Starting a Partition Action in Illinois: Step-by-Step FAQ for When a Co-Owner Refuses

Quick answer: If a co-owner refuses to agree to divide or sell jointly owned real estate, you can force a division or sale by filing a partition action in the Illinois circuit court where the property lies. The process requires a clear title chain, a properly drafted complaint naming all owners and interested parties, correct service of process, and a court determination whether the property can be divided in kind or must be sold and proceeds distributed.

Detailed answer — how partition works in Illinois and the procedural steps

This section explains how partition actions generally proceed under Illinois law, what papers you must prepare, what the court can order, and common complications. This is a general explanation for educational purposes only.

1. What is a partition action and why file one?

A partition action is a civil court proceeding that asks the court to divide co-owned real property or to order its sale and distribute the net proceeds among the owners. You typically file one when co-owners cannot agree on possession, management, or sale. The court can:

Order a physical division (“partition in kind”) if the property can be fairly divided without undue prejudice; or
Order the property sold at public sale and distribute the proceeds among the parties according to their ownership shares.

2. Where to file

File the partition complaint in the Illinois circuit court in the county where the real estate is located. Illinois circuit courts handle civil real-estate cases and the court will follow the applicable provisions of Illinois civil procedure and property law. For information about Illinois courts and locating the proper circuit court, see the Illinois Courts site: https://www.illinoiscourts.gov/. For state statutes and related authority, consult the Illinois Compiled Statutes: https://www.ilga.gov/legislation/ilcs/ilcs.asp.

3. Preliminary preparation — documents and information to gather

Before filing, assemble the items the court and your lawyer (or you, if you file pro se) will need:

Copies of deeds showing your ownership chain and each co-owner’s interest.
Legal description of the property (from the deed or recent survey).
Mortgage, lien, and tax information (current balances and tax bills).
Any written communications showing attempts to resolve the issue (demand letters, offers to buy out, etc.).
Names and last-known addresses of all co-owners and anyone with an interest in the property (tenants, lienholders, judgment creditors).

4. Attempt to resolve before suing

Court rules encourage resolving disputes out of court when possible. Send a clear written demand that proposes a solution (sale, buyout, or partition in kind) and state a reasonable deadline. If the co-owner continues to refuse, keep that written record — it may help later.

5. Drafting and filing the partition complaint

The complaint must identify the property by legal description, name every known owner and possible claimants, state your ownership interest, and request specific relief (partition in kind or sale, accounting for rents/profits, appointment of a commissioner or referee, etc.). Typical relief requests include:

An order that the property be partitioned (in kind if feasible).
If partition in kind is impracticable, an order for a judicial sale and distribution of proceeds.
Appointment of a commissioner, master, or special representative to supervise partition, sale, or conveyance.
Accounting of rents, profits, expenses, and credits.
Costs and attorneys’ fees if applicable.

6. Service of process and adding all interested parties

After filing, you must properly serve the complaint and summons on every named defendant (co-owner, lienholder, etc.) using methods authorized by Illinois law (personal service, certified mail, service by publication when a party cannot be located, etc.). If someone cannot be served in a standard way, the court can allow alternative service or publication, but you must follow the court’s rules closely.

7. Early court steps — temporary orders and appointment of a commissioner

The court may issue temporary orders about possession, rents, insurance, and upkeep pending final resolution. The court commonly appoints a commissioner (or special master) to inspect the property, obtain surveys or appraisals, and manage sale procedures if sale is ordered.

8. Partition in kind vs. sale — what the court considers

The court prefers partition in kind when it results in fair division and does not materially impair title or utility. If a fair in-kind division is impossible or would cause great prejudice (e.g., a single-family house on one lot), the court usually orders a sale and equitable distribution of proceeds. The court relies on surveys, appraisals, and sometimes testimony from experts.

9. Accounting for rents, profits, taxes, and mortgage payments

The court can require an accounting of rents, profits, taxes, mortgage payments, repairs, and improvements since co-ownership began or since the dispute arose. Those amounts may affect the final distribution of sale proceeds or ownership shares.

10. Sale, confirmation, and distribution

If the court orders sale, the process generally includes appraisals, public auction or sealed bids under court supervision, confirmation of sale by the court, payment of liens and costs, and distribution of net proceeds according to ownership shares. The court issues a final judgment and deed to the purchaser or new deed to divided parcels.

11. Timeline and costs

Partition actions can take several months to over a year depending on complexity, contested issues, appraisals, and sales. Costs include court filing fees, service costs, appraisal and survey fees, commissioner fees, escrow expenses for sale, and attorney fees. The court may allocate some costs to the parties or charge them from sale proceeds.

12. Common complications

Unknown or missing owners: court may permit service by publication and appoint a guardian ad litem for minors or incapacitated owners.
Liens and mortgages: mortgage holders have priority and liens must be satisfied from sale proceeds according to their priority.
Adverse possession or quiet title issues may overlap and complicate partition.
Co-owners living on the property or denying access: obtain temporary orders rather than self-help eviction.

Statutory authority and where to read the law

Partition actions proceed under Illinois civil procedure and property law. For the actual statutory text and related rules, consult the Illinois Compiled Statutes and court rules. The Illinois General Assembly hosts the statutes here: https://www.ilga.gov/legislation/ilcs/ilcs.asp. For practical forms and local rules, check your circuit court’s website and the Illinois Courts site at https://www.illinoiscourts.gov/.

When to consult a lawyer

Consider hiring a lawyer if any of these apply:

There are mortgages, judgments, or multiple lienholders.
Parties are missing, minors, or incapacitated.
You need help valuing the property, handling sale mechanics, or seeking damages/credit for improvements.
The other owner threatens self-help actions (lockouts, removal of fixtures, etc.).

Helpful Hints

Keep communications in writing. Save copies of emails, texts, letters, and certified mail receipts.
Do not change locks, remove fixtures, or take other self-help steps. Illinois courts generally frown on unilateral actions that can lead to countersuits.
Get a title search early to discover mortgages, liens, heirs, or encumbrances.
Consider a professional appraisal and survey to support a partition-in-kind or sale valuation.
Explore mediation or neutral valuation before filing — it may save time and costs.
If you’re worried about unpaid taxes or mortgage payments, ask the court for temporary orders to protect the property’s value while the case proceeds.
If parties are unreachable, the court can allow publication service — preserve evidence of your attempts to locate them.
Expect the court to consider fairness — if one owner improved the property at personal expense, the court may award credits or adjustments in distribution.

Next practical steps you can take today

Gather deeds, mortgage statements, tax bills, and records of expenses/improvements.
Send a clear written demand proposing a resolution and set a reasonable deadline.
Contact the county circuit court clerk in the county where the property sits to learn local filing requirements and fees.
Consult a licensed Illinois attorney if the situation involves liens, missing owners, or complex accounting.

Disclaimer: This article explains general principles of Illinois law and is provided for informational purposes only. It does not constitute legal advice, create an attorney-client relationship, or substitute for advice from a licensed Illinois attorney who can analyze your specific facts.