700.23 Liability among cotenants for rents and profits.

(1) The provisions of this section apply only in the absence of a valid agreement to the contrary between the cotenants. As used in this section, “proportionate share" means a share determined by the number of joint tenants, in the case of a joint tenancy, and the extent of a tenant in common's undivided interest, in the case of a tenancy in common.

(2) If land belonging to 2 or more cotenants is rented to a 3rd person, any cotenant may recover that cotenant's proportionate share of the net rents collected by another cotenant after deduction of property taxes, maintenance costs and any other proper charges relating to the property.

(3) If land belonging to such cotenants is occupied by one cotenant and not by another, any cotenant not occupying the premises may recover from the occupying cotenant:

(a) A proportionate share of the reasonable rental value of the land accruing after written demand for rent if the occupying tenant manifests an intent to occupy the premises to the exclusion of the other cotenant or cotenants;

(b) A proportionate share of the net profits if the occupying cotenant engages in mining, cutting of timber, removal of sand or gravel, or any similar operation resulting in diminution of the value of the premises. In such a case, the occupying cotenant must render an accounting to the other cotenant, showing all receipts and expenditures, and is entitled to deduct a reasonable amount for the value of services provided by the occupying cotenant; but any other cotenant may in the alternative elect to recover that cotenant's proportionate share of the amount which that cotenant can prove would have been received by licensing a 3rd party to carry on the same operation.

(4) If one cotenant has leased the premises from another cotenant, upon expiration of the lease it is presumed that the cotenant who has leased the premises from the other cotenant continues to hold over as provided in s. 704.25, unless that cotenant gives to the other cotenant prior to the expiration of the lease a written notice to the contrary, by one of the methods under s. 704.21.

History: 1971 c. 66; 1991 a. 316.

Sub. (3) does not control all cases in which a nonoccupying cotenant asserts a claim against a cotenant in possession, and does not apply when a tenant has not been ousted from the property. Klawitter v. Klawitter, 2001 WI App 16, 240 Wis. 2d 685, 623 N.W.2d 169, 00-1464.