Waste is a term used in

property law Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual prope ...

to describe a

cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...

that can be brought in

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

to address a change in condition of

real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, refers to parcels of land and any associated structures which are the property of a person. For a structure (also called an Land i ...

brought about by a current tenant that damages or destroys the value of that property. A

lawsuit A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today ...

for waste can be brought against a life tenant or lessee of a

leasehold estate A leasehold estate is an ownership of a temporary right to hold land or property in which a lessee or a tenant has rights of real property by some form of title from a lessor or landlord. Although a tenant does hold rights to real property, a le ...

, either by a current landlord or by the owner of a vested

future interest In property law and real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of the property. Future interests are created on the formation of a defeasible estate; t ...

. The holder of an

executory interest In property law and real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of the property. Future interests are created on the formation of a defeasible estate ...

, however, has no standing to enforce an action for waste, since his future interest is not

vested In law, vesting is the point in time when the rights and interests arising from legal ownership of a property are acquired by some Legal person, person. Vesting creates an immediately secured right of present or future deployment. One has a vest ...

. There are several different kinds of waste under the law.

Voluntary waste

Voluntary waste (sometimes called affirmative waste) is any change made to the estate that intentionally or negligently causes harm to the estate or depletes its resources, unless this depletion is a continuation of a pre-existing use. Some jurisdictions follow what is called the open mines doctrine, which permits continued excavation from any mine on the property that is already open, but prohibits the opening of new mines. However, the majority of jurisdictions now follow a doctrine that allows ''any'' activity necessary to continue the exploitation of a particular resource, if the land has already been used for that purpose. :Example: If there is a

copper Copper is a chemical element; it has symbol Cu (from Latin ) and atomic number 29. It is a soft, malleable, and ductile metal with very high thermal and electrical conductivity. A freshly exposed surface of pure copper has a pinkish-orang ...

mine on the land, the current tenant can continue the mining operation to the point of extracting all available copper. If there were no such mine there originally, and the lease did not anticipate the mine, excavating property would constitute waste.

Permissive waste

Permissive waste is failure to maintain the estate, either physically or financially. Rather than requiring some bad act on the part of the tenant, this requires the failure to maintain ordinary

repairs The technical meaning of maintenance involves functional checks, servicing, repairing or replacing of necessary devices, equipment, machinery, building infrastructure and supporting utilities in industrial, business, and residential installa ...

, pay

taxes A tax is a mandatory financial charge or levy imposed on an individual or legal entity by a governmental organization to support government spending and public expenditures collectively or to regulate and reduce negative externalities. Tax co ...

, or pay

interest In finance and economics, interest is payment from a debtor or deposit-taking financial institution to a lender or depositor of an amount above repayment of the principal sum (that is, the amount borrowed), at a particular rate. It is distinct f ...

on a

mortgage A mortgage loan or simply mortgage (), in civil law (legal system), civil law jurisdictions known also as a hypothec loan, is a loan used either by purchasers of real property to raise funds to buy real estate, or by existing property owners t ...

against the property by the life tenant or the lessee of a leasehold estate.

Ameliorative waste

Ameliorative waste is an improvement to an estate that changes its character even if the change increases the land's value. Under

English common law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality bef ...

, when ameliorative waste occurs, the interested party can recover from the tenant the cost of restoring the land to its original condition. This is based on traditional

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisprudence presuming that the grantor intended the property to be kept in its original condition.

Example

Person A has a present

life estate In common law and statutory law, a life estate (or life tenancy) is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death, when the property rights may rever ...

to three acres of land with a beautiful forest and his family's historic home. Person B is willed to inherit the estate after A dies. B loves studying ancestry and hopes to one day live in the historic building on his family's land. Instead, A decides that the land would be more valuable as a nightclub and draws up a business plan to transform the old estate into a new late night hotspot. B can sue A for ameliorative waste and get an injunction preventing the construction of the club. Even if the club is set to make money and the old family house is a valueless wreck in terrible condition, B still has a right to stop A from improving the property. If A does in fact build the club, then B can sue for the cost of demolishing the new structure and returning the land to its original condition. In the United States, damages for ameliorative waste are generally not given, especially if the improvement to the property is likely to last a long time. The policy behind this change in common law is to encourage improvements and economic development, even at the cost of historical change.

