As a surveyor licensed in several states, I was surprised to learn that California has multiple forms of quiet title causes of action. A quiet title lawsuit generally results in identifying the rightful owner of a property. Sometimes however, the suit may also result in WHERE the property begins and ends (property boundary) and not just WHO owns it. It is important for a surveyor to know some of the distinctions in California laws regarding quiet title suits.
California has three causes of action for quieting title:
1) Statutory (Ordinary) Quiet Title Actions CCP Sec. 760
•Establishes title against adverse claims
•Must record lis pendans (constructive notice)
•Must name all adverse claims – known, of record, or as reasonably apparent from inspection of property
•Summons must be served (actual notice) and posted on the property – publication as needed
•Judgment in accordance with EVIDENCE and the law
•Must establish the probable validity of the claim by a preponderance of the EVIDENCE
•Safeguards to prevent an innocent owner being defrauded
2) Destroyed Land Records Act aka “McEnerneys” Quiet Title Actions per CCP Sec. 751
•Public Records are destroyed in whole or part
•Establishes title (in rem, against world)
•Must be in peaceful posssession
•Must record lis pendans + note in Assessor maps
•Newspaper publication adequate
•Must name all known adverse claims
•Must swear to the character of the plaintiff’s estate (right, title, possession of, time, etc)
•Judgment is ordinarily by default + be recorded
3) Cullen Earthquake Act Quiet Title Actions per CCP Sec. 751.50
•Establishes title and reestablishes boundary
•Must include all owners affected + city, county, state, etc.
•Summons are served, published and posted
•Must be platted - private lands and public
•Boundaries adjusted in equitable principles
•No default judgment – proof of facts required
Here's the takeaway if you're ever involved as an expert in a Quiet Title action:
•Ordinary QT presupposes an adverse party
•Ordinary QT presupposes there will be a body of evidence – from which a preponderance will result
•McEnerney presupposes there is little evidence – title records were destroyed + purpose is to name the rightful owner
•McEnerney is generally settled by default judgment and when contested is limited to identifying the rightful owner
•Cullen presupposes that boundaries have changed – requires a survey and plat
•Cullen does not permit a default judgment
So, my advice is to NEVER prepare a legal description that differs from record unless you prepare and record a plat to illustrate the facts/observations you are relying upon. Make sure you educate your attorney by asking the right questions – what type of case is this? Why am I needed? Is there an adverse party?
Remember, you may be the only individual between the Attorney, Title Officer, and Claimant who understands the overlap of boundary location with title!