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Quiet Title Is an Appropriate Vehicle for Adverse Possession Claims

Month: February 2025

Quiet Title Is an Appropriate Vehicle for Adverse Possession Claims

Posted on by Christie Bowness

What You Need to Know

  • Adverse Possession Validity: Cazaubon reinforces that adverse possession is a legitimate basis for pursuing a quiet title action, and a party does not need to hold a deed to the contested property to make a claim.
  • Procedural Validity of Claims: This case affirms the procedural validity of complaints filed in adverse possession cases.
  • Importance of Procedural Posture: This case highlights the significance of procedural posture, emphasizing the importance of understanding court rules when seeking to dismiss an action.

Introduction

In a recent case from the Third District Appellate Court of Illinois, the Court reversed the trial court’s dismissal of a complaint seeking to quiet title through an adverse possession claim, stating that a “quiet title action is the vehicle through which an adverse possession claim can be made.”  Cazaubon v. Blossomgame, 2024 IL App (3d) 230677-U.

Background and Procedural History

Plaintiffs Harold and Barbara Cazaubon (“Plaintiffs”) purchased a residential lot known as 707 S. Riverside, Villa Park, Illinois (“Parcel 707”) in 2021 from Eva Fricke.  Defendants Lorenzo and Stephanie Blossomgame (“Defendants”) purchased the parcel adjacent to Parcel 707 known as 709 S. Riverside (“Parcel 709”) in 2016 from Akhter and Sheema Hussaini (collectively the “Hussainis”).  Plaintiffs’ parcel used an asphalt driveway and a detached garage that was partially located on the south side of the property line. Specifically, “[t]he . . . driveway encroache[d] onto parcel 709 by 2.45 feet to 3.25 feet and the garage intrude[d] by 1.18 feet to 1.97 feet, running west to east along the property line” (the “Disputed Property”).

As such, Plaintiffs filed a quiet title action in 2023 against Defendants “seeking to obtain title to the [D]isputed [P]roperty based on a claim of adverse possession.”  In support of their claim, Plaintiffs alleged that the driveway has existed “for ‘at least 67 years’” and for more than twenty years Plaintiffs and/or their predecessors-in-title have exhibited “continuous, hostile or adverse, actual, open, notorious, and exclusive possession of the” Disputed Property.  Plaintiffs alleged that they “(1) constructed, sealed, and repaired the driveway; (2) constructed, painted, and repaired the garage; (3) removed snow and leaves from the driveway; and (4) used the driveway and garage exclusively, indicating to neighbors that they possessed and claimed ownership of the disputed property.”

In response to Plaintiffs’ quiet title action, Defendants filed a motion to dismiss under section 2-619(a)(9) of the Illinois Code wherein they alleged that Plaintiffs’ complaint did not adequately assert the elements of adverse possession.  To that end, Defendants argued that the Hussainis gave Plaintiffs and Eva Fricke “consent to extend the driveway and the garage onto Parcel 709 and that [P]laintiffs maintained that portion of the driveway and garage with their permission.”  In support of their motion, Defendants submitted their title insurance policy and an estoppel affidavit signed by the Hussainis wherein the Hussainis “averred that they were the ‘Owners’ of parcel 709.”

The trial court held oral argument on Defendants’ motion to dismiss at which time Defendants reiterated that “their permission destroyed the [Plaintiffs’] claim for adverse possession by refuting the element of hostile ownership.”  Plaintiffs asserted that Defendants’ argument could not be raised because Defendants only challenged “the sufficiency of the complaint[]” rather than asserting “an affirmative matter” as is required under section 2-619.  The trial court also rejected Plaintiffs’ contention that they had a claim of right to pursue their quiet title action as “evidence of an assertion of right based on adverse possession supported their quiet title claim.”  In response, the trial court “stated: ‘That’s not legally a claim of right.’”  Ultimately, the trial court granted Defendants’ motion to dismiss, and Plaintiffs appealed based on the claim “that dismissal was improper because [Defendants] failed to assert an affirmative matter that defeated their adverse possession claim.”

Decision

The Appellate Court began its analysis with an overview of the elements of adverse possession, finding that Plaintiffs “must prove possession of the disputed property for a period of 20 years and [show their] possession was (1) continuous; (2) hostile; (3) actual; (4) open, notorious, and exclusive; and (5) under a claim of title inconsistent with that of the true owner.” (citations omitted).  The Court noted that “[a]dverse possession by successive possessors of property who were in privity can be combined to establish continuous possession[]” and reiterated that possession is not deemed hostile if the subject property is used with the owner’s permission.

