Chapter 26 - § 26.5 • ACTIONS UNDER RULE 105

• Jurisdiction: Colorado

§ 26.5 • ACTIONS UNDER RULE 105²⁴⁰

§ 26.5.1—Background

The Colorado Code of Civil Procedure was supplanted by the adoption of the Colorado Rules of Civil Procedure in 1941, with Rule 105 replacing the statutory proceeding to quiet title and the equitable actions relating to clouds on title. Rule 105(a) provides:

An action may be brought for the purpose of obtaining a complete adjudication of the rights of all parties thereto, with respect to any real property and for damages, if any, for the withholding of possession. The court in its decree shall grant full and adequate relief so as to completely determine the controversy and enforce the rights of the parties. The court may at any time after the entry of the decree make such additional orders as may be required in aid of such decree.

Under this rule, the plaintiff need not allege or prove possession.²⁴¹

It is clear from the language of the rule that a Rule 105 proceeding should completely adjudicate the rights of all parties to the action claiming interests in the property.²⁴² The court cannot adjudicate the rights of persons not made parties.²⁴³ Even if a counterclaim is not pled, or an issue is not raised in the pleadings but is apparent from the evidence, the court should reach the issue to give full relief.²⁴⁴ But if a plaintiff fails to establish his or her own title, the plaintiff is in no position to force non-defaulting defendants to adjudicate the state of their claims.²⁴⁵ Furthermore, Rule 105 was not intended to permit courts to quiet title in defaulting defendants.²⁴⁶

Rule 105 does not apply to an action to establish disputed boundaries brought under C.R.S. § 38-44-101.²⁴⁷

§ 26.5.2—Parties

Plaintiff

A quiet title action must be brought by the real party in interest.²⁴⁸ A prospective interest or right to inherit as an heir is a mere expectancy or possibility, a mere hope or expectation. An expectant heir cannot, on the basis of his or her expectation, maintain an action during the life of the ancestor to cancel a transfer by the ancestor or for the enforcement or adjudication of a right in the property.²⁴⁹

Defendant

An action under Rule 105 is either in rem or quasi in rem, and substituted service may be had upon defendants.²⁵⁰ After constructive service by publication, a judgment entered before the expiration of the time allowed to plead or answer is premature and must be reversed.²⁵¹ In an action under Rule 105, the statute of limitations is not tolled during the absence or concealment of a defendant.²⁵²

A decree is not binding upon persons not made parties to the action,²⁵³ except that no person claiming any interest under or through a person named as a defendant need be made a party unless his or her interest is shown of record in the office of the clerk and recorder of the county where the real property is situated, and the decree is as conclusive against the person as if he or she had been made a party, but if an action is for the actual recovery of possession of the property, a party in actual possession must be made a party.²⁵⁴

If a plaintiff fails to comply with the requirements of C.R.C.P. 4 regarding publication, the court is without jurisdiction of the persons sought to be served by publication, and any judgment against such persons is void.²⁵⁵

Unknown Parties

In an action in rem, unknown parties are designated as "all unknown persons who claim any interest in the subject matter of this action."²⁵⁶ When parties are so designated in the caption, the pleader must describe the interests of such persons, and how derived, as far as his or her knowledge extends.²⁵⁷ When unknown parties claim some interest through some one or more of the named defendants, it is a sufficient description of their interests and of how derived to state that the interests of the unknown parties are derived through some one or more of the named defendants.²⁵⁸ Owners of record cannot be classified as "unknown persons who claim any interest in and to the subject matter of this action."²⁵⁹ Naming "unknown parties" does not cut off the rights of the public to use a public road.²⁶⁰

§ 26.5.3—Time to Bring Action

There is no statute of limitations which bars a purchaser in possession of real property from asserting his or her rights in the property.²⁶¹ One in peaceful possession of property is not chargeable with laches for delay in instituting suit to enforce his or her rights.²⁶²

§ 26.5.4—Pleadings

To maintain an action to quiet title, a plaintiff must allege that the defendant claims an interest in the property that is adverse to the plaintiff's interest in the property.²⁶³

§ 26.5.5—Disclaimer

C.R.C.P. 105(c) provides:

If any defendant in such action disclaims in his answer any interest in the property or allows judgment to be taken against him without answer, the plaintiff shall not recover costs against him, unless the Court shall otherwise direct, provided that this section shall not apply to a defendant primarily

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