Is Possession Necessary to Quiet Title?

By statute quiet title actions in now apply to personal property. Under the common law quiet title actions only applied to real estate. Under the orthodox concept of an action to quiet title to real property (as well as personal) it was the rule in Kansas, before the present statute, and the rule of common law, that the pleading and proof of possession, either in person or through an agent or tenant, were necessary to maintain the action.

The reason that the possession was a necessary ingredient of an action to quiet title was that for a party out of possession, ejectment furnished an adequate remedy at law. If ejectment was not an adequate remedy to get the title termined, the party out of possession could always bring an action in equity as distinguished from the statutory action to quiet title.

Now, however, we have unified courts. That is, the same court can handle all issues pertaining to law and equity. Since the distinction between courts of law and courts of equity have been abolished, it is no longer realistic or necessary to require the allegation and proof of possession in order to maintain an action to quiet title. Accordingly, the requirement has been eliminated. In most cases the question of possession will be important, and the plaintiff, if not in possession, can ask for it in the same action. If a possessory action will answer the purpose of obtaining an adjudication of title, the appropriate remedy will be one for "ejectment." It is clear that an action to quiet title, without joining a claim for possession, will not serve as an action in ejectment. It is equally clear that an action in ejectment will often be adequate as a substitute for quieting the title; however, both remedies may be obtained simultaneously.

If you believe that you may require a quiet title action, or an action for ejectment, contact the law firm of Martin & Wallentine to discuss your case. You will discuss your case with an experienced quiet title attorney.

The following is the Kansas Statute which your lawyer will likely utilize to help you obtain a quiet title to you car, boat, aircraft, house, vehicle, or otherwise.

K.S.A. 60-1002.Quieting or determining title or interest in property.

(a) Right of action. An action may be brought by any person claiming title or interest in personal or real property, including oil and gas leases, mineral or royalty interests, against any person who claims an estate or interest therein adverse to him or her, for the purpose of determining such adverse claim.

(b) Action to bar lien claim, when. When a lien on property has ceased to exist, or when an action to enforce a lien is barred by a statute of limitation or otherwise, the owner of the property may maintain an action to quiet title.

K.S.A. 60-1001.Actions for possession; ejectment. (a) Petition. In any action to recover possession of real property, including an oil or gas lease or mineral interest, it shall be sufficient if the petition state that the petitioner has a legal or equitable interest therein and the right to possession.

(b) Tenants in common. In an action against a tenant in common the petition must state that the defendant either denied plaintiff's right, or did some act amounting to such denial.

(c) Judgment; when plaintiff prevails. If plaintiff prevails the judgment shall be for possession and damages for the loss of rents and profits, if any, and execution to enforce the same shall be issued to the sheriff by the clerk at the written request of the party entitled thereto.

(d) When action becomes moot. If the right of the plaintiff to the possession of the premises expires after the commencement of the suit and before the trial, the judgment shall be for the damages and costs.