How Do I File a Quiet Title Action in California?
Full Question:
Answer:
The answer will depend on whether the complaint involves a claim of adverse possession or not. A lis pendens notice must be field along wit the complaint.
Please see the following CA statutes:
761.010. (a) An action under this chapter is commenced by filing a
complaint with the court.
(b) Immediately upon commencement of the action, the plaintiff
shall file a notice of the pendency of the action in the office of
the county recorder of each county in which any real property
described in the complaint is located.
761.020. The complaint shall be verified and shall include all of
the following:
(a) A description of the property that is the subject of the
action. In the case of tangible personal property, the description
shall include its usual location. In the case of real property, the
description shall include both its legal description and its street
address or common designation, if any.
(b) The title of the plaintiff as to which a determination under
this chapter is sought and the basis of the title. If the title is
based upon adverse possession, the complaint shall allege the
specific facts constituting the adverse possession.
(c) The adverse claims to the title of the plaintiff against which
a determination is sought.
(d) The date as of which the determination is sought. If the
determination is sought as of a date other than the date the
complaint is filed, the complaint shall include a statement of the
reasons why a determination as of that date is sought.
(e) A prayer for the determination of the title of the plaintiff
against the adverse claims.
All asessments and taxes must be paid before a claim for adverse possession may be brought. In California, adverse possession requires five years of continued use which is "open and notorious" and "adverse" to the owner's interest. The maintenance and upkeep and improvement of the property is required and for the five years of use the property taxes must be paid for the property being adversely possessed. Property that is occupied with the consent of the owners is not considered a hostile claim. Merely sending the possessor a note granting permission to be there will usually be enough to defeat a claim of adverse possession.
A partition action is a court action to divide property. Partition statutes allow those who own property in common to sever their interests and take their individual share of the property. An action for partition usually arises when a property is jointly owned and there is a dispute as to how to divide property, or in a dispute as to whether property should be sold. One co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. The partition statutes govern actions for partition of real property, but the partition statutes do not apply to property divisions under the Family Law Act or in other types of cases specifically governed by other statutes. A partition action may be initiated and maintained by any of a co-owner of personal property; an owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. Generally, a partition action may be maintained only by a person having the interest in the property, however, an equitable interest, is sufficient to support a partition action. A 'partition in kind' refers to land partitioned conveniently and equitably between or among the owners. Alternatively, it must be sold as a single parcel and the proceeds divided among the owners. If two or more people who own a property as tenants in common or if people who are not married to each other own a property as joint tenants with right of survivorship develop a dispute concerning the property, any owner may bring a partition action with the court to get the property divided between owners. While the lawsuit is pending, all owners will have equal access to and interest in the property. This arrangement applies regardless of whether the mortgage is in one owner's name or the name of all owners.
Partition may be either voluntary or compulsory. Voluntary partition is when the cotenants (owners) divide the property themselves, usually by exchanging individual deeds. Each co-owner owns a part of the property and ceases to have an undivided interest in the whole. The parties can also provide for the sale of the property and divide the proceeds among themselves.
When the co-owners cannot agree to a voluntary partition, a lawsuit to compel partition can be filed to sever property interests. Unless there are exceptional circumstances, a tenant in common or a joint tenant has the absolute right to seek a compulsory partition. Partition must be made even if every other owner objects to it. The motives of the party seeking partition are irrelevant, and the court that hears the lawsuit has no discretion to deny partition. Its main function is to determine the method of executing the partition. Commonly the court will order the property sold and the proceeds divided, instead of ordering a physical partition of the property.
Under Cal. Code. Civ. Proc. § 873.730(c)(2), a court may vacate a partition sale and order a new sale if the “sale price is disproportionate to the value of the property.” Alternatively, a court in California may vacate a partition sale and order a new sale if the following condition is satisfied:
“It appears that a new sale will yield a sum that exceeds the sale price by at least 10 percent on the first ten thousand dollars ($10,000) and 5 percent on the amount in excess thereof, determined after a reasonable allowance for the expenses of a new sale.” Cal. Code. Civ. Proc. § 873.730(c)(3)(2007).
