Detailed Answer
When one or more co-owners refuse to buy out a co-owner’s interest, Illinois law allows the displaced co-owner to ask a court to divide or sell the property through a partition action. The Illinois Code of Civil Procedure governs partition actions; see the Code for the statutory framework: 735 ILCS 5 (Ill. Code of Civil Procedure). This section explains how partition works in Illinois, what the court will consider, what remedies a court can order, and practical steps you can take.
What is a partition action?
A partition action is a lawsuit filed in the circuit court where the property sits asking the court to divide or sell property owned by two or more people. Parties commonly brought these actions include tenants in common and some joint-tenants. The court’s job is to reach a fair and workable division of the property or, if division in kind is not practical, to order a sale and divide the proceeds among owners according to their ownership interests.
When will a court order a sale rather than dividing the property?
The court prefers to partition in kind (physically divide the land) if it can be done fairly without materially harming the owners’ interests. The court will order a sale when:
- the property cannot be divided without greatly diminishing value;
- division would be impractical because of size, shape, improvements, or use;
- division would prejudice one or more owners or defeat a reasonable use; or
- the parties ask the court to sell and the court finds sale is more equitable.
Even if other owners refuse to buy you out, the court can still order a sale if partition in kind is not feasible or fair.
How does a forced sale work?
Typical steps in Illinois:
- File a petition for partition in the circuit court where the property is located. The petition identifies all co-owners, the ownership shares (if known), and any liens or mortgages.
- Service and response. The other owners receive notice and can answer or object. The court resolves preliminary disputes and establishes the parties’ interests.
- Appointment of commissioners or a referee. The court may appoint commissioners or a referee to inspect, value, and recommend division or sale procedures.
- Accounting and lien resolution. The court will account for mortgages, liens, taxes, unpaid assessments, and advances from co-owners. Liens may be paid from sale proceeds or handled according to priority.
- If the court orders sale, it will set the terms. The sale may be public (auction) or private if the court approves a private sale. The sale proceeds are held by the court or a representative until the court determines distribution.
- Distribution of proceeds. After paying costs, liens, and any statutory allowances, the remainder is divided among co-owners according to their ownership shares or as adjusted by the court to account for contributions, improvements, or waste.
Can the court force a private buyout instead of a sale?
The court can order one owner to buy another owner’s interest—this is sometimes called a forced buyout or allotment—when equitable. But courts often find buyouts impractical if no party has resources or if the property cannot easily be split. If co-owners refuse to offer a buyout, the petitioner can still seek an order for sale.
What factors affect how proceeds are split?
The court generally distributes net proceeds according to legal ownership percentages. However, Illinois courts also consider credits or debits for:
- mortgage payments or property taxes paid by one co-owner;
- money spent on improvements or repairs that increased value;
- waste or damage caused by a co-owner;
- agreements among owners (written or clear conduct); and
- costs and fees of the partition action.
The court has equitable discretion to adjust distributions to reach fairness.
Practical evidence and documents you should gather
Before filing, assemble documents to support your petition and valuation requests:
- deeds showing the chain of title and ownership shares;
- mortgage and lien statements;
- tax bills and payment history;
- receipts for repairs, improvements, or expenses paid on behalf of the property;
- leases or rental records (if rented);
- appraisals or market comparables (if you have them); and
- correspondence with co-owners about buyout offers or attempts to resolve the dispute.
Costs, timeline, and likely outcomes
Partition litigation can take months to more than a year depending on complexity, lien issues, and whether the parties contest valuation and distribution. Costs include court filing fees, attorney fees, the cost of commission/referee, appraisal fees, and sale costs. The court commonly orders the losing or selling parties to share certain costs from proceeds.
Alternatives to litigation
Litigation can be costly. Consider alternatives first:
- mediate a buyout or negotiated sale with a neutral mediator;
- agree to a buy-sell price proved by appraisal;
- enter a listing agreement to sell the property on the open market and split net proceeds;
- temporary agreements on possession, rent, or maintenance to preserve value while you negotiate.
How to get started in Illinois
1) Confirm the property county and prepare a short ownership summary. 2) Collect deeds, lien statements, and tax records. 3) Consult with an attorney experienced in Illinois partition law to draft and file the petition. The court clerk can confirm filing venue and procedural steps for the county where the property sits. For the statutory framework governing partition remedies see the Illinois Code of Civil Procedure: 735 ILCS 5 (Ill. Code of Civil Procedure).
Disclaimer: This page is educational only and is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, consult a licensed Illinois attorney familiar with partition actions.