Detailed Answer — How co-owners start a partition action under Illinois law
Short answer: In Illinois, a co-owner (or co-owners) who cannot agree with other owners on dividing or disposing of real property can file a civil lawsuit called an action for partition. The complaint asks the court either to physically divide the property (partition in kind) or, if division is impractical, to order a sale and divide the net proceeds among the owners according to their ownership shares.
1. Which law governs?
Partition actions in Illinois are governed by the Illinois Code of Civil Procedure. See the partition provisions in the Code of Civil Procedure (Partition). A good starting reference for the statutes is the Illinois General Assembly site for the Code of Civil Procedure: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2057&ChapterID=59
2. Who may bring a partition action?
Any person who owns an undivided interest in real property in common with others may file. Co-owners include tenants in common, and in some circumstances joint tenants, depending on how title is held. The plaintiff must name all known co-owners and persons with recorded liens or claims against the property so they can receive notice and participate.
3. Step-by-step: How to initiate a partition action
- Confirm ownership and shares. Review deeds, title insurance or a title search to identify all owners and each person’s legal interest (fractional shares, tenancy in common, joint tenancy, etc.).
- Try negotiation first. Courts expect owners to try to resolve the dispute before litigating. Offer buyouts, mediation, or a rental-sharing agreement. Document these efforts.
- Prepare the complaint for partition (file in county court). The complaint should identify the property by legal description, list all owners and lienholders, state each party’s interest (if known), and ask the court for partition in kind or for a sale and distribution of proceeds. Attach copies of deeds or other proof of ownership when available.
- Provide notice and serve all parties. Illinois law requires service of process on all named co-owners and recorded lienholders so they can defend their interests. The court will not divide real property without proper notice to all interested persons.
- Request appointment of commissioners, receiver, or sale procedures. The court usually appoints commissioners to attempt a partition in kind. If physical division would materially reduce value or cannot be done, the court may order a sale (public auction or judicial sale) and will direct how proceeds are to be handled.
- Address liens, mortgages, taxes, and encumbrances. The court will usually direct that liens, mortgages, unpaid taxes, and costs of sale are paid out of sale proceeds before distributing net proceeds to owners according to their interests.
- Attend hearings and follow court orders. The court may hold status hearings, appoint experts, direct surveys, or approve sale terms. Follow procedural rules and local court filing requirements carefully.
4. Court likely outcomes
- Partition in kind: the property is divided physically if practicable and fair.
- Partition by sale: the court orders a sale and divides net proceeds among owners after paying liens and costs.
- Buyout: the court can allow one co-owner to purchase others’ interests, often using the appraised value established during the action.
5. Practical and evidentiary considerations
Prepare documentary evidence: deeds, chain of title, mortgage statements, tax bills, surveys, maps, leases, records of contributions (payments for mortgage/taxes/improvements), and correspondence between co-owners. A current survey and appraisal make it easier for the court to decide whether partition in kind is feasible and fair.
6. Timing, costs, and fees
Partition litigation can take many months or longer, depending on complexity, valuation, title issues, and whether the case settles. The court generally orders that costs of the action (commissioners’ fees, sale costs, attorney fees in some cases) be paid from sale proceeds or allocated among owners. Illinois law provides procedures for sale and distribution; the court supervises payment of liens and costs before distribution.
7. Alternatives to filing suit
Because partition actions are adversarial and can be expensive, consider alternatives first:
- Sell the property by agreement and split proceeds.
- One owner buys out the others using an agreed appraisal.
- Mediation or collaborative negotiation to allocate use or income.
8. Where to get more help
If you decide to proceed, consult a lawyer admitted in Illinois who handles real property and partition matters. If you need a referral, start with the Illinois State Bar Association: https://www.isba.org or the Illinois courts’ local county court website for filing procedures and fee information.
Important statute reference: Partition provisions are in the Illinois Code of Civil Procedure. See the Code of Civil Procedure on the Illinois General Assembly website: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2057&ChapterID=59
Disclaimer: I am not a lawyer. This article provides general information about Illinois law and is not legal advice. For advice about your specific situation, consult a licensed Illinois attorney.
Helpful Hints — Quick checklist for co-owners considering partition in Illinois
- Identify and list every recorded owner, mortgagee, and lienholder before you file.
- Gather deeds, title report, tax bills, lease agreements, receipts for improvements, and a recent survey or sketch.
- Document any attempts to resolve the dispute outside court (emails, offers, mediation notes).
- Get a current appraisal to support a buyout or to show whether partition in kind is feasible.
- Consider whether a co-owner can buy out others to avoid sale costs and delay.
- Expect the court to pay valid liens and costs first when proceeds are distributed.
- Ask the court for mediation or settlement conferences—courts often encourage these options before ordering a sale.
- Check local county court rules for filing, service, and fee requirements before filing your complaint.