Attorney General Opinion No. 1982-058 PDF Download

Author: Robert T. Stephan
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Pursuant to K.A.R. 1981 Supp. 63-3-11(f), a dead human body need not be placed in a casket or wooden container in order to be cremated. If a casket is not used, the body shall be placed in a suitable combustible container. Kansas Administrative Regulations promulgated by the Kansas State Board of Embalming govern the transportation of embalmed or unembalmed bodies. Cited herein: K.A.R. 63-3-10, K.A.R. 1981 Supp. 63-3-11, K.A.R. 63-3-12, 63-3-14.

Author: Robert T. Stephan
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A register of deeds is required to file of record a written instrument whereby real estate may be affected. Such filing can properly be refused only if the instrument contains apparent errors, or is not proved or acknowledged, and certified in the manner prescribed by law, or the register of deeds has been directed by a court not to file the instrument. Of course, a register of deeds also may refuse to file instruments that clearly do not affect real estate, or where the law requires some act, such as payment of the mortgage registration fee, before the instrument may be received and filed of record. Cited herein: K.S.A. 58-2221.

Author: Robert T. Stephan
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Kansas residency is a continuing requirement for licensure as a resident real estate broker or salesperson. When a resident licensee moves to another state, such licensee is not eligible for renewal of a resident license, but must instead apply for a nonresident license and, consequently, provide proof of compliance with all provisions of K.S.A. 1981 Supp. 58-3040, including the requirement of licensure by the new state of residence. Cited herein: K.S.A. 1981 Supp. 58-3039, 58-3040, 58-3045.

Author: Robert T. Stephan
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The Sears "Home Buyers Savings Program" is not violative of the Trading Stamp Act, K.S.A. 21-2801 e̲t̲ s̲e̲q̲. However, it would be a violation of the Kansas Real Estate Brokers' and Salespersons' License Act, K.S.A. 1982 Supp. 58-3034 e̲t̲ s̲e̲q̲., for a real estate license or its parent company to offer such program contingent upon the listing, purchase or leasing of real estate through the licensee. Cited herein: K.S.A. 21-2801, 21-2803, K.S.A. 1982 Supp. 58-3034, 58-3035, 58-3062.

Author: Robert T. Stephan
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An instrument, by which several promissory notes and real estate mortgages securing thoses notes are assigned to a lending institution for the purpose of securing a loan, is not itself a mortgage of real property. It is a mortgage of intangible personal property. Thus, any such instrument should be filed together with other instruments that create liens on personal property. However, if the instrument is proved or acknowledged, and certified in accordance with the provisions of K.S.A. 58-2211 to K.S.A. 58-2219, inclusive, the instrument also may be recorded in the real estate records. Since such instruments are not mortgages of real property, said instruments may be filed without payment of the mortgage registration fee. Cited herein: K.S.A. 58-2211, 58-2219, 58-2221, K.S.A. 1981 Supp. 84-9-401.

Author: Robert T. Stephan
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As amended by L. 1982, ch. 144, section 5, K.S.A. 1981 Supp. 8-1567 provides that a person convicted of a violation of the offense of operating a motor vehicle while under the influence of alcohol may be required to perform public or community service work as an alternative to incarceration or payment of a fine. In assigning the work to be performed, a judge or court services division would be exercising judicial and discretionary functions, respectively, and would be exempt from liability under the Tort Claims Act, K.S.A. 1981 Supp. 75-6101 e̲t̲ s̲e̲q̲. However, as noted by Attorney General Opinion Nos. 81-98 and 82-157, the recipient organization (including local governments and non-profit corporations) may be liable for injuries and damages inflicted or suffered by persons acting within the scope of their designated community service duties. Cited herein: K.S.A. 1981 Supp. 8-1567 (as amended by L. 1982, ch. 144, section 5), K.S.A. 21-4610, K.S.A. 1981 Supp. 75-6102, 75-6104.

Author: Robert T. Stephan
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Pursuant to the provisions of the Real Estate Brokers' and Salespersons' License Act, K.S.A. 1980 Supp. 58-3034 e̲t̲ s̲e̲q̲., any person, in the absence of all applicable exemption, must be licensed as a real estate broker, associate broker, or salesperson in order to auction real estate as an employee of or on behalf of the owner of real estate. Although subsection (d) of K.S.A. 1980 Supp. 58-3037 exempts the executor of an estate from the licensure requirement, said exemption statute does not exempt unlicensed auctioneers employed by the executor, and such nonexempt, unlicensed auctioneers may not auction real estate. Cited herein: K.S.A. 1980 Supp. 58-3035, 58-3036, 58-3037.

Author: Robert T. Stephan
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K.S.A. 1981 Supp. 8-1567(c), as amended by section 5 of Senate Bill No. 699, establishes penalties for persons convicted of their first violation of the statute. Prior to the 1982 amendment, the subsection authorized a court to punish first time violators by imposing a specified jail sentence or a specified fine, "or by both such fine and imprisonment." In the amended statute, the word "and" replaces the word "or" between the term of imprisonment and the amount of the fine, although the phrase "or by both such fine and imprisonment" is retained. In that the intent of the legislature in altering the disjunctive "or" to the conjunctive "and" was to require both forms of punishment, the additional phrase allowing such is now mere verbiage, and adds nothing to the statute. Cited herein: K.S.A. 1981 Supp. 8-1567, as amended by L. 1982, ch. 144, section 5.

Author: Robert T. Stephan
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Neither K.S.A. 12-1222 nor the common law doctrine of incompatibility of offices precludes a person from simultaneously being the county register of deeds and a member of a city's library board. Cited herein: K.S.A. 12-1218 and 12-1222.

Author: Robert T. Stephan
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As amended by L. 1982, ch. 144, K.S.A. 1981 Supp. 8-1567 contains new provisions for the sentencing of persons who are convicted of operating a vehicle while under the influence of alcohol. Additionally, the act amends K.S.A. 1981 Supp. 8-1001 to admit into evidence the defendant's refusal to take a chemical test for the presence of alcohol. While the act does not specifically provide that these changes will apply only to offenses committed after its effective date of July 1, 1982, such a result is necessary in view of the substantive, as opposed to merely procedural, nature of these two amendments. Accordingly, the above-referenced amendments are applicable only to offenses committed after the effective date of the act. Cited herein: K.S.A. 1981 Supp. 8-1001, 8-1567, both as amended by L. 1982, ch. 144, K.S.A. 21-3102, 22-4618.