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The central issue on appeal concerns the extent of Wayne's interest in the Property. As the party contesting record title and asserting full equitable title to the Property, Wayne had the burden of proving the validity and extent of his equitable interest. The recorded deed unambiguously established that the Debtor, James, and Wayne were joint tenants as of the petition date. Kansas's constructive notice statute provides that recorded instruments "impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.

When a deed does not itself establish an unequal allocation of the joint tenants' interests, the legal effect is that the joint tenants own equal undivided interests in the property. Accordingly, only a written, recorded declaration of trust will impart notice that real property is held by a grantee in express trust for another.

Kansas is one of the few states including Indiana, Minnesota, New York, and Wisconsin that has abolished by statute what other states recognize as a "purchase money resulting trust. For this reason, Section of the Kansas Statutes provides that the conveyance to a grantee who has not paid consideration is "presumed fraudulent as against the creditors of the person paying the consideration," resulting in a trust in favor of the payor's creditors.

In this case, Wayne paid consideration for the Property, but instructed his seller to convey the Property to the Debtor, James, and himself as joint tenants. Pursuant to Sections and , notwithstanding that Wayne paid the entire purchase price for the Property, no trust arose in favor of Wayne unless he could establish 1 an agreement with the Debtor that he would hold the property in trust for Wayne, and 2 that Wayne had no intent to defraud his creditors by titling the Property in joint tenancy with his sons.

Preview free downloadable Kansas Statutory Warranty Deed (Sedgwick County) in PDF (page 1)

An agreement to hold property in trust need not be in writing, need not even be express, and can be inferred from circumstances. The identity of the party that paid the purchase price or contributed funds to a bank account is a factor in rebutting a presumption of equal ownership with respect to personal property, but when real estate is involved, the Kansas statutes cited above governing deeds, recording, notice, and express and implied trusts provide the relevant framework for an analysis of the interests of joint tenants.

As explained above, a recorded deed that is unambiguous on its face establishes record ownership.


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All joint tenants acquire equal undivided interests as a matter of law unless otherwise stated in the deed. If a party who paid the purchase price for real estate who may or may not be named on the deed claims that the record owners who may or may not be joint tenants with the payor hold their interests in trust for the payor's benefit, no trust arises unless the alleged beneficial owner establishes the elements of Section Although the bankruptcy court did not make the necessary findings to establish an implied trust in favor of Wayne, in reviewing the evidence we note that the Debtor and his brother both testified that Wayne told them they were being put on the title solely for estate planning purposes, that they understood they had no present ownership interest in the Property, and that Wayne simply intended to confer a right of survivorship on them.

There was no evidence that Wayne had any creditors to defraud, and in any case, putting the Property in his own name jointly with his sons is compelling evidence that he was not hiding property from his creditors. Accordingly, because Wayne did present some circumstantial evidence that might have supported a conclusion that an implied or resulting trust arose in favor of Wayne, we will address the priority of the implied trust as if the bankruptcy court had made the requisite findings.

Warranty Deed to be used to convey property to joint tenants with survivorship rights | LawInfo

Even if we were to affirm the bankruptcy court's conclusion that Wayne owned the entire equitable interest in the Property under an implied trust theory, Kansas law subordinates such an unrecorded interest as against a subsequent purchaser. Section of the Kansas Statutes provides—. Thus, a bona fide purchaser's title is superior to the title of the beneficiary of an implied trust. In bankruptcy, the trustee stands in the shoes of a hypothetical bona fide purchaser of a debtor's interest in real property as of the petition date and has all the rights such a purchaser would have, including the right to take title free and clear of implied trust interests under Section Section a 3 of the Bankruptcy Code confers these rights on the trustee.

It provides—. Section a 3 provides that "[t]he trustee shall have, as of the commencement of the case. Interpreting the statute to grant the trustee the rights and powers of a bona fide purchaser only for the purposes of avoiding transfers by the debtor would render the word "or" superfluous.

Bill Of Sale Form Kansas Joint Tenancy Warranty Deed

Accordingly, we conclude that the bankruptcy court erred in holding that a trustee's powers under Section a 3 are limited to avoiding transfers made by the debtor. Kansas law governs whether the Trustee, as a hypothetical purchaser of the Property as of the petition date, would have qualified as a bona fide purchaser and acquired the Property free of unrecorded implied trust interests. Under Kansas case law, a prospective purchaser has been found to have a duty to inquire about the status of title when—.

But Kansas courts have found no obligation to further inquire about potential unrecorded interests when—. The burden of proving facts constituting actual or constructive notice including implied or inquiry notice of an unrecorded interest is on the party asserting the unrecorded right or interest. Here, Wayne had the burden of proving "known facts" that would establish a duty to further inquire about the status of the Debtor's title.

