(1) "Disposition" includes sale, lease, assignment, award by lottery, or any other transaction concerning a subdivision, if undertaken for gain or profit;
(2) "offer" includes any inducement, solicitation or attempt to encourage a person to acquire an interest in land, if undertaken for gain or profit;
(3) "person" means an individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, two (2) or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity;
(4) "purchaser" means a person who acquires or attempts to acquire or succeeds to an interest in land;
(5) "subdivider" means any owner of subdivided land who offers it for disposition or the principal agent of an inactive owner;
(6) "subdivision" and "subdivided lands" means any land situated within or without the state of Kansas which is divided or is proposed to be divided for the purpose of disposition into fifty (50) or more lots, parcels, units or interests and also includes any land whether contiguous or not if fifty (50) or more lots, parcels, units, or interests are offered as a part of a common promotional plan of advertising and sale.
History: L. 1967, ch. 311, § 1; L. 1976, ch. 241, § 1; July 1.
History: L. 1967, ch. 311, § 2; July 1.
(1) By a purchaser of subdivided lands for his or her own account in a single or isolated transaction;
(2) if fewer than fifty (50) separate lots, parcels, units or interests in subdivided lands are offered by a person in a period of twelve (12) months;
(3) on which there is a residential, commercial, or industrial building, or as to which there is a legal obligation on the part of the seller to construct such a building within two (2) years from date of disposition;
(4) to persons who are engaged in the business of construction of buildings for resale, or to persons who acquire an interest in subdivided lands for the purpose of engaging, and do engage in the business of construction of buildings for resale;
(5) pursuant to court order;
(6) by any government or government agency;
(7) as cemetery lots or interests.
(b) Unless the method of disposition is adopted for the purpose of evasion of this act, the provisions of this act do not apply to:
(1) Offers or dispositions of evidences of indebtedness secured by a mortgage or deed of trust or real estate;
(2) offers or dispositions of securities or units of interest issued by a real estate investment trust regulated under any state or federal statute;
(3) a subdivision as to which the plan of disposition is to dispose to ten (10) or fewer persons.
History: L. 1967, ch. 311, § 3; L. 1976, ch. 241, § 2; July 1.
(1) No person may in this state offer or dispose of any interest in subdivided lands located within or without this state prior to the time the subdivided lands required under the act to be registered are duly registered in accordance with this act;
(2) no person may dispose of any interest in subdivided lands unless a current public offering statement is delivered to the purchaser and the purchaser is afforded a reasonable opportunity to examine the public offering statement prior to the disposition.
History: L. 1967, ch. 311, § 4; L. 1976, ch. 241, § 3; July 1.
(1) An irrevocable appointment of the Kansas securities commissioner to receive service of any lawful process in any noncriminal proceeding arising under this act against the applicant or the applicant's personal representative;
(2) a legal description of the subdivided lands offered for registration, together with a map showing the division proposed or made, and the dimensions of the lots, parcels, units or interests and the relation of the subdivided lands to existing streets, roads, and other off-site improvements;
(3) the states or jurisdictions in which an application for registration or similar document has been filed, and any adverse order, judgment, or decree entered in connection with the subdivided lands by the regulatory authorities in each jurisdiction or by any court;
(4) the applicant's name, address, and the form, date and jurisdiction of organization; and the address of each of its offices in this state;
(5) the name, address, and principal occupation for the past five (5) years of every director and officer of the applicant or person occupying a similar status or performing similar functions; the extent and nature of his or her interest in the applicant or the subdivided lands as of a specified date within thirty (30) days of the filing of the application;
(6) a statement, in a form acceptable to the commissioner, of the condition of the title to the subdivided lands including encumbrances as of a specified date within thirty (30) days of the date of application by a title opinion of a licensed attorney, not a salaried employee, officer or director of the applicant or owner, or by other evidence of title acceptable to the commissioner;
(7) copies of the instruments which will be delivered to a purchaser to evidence his or her interest in the subdivided lands and of the contracts and other agreements which a purchaser will be required to agree to or sign;
(8) copies of the instruments by which the interest in the subdivided lands was acquired and a statement of any lien or encumbrance upon the title and copies of the instruments creating the lien or encumbrance, if any, with data as to recording;
(9) if there is a lien or encumbrance affecting more than one (1) lot, parcel, unit or interest a statement of the consequences for a purchaser of failure to discharge the lien or encumbrance and the steps, if any, taken to protect the purchaser in case of this eventuality;
(10) copies of instruments creating easements, restrictions, or other encumbrances, affecting the subdivided lands;
(11) a statement of the zoning and other governmental regulations affecting the use of the subdivided lands and also of any existing tax and existing or proposed special taxes or assessments which affect the subdivided lands;
(12) a statement of the existing provisions for access, sewage disposal, water, and other public utilities in the subdivision; a statement of the improvements to be installed, the schedule for their completion, and a statement as to the provisions for improvement maintenance;
(13) a narrative description of the promotional plan for the disposition of the subdivided lands together with copies of all advertising material which has been prepared for public distribution by any means of communication;
(14) the proposed public offering statement;
(15) any other information, including any current financial statement, which the commissioner requires by rules or regulations for the protection of purchasers.
