LAW OFFICES OF DOUGLAS A. FRYMER

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The below are explanation of areas of practice and is not legal advice.  The reader is advised to seek knowledgeable counsel.   Mr. Frymer is licensed to practice in California and by the below is not practicing in any jurisdiction outside of California. 

QUIET TITLE

What does it mean to quiet title? What is a quiet title action?

In most actions involving land, where there is a dispute over some form of ownership or interest in or affecting it, “Quiet Title” comes into play.  An action to Quiet Title generally means one party seeks to establish rights and/or unquestionable ownership over a land or an area of land.   This arises when one person claims to be the owner of an interest in property and another claims to be the owner of an interest in the same property.  Either party may sue the other to firmly and finally resolve that conflict, as the judgment establishes who owns what interest.  There may may be other related adjudication - relief or preventive measures - required under circumstances or to effectuate the judgment.  

The action is called “quiet title” because the effect of the judgment is to quiet claims that are adverse to the rightful owner’s title, rights or or claim of ownership.  The action is usually brought for the purpose of foreclosing, or “quieting” any and all adverse claims of the sort that show up as exceptions on title reports.  The goal is to establish right and ownership, such that it can be built upon, or loans can be granted, and so that title is marketable.  One note: if all that is sought is a declaration as to ownership, this is purely equitable in nature and generally the plaintiff is not entitled to a jury.  If more than this is sought (e.g., recovery of possession and or damages) then the ordinary rules apply.  Note that all affected, necessary and indispensable parties must be named, including all known and unknown successors and assigns – anyone having an actual or possible interest in the property, as they are entitled to have their say, and their rights heard and determined, in the action.  But consider that family members that want no part of the dispute, unsurprisingly, are not going to appreciate suddenly named as defendants in an action, having to hire counsel, pay court fees and be forced to have to participate in an action that can last years. 

PARTITION

I don't want to be a co-owner of a piece of property with another person (and responsible for taxes, insurance, maintenance etc.).  What can I do?

Here’s a typical situation: a well-meaning parent leaves a property to his children.  It may be the family home or a vacation get away or a rental.   The parent passes away, and the property goes to the children as joint tenants, with no designated percentage ownership on the deed or otherwise.  The intention was good, and the parent’s assumption was that the children would get along and enjoy the property during their lives, and keep it in the family.  And for a while this works.  But then it breeds resentment because one child may live close by and/or is the “responsible one” and the other lives too far away, can't handle managing the property, etc.  The “responsible one” ends up truly being responsible, and perhaps even liable, making sure mortgages and taxes and insurance premiums are paid, making sure the property is maintained (even doing some odds and end himself), maybe collecting rent from a tenant, managing the bank account for the property -- basically a property manager, and often uncompensated.   The responsible child gets tired of this pretty quickly and wants out.  But the other co-owner(s) has or have emotional attachment to the property, and may be living there rent free.  And so refuses to authorize or join in, or even talk about, a sale.  They delay as long as possible, perhaps even claiming they will buy the other one out, but often they cannot afford to and make no effort to obtain financing to do so.

When a co-owner refuses to voluntarily sell, or at least split the interests in the property the remedy is to go to Court on a cause of action for “partition”.

The purpose of an action for partition of property is to allow co-owners to have title “in severalty" with the property owned in common now have ownerships interests and amount determined and severable, permanently ending the disputes that arise between them concerning their ownership in the property.  The action is not accusatory, and like it or not it will determine the issue.  The Judgment effectively severs the unity of possession; in other words, the owners now have defined ownership.  In practical terms, once the responsible party that wants out puts her foot down, and goes to the extreme of bringing a partition action, the other owner(s) understand the severity, that the situation has come to a head, and don't want to go to the time and expense of defending a litigation.   In mediation, or in ordinary settlement, they agree to list the property for sale in order to get top dollar rather than lose money in the expense of litigation, with a downside in that the litigation is public and make the sale appear desperate and thus lowers the bids and sale price.   

It should not come to this, as the action consumes time and expense in terms of attorney and court fees.  Experienced counsel on both sides should seek to advise the parties of the nature of a partition action and the time and expense, such that the parties can negotiate and agree upon, for example, move out dates, any needed repairs, a neutral listing broker acceptable to all parties and anticipated time lines.

CONSTRUCTIVE TRUST

Years ago, a relative co-signed for my house.  Now that relative has passed away and his heirs want payment, even though they've never paid a cent towards mortgage, taxes, insurance, utilities, maintenance or anything else.  What do I do?

