LIST OF CHAPTERS. Chapter 2 MECHANICS OF A QUIET TITLE ACTION QUIET TITLE ACTIONS AGAINST THE FEDERAL GOVERNMENT

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1 LIST OF CHAPTERS Chapter 1 QUIET TITLE SETTING THE STAGE Chapter 2 MECHANICS OF A QUIET TITLE ACTION Chapter 3 PARTIES AND SERVICE Chapter 4 DEFENSE OF A QUIET TITLE ACTION Chapter 5 WORKING WITH EXPERTS Chapter 6 LIS PENDENS Chapter 7 QUIET TITLE ACTIONS AGAINST THE FEDERAL GOVERNMENT Chapter 8 JUDICIAL FORECLOSURES Chapter 9 RECEIVERS Chapter 10 ADVERSE POSSESSION Chapter 11 COLORADO BOUNDARY DISPUTES Chapter 12 ACCESS AND EASEMENT ISSUES Chapter 13 SPURIOUS LIENS, PARTITION, EQUITABLE SUBROGATION, WATER RIGHTS, TREASURER S DEEDS, FRAUDULENT RELEASE OF DEEDS OF TRUST, AND TRANSFER FEES Chapter 14 RESEARCHING QUIET TITLE FACTS Chapter 15 SETTLEMENT STRATEGIES Chapter 16 WARRANTY DEED CLAIMS Chapter 17 TRIAL CONSIDERATIONS TOC-1

2 Colorado Quiet Title Actions Chapter 18 ATTORNEY FEES IN QUIET TITLE ACTIONS Chapter 19 LEGAL ETHICS CONSIDERATIONS IN QUIET TITLE ACTIONS APPENDIX A Colorado Real Estate Title Standards SUBJECT INDEX TOC-2

3 TABLE OF CONTENTS Chapter 1 QUIET TITLE SETTING THE STAGE HISTORY OF QUIET TITLE ACTIONS PURPOSE OF QUIET TITLE ACTIONS THE RECORDING ACT ACTUAL NOTICE, CONSTRUCTIVE NOTICE, AND INQUIRY NOTICE Actual Notice Constructive Notice Inquiry Notice Sender v. Cygan COLORADO REAL ESTATE TITLE STANDARDS INTRODUCTION TO OFF RECORD TITLE ISSUES ZONING A BRIEF HISTORY OF PRIVATE PROPERTY: THE MOST CREATIVE AND DESTRUCTIVE FORCE IN HISTORY Introduction English Ship s Defeat Of China During The First Opium War The Rise Of Private Property In England Meanwhile, In China Ownership Before The Rise Of Private Property Destruction, Displacement Caused By The Creation Of Private Property The Morality Of Private Property TOC-3

4 Colorado Quiet Title Actions Comparison Of Development In England Versus Other European Countries Case Studies Pre-World War II Post-World War II Land Reforms Case Study: Common Ownership In The Italian Dolomites Chapter 2 MECHANICS OF A QUIET TITLE ACTION INTRODUCTION INVESTIGATION LITIGATION GUARANTEE LEGAL DESCRIPTION JURISDICTION AND VENUE RIGHT TO A JURY TRIAL Determining The Character Of The Action Limitations On Jury Trials In Real Estate Matters Making A Jury Demand Appeal DEFAULT JUDGMENT THE DECREE CIVIL ACCESS PILOT PROJECT EXHIBITS Exhibit 2A Cover Sheet JDF Exhibit 2B Complaint Under Rule Exhibit 2C Summons TOC-4

5 Table of Contents Exhibit 2D Motion for Publication Exhibit 2E Summons by Publication Exhibit 2F Motion for Entry of Default and Default Judgment Exhibit 2G Affidavit Exhibit 2H Order for Service by Publication Exhibit 2I Final Order and Default Judgment Exhibit 2J Decree Quieting Title Chapter 3 PARTIES AND SERVICE PARTIES Parties With Record Interest And Parties In Possession Rule 105(b) And C.R.S Public Trustee, County Treasurer Homeowners Associations Service On Legal Entities Mutual Ditch Companies Government Parties Unnamed Parties Military Parties Lobato v. Taylor Deceased Parties UNKNOWN PARTIES SERVICEMEMBERS CIVIL RELIEF ACT MILITARY ATTORNEY SERVICE OF PROCESS TOC-5

