Article XVII - Partition
(735 ILCS 5/Art. XVII heading) ARTICLE XVII PARTITION
(735 ILCS 5/17‑101) (from Ch. 110, par. 17‑101)
Sec. 17‑101. Compelling partition. When lands, tenements, or hereditaments are held in joint tenancy or tenancy in common or other form of co‑ownership and regardless of whether any or all of the claimants are minors or adults, any one or more of the persons interested therein may compel a partition thereof by a verified complaint in the circuit court of the county where the premises or part of the premises are situated. If lands, tenements or hereditaments held in joint tenancy or tenancy in common are situated in 2 or more counties, the venue may be in any one of such counties, and the circuit court of any such county first acquiring jurisdiction shall retain sole and exclusive jurisdiction. Ownership of an interest in the surface of lands, tenements, or hereditaments by a co‑owner of an interest in minerals underlying the surface does not prevent partition of the mineral estate. This amendatory Act of the 92nd General Assembly is a declaration of existing law and is intended to remove any possible conflicts or ambiguities, thereby confirming existing law pertinent to the partition of interests in minerals and applies to all actions for the partition of minerals now pending or filed on or after the effective date of this amendatory Act of the 92nd General Assembly. Nothing in this amendatory Act of the 92nd General Assembly shall be construed as allowing an owner of a mineral interest in coal to mine and remove the coal by the surface method of mining without first obtaining the consent of all of the owners of the surface to the mining and removal of coal by the surface method of mining. Ownership of an interest in minerals by a co‑owner of an interest in the surface does not prevent partition of the surface. The ownership of an interest in some, but not all, of the mineral estate by a co‑owner of an interest in other minerals does not prevent the partition of the co‑owned mineral estate.
(Source: P.A. 92‑379, eff. 8‑16‑01; 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑102) (from Ch. 110, par. 17‑102)
Sec. 17‑102. Complaint. The verified complaint shall particularly describe the premises sought to be divided, and shall set forth the interests of all parties interested therein, so far as the same are known to the plaintiffs, including tenants for years or for life, and of all persons entitled to the reversion, remainder or inheritance, and of every person who, upon any contingency, may be or become entitled to any beneficial interest in the premises, so far as the same are known to the plaintiffs, and shall ask for the division and partition of the premises according to the respective rights of the parties interested therein, or, if a division and partition of the same cannot be made without manifest prejudice to the owners, that a sale thereof be made and the proceeds divided according to the respective rights of the parties.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑103) (from Ch. 110, par. 17‑103)
Sec. 17‑103. Parties defendant. Every person having any interest, whether in possession or otherwise, who is not a plaintiff shall be made a defendant in such complaint.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑104) (from Ch. 110, par. 17‑104)
Sec. 17‑104. Unknown parties. When there are any persons interested in the premises whose names are unknown, or the share or quantity of interest of any of the parties is unknown to the plaintiff, or such share or interest is uncertain or contingent, or the ownership of the inheritance depends upon an executory devise, or the remainder is contingent, so that such parties cannot be named, it shall be so stated in the verified complaint.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑105) (from Ch. 110, par. 17‑105)
Sec. 17‑105. Judgment. The court shall ascertain and declare the rights, titles and interest of all the parties in such action, the plaintiffs as well as the defendants, and shall enter judgment according to the rights of the parties. After entry of judgment adjudicating the rights, titles, and interests of the parties, the court upon further hearing shall determine whether or not the premises or any part thereof can be divided among the parties without manifest prejudice to the parties in interest. If the court finds that a division can be made, then the court shall enter further judgment fairly and impartially dividing the premises among the parties with or without owelty. If the court finds that the whole or any part of the premises sought to be partitioned cannot be divided without manifest prejudice to the owners thereof, then the court shall order the premises not susceptible of division to be sold at public sale in such manner and upon such terms and notice of sale as the court directs. If the court orders the sale of the premises or any part thereof, the court shall fix the value of the premises to be sold. No sale may be approved for less than two‑thirds of the total amount of the valuation of the premises to be sold. If it appears to the court that any of the premises will not sell for two‑thirds of the amount of the valuation thereof, the court upon further hearing may either revalue the premise and approve the sale or order a new sale.
