Detailed Answer — How a partition action works in Illinois

When co-owners cannot agree about jointly owned real estate and mediation fails, one or more co-owners can file a partition action in the Illinois circuit court where the land lies. A partition action asks the court to divide ownership fairly. Under Illinois law, the court can either divide the property physically (partition in kind) or order a sale and split the proceeds (partition by sale). The court favors division in kind when practical, but if physical division would be impractical or inequitable, it will order a sale.

Key legal framework: Illinois partition procedures are set out in the Illinois Code of Civil Procedure (Partition statutes). See 735 ILCS 5/15-1 et seq. (Illinois Compiled Statutes) for the statutory scheme: 735 ILCS 5/15-1 et seq..

Who may file

• Any legal owner of a possessory interest in the land (tenants in common or joint tenants) may file for partition.
• Creditors holding liens against the property may sometimes join or intervene to protect their interests in proceeds.

Typical court process and timeline

1. File a complaint for partition in the appropriate Illinois circuit court. The complaint describes the property, identifies owners and their claimed shares, and requests partition in kind or by sale.
2. Serve the complaint on all co-owners and anyone with an interest (mortgagees, lienholders). They may answer and raise defenses or counterclaims.
3. The court conducts discovery if parties dispute facts (title, boundaries, improvements, offsets).
4. The court may appoint a commissioner or master to inspect the property, prepare a report (including appraisals), and recommend division or sale. The court can also order that the property be sold at public auction or by private sale under court supervision.
5. Any liens or mortgages are typically paid from the sale proceeds before distributing the remainder to owners according to their interests. The court issues a final judgment and distributes funds after payment of costs and liens.

Timing varies by county and complexity. A straightforward partition can take several months; contested or complex matters can take a year or longer.

How the court decides between physical division and sale

The court prefers partition in kind when an honest physical division is practicable and will not prejudice owners. If the property cannot be divided without substantial injury to owners’ interests (for example, a single-family home on one lot, or land with improvements that cannot be divided), the court will order sale and distribution of proceeds. The court weighs fairness, practicality, and the nature of the land.

What happens to mortgages, liens, taxes, and improvements

• Prior recorded liens and mortgages remain attached to the property and, on sale, are paid from sale proceeds in order of priority.
• Property taxes and assessments are settled from proceeds before distribution.
• The court accounts for improvements and contributions if owners claim offsets (for example, one owner paid most mortgage or improvement costs). These equitable adjustments may affect final distributions.

Possible remedies, orders, and costs

• Partition in kind (physical division) if practical.
• Partition by sale — public or private sale under court supervision; proceeds distributed after liens and costs.
• Appointment of a receiver or commissioner to manage or sell the property.
• The court may award costs of the suit to the successful party; attorney fees are not automatically awarded unless statute, contract, or equitable grounds apply.

Strategic considerations and alternatives

Even after mediation fails, alternatives remain: one co-owner can offer a buyout based on appraisal; parties can agree to sell on the open market and split proceeds; or the parties can seek supervised sale through the court to get a controlled disposition. Filing suit is adversarial and can be costly. Think about valuation method (independent appraisal), timelines, taxes (capital gains or basis issues), and whether a buyout or negotiated sale might yield a faster, cheaper result.

Helpful Hints — Practical steps if mediation fails and you plan to file for partition

• Gather documents early: deed(s), mortgage statements, tax bills, insurance, surveys, leases, and records of payments or improvements.
• Get a current appraisal or market analysis so you and the court have a reliable value benchmark.
• Talk to a local real estate attorney who handles partition actions. They will advise on likely outcomes, court costs, and strategies (buyout vs. sale).
• Consider an offer to buy out co-owners before you file. A fair buyout can avoid litigation costs and time.
• If you fear a co-owner will sell or encumber the property before court, ask your attorney about a temporary injunction or other emergency relief.
• Understand lien priority: outstanding mortgages and recorded liens are typically paid first from sale proceeds.
• Budget for court costs, commissioner/appraisal fees, and potential repairs required before sale.
• Be prepared for timing: partition suits can take months to over a year depending on disputes and court backlog.
• Keep records of offers, communications, and settlement attempts — courts favor parties who have tried to resolve disputes in good faith.
• Check tax consequences of a sale or buyout with a tax advisor — capital gains and basis allocation can affect net proceeds.