6 Colorado Quiet Title Actions Chapter 4 DEFENSE OF A QUIET TITLE ACTION STATUTE OF LIMITATIONS DEFENDING A QUIET TITLE ACTION EXHIBIT Disclaimer Quitclaim Deed Do Nothing Set-Off For Improvements Defend Vigorously Make A Title Insurance Claim Stay In The Case, Don t Participate, But Agree To Abide By The Final Decree Exhibit 4A Disclaimer Under Rule 105(c) Chapter 5 WORKING WITH EXPERTS SURVEYORS Improvement Location Certificate Monumented Land Survey Land Survey Plat Improvement Survey Plat ALTA Survey Centerline Survey Survey Considerations APPRAISERS TOC-6

7 Table of Contents Chapter 6 LIS PENDENS INTRODUCTION WHEN AND WHERE TO RECORD EFFECT OF NOTICE OF LIS PENDENS RELEASE POTENTIAL LIABILITY FOR RECORDING A LIS PENDENS EXHIBIT Exhibit 6A Notice Of Lis Pendens Chapter 7 QUIET TITLE ACTIONS AGAINST THE FEDERAL GOVERNMENT REAL PROPERTY QUIET TITLE ACTIONS WHEN THE UNITED STATES IS A PARTY LIMITED WAIVER OF SOVEREIGN IMMUNITY SCOPE AND EXCLUSIONS RIGHT, TITLE, OR INTEREST TWELVE-YEAR STATUTE OF LIMITATIONS OTHER PROCEDURAL ASPECTS EXHIBITS Exhibit 7A Complaint (Federal) Exhibit 7B Federal Disclosure Statement TOC-7

8 Colorado Quiet Title Actions Chapter 8 JUDICIAL FORECLOSURES INTRODUCTION INITIATING JUDICIAL FORECLOSURE EXHIBITS Pre-filing Conditions Judicial Foreclosure Proceedings And Judgment Sheriff s Sale Exhibit 8A Civil Case Cover Sheet Exhibit 8B Complaint For Foreclosure Pursuant To Rule Exhibit 8C Notice Of Commencement Of Action (Lis Pendens) Exhibit 8D Judgment And Decree Of Foreclosure Exhibit 8E Sheriff s Combined Notice Exhibit 8F Sheriff s Notice Of Sale Exhibit 8G Report And Return Of Sheriff Exhibit 8H Certificate Of Mailing Exhibit 8I Notice Of Intent To Cure Default Or Violation Exhibit 8J Sheriff s Certificate Of Purchase Exhibit 8K Sheriff s Deed Exhibit 8L Bid Chapter 9 RECEIVERS INTRODUCTION APPOINTMENT BY STATUTE APPOINTMENT BY CONTRACTUAL AGREEMENT TOC-8

9 Table of Contents 9.4 RECEIVERSHIP AS THE SOLE CLAIM FOR RELIEF EX PARTE APPOINTMENT BY EXIGENT CIRCUMSTANCES ASSIGNMENT OF RENTS COURT CONSIDERATION PRESERVING THE STATUS QUO MOTION AND COMPLAINT Complaint Motion PROPOSED ORDER COMMON OBJECTIONS RECEIVERS, OATH, AND BOND Oath Bond RECEIVER MANAGEMENT Monthly Reports Receiver s Certificates Interim Motions And Fee Applications DISCHARGE AND WINDING UP EXHIBITS Exhibit 9A Appointment Clause Exhibit 9B Verified Complaint For Ex Parte Appointment Of Receiver Exhibit 9C Motion For Ex Parte Appointment Of Receiver TOC-9

10 Colorado Quiet Title Actions Exhibit 9D Order For Ex Parte Appointment Of Receiver Exhibit 9E List Of Order Considerations Exhibit 9F Receiver s Oath Exhibit 9G Motion For Limitation Of Access To Court Files Exhibit 9H Receiver s Certificate Exhibit 9I Application For Award Of Interim Compensation For Receiver Exhibit 9J Order Setting Bar Date For Filing Objections To Application For Award Of Interim Compensation For Receiver Exhibit 9K Motion For Approval Of Receiver s Final Report Exhibit 9L Order Approving Motion For Approval Of Receiver s Final Report Chapter 10 ADVERSE POSSESSION INTRODUCTION STATUTORY ADVERSE POSSESSION LAW The Boulder Case Statutory Changes COMMON LAW ADVERSE POSSESSION Problems With The Current Adverse Possession Test The Common Law Elements Of Adverse Possession What Are The Elements And How Do You Prove Them? TOC-10

