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If title is not marketable, it can not be conveyed in an arms-length transaction where the buyer expects to receive “good and marketable” title. This is an action where a person seeks a declaration from a court that the subject deed is cancelled.

Before you look at the two methods of clearing title, one must ask the question, what is a “cloud on title”? The action under 23-3-40 is the common law bill of Quia Timet. In Georgia, one can bring a Quia Timet action to cancel any instrument that 1) has answered the object of its creation, 2) is a “forgery or other iniquitous deed,” or 3) “though not enforced,” either casts a cloud over or creates future risk of liability or annoyance of the complainant’s title. However, there are limits as to who can bring a declaratory judgment action. So, the first question is, are you an “interested party”? The problem with this action is that if you are trying to have a deed declared void, or whatever, and you are not a party to the deed, you can not attack the validity of the deed because you are not a party to it and are not, therefore, an “interested party.” A deed is a contract. A 9-2-20(a) states “[a]n action on a contract “shall” be brought in the name of the party in whom the legal interest in the contract is vested….” Thus, if you are not a party to the deed you seek to invalidate through a declaratory judgment, you will not be successful.

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We make regular deliveries to Sandpoint, Coeur d’ alene, Post Falls, Spokane, Colville, Kalispell, Libby, and surrounding areas.Title to real property needs to be “cleared” when there is a “cloud” on title that brings into question the marketability of the subject title. The second method to possibly remove a cloud on title is a Declaratory Judgment action.

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