Detailed Answer

Legal basis. Partition actions in Illinois are governed by the Illinois Code of Civil Procedure, Chapter 735 ILCS 5, Part 15 (commonly cited as 735 ILCS 5/15-1 et seq.). See the statute for the statutory framework: 735 ILCS 5/15-1.

1) Who can start a partition case?

Any co-owner of real property (for example, joint tenants, tenants in common, or others with an ownership interest) may file a partition petition asking the circuit court to divide or sell the property so each owner receives their share.

2) Filing the petition and notifying co-owners

The petitioner files a complaint or petition in the county circuit court where the property sits. The petition must identify all owners, describe the property, and state the relief sought (partition in kind or partition by sale). The petitioner must serve the petition on the other owners and any recorded lienholders so they can appear and protect their interests.

3) Court evaluates partition in kind vs. partition by sale

The court will consider whether the property can be physically divided (partition in kind). If division is fair and practical, the court may order an in-kind division. If division would be impractical, wasteful, or inequitable (for instance, with a single-family home or an improved commercial parcel), the court commonly orders a partition by sale.

4) Appointment of a commissioner or referee

When the court orders a sale, the court typically appoints a commissioner or other officer to handle steps needed to sell the property. That person performs tasks such as making a title search, advertising the sale, conducting the sale (often a public auction), and reporting the sale back to the court.

5) Title, liens, and notice to interested parties

Before sale, the commissioner or parties will identify and give notice to lienholders, mortgagees, and others with recorded interests. Creditors may ask the court to protect their lien (for example, by requiring sale proceeds to pay mortgage debt). The commissioner or court will resolve who must be paid from proceeds before owners receive distributions.

6) Advertising and conducting the sale

The court usually requires public notice of the sale so competing bidders may attend. The exact advertising requirements and sale format (sealed bids, public auction, etc.) vary by local rules and the court order. A co-owner may bid at the sale and, in many cases, can purchase the property.

7) Report of sale and confirmation hearing

After the sale, the commissioner files a report with the court listing the sale price, buyer, and any proposed distribution of funds. The court conducts a confirmation hearing. At that hearing the court may confirm the sale, order a resale if problems occurred, or adjust distributions to satisfy liens, costs, and commissions.

8) Distribution of proceeds

Once the sale is confirmed, the court orders distribution of the net proceeds. The usual priority: payment of sale costs (commission, advertising, filing fees), payment of secured liens and mortgages, payment of taxed costs and attorney fees if awarded, and then division of remaining funds among the co-owners according to their ownership shares. The court may require segregation of funds if title disputes or claims remain.

9) Potential buyout and alternatives

Co-owners sometimes avoid a tax-triggering public sale by agreeing privately to buy out another owner’s share or by partition in kind when possible. The court often encourages or approves agreements by the parties if they are equitable and properly presented to the court.

10) Timing and appeal rights

Timing varies by county and case complexity. After confirmation, an aggrieved party may have a limited time to object or appeal the court’s sale order. If you plan to appeal, contact counsel quickly because appellate deadlines are short.

Common practical issues

• Mortgage and tax liens can take most or all sale proceeds—verify payoff amounts early.
• Unpaid property taxes and utilities are typically paid from proceeds before owner distributions.
• Improper notice, irregular advertising, or procedural defects can be grounds to set aside a sale or require a resale.
• Courts may award reasonable commissioner fees and attorney fees from sale proceeds in appropriate cases.

How an attorney can help

A lawyer can (1) prepare and file pleadings, (2) identify and protect your ownership interest and liens, (3) negotiate buyouts or consensual sales to avoid auction risk, (4) represent you at confirmation hearings, and (5) advise about tax and title consequences. If you are a co-owner facing a partition suit, consult an Illinois real estate litigator or civil attorney promptly.

Helpful Hints

• Start with a title search. Clarify mortgages, judgments, and other encumbrances early.
• Keep records of contributions for mortgage payments, taxes, and improvements—these may affect distributions.
• Talk to co-owners about buyout or negotiated sale options before the court orders a public sale.
• Expect court costs, commissioner fees, and attorney fees to reduce net proceeds.
• Ask the court or your lawyer whether the sale will be by public auction, sealed bids, or private sale approved by court.
• If you plan to bid, arrange financing in advance—sales often require quick closing or cash payment.
• Confirm deadlines to object or appeal after the sale report is filed; missing deadlines can forfeit rights.