Next, the Court detailed the procedural requirements of a motion to dismiss under section 2-619(a)(9), noting that “[a] section 2-619(a)(9) motion assumes the allegations in a complaint are true but asserts that the plaintiff's cause of action is barred by ‘other affirmative matter avoiding the legal effect of or defeating the claim.’”  The Court went on to define an affirmative matter under section 2-619(a)(9) as “any defense other than a negation of the essential allegations of the plaintiff's cause of action[]” and stated that “[d]ismissal under section 2-619(a)(9) is appropriate only if an affirmative defense negates the plaintiff's claim.”

The Court reviewed the dismissal under section 2-619(a)(9) de novo and held that Defendants’ motion and supporting affidavits failed to set forth an affirmative matter and “merely refuted the well-pleaded allegations in [P]laintiffs’ complaint.”  That is, Plaintiffs alleged that the taking was notorious and hostile as it was done without permission decades before Defendants purchased Parcel 709.  As such, the Court held that dismissal under section 2-619(a)(9) was improper.

Finally, the Court addressed its concern that the trial court “may have believed dismissal was appropriate on the basis that a claimant seeking quiet title must have legal title to the property before he or she can pursue a quiet title claim.” (Emphasis in original).  The Court rebuked any notion that such belief is appropriate as “[i]t is well-settled that title acquired by adverse possession may be used as a basis for an action to quiet title.”  The Court made clear that “[i]n asserting adverse possession, a party seeks a right to title in derogation of the right of the true owner; a deed is not required to support the claim of ownership.”  As such, the Court held that the trial court erred “to the extent the trial court granted [Defendants’] motion to dismiss based on [Plaintiffs] lack of legal title[.]”

Takeaways

This case reiterates that adverse possession is an appropriate vehicle for pursuing a quiet title action.  Indeed, it demonstrates that a party is not required to hold a deed to the contested property prior to making a claim for the same. In short, the case reinforces the procedural validity of complaints filed by litigators in this field every day.  Further, this case serves as a reminder that procedural posture matters and when seeking to dismiss an action it is critical to understand the requirements of the applicable court rule.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Matthews Florez at mflorez@riker.com, Kori Pruett at kpruett@riker.com or Shelley Wu at swu@riker.com.

VT Court Highlights Policy Language in Title Insurance Dispute, Affirms Survey Exception and Loss Requirement

Posted on by Christie Bowness

What You Need to Know

  • Policy Language Matters – Courts emphasize the need for precise analysis of Covered Risks, Exclusions, and Exceptions in Title Policies.
  • Covered Risk Limitation – A claim is not covered if the disputed property is not specifically described in the Policy.
  • Survey Exception & Loss Requirement – This decision reinforces the enforceability of the Survey Exception and the principle that coverage applies only if the Insured suffers a loss.
  • Reservation of Rights – Insurers should include language in denial and reservation of rights letters that preserve their ability to assert additional defenses later whenever controlling law allows for same.

Introduction

In a January 6, 2025 Opinion, the United States District Court for the District of Vermont  addressed a title insurer’s duty to provide defense and/or coverage to an insured for a declaratory judgment action relating to a boundary line dispute where the insured was claiming title to a disputed parcel of property based on adverse possession.  Ultimately, the Court found none as (1) the dispute did not cover property described in the Policy; (2) even if it did, coverage would be excluded under the Survey Exception: and (3) Plaintiffs suffered no loss as they had title to land described in their deed.   Grabowski-Shaikh v. Conn. Atts. Title Ins. Co., 2025 WL 35522 (Vt. Dist. Ct. Jan. 6, 2025).

Background

Asim and Cara Grabowski-Shaikh  (“Plaintiffs”) purchased real property located at 4 Pleasant Street in Woodstock, Vermont (the “Property) in 2017. Before purchasing the Property, Plaintiffs ordered a title report, which was completed by attorney Steven Saunders, an agent of Connecticut Attorneys Title Insurance Company (“CATIC”). The title report did not identify any encumbrances on title or disputes over property boundaries.  Plaintiffs, however, did not commission a survey of the Property.