(b) If the subdivider registers additional subdivided lands to be offered for disposition, the subdivider may consolidate the subsequent registration with any earlier registration offering subdivided lands for disposition under the same promotional plan.
(c) The subdivider shall immediately report any material changes in the information contained in an application for registration.
History: L. 1967, ch. 311, § 5; L. 1976, ch. 241, § 4; July 1.
(1) The name and principal address of the subdivider;
(2) a general description of the subdivided lands stating the total number of lots, parcels, units, or interests in the offering;
(3) the significant terms of any encumbrances, easements, liens, and restrictions, including zoning and other regulations affecting the subdivided lands and each unit or lot, and a statement of all existing taxes and existing or proposed special taxes or assessments which affect the subdivided lands;
(4) a statement of the use for which the property is offered;
(5) information concerning improvements, including streets, water supply, levees, drainage-control systems, irrigation systems, sewage disposal facilities and customary utilities, and the estimated cost, date of completion and responsibility for construction and maintenance of existing and proposed improvements which are referred to in connection with the offering or disposition of any interest in subdivided lands;
(6) additional information required by the commissioner to assure full and fair disclosure to prospective purchasers.
(b) The public offering statement shall not be used for any promotional purposes before registration of the subdivided lands and afterwards only if it is used in its entirety. No person may advertise or represent that the commissioner approves or recommends the subdivided lands or disposition thereof. No portion of the public offering statement may be underscored, italicized, or printed in larger or heavier or different color type than the remainder of the statement unless the commissioner requires it.
(c) The commissioner may require the subdivider to alter or amend the proposed public offering statement in order to assure full and fair disclosure to prospective purchasers, and no change in the substance of the promotional plan or plan of disposition or development of the subdivision may be made after registration without notifying the commissioner and without making appropriate amendment of the public offering statement. A public offering statement is not current unless all amendments are incorporated.
History: L. 1967, ch. 311, § 6; L. 1976, ch. 241, § 5; July 1.
(1) The subdivider can convey or cause to be conveyed the interest in subdivided lands offered for disposition if the purchaser complies with the terms of the offer, and when appropriate, that release clauses, conveyances in trust or other safeguards have been provided;
(2) there is reasonable assurance that all proposed improvements will be completed as represented;
(3) the advertising material and the general promotional plan are not false or misleading and comply with the standards prescribed by the commissioner in rules or regulations and afford full and fair disclosure;
(4) the subdivider has not, or if a corporation, its officers, directors, and principals have not, been convicted of a crime involving land dispositions or any aspect of the land sales business in this state, the United States, or any other state or foreign country within the past ten (10) years and has not been subject to any injunction or administrative order within the past ten (10) years restraining a false or misleading promotional plan involving land dispositions;
(5) the public offering statement requirements of this act have been satisfied.
History: L. 1967, ch. 311, § 7; L. 1976, ch. 241, § 6; July 1.
(b) If the commissioner affirmatively determines, upon inquiry and examination, that the requirements of K.S.A. 58-3307 and amendments thereto have been met, the commissioner shall enter an order registering the subdivided lands and shall designate the form of the public offering statement.
(c) If the commissioner determines upon inquiry and examination that any of the requirements of K.S.A. 58-3307 and amendments thereto has not been met, the commissioner shall notify the applicant that the application for registration must be corrected in the particulars specified within 10 days. If the requirements are not met within the time allowed the commissioner shall enter an order rejecting the registration which shall include the findings of fact upon which the order is based. Within 15 days after service of the order rejecting the registration, the applicant may petition for a hearing. Upon receipt of a timely petition, the commissioner shall conduct a hearing thereon in accordance with the provisions of the Kansas administrative procedure act.
