Illinois General Assembly - Full Text of SB1780
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Full Text of SB1780  101st General Assembly




State of Illinois
2019 and 2020


Introduced 2/15/2019, by Sen. Rachelle Crowe


New Act
735 ILCS 5/17-101  from Ch. 110, par. 17-101
735 ILCS 5/17-102  from Ch. 110, par. 17-102
735 ILCS 5/17-105  from Ch. 110, par. 17-105
735 ILCS 5/17-106  from Ch. 110, par. 17-106

    Creates the Uniform Partition of Heirs Property Act. Defines terms. Provides for: applicability; relation to other law; service; notice by posting; commissioners; determination of value; cotenant buyout; partition alternatives; considerations for partition in kind; open-market sale, sealed bids, or auction; and report of open-market sale. Makes conforming changes in the Code of Civil Procedure. Effective immediately.

LRB101 08639 LNS 53723 b





SB1780LRB101 08639 LNS 53723 b

1    AN ACT concerning civil law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the
5Uniform Partition of Heirs Property Act.
6    Section 2. Definitions. In this Act:
7    (1) "Ascendant" means an individual who precedes another
8individual in lineage, in the direct line of ascent from the
9other individual.
10    (2) "Collateral" means an individual who is related to
11another individual under the law of intestate succession of
12this State but who is not the other individual's ascendant or
14    (3) "Descendant" means an individual who follows another
15individual in lineage, in the direct line of descent from the
16other individual.
17    (4) "Determination of value" means a court order
18determining the fair market value of heirs property under
19Section 6 or 10 or adopting the valuation of the property
20agreed to by all cotenants.
21    (5) "Heirs property" means real property held in tenancy in
22common which satisfies all of the following requirements as of
23the filing of a partition action:



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1        (A) there is no agreement in a record binding all the
2    cotenants which governs the partition of the property;
3        (B) one or more of the cotenants acquired title from a
4    relative, whether living or deceased; and
5        (C) Any of the following applies:
6            (i) 20 percent or more of the interests are held by
7        cotenants who are relatives;
8            (ii) 20 percent or more of the interests are held
9        by an individual who acquired title from a relative,
10        whether living or deceased; or
11            (iii) 20 percent or more of the cotenants are
12        relatives.
13    (6) "Partition by sale" means a court-ordered sale of the
14entire heirs property, whether by auction, sealed bids, or
15open-market sale conducted under Section 10.
16    (7) "Partition in kind" means the division of heirs
17property into physically distinct and separately titled
19    (8) "Record" means information that is inscribed on a
20tangible medium or that is stored in an electronic or other
21medium and is retrievable in perceivable form.
22    (9) "Relative" means an ascendant, descendant, or
23collateral or an individual otherwise related to another
24individual by blood, marriage, adoption, or law of this State
25other than this Act.



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1    Section 3. Applicability; relation to other law.
2    (a) This Act applies to partition actions filed on or after
3the effective date of this Act.
4    (b) In an action to partition real property under Article
5XVII of the Code of Civil Procedure the court shall determine
6whether the property is heirs property. If the court determines
7that the property is heirs property, the property must be
8partitioned under this Act unless all of the cotenants
9otherwise agree in a record.
10    (c) This Act supplements Article XVII of the Code of Civil
11Procedure and, if an action is governed by this Act, replaces
12provisions of Article XVII of the Code of Civil Procedure that
13are inconsistent with this Act.
14    Section 4. Service; notice by posting.
15    (a) This Act does not limit or affect the method by which
16service of a complaint in a partition action may be made.
17    (b) If the plaintiff in a partition action seeks an order
18of notice by publication and the court determines that the
19property may be heirs property, the plaintiff, not later than
2010 days after the court's determination, shall post and
21maintain while the action is pending a conspicuous sign on the
22property that is the subject of the action. The sign must state
23that the action has commenced and identify the name and address
24of the court and the common designation by which the property
25is known. The court may require the plaintiff to publish on the



