CO Code § 39-12-101 (2021)
2021 Colorado Code|Title 39 - Taxation|Article 12 - Redemption|§ 39-12-101. Limitation of Actions for Recovery of Land

 No action for the recovery of land for which a tax deed was issued under the provisions of article 11 of this title for delinquent taxes shall lie unless the same is brought within five years after the execution and delivery of the deed therefor by the treasurer, any laws to the contrary notwithstanding; except that, when any owner of such land, for which a tax deed has been issued, at the time of the execution and delivery of the deed by the treasurer is under legal disability, it shall be lawful for him to bring a suit or action for the recovery of the land within the period during which he has the right to make redemption of such land from the tax sale upon which the deed is based. When a recovery of any of such land is effected in any suit, action, or proceeding, the value of all improvements made in good faith on such lands, and all sums paid for the tax lien on said land and for improvements, and all costs incident to the issuance and recording of the treasurer's deed, and all taxes and assessments paid thereon after the sale of the tax lien thereof, including the redemption value of all tax sale certificates redeemed, held, or surrendered for redemption by the grantee in such treasurer's deed or his heirs or assigns, shall be ascertained by the court or jury trying the action for recovery and shall be paid, together with interest thereon at the rate of twelve percent per annum, by the person recovering said land to the persons entitled thereto, and the payment of such sum shall be a condition precedent to the entry of judgment or decree in such suit, action, or proceeding. All such treasurer's deeds executed by the treasurer purporting to convey lands and improvements thereon for all purposes shall be deemed to be color of title from and after the time the same is recorded in the office of the county clerk and recorder for the county in which said lands are located. The term “improvements” includes sums and amounts of money expended thereon in good faith by the grantee and his successors and assigns in search of minerals and oil, as well as other expenditures for the improvements of such lands which add to the cost and value thereof.   History. Source: L. 64: R&RE, p. 743, § 1. C.R.S. 1963: § 137-12-1. L. 85: Entire section amended, p. 1247, § 33, effective July 1. History. Source: L. 64: R&RE, p. 743, § 1. C.R.S. 1963: § 137-12-1. L. 85: Entire section amended, p. 1247, § 33, effective July 1.    Cross references:   For limitation of actions with respect to persons under disability, see article 81 of title 13.   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. CONDITIONS PRECEDENT TO RECOVERY.     I. GENERAL CONSIDERATION.   Law reviews. For article, “Curative Statutes of Colorado Respecting Titles to Real Estate”, see 26 Dicta 321 (1949). For article, “Summary of Denver Bar-Sponsored Bills Passed by General Assembly”, see 28 Dicta 173 (1951). For comment on Fuschino v. Lutin, see 24 Rocky Mt. L. Rev. 257 (1952). For note, “Adverse Possession in Colorado”, see 27 Rocky Mt. L. Rev. 88 (1954). For article, “One Year Review of Real Property”, see 36 Dicta 57 (1959).   Annotator's note. The following annotations include cases decided under this section as it existed prior to its 1964 repeal and reenactment.   Section is for the purpose of protecting claimants under tax deeds, and to that end it is provided that an action by the owner shall be barred if not brought within five years after the sale thereof. Wood v. McCombe, 37 Colo. 174 , 86 P. 319, aff'd, 208 U.S. 226, 28 S. Ct. 263, 52 L. Ed. 464 (1906); Cripple Creek Trading & Mining Co. v. Stewart, 100 Colo. 271 , 67 P.2d 1032 (1937).   Purpose of section was to give landowner time to redeem land. This section was passed for the purpose of affording any landowner an ample opportunity of redeeming his lands sold for nonpayment of taxes. Fastenau v. Asher, 124 Colo. 161 , 235 P.2d 587 (1951).   Section is to be liberally construed. Fastenau v. Asher, 124 Colo. 161 , 235 P.2d 587 (1951).   Statutes of limitation provide sufficient protection for purchasers under tax deeds. The statutes of limitation, appearing in §§ 38-41-111 , 39-12-102 , and this section, provide sufficient protection for the purchasers of property under tax deeds without further limitations being imposed by the courts. Until the applicable periods of limitation have expired, tax deeds, even though valid on their face, are subject to attack for irregularities in the proceedings. Bald Eagle Mining & Ref. Co. v. Brunton, 165 Colo. 28 , 437 P.2d 59 (1968).   