Waste

Harmful or destructive use of real property by one in rightful possession of the property.

Waste is an unreasonable or improper use of land by an individual in rightful possession of the land. A party with an interest in a parcel of land may file a civil action based on waste committed by an individual who also has an interest in the land. Such disputes may arise between life tenants and remainderpersons and landlords and tenants. The lawsuit may seek an INJUNCTION to stop the waste, damages for the waste, or both. Actions based on waste ordinarily arise when an owner of land takes exception to the manner in which the possessor or tenant is using the land.

The four common types of waste are voluntary, permissive, ameliorating, and equitable waste. Voluntary waste is the willful destruction or carrying away of something attached to the property. In an action for voluntary waste, the plaintiff must show that the waste was caused by an affirmative act of the tenant. Such waste might occur if a life tenant (a person who possesses the land for his lifetime, after which a remainderperson takes possession) chops down all the trees on the occupied land and sells them as lumber.

Voluntary waste will also occur, for example, if the tenant of an apartment removes kitchen appliances that are attached to the apartment floors and walls. More commonly, the tenant breaks a window, damages walls or woodwork, or otherwise damages the apartment. Landlords typically protect against this type of voluntary waste by requiring a damage or security deposit from the tenant at the commencement of the lease. When the tenant vacates the apartment, the landlord inspects for waste. If the apartment has been damaged, the landlord will use part or all of the deposit for repairs. If the damage exceeds the deposit, however, the landlord may file an action seeking damages for the repairs not covered by the deposit.

Permissive waste is an injury caused by an omission, rather than an affirmative act, on the part of the tenant. This type of waste might occur, for example, if a tenant permits a house to fall into disrepair by not making reasonable maintenance repairs.

Ameliorating waste is an alteration in the physical characteristics of the premises by an unauthorized act of the tenant that increases the value of the property. For example, a tenant might make improvements that increase the value of the property, such as remodeling a bathroom. Generally, a tenant is not held liable if she commits this type of waste.

Equitable waste is a harm to the reversionary interest in land that is inconsistent with fruitful use. This CAUSE OF ACTION is recognized only by courts of EQUITY and is not regarded as legal waste in courts of law. For example, if the life tenant begins to cut down immature trees, the remainderperson, who will someday take possession of the property, may file an action in equity seeking an injunction to stop the cutting. The remainderperson would argue that the cutting imperils the productive use of the land in the future, because the value of the land after the immature trees have been cut would be decreased.

In an action for waste, a plaintiff commonly will seek damages for acts that have already occurred and request an injunction against future acts. A court will order an injunction if it finds that irreparable harm will occur and that the legal remedy would be inadequate, unless otherwise provided by statute. Certain laws provide for temporary relief if acts of waste are either threatened or committed.

The ordinary measure of damages for waste is the diminution in value of the property to the nonpossessor as a result of the acts of the possessor. This is frequently difficult to measure, particularly in situations where a significant period of time will elapse before the plaintiff is entitled to actual possession.