Category: Property Disputes

PARTITION: THE PREFERENCE OF ILLINOIS COURTS FOR DIVISION OF REAL PROPERTY RATHER THAN SALE

PARTITION: THE PREFERENCE OF ILLINOIS COURTS FOR DIVISION OF REAL PROPERTY RATHER THAN SALE

Partition of land divides real property among two or more joint tenants or tenants in common.  See 735 ILCS 5/17-101; Peck v. Peck, 157 N.E.2d 249, 285 (1959).  The purpose of a partition is to enable various owners to sever their interests and possess, enjoy, and improve the new separate portion.  Id.

A partition action must be initiated with a verified complaint filed in the circuit court of the county where the land is located.  735 ILCS 5/17-101.  The verified complaint needs to include a particular description of the premises sought to be divided.  735 ILCS 5/17-102.  Although “particular description” is not further defined, it likely includes the property’s legal description, tax identification number, and common address.

Next, a partition complaint must name all parties with an interest in the property that are known to plaintiff.  Id.  This includes tenants and those entitled to an inheritance or future beneficial interest.  Id.  Finally, the complaint shall ask for division of the property according to the respective rights of the interested parties.  Id.

Land partitions are accomplished two ways, 1) the property is divided among the current owners, or 2) the entire property is sold and the proceeds divided equitably among the previous owners.  Illinois courts favor division of land rather than a division of proceeds from the land’s sale.  Peck, 157 N.E.2d at 285-86.  A partition sale is considered improper unless the property cannot be divided without prejudice to the rights of the parties.  Id.  In order to determine whether division is possible, Illinois courts may appoint an independent commissioner, either sua sponte or upon motion of a party.  735 ILCS 5/17-106.

Ultimately, Illinois law favors an equitable and equal division of property, but will award owelty, i.e. equalization charge to even the parties’ interests.  Harris v. Johnson, 42 Ill.App.3d 751, 754 (3rd Dist. 1976).  In Harris, two parties owned an irregularly shaped strip of land that divided two separate parcels (defined as “Outlot 19”).  Id. at 752.  Plaintiff owned the property to north of Outlot 19.  Id.  Defendant owned the property to the south of Outlot 19.  Id.

Complicating matters was the presence of a garage on Outlot 19.  Id.  This garage rested primarily on Outlot 19, but overlapped onto plaintiff’s northern property by about 20%.  Id.  Both parties used the garage.  Id.

The court divided the property in a way the deprived defendant use of the garage.  Id. at 752-53.  However, the court ordered plaintiff to award defendant $2,400.00 in exchange for defendant’s loss as an equalization charge.  Id. at 754-755.  The court noted that division and owelty, rather than sale, was the preferred and most equitable result.  Id.

But courts will not back away from a partition sale in more unusual circumstances.  Wright v. Wright, 131 Ill.App.3d 46 (3rd Dist. 1985).  In Wright, 13 heirs to a parcel of property sought its partition.  Id. at 47.  The court appointed an independent commissioner who recommended that the property could not be equitably divided.  Id. at 47-48.

The court agreed with the commissioner’s report in that dividing the property into 13 sections would be prejudicial to the parties.  Id.  All of the sections would be too small to use effectively, and some would be landlocked.  Id. at 48-49.  As a result, the court approved the sale and division of proceeds.  Id. at 49.

When faced with a partition action, it is clear Illinois courts prefer dividing land.  But they will also not rule out a sale if necessary.

 

For additional reading on land partition see:

 

Rosenbaum v. Rosenbaum, 38 Ill.App.3d 1 (1st Dist. 1976);

Anderson v. Anderson, 62 Ill.App.3d 468 (1st Dist. 1978);

O’Malley v. Walker, 4 Ill.App.2d 555 (1st Dist. 1955).

 

Law Office of Andrew Szocka, P.C. can be contacted online or by phone at (815) 455-8430.

EASEMENTS: HOW ONE CAN GIVE SOMEONE ELSE A RIGHT TO USE YOUR PROPERTY.

EASEMENTS: HOW ONE CAN GIVE SOMEONE ELSE A RIGHT TO USE YOUR PROPERTY.

If you own property, there is a good chance that it is subject to an Easement.  Easements can be relatively new, created within the last few years, or possibly over 100 years old.

In order to be effective, an Easement must be recorded.  This means that the Easement is placed of record with the county in which your property is located.  A recorded Easement should show up on your property’s title history (along with any mortgages you have or deeds that transferred ownership of the property over the years).

An Easement essentially give another party certain rights to your property.  A common example of an Easement is one for utility or cable companies.  Modern technology allows electrical, cable, and other wires to be placed underground.  These wires may then run underneath parts of your property.  Utility and cable companies need to be able to fix, repair, or update their equipment.  As a result, they may be granted an Easement to perform this work on your property.

Another example of an Easement is a neighbor’s right to use a driveway on your property to access the road.  If your neighbor’s does not have any road access, otherwise known as “land-locked,” he may be given the right to use a portion of your driveway in the form of an Easement.

You should avoid building structures over any Easements that affect your property.  This is called “encroaching” on an Easement.

An encroachment on an Easement could be a fence that runs along a utility company’s Easement and prevents them from digging underground to repair their equipment.  Or an encroachment could be a gate built on your driveway that doesn’t allow your neighbor to access the street.

Encroachments on an Easement can cause problems if it prevents a party from using the Easement for its proper purpose.  You may be forced to remove a portion of your fence if it prevents a utility company from reaching its equipment.  Or you may need to remove the gate that doesn’t allow your neighbor to get to the road.

Encroachments on an Easement can also provide issues if you wish to sell your home.  A company that an owner’s title insurance policy to your buyer will not provide insurance for many encroachments over Easements.  This can make your property more difficult to sell.

Having a good attorney can help understanding any Easements that affect your property.  It can clear up confusion you may have as a property owner so you do not have to face a lawsuit down the road.

Adverse Possession: Can You Get Property For Nothing?

ADVERSE POSSESSION: CAN YOU GET PROPERTY FOR NOTHING?

In Illinois, it is possible to develop a claim to property that was never originally yours or never officially conveyed to you.  This is the doctrine of Adverse Possession, sometimes commonly referred to as “squatter’s rights.”

You can obtain property by Adverse Possession when the following occurs for 20 consecutive years: (1) you continuously use the property, (2) your use of the property is not permitted by the actual owner, or is “hostile” (3) you do not hide that you are using the property, and (4) your use of the property conflicts with the actual owner’s right to use and possess the property.

For example, you might build a garage on a piece of vacant property next to your house.  If you continuously park your car in the garage, and openly drive in and out of the garage for 20 years, without the permission of the owner of the vacant land, you have a claim to the vacant land.

Although this rule may sound unfair, it is supported by public policy.  If the owner of the vacant land was not using it, and you were actively driving in and out of a garage built on the vacant land, you were putting the property to better use.

There are some exceptions to Adverse Possession.  If the owner of the vacant land where your garage now sits, paid the property taxes on the vacant land for the last seven years, the owner of the vacant land can likely defeat your Adverse Possession claim.  Alternatively, if the owner of the vacant land was disabled or in the United States military while you were using the garage, your Adverse Possession claim may also fail.

Having a good attorney can help avoid losing your property to adverse possession.  It can clear up confusion you may have as a property owner so you do not have to face a lawsuit down the road.