Tax deed must be in substantial compliance with statutory form prescribed at the time of the tax sale, and a tax deed in statutory form is fair and not void on its face. Aspen-Western Corp. v. Bd. of County Comm'rs, 650 P.2d 1326 (Colo. App. 1982).   “Recovery”, “recovering”, and “obtain possession” defined. The terms “recovery”, “recovering”, and “obtain possession”, as used in this section, mean not merely the regaining of possession which has been once lost, or the obtaining of possession not theretofore had, but also the retention of possession already had and which has not been disturbed. Central Realty Co. v. Frost, 76 Colo. 413 , 232 P. 1111 (1925).   Section is no defense in an action to quiet title. Scott v. Watkins, 61 Colo. 244 , 157 P. 3 (1916).   It applies only to actions for recovery of possession. By its plain language, this section seems not to have been intended as a defense when the removal of cloud from title alone is involved, but instead it is meant to apply as a defense only to actions for the recovery of possession and the ouster from the land of someone in possession. Morris v. St. Louis Nat'l Bank, 17 Colo. 231 , 29 P. 802 (1892).   Action to set aside voidable tax deed. An action brought by the owner of the fee to set aside a tax deed that is not absolutely void, but voidable, is an action for the recovery of land sold for taxes; therefore, this section is applicable. Phillips v. City & County of Denver, 115 Colo. 532 , 175 P.2d 805 (1946).   Unless action to quiet title in essence one for possession. Where an action is brought to the quiet title against the holder of a tax deed in possession over five years and the holder relies on the limitations of this section, this defense is good, since the action is in reality one for possession of land and not to quiet title. Vogt v. Hansen, 123 Colo. 105 , 225 P.2d 1040 (1950).   Section inapplicable where premises not sold for taxes. This section does not have any application if the subject matter of the controversy is not sold for taxes, meaning if the rights of the parties are not dependent upon the validity of the tax deed but upon whether it embraces the premises involved. Denver Trackage & Imp. Co. v. Colo. & S. Ry., 58 Colo. 313 , 145 P. 707 (1914).   It has no application to the purchaser at a tax sale. It applies solely to the owner of the property, whose title is sought to be divested by the tax proceedings. Sullivan v. Collins, 20 Colo. 528 , 39 P. 334 (1895).   Section inapplicable unless holder of treasurer's deed in possession. The five-year statute of limitations in this section may not be relied upon as a defense unless the holder of the treasurer's deed is in actual possession of the property at the time the action is commenced. Welsh v. Levy, 612 P.2d 80 (Colo. 1980); Aspen-Western Corp. v. Bd. of County Comm'rs, 661 P.2d 1175 (Colo. App. 1982).   To qualify for the protection afforded by this five-year statute of limitations in a quiet title action, the holder of a tax deed must demonstrate actual possession of the property at the time the action is commenced. Aspen-Western Corp. v. Bd. of County Comm'rs, 650 P.2d 1326 (Colo. App. 1982).   Action for recovery barred unless filed within five years. This section bars an action for the recovery of land sold for taxes unless such action is filed within five years from the delivery of the treasurer's deed. Bd. of County Comm'rs v. Blanning, 29 Colo. App. 61, 479 P.2d 404 (1970).   All questions with reference to tax proceedings generally barred. The design of this section is, generally, to bar all questions with reference to the tax proceedings, except such as go to the power and jurisdiction of the taxing officers, or the fraud and misconduct of the parties, unless an action is brought within the time limited. Crisman v. Johnson, 23 Colo. 264 , 47 P. 296 (1896).   Grantee need not wait five years before bringing action. A party whose rights are affected by a tax deed may bring an action within five years to have it set aside, but this limitation does not require the grantee in a tax deed, or those claiming under him, to wait that period before bringing an action to quiet title based upon the deed. Held v. Houser, 53 Colo. 363 , 127 P. 139 (1912).   Tax deed without effect until recorded. A tax deed is without effect to set in motion the statute of limitations until it is recorded. Empire Ranch & Cattle Co. v. Lumelius, 23 Colo. App. 51, 127 P. 452 (1912).   