Waste (law)

Waste is a term used in property law 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.^[1] 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.^[2] 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 (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 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 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, pay taxes, or pay interest on a mortgage against the property by the life tenant or the lessee of a leasehold estate.

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

بموجب القانون الإنجليزي والقانون الأسترالي ، يُعدّ الإتلاف العادل إتلافًا يحقّ للمنتفع مدى الحياة ارتكابه بموجب القانون العام، ولكنّ محكمة الإنصاف تُقيّده . يندرج هذا المبدأ ضمن الإطار الأوسع للإنصاف، حيث لا يكون الحق القانوني في فعل شيء ما مطلقًا لدرجة استحالة إساءة استخدامه. لا يجوز للمنتفع مدى الحياة الذي مُنح عقارًا "دون الطعن في الإتلاف" (أي لا يجوز مقاضاته بتهمة الإتلاف) ارتكاب أعمال تدمير صارخة تتعارض مع الاستخدام الأمثل للأرض. على سبيل المثال، لا يجوز تجريد قصر من زجاجه أو أخشابه أو أنابيبه، ^{[ 4 ]} كما لا يجوز للمنتفع قطع الأشجار ذات القيمة التزيينية. ^{[ 5 ]}

Where a court finds that a tenant is engaging in waste, there are a number of possible remedies which can be taken:

1. The court may award sufficient money damages to compensate the injured party for the loss resulting from the waste.
2. The court may directly require the party responsible for the waste to restore the property to its original condition.
3. 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 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.^[6]

Missouri 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.^[7]

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.

• Estrepement