Rule 105 ACTIONS CONCERNING REAL ESTATE.

• Jurisdiction: Colorado

Rule 105. Actions Concerning Real Estate.

(a) Complete Adjudication of Rights. 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.

(b) Record Interest; Actual Possession Requires Occupant Be Party. No person claiming any interest under or through a person named as a defendant need be made a party unless his interest is shown of record in the office of the recorder of the county where the real property is situated, and the decree shall be as conclusive against him as if he had been made a party; provided, however, if such action be for the recovery of actual possession of the property, the party in actual possession shall be made a party.

(c) Disclaimer Saves Costs. 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 liable on any indebtedness sought to be foreclosed or established as a lien.

(d) Execution of Quitclaim Deed Saves Costs. If a party, 21 days or more before bringing an action for obtaining an adjudication of the rights of another person with respect to any real property, shall request of such person the execution of a quitclaim deed to such property and shall also tender to such person $20.00 to cover the expense of the execution and delivery of a deed and if such person shall refuse or neglect to execute and deliver such deed, the filing by such person of a disclaimer shall not avoid the imposition upon such person of the costs in the action afterwards brought.

(e) Set-off for Improvements. Where a party or those under whom he claims, holding under color of title adversely to the claims of another party, shall in good faith have made permanent improvements upon real property (other than mining property) the value of such improvements shall be allowed as a set-off or as a counterclaim in favor of such party, in the event that judgment is entered against such party for possession or for damages for withholding of possession.

(f) Lis Pendens.

(1) Filing and Notice. A notice of lis pendens may be recorded as provided by statute.

(2) Determination of Effect on Real Property. Any interested person may petition the court in the action identified in the notice of lis pendens for a determination that a judgment on the issues raised by the pleadings in the pending action will not affect all, or a designated part, of the real property described in the notice of lis pendens, or a specifically described interest therein. After a hearing on such petition, the court shall make findings of fact and enter an order setting forth the description of the property as contained in the recorded notice of lis pendens and the description of the portion thereof or the interest therein, if any, the title to which will not be affected by judgment on the issues then pending in the action. Such order shall be a final judgment as to the matters set forth therein and if the order includes the determination required by Rule 54 (b) as to its finality apart from remaining issues, it shall be appealable only as a separate judgment of that date.

(3) Disclaimer. Nothing in this Rule 105 (f) shall be construed so as to preclude any party litigant from disclaiming an interest in all or any part of the real property affected by such notice of lis pendens, by filing with the court an instrument so indicating, containing a reference to the notice of lis pendens by its recording data sufficient to locate it in the records of the clerk and recorder. The filing of such instrument with the court then having jurisdiction shall bar any further claims of said party to such real property in said action.

(4) Repealed, effective April 1, 1993.

(g) Description of Real Property. In any proceeding for the recovery of real property or an interest therein, such property shall be designated by legal description.

Source: (f)(1) amended, (f)(4) repealed, and committee comment added and effective April 1, 1993; committee comment approved for publication March 17, 1994, effective July 1, 1994; (d) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b).

Cross references: For boundary proceedings and surveys, see articles 44 and 50 to 53 of title 38, C.R.S.; for parties to be named in actions concerning real property, see § 38-35-114, C.R.S.; for lis pendens as notice, see § 38-35-110, C.R.S.; for certificate staying judgment on issuance of bond and its effect on lis pendens, see C.A.R. 8(d).

ANNOTATION

I. General Consideration.

II. Scope of Relief.

III. Costs.

IV. Lis Pendens.

V. Description of Real Property.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Must Colorado Real Property Installment Sale Contracts Be Foreclosed as Mortgages?", see 9 Dicta 320 (1932). For note, "Vendor's Remedies Under Colorado Executory Land Contracts", see 22 Rocky Mt. L. Rev. 296 (1950). For article, "A Decade of Colorado Law: Conflict of Laws, Security Contracts and Equity", see 23 Rocky Mt. L. Rev. 247 (1951). For article, "Actions Concerning Real Estate Including Service of Process: Rule 105 and Rule 4", see 23 Rocky Mt. L. Rev. 614 (1951). For article, "Enforcement of Security Interests in Colorado", see 25 Rocky Mt. L. Rev. 1 (1952). For article, "Standard Pleading Samples to Be Used in Quiet Title Litigation", see 30 Dicta 39 (1953). For article, "Attorneys, Courts, Equity", see 31 Dicta 477 (1954). For article, "Property Law", see 32 Dicta 420 (1955). For article, "One Year Review of Civil Procedure", see 34 Dicta 69 (1957). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Property", see 37 Dicta 89 (1960). For note, "Holdover Tenants in Colorado", see 34 Rocky Mt. L. Rev. 320 (1962). For article, "Land Description Problems", see 35 U. Colo. L. Rev. 12 (1962). For article, "Survey of Title Irregularities, Curative Statutes and Title Standards in Colorado", see 35 U. Colo. L. Rev. 21 (1962). For article, "Court Proceedings Relating to Real Estate Titles", see 35 U. Colo. L. Rev. 65 (1962). For article, "Winning the Rezoning", see 11 Colo. Law. 634 (1982). For article, "Foreclosure by Private Trustee: Now Is the Time for Colorado", see 65 Den. U. L. Rev. 41 (1988).

Purpose of this rule is to provide for a complete adjudication of the rights of all parties so that the controversy may be ended. Maitland v. Bd. of County Comm'rs, 701 P.2d 617 (Colo. App. 1984).

It is clear from the language of this rule that a C.R.C.P. 105 proceeding should completely adjudicate the rights of all parties to the action claiming interests in the property. 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. Keith v. Kinney, 961 P.2d 516 (Colo. App. 1997).

This rule does not change the substantive law, which is firmly established in all actions regarding possession of real property. Fastenau v. Engel, 129 Colo. 440, 270 P.2d 1019 (1954); Martini v. Smith, 42 P.3d 629 (Colo. 2002).

This rule was not intended to permit courts to quiet title in defaulting defendants. Osborne v. Holford, 40 Colo. App. 365, 575 P.2d 866 (1978).

Substance and not form determines the nature of an action relating to real estate, since the adoption of section (a). Vogt v. Hansen, 123 Colo. 105, 225 P.2d 1040 (1950).

Whether or not an action was one for possession of land depends on the fact of possession, and not on the form of the action. Vogt v. Hansen, 123 Colo. 105, 225 P.2d 1040 (1950).

Plaintiffs must rely on the strength of their own title in suits to quiet title, and not on the weakness or supposed weakness of their adversaries. Fastenau v. Engel, 129 Colo. 440, 270 P.2d 1019 (1954); Morrissey v. Achziger, 147 Colo. 510, 364 P.2d 187 (1961); Sch. Dist. No. Six v. Russell, 156 Colo. 75, 396 P.2d 929 (1964).

A plaintiff, in an action to quiet title to lands, must rely on the strength of his own title thereto; and when it affirmatively appears that such plaintiff's rights have terminated, he is in no...