Written by the attorneys of CTM Legal Group | Illinois Advocates, LLC d/b/a CTM Legal Group | Chicago, Illinois | Updated March 3, 2026

CTM Legal Group is a Chicago-based litigation firm representing co-owners in Illinois partition actions, including disputes over inherited property, investment properties, and jointly owned residences. Our attorneys have handled hundreds of Illinois real estate disputes across Cook, DuPage, Kane, Will, Lake, McHenry, and Kankakee Counties.

What Is a Partition Lawsuit in Illinois?

When two or more people own real estate together and can no longer agree on what to do with it, Illinois law provides a remedy called partition. Partition is the legal process of dividing — or forcing the sale of — co-owned property so that each owner can go their separate way.

Co-ownership disputes happen in many situations: siblings who inherited a home from a parent, unmarried partners who bought property together, former spouses, or business partners who invested jointly in real estate. When the relationship breaks down and the co-owners can't agree, a partition lawsuit is often the only path forward.

Illinois partition law is governed by the Illinois Code of Civil Procedure, 735 ILCS 5/17-101 et seq. The full text of the Illinois Partition Act is available through the Illinois General Assembly's website.

Who Can Force the Sale of Jointly Owned Property in Illinois?

Partition applies to property held in joint tenancy or tenancy in common — the two most common forms of co-ownership in Illinois.

• Joint tenancy means each owner holds an equal, undivided share of the entire property. Joint tenants also have a right of survivorship, meaning if one owner dies, their share automatically passes to the surviving co-owners.
• Tenancy in common means co-owners hold individual shares that may or may not be equal. Unlike joint tenancy, each owner's share passes through their estate when they die.

Any one co-owner can force a partition, regardless of whether the other owners agree. No one's consent is required to file. However, certain types of ownership are not eligible for partition, including:

• Interests held in a land trust
• Partnership property
• Property owned by a married couple as tenants by the entirety

Three Ways an Illinois Court Can Divide Co-Owned Property

When a partition case goes to court, the judge has three main options:

1. Partition in Kind — Physical Division of the Property

The court divides the physical property into separate parcels, giving each co-owner their own piece. Illinois courts actually prefer this approach when practical — the idea being that each person walks away with real land rather than just a check. This works well for large tracts of land that can be meaningfully divided, but rarely works for a single-family home or urban lot.

When the divided shares aren't perfectly equal, the court can award owelty — a cash payment from one party to another to make the division fair.

2. Buyout — One Co-Owner Purchases the Others' Interests

The court may order one co-owner to buy out the others based on an appraisal of the property's value. This is a practical option when one person wants to keep the property and the others are willing to be paid out. After the buyout, the purchasing party holds sole title.

3. Forced Sale and Division of Proceeds

When physical division isn't practical and no party wants to buy the others out, the court orders the property sold — typically at a public auction — and the proceeds are divided among the co-owners according to their ownership percentages. This is the most common outcome for residential properties.

How Does the Illinois Partition Process Work? Step by Step

Step 1: Filing the Complaint

The co-owner seeking partition files a verified complaint in the circuit court of the county where the property is located, as required by 735 ILCS 5/17-102. The complaint must:

• Describe the property, including its legal description
• Identify all parties with an interest in the property, including mortgage holders and lien claimants
• State each party's ownership share
• Request partition or sale and distribution of proceeds

Step 2: Serving All Parties

Every person or entity with an interest in the property — including lenders, lien holders, and any other co-owners — must be named and served. Missing a party can delay or complicate the case.

Experienced attorneys will order a title search from a professional title company before filing to ensure that no necessary parties are missed. Lien holders, judgment creditors, and other encumbrances that may not be obvious from the deed alone will appear in a proper title search.

Step 3: Judgment on Ownership Interests

Before ordering any division or sale, the court first declares the rights, titles, and interests of all parties under 735 ILCS 5/17-105. This is essentially the court confirming who owns what percentage. If there's a dispute about ownership, it gets resolved at this stage.

Step 4: Commissioner's Report

The court appoints a neutral commissioner under 735 ILCS 5/17-106 to assess whether the property can be physically divided. The commissioner inspects the property, determines whether division is feasible, and reports back to the court. If physical division isn't possible without harming the parties' interests, the commissioner recommends a sale.

Step 5: Sale or Division

If a sale is ordered, the property is listed and sold, typically at public auction. The court sets a minimum sale price — no less than two-thirds of the court's appraised value.

Step 6: Distribution of Proceeds

The sale proceeds are distributed to the parties according to their respective ownership interests — after accounting for costs, attorney's fees, and any adjustments for contributions made by one co-owner on behalf of the others.

