quiet title protocol

Attorney Protocol for
Quiet Title Lawsuit

1. Introduction:

In Florida when someone wants to aquire title to property (or wants to make a loan and take a mortgage on property as collateral) it prudent to purchase title insurance in order to insure that the other party actually has title and that there are no unexpected liens. The title insurance committment, in certain instances, might require that a "quiet title" lawsuit be prosecuted so that specified title issues can be resolved and that full ownership be "quieted" in the names of a specified person or entity.

In order for a quiet title lawsuit to be a viable solution the elements of "adverse possession" must be satisfied

Adverse possession is a way of to obtain legal title to property when the previous owner did not have valid title. The requirements of adversion posession are satisfied when a person who who is not the legal owner "openly, notoriously, and adversely" occupies a property for 7 years (which is the statute of limitations for trespass) and the legal owner fails to take action to eject them. After that time period a legal action for tresspass would be barred by the statute of limitations and the the "adverse" occupier would then be considered the owner.

An occupier who had aquired title through adverse possession can formalize that title in the official "Public Records" by filing a "quiet title" lawsuit in the courts.

As with all lawsuits, proper notice must be given to potential adverse parties (called "service of process"). A quiet title action is a lawsuit against everyone in the world (that is, anyone, known or unknown who might claim an ownership interest in the property). Hence, "service of process" is done by publication in a newspaper of general circulation once per week for 4 consecutive weeks. In addition, the title insurance commitment would normally require that the former owner and perhaps others be specifically named as a defendant.

Quiet title lawsuits must be filed by the current property owner. Thus, if someone is purchasing property and the title insurance commitment requires a quiet title lawsuit the closing on the conveyance would be held up until the current owner completed the process.

Assuming that no one files an "answer" to the quiet title lawsuit after service of thereby contesting it), the whole thing should take about two months to complete (the biggest chunk of time being the four week for publication period).

2. Download the Templates

Click here to down load the collection of templates that you can use to create the forms referred to below (compressed "zip" file)

3. Closely examine the title insurance commitment

Identify the individuals that must be specifically named in the quiet title suit.

Because quiet title actions, by their nature, are "in rem" (lawsuits against the entire world) the "Complaint" must make allegations against any and all persons, known and unknown, who might claim an interest in the property. But, you must also make specific allegations concerning individuals that are identified in the title insurance commitment.

4. Educate yourself

5. Prepare the Complaint and Summons

6. Personal Service of Process:

make good faith reasonable efforts to have a process server effectuate personal service of process (that is, delivery of the official court papers)) upon all defendants specifically named in the Complaint.

7. Constructive Service of Process (i.e. publication).

A notice must be published in a newspaper. Doing this gives the court jurisdiction over the persons not specifically named in the Complaint but who might claim an interest in the property. It is also necessary to get jurisdiction over persons specifically named in the Complaint who can't physically be located by the process servers over good faith efforts.

Prepare "Notice of Action" using the templates (this is the document to be published)

Prepare "Sworn Statement" outlining the good faith due diligent efforts that you made to locate all defendants specifically named in the Complaint.

Make arrangements with a newspaper to publish the Notice once during each week for 4 consecutive weeks

8. Default Judgment

File the relevant "Non-Military Affidavits" with the Clerk (affirming that the named defendants are not in the armed services).

File a Motion for Default Judgment and Entry of Default. The Motion in the downloadable packet has a paragraph at the bottom for the judge to sign entering the default - as an alternative, you can have the Clerk enter the default in accordance with the Rules of Civil Procedure but the Clerk might balk, for example, if a named defendant is dead and your only service of process upon a named defendant is by publication, in such case it is better to explain the situation directly with the judge at the hearing, see below.

Arrange to have the Motion heard by the Judge at his or her normal motion docket rather than as a specially set hearing.

Have the judge sign the Final Judgment document that you have prepared (which includes a place for the judge to sign entering the default).

9. Record the Final Judgment in the Public Record.