Waste (law)

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.

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 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.

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 the mortgage 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.

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