Waste is a term used in property law to describe an action that can be brought to court to deal with a change in the condition of real property caused by a current tenant that damages or destroys the value of that property. A current landlord or the owner of a vested future interest can bring a lawsuit for waste against a lessee of a leasehold estate but the holders of executory interests have no ability to enforce an action for waste, since their future interests are not vested.
There are 3 kinds of waste under the law:
- Voluntary Waste: This is any structural change made to the estate that intentionally or negligently causes harm to the estate or depletes its resources, unless that depletion is a continuation of a pre-existing use.
- Permissive Waste: Permissive waste is a failure to maintain the estate both physically and financially.
Rather than requiring some bad act on the part of the tenant this requires a failure to make ordinary repairs, pay taxes or pay interest on the mortgage. If the property is owned under a lease which places the burden of making physical repairs on the landlord, the tenant still has a duty to report the need for such repairs to the landlord.
- Ameliorative Waste: This is an improvement to the estate that changes its character, even if the change actually increases its value. Where ameliorative waste has occurred, the interested party can recover from a tenant the cost of restoring the land to its original condition. This based on traditional common law jurisprudence presuming that the grantor intended the property to be kept in its original condition.
What we experienced didn’t come under our remit initially as we had an ‘absent freeholder’. This in turn led to uncontrolled subletting with a major effect being the continual dumping of various items in the common areas. In other words waste!
So, here are just a few examples of the actions of landlords who couldn’t give a stuff about dumping the stuff and not taking it away!
Whilst I did manage to kick the backsides of some of these landlords to get some waste removed, I wasn’t able to prevent someone visiting the flats to drop a lighted match or cigarette into yet another a pile of rubbish and setting fire to it!
When we took over the building I contacted the council on this issue as it was still occurring and they said that following the rule of law, the person putting the waste there is the person responsible for dumping it, whether under instruction or otherwise. We had no idea who who was responsible but the council continued to try and assist in terms of providing us with some signs in an attempt to act as a deterrent which we appreciated.
They were also also pretty good in removing the items that continued to be dumped until they wanted to know which flats were involved in order to ensure that no flat exceeded its three removals per year threshold. As they were all dumped the same place, and often at night, this was an impossible demand for us meet so it was at this stage that we decided to use a company on the books of our managing agent for such a service. This made life easier in that all I had to do was to phone them and arrange for the items to be collected.
We were initially pleased with the first company but had to change when the level of service dropped in that waste was taking longer and longer to collect, presenting a number of health and safety issues.
We have kept to this method of removing waste as items are removed quietly and efficiently.