Disclaimer: This page is for general informational purposes only and is not legal advice. For advice about your specific situation, consult a licensed Arizona real property attorney.
Detailed Answer — Who should be listed as petitioners on a partition lawsuit under Arizona law?
In Arizona, the petitioners in a partition action are the person or persons who ask the court to divide (partition) real property that is owned by more than one person. Typically, petitioners are co-owners who want the court to either physically divide the property among co-owners (partition in kind) or sell the property and divide the proceeds (partition by sale). The practical choices about who to list as petitioners depend on ownership type, who wants relief, and strategic considerations.
Who can properly be a petitioner?
- Any owner with a legal or equitable interest in the property who wants the court to partition the property. This includes co-owners who hold title as tenants in common and often includes joint tenants.
- Multiple co-owners who agree and file together may all be listed as petitioners. Filing together can simplify the case and reduce dispute over requests for sale vs. division.
- A person with an interest that gives them the right to possession (for example, certain lienholders or judgment creditors with writs or attachments) may sometimes be a petitioner or may need to be made a party so the court can resolve the competing interests. Whether a lienholder can be a petitioner depends on the nature of the interest; an attorney can advise on specifics.
Who must be joined as parties (typically defendants)?
Arizona law and court practice require that everyone with a known or reasonably discoverable interest in the property be made a party to the partition action so the court can determine and clear title and fairly distribute proceeds. That generally includes:
- All record owners (co-owners) not listed as petitioners.
- Mortgagees or holders of recorded liens.
- Tenants in possession, lessees, or anyone claiming an interest affecting possession.
- Heirs or devisees if an owner is deceased and their interest passed by inheritance.
Practical rules and strategic considerations
- If all co-owners agree on partition, it is often best to file together as petitioners and submit a proposed agreed judgment (this avoids contested proceedings).
- If only some co-owners want partition, those owners should be petitioners; the others become defendants. The petition should identify all known parties and describe each person’s claimed interest.
- Naming everyone with a possible interest prevents later challenges that the court lacked jurisdiction over omitted parties. Conduct a title search and review recorded documents before filing.
- If your goal is sale rather than division, specify that relief in the petition. Courts may prefer partition in kind when fair and practicable; otherwise, they may order sale and division of proceeds.
- Carefully consider whether to join lienholders or creditors as petitioners or defendants; their rights affect proceeds and distribution. A lawyer can advise whether a lienholder should be brought in as a party or simply notified.
Relevant Arizona law
Partition procedure and rules appear in the Arizona Revised Statutes under civil procedure governing partition actions; see Arizona Revised Statutes, Title 12 (Civil Procedure), Chapter on Partition. For statutory text and details, consult the Arizona Legislature website: A.R.S. Title 12 — Partition (Chapter 11). An attorney can point to the exact sections that apply to your situation.
Typical steps to take before filing
- Obtain a current title report or chain of title to identify all record owners and recorded liens.
- Gather deeds, trust documents, wills, mortgages, leases, and any written agreements between owners.
- Get a property survey and current tax information to help determine divisibility and value.
- Talk to an Arizona real property attorney to confirm which parties to list as petitioners and which to name as defendants and to prepare proper notice to all interested parties.
Helpful Hints
- List as petitioners the owners who actually want the court to act. If everyone agrees, file together.
- Always identify and name all people or entities with recorded interests as parties (defendants if they don’t join as petitioners).
- Do a full title search before filing. Omitted parties can undo or delay relief.
- If unsure whether an interest-holder should be a petitioner, ask your attorney; incorrectly naming parties can create jurisdictional problems or extra costs.
- Decide early whether you seek partition in kind or sale. That choice affects strategy and the petition’s language.
- Expect the court to require notice to all parties and to consider fairness in dividing property or proceeds.
- Keep documentary evidence of ownership and contributions (tax payments, mortgage payments, improvements). The court uses these when allocating proceeds.
If you are considering filing a partition action in Arizona, schedule a consultation with a licensed Arizona real property attorney. They can confirm who should be petitioners in your situation, ensure proper parties are named, and draft the petition to comply with Arizona statutes and court rules.
Again, this is general information only and not legal advice.