In May of last year, the Arizona Court of Appeals determined that “the statute of limitations does not run against a plaintiff in possession who brings a quiet title action purely to remove a cloud on the title to his property.” Cook v. Town of Pinetop-Lakeside, 661 Ariz. Adv. Rep. 31 (App, May 28, 2013). The Cook decision was discussed in detail in our prior blog post entitled The Clock Doesn’t Tick-Tock for Owners in Possession. Now, the Arizona Court of Appeals, presumably with some regret, has been forced to address real property statute of limitations issues for the second time within six months. In Rogers v. Board of Regents of the University of Arizona, the Arizona Court of Appeals determined that an action to resolve an adverse claim for possession that is reliant upon the plaintiff’s success on another claim is subject to the statute of limitation applicable to the other claim. 2013 Ariz. App. LEXIS 209 at*10 (App., Oct. 1, 2013) (citing In re Hoopiiaina Trust, 2006 UT 53, 144 P.3d 1129, 1137 (Utah 2006)).
The dispute arose over the use of Smith-Enke Road, which runs east-west through the Maricopa Agricultural Center – owned by the Arizona Board of Regents (“ABOR”) – and along the southern boundary of “Section 16” – a parcel of land owned by Michael K. Schugg. (While Schugg was the owner of Section 16, the action to quiet title was brought by the bankruptcy trustee N. Terryl Rogers.) In early 2008, ABOR constructed a gate that blocked Schugg’s use of Smith-Enke Road. On September 17, 2008, Mr. Schugg demanded that ABOR execute a quitclaim deed that would provide Schugg with an express easement to use Smith-Enke Road. ABOR ignored Schugg’s request. On December 14, 2009, Rogers, on behalf of Schugg’s bankruptcy estate, filed a complaint seeking: (1) an easement by implication, necessity, and/or prescription; (2) quiet title establishing the easement; and (3) a declaration that ABOR’s gate blocking Schugg’s access amounted to a trespass. ABOR counterclaimed seeking to quiet title in the property. ABOR also filed a motion to dismiss Rogers’ complaint as time-barred by the one-year statute of limitation found in A.R.S. § 12-821. The trial court agreed and dismissed Rogers’ complaint. The trial court then granted ABOR’s subsequent motion to quiet title in favor of ABOR.
The obvious distinction between the Rogers’ case and the Cook case is that the plaintiff in Rogers was not in possession of the property that was the subject of the litigation. The dispute in the Rogers case related to an easement, a non-possessory interest in land, which makes it legally impossible for the plaintiff to be “in possession” of the property so as to bring Cook v. Town of Pinetop-Lakeside into play. Id. at *6. Further, in the Rogers case the plaintiff could only succeed in his quiet title action if he could also be successful on his underlying declaratory judgment claim. Id. at *11. The Arizona Court of Appeals determined that the limitations period that applied to the underlying declaratory judgment claim also applies to the quiet title action. See id. (citing In Re Hoopiiaina Trust, 144 P.3d at 1137) (“where quiet title relief depends on claimant’s success on another claim, statute of limitations applicable to underlying claim also applies to quiet title claim”).
The lesson learned from Rogers is to not over simplify the Cook court’s holding into an implied evergreen opportunity to bring claims to quiet title. Simply put, if you are not an owner in possession, the statute of limitations can run and you just may find yourself fenced out of court.