Detailed Answer
Short summary: In Illinois, a co-owner who cannot reach agreement with other co-owners can ask a court to partition the property. A partition action can result in a physical division of the land (partition in kind), a court-ordered sale with proceeds split among owners, or one co-owner buying out the others. The most common remedy when physical division is impractical is a court-ordered sale and division of net proceeds after liens, taxes, and costs.
How the process works under Illinois law
Illinois law allows any co-owner of real property to file a partition lawsuit in the Circuit Court in the county where the property sits. The statutory framework for partition actions appears in the Illinois Code of Civil Procedure (see the partition provisions: 735 ILCS 5/15-1 et seq.). A partition action typically follows these steps:
- File the complaint: The plaintiff (the co-owner seeking relief) files a complaint for partition naming all co-owners and any parties with recorded interests (mortgage holders, judgment lien creditors, etc.). The court issues summons and the other parties are served.
- Pretrial and accounting: The court may require the parties to exchange information about contributions, mortgage payments, taxes, repairs, rents, and other charges. The court can order an accounting so the court can allocate credits and liabilities among co-owners before division or sale.
- Attempt to partition in kind: If the property can be physically divided fairly without prejudicing value, the court may order a partition in kind so each owner receives a separate parcel in proportion to their ownership share.
- Sale if in kind is impractical: If the court determines a fair physical division is impractical or would be prejudicial, it will order the property sold. The court usually appoints a commissioner to sell the property at public auction. Net sale proceeds are distributed according to ownership shares after paying mortgages, liens, taxes, expenses, and the commissioner’s fees.
- Buyout alternatives: At any point, a co-owner may offer to buy the other owners’ interests at a court-ordered valuation. The court can approve a buyout instead of a sale if parties agree or if an equitable result supports it.
- Enforcement and distribution: After sale and payment of encumbrances and costs, the court directs distribution of the proceeds to the parties according to its accounting and the ownership percentages.
Who pays what and who gets credit?
The court will consider who paid mortgages, insurance, property taxes, repairs, and improvements. Co-owners who contributed more than their share may receive credits before proceeds are divided. Conversely, co-owners who owe for unpaid obligations may be charged. Expect the court to require documentation (bank records, invoices, receipts, mortgage statements).
Timing and costs
Partition suits can take several months to over a year depending on court schedules, disputes about accounting, title issues, or appeals. Costs include filing fees, attorney fees, appraisal and commissioner fees, court costs, and sale-related expenses. The court often charges these costs against the property sale proceeds before distributing shares.
Practical considerations before filing
Before you file a partition action, consider non‑litigation options: negotiate a buyout, use mediation, or agree to one owner manage and rent the property with a formal accounting arrangement. Litigation is often more expensive than settlement, but partition is a final remedy when co-owners cannot agree.
Relevant Illinois statute
Partition actions are governed by the Illinois Code of Civil Procedure. See the partition provisions (735 ILCS 5/15-1 et seq.) for statutory procedures: 735 ILCS 5/Art. XI (Partition). That statute explains filing, notice, appointment of commissioners, sales, and distribution of proceeds.
When a co-owner’s rights are limited
Court results depend on legal ownership (tenancy in common vs. joint tenancy), recorded liens, and prior agreements among owners. If one co-owner holds the property as a trust or subject to a deed condition, different rules or defenses may apply. Also, a mortgage remains a lien on the property and must be satisfied from sale proceeds or addressed in settlement.
What to expect at the courthouse
Expect a formal civil case. The court may order appraisals, mediations, and written accounting. If the court orders sale, the sale will follow published notice and a public auction or other court-directed sale method. The appointed commissioner or court officer handles the sale under court supervision.
When to hire an Illinois real estate attorney
Consider hiring a lawyer if:
- Co-owners refuse reasonable buyout offers or negotiations have failed.
- There are liens, unpaid mortgages, or title defects.
- Accounting disputes about who paid what are contested.
- You want help valuing the property or preparing evidence for the court.
An attorney can prepare the complaint, advise on local courthouse procedures, negotiate settlements, and represent you at sale hearings and appeals.
Example hypothetical timeline
Suppose three co-owners own a house as tenants in common and cannot agree. One files a partition complaint. The court orders an accounting and appraisal (2–6 months). If division is impractical, the court appoints a commissioner and orders a sale (additional 2–6 months). After sale, the court distributes net proceeds (1–2 months). Total: commonly 6 months to 18 months depending on complexity.
Helpful Hints
- Gather documents early: deed, title report, mortgage statements, tax bills, insurance records, receipts for repairs/improvements, rental records, and communication among co-owners.
- Get a current professional appraisal before filing. It helps with valuation and buyout offers.
- Try mediation or a neutral valuation before filing. Courts often encourage settlement and it saves money.
- If you want to keep the property, prepare a formal buyout plan (where the buyer shows proof of funds or financing) to present to co-owners or the court.
- Be realistic about costs — litigation and forced sale expenses can reduce the net proceeds each owner receives.
- Address any mortgages or tax liens quickly. Lenders’ rights survive a partition sale and are paid first from proceeds.
- Keep records of all payments and communications. The court relies on documentation when allocating credits or liabilities.
- Consult a licensed Illinois real estate attorney early to review your facts and advise on strategy. An attorney can evaluate whether partition or another remedy gives the best net result.