REAL ESTATE DISPUTES IN ARIZONA
Do you have an Arizona land or real estate dispute? When there are conflicting claims to Arizona real property (such as boundary or an easement) we may be able to help. A lawsuit to “quiet title” and/or to “partition” the land will settle disputes over who owns what interest in the land. A Quiet Title lawsuit (or, “action”) seeks to obtain a judicial declaration of the ownership and interests in the real property (including any buildings constructed on the land). A Partition lawsuit divides the land (if it can be split) or forces a sale of the land and divides the proceeds of the sale.
Attorney’s fees can be awarded in a Quiet Title lawsuit to the person seeking to quiet title if the defendant is given a proper opportunity to acknowledge that the defendant has no interest in the property and if the defendant fails to do so within a specific time period.
A Quiet Title action is not something that can be done by filling out a few forms. Quiet Title lawsuits in Arizona must be filed in the County Seat of the County where the land is located. It is much more complicated than filling out a few forms. It requires the skill, education, training and experience of a qualified attorney skilled in both real estate law and in litigation. A Quiet Title action is a lawsuit. Thus, all of the factors applicable to lawsuits, and all of the complexities, also apply to Quiet Title actions.
In Arizona, Partition lawsuits are governed by specific Arizona statutes. After the Court enters a Judgment ordering partition, the real work begins. A person or persons are appointed by the Court to conduct the land division. These persons are called “Commissioners.” Often, they are real estate professionals. If the land consists of a building, the land will be listed for sale. The Commissioner/s will sell the land (including the building) and have the escrow company pay the proceeds to the Clerk of the Court. The Clerk of Court will hold the proceeds until the Judge decides who gets what portion of the proceeds.
Legal fees for a Quiet Title lawsuit depend on a number of factors including 1) whether a lawsuit is contested or uncontested; 2) the number of plaintiffs; 3) the number of defendants; 4) whether all defendants can be located for personal service of process; 5) whether all defendants live in Arizona, the United States of America or elsewhere; 6) and, what issues appear in the “Litigation Guaranty.”
A “Litigation Guaranty” is a specific type of title report from an Arizona title company showing the condition of the title and who is claiming an interest in the land. Generally, a “Litigation Guaranty” is necessary to undertake representation in a Quiet Title lawsuit.
The cost of a “Litigation Guaranty” and service of process are in addition to legal fees. Sometimes a new survey is required, which is an additional expense not included in the legal fees.
We have represented numerous parties in Quiet Title lawsuits and in Partition lawsuits, both as plaintiffs and as defendants. A successful Quiet Title or Partition lawsuit begins with a proper investigation. A skilled litigator can focus that investigation on the things which will increase the chance of success.
As part of a proper Quiet Title or Partition investigation, the attorney should physically inspect the property. Yes, that means getting out of the office and into the field. A field inspection reveals things that cannot be discerned from looking at documents or from interrogating a client about the land.
Another thing that should be done is to determine whether there are historical photographs of the land. Historical photographs reveal things like roads, bike paths, watercourses, and other things affecting the land which may or may not still be present during a field inspection. In one case, we obtained photographs from the 1930s and had a U.S. Forest Service expert review them. He determined, from a stereoscopic inspection of the photographs, that vegetation in the photographs revealed the non-existence of a roadway claimed to be present as far back as the 1920s.
Sometimes, the issue of attorney’s fees determines whether a person is able to successfully pursue a Quiet Title action. In Arizona, a person who is successful in a Quiet Title action may receive an award of attorney’s fees against the losing party if certain prerequisites are met. Those prerequisites are found in Arizona Revised Statutes, Section 12-1103B.
In order to prove that a quitclaim deed was properly tendered, the tender should be made properly. Evidentiary problems arise if a tender is not properly made. An experienced litigation attorney should be consulted to avoid evidentiary problems.
In Arizona, a Quiet Title action is subject to certain statutory requirements. The Arizona statutes authorizing a Quiet Title lawsuit may be found in Title 12, Chapter 8, Article 1.
Arizona Revised Statutes, Section 12-1103 should be reviewed.
Arizona Revised Statutes, Section 12-1104 should be reviewed.
A Quiet Title lawsuit is not something that is usually completed in a short period of time. As with most lawsuits, the process takes time. Thus, if a Quiet Title action is necessary to resolve issues relating to the title or ownership of an interest in land, one should expect it to take some time.
Before a Quiet Title action is started there should be a thorough search of the land records. A “chain of title” is a report showing each sequence in the history of land ownership. Sometimes, a survey by a licensed/registered land surveyor is necessary. Sometimes multiple surveys are involved, especially when the dispute involves the location of a property or fence line.
There are many procedures and techniques which can maximize the chance of success. Usually, the sooner these techniques are employed the better the chance of success. An experienced Quiet Title and Partition attorney should be consulted as early as possible. If you have a dispute involving Arizona real property contact us today for legal advice: Advice.