Detailed Answer
Short overview: When co-owners cannot agree, Illinois courts can resolve disputes by ordering partition. If the court finds sale is necessary, it may appoint a commissioner to sell the property. The commissioner can conduct a private sale when the court permits one, but the sale must follow court directions, satisfy statutory notice and reporting requirements, and be confirmed by the court before final distribution of proceeds.
1. How a partition case starts and what the court decides
A co-owner (plaintiff) files a partition action in the Circuit Court asking either for physical division (partition in kind) or for sale and division of proceeds. If the property cannot be fairly divided, the court will usually order a sale. These actions are governed by the Illinois Code of Civil Procedure (see the Illinois Compiled Statutes, Chapter on the Code of Civil Procedure, 735 ILCS 5/). For an official entry point to the statute collection, see the Illinois General Assembly website: https://www.ilga.gov/legislation/ilcs/ilcs.asp.
2. Appointment of a commissioner
If the court orders sale, the judge typically appoints a disinterested commissioner (often a licensed attorney or a person experienced in real estate sales). The court’s order will define the commissioner’s powers: how to market, whether to accept bids, the minimum acceptable price, and whether a private sale is allowed. The commissioner acts under court supervision and must follow the court’s directions.
3. When a private sale is used
A private sale is often used when the property would fetch a better price through negotiated sale, to reduce carrying costs, or when a public auction would be impractical. The court must authorize a private sale. The commissioner cannot simply sell privately unless the court’s order allows it. Even with authorization, the commissioner must take steps to obtain a fair price and provide required notice to interested parties.
4. Notice, marketing, and procedure for the sale
- The commissioner typically must advertise the sale and give notice to all parties and lienholders as ordered by the court.
- Marketing steps commonly include listing with a broker, showing the property, and negotiating offers; the commissioner should document attempts to obtain competitive offers.
- If a private sale offer is accepted, the commissioner will usually sign a contract subject to court confirmation.
5. Court confirmation and objections
Almost always, any sale by the commissioner—private or public—must be reported to the court. The court schedules a confirmation hearing where co-owners and lienholders can object. Common grounds to object include inadequate marketing, sales below fair value, conflicts of interest, or procedural defects. If the court refuses to confirm, the sale may be set aside and the commissioner must reattempt sale as directed.
6. Distribution of sale proceeds and commissioner’s fees
After confirmation and clearance of liens, the commissioner files an accounting. The court approves payment of the commissioner’s fees, sale costs, and satisfaction of liens, then orders distribution of the remaining proceeds to the co-owners according to their ownership shares.
7. What rights an objecting co-owner has
- You can object to the commissioner’s report and to confirmation of a private sale. Objections must be timely and supported by facts or evidence (appraisal, proof of inadequate marketing, proof of conflict, etc.).
- You can also seek temporary relief—e.g., an injunction—if you can show immediate harm from the sale procedure.
- If the court confirms a sale despite your objections, you may have limited appellate remedies once a final order enters.
8. Timeline and practical expectations
Timelines vary by county and case complexity. Typical steps (filing to final distribution) may take many months. Expect time for service, appraisal or valuation, marketing, sale negotiation, court reporting, confirmation hearing, and distribution.
9. Where the law provides authority
Partition procedure and the court’s power to appoint commissioners arise under the Illinois Code of Civil Procedure (commonly cited as 735 ILCS 5/). For statutory language and related provisions, consult the Illinois General Assembly’s statute pages: https://www.ilga.gov/legislation/ilcs/ilcs.asp. For court practice and filing rules, see the Illinois Courts website at https://www.illinoiscourts.gov/.
Disclaimer: This content is for general informational purposes only and does not constitute legal advice. It is not a substitute for consulting a licensed Illinois attorney about your specific situation.
Helpful Hints
- Consult an attorney early. A lawyer can evaluate whether partition in kind, buyout, or sale is best for you and can protect your rights at hearings.
- Get a professional appraisal or broker opinion to establish fair market value before the sale process begins.
- Document everything: communications with co-owners, marketing efforts by the commissioner, offers received, and any potential conflicts of interest.
- If you prefer to keep the property, consider proposing a buyout (offer to buy the other owners’ shares) or ask the court for a valuation process to enable purchase instead of sale.
- Attend confirmation hearings. Timely objections matter; an unsupported late objection is unlikely to succeed.
- Ask the court to set clear minimum sale terms in the order appointing the commissioner (reserve price, deadlines, required marketing steps, and reporting format).
- Be aware of tax consequences and closing costs; plan for potential capital gains or transfer taxes when proceeds are distributed.
- Consider mediation to reach agreement with co-owners and avoid the added cost and uncertainty of court-directed sale.