Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer: Forcing a Sale Through a Partition Hearing in Illinois
Under Illinois law, co-owners of real property may not agree on how to manage or divide the property. In such cases, a co-owner can initiate a partition action in the circuit court to force a physical division or sale of the property. This procedure is governed by the Illinois Code of Civil Procedure at 735 ILCS 5/13-101 et seq.
1. Eligibility to File
Any person with a legal or equitable interest in the property—such as joint tenants, tenants in common, or life tenants—can file. The plaintiff must name all current co-owners and any interested lienholders as defendants.
2. Filing the Complaint
The plaintiff files a complaint in the circuit court of the county where the property lies. The complaint must:
- Describe the property with a legal description.
- Allege each party’s ownership interest.
- Pray for partition in kind (physical division) or, if division is impractical or inequitable, a forced sale.
This step follows the requirements of 735 ILCS 5/13-104.
3. Service and Response
After filing, the plaintiff must serve each defendant with a summons and copy of the complaint. Defendants have 30 days to answer. They may contest:
- Whether they are proper parties.
- Allegations about ownership.
- Whether physical partition is feasible.
4. Partition Hearing
If defendants answer or default, the court holds a hearing. The court will:
- Verify the legal interests of all parties.
- Assess if the land can be physically divided without prejudice (partition in kind).
- Decide if a sale is more equitable under 735 ILCS 5/13-105, such as when the property is indivisible or values would be harmed by splitting.
5. Order of Sale
If the court orders a sale, it appoints a commissioner (often a court-appointed officer) to:
- Advertise the property for sale according to court directions.
- Conduct public bidding and accept the highest bid.
- Report sale results to the court.
- Distribute net proceeds among co-owners based on ownership shares after paying costs and liens.
The commissioner’s duties and sale procedures follow 735 ILCS 5/13-107 and related sections.
Helpful Hints
- Consult an attorney early to evaluate whether partition or negotiation is best.
- Gather deeds, mortgage documents, and title policies before filing.
- Consider mediation or buyout offers to avoid court costs.
- Be prepared for appraisal and valuation disputes.
- Understand that sale proceeds distribution follows ownership shares after lien satisfaction.
- Know that circuit court procedures and timelines vary by county.