A Quiet Title Action (QTA) is a type of civil lawsuit that has the purpose of clearing up problems or “clouds” that impair title to land. The problems may relate to documents that have been recorded in the real property records over the years or survey matters but the most common cause is that someone received a Treasurer’s Deed after paying unpaid taxes and then applying for a deed. A treasurer’s deed conveys title but not “marketable title” for a number of reasons. If the grantee (recipient) of such a deed wishes to sell or to obtain a bank loan secured by such land then this technical defect will probably prevent such an action or reduce the sale price. (What follows mentions the treasurer’s deed defect but the analysis and the process are the same for other defects.)
There are two ways to remove the treasurer’s deed defect: wait nine years or file a QTA. After nine years the defect will disappear but in order to clean it up before that the QTA is a necessity.
A QTA is a lawsuit filed in the District Court where the property is located that asks the judge to enter a decree clearing title in the name of the person filing the case. Once this is done the defect is removed and title is marketable. This type of case requires that everyone who might have had an interest in the property prior to the treasurer’s deed be named as a defendant and, in addition, that “all unknown persons who claim any interest in the subject matter of this action” also be named as defendants in case there is someone out there with a claim that does not show in the real property records. The named persons are identified by ordering a Commitment to Insure Title from a local title company.
Once all needed defendants have been identified the case is prepared for filing. This involves drafting a Complaint, Summons, Notice of Lis Pendens and another document required by the court. Once ready the case is filed and the Notice of Lis Pendens, a document that informs the world that the case was filed, recorded in the records of the Grand County Clerk and Recorder.
Once filed all defendants must be physically served with the court papers. “Physically served” means a process server must actually hand the papers to the defendant wherever he or she can be found. Locating these persons can be difficult or virtually impossible but the effort must be made. If the effort is a failure a motion, which is simply a written request that the court take a requested action, is filed with the court to allow service by publication on whoever could not be served as well as on the “unknown persons.” If the court is convinced that a reasonable effort was made to serve the person then it will approve publication. Once approved a Summons by Publication must be published in the local paper of record, the Middle Park Times, for five consecutive weeks. 35 days after the final publication the next step may be taken.
The next step is a motion to appoint a military attorney to “represent” the unknown persons and any known persons who could not be served. This is a Federal requirement, i.e. utterly useless, but needs to be done to ensure the final decree is good. The military attorney is chosen by me and is typically a local lawyer for whom I do the same thing when he or she has a similar case. The cost is modest and can be estimated at $125. All that attorney then does is to file a document with the court saying it can not be determined if anyone is in the military so the court should put the Plaintiff to “strict proof” of the allegations.
After that step I am able to apply for a final Judgment and Decree quieting title. Assuming everything to that point was done properly the judge will enter the Judgment and Decree, which I then record in the county real property records, and that’s that. Except it’s not quite over. For technical reasons the recorded decree is not completely safe until six months go by and until that happens there will be an exception to any title insurance to the effect that title will not be marketable for the six month period. A potential buyer may or may not be willing to accept that and, if not, the six months must be endured. I’ve never seen or heard of anything happening during that time that would jeopardize the decree but it’s mathematically possible.
There are some possible complications and the usual ones relate to the effort to serve the known defendants. It’s easy enough when they can be located in Colorado or anywhere in the U.S., for that matter, but many can not be. Having lost the land involved to a tax sale people tend not to stick around and probably left the area some time ago. If an address can be identified then the papers are sent to a process server in that area and the fun begins. There are many competent process servers but many who are the opposite. I will simply say that working with process servers is often an unpleasant experience that can take far more time than it should. The bottom line is that until I am convinced the judge will approve a motion to allow service by publication the attempt to serve the defendants needs to continue. If there was a post office address for a defendant a formal request to the Postmaster at that zip code also needs to be made. Sometimes there is a speedy response but other times there is a delayed response or none at all. My belief is that I need to wait at least 60 days after making that request before I should assume there will be no reply and proceed in court on that basis. The more defendants there are, the more possibility there is for delay and complication related to service.
Another possible complication is the bankruptcy of any of the defendants. I’ve never actually seen that happen in a QTA but it could and, if it did, there would be substantial delay. Another possibility is determining that one of the known defendants has left the country and now lives elsewhere and the address is known. Service outside the U.S. is extremely difficult, expensive, slow and often fails. Again, I’ve not seen this happen in a QTA but I have seen it in other types of cases. Finally, a case could be contested. This would be highly unlikely but it could happen if the Treasurer made some kind of error prior to issuance of the deed. This too is rare but I have seen it occur.
So how long does all this take? In a best case scenario with one named defendant who has an address and can be served quickly it should take about four months. In all other cases there can be no answer to this question as the time involved in trying to get a number of persons throughout the country served is simply an unknown factor. Until the results of all efforts to serve are known the court should not be asked to approve publication, which will ALWAYS be needed for unknown persons, as some of the known ones may also have to be served by publication and you do not want to do that twice as the publication costs will be several hundred dollars. It is not possible to be precise in any time estimate as all documents requiring the judge to approve and sign are submitted electronically and then go in the judges “in box.” Once submitted they are in the hands of court personnel and if the judge is swamped it may be some time before she gets to them.
There are probably portion of this that are difficult to understand and you are welcome to call or e-mail with questions. My contact information is on the first page of this site.
Ron Stern Law 