Detailed Answer

Short answer: In an Illinois partition-by-sale, the court first pays liens, mortgages, and the costs of the partition (appraiser fees, broker commission, court costs, and attorney fees). The remaining sale proceeds are distributed to the co-owners in proportion to their ownership interests (for example, a 60% owner receives 60% of the net proceeds), subject to any specific credits or charges the court orders for improvements, waste, advances, or rents and profits.

How Illinois law handles partition sales

Illinois allows a co-owner to seek partition of real property. A court may order a partition in kind (dividing the land) or, if division in kind is impractical, a sale with proceeds distributed among owners. See the Illinois Code of Civil Procedure on partition actions: 735 ILCS 5/11-1.

Step-by-step: how proceeds are calculated and distributed

1. Sale is completed and proceeds are collected. The court or appointed commissioner holds the money from the sale.
2. Pay recorded liens and mortgages in priority order. Any mortgages or recorded liens attached to the property are paid from the sale proceeds before owners receive anything. Mortgage holders are paid according to priority (generally first-recorded liens are paid first).
3. Deduct partition and sale costs. Reasonable costs of the partition are paid next. Typical items include appraisal fees, advertising, real estate broker commission, costs of conducting the sale, and court-ordered costs.
4. Pay court-ordered allowances and judgments. The court may order payment for unsatisfied judgments or statutory liens related to the property.
5. Adjust for equitable credits and charges among co-owners. The court can credit owners who paid more than their share for mortgages, taxes, casualty repairs, or who made improvements that increased value; conversely, it can charge owners whose waste or unlawful occupation decreased value. Courts also adjust for rents and profits: an occupying co-owner who collected rents may owe other owners; an occupying co-owner who prevented rent collection may be charged.
6. Distribute the net balance according to ownership shares. After the above deductions and adjustments, the remaining funds are divided according to each co-owner’s fractional interest (for example, tenants in common split by percentage ownership). If the title documents define precise shares, the court follows those shares; if shares are unclear, the court determines equitable shares.

Common issues that change distribution

• Joint tenancy vs. tenancy in common: Partition law normally applies to tenants in common. Joint tenancy can be severed and converted to tenancy in common before partition. The court will examine the title to determine ownership type.
• Mortgage and priority disputes: If a mortgage was taken out by one owner only, it stays attached to the property; the lender’s claim is satisfied from sale proceeds before owner distributions.
• Contributions and reimbursements: A co-owner who paid the mortgage, taxes, or major repairs may receive reimbursement or a credit from the sale proceeds as the court deems fair.
• Improvements vs. repairs: The court distinguishes between ordinary repairs (often credited to the owner who paid) and improvements that increase property value (which may produce a larger credit or an adjustment in distribution).
• Costs and attorney fees: Courts may order that attorney fees and litigation costs come out of the sale proceeds or be paid by one party based on equities.

Practical example (hypothetical)

Three co-owners hold a property as tenants in common with shares of 50%, 30%, and 20%. The property sells for $300,000. Outstanding mortgage and liens total $80,000. Sale and court costs total $20,000. After paying liens and costs, $200,000 remains. The court finds the 30% owner paid $10,000 of property taxes and the 50% owner made $5,000 in improvements that increased value; the court awards appropriate credits. After adjustments, the remaining net amount is divided 50/30/20 among the owners.

Where to find the law

Primary Illinois statute on partition actions: 735 ILCS 5/11-1. That article and related sections in the Illinois Code of Civil Procedure explain when the court orders partition, the sale process, and how the court treats costs and duties. For the full set of partition provisions search the Illinois Compiled Statutes on the General Assembly site: https://www.ilga.gov/legislation/ilcs/ilcs.asp.

Disclaimer: This article explains general Illinois law and is for educational purposes only. It is not legal advice. For advice specific to your situation, consult a licensed Illinois attorney.

Helpful Hints

• Obtain a current title report early to identify mortgages and liens before a sale.
• Gather proof of payments you made (mortgage, taxes, insurance, repairs) to request credits in the partition accounting.
• Keep receipts and records for improvements; the court may award credits or consider increased value differently from ordinary repairs.
• Consider settlement or buyout negotiations—a private buyout or selling your interest to a co-owner can avoid the costs and uncertainty of court sale.
• If you occupy the property, track rent received or rent you could have obtained; courts may adjust distributions for rents and profits.
• Expect sale-related costs (broker fees, advertising, commissioner fees) to reduce net proceeds—budget accordingly.
• Ask your attorney about tax implications of the sale, including possible capital gains taxes and basis adjustments.
• Consult an Illinois real estate attorney early; they can advise on likely credits, how to present your accounting to the court, and whether partition in kind is feasible.