Detailed Answer
If you own real property jointly with other heirs and cannot agree on selling it, Illinois law provides a court process called a partition action that lets one co-owner force a sale or division. The Partition provisions of the Illinois Code of Civil Procedure allow a co-owner to ask a court to either physically divide the land (partition in kind) or, if division is impractical, order a sale and split the proceeds among the owners. See the Illinois Code of Civil Procedure, Partition statutes: 735 ILCS 5/2-1001 et seq. (see: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=60).
Key points about forcing a sale in Illinois:
- Who can file: Any record owner or person with a legal interest in the property may file a partition suit against the other owners.
- Partition in kind preferred: Courts prefer dividing property physically when it is fair and feasible. If the land can be divided without substantial injury to the owners’ interests, the court will usually order that division. If not feasible, the court orders sale and division of proceeds.
- Sale ordered by the court: If the court finds partition in kind impractical, it will order sale. The court supervises the sale process, usually through an appointed commissioner or special representative. Sales are often public auctions, but a private sale can be approved if the court finds it is in the best interest of the owners and yields fair value.
- Private sale vs public auction: Courts will approve a private sale only when the circumstances show the private sale will better preserve value or produce a fairer result compared to a public auction. A party seeking approval must present evidence (appraisal, comparable sales, marketing efforts, and reasons a private sale is preferable) for the court to review.
- Division of proceeds: After payment of liens, taxes, costs, and sale expenses, the net sale proceeds are divided among co-owners according to their legal ownership shares, unless the court decides otherwise for equitable reasons.
Typical steps to force a sale
- Consult a real estate attorney experienced in partition actions to evaluate your case and prepare the petition.
- File a partition complaint in county circuit court where the land is located. The complaint names all co-owners and interested parties and describes the property and ownership interests. The Partition statute governs procedure (735 ILCS 5/2-1001 et seq.: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=60).
- Serve all co-owners and claimants with the complaint and allow time for responses. The court may require notice by publication for unknown heirs or persons with potential claims.
- The court may order a hearing, appoint a commissioner or referee to evaluate whether partition in kind is possible, and direct appraisal or other valuation steps. The court considers fairness, practicality, and any mortgages or liens that must be resolved.
- If division in kind is impractical, the court will order sale. The court supervises the sale: it may direct a public auction or, if convinced a private sale is better, approve a negotiated private sale subject to auction rights or upset bids as the court orders.
- After sale, the court oversees payment of debts and expenses and enters a final accounting and distribution order to allocate net proceeds to the co-owners according to their shares.
Example (hypothetical)
Suppose you and two siblings inherited a 4-acre lot. One sibling wants to sell, the other refuses. You tried negotiating but failed. You can file a partition suit asking the court to divide the land. If the court finds the lot cannot be divided fairly (for example, because of access issues or size), it will order a sale. If you can show an appraiser that a private sale to a willing buyer will get more money than a public auction, the court may approve a private sale under supervision and distribute net proceeds after liens and costs are paid.
What the court looks at when deciding on a private sale
- Whether physical division would significantly harm one or more owners or be impractical.
- Whether a private sale will produce better value than a public auction (appraisals, broker opinions, buyer pre-approval, marketing history).
- Any lienholders’ rights (mortgages must typically be paid out of sale proceeds) and whether title issues exist.
- Whether proper notice to all owners and interested parties has been given so the sale is fair and legally defensible.
Helpful Hints
- Get a current appraisal before filing. A neutral appraisal strengthens a motion for private sale or supports settlement negotiations.
- Try negotiation or mediation first. Courts often expect parties to attempt settlement before litigating. A buyout offer or sale listing with a fair marketing period can resolve disputes faster and cheaper.
- Obtain a title search early. Known liens or unresolved title issues affect sale options and net proceeds.
- Document communications. Keep written records of offers, refusals, and settlement attempts; the court will consider these efforts.
- Understand costs. Partition suits come with filing fees, attorney fees, appraisals, and commissioner costs—all usually paid out of sale proceeds, but they reduce your net share.
- Prepare for delay. Partition suits can take months to over a year depending on complexity, objections, and scheduling.
- Consult an Illinois attorney. An attorney can file the partition complaint correctly, present evidence for a private sale if that’s desirable, and protect your ownership share during the process.
Relevant statute: Partition actions in Illinois are governed by the Illinois Code of Civil Procedure, 735 ILCS 5/2-1001 et seq. See: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=60
Disclaimer: This article explains general Illinois law and is for informational purposes only. It is not legal advice. For guidance specific to your situation, consult a licensed Illinois attorney.