11 Table of Contents 10.4 ACTUAL POSSESSION THE WHO, WHAT, WHEN, AND WHERE OF ADVERSE POSSESSION Actual Possession The Law Actual Possession Examples ADVERSE OR NON-PERMISSIVE POSSESSION Adverse Possession The Law Adverse Possession Examples HOSTILE POSSESSION ACTING AS IF THE LAND IS YOURS Hostility Means Claim Of Right Hostile Possession The Law Hostile Possession Examples Hostile Possession And The New Good Faith Requirement Recognition Of Title In Record Owner Segelke Case Versus Schoenherr Case OPEN AND NOTORIOUS POSSESSION GIVING NOTICE Open And Notorious Possession The Law Open And Notorious Possession Examples EXCLUSIVE POSSESSION JOINT POSSESSION DEFEATS ADVERSE POSSESSION Exclusive Possession The Law Exclusive Possession Examples TOC-11

12 Colorado Quiet Title Actions 10.9 CONTINUOUS POSSESSION ALL ELEMENTS FOR 18 YEARS Disruption Of Continuity The Law Disruption Of Continuity Examples Tacking The Law Tacking Examples STATUTORY PERIOD 18 YEARS THE NEW GOOD FAITH REQUIREMENT DAMAGES AND REIMBURSEMENT OF TAXES AND ASSESSMENTS (PLUS INTEREST) PRESUMPTIONS Initial Presumption Presumption Of Permissive Possession Presumptions Of Adverse Possession Presumptions Arising From Fences What Happens Once Presumption Is Met BURDEN OF PROOF Adverse Possession Asserted Affirmatively Clear And Convincing Adverse Possession Asserted Defensively Preponderance Of The Evidence OTHER ISSUES No Adverse Possession Against Sovereign What Happens Once Vested Transferring Title After Adverse Possession Disrupting An Adverse Possession Claim All Elements Must Be Proved And Determined Affirmative Or Defensive Claim Other Adverse Possession Statutes TOC-12

13 Table of Contents WHAT S NEXT: EASEMENTS BY PRESCRIPTION AND BOUNDARY-ACQUIESCENCE TERMINATION OF EASEMENTS BY ADVERSE POSSESSION Chapter 11 COLORADO BOUNDARY DISPUTES INTRODUCTION RECOGNITION AND ACQUIESCENCE Recognition Acquiescence Generally Acquiescence Mutuality Required Acquiescence Notice/ Knowledge Required Acquiescence Possession And Dominion Over Property As Evidence BOUNDARY VERSUS BARRIER Barrier Boundary COMMON OWNERSHIP DESTROYS ACQUIESCENCE INTERPLAY OF BOUNDARY DISPUTE AND ADVERSE POSSESSION STATUTES PROCEDURAL ASPECTS OF BOUNDARY DISPUTE LAW Alternative Methods Of Resolution Rules Of Civil Procedure Not Applicable Pleadings Necessary Notice Commissioner s Report TOC-13

14 Colorado Quiet Title Actions Court Decision Appeal Practical Considerations SETTING BOUNDARY LINES BY PAROL AGREEMENT COLORADO FENCE LAW WATER COURSES AS BOUNDARIES BOUNDARY BY ESTOPPEL DOCTRINE OF RELATIVE HARDSHIPS Chapter 12 ACCESS AND EASEMENT ISSUES INTRODUCTION INTERPRETING WRITTEN EASEMENTS OFF RECORD PRIVATE ROADS Adverse Possession (Prescriptive Easements) Easement By Necessity Easement By Implication Easement By Estoppel Private Condemnation RESTRICTIONS ON AND CHANGES IN USE Restrictions On Use Changes In Use PUBLIC ROADS Adverse Use R.S State Control Of Public Roads County And Local Control Of Public Roads TOC-14

15 Table of Contents 12.6 ACCESS TO MINERAL INTERESTS EASEMENTS AND PROPERTY TAXES DRAINAGE EASEMENTS TERMINATION RAILROAD EASEMENTS RECREATIONAL EASEMENTS Lake Or Reservoir Easements Hunting Or Fishing Easements Chapter 13 SPURIOUS LIENS, PARTITION, EQUITABLE SUBROGATION, WATER RIGHTS, TREASURER S DEEDS, FRAUDULENT RELEASE OF DEEDS OF TRUST, AND TRANSFER FEES SPURIOUS LIENS Spurious Liens And Documents Law Petition Notice Response Hearing Case Law And Statutes Addressing Spurious Liens And Documents PARTITION Jurisdiction, Venue, And Parties Statutory Partition Procedure Partition In Kind Or Public Sale Of The Property Division Of Proceeds TOC-15