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1sign the name of the plaintiff and the known defendants.
2    Section 5. Commissioners. If the court appoints
3commissioners pursuant to Article XVII of the Code of Civil
4Procedure, each commissioner, in addition to the requirements
5and disqualifications applicable to commissioners in Article
6XVII of the Code of Civil Procedure, must be disinterested and
7impartial and not a party to or a participant in the action.
8    Section 6. Determination of value.
9    (a) Except as otherwise provided in subsections (b) and
10(c), if the court determines that the property that is the
11subject of a partition action is heirs property, the court
12shall determine the fair market value of the property by
13ordering an appraisal pursuant to subsection (d).
14    (b) If all cotenants have agreed to the value of the
15property or to another method of valuation, the court shall
16adopt that value or the value produced by the agreed method of
18    (c) If the court determines that the evidentiary value of
19an appraisal is outweighed by the cost of the appraisal, the
20court, after an evidentiary hearing, shall determine the fair
21market value of the property and send notice to the parties of
22the value.
23    (d) If the court orders an appraisal, the court shall
24appoint a disinterested real estate appraiser licensed in this



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1State to determine the fair market value of the property
2assuming sole ownership of the fee simple estate. On completion
3of the appraisal, the appraiser shall file a sworn or verified
4appraisal with the court.
5    (e) If an appraisal is conducted pursuant to subsection
6(d), not later than 10 days after the appraisal is filed, the
7court shall send notice to each party with a known address,
9        (1) the appraised fair market value of the property;
10        (2) that the appraisal is available at the clerk's
11    office; and
12        (3) that a party may file with the court an objection
13    to the appraisal not later than 30 days after the notice is
14    sent, stating the grounds for the objection.
15    (f) If an appraisal is filed with the court pursuant to
16subsection (d), the court shall conduct a hearing to determine
17the fair market value of the property not sooner than 30 days
18after a copy of the notice of the appraisal is sent to each
19party under subsection (e), whether or not an objection to the
20appraisal is filed under subsection (e)(3). In addition to the
21court-ordered appraisal, the court may consider any other
22evidence of value offered by a party.
23    (g) After a hearing under subsection (f), but before
24considering the merits of the partition action, the court shall
25determine the fair market value of the property and send notice
26to the parties of the value.



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1    Section 7. Cotenant buyout.
2    (a) If any cotenant requested partition by sale, after the
3determination of value under Section 6, the court shall send
4notice to the parties that any cotenant except a cotenant that
5requested partition by sale may buy all the interests of the
6cotenants that requested partition by sale.    (b) Not later
7than 45 days after the notice is sent under subsection (a), any
8cotenant except a cotenant that requested partition by sale may
9give notice to the court that it elects to buy all the
10interests of the cotenants that requested partition by sale.
11    (c) The purchase price for each of the interests of a
12cotenant that requested partition by sale is the value of the
13entire parcel determined under Section 6 multiplied by the
14cotenant's fractional ownership of the entire parcel.
15    (d) After expiration of the period in subsection (b), the
16following rules apply:
17        (1) If only one cotenant elects to buy all the
18    interests of the cotenants that requested partition by
19    sale, the court shall notify all the parties of that fact.
20        (2) If more than one cotenant elects to buy all the
21    interests of the cotenants that requested partition by
22    sale, the court shall allocate the right to buy those
23    interests among the electing cotenants based on each
24    electing cotenant's existing fractional ownership of the
25    entire parcel divided by the total existing fractional



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1    ownership of all cotenants electing to buy and send notice
2    to all the parties of that fact and of the price to be paid
3    by each electing cotenant.
4        (3) If no cotenant elects to buy all the interests of
5    the cotenants that requested partition by sale, the court
6    shall send notice to all the parties of that fact and
7    resolve the partition action under Section 8(a) and (b).
8    (e) If the court sends notice to the parties under
9subsection (d)(1) or (2), the court shall set a date, not
10sooner than 60 days after the date the notice was sent, by
11which electing cotenants must pay their apportioned price into
12the court. After this date, the following rules apply:
13        (1) If all electing cotenants timely pay their
14    apportioned price into court, the court shall issue an
15    order reallocating all the interests of the cotenants and
16    disburse the amounts held by the court to the persons
17    entitled to them.
18        (2) If no electing cotenant timely pays its apportioned
19    price, the court shall resolve the partition action under
20    Section 8(a) and (b) as if the interests of the cotenants
21    that requested partition by sale were not purchased.
22        (3) If one or more but not all of the electing
23    cotenants fail to pay their apportioned price on time, the
24    court, on motion, shall give notice to the electing
25    cotenants that paid their apportioned price of the interest
26    remaining and the price for all that interest.



