Many people are confused when they find that a quiet title lawsuit is needed to clear some defect or “cloud” in the title to a property. In many cases, there is also a sense of urgency to resolve the dispute because the need for a quiet title action may arise when buying or selling property.
Having to endure a complex lawsuit before being able to transfer clear title to property is never popular with buyers or sellers. Some of these cases proceed smoothly, but they can become monsters. Understanding a few key elements may help to tame the monster.
Lawsuits to correct title errors are brought under Rule 105 of the Colorado Rules of Civil Procedure. This rule embodies a district court’s broad authority to address disputes regarding land and allows parties to obtain a complete adjudication of their rights. The procedure is straightforward but does take some time because of notice and publication requirements and in dealing with claims and defenses.
Quiet title actions are used to resolve many types of issues, including title and ownership of property, addressing rights and obligations regarding easements, liens, access, adverse possession, boundaries, prescriptive rights and mineral and water rights. Because of the range of issues that can be addressed, it is difficult to foresee what course a lawsuit may take, how much time may be involved or what complexities may develop during the action. Many times, probate actions that were closed long ago need to be reopened as part of a quiet title action. Additionally, disputes about land are usually emotionally laden and sometimes there is property value or money at stake.
Identifying parties who may have an interest in the disputed property may present a challenge. Finding current addresses for some parties, whether a person is still alive or if a business entity still exists can be monumental tasks. When contact information for service of documents can’t be identified, the plaintiff must show the court that diligent efforts have been made and prove to the court’s satisfaction that the only way to notify these parties is through publication, which adds additional time to the lawsuit.
In some cases, a boundary agreement can be reached that will resolve the dispute without a lawsuit or resolve the problem at an early point in the lawsuit. The parties can share in the costs and many times this resolution is the best option because the parties end the dispute with a handshake. This is important when the parties will continue to own neighboring property. It is always better for the parties to enter into an agreement on their own than to have a judge impose a ruling.
If you own property and want to sell it, or if you are a property buyer, tame the monster by making sure there aren’t any title problems. Get a preliminary title commitment, hire a surveyor to check the boundaries or do some research on your own before you get into a deal that can’t close without a quiet title action. These expenses are minor compared to a lawsuit and will be necessary anyway if you have to remove a cloud from your title.
I am often asked what a quiet title action will cost. This is a difficult question to answer as these lawsuits are unique. Often work needs to be done up front before the lawsuit is filed. For example, in a quiet title action to resolve an adverse possession matter, plaintiffs needs to be able to prove that they have been in possession of the disputed property for 18 years or more. While it may be obvious that a fence, which may be the basis of a claim, has been in the same place for a very long time, proving it in court may be difficult.
In order to tame the quiet title monster, it is important to understand some of the complexities of pursuing this type of lawsuit and to do everything you can to resolve the problem without litigation. If litigation is necessary, do it on as friendly a basis as the parties can muster – anger will only add time and costs to the procedure. If mediation or other settlement options are possible alternatives, embrace them in the effort to come to a resolution regarding the problem with the assistance of a qualified neutral facilitator.
Erin Johnson lives in Rico and serves clients throughout Southwest Colorado. She is a licensed real estate broker and practices law in areas including real estate, land development, community associations, business and estate planning. Reach her at erin@fone.net.
