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(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 or, if a cotenant is an entity, from a relative of |
a beneficiary, shareholder, partner, or member of the |
entity, whether such relative is living or deceased; and |
(C) Any of the following applies: |
(i) 20 percent or more of the interests are held by |
cotenants who are relatives; |
(ii) 20 percent or more of the interests are held |
by a cotenant who acquired title from a relative, |
whether living or deceased; or |
(iii) 20 percent or more of the cotenants are |
relatives. |
(6) "Fair market value" means the cash price at which the |
heirs property would change hands between a willing buyer and a |
willing seller, neither being under any compulsion to buy or |
sell and both having reasonable knowledge of the relevant |
facts. |
(7) "Partition by sale" means a court-ordered sale of all |
or a portion of the heirs property conducted under Section 10. |
(8) "Partition in kind" means the division of heirs |
property into physically distinct and separately titled |
parcels. |
(9) "Record" means information that is inscribed on a |
tangible medium or that is stored in an electronic or other |
|
medium and is retrievable in perceivable form. |
(10) "Relative" means an ascendant, descendant, or |
collateral or an individual otherwise related to another |
individual by blood, marriage, adoption, or law of this State |
other than this Act.
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Section 3. Applicability; relation to other law. |
(a) This Act applies to partition actions filed on or after |
the effective date of this Act. |
(b) In an action to partition real property under Article |
XVII of the Code of Civil Procedure the court shall determine |
whether the property is heirs property. If the court determines |
that the property is heirs property, the property must be |
partitioned under this Act unless all of the cotenants |
otherwise agree in a record. |
(c) This Act supplements Article XVII of the Code of Civil |
Procedure and, if an action is governed by this Act, replaces |
provisions of Article XVII of the Code of Civil Procedure that |
are inconsistent with this Act.
|
Section 4. Service; notice by posting. |
(a) This Act does not limit or affect the method by which |
service of a complaint in a partition action may be made. |
(b) If the plaintiff in a partition action seeks an order |
of notice by publication and the court determines that the |
property may be heirs property, the plaintiff, not later than |
|
10 days after the court's determination, shall post and |
maintain while the action is pending a conspicuous sign on the |
property that is the subject of the action. The sign must state |
that the action has commenced and identify the name and address |
of the court and the common designation by which the property |
is known. The court may require the plaintiff to publish on the |
sign the name of the plaintiff and the known defendants.
|
Section 5. Commissioners. If the court appoints a |
commissioner pursuant to Article XVII of the Code of Civil |
Procedure, the commissioner, in addition to the requirements |
and disqualifications applicable to commissioners in Article |
XVII of the Code of Civil Procedure, must be disinterested and |
impartial and not a party to or a participant in the action.
|
Section 6. Determination of value. |
(a) Except as otherwise provided in subsections (b) and |
(c), if the court determines that the property that is the |
subject of a partition action is heirs property, the court |
shall determine the fair market value of the property by |
ordering an appraisal pursuant to subsection (d). |
(b) If all cotenants have agreed to the value of the |
property or to another method of valuation, the court shall |
adopt that value or the value produced by the agreed method of |
valuation. |
(c) If the court determines that the evidentiary value of |
|
an appraisal is outweighed by the cost of the appraisal, the |
court, after an evidentiary hearing, shall determine the fair |
market value of the property and shall order the plaintiff to |
send notice to the parties of the value. |
(d) If the court orders an appraisal, the court shall |
appoint a disinterested real estate appraiser licensed in this |
State to determine the fair market value of the property |
assuming sole ownership of the fee simple estate. On completion |
of the appraisal, the appraiser shall file a sworn or verified |
appraisal with the court. |
(e) If an appraisal is conducted pursuant to subsection |
(d), not later than 10 days after the appraisal is filed, the |
court shall order the plaintiff to send notice to each party |
with a known address, stating: |
(1) the appraised fair market value of the property; |
(2) that the appraisal is available at the clerk's |
office; and |
(3) that a party may file with the court an objection |
to the appraisal not later than 30 days after the notice is |
sent, stating the grounds for the objection. |
(f) If an appraisal is filed with the court pursuant to |
subsection (d), the court shall conduct a hearing to determine |
the fair market value of the property not sooner than 30 days |
after a copy of the notice of the appraisal is sent to each |
party under subsection (e), whether or not an objection to the |
appraisal is filed under subsection (e)(3). In addition to the |
|
court-ordered appraisal, the court may consider any other |
evidence of value offered by a party. |
(g) After a hearing under subsection (f), but before |
considering the merits of the partition action, the court shall |
determine the fair market value of the property and order the |
plaintiff to send notice to all of the parties of the value and |
a cotenant's buyout rights as provided in Section 7.
