Waste & Repair Defined | Real Property Law | Definitive Real Estate Terms

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As defined and explained in this ONLINE Encyclopedia

1. An action that results in loss or deterioration, whether from use, misuse or neglect. Spoil or destruction that results in a marked and lasting alteration to the nature or condition of land (including any building or fixture thereon), sometimes for better, but usually for worse. In particular, an act or omission by someone in legal possession of property in order to alter or impair its value to the detriment of a person who will come into possession in the future, such as the reversioner or remainderman who follows a tenant for life or the landlord when he regains the property at the end of a lease. Unlawful damage caused to land and buildings by a tenant whereby the value of property is depreciated to the detriment of the person who is entitled to the immediate reversion or remainder, especially the fee simple, following a lease, or a fee tail (or entail), following a life interest. "Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the detriment of him that has the remainder or reversion in fee simple or fee tail", 2 Bl Comm 281 (Powys v Blagrave (1854) 4 De GM & G. 448, 43 Eng Rep 582; Keogh v. Peck, 316 Ill 318, 147 NE 266, 268, 38 ALR 1115, 1157 (1925); Camden Trust Co. v. Handle, 132 NJ Eq 97, 26 A.2d 865, 867 (1942); Jowdy v. Guerin, 10 Ariz App 205, 457 P.2d 745, 748 (1969)). "Waste is a destruction or material deterioration of a freehold, or of the improvements thereon, by any person rightfully in possession of the property but who has not the fee simple title thereto", Caprito v. United States, 217 F.2d 783, 785 (5th Cir. Tex 1955). Waste may be distinguished from trespass as the former is an act committed by one who is rightfully in possession, whereas trespass is a wrongful act of possession.

     Waste may be classified as: (A) 'Permissive' waste (in the US, also called 'negligent' or 'passive' waste)—failure to do that which ought to be done, as by negligence, or an omission to make necessary repairs, so that a property is permitted to fall into a state of decay, e.g. not repairing a roof damaged by storm or allowing decay to continue due to a lack of protective paint (1 Co Litt 53a, 54b; 2 Bl Comm 281; Norris v. Laws, 150 NC 599, 64 S.E. 499, 501 (1909); Finley v. Chain, 374 N.E.2d 67, 79 (Ind App 1978); 30 C.J.S., Waste (St. Paul, MN), § 1). (B) 'Voluntary' or 'actual' waste (in the US, also called 'affirmative' or 'commissive' waste)—making a deliberate change to a property, but an act that falls short of wanton damage or destruction such as pulling a house down (2 Bl Comm 281; Dorsey v. Speelman, 1 Wash App 85, 459 P.2d 416, 418 (1969)); altering or destroying part of a building, even if the work could be considered an improvement; converting woodland, meadow or pasture into arable land; cutting down timber (Rumiche Corp. v. Eisenreich, 40 NY.2d 174, 386 NYS.2d 208, 211, 353 N.E.2d 125, 128 (1976)), (except on a timber estate, where such actions may be permitted by local custom, or when the timber is considered as an estovers); or opening up a new mine or quarry (but not working one that is already open nor opening one to use the produce for the reasonable repair of the property, unless expressly prohibited (1 Co Litt 53b; White v. Blackman, 168 S.W.2d 531, 533–4 (Tex Civ App 1942)). (C) 'Ameliorating' or 'meliorating' waste—a form of voluntary waste that has the effect of improving property, e.g. restoring a dilapidated building or changing the method of husbandry in order to improve the profitability of the land (London (City of) v Greyme (1607) Cro Jac 181, 79 Eng Rep 158; Meux v Cobley [1892] 2 Ch 253, 263; J.H. Bellows Co. v. Covell, 28 Ohio App 277, 162 N.E. 621, 622 (1926); Kremer v. Rule, 209 Wis 183, 244 N.W. 596 (1932)). (D) 'Equitable' waste—wanton or malicious damage or destruction; "that which a prudent man would [definitely] not do in the management of his own property", Turner v Wright (1860) 2 De GF & J 234, 243, 45 Eng Rep 612 (Storey's Equity Jurisprudence (14th ed. by W.H. Lyon. 1918), § 1242; Camden v. Handle, supra at 871). Examples of equitable waste are cutting down trees that are clearly meant to be ornamental or taking away elements (roof, windows, floor boards, etc.) from a sound building. Waste is considered as a form of conversion (not a breach of any contract between the tenant and the person who follows him), and a reversioner or remainderman who is prejudiced by an act of waste may obtain damages for the depreciation in the value of his reversion or remainder, or may recover the equivalent to the monies received as a result of the sale of a severed item; or he may seek an injunction to restrain the act (except in a case of permissive waste). In the US, in a few jurisdictions, a tenant for life may forfeit his lease for waste. However, in English law, the 'writ of waste', which provided such a remedy, has been abolished (Real Property Limitation 1833, s. 36).