History: L. 1967, ch. 311, § 8; L. 1976, ch. 241, § 7; L. 1988, ch. 356, § 176; July 1, 1989.
(b) The commissioner at his or her option may permit the filing of annual reports within thirty (30) days after the anniversary date of the consolidated registration in lieu of the anniversary date of the original registration.
History: L. 1967, ch. 311, § 9; L. 1976, ch. 241, § 8; July 1.
(b) The commissioner by rule or by an order, after reasonable notice and hearing, may require the filing of advertising material relating to subdivided lands prior to its distribution.
(c) If it appears that a person has engaged or is about to engage in an act or practice constituting a violation of a provision of this act, or a rule or order hereunder, the commissioner, with or without prior administrative proceedings may bring an action in the district court to enjoin the acts or practices and to enforce compliance with this act or any rule or order hereunder. Upon proper showing, injunctive relief or temporary restraining orders shall be granted, and a receiver or conservator may be appointed. The commissioner is not required to post a bond in any court proceedings.
(d) The commissioner may intervene in a suit involving subdivided lands. In any suit by or against a subdivider involving subdivided lands, the subdivider promptly shall furnish the commissioner notice of the suit and copies of all pleadings.
(e) The commissioner may:
(1) Accept registrations filed in other states or with the federal government;
(2) contract with similar agencies in this state or other jurisdictions to perform investigative functions;
(3) accept grants-in-aid from any source.
(f) The commissioner shall cooperate with similar agencies in other jurisdictions to establish uniform filing procedures and forms, uniform public offering statements, advertising standards, rules and common administrative practices.
History: L. 1967, ch. 311, § 10; L. 1976, ch. 241, § 9; July 1.
(1) Make the necessary public or private investigations within or outside of this state to determine whether any person has violated or is about to violate this act or any rule or regulation or order hereunder, or to aid in the enforcement of this act or in the prescribing of rules and regulations and forms hereunder;
(2) require or permit any person to file a statement in writing, under oath or otherwise as the commissioner determines, as to all the facts and circumstances concerning the matter to be investigated.
(b) For the purpose of any investigation or proceeding under this act, the commissioner or any officer designated by the commissioner may administer oaths or affirmations, and upon his or her own motion or upon request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence.
(c) Upon failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, the commissioner may apply to the district court for an order compelling compliance.
History: L. 1967, ch. 311, § 11; L. 1976, ch. 241, § 10; July 1.
(1) Violated any provision of this act;
(2) directly or through an agent or employee knowingly engaged in any false, deceptive, or misleading advertising, promotional, or sales methods to offer or dispose of an interest in subdivided lands;
(3) made any substantial change in the plan of disposition and development of the subdivided lands subsequent to the order of registration without obtaining prior written approval from the commissioner;
(4) disposed of any subdivided lands which have not been registered with the commissioner; or
(5) violated any lawful order or rule of the commissioner the commissioner may issue an order requiring the person to cease and desist from the unlawful practice and to take such affirmative action as in the judgment of the commissioner will carry out the purposes of this act.
(b) If the commissioner determines that the public interest will be irreparably harmed by delay in issuing an order, the commissioner may issue a temporary cease and desist order in accordance with the provisions for emergency adjudicative proceedings contained in K.S.A. 77-536 and amendments thereto. Every temporary cease and desist order shall include in its terms a provision that upon request a hearing will be held promptly to determine whether or not it becomes permanent.
History: L. 1967, ch. 311, § 12; L. 1976, ch. 241, § 11; L. 1988, ch. 356, § 177; July 1, 1989.
(1) Failed to comply with the terms of a cease and desist order;
(2) been convicted in any court subsequent to the filing of the application for registration for a crime involving fraud, deception, false pretenses, misrepresentation, false advertising, or dishonest dealing in real estate transactions;
(3) disposed of, concealed, or diverted any funds or assets of any person so as to defeat the rights of subdivision purchasers;
(4) failed faithfully to perform any stipulation or agreement made with the commissioner as an inducement to grant any registration, to reinstate any registration, or to approve any promotional plan or public offering statement; or
(5) made intentional misrepresentations or concealed material facts in an application for registration.
(b) If the commissioner finds after notice and hearing that the subdivider has been guilty of a violation for which revocation could be ordered, the commissioner may issue a cease and desist order instead.
History: L. 1967, ch. 311, § 13; L. 1976, ch. 241, § 12; L. 1988, ch. 356, § 178; July 1, 1989.
