Disclaimer: This is general information only and not legal advice. For advice about a specific situation, consult a licensed Oregon attorney.
Detailed Answer
Under Oregon law, the person or people who should be identified as the party or parties bringing a partition action are the record owners (or those with a recognized legal or equitable ownership interest) who want the property divided or sold. Oregon’s partition statutes allow an owner of any estate in land to bring an action for partition. See ORS chapter 105 for the statutory framework (see links below).
- Who may file (petitioners): Any owner of an estate or interest in the real property may be a petitioner. That generally includes co-owners (tenants in common or joint tenants), life tenants, and sometimes holders of an equitable interest (for example, a purchaser with strong equitable rights under a contract). In practice, one or more co-owners who want partition can join together and file a single petition.
- Who must be named as parties (defendants or co-petitioners): All persons who hold any recorded legal or known equitable interest in the property should be identified in the pleadings. That typically includes:
- All co-owners shown on the deed or title records.
- Spouses or other persons who claim a marital or community interest if relevant.
- Mortgage lenders, judgment lienholders, and anyone holding a recorded lien or encumbrance on the property (so the court can adjudicate priorities and the effect of liens on any forced sale).
- Persons under disability (minors, conservatees or incapacitated persons) — their interests must be represented (often by a guardian ad litem or guardian).
- Unknown or unlocatable owners — the plaintiff may request service by publication or name “unknown heirs” where appropriate under the court’s rules.
- Should all owners join as petitioners? No. Any single co-owner can initiate a partition action; that owner will typically name the other owners and lienholders as defendants if they do not join. However, when owners join together as co-petitioners it may simplify the case and reduce cost and complexity. Courts can force a sale or division even when only one owner seeks partition.
- Practical examples (hypotheticals):
- If three siblings own a vacation lot as tenants in common and one sibling wants the property sold, that sibling may file the partition petition alone and name the other two siblings as defendants — or all three may file jointly as petitioners.
- If there is a recorded mortgage and the borrower files for partition, the mortgage lender should be named so the court can address the lender’s lien when dividing proceeds.
- If an owner died and title shows an heir but the heir cannot be located, the petitioner should describe the missing owner and follow the court’s rules for notifying unknown parties (for example, service by publication) so the court has jurisdiction over all interested parties.
- What the court will want to know: The petition should identify every person with an interest that could affect the property or the distribution of sale proceeds. Omitting a known owner, lienholder, or an individual with an equitable interest risks later disputes, possible reopening of the case, or a court order that the petitioner must serve additional parties.
- Relevant Oregon statute (general): The Oregon partition statutes are in ORS chapter 105. The basic rule permitting an owner to bring a partition action appears in the partition provisions. See ORS chapter 105: https://www.oregonlaws.org/ors/105.605 and related sections in the chapter for procedures and parties.
Helpful Hints
- Pull a current title report or the recorded deed(s) before you file. The recorded owner list is the starting point for naming parties.
- Identify all recorded liens (mortgages, tax liens, judgments) and list the lienholders in the pleading so the court can determine priorities at sale.
- Determine the type of co-ownership (tenants in common vs. joint tenants) — this affects rights but not the ability to file for partition.
- If minors or incapacitated persons have an interest, plan to request appointment of a guardian ad litem or seek court guidance on how to protect their interests.
- Consider negotiating a buyout or voluntary sale with co-owners before filing; partition actions can be costly and time-consuming.
- If some owners are hard to locate, discuss service by publication or other court-authorized methods with counsel; improper service can delay relief.
- Be prepared to provide documentary proof of ownership: deeds, title report, mortgage statements, probate documents (if relevant), and any written contracts affecting the property.
- Consult an Oregon attorney before filing if the title is complex, there are many lienholders, or there are potential claims from unknown heirs — an attorney can help identify necessary parties and proper service methods.
Statutory reference: see ORS chapter 105 for the partition framework. Example statutory text and related sections: https://www.oregonlaws.org/ors/105.605 (partition actions) and related provisions in ORS chapter 105.