Illinois General Assembly - Full Text of HB3677
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Full Text of HB3677  101st General Assembly




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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 or, if a cotenant is an entity, from a relative of
5    a beneficiary, shareholder, partner, or member of the
6    entity, whether such relative is living or deceased; and
7        (C) Any of the following applies:
8            (i) 20 percent or more of the interests are held by
9        cotenants who are relatives;
10            (ii) 20 percent or more of the interests are held
11        by a cotenant who acquired title from a relative,
12        whether living or deceased; or
13            (iii) 20 percent or more of the cotenants are
14        relatives.
15    (6) "Fair market value" means the cash price at which the
16heirs property would change hands between a willing buyer and a
17willing seller, neither being under any compulsion to buy or
18sell and both having reasonable knowledge of the relevant
20    (7) "Partition by sale" means a court-ordered sale of all
21or a portion of the heirs property conducted under Section 10.
22    (8) "Partition in kind" means the division of heirs
23property into physically distinct and separately titled
25    (9) "Record" means information that is inscribed on a
26tangible medium or that is stored in an electronic or other



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1medium and is retrievable in perceivable form.
2    (10) "Relative" means an ascendant, descendant, or
3collateral or an individual otherwise related to another
4individual by blood, marriage, adoption, or law of this State
5other than this Act.
6    Section 3. Applicability; relation to other law.
7    (a) This Act applies to partition actions filed on or after
8the effective date of this Act.
9    (b) In an action to partition real property under Article
10XVII of the Code of Civil Procedure the court shall determine
11whether the property is heirs property. If the court determines
12that the property is heirs property, the property must be
13partitioned under this Act unless all of the cotenants
14otherwise agree in a record.
15    (c) This Act supplements Article XVII of the Code of Civil
16Procedure and, if an action is governed by this Act, replaces
17provisions of Article XVII of the Code of Civil Procedure that
18are inconsistent with this Act.
19    Section 4. Service; notice by posting.
20    (a) This Act does not limit or affect the method by which
21service of a complaint in a partition action may be made.
22    (b) If the plaintiff in a partition action seeks an order
23of notice by publication and the court determines that the
24property may be heirs property, the plaintiff, not later than



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110 days after the court's determination, shall post and
2maintain while the action is pending a conspicuous sign on the
3property that is the subject of the action. The sign must state
4that the action has commenced and identify the name and address
5of the court and the common designation by which the property
6is known. The court may require the plaintiff to publish on the
7sign the name of the plaintiff and the known defendants.
8    Section 5. Commissioners. If the court appoints a
9commissioner pursuant to Article XVII of the Code of Civil
10Procedure, the commissioner, in addition to the requirements
11and disqualifications applicable to commissioners in Article
12XVII of the Code of Civil Procedure, must be disinterested and
13impartial and not a party to or a participant in the action.
14    Section 6. Determination of value.
15    (a) Except as otherwise provided in subsections (b) and
16(c), if the court determines that the property that is the
17subject of a partition action is heirs property, the court
18shall determine the fair market value of the property by
19ordering an appraisal pursuant to subsection (d).
20    (b) If all cotenants have agreed to the value of the
21property or to another method of valuation, the court shall
22adopt that value or the value produced by the agreed method of
24    (c) If the court determines that the evidentiary value of



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1an appraisal is outweighed by the cost of the appraisal, the
2court, after an evidentiary hearing, shall determine the fair
3market value of the property and shall order the plaintiff to
4send notice to the parties of the value.
5    (d) If the court orders an appraisal, the court shall
6appoint a disinterested real estate appraiser licensed in this
7State to determine the fair market value of the property
8assuming sole ownership of the fee simple estate. On completion
9of the appraisal, the appraiser shall file a sworn or verified
10appraisal with the court.
11    (e) If an appraisal is conducted pursuant to subsection
12(d), not later than 10 days after the appraisal is filed, the
13court shall order the plaintiff to send notice to each party
14with a known address, stating:
15        (1) the appraised fair market value of the property;
16        (2) that the appraisal is available at the clerk's
17    office; and
18        (3) that a party may file with the court an objection
19    to the appraisal not later than 30 days after the notice is
20    sent, stating the grounds for the objection.
21    (f) If an appraisal is filed with the court pursuant to
22subsection (d), the court shall conduct a hearing to determine
23the fair market value of the property not sooner than 30 days
24after a copy of the notice of the appraisal is sent to each
25party under subsection (e), whether or not an objection to the
26appraisal is filed under subsection (e)(3). In addition to the



