Public Act 101-0520
 
HB3677 EnrolledLRB101 08638 LNS 53722 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 1. Short title. This Act may be cited as the
Uniform Partition of Heirs Property Act.
 
    Section 2. Definitions. In this Act:
    (1) "Ascendant" means an individual who precedes another
individual in lineage, in the direct line of ascent from the
other individual.
    (2) "Collateral" means an individual who is related to
another individual under the law of intestate succession of
this State but who is not the other individual's ascendant or
descendant.
    (3) "Descendant" means an individual who follows another
individual in lineage, in the direct line of descent from the
other individual.
    (4) "Determination of value" means a court order
determining the fair market value of heirs property under
Section 6 or 10 or adopting the valuation of the property
agreed to by all cotenants.
    (5) "Heirs property" means real property held in tenancy in
common which satisfies all of the following requirements as of
the filing of a partition action:
        (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.
 
    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.
(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.