|
Section 7. Cotenant buyout. |
(a) If any cotenant requested partition by sale, after the |
determination of value under Section 6, the court shall order |
the plaintiff to send notice to the parties that any cotenant |
except a cotenant that requested partition by sale may buy all |
the interests of the cotenants that requested partition by |
sale. |
(b) Not later than 45 days after the notice is sent under |
subsection (a), any cotenant except a cotenant that requested |
partition by sale may give notice to the court that it elects |
to buy all the interests of the cotenants that requested |
partition by sale. |
(c) The purchase price for each of the interests of a |
cotenant that requested partition by sale is the value of the |
entire parcel determined under Section 6 multiplied by the |
cotenant's fractional ownership of the entire parcel. |
(d) After expiration of the period in subsection (b), the |
following rules apply: |
|
(1) If only one cotenant elects to buy all the |
interests of the cotenants that requested partition by |
sale, the court shall notify all the parties of that fact. |
(2) If more than one cotenant elects to buy all the |
interests of the cotenants that requested partition by |
sale, the court shall allocate the right to buy those |
interests among the electing cotenants based on each |
electing cotenant's existing fractional ownership of the |
entire parcel divided by the total existing fractional |
ownership of all cotenants electing to buy and send notice |
to all the parties of that fact and of the price to be paid |
by each electing cotenant. |
(3) If no cotenant elects to buy all the interests of |
the cotenants that requested partition by sale, the court |
shall order the plaintiff to send notice to all the parties |
of that fact and resolve the partition action under Section |
8(a) and (b). |
(e) If the court sends notice to the parties under |
subsection (d)(1) or (2), the court shall set a date, not |
sooner than 60 days after the date the notice was sent, by |
which electing cotenants must pay their apportioned price to |
the clerk of court or as otherwise ordered by the court. After |
this date, the following rules apply: |
(1) If all electing cotenants timely pay their |
apportioned price to the clerk of court or as otherwise |
ordered by the court, the court shall issue an order |
|
reallocating all the interests of the cotenants and |
disburse the amounts held to the persons entitled to them. |
(2) If no electing cotenant timely pays its apportioned |
price, the court shall resolve the partition action under |
Section 8(a) and (b) as if the interests of the cotenants |
that requested partition by sale were not purchased. |
(3) If one or more but not all of the electing |
cotenants fail to pay their apportioned price on time, the |
court, on motion, shall order the plaintiff to give notice |
to the electing cotenants that paid their apportioned price |
of the interest remaining and the price for all that |
interest. |
(f) Not later than 20 days after the court gives notice |
pursuant to subsection (e)(3), any cotenant that paid may elect |
to purchase all of the remaining interest by paying the entire |
price into the court. After the 20-day period, the following |
rules apply: |
(1) If only one cotenant pays the entire price for the |
remaining interest, the court shall issue an order |
reallocating the remaining interest to that cotenant. The |
court shall issue promptly an order reallocating the |
interests of all of the cotenants and disburse the amounts |
held to the persons entitled to them. |
(2) If no cotenant pays the entire price for the |
remaining interest, the court shall resolve the partition |
action under Section 8(a) and (b) as if the interests of |
|
the cotenants that requested partition by sale were not |
purchased. |
(3) If more than one cotenant pays the entire price for |
the remaining interest, the court shall reapportion the |
remaining interest among those paying cotenants, based on |
each paying cotenant's original fractional ownership of |
the entire parcel divided by the total original fractional |
ownership of all cotenants that paid the entire price for |
the remaining interest. The court shall issue promptly an |
order reallocating all of the cotenants' interests, |
disburse the amounts held to the persons entitled to them, |
and promptly refund any excess payment held by the clerk of |