     A tenant for life (whether a tenant for his own life or for the life of another) is not liable for permissive waste (Woodhouse v Walker (1880) 5 QBD 404, 406–7), except as may be reasonably necessary to prevent further deterioration to the property (unless he is made responsible for repairs as a condition of his holding the estate). On the other hand, he is liable, or 'impeachable', for voluntary waste, including opening new mines, extracting soil, clay and gravel, or drilling for oil (1 Co Litt 53b; Carter Oil Co. v. McQuigg, 112 F.2d 280 (7th Cir. Ill 1940); 2 Summers on Oil and Gas § 223 (1977 repr.)). In many cases, a tenant for life may be granted consent to commit what would otherwise be waste, e.g. cut timber on a non-timber estate or open new mines, and he is then said to be 'unimpeachable' for waste, although he is generally restrained from committing equitable waste (Lewis Bowles Case (1615) 11 Co Rep 79b; Vane v Barnard (Lord) (1716) 2 Vern 738, 23 Eng Rep 1082; The American Law Institute, Restatement of Property (St. Paul, MN: 1936), § 141, Comment (a)).

     In common law, a tenant for a term of years is liable for voluntary and permissive waste, unless excused by agreement or by the consent of the landlord (Davies v Davies (1888) 38 Ch D 499; Dayani v Bromley London Borough Council [1999] 3 EGLR 144; 51C C.J.S., L & T (St. Paul, MN), § 261). A short-term periodic tenant (especially one from week to week, and probably one from month to month or even year to year), although liable for voluntary waste, is not liable to repair the demised premises (unless expressly committed thereto) and, therefore, the doctrine of voluntary and permissive waste has little application to such tenants. Nonetheless, in common law, the holder of a weekly tenancy (and by extrapolation any other short-term tenant who has no greater express liability) is required to maintain the premises at least in a tenant-like manner (Warren v Keen [1954] 1 QB 15, [1953] 2 All ER 1118 (CA)). A tenant at will is not liable for permissive waste, but an act of voluntary waste automatically terminates his right to continued occupation and he is liable for the consequential damage (Shrewsbury's (Countess of) Case(1600) 5 Co Rep 13b, 77 Eng Rep 68; Chalmers v. Smith, 151 Mass 561, 26 N.E. 95, 96 (1891)). A tenant at sufferance is liable for voluntary waste, but usually not for permissive waste (Burchell v Hornsby (1808) 1 Camp 360, 170 Eng Rep 985; 49 Am.Jur.2d., L & T (Rochester, NY), § 924; Anno: 10 ALR2d 1012: Damage to Leased Property, 1014, 1017 § 2). All such tenants are responsible for equitable waste. With regard to meliorating waste, although technically such acts are waste, a court is unlikely to restrain or grant damages for a reasonable improvement (especially for a life tenant or if the lease has a long unexpired term), because a landowner must show that he has suffered financial loss to his reversion or that the nature of the land has changed to his detriment (Doherty v Allman (1878) 3 App Cas 709, 733–5 (HL); Melms v. Pabst Brewing Co., 104 Wis 7, 79 N.W. 738, 739 (1899), see also pp. 739–40 for a review of the history of the law of waste in England and the US in the 19th century; Cf. Prudential Ins. v. Spencer's Kenosha Bowl, 137 Wis.2d 313, 404 N.W.2d 109, 113 (Wis App 1987)—no longer recognizing a distinction between 'active' and 'passive' waste; Cf. The American Law Institute, Restatement Second, Property (Landlord and Tenant) (St. Paul, MN: 1977), § 12.2, Comment d–accepting "reasonably necessary changes in the physical condition in order to use leased property in a manner that is reasonable in all the circumstances"). An action cannot be waste if it is authorised by the terms of the lease (Meux v Cobley, supra), nor if the action is one that accords with local custom or usage (Dashwood v Magniac [1891] 3 Ch 357; Stevens v. Mobil Oil Corp., 412 F Supp 809 (D Mich 1976)).

     In common law, a mortgagor is responsible for equitable waste, but (unless he has agreed to the contrary–which is the case in most mortgage deeds) may permit the property to fall into disrepair and may do acts, such as cutting timber, that alter the character or diminish the capital value of the mortgaged property (Harper v Aplin (1886) 54 LTNS 383; Van Pelt v. McGraw, 4 NY 110 (1850); Searle v. Sawyer, 127 Mass 491, 34 Am Dec 425 (1879)). However, it may generally be considered that a mortgagor should not do anything that may impair the capital value of the security, especially if the action results in a reduction in the value of the security below the amount of the debt.

