Filing a partition action in Oregon when some co‑owners of an inherited property don’t respond

Quick answer: In Oregon you can ask a county circuit court to partition (divide or sell) real property even if some heirs or co‑owners won’t cooperate, as long as the court can acquire jurisdiction over those owners through proper service. Partition actions are governed by Oregon’s statutes on partition and by court rules on service and procedure. See Oregon Revised Statutes, Chapter 105: ORS Chapter 105. This article explains the usual steps, options when owners don’t respond, and practical tips to move forward.

Detailed answer — step‑by‑step under Oregon law

1. Confirm ownership and why partition applies

Partition is the court procedure to divide or sell real property when two or more persons own it together and cannot agree how to use, divide, or dispose of it. Common situations include property that passed to multiple heirs, tenants in common, or divorced owners who cannot agree. Before filing, confirm the chain of title (deed, will, probate orders) and each person’s interest.

2. Choose the correct court and file the complaint

File a civil complaint for partition in the circuit court of the county where the property is located. The complaint names all persons with a record interest (owners, lienholders, persons claiming an interest). In the complaint you will ask the court to either (a) partition the property in kind (physically divide it) if practicable, or (b) order a sale and divide proceeds among owners.

3. Identify and locate all owners and parties

Make a careful title search and identify any heirs, devisees, or persons who might claim an interest (including creditors and holders of recorded liens). If the property came through a recent probate, check the probate file for named heirs and their addresses.

4. Serve the complaint and summons properly

Oregon requires the court to acquire jurisdiction over defendants through proper service. Start with personal service (sheriff or process server) or certified mail where appropriate. If a co‑owner cannot be located or will not accept service, the court may allow alternative service methods such as posting on the property and publishing notice in a newspaper. The Oregon Rules of Civil Procedure and local court rules govern service procedures; consult the court clerk and the Oregon Judicial Department rules: OJD Rules. Proper service is essential: without it the court may not bind an absent owner.

5. If owners don’t respond: default and substitute service

If a properly served defendant fails to answer, you can seek a default judgment against them under civil procedure rules. If you cannot locate a defendant, file a motion with the court asking permission for substitute service (for example, service by publication in a local newspaper and posting on the property). The court will review your attempts to locate the owner and may require an affidavit describing those efforts. Once the court allows substitute service and publishes notice, the action can proceed even without the absentee’s participation.

6. Court options: partition in kind, sale, or appointment of a commissioner

The court will determine whether the property can be fairly divided. If not, the court typically orders a sale and appoints a commissioner or special master to sell the property at public auction or by private sale under the court’s supervision. The court then distributes proceeds after satisfying liens and costs. See ORS Chapter 105 for the court’s authority to order partition and sale: ORS Chapter 105.

7. Addressing minors, incapacitated persons, or unknown heirs

If a co‑owner is a minor or incapacitated, the court may require a guardian ad litem to be appointed to represent their interests. If heirs are unknown, the court may require you to publish notice and may appoint someone to represent unknown or unascertained persons.

8. After the sale or division: distribution, liens, and costs

The court will direct how net proceeds are divided according to ownership percentages, liens, taxes, and costs (including the cost of the partition action and any appointed commissioner’s fees). Liens recorded against the property generally must be paid from sale proceeds in order of their priority.

Practical options and considerations

Try negotiated solutions first. A buyout, formal sale with proceeds split, or mediation usually saves time and expense compared with a court partition.
Use certified mail and skip‑tracing early. If owners are hard to find, hire a private investigator or use approved skip‑trace services and document all attempts to reach them. Courts want proof you tried.
Consider the cost. Partition litigation, advertising, and court‑appointed commissioner fees reduce net proceeds. Weigh likely costs against the property value.
Probate status matters. If the property is still in probate or the estate is open, consult the probate file: sometimes disputes must be handled within the probate proceeding instead of a separate partition action.
Tax and lien issues. Partition sales can trigger capital gains tax, transfer taxes, or payoff of mortgage and tax liens. Consult a tax advisor or attorney for consequences.

When owners won’t respond — common courthouse remedies

Personal service by sheriff or process server and certified mail.
Substitute service by posting on the property and publishing notice in a local newspaper after the court approves it.
Appointment of a guardian ad litem for minors or incapacitated persons.
Default judgment against non‑responding defendants once service was proper.
Court‑supervised sale and distribution of proceeds without the absentee’s active participation.

Helpful hints

Start with a full title search and any probate records. That reveals who to name in the complaint.
Document every attempt to contact co‑owners (letters, calls, certified mail, visits). Courts expect detailed proof before allowing substitute service.
Contact the county circuit court clerk for local filing procedures and fee schedules. Court staff can point you to local rules and required forms.
Consider mediation before filing. Mediation can produce a buyout or sale plan faster and cheaper than litigation.
Budget for fees: filing fees, service fees, publication costs, and an appointed commissioner’s fees can add up.
Keep tax and lien priorities in mind; a sale pays liens before owner distributions.
If an owner lives out of state or overseas, start service attempts early and consider hiring local counsel where they live for personal service.

Where to find forms and rules

Oregon Revised Statutes on partition: https://www.oregonlegislature.gov/bills_laws/ors/Pages/ORS-105.aspx

Oregon Judicial Department rules and procedural information: https://www.courts.oregon.gov/rules/Pages/default.aspx

Oregon court forms and clerk contact information: https://www.courts.oregon.gov/forms/Pages/Forms-Home.aspx

When to consult an attorney

If owners refuse to respond, if ownership is unclear, if liens or tax issues exist, or if there are minors or incapacitated persons involved, talk to a lawyer. An attorney experienced in Oregon real property and partition law can help with proper pleadings, service strategies, and court procedures to protect your rights and move the case forward.

Disclaimer: This article explains general Oregon law and common practices. It is educational only and does not constitute legal advice. For advice about your specific situation, consult a licensed Oregon attorney.