Partition Action Complaint - Illinois

COMPLAINT FOR PARTITION OF REAL PROPERTY

IN THE CIRCUIT COURT OF THE [______] JUDICIAL CIRCUIT

[______] COUNTY, ILLINOIS

VERIFIED COMPLAINT FOR PARTITION

Plaintiff [PLAINTIFF NAME], by and through undersigned counsel, and complaining of Defendants, states as follows:

I. PARTIES, JURISDICTION, AND VENUE

1. Plaintiff [PLAINTIFF NAME] is [an individual residing in / an entity organized under the laws of] [________________________________] and holds an undivided interest in the Subject Property described below.

2. Defendant [DEFENDANT NAME] is, upon information and belief, [an individual / entity] whose last known address is [________________________________] and is a cotenant of, or claims an interest in, the Subject Property.

3. Pursuant to 735 ILCS 5/17-103, every person having any interest in the Subject Property, whether in possession or otherwise, who is not a plaintiff is joined as a Defendant, including:

☐ [ADDITIONAL COTENANT], holder of an undivided [____] interest.
☐ [MORTGAGEE / LIENHOLDER], holder of a mortgage / lien recorded as Document No. [____________].
☐ Tenants for years or for life, reversioners, remaindermen, and persons who upon any contingency may become entitled to a beneficial interest: [________________________________].
☐ Unknown owners and nonrecord claimants (735 ILCS 5/17-104).

4. This Court has subject-matter jurisdiction under 735 ILCS 5/17-101 and Ill. Const. Art. VI, § 9.

5. Venue is proper in [______] County because the Subject Property (or part thereof) is situated therein. 735 ILCS 5/17-101.

II. THE SUBJECT PROPERTY

6. The real property at issue (the "Subject Property") is situated at [________________________________], [______] County, Illinois, and, pursuant to 735 ILCS 5/17-102, is particularly described as:

[INSERT FULL LEGAL DESCRIPTION]

Permanent Index Number (PIN): [____________]
Document No. / Recording Reference: [____________]
Commonly Known As: [________________________________]

III. NATURE OF TITLE AND COTENANCY SHARES

7. The Subject Property is held by the parties as [tenants in common / joint tenants], in the following undivided shares (735 ILCS 5/17-102):

8. Plaintiff acquired Plaintiff's undivided interest by:

☐ Warranty Deed / Quitclaim Deed from [__________] dated [__/__/____], recorded as Document No. [____________].
☐ Intestate succession / devise from the Estate of [__________], Case No. [____________].
☐ Other: [________________________________].

IV. ENTITLEMENT TO PARTITION

9. The parties hold the Subject Property in undivided shares and can no longer hold and enjoy it in common to their mutual advantage. Plaintiff desires to sever Plaintiff's interest and is entitled to compel partition as a matter of right under 735 ILCS 5/17-101.

10. The Subject Property is not held in a land trust, as partnership property, or by a married couple as tenants by the entirety, and no agreement binding all cotenants bars partition.

V. PARTITION IN KIND vs. PARTITION BY SALE

11. Partition in kind (preferred). Illinois favors division of the land over sale. The Subject Property [can / cannot] be divided in kind among the cotenants according to their respective rights without manifest prejudice to the parties. Where division is unequal, the Court may award owelty (an equalization charge) to even the parties' interests.

12. Partition by sale. In the alternative, if the Court finds that the Subject Property cannot be divided without prejudice to the rights and interests of the parties, Plaintiff requests that the Court order the Subject Property sold and the net proceeds distributed among the cotenants according to their respective interests.

13. The Subject Property [consists of a single-family residence / is unimproved land / other: ______], and the following facts bear on whether division in kind is practicable: [________________________________].

VI. ILLINOIS UNIFORM PARTITION OF HEIRS PROPERTY ACT (755 ILCS 75/)

14. The Subject Property is, or may be, "heirs property" within the meaning of 755 ILCS 75/2(5) in that:

☐ (A) There is no agreement in a record binding all the cotenants which governs the partition of the property;
☐ (B) One or more of the cotenants acquired title from a relative, whether living or deceased; and
☐ (C) [☐ 20% or more of the interests are held by cotenants who are relatives; ☐ 20% or more of the interests are held by a cotenant who acquired title from a relative; ☐ 20% or more of the cotenants are relatives].

15. Plaintiff requests that the Court determine whether the Subject Property is heirs property pursuant to 755 ILCS 75/3 and, if so, proceed under the Illinois Uniform Partition of Heirs Property Act, including:

☐ Determination of fair market value, ordinarily by court-ordered appraisal (755 ILCS 75/6);
☐ Notice of the cotenant buyout option and apportionment of the buyout price (755 ILCS 75/7);
☐ Partition in kind unless the court, after weighing the statutory factors, finds it would result in great prejudice to the cotenants as a group (755 ILCS 75/8 and 75/9); and
☐ If a sale is ordered, an open-market sale, sealed bids, or auction (755 ILCS 75/10).

16. If Plaintiff seeks notice by publication and the Court determines the Subject Property may be heirs property, Plaintiff will post and maintain a conspicuous sign on the property as required by 755 ILCS 75/4.

