Detailed Answer: Filing a Partition Lawsuit in Illinois When Co-Owners Disagree

Short answer: If co-owners of real property in Illinois (for example, tenants in common) cannot agree on how to divide or sell the property, any co-owner may ask a court to force a partition. The court can either divide the land physically (partition in kind) or order a sale and divide the proceeds (partition by sale). The action is governed by Illinois civil procedure and property law; the court decides the method based on practicality and fairness.

What is a partition action?

A partition action is a lawsuit brought by one or more co-owners asking the court to divide real property among owners or to sell the property and distribute the money. Common co-ownership forms that can lead to partition are tenants in common; joint tenancy holders may also be subject to partition depending on the deed and circumstances.

Key Illinois authority

Partition actions proceed under Illinois law, including the Illinois Code of Civil Procedure. You can review the Illinois Compiled Statutes and search for partition-related provisions at the Illinois General Assembly website: https://www.ilga.gov/legislation/ilcs/ilcs.asp. Courts also interpret those statutory rules in published decisions, so practice and local court rules matter.

Step-by-step process

Confirm ownership and attempt to resolve informally.

Before filing, review the deed, title report, mortgage and lien records, and any written agreements (e.g., buy-sell agreements). Many disputes are resolved by negotiation, mediation, or one co-owner buying out the others. Trying settlement first can save time and costs.
Prepare a demand letter.

Sending a written demand that explains your request for partition or sale, and a deadline to respond, creates a record that you tried to resolve the issue before suing. Some courts and judges expect this step.
Choose proper venue and plaintiff(s).

File in the circuit court of the county where the property is located. Any co-owner can be plaintiff. The complaint must name all co-owners and anyone with a recorded interest or lien who must be notified so the court can resolve the rights of everyone who might have a claim to the property or its proceeds.
Draft and file the complaint for partition.

The complaint typically describes the property, states each party’s ownership share, explains the disagreement, requests partition (in kind or sale), and asks the court to appoint a commissioner (or similar officer) to carry out the division or sale. Include a prayer for costs, accounting of rents/claims, and any related relief. Follow local court form and filing requirements.
Serve all parties and lienholders.

Every co-owner and any recorded lienholder or person with an interest in the property must be properly served or otherwise given notice. Failure to join an interested party can delay or invalidate the result.
Respondent answers and pretrial steps.

Co-owners may answer, deny facts, assert counterclaims (for example, seeking partition on different terms), or seek temporary injunctive relief (such as exclusive possession or to prevent waste). The court may require disclosure of title documents, appraisals, and accounting of rents or expenses.
Court decides partition in kind or partition by sale.

The court will evaluate whether the property can be fairly divided. If physical division is practical and fair, the court may order partition in kind. If physical division would be impractical or would substantially reduce value, the court will typically order sale and divide net proceeds. Illinois courts exercise discretion based on the nature, size, and use of the property.
Appointment of commissioner (or commissioner of sale).

If the court orders sale, it commonly appoints a disinterested commissioner to handle valuation, marketing, sale, and distribution. The commissioner files reports and the court confirms the sale. If partition in kind is ordered, the court or commissioner implements the physical division or boundary changes and records new deeds.
Sale process and confirmation.

The commissioner follows court instructions when selling: obtaining appraisals, advertising, conducting public/private sale, and reporting bids. The court reviews the sale, addresses objections, and confirms it. Net proceeds are distributed after paying mortgages, liens, taxes, sale costs, and court-approved fees.
Final distribution and judgments.

After sale or division, the court enters judgment that conveys shares or orders distribution of sale proceeds according to ownership shares, liens and priorities. The judgment concludes the partition action but parties may appeal on legal grounds.

What the court considers when choosing division vs. sale

Whether the property can be physically divided without materially impairing its value.
Size, layout, and improvements (e.g., a single-family home is often unsuitable for fair physical split).
Potential reduction in market value from dividing the parcel.
Interests of minor or absent owners, liens, and encumbrances.
Equitable factors such as contributions toward mortgage, taxes, or improvements.

Common practical issues in Illinois partition cases

Mortgages and liens: These must be paid from proceeds in order of priority; the lender’s interest can limit options.
Occupancy and rents: If one owner occupies the property, the court may account for rent or award use-and-occupation damages.
Improvements: The court may consider contribution claims for payments toward repairs or improvements when allocating net proceeds.
Costs and attorney fees: The court may allocate costs and fees between parties, depending on conduct and agreements.

Timeline and likely duration

A straightforward partition suit can take several months. Complex cases with contested title, multiple lienholders, or appeals may take a year or longer. Expect additional time for a court-ordered sale and confirmation.

What you should bring to an attorney

Deed and title documents showing who owns what.
Mortgage statements, lien records, and tax records.
Any written agreements among owners (e.g., buy-sell agreements, leases).
Records of payments, improvements, and expenses related to the property.
Copies of correspondence showing attempts to resolve the dispute.

Possible outcomes

Partition in kind: the land is divided and each owner receives a separately deeded portion.
Partition by sale: property is sold and proceeds split after satisfying liens and costs.
Settlement: co-owners agree to a buyout, refinance, or structured sale without court involvement.
Dismissal or consolidation with other litigation if legal defects exist or the court lacks jurisdiction.

How to find a lawyer in Illinois for partition matters

Look for attorneys who practice real estate litigation or civil litigation with experience in partition cases. Check your county bar association referral service, the Illinois State Bar Association directory, or local law firm listings. Request initial consultations to discuss strategy, likely costs, and timeline.

Helpful Hints

Attempt negotiation first—settlement is usually faster and cheaper than litigation.
Get a current title report and property appraisal before filing to clarify lien priorities and realistic value.
Document contributions to the property (mortgage payments, taxes, repairs) if you expect an accounting or credits.
Consider mediation or court-ordered alternative dispute resolution early in the case.
Be mindful of tax consequences of sale or distribution; consult a tax advisor about capital gains and basis adjustments.
Ask the attorney about local judges’ practices on partition sales and commissioner appointments—procedures vary by county.
If you are a lienholder or mortgagee, consider filing a claim in the partition action promptly to protect your interest.

Disclaimer: This article explains general Illinois procedures and common practices for partition lawsuits. It is educational only and not legal advice. For advice about your specific situation, contact a licensed Illinois attorney.