16 Colorado Quiet Title Actions 13.3 EQUITABLE SUBROGATION Factors Governing The Application Of Equitable Subrogation Hicks v. Londre And Joondeph v. Hicks: The Upshot Voluntary Subordination WATER RIGHTS TREASURER S DEEDS Requirements For The Treasurer s Notice Tax Lien Sale Determining Who Should Receive Notice Of The Tax Lien Sale Challenging A Treasurer s Deed Standing To Bring A Claim Challenging The Treasurer s Actions Effect Of Adverse Possession Reformation Of A Treasurer s Deed FRAUDULENT RELEASE OF DEED OF TRUST TRANSFER FEES Chapter 14 RESEARCHING QUIET TITLE FACTS INTRODUCTION CHAIN OF TITLE AERIAL PHOTOGRAPHS HISTORIC MAPS TOC-16

17 Table of Contents 14.5 GOVERNMENT ARCHIVES Government Surveys, Notes, And Plats Land Entry Records IDENTIFYING WITNESSES EXHIBITS Exhibit 14A Figures A Through D Chapter 15 SETTLEMENT STRATEGIES INTRODUCTION QUITCLAIM DEED DISCLAIMER EASEMENT AGREEMENT BOUNDARY AGREEMENTS ROAD ASSOCIATIONS MEDIATION CONSIDERATIONS EXHIBITS Preparing For Mediation Presenting Opening Positions Using Creative Forms Of Settlement To Overcome Impasse Finalizing The Agreement Exhibit 15A-1 Easement Deed, Short Form Exhibit 15A-2 Easement Deed, Long Form Exhibit 15B Road Association Covenants, Conditions, And Restrictions TOC-17

18 Colorado Quiet Title Actions Exhibit 15C Road Association Articles Of Incorporation Exhibit 15D Road Association Bylaws Exhibit 15E Road Association Easement Agreement Exhibit 15F Quitclaim Deed (From A Corporation) Exhibit 15G Quitclaim Deed (To A Corporation) Exhibit 15H Quitclaim Deed (Corporation To Joint Tenants) Exhibit 15I Quitclaim Deed (Corporation To Corporation) Exhibit 15J Quitclaim Deed (Short Form) Exhibit 15K Quitclaim Deed Exhibit 15L Quitclaim Deed (To Joint Tenants) Chapter 16 WARRANTY DEED CLAIMS INTRODUCTION LIABILITY OF PRIOR GRANTORS REQUIREMENTS TO BRING AN ACTION FOR BREACH OF COVENANT OF WARRANTY STATUTE OF LIMITATIONS DAMAGES QUITCLAIM DEEDS SPECIAL WARRANTY DEEDS Chapter 17 TRIAL CONSIDERATIONS INTRODUCTION PAROL EVIDENCE AFTER LAZY DOG TOC-18

19 Table of Contents 17.3 HEARSAY EXCEPTIONS FOR WITNESS TESTIMONY EXHIBITS TESTIMONY VIEW OF THE PREMISES PREPARATION OF THE DECREE Chapter 18 ATTORNEY FEES IN QUIET TITLE ACTIONS INTRODUCTION ATTORNEY FEES UNDER CONTRACT ATTORNEY FEES UNDER C.R.S ATTORNEY FEES UNDER C.R.C.P ATTORNEY FEES FOR DISCOVERY VIOLATIONS C.R.C.P ATTORNEY FEES FOR WRONGFUL ACTS ATTORNEY FEES UNDER THE COLORADO COMMON INTEREST OWNERSHIP ACT ATTORNEY FEES UNDER 42 U.S.C ATTORNEY S CHARGING LIEN TOC-19

20 Colorado Quiet Title Actions Chapter 19 LEGAL ETHICS CONSIDERATIONS IN QUIET TITLE ACTIONS INTRODUCTION ANALYSIS Attorney Discipline Cases In Colorado Involving Quiet Title Actions Conflicts Of Interest Confidentiality Communication Settlement APPENDIX A Colorado Real Estate Title Standards SUBJECT INDEX TOC-20

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