     In the US, the cutting of timber and similar acts when in the interests of "good husbandry" or "reasonable use" of the land is not considered as waste, especially where new land was opened up for use and occupation (5 Am.L.Prop., § 20.5). Most jurisdictions follow the common-law rule in considering the opening of a new mine as an act of waste (Schuylkill Trust Co. v. Schuylkill Mining Co., 358 Pa 535, 57 A.2d 833 (1948), dictum; 5 Am.L.Prop., § 20.6 n. 1), although an open mine may be worked to exhaustion, unless there is an express prohibition. On the other hand, a few jurisdictions do not consider the opening of a new mine as an automatic act of waste (Poole v. Union Trust Co., 157 N.W. 430 (Mich 1916)).

     In the US, a mortgagor is generally considered to have an obligation to safeguard the value of the mortgagee's security (54A Am.Jur.2d., Mortgages (Rochester, NY), § 283). In particular, in those jurisdictions that consider a mortgage as merely a lien on the property ('lien-theory' states), waste is based on any injury to the value of the mortgagee's security, not just physical damage to the property (Brown v. Critchfield, 100 Cal App 3d 858, 868, 161 Cal Rptr 342 (1980); Jaffe-Spindler Co. v. Genesco, Inc., 747 F.2d 253, 257 (4th Cir. SC 1984)). Also, failure to maintain adequate insurance or to pay taxes on a property has been held to be an act of permissive waste and may entitle the mortgagee to appoint a receiver to ensure the proper management of the mortgaged property (American Sec. Life v. Harris Trust & Savings Bank, 859 F Supp 1163, 1165 (ND Ill 1994); Anno: 55 ALR3d 1041: Appointment of Receiver—"Waste").  Cf. fair wear and tear(BrE), improvement, wear and tear(AmE).  See also assart, contract for sale, dilapidation, estovers, grounds for possession, implied covenant.

Terms in bold are defined elsewhere in the Encyclopedia.
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bibliographic references for Waste:

Anno: 82 ALR2d 1106: Damages—Waste by Tenant.
G.S. Nelson & D.A. Whitman. Real Estate Finance Law (4th ed. St. Paul, MN: 2001), §§ 4.4, 4.10, 4.11.
W.B. Stoebuck & D.A. Whitman. The Law of Real Property (3rd ed. St. Paul, MN: 2000), pp. 157–75, 275–6.
M.R. Friedman. Friedman on Leases (5th ed. New York: 2004), §§ 22:1.2—22:1.3.
5 Powell on Real Property (Albany, NY: ©1997- ), Ch. 56 'Waste'.
E.H. Rabin et al. Fundamentals of Modern Property Law (4th ed. New York: 2000), Assignment 11, 'Life Estates: The Doctrine of Waste'.
8 Thompson on Real Property (2nd ed. Charlottesville, VA: ©1994- ), Ch. 70 'Waste'.
51 Am.Jur.2d., Life Tenants and Remaindermen (Rochester, NY), §§ 2–4, 27, 32–3, 281–2.
78 Am.Jur.2d., Waste (Rochester, NY), §§ 1–43.
54A Am.Jur.2d., Mortgages (Rochester, NY), §§ 283–306.
93 Cor.Jur.Sec., Waste (St. Paul, MN), §§ 1–19.

Cheshire and Burn's Modern Law of Real Property (17th ed. Oxford: 2006), pp. 239–40, 504–8.
Megarry & Wade: The Law of Real Property (7th ed. London: 2008), §§ 3-098—3-103.
1 Hill & Redman's Landlord and Tenant Law (London: Loose-leaf), §§ A[6281–6329].
1 Woodfall's Law of Landlord and Tenant (London: Loose-leaf), §§ 13.108—13.130.
27(1) Halsbury’s Laws of England, Landlord and Tenant (4th ed. Reissue), §§ 345–9.
42 Halsbury’s Laws of England, Settlements (4th ed. Reissue), §§ 992–1007.

More Real Estate Terms
acceleration clause; bargain and sale; base fee; easement; emphyteotique lease; exclusive agency; fructus(Lat);
grosses reparations(F); highest and best use; home valuation code of conduct (HVCC)(US); immeuble(F); leasehold enfranchisement; market value (MV); once a mortgage, always a mortgage; partial release (or the rule in Dumpor's Case); possession;
resecuritization; resulting trust (and Quistclose trust); strata title; tenantable repair; Torrens title; unjust enrichment