Chapter § 61.3 SUITS TO QUIET TITLE

• Jurisdiction: Oregon

§ 61.3 SUITS TO QUIET TITLE

§ 61.3-1 Statutory Basis of Suit

A quiet-title action provides an equitable remedy for a person or entity with a substantive claim to a legal interest in real property against an adverse claimant who is not in actual possession of the property. Suits to quiet title to real property in Oregon have had a statutory basis since 1862. Except for a 1909 amendment discussing the element of possession (see § 61.3-4(b)(1)(iii)), the statute has remained in substantially the same form. ORS 105.605 states, in relevant part: "Any person claiming an interest or estate in real property not in the actual possession of another may maintain a suit in equity against another who claims an adverse interest or estate therein for the purpose of determining such conflicting or adverse claims, interests or estates."

The statute is an expansion of the common-law equitable remedy. O'Hara v. Parker, 27 Or 156, 164, 39 P 1004 (1895); Murphy v. Sears, 11 Or 127, 129, 4 P 471 (1884). Oregon also recognizes the common-law cause of suit to quiet title. Hodgkin v. Boswell, 57 Or 88, 91, 110 P 487 (1910). The statutory purpose is to provide an easy and simple method by which one having a substantial interest in real estate, but who cannot maintain an action at law against another claiming an interest adverse to him, may require the adverse party to appear in a court of equity and have the competing claims adjudicated. Savage v. Savage, 51 Or 167, 170, 94 P 182 (1908).

This part of the chapter and the cited cases generally refer interchangeably to a suit to quiet title and a suit to remove a cloud. See § 61.3-4(b)(2) for an explanation of the limited distinction between the two suits.

§ 61.3-2 Distinguished from Ejectment

Attorneys must distinguish between a quiet-title action and an ejectment action. If the plaintiff's objective is to recover possession and determine title to property in the defendant's possession, the plaintiff has an adequate remedy at law—an ejectment action—and thus cannot seek the equitable remedy of quieting title. See Spears v. Dizick, 235 Or App 594, 597, 234 P3d 1037 (2010) ("a party who is not in possession of land may not maintain a quiet title action against a party in possession; such a party must seek relief by way of an ejectment action"). Because an ejectment action is a legal remedy and a quiet-title action is an equitable one, the right to a jury trial and the scope of appellate review are different. Kohler v. Alspaw, 132 Or App 67, 73, 887 P2d 832 (1994), rev den, 321 Or 94 (1995) (restating the rule of law that when the plaintiff is in possession of the disputed property and the substance of the claim is to quiet title, the defendants are not entitled to a jury trial); see § 61.2-11, § 61.3-6(d).

§ 61.3-3 Parties

§ 61.3-3(a) Plaintiffs

A plaintiff may be any party having a substantial estate in, interest in, or claim to the property. Rohner v. Neville, 230 Or 31, 40-41, 365 P2d 614 (1961), overruled on other grounds by Evans v. Hogue, 296 Or 745, 681 P2d 1133 (1984) (either possession of the property or an equitable claim to the property is sufficient interest on which to bring suit); Pomerenke v. Gearin, 62 Or App 740, 744, 663 P2d 42 (1983). Such a basis may be either legal or equitable. See § 61.3-4(b)(1)(i) to § 61.3-4(b)(1)(iv).

Several plaintiffs holding separate property interests may join in one suit against a single defendant. See ORCP 28, ORCP 29; Pallies v. Durand, 268 Or 187, 188, 519 P2d 374 (1974).

§ 61.3-3(b) Defendants

§ 61.3-3(b)(1) Adverse Claimants

A defendant who claims no interest adverse to the plaintiff's is not a proper party. Altschul v. State, 72 Or 591, 597-98, 144 P 124 (1914). However, all persons having an interest in the title are indispensable parties. United States v. Wood, 466 F2d 1385, 1388 (9th Cir 1972); State By & Through Dep't of Transp. Highway Div. v. Tolke, 36 Or App 751, 753 n 2, 586 P2d 791 (1978), rev den, 286 Or 149 (1979).

Thus, in a quiet-title action to a railroad right-of-way brought by a contract purchaser, the court held that a legal titleholder of the property subject to the railroad right-of-way was a necessary party under ORCP 29 A. The question whether the legal titleholder was also an indispensable party under ORCP 29 B was not before the court. Egaas v. Columbia Cnty., 66 Or App 196, 202, 673 P2d 1372 (1983), rev den, 296 Or 536 (1984).

Citing Tolke, but with instruction on the importance of preservation of error, the court of appeals stated in Minihan v. Stiglich, 258 Or App 839, 860, 311 P3d 922 (2013) (citation omitted), that

although it is normally inappropriate as a matter of law to quiet title where . . . it appears that not all persons who have or may have an interest in the property are parties to a proceeding, such nonjoinder will not serve as a basis for reversing a trial court's quiet trial judgment when the losing party fails to properly assign error to the nonjoinder.

PRACTICE TIP: To help determine necessary defendants, the attorney should obtain a title search from a title agency before commencing the suit.

§ 61.3-3(b)(2) Governmental Agencies

A governmental agency may be a party to a suit to quiet title. Municipalities and counties are expressly authorized by statute to commence suits as plaintiffs. ORS 105.605. The State of Oregon and Oregon counties may be made defendants in a suit to quiet title under ORS 30.320 or ORS 30.360.

§ 61.3-3(b)(3) Tenants in Common

ORS 105.615 provides that when a tenant in common has maintained possession as against all other cotenants for at least 20 years and has paid all tax assessments on the property, title may be quieted. ORS 105.615 does not provide an exclusive remedy for quieting title as between cotenants; suits between them have also been brought under ORS 105.605. See Nedry v. Morgan, 284 Or 65, 74 n 5, 584 P2d 1381 (1978).

In Miller v. Miller, 101 Or App 371, 790 P2d 1184 (1990), a cotenant counterclaimed to quiet title in a partition suit brought by the other cotenant. The court held that the cotenant attempting to quiet title could not do so because the other tenant had taken hay from the property within the 20-year period. The counterclaim was filed on March 11, 1986. The court found that the other cotenant had taken hay off the land after March 1966. Indeed, in reaching this finding the court took "judicial notice that one cannot make hay in western Oregon before April." Miller v. Miller, 101 Or App at 374 n 3.

§ 61.3-3(b)(4) Unknown Claimants

A suit to quiet title may also include unknown persons or parties claiming any right, title, interest, or estate in real property. ORCP 20 J. The precise allegation as set forth by the rule reads as follows: "Also all other persons or parties unknown claiming any right, title, lien, or interest in the property described in the complaint herein." ORCP 20 J.

PRACTICE TIP: An allegation under ORCP 20 J is appropriate only if the claimant is truly unknown. It is not a cure for failing to join an indispensable party that should be known to the plaintiff's attorney. See § 61.3-3(b)(1).

§ 61.3-4 Pleadings

§ 61.3-4(a) Procedural Context

§ 61.3-4(a)(1) Law and Equity

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