QUIET TITLE – ARIZONA
When there are conflicting claims to Arizona real property or to an interest in real property (such as an easement) a Prescott quiet title lawyer can help. A Quiet Title 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 quiet title action is not something that can be done by filling out a few forms. Quiet title lawsuits in Yavapai County must be filed in the Yavapai County Superior Court, usually in Prescott, AZ. 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.
Legal fees for a Quiet Title lawsuit depend on a number of factors including: 1) whether lawsuit is contested or uncontested; 2) number of plaintiffs; 3) 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 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 lawsuit, both as plaintiff and as a defendant. A successful quiet title 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 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 1930’s 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 1920’s.
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, which states:
B. If a party, twenty days prior to bringing the action to quiet title to real property, requests the person, other than the state, holding an apparent adverse interest or right therein to execute a quit claim deed thereto, and also tenders to him five dollars for execution and delivery of the deed, and if such person refuses or neglects to comply, the filing of a disclaimer of interest or right shall not avoid the costs and the court may allow plaintiff, in addition to the ordinary costs, an attorney’s fee to be fixed by the court.
In order to prove that a quit claim 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 states:
A. In an action to quiet title to real property, if the complaint sets forth that any person or the state has or claims an interest in or a lien upon the property, and that the interest or lien or the remedy for enforcement thereof is barred by limitation, or that plaintiff would have a defense by reason of limitation to an action to enforce the interest or lien against the real property, the court shall hear evidence thereon. B. If it is proved that the interest or lien or the remedy for enforcement thereof is barred by limitation, or that plaintiff would have a defense by reason of limitation to an action to enforce the interest or lien against the real property, the court shall have jurisdiction to enter judgment and plaintiff shall be entitled to judgment barring and forever estopping assertion of the interest or lien in or to or upon the real property adverse to plaintiff.
Arizona Revised Statutes, Section 12-1104 states:
A. An action to determine and quiet title to real property may be brought by any one having or claiming an interest therein, whether in or out of possession, against any person or the state when such person or the state claims an estate or interest in the real property which is adverse to the party bringing the action. B. When the state is made defendant a copy of the summons and complaint shall be served upon the attorney general.
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. 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.
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 attorney should be consulted as early as possible.