How to Force the Sale of Inherited Property via Partition Action in Illinois
If you co-own property in Illinois and cannot agree on its future, you can file a partition action in Chancery Court. This lawsuit legally forces the division or sale of the property, with a typical court filing fee of approximately $388 in major counties.
Inheriting a family home with your siblings or purchasing real estate with an unmarried partner often seems like a great idea initially. However, when one co-owner wants to sell and cash out, while the other refuses to leave or buy out the share, a legal stalemate occurs. In Illinois, no one can be forced to remain in a toxic co-ownership. You have the absolute right to file a partition action to force the sale or physical division of the real estate.
Step-by-Step Partition Action Process in Illinois
Whether the property is located in Chicago, Aurora, or Joliet, the partition process is governed by the Illinois Code of Civil Procedure, specifically 735 ILCS 5/17-101. This is an equitable proceeding, meaning the court aims to ensure absolute fairness among all joint tenants or tenants in common.
Step 1: Filing the Complaint in Chancery Court
Your attorney will draft a formal Complaint for Partition and file it in the Chancery Division of the county where the real estate is located. For instance, if the home is in Cook County, your lawyer will file at the Chancery Division, Circuit Court of Cook County, Chicago alongside a Form CCCH 0623, Illinois, Circuit Court of Cook County, Chancery Division Civil Cover Sheet. The complaint must identify all owners, list their respective percentage of ownership, and formally request the court to divide or sell the property.
Step 2: Handling Existing Mortgages During Litigation
A common issue arises when the property still has an active mortgage. In Illinois, the mortgage lender (the bank) must be named as a defendant in the partition lawsuit because they hold a direct legal interest in the property. A partition action does not wipe away the mortgage. If the court orders a sale, the outstanding mortgage balance, along with property taxes and court costs, will be paid off first from the sale proceeds before any remaining equity is distributed to the co-owners.
Step 3: Appointing a Special Commissioner
Once the court determines that the property must be partitioned, they typically appoint an independent Special Commissioner (often a neutral real estate attorney or broker). The Commissioner's job is to appraise the property, determine if it can be physically divided, and if not, orchestrate a public or private sale. The Commissioner reports directly back to the judge to ensure the sale is fair and transparent.
Partition in Kind vs. Partition by Sale
Illinois law recognizes two main types of partition. Understanding the difference is crucial for setting your legal strategy. The foundational precedent for how courts view these two options can be traced back to rulings like Bowman v. Austin, 393 Ill. 593 (IL Supreme Court 1946).
- Partition in Kind: This is a physical division of the land. The court literally draws a line on a map and gives half to one owner and half to the other. This is extremely common for large, undeveloped tracts of farmland in downstate Illinois.
- Partition by Sale: If a property cannot be physically divided without destroying its value (like a single-family house or a commercial storefront), the court orders a partition by sale. The property is sold at auction or on the open market, and the financial proceeds are divided according to ownership shares.
How Much Does it Cost in Illinois?
Filing a partition action involves several costs. First, the court filing fee in major counties usually ranges between $300 and $400. You must also pay for a title search and the costs of serving the lawsuit on the other co-owners.
A unique aspect of Illinois partition law, found in 735 ILCS 5/17-125, addresses legal fees. If a partition lawsuit is filed and the defendants do not mount a substantial, good-faith defense, the court can actually order that the plaintiff's attorney fees be apportioned among all the co-owners based on their ownership shares. This prevents one stubborn sibling from forcing another sibling to bear the entire cost of the legal action. Because these rules are complex, you should use our directory to find a local US Lawyer to properly format your pleadings.
Frequently Asked Questions (FAQ)
Can I stop a partition sale if I want to keep the house?
You cannot permanently stop a co-owner from forcing a partition, but you generally have the right of first refusal to buy out their share at fair market value before the property is forced onto the public market.
What if one sibling paid for all the repairs and taxes?
During the partition accounting phase, the court can grant credits for unequal contributions. If you paid all the property taxes, insurance, and necessary repairs, you can request that these amounts be reimbursed to you from the final sale proceeds.
Does a partition action require a jury?
No. Partition actions are equitable claims heard in Chancery Court and are decided entirely by a judge, not a jury.
How long does a partition action take in Illinois?
If the co-owners agree to a buyout quickly, the process can be resolved in a few months. If the case goes to a fully litigated court-ordered sale, it can easily take 9 to 18 months to complete.
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