Chapter 2 - § 2.4 • LEGAL DESCRIPTION

• Jurisdiction: Colorado

§ 2.4 • LEGAL DESCRIPTION

Depending on the issues in the case, the legal description to be used in the complaint will probably be the legal description found in the vesting deed of the subject property. However, in boundary disputes, adverse possession and prescriptive easement cases and other claims involving only a portion of previously surveyed parcels, a legal description may not be available. In these cases, a survey of the disputed parcel will almost certainly be required. The Decree Quieting Title, which the court will issue at the conclusion of the case, must have a legal description of the property involved.¹³ Ideally, the plaintiff will obtain a survey before the case is filed. If that is not possible, the plaintiff should plan on having the disputed property surveyed as soon after the complaint is filed as possible.¹⁴ Rule 105(g) requires a legal description in any proceeding for the recovery of real property, but the rule does not specify when, during the course of the lawsuit, the legal description is required. The law allows surveyors to enter property without permission to perform a survey after notice.¹⁵

Another place the legal description is required is in a lis pendens.¹⁶ In order to put potential buyers and encumbrancers on constructive notice of the litigation and so they will be bound by the results of the litigation, the lis pendens must have the proper legal description and without it, the lis pendens is ineffective.¹⁷

In In re Rivera (Sender v. Cygan)¹⁸ the Colorado Supreme Court held that a deed of trust that completely omitted a legal description was defectively recorded and void and could provide no constructive notice to a subsequent purchaser or encumbrancer. The court stated that because the deed of trust was defectively recorded, it could not trigger any duty to inquire. However, in this regard, the court did not consider that deeds of trust are indexed in the grantor-grantee index and that a search through that index would most likely turn up the deed of trust. Matching the street address that was present on the deed of trust with the street address on the grantor's vesting deed would almost certainly have made a title searcher aware that the property in question was subject to this deed of trust.

In response to the Sender case, the Colorado legislature passed HB 13-1307, which amended C.R.S. § 38-35-122. The bill specifically referenced the Sender decision and went on to state that a recorded document that omits a legal...