9 Kan. App. In both Century Savings Ass'n and Roberts , the sellers placed the deed in escrow during the execution of the contract. Although Helen's deed was not placed in escrow, the other contractual requirements are substantially similar to those in Century Savings Ass'n and Roberts . Consequently, Photographic should be considered the equitable owner of the property. Kansas has not determined whether a legal owner is liable for tort claims while an equitable owner is in possession of the real estate.
Research reveals one case from another jurisdiction very nearly on point.
Analogizing the seller's position in a contract for deed to that of a mortgagee, the Dubray court based its decision upon the theory that the equitable owner assumes all the risk, including the liability of ownership. Section 352 applies to protect Helen in this case because the condition which caused the fire existed at the time Photographic took possession. The trial court applied the principle of Dubray in reaching its decision. Graham, on the other hand, provides no authority for his argument that the legal owners should continue to bear liability for property subject to conveyance under a contract for deed. The seller of real estate under an executory contract for deed is not liable for torts occurring on the conveyed property unless the seller fails to inform the buyer of known dangerous situations that the buyer could not discover or the seller actively conceals.