Settling Up Between Co-Owners: Contribution Claims in Illinois Partition Cases

Partition isn't just about splitting the sale price. In many co-ownership disputes, one party has been paying more than their fair share of expenses — or one party has been living in the property while the other has not. Illinois courts have the authority to sort through these issues as part of the partition proceeding, though in practice courts often prefer simplicity over a detailed accounting.

Mortgage Payments, Taxes, and Insurance

Under Illinois law, all co-owners are equally responsible for ongoing property expenses like mortgage payments, real estate taxes, and necessary insurance — regardless of whether only one of them is actually living in or managing the property. The rationale, established in cases like Gilmore v. Gilmore, 28 Ill. App. 3d 36 (1975), is that these expenses protect the property's value for everyone's benefit.

If one co-owner has been covering these costs alone, they may seek contribution from the others at the time proceeds are distributed. A co-owner making that claim will only receive credit for the other party's share of those payments — not reimbursement for their own portion, which they were obligated to pay regardless.

Necessary Repairs to Co-Owned Property

The same general principle applies to necessary repairs — work genuinely required to maintain the property and prevent deterioration. A co-owner who paid for emergency repairs may seek contribution from the others for their proportionate share. The key word is necessary: work done to prevent deterioration or protect the property's value generally qualifies; discretionary upgrades generally do not.

Improvements — Value Added, Not Cost Spent

When one co-owner makes improvements to a property without the knowledge or consent of the other owners, the improving co-owner is generally not entitled to be reimbursed dollar-for-dollar for what was spent. Instead, under Illinois case law — including Capogreco v. Capogreco, 61 Ill. App. 3d 512 (1978), and In re Marriage of Marr, 264 Ill. App. 3d 932 (1994) — the claim is for the other owners' proportionate share of the increase in value the improvement actually added to the property at the time of partition, not the cost of the work itself.

This distinction matters significantly. If $40,000 was spent finishing a basement but that work only increased the property's fair market value by $20,000, the claim is based on the $20,000 figure. On the other hand, if the improvement added more value than it cost, the improving co-owner benefits from the difference.

It is also worth noting that in some circumstances — particularly where co-owners had a close personal relationship — courts may find that improvements were intended as a gift, which would defeat any credit claim entirely.

Rental Value When One Co-Owner Occupies the Property

When one co-owner has been occupying the property while the other has not, the absent co-owner may wonder whether they're owed rent for that period. Illinois courts have not applied a single uniform rule here, and outcomes vary depending on the circumstances.

The clearest rule is that a co-owner who voluntarily moves out generally cannot later claim rent for the period the other party remained in the property. Every co-owner has an equal right to use and enjoy the whole property, and a party who chooses not to exercise that right does so at their own election.

At the other end of the spectrum, a co-owner who ousts the other — meaning actively excludes them from the property or refuses to permit joint occupation — may be held liable for the reasonable rental value of the property during that period.

Between those two poles, Illinois courts have recognized — as in Burkholder v. Burkholder, 10 Ill. App. 2d 565 (1956) — that a co-owner who has received substantially more than their fair share of the property's benefits may be subject to an accounting for rental value even without a formal ouster. Courts have reached different results depending on the specific facts, and the line between voluntary non-occupancy and actionable exclusion is frequently contested.

The Practical Reality: When Do Illinois Courts Actually Award Contribution?

While Illinois law clearly recognizes co-owners' rights to seek contribution for mortgage payments, taxes, repairs, and improvements, in practice these claims can be difficult to pursue. Courts handling partition cases often prefer to simply order a sale and divide the proceeds equally, treating detailed contribution accounting as unnecessary complexity — particularly when the amounts involved are relatively modest.

As a general matter, contribution claims tend to receive meaningful attention from courts when the amounts at stake are substantial — often $50,000 or more. Below that threshold, the cost and effort of litigating a detailed accounting may not be worthwhile, and courts may be disinclined to engage in the exercise at all.

This doesn't mean contribution claims are without value — they can be powerful negotiating leverage toward a settlement, and in cases involving significant sums they absolutely warrant pursuit. But parties on both sides should enter the process with realistic expectations.

Attorney's Fees in Illinois Partition Cases

Illinois partition law has an important provision regarding attorney's fees under 735 ILCS 5/17-125. When the plaintiff properly sets forth all parties' rights and interests in the complaint and genuinely represents everyone's interests fairly, the court shall apportion the plaintiff's attorney's fees and costs among all parties — including the defendants — so that each pays their equitable share.