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1court-ordered appraisal, the court may consider any other
2evidence of value offered by a party.
3    (g) After a hearing under subsection (f), but before
4considering the merits of the partition action, the court shall
5determine the fair market value of the property and order the
6plaintiff to send notice to all of the parties of the value and
7a cotenant's buyout rights as provided in Section 7.
8    Section 7. Cotenant buyout.
9    (a) If any cotenant requested partition by sale, after the
10determination of value under Section 6, the court shall order
11the plaintiff to send notice to the parties that any cotenant
12except a cotenant that requested partition by sale may buy all
13the interests of the cotenants that requested partition by
15    (b) Not later than 45 days after the notice is sent under
16subsection (a), any cotenant except a cotenant that requested
17partition by sale may give notice to the court that it elects
18to buy all the interests of the cotenants that requested
19partition by sale.
20    (c) The purchase price for each of the interests of a
21cotenant that requested partition by sale is the value of the
22entire parcel determined under Section 6 multiplied by the
23cotenant's fractional ownership of the entire parcel.
24    (d) After expiration of the period in subsection (b), the
25following rules apply:



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1        (1) If only one cotenant elects to buy all the
2    interests of the cotenants that requested partition by
3    sale, the court shall notify all the parties of that fact.
4        (2) If more than one cotenant elects to buy all the
5    interests of the cotenants that requested partition by
6    sale, the court shall allocate the right to buy those
7    interests among the electing cotenants based on each
8    electing cotenant's existing fractional ownership of the
9    entire parcel divided by the total existing fractional
10    ownership of all cotenants electing to buy and send notice
11    to all the parties of that fact and of the price to be paid
12    by each electing cotenant.
13        (3) If no cotenant elects to buy all the interests of
14    the cotenants that requested partition by sale, the court
15    shall order the plaintiff to send notice to all the parties
16    of that fact and resolve the partition action under Section
17    8(a) and (b).
18    (e) If the court sends notice to the parties under
19subsection (d)(1) or (2), the court shall set a date, not
20sooner than 60 days after the date the notice was sent, by
21which electing cotenants must pay their apportioned price to
22the clerk of court or as otherwise ordered by the court. After
23this date, the following rules apply:
24        (1) If all electing cotenants timely pay their
25    apportioned price to the clerk of court or as otherwise
26    ordered by the court, the court shall issue an order



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1    reallocating all the interests of the cotenants and
2    disburse the amounts held to the persons entitled to them.
3        (2) If no electing cotenant timely pays its apportioned
4    price, the court shall resolve the partition action under
5    Section 8(a) and (b) as if the interests of the cotenants
6    that requested partition by sale were not purchased.
7        (3) If one or more but not all of the electing
8    cotenants fail to pay their apportioned price on time, the
9    court, on motion, shall order the plaintiff to give notice
10    to the electing cotenants that paid their apportioned price
11    of the interest remaining and the price for all that
12    interest.
13    (f) Not later than 20 days after the court gives notice
14pursuant to subsection (e)(3), any cotenant that paid may elect
15to purchase all of the remaining interest by paying the entire
16price into the court. After the 20-day period, the following
17rules apply:
18        (1) If only one cotenant pays the entire price for the
19    remaining interest, the court shall issue an order
20    reallocating the remaining interest to that cotenant. The
21    court shall issue promptly an order reallocating the
22    interests of all of the cotenants and disburse the amounts
23    held to the persons entitled to them.
24        (2) If no cotenant pays the entire price for the
25    remaining interest, the court shall resolve the partition
26    action under Section 8(a) and (b) as if the interests of