court or as ordered by the court. |
(g) Not later than 45 days after notice is sent to the |
parties pursuant to subsection (a), any cotenant entitled to |
buy an interest under this section may request the court to |
authorize the sale as part of the pending action of the |
interests of cotenants named as defendants and served with the |
complaint but that did not appear in the action. |
(h) If the court receives a timely request under subsection |
(g), the court, after hearing, may deny the request or |
authorize the requested additional sale on such terms as the |
court determines are fair and reasonable, subject to the |
following limitations: |
(1) a sale authorized under this subsection may occur |
only after the purchase prices for all interests subject to |
|
sale under subsections (a) through (f) have been paid into |
court and those interests have been reallocated among the |
cotenants as provided in those subsections; and |
(2) the purchase price for the interest of a |
nonappearing cotenant is based on the court's |
determination of value under Section 6.
|
Section 8. Partition alternatives. |
(a) If all the interests of all cotenants that requested |
partition by sale are not purchased by other cotenants pursuant |
to Section 7, or if after conclusion of the buyout under |
Section 7, a cotenant remains that has requested partition in |
kind, the court shall order partition in kind unless the court, |
after consideration of the factors listed in Section 9, finds |
that partition in kind will result in manifest prejudice to the |
cotenants as a group. In considering whether to order partition |
in kind, the court shall approve a request by two or more |
parties to have their individual interests aggregated. |
(b) If the court does not order partition in kind under |
subsection (a), the court shall order partition by sale |
pursuant to Section 10 or, if no cotenant requested partition |
by sale, the court shall dismiss the action. |
(c) If the court orders partition in kind pursuant to |
subsection (a), the court may require that one or more |
cotenants pay one or more other cotenants amounts so that the |
payments, taken together with the value of the in-kind |
|
distributions to the cotenants, will make the partition in kind |
just and proportionate in value to the fractional interests |
held. |
(d) If the court orders partition in kind, the court shall |
allocate to the cotenants that are unknown, unlocatable, or the |
subject of a default judgment, if their interests were not |
bought out pursuant to Section 7, a part of the property |
representing the combined interests of those cotenants as |
determined by the court.
|
Section 9. Consideration for partition in kind. |
(a) In determining under Section 8(a) whether partition in |
kind would result in manifest prejudice to the cotenants as a |
group, the court shall consider the following: |
(1) whether the heirs property practicably can be |
divided among the cotenants; |
(2) whether partition in kind would apportion the |
property in such a way that the aggregate fair market value |
of the parcels resulting from the division would be |
materially less than the value of the property if it were |
sold as a whole, taking into account the condition under |
which a court-ordered sale likely would occur; |
(3) evidence of the collective duration of ownership or |
possession of the property by a cotenant and one or more |
predecessors in title or predecessors in possession to the |
cotenant who are or were relatives of the cotenant or each |
|
other; |
(4) a cotenant's sentimental attachment to the |
property, including any attachment arising because the |
property has ancestral or other unique or special value to |
the cotenant; |
(5) the lawful use being made of the property by a |
cotenant and the degree to which the cotenant would be |
harmed if the cotenant could not continue the same use of |
the property; |
(6) the degree to which the cotenants have contributed |
their pro rata share of the property taxes, insurance, and |
other expenses associated with maintaining ownership of |
the property or have contributed to the physical |
improvement, maintenance, or upkeep of the property; |
(7) the tax consequences; and |
(8) any other relevant factor. |
(b) The court may not consider any one factor in subsection |
(a) to be dispositive without weighing the totality of all |
relevant factors and circumstances.
