Shhh…Quiet, Title! When “Ancient” Mortgages or Deeds of Trust Come Back to Haunt You
When “Ancient” Mortgages or Deeds of Trust Come Back to Haunt You
Often property owners believe that old mortgages, deeds of trust or other instruments creating a security interest in real property to secure a debt simply go away on their own with time. While this is partially true, an “ignore it and it will go away” mentality is not always the best policy. Civil Code section 882.020 provides clarity on this issue by providing, in pertinent part, “[i]f the final maturity date or the last date fixed for payment of the debt or performance of the obligation is ascertainable from the recorded evidence of indebtedness, 10 years after that date.” In other words, if the recorded mortgage, deed of trust or other security instrument includes either a maturity date or date of last payment on its face, then this lien expires 10 years after that date. But, again, the maturity date or date of last payment must appear on the recorded document itself. If no date is present, Civil Code section 882.020(a)(2) applies which provides, in pertinent part:
If the final maturity date or the last date fixed for payment of the debt or performance of the obligation is not ascertainable from the recorded evidence of indebtedness, or if there is no final maturity date or last date fixed for payment of the debt or performance of the obligation, 60 years after the date the instrument that created the security interest was recorded.
Thus, a lien created by a recorded mortgage or deed of trust that does not contain a final payment date or maturity date does not expire until 60 years after the date the instrument was recorded. But, if your client does not have 60 years to wait, a quiet title action may be the answer.
A quiet title action is filed to clear title to real property and establish title against any adverse claims or any interests in real property. (Code of Civil Procedure sections 760.010 to 764.080.) A quiet title action is initiated by filing a Verified Complaint to Quiet Title with the Court in the county in which the property is located, and subsequently recording a notice of pendency of action, or lis pendens, on the subject real property. Code of Civil Procedure section 761.020 sets forth all the information that must be included in the Verified Complaint to Quiet Title. Code of Civil Procedure section 764.010 provides that at the quiet title hearing “the court shall examine into and determine the plaintiff’s title against the claims of all the defendants.” This section further provides that, “the court shall not enter judgment by default but shall in all cases require evidence of plaintiff’s title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint.” Essentially, the Court conducts a “mini-trial” to determine the plaintiff’s title against the claims of the named defendants, and the Court then “render(s) judgment in accordance with the evidence and the law.” (Code of Civil Procedure section 764.010.)
Thus, although time does not necessarily eliminate certain recorded liens on real property, a quiet title action may be the solution in certain circumstances. If you have never filed this type of action, the first and best place to start is Civil Code of Procedure section 760.010, et seq.
Author’s bio: Kiki Manti Engel is an associate with Reid & Hellyer, APC where she practices business and real estate litigation.
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