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1    the cotenants that requested partition by sale were not
2    purchased.
3        (3) If more than one cotenant pays the entire price for
4    the remaining interest, the court shall reapportion the
5    remaining interest among those paying cotenants, based on
6    each paying cotenant's original fractional ownership of
7    the entire parcel divided by the total original fractional
8    ownership of all cotenants that paid the entire price for
9    the remaining interest. The court shall issue promptly an
10    order reallocating all of the cotenants' interests,
11    disburse the amounts held to the persons entitled to them,
12    and promptly refund any excess payment held by the clerk of
13    court or as ordered by the court.
14    (g) Not later than 45 days after notice is sent to the
15parties pursuant to subsection (a), any cotenant entitled to
16buy an interest under this section may request the court to
17authorize the sale as part of the pending action of the
18interests of cotenants named as defendants and served with the
19complaint but that did not appear in the action.
20    (h) If the court receives a timely request under subsection
21(g), the court, after hearing, may deny the request or
22authorize the requested additional sale on such terms as the
23court determines are fair and reasonable, subject to the
24following limitations:
25        (1) a sale authorized under this subsection may occur
26    only after the purchase prices for all interests subject to



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1    sale under subsections (a) through (f) have been paid into
2    court and those interests have been reallocated among the
3    cotenants as provided in those subsections; and
4        (2) the purchase price for the interest of a
5    nonappearing cotenant is based on the court's
6    determination of value under Section 6.
7    Section 8. Partition alternatives.
8    (a) If all the interests of all cotenants that requested
9partition by sale are not purchased by other cotenants pursuant
10to Section 7, or if after conclusion of the buyout under
11Section 7, a cotenant remains that has requested partition in
12kind, the court shall order partition in kind unless the court,
13after consideration of the factors listed in Section 9, finds
14that partition in kind will result in manifest prejudice to the
15cotenants as a group. In considering whether to order partition
16in kind, the court shall approve a request by two or more
17parties to have their individual interests aggregated.
18    (b) If the court does not order partition in kind under
19subsection (a), the court shall order partition by sale
20pursuant to Section 10 or, if no cotenant requested partition
21by sale, the court shall dismiss the action.
22    (c) If the court orders partition in kind pursuant to
23subsection (a), the court may require that one or more
24cotenants pay one or more other cotenants amounts so that the
25payments, taken together with the value of the in-kind



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1distributions to the cotenants, will make the partition in kind
2just and proportionate in value to the fractional interests
4    (d) If the court orders partition in kind, the court shall
5allocate to the cotenants that are unknown, unlocatable, or the
6subject of a default judgment, if their interests were not
7bought out pursuant to Section 7, a part of the property
8representing the combined interests of those cotenants as
9determined by the court.
10    Section 9. Consideration for partition in kind.
11    (a) In determining under Section 8(a) whether partition in
12kind would result in manifest prejudice to the cotenants as a
13group, the court shall consider the following:
14        (1) whether the heirs property practicably can be
15    divided among the cotenants;
16        (2) whether partition in kind would apportion the
17    property in such a way that the aggregate fair market value
18    of the parcels resulting from the division would be
19    materially less than the value of the property if it were
20    sold as a whole, taking into account the condition under
21    which a court-ordered sale likely would occur;
22        (3) evidence of the collective duration of ownership or
23    possession of the property by a cotenant and one or more
24    predecessors in title or predecessors in possession to the
25    cotenant who are or were relatives of the cotenant or each



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1    other;
2        (4) a cotenant's sentimental attachment to the
3    property, including any attachment arising because the
4    property has ancestral or other unique or special value to
5    the cotenant;
6        (5) the lawful use being made of the property by a
7    cotenant and the degree to which the cotenant would be
8    harmed if the cotenant could not continue the same use of
9    the property;
10        (6) the degree to which the cotenants have contributed
11    their pro rata share of the property taxes, insurance, and
12    other expenses associated with maintaining ownership of
13    the property or have contributed to the physical
14    improvement, maintenance, or upkeep of the property;
15        (7) the tax consequences; and
16        (8) any other relevant factor.
17    (b) The court may not consider any one factor in subsection
18(a) to be dispositive without weighing the totality of all
19relevant factors and circumstances.
20    Section 10. Open-market sale, sealed bids, or auction.
21    (a) If the court orders a sale of heirs property, the sale
22must be an open-market sale unless the court finds that a sale
23by sealed bids or an auction would be more economically
24advantageous and in the best interest of the cotenants as a



