Chapter 15 - § 15.6 • ACTIONS REGARDING REAL ESTATE

• Jurisdiction: Colorado

§ 15.6 • ACTIONS REGARDING REAL ESTATE

At common law, the personal representative usually had no right to bring actions concerning real estate unless the will devised it to him or her, since the title was in the heir or devisee.³² By statute, in Colorado, the representative has a duty to take charge of real estate and to collect rents.³³ The statute gives the representative the right to bring quiet title suits and to take such other action as may be deemed desirable to render the title marketable for the benefit of those entitled to the property.³⁴ It has been held that the representative has the right to bring a suit to set aside a conveyance if the estate otherwise would be insolvent.³⁵ The representative may also bring a suit to secure an injunction against foreclosure of a mortgage, although this gives the court no power to classify claims against the estate.³⁶

Under the Code, title to the decedent's property apparently vests in the personal representative who holds and administers that property similarly to the trustee of a trust. Title is perfected in the heirs or devisees by a deed of distribution from the personal representative.³⁷ This appears to render meaningless prior cases that required the joinder or other involvement of the successors.

The following are pre-Code cases, the results and rationale of which will have to be examined in light of the approach of the Code. Where the decedent had started a suit to set aside a mortgage for fraud and then died, his administrator should be substituted as plaintiff and should continue the suit.³⁸ Where a suit for conveyance of land pursuant to a contract of purchase and sale had been commenced against the estate of the deceased seller and the property was in the hands of a good faith purchaser, the action became one for damages rather than specific performance.³⁹ A suit against an administrator, who was also the sole heir, to impress a trust on real estate was fatally defective if the heir was not joined individually.⁴⁰ If an administrator brings a quiet title suit and it appears that the decedent had no heirs, there can be no decree since the court must quiet the title in someone.⁴¹ A federal court will take jurisdiction in a diversity action regarding real property, even though two of the three heirs are Colorado residents.⁴² A suit to set aside a deed will fail, no fraud or undue influence being present, if the ground of the suit is that the deed deprives an heir of the right to inherit.⁴³ A...