Co-owning property can work well—until it doesn’t. A disagreement between siblings who inherited a family home, business partners who can’t agree on whether to sell, former spouses whose divorce left them holding property jointly, or investors who have diverged on strategy can all reach the same impasse: two or more people own property together, and they cannot agree on what to do with it. When negotiation fails, Illinois law provides a clear legal remedy: a partition action. At Citizens Law Group, we represent co-owners seeking to divide or sell jointly held property through the Illinois partition process.
What is a Partition Action?
A partition action is a lawsuit brought by one or more co-owners of real property to compel a division or sale of the property when the co-owners cannot agree on its disposition. In Illinois, partition is governed by the Partition of Real Property Act (735 ILCS 5/17-101 et seq.). Any person who co-owns real property—as a joint tenant, tenant in common, or otherwise—has the right to bring a partition action, and that right is absolute under Illinois law. A co-owner cannot be forced to remain in a co-ownership relationship indefinitely against their will.
Illinois courts strongly disfavor one form of partition over the other without good reason. The default preference under the Act is partition in kind—a physical division of the property into separate parcels, with each co-owner receiving a portion proportionate to their ownership interest. However, when physical division is not practical or would materially impair the value of the property or the interests of the co-owners (as in the case of a single family home, for example), the court will order a partition by sale—a judicial sale of the property with the net proceeds divided among the co-owners according to their respective ownership interests.
Illinois Law Note – 735 ILCS 5/17-101, et seq.: The right to partition in Illinois is a statutory right available to any co-owner regardless of the other owners’ preferences. No co-owner can be compelled to remain in a co-ownership relationship indefinitely. A court may order partition in kind or by sale depending on the nature of the property and what will best protect all parties’ interests.
Common Situations that Lead to Partition Actions
Inherited Property—Disagreements Among Heirs
One of the most frequent triggers for partition actions in Illinois is inherited real property with multiple heirs who cannot agree on what to do with it. One sibling wants to sell; another wants to keep the family home. One heir lives in the property; the others want their share of the equity. When family negotiation reaches an impasse, a partition action gives any co-owner a court-supervised path to resolution—either through a physical division of the property, where feasible, or through a judicially supervised sale with proceeds distributed to the heirs according to their inherited interests.
Dissolved Business Partnerships and Investment Properties
When real estate investors, business partners, or joint venture participants cannot agree on whether to sell, refinance, or continue holding a property, any co-owner may file for partition. Illinois courts recognize that forcing unwilling co-owners to remain tied together in a deteriorating business relationship serves no one’s interests. Partition by sale is common in investment property disputes because the property is typically not suited to physical division, and a judicially supervised sale can establish a fair market value that neither party can manipulate.
Former Romantic Partners and Ex-Spouses
When unmarried partners who jointly own property separate, or when divorce proceedings leave former spouses as co-owners of real estate that was not addressed in the divorce judgment, a partition action may be the only available mechanism to force resolution. Illinois divorce courts have jurisdiction over marital property, but property held outside a divorce proceeding—or property inadvertently omitted from a divorce decree—may require a separate partition action in the circuit court.
The Partition Process in Illinois
- Filing the partition complaint: The party seeking partition files a complaint in the Illinois circuit court for the county where the property is located, identifying all co-owners, describing the property, and specifying each party’s ownership interest.
- Service of process: All co-owners and all parties with an interest in the property—including mortgage holders, lienholders, and tenants with recorded leases—must be served with the complaint and given the opportunity to respond.
- Establishing interests: Before ordering partition, the court determines each party’s ownership interest, any claims for contribution (reimbursement for disproportionate mortgage payments, taxes, or improvements), and any liens or encumbrances affecting the property.
- Partition in kind or by sale: The court determines whether the property can be physically divided without materially impairing value. Most residential and commercial properties cannot be divided in kind, so partition by sale is the most common outcome.
- The judicial sale: If partition by sale is ordered, the court appoints a commissioner or receiver to oversee the sale process. The property is appraised, marketed, and sold at public auction or through a court-approved private sale process designed to achieve fair market value.
- Distribution of proceeds: After the sale, the court distributes the net proceeds among the co-owners according to their respective ownership interests, after satisfying any liens, encumbrances, contribution claims, and court costs.
Contribution Claims in Partition Actions
A partition action is not only about dividing the property—it is also the proper vehicle to resolve financial claims between co-owners that arose during the period of co-ownership. Any co-owner who paid more than their proportionate share of mortgage payments, property taxes, insurance, necessary repairs, or carrying costs may assert a contribution claim against the other co-owners in the partition proceeding. Similarly, a co-owner who received disproportionate rental income from the property may be required to account for it before the proceeds are divided.
We document and assert contribution claims on behalf of clients who have been carrying a disproportionate financial burden during a period of co-ownership conflict, and we defend against inflated or unsupported contribution claims asserted by the opposing party. In many partition cases, the contribution accounting is as financially significant as the sale proceeds themselves.
Frequently Asked Questions
Can one co-owner block a partition action in Illinois?
No. The right to partition is absolute under Illinois law—any co-owner may demand partition and the court must grant it. However, a co-owner may contest the form of partition (in kind versus by sale), assert contribution claims, challenge the ownership percentages, or raise other defenses that affect the ultimate distribution of proceeds. The right to partition itself cannot be blocked.
What if one co-owner is living in the property?
A co-owner who occupies the property does not have a superior right to block partition. However, the occupying co-owner may owe the other owners an occupancy credit—accounting for the reasonable rental value of their exclusive use of the property during the period of sole occupancy—which will be factored into the distribution of sale proceeds. Conversely, if the occupying co-owner has been paying all carrying costs, they may assert a contribution claim for the other co-owners’ proportionate share of those expenses.
How is the property valued in a partition by sale?
The court typically appoints a licensed appraiser or commissioner to determine the fair market value of the property before the sale. In contested partition proceedings, each party may present their own appraisal evidence. The property is then sold through a court-supervised process—either public auction or court-approved private sale—designed to achieve fair market value. A co-owner who believes the sale price is inadequate may object to confirmation of the sale before the court.
Can the co-owners settle the partition case without going through a full judicial sale?
Yes, and this often leads to the best outcome. Many partition actions settle before trial or before a judicial sale is completed, through a negotiated buyout in which one co-owner purchases the other’s interest at an agreed price, a voluntary sale to a third party with the proceeds divided by agreement, or a structured agreement governing future co-ownership and eventual exit. We negotiate settlements aggressively on behalf of our clients and use the partition action as leverage to achieve a fair resolution without the cost and delay of a full judicial sale when a negotiated resolution is achievable.
Let’s Talk About Your Co-ownership Dispute
Co-ownership disputes don’t have to remain stuck. Whether your situation involves inherited property, a dissolved partnership, or a former relationship, Illinois law gives every co-owner the absolute right to force a resolution—and Citizens Law Group will make sure your financial interests are fully protected through every step of the process. Contact us for a free consultation.