The rationale is that everyone benefits from having the property properly divided, so everyone should share in the cost of the attorney who made that happen.

However, the statute creates an important exception: if a defendant interposes a good and substantial defense to the partition complaint, that defending party may recover their own costs and fees against the plaintiff. In other words, a defendant who successfully raises a genuine substantive defense does not merely avoid paying the plaintiff's fees — they may be entitled to shift their own costs back to the plaintiff.

Can a Partition Be Prevented in Illinois?

In limited circumstances, yes. Co-owners can agree in advance — in writing — not to partition the property for a set period of time, and courts will honor that agreement. But absent such an agreement, the right to partition is essentially absolute. Illinois courts have consistently held that the motive behind a partition request is irrelevant — the right exists regardless of why a party wants out.

Partition may also be denied when it would be inequitable under the specific circumstances, though this is a narrow exception.

Practical Considerations for Illinois Co-Owners

• Documentation matters. Records of payments made for the mortgage, taxes, insurance, repairs, or improvements — receipts, bank statements, contractor invoices — are essential to any contribution claim.
• Improvement claims require valuation evidence. Getting a before-and-after appraisal is far more effective than trying to reconstruct value during litigation. Without it, a court may decline to award any credit regardless of the amount spent.
• Voluntary departure affects rental value claims. A co-owner who moves out on their own generally has a weaker position when it comes to claiming rental compensation later.
• Actively excluding a co-owner creates legal exposure. Preventing a co-owner from accessing property they have a legal right to use can create liability for the property's rental value.
• Partition takes time. Between filing, service on all parties, the commissioner's process, sale, and distribution, partition cases often take many months — longer when ownership interests are disputed.
• Settlement frequently makes more sense than full litigation. Many partition disputes resolve through negotiated buyouts or agreed sales. When contribution amounts are modest, the cost of litigating them often outweighs the potential recovery.

Frequently Asked Questions: Illinois Partition Law

Can one co-owner force the sale of a property in Illinois?

Yes. Under 735 ILCS 5/17-101, any one co-owner of jointly held real estate in Illinois may file a partition lawsuit to compel a division or sale of the property, regardless of whether the other co-owners consent. Illinois courts have consistently held that the right to partition is essentially absolute.

What happens if co-owners disagree about selling inherited property in Illinois?

If co-owners of inherited property cannot agree on whether to sell, any one of them may file a partition action in the Illinois circuit court where the property is located. The court will either physically divide the property or, if that's not feasible, order a sale and divide the proceeds according to each owner's share.

How long does a partition lawsuit take in Illinois?

The timeline varies. Uncontested cases may resolve in a few months. Contested cases — particularly those involving disputed ownership interests or contribution claims — can take a year or more. The commissioner process, publication requirements for unknown owners, and court scheduling all affect timing.

Can a co-owner who paid the mortgage get reimbursed in an Illinois partition sale?

Possibly. Illinois law allows a co-owner who paid more than their proportionate share of mortgage payments, taxes, or insurance to seek contribution from the other co-owners at distribution. However, courts are more likely to engage with these claims when the amounts are substantial — typically $50,000 or more. Detailed documentation of all payments is essential.

What is the difference between joint tenancy and tenancy in common in Illinois?

Joint tenancy requires equal ownership shares and includes a right of survivorship — a deceased joint tenant's share passes automatically to the surviving co-owners, not through their estate. Tenancy in common allows unequal shares and has no survivorship right — each owner's share passes through their will or intestate succession. Both are subject to partition under Illinois law.

What is an "ouster" in an Illinois co-ownership dispute?

Ouster occurs when one co-owner actively prevents the other from accessing or occupying the property they have a legal right to use. A co-owner who has been ousted may be entitled to the reasonable rental value of the property for the period of exclusion. Mere voluntary non-occupancy, without active exclusion, generally does not constitute ouster under Illinois law.

Do I need a lawyer to file for partition in Illinois?

While Illinois law does not prohibit self-representation, partition actions involve complex procedural requirements, title issues, and equitable accounting that make attorney representation strongly advisable. Errors in identifying parties, pleading interests, or handling the commissioner process can delay or derail the case.

This guide is provided for general informational purposes only and does not constitute legal advice. Every situation is different. Please consult a licensed Illinois attorney before taking action regarding any legal matter.
CTM Legal Group | Illinois Advocates, LLC d/b/a CTM Legal Group | Chicago, Illinois | Serving Cook, DuPage, Kane, Will, Lake, McHenry, and Kankakee Counties