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1    (f) Not later than 20 days after the court gives notice
2pursuant to subsection (e)(3), any cotenant that paid may elect
3to purchase all of the remaining interest by paying the entire
4price into the court. After the 20-day period, the following
5rules apply:
6        (1) If only one cotenant pays the entire price for the
7    remaining interest, the court shall issue an order
8    reallocating the remaining interest to that cotenant. The
9    court shall issue promptly an order reallocating the
10    interests of all of the cotenants and disburse the amounts
11    held by it to the persons entitled to them.
12        (2) If no cotenant pays the entire price for the
13    remaining interest, the court shall resolve the partition
14    action under Section 8(a) and (b) as if the interests of
15    the cotenants that requested partition by sale were not
16    purchased.
17        (3) If more than one cotenant pays the entire price for
18    the remaining interest, the court shall reapportion the
19    remaining interest among those paying cotenants, based on
20    each paying cotenant's original fractional ownership of
21    the entire parcel divided by the total original fractional
22    ownership of all cotenants that paid the entire price for
23    the remaining interest. The court shall issue promptly an
24    order reallocating all of the cotenants' interests,
25    disburse the amounts held by it to the persons entitled to
26    them, and promptly refund any excess payment held by the



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1    court.
2    (g) Not later than 45 days after the court sends notice to
3the parties pursuant to subsection (a), any cotenant entitled
4to buy an interest under this section may request the court to
5authorize the sale as part of the pending action of the
6interests of cotenants named as defendants and served with the
7complaint but that did not appear in the action.
8    (h) If the court receives a timely request under subsection
9(g), the court, after hearing, may deny the request or
10authorize the requested additional sale on such terms as the
11court determines are fair and reasonable, subject to the
12following limitations:
13        (1) a sale authorized under this subsection may occur
14    only after the purchase prices for all interests subject to
15    sale under subsections (a) through (f) have been paid into
16    court and those interests have been reallocated among the
17    cotenants as provided in those subsections; and
18        (2) the purchase price for the interest of a
19    nonappearing cotenant is based on the court's
20    determination of value under Section 6.
21    Section 8. Partition alternatives.
22    (a) If all the interests of all cotenants that requested
23partition by sale are not purchased by other cotenants pursuant
24to Section 7, or if after conclusion of the buyout under
25Section 7, a cotenant remains that has requested partition in



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1kind, the court shall order partition in kind unless the court,
2after consideration of the factors listed in Section 9, finds
3that partition in kind will result in manifest prejudice to the
4cotenants as a group. In considering whether to order partition
5in kind, the court shall approve a request by two or more
6parties to have their individual interests aggregated.
7    (b) If the court does not order partition in kind under
8subsection (a), the court shall order partition by sale
9pursuant to Section 10 or, if no cotenant requested partition
10by sale, the court shall dismiss the action.
11    (c) If the court orders partition in kind pursuant to
12subsection (a), the court may require that one or more
13cotenants pay one or more other cotenants amounts so that the
14payments, taken together with the value of the in-kind
15distributions to the cotenants, will make the partition in kind
16just and proportionate in value to the fractional interests
18    Section 9. Consideration for partition in kind.
19    (a) In determining under Section 8(a) whether partition in
20kind would result in manifest prejudice to the cotenants as a
21group, the court shall consider the following:
22        (1) whether the heirs property practicably can be
23    divided among the cotenants;
24        (2) whether partition in kind would apportion the
25    property in such a way that the aggregate fair market value



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1    of the parcels resulting from the division would be
2    materially less than the value of the property if it were
3    sold as a whole, taking into account the condition under
4    which a court-ordered sale likely would occur;
5        (3) evidence of the collective duration of ownership or
6    possession of the property by a cotenant and one or more
7    predecessors in title or predecessors in possession to the
8    cotenant who are or were relatives of the cotenant or each
9    other;
10        (4) a cotenant's sentimental attachment to the
11    property, including any attachment arising because the
12    property has ancestral or other unique or special value to
13    the cotenant;
14        (5) the lawful use being made of the property by a
15    cotenant and the degree to which the cotenant would be
16    harmed if the cotenant could not continue the same use of
17    the property;
18        (6) the degree to which the cotenants have contributed
19    their pro rata share of the property taxes, insurance, and
20    other expenses associated with maintaining ownership of
21    the property or have contributed to the physical
22    improvement, maintenance, or upkeep of the property; and
23        (7) any other relevant factor.
24    (b) The court may not consider any one factor in subsection
25(a) to be dispositive without weighing the totality of all
26relevant factors and circumstances.



