Waste (law)
Encyclopedia
Waste is a term used in the law
of real property
to describe a cause of action
that can be brought in court
to address a change in condition of real property
brought about by a current tenant
that damages or destroys the value of that property. A lawsuit
for waste can be brought against a life tenant or lessee of a leasehold estate
, either by a current landlord or by the owner of a vested future interest
. The holder of an executory interest, however, has no standing to enforce an action for waste, since his future interest is not vested.
There are several different kinds of waste under the law.
, 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.
, pay taxes
, or pay interest
on the mortgage
by the life tenant or the lessee of a leasehold estate.
jurisprudence presuming that the grantor intended the property to be kept in its original condition.
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.
In Malms v. Pabst Brewing Co., 79 N.W. 738, 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 court 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.
and Australian law, equitable waste is waste that a life tenant has a right to commit at common law but is restrained by a court of equity
. 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 (Vane v Lord barnard), and trees of an ornamental value may be cut down by the life tenant (Turner v Wright).
finds that a tenant is engaging in waste, there are a number of possible remedies which can be taken:
Kentucky
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
to the holder of the future interest, and the person's present interest (whether a life estate or a lease) is automatically terminated.
Missouri
has two statutes that prescribe a harsh remedies for waste. There, a person found to have committed voluntary waste without the written permission of the holder of the future interest holder is forced to pay treble damages. In some cases, the plaintiff has been able to recover triple damages twice--once for voluntary waste and again 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
(or stop) the activity; however, courts are reluctant to enjoin ameliorative waste unless the property being destroyed has some unique historic value.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
to describe a cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
that can be brought in court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
to address a change in condition of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
brought about by a current tenant
Leasehold estate
A leasehold estate is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord....
that damages or destroys the value of that property. A lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
for waste can be brought against a life tenant or lessee of a leasehold estate
Leasehold estate
A leasehold estate is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord....
, either by a current landlord or by the owner of a vested future interest
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; that is, an estate with a condition or event...
. The holder of an executory interest, however, has no standing to enforce an action for waste, since his future interest is not vested.
There are several different kinds of waste under the law.
Voluntary waste
Voluntary waste, (sometimes called affirmative waste) is any structural 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 doctrineOpen mines doctrine
The open mines doctrine is a term of real property. Under the open mines doctrine depletion of natural resources constitutes waste unless consumption of such resources constitutes normal use of the land, as in the case of a life estate in coal mine or a granite quarry.The life tenant cannot open...
, 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 copperCopperCopper is a chemical element with the symbol Cu and atomic number 29. It is a ductile metal with very high thermal and electrical conductivity. Pure copper is soft and malleable; an exposed surface has a reddish-orange tarnish...
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, excavating property would constitute waste.
Permissive waste
Permissive waste is failure to maintain the estate, both physically and financially. Rather than requiring some bad act on the part of the tenant, this requires the failure to maintain ordinary repairsHome repair
Home repair involves the diagnosis and resolution of problems in a home, and is related to home maintenance to avoid such problems. Many types of repairs are "do it yourself" projects, while others may be so complicated, time-consuming or risky as to suggest the assistance of a qualified handyman,...
, pay taxes
Property tax
A property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...
, or pay interest
Interest
Interest is a fee paid by a borrower of assets to the owner as a form of compensation for the use of the assets. It is most commonly the price paid for the use of borrowed money, or money earned by deposited funds....
on the mortgage
Mortgage loan
A mortgage loan is a loan secured by real property through the use of a mortgage note which evidences the existence of the loan and the encumbrance of that realty through the granting of a mortgage which secures the loan...
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, 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 lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisprudence presuming that the grantor intended the property to be kept in its original condition.
Example
Person A has a present life estate 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 Malms v. Pabst Brewing Co., 79 N.W. 738, 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 court 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 lawEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
and Australian law, equitable waste is waste that a life tenant has a right to commit at common law but is restrained by a court of equity
Court of equity
A chancery court, equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it.These courts began with petitions to the Lord Chancellor of England...
. 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 (Vane v Lord barnard), and trees of an ornamental value may be cut down by the life tenant (Turner v Wright).
Remedies for waste
Where a courtCourt
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
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
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
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
Treble damages
Treble damages, in law, 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, generally in order to punish the losing party for willful conduct. Treble damages are a multiple of, and not an addition...
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
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
has two statutes that prescribe a harsh remedies for waste. There, a person found to have committed voluntary waste without the written permission of the holder of the future interest holder is forced to pay treble damages. In some cases, the plaintiff has been able to recover triple damages twice--once for voluntary waste and again 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
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
(or stop) the activity; however, courts are reluctant to enjoin ameliorative waste unless the property being destroyed has some unique historic value.