(Source: P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑106) (from Ch. 110, par. 17‑106)
Sec. 17‑106. Appointment of commissioner and surveyor. The court in its discretion, sua sponte, or on the motion of any interested party, may appoint a disinterested commissioner who, subject to direction by the court, shall report to the court in writing under oath as to whether or not the premises are subject to division without manifest prejudice to the rights of the parties and, if so, report how the division may be made. The court may authorize the employment of a surveyor to carry out or assist in the division of the premises. The fees and expenses of the commissioner and of the surveyor and the person making the sale shall be taxed as costs in the proceedings.
(Source: P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑107) (from Ch. 110, par. 17‑107)
Sec. 17‑107. (Repealed).
(Source: P.A. 82‑280. Repealed by P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑108) (from Ch. 110, par. 17‑108)
Sec. 17‑108. (Repealed).
(Source: P.A. 82‑280. Repealed by P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑109) (from Ch. 110, par. 17‑109)
Sec. 17‑109. (Repealed).
(Source: P.A. 83‑707. Repealed by P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑110) (from Ch. 110, par. 17‑110)
Sec. 17‑110. (Repealed).
(Source: P.A. 82‑280. Repealed by P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑111) (from Ch. 110, par. 17‑111)
Sec. 17‑111. (Repealed).
(Source: P.A. 82‑280. Repealed by P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑112) (from Ch. 110, par. 17‑112)
Sec. 17‑112. Homestead. If any party to the action is entitled to an estate of homestead in the premises, or any part thereof, and the homestead has not been set off, the homestead may be set off by the court; and if the court so directs, the premises so allotted or set off may be partitioned among the claimants, subject thereto.
(Source: P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑113) (from Ch. 110, par. 17‑113)
Sec. 17‑113. Election as to shares. Several parties interested in the premises may, if they so elect, have their shares set off together or in severalty.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑114) (from Ch. 110, par. 17‑114)
Sec. 17‑114. Liens. A person having a mortgage, attachment, or other lien on the share of a part owner shall be concluded by the judgment of partition so far as it relates to the partition and the assignment of the shares, but his or her lien shall remain in full force upon the part assigned to or left for such part owner.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑115) (from Ch. 110, par. 17‑115)
Sec. 17‑115. Eviction by person with better title. If a person to whom any share has been allotted is evicted by a person who, at the time of the partition, had a title older and better than the title of those who were parties to the action, the person evicted may have a new partition of the residue as if no partition had been made, if such new partition can be justly made, or he or she may have contribution from the others, so as to make his or her share just and proportional with the others, according to the rights in the premises.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑116) (from Ch. 110, par. 17‑116)
Sec. 17‑116. (Repealed).
(Source: P.A. 82‑280. Repealed by P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑117) (from Ch. 110, par. 17‑117)
Sec. 17‑117. (Repealed).
(Source: P.A. 83‑707. Repealed by P.A. 93‑925, eff. 8‑12‑04.) |
(735 ILCS 5/17‑118) (from Ch. 110, par. 17‑118)
Sec. 17‑118. Report of sale ‑ Conveyances. The officer making such sale shall, within 10 days thereafter, file a report of his or her action in the office of the clerk of the court ordering such sale. The court may approve the report and confirm the sale reported if no objections have been filed or may disapprove the sale and order the real estate to be resold; if objections have been filed to the report, the court may at once proceed to hear such objections and sustain or overrule them.
