When you own property with another person in Illinois, the specific type of ownership determines your rights, especially when one owner wants to sell their share and the others don't. Whether your property is held as a Tenancy in Common or a Joint Tenancy has profound legal implications, not just for inheritance, but for your ability to force a division or sale of the property—a legal action known as Partition. 

Understanding these structures is critical for a clear exit strategy when business or personal relationships change. 

The Fundamental Differences in Ownership 

Tenancy in Common (TIC) 

TIC is the standard co-ownership form unless the deed specifies otherwise. Each co-owner holds a distinct, undivided interest that can be sold, mortgaged, or willed to heirs. The absence of the right of survivorship makes TIC ideal for business partners or non-spousal family members who want their interest to remain part of their estate. 

Joint Tenancy (JT) 

JT is characterized by the Right of Survivorship, making it popular for married couples. For a JT to exist in Illinois, the deed must explicitly state the intent, often using the phrase "as joint tenants with right of survivorship." Joint Tenancy requires four "unities" (Time, Title, Interest, and Possession). If any unity is broken—for example, by one owner transferring their share—the joint tenancy is automatically severed and converts to a Tenancy in Common. 

The Absolute Right to Partition in Illinois 

The right to partition is the legal mechanism that allows any co-owner to force a division or sale of the property, even if the other owner objects. This right is considered fundamental under Illinois law, ensuring no one is permanently trapped in an unwanted co-ownership situation. 

Partition and Tenancy in Common 

The right to partition for Tenants in Common is nearly absolute. It generally cannot be permanently waived. If co-owners cannot agree on a voluntary sale or buyout, any Tenant in Common can file a lawsuit to compel a resolution. 

Partition and Joint Tenancy 

Joint tenants also have the right to seek partition. However, the very act of seeking partition severs the Joint Tenancy and destroys the right of survivorship. The property immediately converts to a Tenancy in Common, and the partition lawsuit proceeds under those rules. 

The Two Types of Partition 

Partition in Kind: The court physically divides the property into separate, distinct parcels, giving each co-owner a piece. This is only feasible for large, undeveloped tracts of land. 

Partition by Sale: For most residential or commercial property (which cannot be divided), the court orders the property sold. The net proceeds are then divided among the co-owners according to their ownership interests. 

The Partition Process and Financial Accounting 

A partition action begins by filing a lawsuit in the Circuit Court. While the defendant co-owners can challenge the ownership structure, the defense "we don't want to sell" is generally not a valid legal defense to a properly filed partition complaint. 

Accounting and Contribution 

Partition cases often involve an accounting to ensure fairness. The court will determine what each co-owner is owed or owes based on: 

Unequal Expenses: One owner is credited for paying a disproportionate share of property taxes, insurance, or necessary maintenance/improvements. 

Occupancy: A co-owner who had exclusive possession of the property may be required to pay rent (or compensation) to the non-occupying co-owners. 

Income: Rental income or other proceeds collected by one co-owner must be accounted for and shared. 

The costs of the partition lawsuit, including attorney fees, appraisal fees, and sale commissions, are typically deducted from the final sale proceeds before distribution. 

Strategic Considerations Before Filing 

Partition litigation can be expensive, time-consuming, and emotionally taxing. Before initiating a lawsuit, co-owners should attempt a voluntary resolution: 

Voluntary Buyout: Can one owner purchase the others' interests at a fair market value? 

Voluntary Sale: Can all parties agree to list the property for sale now, avoiding court supervision and litigation costs? 

Timing Matters: The condition of the property and the current real estate market should factor into the decision. A forced sale during a depressed market may recover less value. 

The financial cost of litigation must be weighed against the likely net recovery. Consulting with an experienced real estate attorney is essential to evaluate your specific rights, manage the accounting issues, and navigate this complex process. 

For legal assistance and guidance, contact Katherine L. Maloney & Associates, LLC at 815-556-2057.