PARTITION: THE PREFERENCE OF ILLINOIS COURTS FOR DIVISION OF REAL PROPERTY RATHER THAN SALE

PARTITION: THE PREFERENCE OF ILLINOIS COURTS FOR DIVISION OF REAL PROPERTY RATHER THAN SALE

Partition of land divides real property among two or more joint tenants or tenants in common.  See 735 ILCS 5/17-101; Peck v. Peck, 157 N.E.2d 249, 285 (1959).  The purpose of a partition is to enable various owners to sever their interests and possess, enjoy, and improve the new separate portion.  Id.

A partition action must be initiated with a verified complaint filed in the circuit court of the county where the land is located.  735 ILCS 5/17-101.  The verified complaint needs to include a particular description of the premises sought to be divided.  735 ILCS 5/17-102.  Although “particular description” is not further defined, it likely includes the property’s legal description, tax identification number, and common address.

Next, a partition complaint must name all parties with an interest in the property that are known to plaintiff.  Id.  This includes tenants and those entitled to an inheritance or future beneficial interest.  Id.  Finally, the complaint shall ask for division of the property according to the respective rights of the interested parties.  Id.

Land partitions are accomplished two ways, 1) the property is divided among the current owners, or 2) the entire property is sold and the proceeds divided equitably among the previous owners.  Illinois courts favor division of land rather than a division of proceeds from the land’s sale.  Peck, 157 N.E.2d at 285-86.  A partition sale is considered improper unless the property cannot be divided without prejudice to the rights of the parties.  Id.  In order to determine whether division is possible, Illinois courts may appoint an independent commissioner, either sua sponte or upon motion of a party.  735 ILCS 5/17-106.

Ultimately, Illinois law favors an equitable and equal division of property, but will award owelty, i.e. equalization charge to even the parties’ interests.  Harris v. Johnson, 42 Ill.App.3d 751, 754 (3rd Dist. 1976).  In Harris, two parties owned an irregularly shaped strip of land that divided two separate parcels (defined as “Outlot 19”).  Id. at 752.  Plaintiff owned the property to north of Outlot 19.  Id.  Defendant owned the property to the south of Outlot 19.  Id.

Complicating matters was the presence of a garage on Outlot 19.  Id.  This garage rested primarily on Outlot 19, but overlapped onto plaintiff’s northern property by about 20%.  Id.  Both parties used the garage.  Id.

The court divided the property in a way the deprived defendant use of the garage.  Id. at 752-53.  However, the court ordered plaintiff to award defendant $2,400.00 in exchange for defendant’s loss as an equalization charge.  Id. at 754-755.  The court noted that division and owelty, rather than sale, was the preferred and most equitable result.  Id.

But courts will not back away from a partition sale in more unusual circumstances.  Wright v. Wright, 131 Ill.App.3d 46 (3rd Dist. 1985).  In Wright, 13 heirs to a parcel of property sought its partition.  Id. at 47.  The court appointed an independent commissioner who recommended that the property could not be equitably divided.  Id. at 47-48.

The court agreed with the commissioner’s report in that dividing the property into 13 sections would be prejudicial to the parties.  Id.  All of the sections would be too small to use effectively, and some would be landlocked.  Id. at 48-49.  As a result, the court approved the sale and division of proceeds.  Id. at 49.

When faced with a partition action, it is clear Illinois courts prefer dividing land.  But they will also not rule out a sale if necessary.

 

For additional reading on land partition see:

 

Rosenbaum v. Rosenbaum, 38 Ill.App.3d 1 (1st Dist. 1976);

Anderson v. Anderson, 62 Ill.App.3d 468 (1st Dist. 1978);

O’Malley v. Walker, 4 Ill.App.2d 555 (1st Dist. 1955).

 

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