When someone has a future interest in a property, the person in possession of the land has a duty to maintain it in a manner that is not destructive to the future interest. This is called the duty not to create waste. Common examples of this situation are life estates and leases, where the current possessor must preserve the land for the future possessor or landowner.

What Actions Are Considered Waste?

In most areas, waste is not regulated by statute and so what is considered waste is often determined by neighborhood custom and the character of the land. Generally, there are two types of waste:

  • Commissive or voluntary waste is a deliberate destructive act by the person in possession of the property, such as removing a structure or cutting down more trees than are needed by the landholder for timber.
  • Permissive waste is the negligent maintainance of the land, or the failure to act to preserve the land as a reasonable person in possession would, such as allowing a house to fall into disrepair or failing to pay property taxes. A person holding the land under a lease is not required to make physical repairs usually, however the tenant is required to report the need for repairs to the landlord.

What Damages Can a Future Possessor Recover for Waste?

If waste has occured, damages may include:

  • The amount of the change in market value or the cost of repairs, and any lost rental income due to the damage.  
  • If the waste was intentional or reckless, punitive damages may be assessed. 
  • In some states, attorneys fees may also be included in damages.
  • In some situations, courts may provide injunctive relief to prevent future waste. This form of relief is usually granted when damages cannot be sufficiently measured or where the waste is a continuing process rather than one specific act.
  • In areas that have waste statutes, the statutes may require forfeiture of the possessors interest in the land. This remedy is generally not favored by courts.

Do I Need a Lawyer?

The law of waste is very complex and can differ drastically from state to state. If you are concerned about the state of your interest in a piece of property, an experienced real estate attorney can help you identify the law in your area and advise you of your rights.  An attorney can also represent you in court.