Exceptions

There is an exception to this doctrine where a long-term tenant makes a change that increases the value of the property in a way that reflects a change in the nature and character of neighboring properties. If a tenant tears down a house and builds a factory on property in an area in which residences have generally been replaced with industry, the tenant will not be liable for waste. In ''Melms v. Pabst Brewing Co.'', the Pabst Brewing Company's plant encroached on a residential home. The owner of the home wanted to convert the land to commercial use but held an estate limiting the land to residential purposes. The

Wisconsin Supreme Court The Wisconsin Supreme Court is the Supreme court, highest and final court of appeals in the state judicial system of the U.S. state of Wisconsin. In addition to hearing appeals of lower Wisconsin court decisions, the Wisconsin Supreme Court also ...

held that the neighboring properties had sufficiently changed the nature of the area and allowed the estate holder to convert the land despite the existence of potential ameliorative waste.

Equitable waste

Under

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

and

Australian law The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are subs ...

, equitable waste is waste that a life tenant has a right to commit at common law but is restrained by a

court of equity A court of equity, also known as an equity court or chancery court, is a court authorized to apply principles of Equity (law), equity rather than principles of law to cases brought before it. These courts originated from petitions to the Lord Cha ...

. This doctrine fits under the broader framework of equity, in which a legal right to do something is not so unrestrained that it is impossible to abuse that right. A life tenant who is granted an estate "without impeachment of waste" (may not be sued for waste) may not commit acts of flagrant destruction inconsistent with the fruitful use of the land. For example, a mansion may not be stripped of its glass, timber or pipes, nor may trees of an ornamental value be cut down by the life tenant.

Remedies for waste

Where a

finds that a tenant is engaging in waste, there are a number of possible remedies which can be taken: #The court may award sufficient money damages to compensate the injured party for the loss resulting from the waste. #The court may directly require the party responsible for the waste to restore the property to its original condition. #The court may accelerate the passage of title in the land, divesting a tenant or life estate holder of the property and vesting it in the landlord or remainderman.

Kentucky Kentucky (, ), officially the Commonwealth of Kentucky, is a landlocked U.S. state, state in the Southeastern United States, Southeastern region of the United States. It borders Illinois, Indiana, and Ohio to the north, West Virginia to the ...

has a particularly harsh remedy for voluntary waste. A person found to have committed voluntary waste without the written permission of the holder of the future interest is forced to pay

treble damages In United States law, treble damages is a term that indicates that a statute permits a court to triple the amount of the actual/compensatory damages to be awarded to a prevailing plaintiff. Treble damages are usually a multiple of, rather than an ...

to the holder of the future interest, and the person's present interest (whether a life estate or a lease) is automatically terminated.

Missouri Missouri (''see #Etymology and pronunciation, pronunciation'') is a U.S. state, state in the Midwestern United States, Midwestern region of the United States. Ranking List of U.S. states and territories by area, 21st in land area, it border ...

has two statutes that prescribe a harsh remedy for waste. There, a person found to have committed voluntary waste without the written permission of the holder of the future interest is forced to pay treble damages. In some cases, the plaintiff has been able to recover treble damages twice--once for voluntary waste and again for wantonly committed waste.Missouri Revisited Statutes 537.420; 537.490 (for wantonly committed waste) If the plaintiff can show that the defendant is currently engaged in voluntary or permissive waste of the land, the court may

enjoin An injunction is an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable ...

(or stop) the activity; however, courts are reluctant to enjoin ameliorative waste unless the property being destroyed has some unique historic value.

References

{{reflist Property law