Here's the unfortunately typical scenario: young couple buys a house and grandma and grandpa or aunt and uncle obtain and/co-sign the loan, under the notion that eventually the loan will be paid off one day or the young couple will or remove the cosigner when it is feasible.  All of this is done on faith, oral agreements and understandings, often with nothing in writing.  The loan, however, and sometimes the deed that backs it, states otherwise and contains the names of the cosigners.  Everyone forgets about it and many years later, the cosigning relatives pass away.   Now their heirs, cousins, grandchildren, other family members come looking for “their share” -even though they've never lived there and never paid a dime towards anything. 

The remedy is in an action, usually appended to a claim for quiet title and declaratory relief called “constructive trust.”   It is not a cause of action in and of itself, it's an equitable remedy, imposed by the Court to prevent unjust enrichment and/or to enforce restitution when one party holds title to or some interest in property that would be inequitable for him or her to enjoy. 

A constructive trust may be imposed in practically any case where there's been a wrongful acquisition or detention of property to which another is entitled.  A constructive trust is an involuntary trust created by operation of law to prevent, under equitable principles, one from wrongfully acquiring or detaining the property of another.  While it is an uphill battle because the claim, based on discussions and agreement long ago, with witness that are now gone, is contrary to what the documents state.  Fortunately, the Court can look at all of circumstances and is given flexibility to apply equitable doctrines; that is, fairness, as the court deems necessary on a case by case basis, where the parties are before the Court for its guidance and equitable determination. 

In practice, once the “real” owners bring the action, reality hits.  The claimants will be faced with perhaps years’ worth of checks and receipts proving the real owner made all payments. 

BOUNDARY DISPUTES

I have a problem with my adjoining neighbor regarding the property line, what do I do?

The property line (“PL”) or boundary delineates the furthest extent of a tract of land, the line between parcels or real estate lots.  These are drawn or marked by “monuments,” - in modern times surveyor’s pins -- but a monument can mean any natural or artificial object used to mark the location on the ground of a boundary line or a corner (as an aside, never move a surveyor's pin, this is a crime.  Surveyors are not government agents but they are licensed by the State and are neutral in that they cannot “take sides” as they will follow the description, search for monuments and re-establish them if necessary, and moving a pin will not change descriptions).  If a monument is missing it can be recreated.  Lines are drawn historically by what are known as “metes and bounds” descriptions, those things you've seen in a deed state in very precise detailed latitude and longitude degrees, north south east and west, down to very specific plot points.  

Disputes arise when, after decades of properties changing hands, particularly in rolling, foothills and difficult terrain where the line has become obscured.  Often fences or foliage or walls have been built, with a misunderstanding of where the property line is.  This does not change what the deeds, public records, and the metes and bounds descriptions states.   The situation is not the fault of the current owners.   When developments were created, and lots established, with metes and bounds descriptions and property lines were drawn for properties decades ago these were done in two dimensions on a map.  Now, with satellite imagery and modern digital capabilities we can pinpoint monuments and lines that can be searched online.

The properties on both sides, and the understanding and assumptions of where the line is may have changed many times over the years.  Complicating this, foliage, trees, hard structures such as walls, driveway, fences, planters, decks or pools may have been built.  While a line might be off by a few inches at the curb, it could be off by many feet by the time we reach the other end.

The line can only be fixed by agreement or adjudication.  It is in the best interest of the parties to address the situation calmly and realistically, as the erroneous line can make the properties on both sides unmarketable and uninsurable, often discovered at a stressful crunch time when a party needs to sell.   No one wants to buy into a properly line dispute, and Title, Escrow and insurers, having discovered the issues, will want no part of this, fearing liability.

In plain terms, it's not worth battling over, unless one side simply will not agree.  Property lines can be adjudicated and established by the Court, but the Court will want to see historical metes and bounds descriptions, deeds and surveys showing where the line is.  The owners can avoid this, engage counsel, appoint an acceptable surveyor, determine and agree upon the line, and record and file the appropriate paperwork with various government agencies such as the tax assessor, county recorder, and in many cases, the town or city where the property is situated.

THE LAW OFFICES OF DOUGLAS A. FRYMER

Licensed in CALIFORNIA * NEVADA * UTAH * PENNSYLVANIA 

1822-A East Route 66 No. 277, Glendora, California 91740 (626) 622-4542  dafrymer@gmail.com

c) Copyright 2022 Douglas A. Frymer, Glendora California