Upon confirmation of the sale, the person making the sale or some person specially appointed shall execute and deliver to the purchaser proper conveyances, taking in case of sale on credit, security as required by the judgment. These conveyances shall operate as an effectual bar against all parties and privies to the proceedings and all persons claiming under them.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑119) (from Ch. 110, par. 17‑119)
Sec. 17‑119. Distribution of proceeds. Upon the approval of the report by the court, the proceeds of the sale shall be distributed by the person making the sale, as directed by the court, to the persons entitled thereto, according to their interests, or, in appropriate cases, to the persons and in the amounts and manner as now or hereafter provided in the applicable sections of the Probate Act of 1975, as amended, relating to small estates.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑120) (from Ch. 110, par. 17‑120)
Sec. 17‑120. Life estate or homestead. In case of sale the court may, with the consent of the person entitled to an estate for life, or for years, or of homestead, to the whole or any part of the premises, who is a party in the action, sell such estate with the rest. Such consent shall be in writing, signed by such person, and filed in the court wherein the proceedings for partition are pending.
If such persons are incapable of giving consent, the court may determine, taking into consideration the interests of all parties, whether such estate ought to be excluded from the sale or sold.
When such interest is sold, the value thereof may be ascertained and paid over in gross, or the proper proportion of the funds invested, and the income paid over to the party entitled thereto, during the continuance of the estate.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑121) (from Ch. 110, par. 17‑121)
Sec. 17‑121. Unknown owners. If the person entitled to any estate is unknown, the court may determine whether the estate shall be sold or not, as in case of persons under disability, and in the event of sale, make such order for the protection of the rights of such person, in the same manner, as far as may be, as if the person were known and had appeared.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑122) (from Ch. 110, par. 17‑122)
Sec. 17‑122. Deposit of proceeds of sale. When a sale of premises is made, and no person appears to claim such portion of the money as may belong to any non‑resident or person whose name is unknown, the court shall require such money to be deposited in the county treasury, subject to the further order of the court. All money so required to be deposited shall be received by the county treasurer and paid upon the order of the court.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑123) (from Ch. 110, par. 17‑123)
Sec. 17‑123. Application for deposited money. When money is so deposited in the county treasury, the person or persons entitled to the same, may at any time apply to the court making the order of sale and obtain an order for the same upon making satisfactory proof to the court of his or her right thereto.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑124) (from Ch. 110, par. 17‑124)
Sec. 17‑124. Vesting title. In all actions for the partition of real estate, the court may: investigate and determine all questions of conflicting or controverted titles, and remove clouds upon the titles to any of the premises sought to be partitioned; vest titles, by its order, in the parties to whom the premises are allotted, without the forms of conveyances by minors or unknown heirs or other parties to the action; order a sale of the premises for the purpose of dividing the premises in proper cases, and by its order, vest the purchaser with title, and apportion incumbrances among the parties to whom the incumbered premises are allotted.
(Source: P.A. 84‑1308.) |
(735 ILCS 5/17‑125) (from Ch. 110, par. 17‑125)
Sec. 17‑125. Costs. In all proceedings for the partition of real estate, when the rights and interests of all the parties in interest are properly set forth in the complaint, the court shall apportion the costs among the parties in interest in the action, including the necessary expense of procuring such evidence of title to the real estate as is usual and customary for making sales of real estate, and a reasonable fee for plaintiff's attorney, so that each party shall pay his or her equitable portion thereof, unless the defendants, or some of them, interpose a good and substantial defense to the complaint. In such case the party or parties making such substantial defense shall recover their costs against the plaintiff according to justice and equity.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑126) (from Ch. 110, par. 17‑126)
Sec. 17‑126. Adjustment of rights after judgment. In any case where, after judgment of partition, and before division or sale is had (as the case may be), the parties in interest adjust the respective rights among themselves so that further proceedings leading to such actual division or sale become unnecessary, an order shall be entered terminating further proceedings, whereupon the judgment of partition shall remain in full force and effect to determine the rights and interests of the parties as adjudicated therein, and there shall be no judicial division or sale of the premises, rights or interests pursuant to such judgment.
(Source: P.A. 82‑280.) |
(735 ILCS 5/17‑127) (from Ch. 110, par. 17‑127)
Sec. 17‑127. Proceedings herein. Proceedings for partition shall be conducted in accordance with the provisions of Article XVII of this Act.
(Source: P.A. 82‑280.) |