With respect to an abutting parcel of land on 2 Pleasant Street, Plaintiffs claimed ownership of said parcel through use, possession, and maintenance by themselves and their predecessors. When Plaintiffs moved into their 4 Pleasant Street home, they maintained the disputed area west of the driveway and parked their car in that space. The owners at 2 Pleasant Street did not object to their use.

In 2021, James Zilian purchased 2 Pleasant Street, disputed Plaintiffs’ claims to the abutting area, and no longer permitted them to park their cars in the disputed area. Plaintiffs’ and Zilian’s attorneys exchanged correspondence regarding the boundary dispute. The correspondence from Zilian’s attorney included a copy of Zilian’s Warranty Deed and a 1979 Survey, which showed that Zilian owned the disputed parcel of land. In May of 2023, Zilian’s attorney informed Plaintiffs that Zilian intended to improve his property up to the boundary line, including the disputed parcel of land. Plaintiffs’ attorney responded that the parcel belonged to Plaintiffs based on decades of use and maintenance, and Zilian’s attorney responded with a cease and desist letter.

In October of 2023, Plaintiffs sent a notice of claim letter to CATIC seeking defense and indemnification. CATIC ultimately denied coverage since nothing indicated that Plaintiffs had tried to quiet title or otherwise adjudicate their alleged claim to the property. CATIC cited to Paragraph 1 of the Covered Risks of the Policy which insures “against a situation where someone else owns an interest in the title to the land insured” and two exceptions to same: the parties in possession exception and the survey exception. The former removed from coverage claims of adverse possession of the insured land, and the latter removed from coverage any “facts which an accurate survey and inspection of the land would disclose and which are not shown by the Public Records.”

In June of 2024, Zilian filed a declaratory judgment action seeking to establish the boundary line. The action alleged that Plaintiffs claimed the boundary line was ten (10) feet west of the boundary line in Zilian’s Deed, and that Plaintiffs were parking their vehicles over the boundary line and essentially asserting an adverse possession claim.

That same month, Plaintiffs filed a complaint seeking a declaratory judgment requiring CATIC to provide coverage. CATIC filed a motion for a judgment on the pleadings and/or summary judgment.

The Decision

In deciding CATIC’s motion, the District Court agreed with CATIC that Zilian’s declaratory judgment action did not assert a claim against Plaintiffs’ title as reflected in the Public Records as  neither Plaintiffs nor their predecessors ever formally established title to the disputed area, nor was the disputed strip ever described as part of the Property insured under Schedule A of the Policy. Thus, CATIC had no duty to defend or indemnify Plaintiffs.

The District Court also rejected Plaintiffs’ argument that CATIC conceded in its denial letter that defense of the Zilian action was covered since the denial of claim letter identified two exceptions to coverage without stating that the action was not covered. As stated by the District Court, the denial letter expressly reserved the right to raise other grounds for denial; thus, CATIC was permitted to raise that it had no duty to defend or indemnify.

Finally, the District Court considered CATIC’s arguments regarding the aforementioned exceptions to coverage. The District Court held that the “parties in possession” exception would apply if Zilian were claiming title through adverse possession, not where Plaintiffs were alleged to be claiming title through adverse possession. On the other hand, the District Court found that the “survey” exception would apply since the 1979 Survey did not show a boundary dispute. Finally, the District Court also held that CATIC was not required to provide coverage since Plaintiff would suffer no loss with respect to their title, even if Zilian were to prevail with their action, since the Policy expressly excluded coverage from risks “that result in no loss to [Plaintiffs].”

Takeaways

This case highlights the importance of focusing on the language in the Policy as to Covered Risks, Exclusions and even Exceptions.  In that vein, the Court was methodical in its policy analysis in finding that the claim did not fall under Covered Risk One as the disputed property the Plaintiffs were claiming was not described in the Policy. Next, it was evenhanded in finding the parties in possession exception did not apply as the party adverse to the Insureds was claiming title based solely on its deed, not adverse possession.  The decision also reinforced the validity of the survey exception.  It also reinforced the well-established principle that a title policy only covers insureds if they suffer a loss.  Finally, it emphasizes the importance to insurers that in issuing denials of coverage or reservation of rights letters to include specific language that reserves the right to raise other grounds for denying coverage to avoid waiver arguments later on if additional grounds for denial exist.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Matthews Florez at mflorez@riker.com, Kori Pruett at kpruett@riker.com or Shelley Wu at swu@riker.com.

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