VII. ACCOUNTING AMONG COTENANTS

17. An accounting is necessary to adjust the equities among the cotenants. Plaintiff requests that, in connection with the partition or the distribution of sale proceeds, the Court credit and charge the cotenants as follows:

18. Contribution. A cotenant who has advanced more than their proportionate share of taxes, mortgage debt, insurance, and necessary preservation expenses is entitled to contribution and an equitable credit against the shares of the other cotenants.

19. Ouster / rents offset. [Defendant has been in sole and exclusive possession of the Subject Property since [__/__/____] and has excluded Plaintiff therefrom, entitling Plaintiff to a credit for the reasonable rental value of Plaintiff's share / Defendant has collected rents from third parties for which Defendant must account].

20. Owelty. If any partition in kind cannot be made in exact proportion to the parties' interests, Plaintiff requests that the Court direct an equalization charge (owelty) so that the division is just and proportionate in value.

VIII. APPOINTMENT OF COMMISSIONERS

21. Plaintiff requests that the Court appoint one or more commissioners pursuant to 735 ILCS 5/17-106 (or, under the UPHPA, disinterested and impartial commissioners under 755 ILCS 75/5) to make partition of the Subject Property in kind where practicable, with owelty as needed, or to report that the property cannot be divided without prejudice so that the Court may order a sale.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court:

A. Determine the respective rights, titles, interests, and shares of the parties in the Subject Property (735 ILCS 5/17-105);

B. Determine whether the Subject Property is heirs property and, if so, partition it under the Illinois Uniform Partition of Heirs Property Act, 755 ILCS 75/, including ordering an appraisal and affording the statutory cotenant buyout;

C. Order partition of the Subject Property in kind among the cotenants according to their respective interests, with owelty as needed;

D. Alternatively, if partition in kind cannot be made without prejudice to the parties, order the Subject Property sold and the net proceeds distributed among the cotenants according to their respective interests;

E. Appoint one or more commissioners to effect the partition or sale and report to the Court;

F. Take and state an accounting among the cotenants and award credits, charges, contribution, and offsets as set forth above;

G. Apportion the costs of this action, including reasonable attorney's fees, among the parties in proportion to their interests pursuant to 735 ILCS 5/17-125; and

H. Grant such other and further relief as the Court deems just and equitable.

VERIFICATION (735 ILCS 5/17-101)

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109), the undersigned certifies that the statements set forth in this Verified Complaint for Partition are true and correct, except as to matters stated on information and belief, and as to such matters the undersigned certifies that [he/she] verily believes the same to be true.

_________________________________
[PLAINTIFF NAME], Plaintiff

Dated: [__/__/____]

Respectfully submitted,

_________________________________
[ATTORNEY NAME]
[FIRM NAME]
ARDC No. [____________]
[ADDRESS]
[CITY, STATE, ZIP]
Telephone: [____________]
Email: [____________]
Attorney for Plaintiff

CERTIFICATE OF SERVICE

The undersigned certifies that on the date noted below, a true and correct copy of the foregoing VERIFIED COMPLAINT FOR PARTITION was served upon the following parties (or their counsel of record) by the method(s) indicated:

☐ Summons and service by the Sheriff or a special process server;
☐ U.S. Mail, postage prepaid;
☐ Service by publication as to unknown owners and nonrecord claimants (735 ILCS 5/2-206; 755 ILCS 75/4);
☐ The Court's electronic filing and service system (Odyssey eFileIL),

addressed as follows:

[SERVICE LIST WITH NAMES AND ADDRESSES]

Dated: [__/__/____]

_________________________________
[ATTORNEY NAME], ARDC No. [____________]
Attorney for Plaintiff

SOURCES AND REFERENCES

• 735 ILCS 5/17-101 (Compelling Partition) — https://codes.findlaw.com/il/chapter-735-civil-procedure/il-st-sect-735-5-17-101/
• 735 ILCS 5/17-102 (Complaint; Particular Description)
• 735 ILCS 5/17-103 (Parties Defendant)
• 735 ILCS 5/17-104 (Unknown Parties)
• 735 ILCS 5/17-105 (Judgment; Determination of Rights)
• 735 ILCS 5/17-106 (Appointment and Duty of Commissioners)
• 735 ILCS 5/17-125 (Costs and Attorney's Fees)
• 755 ILCS 75/ (Illinois Uniform Partition of Heirs Property Act; P.A. 101-520, eff. 8-23-19) — https://law.justia.com/codes/illinois/chapter-755/act-755-ilcs-75/
• 755 ILCS 75/2 (Definitions; "Heirs Property")
• 755 ILCS 75/3 (Applicability; Relation to Other Law)
• 755 ILCS 75/4 (Service; Notice by Posting)
• 755 ILCS 75/6–75/10 (Value; Buyout; Partition Alternatives; Sale)
• Peck v. Peck, 16 Ill. 2d 268 (1959) (preference for division in kind)
• Harris v. Johnson, 42 Ill. App. 3d 751 (1976) (owelty / equalization charge)

DISCLAIMER: This template is provided for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Illinois partition proceeds under the Partition Act, 735 ILCS 5/17-101 et seq., overlaid by the Illinois Uniform Partition of Heirs Property Act, 755 ILCS 75/ (codified in Chapter 755, ESTATES — not 765 ILCS). The court must determine whether the property is heirs property, in which case the UPHPA controls. Illinois courts prefer partition in kind. Consult a licensed Illinois attorney before filing.