CHAPTER 10: SELECTED CIVIL CLAIMS - Table of Contents
10.1 - Alternate Dispute Resolution • 10.2 - Bankruptcy • 10.3 - Dissolution of Marriage • 10.4 - Intellectual Property • 10.5 - Personal Injury • 10.6 - Professional Malpractice • 10.7 - Real Estate • 10.8 - Taxation
10.7 REAL ESTATE
A deed is a legal document by which ownership in real property is conveyed. A deed is executed by the owner of the real property (the grantor) who conveys to another person or entity (the grantee) some interest in real estate. Colorado recognizes by statute different forms of deeds. A common form includes the warranty deed where the grantor guarantees the title to the real property against defects that arose both before and during the grantor's ownership. A special warranty deed is another form of conveyance deed that limits the title guarantee to defects that arose during the grantor's ownership of the property. A quitclaim deed is a conveyance deed in which the grantor warrants nothing and conveys the grantors interest in the property, if any.
Real property can be held in a number of different ways. In Colorado, joint tenancy is commonly used by married persons or family members to provide a right of survivorship. Joint tenancy is a type of co-ownership where the owners are equally entitled to all rights in the property and have a right of survivorship. Survivorship means that if one joint tenant dies, the other joint tenant immediately acquires title.
Tenancy-in-common is another common form of co-ownership. Each co-tenant is entitled to possession of the property in accordance with their relative interest. For example, three persons holding in co-tenancy could have interests of 50%, 25% and 25%. Co-tenants do not have a right of survivorship among themselves. A conveyance deed typically refers to the manner in which ownership is held. For example, a couple buying a house may obtain title by Warranty Deed as joint tenants.
Fee simple is the broadest form of property ownership. In contrast, easements encumber the fee estate that is typically held by another property owner. An easement is an interest in real property that permits a use for a specific purpose or even limits the property owners use of his or her property. A common form of easement would be a right of way for access purposes. Utilities commonly have easement rights across property in order to provide utility service and to provide access to repair and maintain lines. Conservation easements are an agreement between the property owner and a land trust whereby the property owner agrees to permanent restrictions on the use or development of the property. The grant of the conservation easement provides significant tax benefits to the property owner.
Real estate documents such as deeds or easements are recorded in the clerk and recorder's office in the County where the real property is located. A documentary fee must be paid to the clerk and recorder. Recording provides notice to the public of all the rights set forth in the document that is recorded. Thereafter, documents can be referenced by a recording number and the specific book and page number on which the document appears in the public record.
Recording an invalid or false real estate document can have dire consequences and give rise to a claim for slander of title or spurious lien. The clerk and recorder's office does not determine what documents it will accept for recording. If someone provides a document to be recorded and pays the documentary fee, the document will be accepted and recorded. Whenever someone is buying property or getting a loan with their property as security a review of the title will occur. An invalid or false document that has been filed could easily jeopardize a sale of the loan. Anyone filing such a document is subject to a slander of title and/or spurious lien claim under which a court can award damages and attorneys fees.
The purchase of real estate is commonly financed. The lender obtains a priority lien against the real property that is being purchased with its loan. In Colorado, this lien is created by a deed of trust which is a form of mortgage by which a borrower or debtor purports to convey the real property to the public trustee of the county in which the property is located who then holds the property as security for repayment of the loan referenced in the trust deed. Although the deed of trust purports to convey title, title actually remains in the grantor (the property owner). The deed of trust, in effect, creates a lien.
Foreclosure is the legal court proceeding instituted by the holder of a mortgage or lien creditor against real property which seeks to terminate the rights of the owner in the property. Foreclosure actions most typically are brought by a lender when the property owner defaults on the mortgage loan. In such a case, the action seeks to "Foreclose" the "Deed of Trust".
Condemnation is the process by which the property of a private owner is taken for public use with compensation paid to the owner by the government under the power of eminent domain. The right of eminent domain allows the government to "take" private property so long as the "taking" is for a public purpose. The government has to pay for the land taken. Most condemnation disputes focus on the issue of what constitutes fair compensation. Typically a market value analysis is conducted to determine property value. In the court proceeding either a jury or a panel of court appointed commissioners with real estate expertise determine what compensation is fair.
Forcible entry and detainer ("FED") is the terminology used to refer to an eviction action. A landlord can bring an FED action to evict a tenant for a number of reasons including, among other things, nonpayment of rent or expiration of the lease term. A landlord in Colorado is not entitled to use self-help to remove a tenant from the leased premises. Absent a tenant's cooperation, a landlord may need to institute a formal FED action in court to obtain an Order of Possession entitling the landlord to retake possession of the premises.
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