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1    (b) If the court orders an open-market sale and the
2parties, not later than 10 days after the entry of the order,
3agree on a real estate broker licensed in this State to offer
4the property for sale, the court shall appoint the broker and
5establish a reasonable commission. If the parties do not agree
6on a broker, the court shall appoint a disinterested real
7estate broker licensed in this State to offer the property for
8sale and shall establish a reasonable commission. The broker
9shall offer the property for sale in a commercially reasonable
10manner at a price no lower than the determination of value and
11on the terms and conditions established by the court.
12    (c) If the broker appointed under subsection (b) obtains
13within a reasonable time an offer to purchase the property for
14at least the determination of value:
15        (1) the broker shall comply with the reporting
16    requirements in Section 11; and
17        (2) the sale may be completed in accordance with state
18    law other than this Act.
19    (d) If the broker appointed under subsection (b) does not
20obtain within a reasonable time an offer to purchase the
21property for at least the determination of value, the court,
22after hearing, may:
23        (1) approve the highest outstanding offer, if any;
24        (2) redetermine the value of the property and order
25    that the property continue to be offered for an additional
26    time; or



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1        (3) order that the property be sold by sealed bids or
2    at an auction.
3    (e) If the court orders a sale by sealed bids or an
4auction, the court shall set terms and conditions of the sale.
5If the court orders an auction, the auction must be conducted
6under Article XVII of the Code of Civil Procedure.
7    (f) If a purchaser is entitled to a share of the proceeds
8of the sale, the purchaser is entitled to a credit against the
9price in an amount equal to the purchaser's share of the
11    Section 11. Report of open-market sale.
12    (a) Unless required to do so within a shorter time by
13Article XVII of the Code of Civil Procedure, a broker appointed
14under Section 10(b) to offer heirs property for open-market
15sale shall file a report with the court not later than seven
16days after receiving an offer to purchase the property for at
17least the value determined under Section 6 or 10.
18    (b) The report required by subsection (a) must contain the
19following information:
20        (1) a description of the property to be sold to each
21    buyer;
22        (2) the name of each buyer;
23        (3) the proposed purchase price;
24        (4) the terms and conditions of the proposed sale,
25    including the terms of any owner financing;



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1        (5) the amounts to be paid to lienholders;
2        (6) a statement of contractual or other arrangements or
3    conditions of the broker's commission; and
4        (7) other material facts relevant to the sale.
5    Section 12. Costs. In all proceedings for the partition of
6heirs property, the court shall apportion the costs of the
7proceedings, including a reasonable fee for the plaintiff's
8attorney, among the parties in interest in the action, as the
9court deems just and equitable. In determining the just and
10equitable apportionment of the costs and attorney's fees, the
11court may consider, among other things, the good faith attempt
12of the parties to agree prior to the initiation of the
13complaint. If any defendant interposes a good and substantial
14defense to the complaint, the party or parties making such
15substantial defense shall recover their costs against the
16plaintiff according to justice and equity.
17    Section 60. The Code of Civil Procedure is amended by
18changing Sections 17-101, 17-102, 17-105, and 17-106 as
20    (735 ILCS 5/17-101)  (from Ch. 110, par. 17-101)
21    Sec. 17-101. Compelling partition. When lands, tenements,
22or hereditaments are held in joint tenancy or tenancy in
23common, other than in accordance with the Uniform Partition of