|
Section 10. Open-market sale, sealed bids, or auction. |
(a) If the court orders a sale of heirs property, the sale |
must be an open-market sale unless the court finds that a sale |
by sealed bids or an auction would be more economically |
advantageous and in the best interest of the cotenants as a |
group. |
|
(b) If the court orders an open-market sale and the |
parties, not later than 10 days after the entry of the order, |
agree on a real estate broker licensed in this State to offer |
the property for sale, the court shall appoint the broker and |
establish a reasonable commission. If the parties do not agree |
on a broker, the court shall appoint a disinterested real |
estate broker licensed in this State to offer the property for |
sale and shall establish a reasonable commission. The broker |
shall offer the property for sale in a commercially reasonable |
manner at a price no lower than the determination of value and |
on the terms and conditions established by the court. |
(c) If the broker appointed under subsection (b) obtains |
within a reasonable time an offer to purchase the property for |
at least the determination of value: |
(1) the broker shall comply with the reporting |
requirements in Section 11; and |
(2) the sale may be completed in accordance with state |
law other than this Act. |
(d) If the broker appointed under subsection (b) does not |
obtain within a reasonable time an offer to purchase the |
property for at least the determination of value, the court, |
after hearing, may: |
(1) approve the highest outstanding offer, if any; |
(2) redetermine the value of the property and order |
that the property continue to be offered for an additional |
time; or |
|
(3) order that the property be sold by sealed bids or |
at an auction. |
(e) If the court orders a sale by sealed bids or an |
auction, the court shall set terms and conditions of the sale. |
If the court orders an auction, the auction must be conducted |
under Article XVII of the Code of Civil Procedure. |
(f) If a purchaser is entitled to a share of the proceeds |
of the sale, the purchaser is entitled to a credit against the |
price in an amount equal to the purchaser's share of the |
proceeds.
|
Section 11. Report of open-market sale. |
(a) Unless required to do so within a shorter time by |
Article XVII of the Code of Civil Procedure, a broker appointed |
under Section 10(b) to offer heirs property for open-market |
sale shall file a report with the court not later than seven |
days after receiving an offer to purchase the property for at |
least the value determined under Section 6 or 10. |
(b) The report required by subsection (a) must contain the |
following information: |
(1) a description of the property to be sold to each |
buyer; |
(2) the name of each buyer; |
(3) the proposed purchase price; |
(4) the terms and conditions of the proposed sale, |
including the terms of any owner financing; |
|
(5) the amounts to be paid to lienholders; |
(6) a statement of contractual or other arrangements or |
conditions of the broker's commission; and |
(7) other material facts relevant to the sale.
|
Section 12. Costs. In all proceedings for the partition of |
heirs property, the court shall apportion the costs of the |
proceedings, including a reasonable fee for the plaintiff's |
attorney, among the parties in interest in the action, as the |
court deems just and equitable. In determining the just and |
equitable apportionment of the costs and attorney's fees, the |
court may consider, among other things, the good faith attempt |
of the parties to agree prior to the initiation of the |
complaint. If any defendant interposes a good and substantial |
defense to the complaint, the party or parties making such |
substantial defense shall recover their costs against the |
plaintiff according to justice and equity.
|
Section 60. The Code of Civil Procedure is amended by |
changing Sections 17-101, 17-102, 17-105, and 17-106 as |
follows:
|
(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, other than in accordance with the Uniform Partition of |
|
Heirs Property Act, 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.
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(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 in |
accordance with the Uniform Partition of Heirs Property Act , 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 5/17-105) (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 and is not |
governed by the Uniform Partition of Heirs Property Act, 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, must 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.)
|
Section 99. Effective date. This Act takes effect upon |
becoming law.
|
