Opinion
No. HHB CV 10 5015058
November 29, 2010
MEMORANDUM OF DECISION
BACKGROUND AND FINDINGS OF FACT:
This action to quiet title was tried before the court on November 24, 2010. The defendant was defaulted for failure to appear. Notice was made by publication and the court, Tanzer, J., ordered on October 18, 2010 that no further notice to the defendant or interested parties was necessary. On October 22, 2010, the court, Pittman, J. granted a motion for default for failure to appear against the defendant. Evidence was presented at trial, certifying that the defendant, Olof L. Johanson, died on July 11, 1973.
The plaintiffs, David and Mary Jean White were represented at trial by counsel and David White testified. Various exhibits were presented, accepted and considered by the court. The court makes the following findings of fact, proven by a fair preponderance of the evidence:
On or about August 3, 1990, the plaintiffs purchased real property located at 2 Wainwright Avenue in Plainville, Connecticut [subject property] from one Eunice L. Anderson, receiving a statutory warranty deed.
At the time of the conveyance of the subject property, Eunice L. Anderson possessed an undivided one-half interest in the property. The remaining undivided interest was in the name of Olof L. Johanson.
Since the purchase of the subject property twenty years prior, the plaintiffs have continuously and exclusively used and possessed the property, openly, notoriously and uninterruptedly. The plaintiffs have maintained and paid taxes upon the property.
In 2008, the plaintiffs attempted to sell the subject property and were unable to do so because the undivided one-half interest clouds the title. Based upon the title search presented by the plaintiffs' counsel, it appears that this undivided one-half interest was created through inadvertence and without intent. No one, including the defendant, has expressed any interest in the subject property since the plaintiffs entered onto the subject premises in 1990, the defendant having passed away seventeen years prior to the date of the deed from Eunice L. Anderson.
The plaintiffs seek, presumably through application of General Statutes § 47-31, to quiet title to the subject property. The ends of the plaintiffs' request for relief are accomplished through General Statutes § 47-31 and they have complied with the requirements of this statute.
Since an action to quiet title is brought pursuant to the authority provided in General Statutes § 47-31, the normal course would have been for the plaintiffs to have included the statutory citation in their complaint. Practice Book § 10-3(a).
In addition to the notice deemed to be sufficient by Judge Tanzer as noted above, counsel for the plaintiffs recited for this court the additional efforts made to locate anyone who may have an interest in the subject property, including obtaining the death certificate of the defendant Johanson, and obtaining the affidavit in lieu of probate executed by the defendant Johanson's spouse which states that Johanson owned no real property at the time of his death. Counsel for the plaintiff even contacted the cemetery where the defendant is interred to inquire whether anyone is paying an annual maintenance charge for his plot, so as to ascertain any possible Johanson heirs or persons with an interest in the subject property.
The court finds that more than reasonable efforts have been expended to locate the identity and whereabouts of any unknown persons claiming, or who may claim, any rights, title, interest or estate in or lien or encumbrance upon the subject property. None have been discovered or have come forth, including the spouse of the defendant.
AUTHORITY AND ANALYSIS:
This court has jurisdiction over actions brought by any person claiming any interest in real property against any other person who claims to have any interest in the property. The court is empowered, in such an action, to clear up all doubts and disputes and to quiet and settle the title to the property pursuant to General Statutes § 47-31(a), which provides in relevant part: "An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property."
General Statutes § 47-31(f) provides: "The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property."
An action to quiet title can be brought to resolve ambiguities in a deed. Faiola v. Faiola, 156 Conn. 12, 18, 238 A.2d 405 (1968). "An action to quiet title is one quasi in rem, and it lies against those who, at the time it is instituted, are the present claimants to the land under the instrument which creates the cloud . . . When a party seeks to quiet title pursuant to § 47-31, the court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title . . . The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of adverse possession of the other." (Citation omitted; internal quotation marks omitted.) Har v. Boreiko, 118 Conn.App. 787, 794, 986 A.2d 1072 (2010).
"Where a party pursuant to General Statutes § 47-31 seeks to quiet title, the trial court should first determine in which party record title lies . . ." Clark v. Drska, 1 Conn.App. 481, 488, 473 A.2d 325 (1984). "Under § 47-31, the claim for relief calls for a full determination of the rights of the parties in the land . . . To prevail, the plaintiff must do so on the strength of her own title, not on the weakness of the defendants' . . . and by the preponderance of the evidence." (Citations omitted; internal quotation marks omitted.) Har v. Boreiko, supra, 118 Conn.App. 795. The plaintiffs have done so, through the submission of a title search, supporting documentation and the warranty deed.
The next analysis is whether the plaintiffs have divested the defendant of its interest in the wood lot by adverse possession. "The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner . . . Adverse possession must be proven by the claimant . . . by clear and convincing evidence." (Internal quotation marks omitted.) Roberson v. Aubin, 120 Conn.App. 79, 74, 990 A.2d 1239 (2010). Additionally, "[i]t is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons . . . [T]he possession [however] must be connected and continuous . . ." (Internal quotation marks omitted.) Har v. Boreiko, supra, 118 Conn.App. 799.
The court finds, based upon the testimony and exhibits of the plaintiff, David White, that the plaintiffs have used and enjoyed the subject premises for more than fifteen years and that such use and enjoyment was at all times, open, notorious, exclusive, visible, continuous and uninterrupted, all without the license or consent of any other, including the defendant.
In addition to a claim under General Statutes § 47-31, General Statutes § 52-575(a), the statute of repose, is applicable here. That statute provides in relevant part: "No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards . . ." "The effect [of adverse possession] may be, and often is, to destroy a valid claim and to make valid one previously invalid." (Internal quotation marks omitted.) Ruick v. Twarkins, 171 Conn. 149, 159-60, 367 A.2d 1380 (1976). "By such adverse possession, the true owner is barred by a statute of limitations; General Statutes § 52-575; from making entry into the subject lands." Id., 155. "A claimant's adverse possession begins with the ouster of the owner's possession . . . In other words, the 15-year statutory period begins to run at the time of entry upon the land claimed." (Citation omitted.) Greenberg v. Algonquin Gas Transmission Co., Superior Court, judicial district of New London at Norwich, Docket No. CV 89 93620 (March 10, 1993, Hurley, J.) ( 8 Conn. L. Rptr. 781, 783); Ruick v. Twarkins, supra, 171 Conn. 160. As stated above, the plaintiffs have entered upon the subject property well over 15 years prior to the commencement of this action.
Based upon the pleadings, affidavits, exhibits and testimony, the plaintiffs are entitled to judgment as a matter of law because they are the record title owners of the subject property and their adverse possession divested the defendant of his interest in the subject property.
WHEREUPON, for the foregoing reasons, judgment enters in favor of the plaintiffs against the defendant on the complaint. Accordingly, the court finds title to the subject property or parcel recorded at Volume 278, Page 977 of the Plainville Land Records in favor of the plaintiffs. It is further adjudged that the title to the property be and the same is hereby quieted and settled in the plaintiffs, as against the defendant and that the defendant does not have any estate, interest in or encumbrance on the property or any part thereof.