Quiet Title is just that: quieting your title from other people’s claims in your property. It is affirming that you own your property free and clear of another’s interests. To do this, one petitions a court to declare that another’s claim to the property is legally invalid. Like most litigation all interested parties to a suit need to be named and served with summons before the court will determine the parties respective rights. Ultimately the court will rule on conflicting claims and make a decision.
Unlike a car title that consists of a title certificate and the liens are enumerated on the title document, liens for real estate are recorded with the recorder of deeds for each county. In order to accomplish this, each county assigns each parcel of real estate a unique number–commonly referred to as a permanent index number or PIN.
Each document recorded against a property must have the property’s PIN and legal description. Recording a document with the recorder of deeds is akin to publishing this information to the whole world. This has significance in conflicts between competing claims.
As you can imagine sometimes documents appear on the official records that need to be removed—or quieted–by the property owner.
Below is a discussion on the common documents that cloud an owner’s title. These are forged deeds, conflicting chain of title, equitable mortgages, old mortgages, invalid mechanics liens, adverse possession. I have litigated each category and am competent to represent one in future litigation.
Forged deeds are deeds signed not by the owner but someone else without the owner’s knowledge. Signatures on deeds to be effective normally need to be notarized by a notary of the public. Forged deeds are done by criminals and are recorded with the recorder of deeds. Sometimes these criminals borrow money against the property. After the money is lent, the lender starts foreclosure procedures. Then this forgery comes to light. The victim in order to prevail must demonstrate that the deed is false. This is normally done by proving the recorded deed does not bear his or her signature. When the owner proves that the deed to the criminal is fraudulent, then everything that the criminal signed will be declared invalid.
Thus Bob obtains a forged deed to Susan’s house unbeknownst to Susan. Bob’s lender gives Bob a mortgage on this house for $100,000.00. Bob pockets this $100,000.00. Bob doesn’t make any payments on the mortgage. The lender starts foreclosure proceedings and Susan then discovers this forgery. Susan files a suit to Quiet Title. When Susan proves that Bob’s deed is a forgery, then Bob’s mortgage likewise vanishes from being of record. The lender is out $100,000.00. To cover this scenario lenders obtain title insurance—insurance on who owns this property. In this scenario happens if the lender has title insurance, then the title insurance will pay the lender the amount of the loan.
Conflicting chain of titles
Sometimes there is two or more chain of titles to a property. A chain of title is conflicting claims arising for different documents on the same parcel of land. Occasionally the grantor signs multiple deeds or mortgages and these deeds or mortgages create conflicting title claims. Over time society has developed rules and requires people to record documents with the recorder of deeds. Normally the first to record a document prevails against the other. I have litigated conflicting chain of title when a uncle gave separate deeds years apart to different sides of the same family; where homeowner bamboozled different lenders for first mortgages days apart; where different heirs claim ownership under conflicting wills.
Sometimes an individual lender obtains a deed instead of a mortgage from the borrower thinking that if the borrower defaults in monthly payments, title will vest with the lender. However Illinois courts can look behind the transaction and in equity determine that the deed is really a mortgage and that the lender must foreclose on the mortgage. Although Illinois law recognizes that a deed is absolute on its face, this deed can be converted to a mortgage. To convert a deed to a mortgage the proof must be clear, satisfactory, and convincing. The following factors are relevant for courts to consider in determining the existence of an equitable mortgage: the existence of indebtedness, the close relationship of the parties, prior unsuccessful attempts for loans, the circumstances surrounding the transaction, the disparity of the situations of the parties, the lack of legal assistance, the unusual type of sale, the inadequacy of consideration, the way the consideration was paid, the retention of written evidence of the debt, the belief that the debt remains unpaid, an agreement to repurchase, and the continued exercise of ownership privileges and responsibilities by the seller.
Mortgages more than 10 years of no activities
Sometimes a mortgage becomes stale. For many years the lender takes no steps to collect this debt. In Illinois a mortgage can become invalid if the lender takes not steps to collect on the debt for more than 10 years. If for more than 10 years, the lender fails to make any effort to collect on a mortgage, then courts will rule that the mortgage is no longer valid and that this mortgage is a cloud on the owner’s title and will order that it be removed. I have litigated old second mortgages where the lender has made no effort to collect on the debt for more than 10 years. After proving these facts in a court of law, the courts have declared that the mortgages be removed from the public records.
Mechanics liens after two years
Sometimes a contractor files a lien on a property asserting that the owner did not pay for work done to enhance the value of the property. This is called a mechanics lien. Under Illinois law there are specific deadlines for filing suit to enforce this lien. Failure to file the foreclosure suit timely results in the lien becoming invalid. Like a stale mortgage sometimes one needs to obtain a court order ordering the removal of this invalid lien.
Adverse possession after 20 years declared owner
Occasionally one uses another’s property for more than 20 years in an (1) open (2) continuous (3) exclusive (4) actual and (5) non-permissive use. This is called adverse possession. If all elements are proven by a court, the court will award the person using the land title to the land. In other words you acquire property by using it for more than 20 years. See also: Wikipedia’s discussion on Adverse Possession
I have litigated this issue where the fence between properties was wrong and someone used another’s property for more than 20 years; where building’s foundations was on another’s land; where portion of a driveway are on another’s land. After proving these facts, the court declared the user now the owner of the property.
There is a related concept in the law too: payment of taxes under the color of ownership. If a person pays the real estate taxes on a parcel of land for 7 years based upon some legal claim or document, and the other elements above are demonstrate, then that person is entitled to being declared the owner of the property.