Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your case.
How a Partition Action Works Under Illinois Law
What Is a Partition Action?
A partition action lets co-owners of real estate ask a court to divide or sell the property when they cannot agree on its use or disposition. In Illinois, the procedure is governed by the Partition of Real Property Act (765 ILCS 1005/1 et seq.).
1. Filing the Petition (765 ILCS 1005/1)
Any co-owner may begin by filing a petition in the county where the property lies. The petition must name all other co-owners and show each owner’s interest. The court then issues summonses, and each co-owner receives notice by personal service or publication if an owner’s location is unknown.
2. Joinder of All Interested Parties
Illinois law requires that all persons with an ownership interest be joined in the action. This prevents future claims by absent parties. If someone cannot be found, the court may allow notice by publication.
3. Partition in Kind vs. Partition by Sale (765 ILCS 1005/21)
The court first considers whether it can divide the land physically—called “partition in kind.” If division is practical and fair, the court orders distinct parcels to co-owners in proportion to their ownership shares.
If physical division would damage the property’s value or is impractical, the court orders a sale—“partition by sale”—and distributes net proceeds according to each owner’s interest.
4. Appointment of Commissioner (765 ILCS 1005/19)
To carry out the court’s order, the judge appoints a disinterested commissioner. The commissioner surveys the land, prepares a report recommending division or sale, and conducts any court-approved sale at public auction.
5. Distribution of Proceeds
After sale, the commissioner pays off liens, expenses, and commissions. Remaining proceeds go to the co-owners by percentage interest. If overages remain after distribution, the court may order payment to satisfy judgments against any owner.
6. Timeline and Costs
A typical partition action in Illinois can take 6–18 months, depending on complexity and court schedules. Costs include filing fees, service fees, commissioner’s fees, surveyor fees, attorney fees, and marketing costs for a sale.
Helpful Hints
- Gather title records and deeds before filing.
- Discuss buyout options with co-owners to avoid litigation.
- Consider mediation or negotiation first—court can be costly.
- Hire an attorney experienced in real estate partition.
- Budget for survey, publication, and auction-related expenses.