In this case, these would be facts of which the Trustee has constructive notice by virtue of the land records and what would be disclosed by observing the Property. Wayne presented evidence establishing that he paid the purchase price for the Property, that his intent in titling the Property in joint tenancy with his sons was estate planning, and that his sons acknowledged that they were not entitled to any present benefit from the Property.

Wayne also established that the Property was farmed by a tenant, Josh VanDorien, who only dealt with Wayne in connection with the lease and operation of the Property.


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Wayne received all income payable to the landlord and paid all the landlord's share of expenses. Documentary evidence indicated that the USDA and VanDorien were aware that the Debtor and James were also record owners of the Property, but all profits and distributions were payable to Wayne. From this evidence, we conclude that a hypothetical purchaser of the Debtor's one-third interest would have had a duty to inquire of the party in possession of the Property, who appeared to be a stranger to the title, about his claim to the Property.

However, an inquiry of VanDorien about his right to occupy the Property would not have led to facts that would put a hypothetical purchaser on notice that the joint tenants were not all equitable owners. VanDorien would have revealed that he derived his right to use and possess the Property from an agreement with Wayne to farm the land and divide the profits and expenses with Wayne. Because Wayne is a grantee on the deed as a joint tenant, VanDorien's possession as Wayne's tenant was not adverse to or inconsistent with record title.

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The bankruptcy court concluded that the inquiry of VanDorien "would naturally lead to knowledge of Debtor's lack of equity. Having established that inquiry of the occupant of the Property would not have disclosed any interest adverse to the record title, the question becomes whether any other constructively known facts were "sufficiently specific to impose the duty to investigate further" and would have "furnished a natural clue to the ultimate fact" of the existence of an implied trust in favor of Wayne.

The result in this case turns on whether a purchaser of the interest of one joint tenant in real property has a duty to approach the other joint tenants to determine the extent of the seller's rights in the property and any potential unrecorded agreements with respect to the property. We have not located any Kansas precedent that imposes such a duty on a prospective purchaser. The bankruptcy court relied upon Lumb v. Redmond, 65 a Kansas federal district court case, in adopting the view that "a prudent person would make inquiry of co-owners of farm land before purchasing a partial interest.

We believe that a duty to inquire about the possibility of an implied trust or other unrecorded agreements when title is held by joint tenants undermines the purpose of the Kansas recording statutes, imposes an undue burden on purchasers, 69 and impairs the reliability of record title. The comprehensive treatise on titles, Patton and Palomar on Land Titles, explains that recording statutes such as Section of the Kansas Statutes are designed to operate as follows—. In light of the efficiency and purpose of the recording statute, the risk of loss vis-a-vis a subsequent purchaser of real property is justifiably placed on the party who failed to provide constructive notice to potential purchasers by simply recording his or her claim or interest.

A prospective purchaser must be able to rely on the record title of a selling joint tenant except 1 when the purchaser has actual knowledge of an unrecorded interest which knowledge does not bind a bankruptcy trustee or 2 if some evidence in the land records or on the property itself appears inconsistent with the record title. The bankruptcy court erred in imposing a duty to inquire about the possibility of unrecorded transfers or agreements among joint tenants solely because record title is held in joint tenancy.

Section a 3 grants the Trustee all the rights and powers a bona fide purchaser would have as against Wayne's implied trust claim under Kansas law. Under Section of the Kansas Statutes, the Trustee's interest could not be defeated by an unrecorded implied trust unless he had notice of the trust.

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Four Ways to Pass Property at Death Part 3 Joint Tenancy

For more information, please contact the Register of Deeds Office at Can I prepare my own deed? Yes, you can prepare your own deed, but to prevent mistakes that could be costly we always recommend that you retain an attorney or title company to help ensure that the deed is prepared accurately. Our staff does not prepare deeds nor are we qualified to provide legal advice. If I sell a portion of my land, do I get a deed for the remainder? No, not unless you have a new deed prepared containing only the remainder of land you own. When documents are recorded in our office they become permanent record and cannot be altered.

To determine what someone owns after the sale of a portion of land, you would need the original legal description and the description of any pieces sold. A survey may be required for a new legal description. Who keeps the documents I submit for recording? Once a document is recorded it is returned to the filer. A digital copy is kept at the Register of Deeds office and a microfilmed copy is stored at the salt mines in Hutchison, Kansas. Can I find out who owns a particular piece of property?

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A call or visit to the Register of Deeds Office with an address or legal description will enable us to determine who owns the property. Can I verify my date of birth or age in your department? Kansas law allows us to provide verification from county school census records. Kansas Department of Health and Environment Office My spouse recently died. How do I change the name on my deed? If you owned the property in joint tenancy, you need to file a certified copy of the death certificate in the Register of Deeds Office at Jefferson Street in Oskaloosa.

This will remove the name of the deceased party from the title to the real estate.