Disclaimer: I am not a lawyer. This article explains general Illinois procedures and common steps to file a partition action. It is educational only and not legal advice. For advice about your situation, consult a licensed Illinois attorney.
Detailed Answer — How a partition action works in Illinois and the steps to start one
When co-owners of real estate cannot agree, any co-owner may ask an Illinois circuit court to physically divide the land (partition in kind) or order a sale and divide the proceeds (partition by sale). The statutory rules for partition actions are in the Illinois Code of Civil Procedure. See the Partition Act: 735 ILCS 5/13-101 et seq. (Illinois General Assembly) for the statutory framework: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1406&ChapterID=38.
Step 1 — Confirm ownership and your legal standing
- Obtain the deed and any probate documents showing you inherited the property (letters of office, estate closing documents). Heirs commonly hold title as tenants in common unless title says otherwise.
- Run a title search or ask a title company for a preliminary report to identify all recorded owners, mortgages, liens, easements, and any cloud on title.
Step 2 — Try to resolve the dispute without court
- Send a clear written demand asking for partition, a buyout, or another settlement. Keep a copy.
- Consider mediation, an agreed buyout, or selling the property by agreement. Courts expect parties to try reasonable settlement efforts before or during litigation.
Step 3 — Prepare and file a partition complaint in the county where the property is located
- File the complaint for partition in the Illinois circuit court in the county where the property sits. The complaint should identify the property, all owners and interested parties (mortgage holders, executors, minor heirs), and state whether you seek partition in kind or sale. The complaint asks the court to divide the property or order its sale and direct how proceeds should be distributed.
- Attach or reference deeds, probate orders, and any documents that show the title and shares. Ask the clerk about filing fees and the fee schedule for the county.
Step 4 — Serve all parties and lienholders
- Proper service of process on all co-owners and any parties with recorded interests is required. If someone cannot be located, the court may allow substituted service or publication under Illinois rules.
Step 5 — Request temporary relief if needed
- If a co-owner is threatening waste, unauthorized sale, or removing personal property, ask the court for temporary injunctions, receivers, or orders to preserve the property pending the partition action.
Step 6 — The court evaluates whether partition in kind is practical
- If the court finds the property can be fairly divided (partition in kind), it may appoint commissioners to physically divide the land according to owners’ shares.
- If division would be impractical or would materially reduce value, the court will order a sale and division of proceeds (partition by sale).
Step 7 — Commissioner procedures and sale (if ordered)
- The court typically appoints a commissioner to value the property, prepare a division, or conduct a public sale. The commissioner files a report with the court. Parties may object and ask for a hearing before the court confirms the report or sale.
- Sale proceeds first pay mortgages, liens, taxes, and court-ordered costs; the remainder divides among owners according to their legal interests.
Step 8 — Final judgment and distribution
- After confirmation, the court issues an order transferring title (if partition in kind) or directing distribution of sale proceeds. The clerk or commissioner handles disbursement per the judgment.
Timing, costs, and likely outcomes
- Time: Simple partitions where parties cooperate can finish in a few months. Contested matters often take 6–18 months or longer depending on discovery, contested valuation, and appeals.
- Costs: Expect court filing fees, service costs, title searches, appraisal fees, commissioner’s/auction costs, and attorney fees. The court often allows reasonable costs of sale to come from proceeds.
- Outcome: If the land is physically divisible without unfairness, partition in kind is possible. If not, the court orders sale and divides net proceeds by ownership shares after satisfying liens and expenses.
Relevant Illinois statute
The statutory authority for partition actions is in the Illinois Code of Civil Procedure — Partition (see 735 ILCS 5/13-101 et seq.). Read the statutory text here: 735 ILCS 5/13-101 et seq. (Partition).
Helpful Hints
- Document everything: keep deeds, probate papers, tax bills, mortgage statements, repair invoices, and correspondence with co-owners.
- Get a professional appraisal early to understand value and whether an in-kind split makes economic sense.
- Ask the court for temporary orders to stop major changes (demolition, removal of fixtures) if a co-owner is acting against the property’s interest.
- Look for liens and mortgages before filing. Mortgages remain attached to the property and typically must be satisfied from sale proceeds.
- Consider a negotiated buyout: sometimes a co-owner will pay the other(s) their share based on appraisal rather than force a sale.
- Be realistic about costs: a contested partition can consume a large portion of the property’s equity if litigation, appraisal, and sale costs are high.
- If co-owners include minors or incapacitated persons, the court will require additional protective steps—notify the probate court and follow statutory procedures.
- Consult a real estate or probate attorney licensed in Illinois to draft pleadings, handle notice rules, and represent you at hearings. Illinois courts follow strict procedures; an attorney reduces procedural mistakes that can delay the case.
- Ask potential attorneys about experience with partition actions, typical timelines, fee structure, and strategies for settlement vs. litigation.
If you want tailored next steps, gather the deed, probate papers, mortgage statements, and a recent tax bill, then consult a licensed Illinois attorney to review your options.