What Is The Doctrine of Waste?
Jared's grandmother passed away about a year ago. By her will, Jared's grandmother left the family farm to Jared's father for the duration of his life, and then directed that Jared receive the farm following the death of Jared's father. Jared is worried that he will never receive his interest in the farm, because his father has allowed the farm to go to ruins. At the time Jared's grandmother died, the family farm was a valuable dairy farm. In the years since the grandmother's death, Jared's father has torn down two of the barns and has failed to maintain the other buildings on the property.
What Is The Doctrine Of Waste?
The doctrine of waste provides a right of recovery in the fact scenario described above. When the title of land has been divided into a future interest (such as Jared's interest) and a present possessory interest (such as that of Jared's father), the doctrine of waste prevents the owner of the present possessory interest from unduly harming the future interest. The rationale behind the doctrine of waste is that one who is entitled to receive a future interest in real property is entitled to receive the property in the same condition it was in at the time the future interest was created by the original grantor. Although the doctrine of waste may prevent changes to property which increase the value of the property, more often it refers to action or inaction which damages the property in some respect.
Active Waste vs. Passive Waste
In order to be actionable, the waste committed by the holder of the present possessory interest may be active or inactive. In the fact scenario set forth above, Jared's father has committed active waste by tearing down two of the barns. The destruction of valuable aspects of a piece of property constitutes active waste. Furthermore, Jared's father has committed passive waste by allowing the property to "go to ruins." Passive waste occurs when the holder of the present possessory interest fails to make necessary repairs in order to prevent the property from deteriorating in value. Moreover, passive waste may occur when the owner of the present possessory interest fails to insure the property against perils.
Remedies
In an action where the owner of the future interest seeks to recover damages for waste committed by the owner of the present possessory interest, the owner of the future interest may be entitled to monetary compensation equal to the cost of restoring the property to the condition it was in at the time the future interest was created by the original grantor. In addition, the owner of the future interest may be entitled to injunctive relief to prevent the owner of the present possessory interest from committing further waste.
Copyright 2006 LexisNexis, a division of Reed Elsevier Inc.
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