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1    Section 10. Open-market sale, sealed bids, or auction.
2    (a) If the court orders a sale of heirs property, the sale
3must be an open-market sale unless the court finds that a sale
4by sealed bids or an auction would be more economically
5advantageous and in the best interest of the cotenants as a
7    (b) If the court orders an open-market sale and the
8parties, not later than 10 days after the entry of the order,
9agree on a real estate broker licensed in this State to offer
10the property for sale, the court shall appoint the broker and
11establish a reasonable commission. If the parties do not agree
12on a broker, the court shall appoint a disinterested real
13estate broker licensed in this State to offer the property for
14sale and shall establish a reasonable commission. The broker
15shall offer the property for sale in a commercially reasonable
16manner at a price no lower than the determination of value and
17on the terms and conditions established by the court.
18    (c) If the broker appointed under subsection (b) obtains
19within a reasonable time an offer to purchase the property for
20at least the determination of value:
21        (1) the broker shall comply with the reporting
22    requirements in Section 11; and
23        (2) the sale may be completed in accordance with state
24    law other than this Act.
25    (d) If the broker appointed under subsection (b) does not



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1obtain within a reasonable time an offer to purchase the
2property for at least the determination of value, the court,
3after hearing, may:
4        (1) approve the highest outstanding offer, if any;
5        (2) redetermine the value of the property and order
6    that the property continue to be offered for an additional
7    time; or
8        (3) order that the property be sold by sealed bids or
9    at an auction.
10    (e) If the court orders a sale by sealed bids or an
11auction, the court shall set terms and conditions of the sale.
12If the court orders an auction, the auction must be conducted
13under Article XVII of the Code of Civil Procedure.
14    (f) If a purchaser is entitled to a share of the proceeds
15of the sale, the purchaser is entitled to a credit against the
16price in an amount equal to the purchaser's share of the
18    Section 11. Report of open-market sale.
19    (a) Unless required to do so within a shorter time by
20Article XVII of the Code of Civil Procedure, a broker appointed
21under Section 10(b) to offer heirs property for open-market
22sale shall file a report with the court not later than seven
23days after receiving an offer to purchase the property for at
24least the value determined under Section 6 or 10.
25    (b) The report required by subsection (a) must contain the



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1following information:
2        (1) a description of the property to be sold to each
3    buyer;
4        (2) the name of each buyer;
5        (3) the proposed purchase price;
6        (4) the terms and conditions of the proposed sale,
7    including the terms of any owner financing;
8        (5) the amounts to be paid to lienholders;
9        (6) a statement of contractual or other arrangements or
10    conditions of the broker's commission; and
11        (7) other material facts relevant to the sale.
12    Section 700. The Code of Civil Procedure is amended by
13changing Sections 17-101, 17-102, 17-105, and 17-106 as
15    (735 ILCS 5/17-101)  (from Ch. 110, par. 17-101)
16    Sec. 17-101. Compelling partition. When lands, tenements,
17or hereditaments are held in joint tenancy or tenancy in
18common, other than in accordance with the Uniform Partition of
19Heirs Property Act, or other form of co-ownership and
20regardless of whether any or all of the claimants are minors or
21adults, any one or more of the persons interested therein may
22compel a partition thereof by a verified complaint in the
23circuit court of the county where the premises or part of the
24premises are situated. If lands, tenements or hereditaments



