CHAPTER 12 - § 12.4 • PARTIES

• Jurisdiction: Colorado

§ 12.4 • PARTIES

§ 12.4.1—Known Parties, Living and Deceased

The defendants to be named in the QTA are all those with an outstanding interest of record as shown by your title work (see § 12.6) and parties in "actual possession" whose rights or claims of title are non-existent or inferior to the title of the plaintiff. C.R.S. § 38-35-114. Interests of record will be listed in the title commitment or litigation guarantee, but an inspection of the premises and perhaps a survey may be necessary to determine parties in actual possession.

If you must pursue a QTA, name every person and entity that could possibly claim an outstanding interest in or right to the property. Only then can you be certain that the resulting court decree will clear the property of all claims adverse to your client. Ginsberg v. Stanley Aviation Corp., 568 P.2d 35 (Colo. 1977) (quiet title decree is not binding on person not joined as a party); Camp Bird Colorado, Inc. v. Bd. of County Comm'rs of County of Ouray, 215 P.3d 1277, 1283 (Colo. App. 2009) ("plaintiff in a quiet title action may omit an interest, or the holder of the interest, because challenging the interest would be futile, the plaintiff did not contemplate the interest, the plaintiff did not know about the interest, or the plaintiff did not care about the interest," citing G. P. Anderson, Colorado Quiet Title Actions § 3.1.7, at 68 (CLE in Colo., Inc. 2008)).

Remember to name the public trustee of the county in which the property is located if you intend to eliminate a recorded deed of trust to the public trustee as an encumbrance on the title (based upon prior payment of the indebtedness secured or unenforceability for other reasons). Similarly, join the treasurer of the county (Manager of Revenue, in Denver) if you wish to set aside an outstanding tax sale certificate or treasurer's deed. If your QTA will divide the land into one or more parcels of less than 35 acres, consider the statutory notification requirements. C.R.S. § 30-28-101(10)(c)(II).

Sometimes a chain of title will end in the name of a person who is deceased and there is no evidence of probate, a will, or any heirs. Other times it may not be possible to locate the record title holder or determine whether the owner is still alive. As often happens with quiet title actions, research is required under these circumstances.

Naming a person known to be deceased in an in rem or quasi-in rem action is arguably erroneous. In re Baxter's Estate, 39 P.2d 186, 191 (Mont. 1934). Colorado law seems to be devoid of any cases specifically discussing naming deceased defendants in a quiet title action. However, Colorado requires that legal actions be brought against "ascertainable persons, natural or artificial, to whom judgments are awarded and against whom they may be enforced," thereby excluding deceased persons. Barker v. Dist. Court County of Larimer, 609 P.2d 628, 630 (Colo. 1980). Thus, plaintiffs should confirm whether an interested party is deceased, and if so, any living heirs who may have an interest in the quiet title property. One authority advises that, although naming deceased parties is somewhat questionable, they should be named anyway "so that all persons claiming through [the 12-4 deceased] will be included as unknown persons." Krendl, Colorado Practice Series, West (2012), § 74:6, n. 2.

While no bright-line rule exists for the level of care plaintiffs must exercise in determining the vitality of a named defendant and researching heirs, Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003), and other jurisdictions' decisions are instructive. Under Lobato, plaintiffs must make a diligent inquiry into who may have a possible interest in quiet title property and the whereabouts of those persons. Courts consider what a reasonably prudent person would do under the circumstances. Id. at 1161.

Other jurisdictions have extended the reasonably prudent person standard to instances where interested parties may be deceased. Plaintiffs must make a diligent inquiry into whether an interested person is deceased, and if the party is deceased, a diligent inquiry into the deceased's living heirs. See Carr v. Kamins, 151 Cal. App. 4th 929, 934 (2007); Deer Park Lumber, Inc. v. Major, 559 A.2d 941, 945 (Penn. 1989); Hustace v. Kapuni, 718 P.2d 1109, 1114-15 (Haw. App. 1986); Bomford v. Socony Mobil Oil Co., 440 P.2d 713, 718 (Okla. 1968); Harlan v. Sparks, 125 F.2d 502, 505 (10th Cir. 1942). Courts have suggested that consulting the following resources constitutes due diligence: tax rolls, deed records, judicial and other official records, telephone...