a deed had been executed conveying land for public purpose and provided that if the property should cease to be used for such purpose the title in the property would then vest in a named charity. The Court of Appeals determined that the charity had "a contingent future interest denominated as an executory interest, or an estate upon a conditional limitation, the subject of a deed of conveyance or a quit claim deed. " (Citations omitted); 421 S.W.2d 832, at page 835. The Court of Appeals concluded that the charity had "the right to convey or contract to convey whatever interest it owns in said property, whether vested or contingent under the authority set forth . . . In Austin et al. v. Calvert et al., Ky., 262 S.W.2d at page 836.
We do advise that this matter be presented in writing to the Superintendent of Public Instruction for approval as outlined in 702 KAR 4:090, supra.