Statute of limitations not set into motion by void deed. A tax deed void on its face does not set in motion the five-year limitation under this section. Miller v. Weldon, 26 Colo. App. 108, 140 P. 930 (1914); Jones v. Empire Ranch & Cattle Co., 25 Colo. App. 382, 138 P. 62 (1914); Buckland v. Fiedler, 25 Colo. App. 565, 140 P. 472 (1914); Empire Ranch & Cattle Co. v. Weldon, 26 Colo. App. 111, 141 P. 138 (1914); Empire Ranch & Cattle Co. v. Brownson, 26 Colo. App. 228, 142 P. 421 (1914); North Am. Realty Co. v. Brady, 77 Colo. 56 , 234 P. 1054 (1925); Hochmuth v. Norton, 90 Colo. 453 , 9 P.2d 1060 (1932); Knoch v. County of Mesa, 159 Colo. 241 , 411 P.2d 1 (1960); Lake Canal Reservoir Co. v. Beethe, 227 P.3d 882 (Colo. 2010).   Because deficiencies in deed did not call into question the authority or jurisdiction to issue the deed, the flaws rendered the deed voidable, but not void; therefore, the exception to the statute of limitations for void deeds does not apply. Void tax deeds are deeds that are issued without authority or jurisdiction. Voidable tax deeds are issued with authority but authority is exercised in an improper manner. A deed is void and therefore not subject to the statute of limitations when the taxing entity lacked the authority or jurisdiction to issue it. Lake Canal Reservoir Co. v. Beethe, 227 P.3d 882 (Colo. 2010).   Deed not reciting notice given of purchaser's application. A tax deed does not set in motion the five-year statute of limitations where there is no recitation of the notice given of the tax purchaser's intention to apply for his deed. Sheesley v. Voorhees, 24 Colo. App. 428, 134 P. 1008 (1913).   Section bars action if the tax deed is fair on its face. Wood v. McCombe, 37 Colo. 174 , 86 P. 319, aff'd, 208 U.S. 226, 28 S. Ct. 263, 52 L. Ed. 464 (1906); North Am. Realty Co. v. Brady, 77 Colo. 56 , 234 P. 1054 (1925).   Applied in Knowles v. Martin, 20 Colo. 393 , 38 P. 467 (1894); Charlton v. Kelly, 24 Colo. 273 , 50 P. 1042 (1897); Pueblo Realty Co. v. Tate, 32 Colo. 67 , 75 P. 402 (1904); Knight v. Boring, 38 Colo. 153 , 87 P. 1078 (1906); Pollen v. Magna Charter Mining & Milling Co., 40 Colo. 89 , 90 P. 639 (1907); Whitehead v. Callahan, 44 Colo. 396 , 99 P. 57 (1908); Halbouer v. Cuenin, 45 Colo. 507 , 101 P. 763 (1909); Empire Ranch & Cattle Co. v. Lanning, 49 Colo. 458 , 113 P. 491 (1911); Empire Ranch & Cattle Co. v. Saul, 22 Colo. App. 605, 127 P. 123 (1912); Empire Ranch & Cattle Co. v. Howell, 23 Colo. App. 265, 129 P. 245 (1913); Gibson v. Interior Realty & Inv. Co., 70 Colo. 5 , 201 P. 680 (1921); Langley v. Young, 72 Colo. 466 , 211 P. 640 (1922); Bennett v. Rohan, 73 Colo. 5 51, 216 P. 1052 (1923); Fuschino v. Lutin, 124 Colo. 42 , 234 P.2d 906 (1951).   II. CONDITIONS PRECEDENT TO RECOVERY.   Owner must pay tax title claimant amount for which lands sold. This section provides that, as a prerequisite to a recovery of lands by the owner against one claiming under an invalid tax deed, the owner must pay the tax title claimant the amount for which the lands were sold. Delta Land & Orchard Co. v. Zaninetti, 64 Colo. 268 , 170 P. 964 (1918).   The owner must pay taxes paid by purchaser, with interest. In an action brought to quiet title to certain lands clouded by a void tax deed, the taxes upon which it is based being legal, the owner, as a condition precedent to an absolute decree in his favor, must pay to the defendant the taxes paid by him subsequent to the sale, with interest, in accordance with this section and also the amount for which the property was sold at the tax sale with interest and penalties in accordance with § 39-12-103 . Buchanan v. Griswold, 37 Colo. 18 , 86 P. 1041 (1906); Central Realty Co. v. Frost, 76 Colo. 413 , 232 P. 1111 (1925).   Taxes need not be paid in action for trespass. This section refers only to land sold for taxes. Where an action is not to recover land but for trespass on land, the claim for reimbursement for taxes paid can only be a claim for mitigation of damages. Smith v. Highland Mary Mining, Milling & Power Co., 82 Colo. 288 , 259 P. 1025 (1927).   Recovery of taxes under invalid deed allowed only when record discloses property taxed. He who pays a tax and gets a deed which is invalid can recover only when the record discloses upon what property the tax was paid and it appears that reimbursement will discharge the tax. Cripple Creek Trading & Mining Co. v. Stewart, 100 Colo. 271 , 67 P.2d 1032 (1937).   Purchaser to be reimbursed for improvements. That a vendee who remains in possession for a long period of time and who makes improvements and pays taxes necessarily acquires equitable rights is recognized in this section, which provides that the vendee is entitled to reimbursement for expenditures of this nature. White v. Widger, 144 Colo. 566 , 358 P.2d 592 (1960).   No interest prior to judgment. The value of improvements made by the defendant, allowed to him under this section, does not bear interest prior to judgment. Hapney v. Dunn, 26 Colo. App. 412, 142 P. 423 (1914).