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1held in joint tenancy or tenancy in common are situated in 2 or
2more counties, the venue may be in any one of such counties,
3and the circuit court of any such county first acquiring
4jurisdiction shall retain sole and exclusive jurisdiction.
5Ownership of an interest in the surface of lands, tenements, or
6hereditaments by a co-owner of an interest in minerals
7underlying the surface does not prevent partition of the
8mineral estate. This amendatory Act of the 92nd General
9Assembly is a declaration of existing law and is intended to
10remove any possible conflicts or ambiguities, thereby
11confirming existing law pertinent to the partition of interests
12in minerals and applies to all actions for the partition of
13minerals now pending or filed on or after the effective date of
14this amendatory Act of the 92nd General Assembly. Nothing in
15this amendatory Act of the 92nd General Assembly shall be
16construed as allowing an owner of a mineral interest in coal to
17mine and remove the coal by the surface method of mining
18without first obtaining the consent of all of the owners of the
19surface to the mining and removal of coal by the surface method
20of mining. Ownership of an interest in minerals by a co-owner
21of an interest in the surface does not prevent partition of the
22surface. The ownership of an interest in some, but not all, of
23the mineral estate by a co-owner of an interest in other
24minerals does not prevent the partition of the co-owned mineral
26(Source: P.A. 92-379, eff. 8-16-01; 93-925, eff. 8-12-04.)



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1    (735 ILCS 5/17-102)  (from Ch. 110, par. 17-102)
2    Sec. 17-102. Complaint. The verified complaint shall
3particularly describe the premises sought to be divided, and
4shall set forth the interests of all parties interested
5therein, so far as the same are known to the plaintiffs,
6including tenants for years or for life, and of all persons
7entitled to the reversion, remainder or inheritance, and of
8every person who, upon any contingency, may be or become
9entitled to any beneficial interest in the premises, so far as
10the same are known to the plaintiffs, and shall ask for the
11division and partition of the premises according to the
12respective rights of the parties interested therein, or, in
13accordance with the Uniform Partition of Heirs Property Act if
14a division and partition of the same cannot be made without
15manifest prejudice to the owners, that a sale thereof be made
16and the proceeds divided according to the respective rights of
17the parties.
18(Source: P.A. 82-280.)
19    (735 ILCS 5/17-105)  (from Ch. 110, par. 17-105)
20    Sec. 17-105. Judgment. The court shall ascertain and
21declare the rights, titles and interest of all the parties in
22such action, the plaintiffs as well as the defendants, and
23shall enter judgment according to the rights of the parties.
24After entry of judgment adjudicating the rights, titles, and



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1interests of the parties, the court upon further hearing shall
2determine whether or not the premises or any part thereof can
3be divided among the parties without manifest prejudice to the
4parties in interest. If the court finds that a division can be
5made, then the court shall enter further judgment fairly and
6impartially dividing the premises among the parties with or
7without owelty. If the court finds that the whole or any part
8of the premises sought to be partitioned cannot be divided
9without manifest prejudice to the owners thereof and is not
10governed by the Uniform Partition of Heirs Property Act, then
11the court shall order the premises not susceptible of division
12to be sold at public sale in such manner and upon such terms
13and notice of sale as the court directs. If the court orders
14the sale of the premises or any part thereof, the court shall
15fix the value of the premises to be sold. No sale may be
16approved for less than two-thirds of the total amount of the
17valuation of the premises to be sold. If it appears to the
18court that any of the premises will not sell for two-thirds of
19the amount of the valuation thereof, the court upon further
20hearing may either revalue the premise and approve the sale or
21order a new sale.
22(Source: P.A. 93-925, eff. 8-12-04.)
23    (735 ILCS 5/17-106)  (from Ch. 110, par. 17-106)
24    Sec. 17-106. Appointment of commissioner and surveyor. The
25court in its discretion, sua sponte, or on the motion of any



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1interested party, must may appoint a disinterested
2commissioner who, subject to direction by the court, shall
3report to the court in writing under oath as to whether or not
4the premises are subject to division without manifest prejudice
5to the rights of the parties and, if so, report how the
6division may be made. The court may authorize the employment of
7a surveyor to carry out or assist in the division of the
8premises. The fees and expenses of the commissioner and of the
9surveyor and the person making the sale shall be taxed as costs
10in the proceedings.
11(Source: P.A. 93-925, eff. 8-12-04.)
12    Section 999. Effective date. This Act takes effect upon
13becoming law.