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.