(b) This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief or trial de novo provided by law. A preliminary, procedural or intermediate action or ruling by the commissioner is immediately reviewable if review of the final decision of the commissioner would not provide an adequate remedy.
History: L. 1967, ch. 311, § 14; L. 1976, ch. 241, § 13; L. 1986, ch. 318, § 80; July 1.
History: L. 1967, ch. 311, § 15; July 1.
(b) In addition to any other remedies, the purchaser, under the preceding subsection, may recover the consideration paid for the lot, parcel, unit or interest in subdivided lands together with interest at the rate of 15% per year from the date of payment, property taxes paid, costs, and reasonable attorneys' fees less the amount of any income received from the subdivided lands upon tender of appropriate instruments of reconveyance. If the purchaser no longer owns the lot, parcel, unit or interest in subdivided lands, the purchaser may recover the amount that would be recoverable upon a tender of a reconveyance less the value of the land when disposed of and less interest at the rate of 15% per year on that amount from the date of disposition.
(c) Every person who directly or indirectly controls a subdivider liable under subsection (a), every general partner, officer, or director of a subdivider, every person occupying a similar status or performing a similar function, every employee of the subdivider who materially aids in the disposition, and every agent who materially aids in the disposition is also liable jointly and severally with and to the same extent as the subdivider, unless the person otherwise liable sustains the burden of proof that such person did not know and in the exercise of reasonable care could not have known of the existence of the facts by reason of which the liability is alleged to exist. There is a right to contribution as in cases of contract among persons so liable.
(d) Every person whose occupation gives authority to a statement which with such person's consent has been used in an application for registration or public offering statement, if such person is not otherwise associated with the subdivision and development plan in a material way, is liable only for false statements and omissions in such person's statement and only if such person fails to prove that such person did not know and in the exercise of the reasonable care of a person in such person's occupation could not have known of the existence of the facts by reason of which the liability is alleged to exist.
(e) A tender of reconveyance may be made at any time before the entry of judgment.
(f) A person may not recover under this section in actions commenced more than four years after first payment of money to the subdivider in the contested transaction.
(g) Any stipulation or provision purporting to bind any person acquiring subdivided lands to waive compliance with this act or any rule or regulation or order under it is void.
History: L. 1967, ch. 311, § 16; L. 1976, ch. 241, § 14; L. 1982, ch. 232, § 1; July 1.
(1) the subdivider's principal office is located in this state; or
(2) any offer or disposition of subdivided lands is made in this state, whether or not the offeror or offeree is then present in this state, if the offer originates within this state or is directed by the offeror to a person or place in this state and received by the person or at the place to which it is directed.
History: L. 1967, ch. 311, § 17; July 1.
History: L. 1967, ch. 311, § 18; July 1.
(1) Forthwith sends a copy of the process and of the pleading by certified or registered mail to the defendant or respondent at his or her last known address, and
(2) the plaintiff's affidavit of compliance with this section is filed in the case on or before the return day of the process, if any, or within such further time as the court allows.
(b) If any person, including any nonresident of this state, engages in conduct prohibited by this act or any rule or regulation or order hereunder, and has not filed a consent to service of process and personal jurisdiction over said person cannot otherwise be obtained in this state, that conduct authorizes the commissioner to receive service of process in any noncriminal proceeding against said person or his or her successor which grows out of that conduct and which is brought under this act or any rule or regulation or order hereunder, with the same force and validity as if served on him or her personally. Notice shall be given as provided in subsection (a).
History: L. 1967, ch. 311, § 19; L. 1976, ch. 241, § 15; July 1.
(b) The land and books and records of every person selling or offering for sale subdivided lands subject to the provisions of this act shall be subject to examination by the commissioner, or such other person as the commissioner may designate, and the examinee shall pay a fee for each examiner employed to make such examination of not to exceed twenty-five dollars ($25) for each day or fraction thereof, plus the actual expenses, including the cost of transportation of said examiner, while he or she is absent from his or her office for the purpose of making said examination.
The commissioner may require any registrant under this act to file a semiannual report containing such reasonable information as he or she may believe necessary regarding the financial condition of such registrant and the subdivided lands sold in this state by such person. Each report shall be accompanied by a filing fee of five dollars ($5).
History: L. 1967, ch. 311, § 20; July 1.
History: L. 1967, ch. 311, § 21; July 1.
History: L. 1967, ch. 311, § 22; July 1.
History: L. 1967, ch. 311, § 23; July 1.