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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:

  1. 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.
  2. 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 failute 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.
  3. 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.

 

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