BOUNDARY DISPUTES – ARIZONA
When there are conflicting claims to Arizona real property, or to an interest in real property (such as an easement), or a boundary dispute, a Prescott Quiet Title (“QT”) lawyer can help. A QT lawsuit can be brought to obtain a judicial declaration of the ownership and interests in the property. In Arizona, this is known as a quiet title action (lawsuit). Attorney’s fees can be awarded to the person seeking to quiet title, pursuant to an Arizona statute 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 QT action is not something that can be done by filling out a few forms. QT title lawsuits in Yavapai County must be filed in the Yavapai County Superior Court 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 QT title action is a lawsuit. Thus, all of the factors applicable to lawsuits, and all of the complexities, also apply to QT title actions.
If you want to win a QT lawsuit, you should be prepared with: 1) a Survey of the land at issue; 2) Certified copies of aerial imagery, going back decades; 3) a precise legal description, prepared by an Arizona licensed Surveyor, of the land at issue; 4) a Chain of Title Report showing who has owned the land all the way back to when Arizona because a Territory; 5) a “Litigation Guaranty” showing who needs to be included in the QT lawsuit; 6) evidence that is admissible in Arizona courts such as photographs that can be authenticated, certified copies of documents recorded in the County Recorder’s office, audio records that can be authenticated; letters and other documents that can be authenticated; 6) and, proof that a Quit Claim Deed, a five dollar ($5.00) bill, and a written demand to sign and return the Quit Claim Deed were served on the potential defendants by a licensed Arizona Process Server.
Legal fees for a QT 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 title and who is claiming an interest in the land. Generally, a “Litigation Guaranty” is necessary to undertake representation in a QT 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 QT lawsuits, both as a plaintiff and as a defendant. A successful QT 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 QT 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 property.
Another thing that should be done is to determine whether there are historical photographs of the property. Historical photographs reveal things like roads, bike paths, watercourses, and other things affecting the property 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 QT action. In Arizona, a person who is successful in a QT 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 QT action is subject to certain statutory requirements. The Arizona statutes authorizing a QT 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 QT 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 QT 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.
Chain of Title
Before a QT action is started there should be a thorough search of the land records. The search often involves what is known as a “chain of title” which is a report showing each sequence in the history of the 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.
Maximize Your Chance of Success
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 QT attorney should be consulted as early as possible, to maximize the chance of success. Contact us to schedule a consultation.