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This entry was published on 2014-09-22
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Action for waste against joint tenant or tenant in common
Real Property Actions & Proceedings (RPA) CHAPTER 81, ARTICLE 8
§ 817. Action for waste against joint tenant or tenant in common. 1.
An action for waste may also be maintained by a joint tenant or tenant
in common against his co-tenant who commits waste upon the real property
held in joint tenancy or in common. If the plaintiff recovers therein he
is entitled, at his election, either to a final judgment for
compensatory damages or to have partition of the property as prescribed
in subdivisions 2 and 3 of this section.

2. Where the plaintiff elects to have partition, if the pleadings,
verdict, report, or decision do not determine the rights and interests
of the several parties in the property so held in joint tenancy or in
common, the court must ascertain them, by a reference or otherwise. If
it appears that there are persons, not parties to the action, who must
have been made parties to an action for partition of the property, they
must be brought in by supplemental summons and, if necessary,
supplemental pleadings must be made. When the rights and interests of
all the parties are ascertained, an interlocutory judgment for the
partition or sale of the property must be rendered and the subsequent
proceedings therein must be the same as in an action for partition,
except as otherwise prescribed in subdivision 3.

3. The plaintiff may elect to take final judgment for the damages
awarded to him, or that, in making the partition, or in dividing the
proceeds of a sale, so much of the share of the defendant in the real
property, or the proceeds thereof, as will be sufficient to compensate
the plaintiff for his damages, and the costs of the action, other than
the expenses of making the partition or sale, be laid off or paid, as
the case may be, to the plaintiff. The residue of the property or
proceeds, not laid off or distributed to the plaintiff or the defendant,
must be laid off or paid to the persons entitled thereto, according to
their respective rights and interests.