Attorney General Opinion
By:Phill Kline
Published on 2003 by
K.S.A. 2002 Supp. 40-2404(14)(f), the Kansas controlled business law, prohibits title insurers and title agents in certain areas of the State from deriving 20% or more of their operating revenue (calculated within the last six months) from customers referred to them by producers of title business, or their associates, having a financial interest in the title insurer or title agent. The prohibition does not apply to federal depository institutions or affiliates that engage in title insurance business due to application of federal law that preempts this portion of the state statute. Although, as a result of this preemption, the prohibition applies to a smaller class than originally intended by the Kansas Legislature, the classification so established does not violate the equal protection clause of the United States Constitution because the classification continues to be reasonably related to the State's objective to stimulate competition and prevent vertical integration in the real estate industry. Further, it is our opinion that the federal Real Estate Settlement Procedures Act does not preempt operation of K.S.A. 2002 Supp. 40-2404(14)(f). Cited herein: K.S.A. 2002 Supp. 40-2404; 12 U.S.C. sections 2601, 2607, 2616; 24 C.F.R. sections 3500.13, 3500.15; U.S. Const., Amend. 14.
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