Request By:
Mr. Hugh C. Adams, Jr.
Superintendent
Jessamine County Schools
Nicholasville, Kentucky 40356
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
On behalf of the Jessamine County School System, you, as superintendent, have asked the Office of the Attorney General to advise you as to the title held by the board of education to two tracts of land purchased in 1923. You stated the deeds contain clauses of general warranty, but have the following clauses:
DEED I: It is further understood that the property is sold for school purposes and when it ceases to be used for that purpose that the party of the first part his heirs and assigns is to have the refusal of it at the price second party paid for it in the event first party his heirs and assigns deed not want it then second party can sell it to whom he pleases. If the land ceases to be used for school purposes, party of second part, reserves the right to remove or sell all buildings thereon.
DEED II: It is a part of this contract that this property is for school purposes and when it ceases to be used for that purpose the first party their heirs and assigns is to have the refusal of same at what it cost second party, and if first party its heirs and assigns does not want the property back, second party is to sell the same to whom he pleases. If the land ceases to be used for school purposes party of second part reserves the right to remove or sell all buildings thereon.
You have asked the following questions:
(1) What title does the school board have with respect to this proerty if it discontinues the use of the property for school purposes in view of KRS 381.221 or any other applicable law?
(2) What duties or responsibilities do the board members have with respect to any disposition of the real estate as to public sale, or to the heirs of the original grantors?
KRS 162.010 provides that "title to all property owned by a school district is vested in the commonwealth for the benefit of the district board of education." This section further requires, with limited exception, that the school is to obtain fee simple title to all land for school purposes.
In your situation with the two tracts of land deeded in 1923, the school does have fee simple title, but the grantors provided for a possibility of reverter of title to them or their heirs if the property should cease to be used for school purposes. Because of this possibility of reverter, it is necessary to consider KRS 381.218 - 381.222.
In OAG 70-797, copy attached, this office discussed KRS 381.218 and 381.219 as follows:
"In 1960 KRS 381.218 was enacted which abolished a fee simple determinable and a possibility of a reverter and provided that 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. This statute further provides that in any case where a person had a possibility of a reverter at common law, he shall have a right of entry. KRS 381.219 [also enacted in 1960] provides that a fee simple subject to the right of entry for a condition broken shall become a fee simple absolute if the specified contingency does not occur within thirty years from the effective date of enforcement creating such fee simple subject to right of entry. "
Then in OAG 74-192, copy attached, this office discussed KRS 381.221(1). This section of our statutes reads as follows:
"(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 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."
The effect of this section is that if no declaration of intention to preserve the possibility of reverter and right of entry has been filed with the county clerk between July 1, 1960 and July 1, 1965, the possibility of reverter and right of entry has ceased. The Supreme Court of Kentucky recently declared that KRS 381.221 (1) did not impair a contract right in violation of the
State Constitution. Cline v. Johnson County Bd. of Ed., Ky., 548 S.W.2d 507 (1977).
Assuming no preservation notice as authorized by KRS 381.221 (1) was filed during the five-year period provided for by this statute, it is our opinion that the Jessamine County Board of Education now owns these two tracts of real property in fee simple absolute.
The Kentucky Court of Appeals in Atkinson v. Kish, Ky., 420 S.W.2d 104, 109 (1967), stated that the provision for the filing of a declaration of intention under KRS 381.221(1) is equivalent to a statute of limitation.
In view of our response to your first question, we believe the board is at liberty to dispose of this property as it deems proper pursuant to the state board of education regulation in this regard. 702 KAR 4:090 states as follows:
"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."
For an opinion discussing the disposal of surplus school property see OAG 76-291, copy attached. We do not feel the board has any duty or responsibility to the heirs of the original grantors, again, assuming no declaration of intention to preserve the possibility of reverter was filed by July 1, 1965.