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1Heirs Property Act, or other form of co-ownership and
2regardless of whether any or all of the claimants are minors or
3adults, any one or more of the persons interested therein may
4compel a partition thereof by a verified complaint in the
5circuit court of the county where the premises or part of the
6premises are situated. If lands, tenements or hereditaments
7held in joint tenancy or tenancy in common are situated in 2 or
8more counties, the venue may be in any one of such counties,
9and the circuit court of any such county first acquiring
10jurisdiction shall retain sole and exclusive jurisdiction.
11Ownership of an interest in the surface of lands, tenements, or
12hereditaments by a co-owner of an interest in minerals
13underlying the surface does not prevent partition of the
14mineral estate. This amendatory Act of the 92nd General
15Assembly is a declaration of existing law and is intended to
16remove any possible conflicts or ambiguities, thereby
17confirming existing law pertinent to the partition of interests
18in minerals and applies to all actions for the partition of
19minerals now pending or filed on or after the effective date of
20this amendatory Act of the 92nd General Assembly. Nothing in
21this amendatory Act of the 92nd General Assembly shall be
22construed as allowing an owner of a mineral interest in coal to
23mine and remove the coal by the surface method of mining
24without first obtaining the consent of all of the owners of the
25surface to the mining and removal of coal by the surface method
26of mining. Ownership of an interest in minerals by a co-owner



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1of an interest in the surface does not prevent partition of the
2surface. The ownership of an interest in some, but not all, of
3the mineral estate by a co-owner of an interest in other
4minerals does not prevent the partition of the co-owned mineral
6(Source: P.A. 92-379, eff. 8-16-01; 93-925, eff. 8-12-04.)
7    (735 ILCS 5/17-102)  (from Ch. 110, par. 17-102)
8    Sec. 17-102. Complaint. The verified complaint shall
9particularly describe the premises sought to be divided, and
10shall set forth the interests of all parties interested
11therein, so far as the same are known to the plaintiffs,
12including tenants for years or for life, and of all persons
13entitled to the reversion, remainder or inheritance, and of
14every person who, upon any contingency, may be or become
15entitled to any beneficial interest in the premises, so far as
16the same are known to the plaintiffs, and shall ask for the
17division and partition of the premises according to the
18respective rights of the parties interested therein, or in
19accordance with the Uniform Partition of Heirs Property Act , if
20a division and partition of the same cannot be made without
21manifest prejudice to the owners, that a sale thereof be made
22and the proceeds divided according to the respective rights of
23the parties.
24(Source: P.A. 82-280.)



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1    (735 ILCS 5/17-105)  (from Ch. 110, par. 17-105)
2    Sec. 17-105. Judgment. The court shall ascertain and
3declare the rights, titles and interest of all the parties in
4such action, the plaintiffs as well as the defendants, and
5shall enter judgment according to the rights of the parties.
6After entry of judgment adjudicating the rights, titles, and
7interests of the parties, the court upon further hearing shall
8determine whether or not the premises or any part thereof can
9be divided among the parties without manifest prejudice to the
10parties in interest. If the court finds that a division can be
11made, then the court shall enter further judgment fairly and
12impartially dividing the premises among the parties with or
13without owelty. If the court finds that the whole or any part
14of the premises sought to be partitioned cannot be divided
15without manifest prejudice to the owners thereof and is not
16governed by the Uniform Partition of Heirs Property Act, then
17the court shall order the premises not susceptible of division
18to be sold at public sale in such manner and upon such terms
19and notice of sale as the court directs. If the court orders
20the sale of the premises or any part thereof, the court shall
21fix the value of the premises to be sold. No sale may be
22approved for less than two-thirds of the total amount of the
23valuation of the premises to be sold. If it appears to the
24court that any of the premises will not sell for two-thirds of
25the amount of the valuation thereof, the court upon further
26hearing may either revalue the premise and approve the sale or



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1order a new sale.
2(Source: P.A. 93-925, eff. 8-12-04.)
3    (735 ILCS 5/17-106)  (from Ch. 110, par. 17-106)
4    Sec. 17-106. Appointment of commissioner and surveyor. The
5court in its discretion, sua sponte, or on the motion of any
6interested party, must may appoint a disinterested
7commissioner who, subject to direction by the court, shall
8report to the court in writing under oath as to whether or not
9the premises are subject to division without manifest prejudice
10to the rights of the parties and, if so, report how the
11division may be made. The court may authorize the employment of
12a surveyor to carry out or assist in the division of the
13premises. The fees and expenses of the commissioner and of the
14surveyor and the person making the sale shall be taxed as costs
15in the proceedings.
16(Source: P.A. 93-925, eff. 8-12-04.)
17    Section 99. Effective date. This Act takes effect upon
18becoming law.