Key Takeaways

  • The act of waste in real estate refers to conduct by a tenant, life tenant, or mortgagor that damages or diminishes the value of the property to the detriment of the reversioner or future interest holder.
  • Waste is divided into voluntary waste (active damage such as tearing down structures), permissive waste (failure to maintain, such as neglecting repairs), and ameliorative waste (unauthorized changes that alter the character of the property).
  • Tenants can sometimes remove trade fixtures but generally cannot remove structural improvements or natural resources without committing waste.
  • Courts may allow limited use of resources (e.g., cutting timber to cultivate land or repairing fences) but prohibit destruction that permanently harms the property.
  • Remedies for waste include damages, injunctions, and in some cases forfeiture of the lease or termination of the tenant’s interest.

What Is Waste?

A spoil or destruction houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee simple or fee tail.

The doctrine of waste is somewhat different in this country from what it is in England. It is adapted to our circumstances. Waste is either voluntary or permissive.

Types of Waste in Real Estate

Courts recognize three main types of waste in real estate:

  • Voluntary Waste: An affirmative act that causes permanent injury, such as tearing down a structure, overharvesting timber, or extracting minerals without permission.
  • Permissive Waste: Occurs through negligence or omission, such as failing to repair a leaking roof, allowing property to deteriorate, or neglecting landscaping.
  • Ameliorative Waste: Involves changes that improve the property’s value but alter its intended use or character without the owner’s consent, such as converting farmland into a commercial parking lot.

Understanding these categories helps courts determine liability and appropriate remedies in waste disputes.

What Is Voluntary Waste?

Voluntary waste. A voluntary waste is an act of commission, as tearing down a house. This kind of waste is committed in houses, in timber, and in land. It is committed in houses by removing wainscots, floors, benches, furnaces, window-glass, windows, doors, shelves, and other things once fixed to the freehold, although they may have been erected by the lessee himself, unless they were erected for the purposes of trade. And this kind of waste may take place not only in pulling down houses, or parts of them, but also in changing their forms; as, if the tenant pull down a house and erect a new one in the place, whether it be larger or smaller than the first or convert a parlor into a stable; or a grist-mill into a fulling-mill or turn two rooms into one.

The building of a house where there was none before is said to be a waste and taking it down after it is built, is a waste. It is a general rule that when a lessee has annexed anything to the freehold during the term, and afterwards takes it away, it is waste. This principle is established in the French law.

But at a very early period several exceptions were attempted to be made to this rule, which were at last effectually engrafted upon it in favor of trade, and of those vessels and utensils, which are immediately subservient to the purposes of trade.

This relaxation of the old rule has taken place between two descriptions of persons; that is, between the landlord and tenant, and between the tenant for life or tenant in tail and the remainder-man or reversioner.

As between the landlord and tenant it is now the law, that if the lessee annex any chattel to the house for the purpose of his trade, he may disunite it during the continuance of his interest, But this relation extends only to erections for the purposes of trade.

It has been decided that a tenant for years may remove cider-mills, ornamental marble chimney pieces, wainscots fixed only by screws, and such like. A tenant of a farm cannot remove buildings which he has erected for the purposes of husbandry, and the better enjoyment of the profits of the land, though he thereby leaves the premises the same as when he entered.

Legal Consequences of Voluntary Waste

The law treats voluntary waste seriously because it involves intentional acts that reduce property value. A tenant who commits voluntary waste may face:

  • Damages: Monetary compensation to restore the property’s value.
  • Injunctions: Court orders requiring the tenant to stop destructive activities.
  • Forfeiture: In severe cases, the landlord may seek termination of the lease.

For example, demolishing a barn without the landlord’s consent, or opening a new mine on leased land, can be grounds for forfeiture. Even if the tenant believes the improvement is beneficial, courts emphasize protecting the reversionary interest of the property owner.

When Can Voluntary Waste Be Committed?

Voluntary waste may be committed on timber, and in the country from which we have borrowed our laws, the law is very strict. In Pennsylvania, however, and many of the other states, the law has applied itself to our situation, and those acts which in England would amount to waste, are not so accounted here.

Where wild and uncultivated land, wholly covered with wood and timber, is leased, the lessee may fell a part pf the wood and timber, so as to fit the land for cultivation, without being liable to waste, but he cannot cut down the whole so as permanently to injure the inheritance. And to what extent the wood and timber on such land may be cut down without waste, is a question of fact for the jury under the direction of the court. The tenant may cut down trees for the reparation of the houses, fences, hedges, stiles, gates, and the like and for mixing and repairing all instruments of husbandry, as ploughs, carts, harrows, rakes, forks, etc. The tenant may, when he is unrestrained by the terms of his lease, out down timber, if there be not enough dead timber. Where the tenant, by the conditions of his lease, is entitled to cut down timber, he is restrained nevertheless from cutting down ornamental trees, or those planted for shelter or to exclude objects from sight.

Windfalls are the property of the landlord, for whatever is severed by inevitable necessity, as by a tempest, or by a trespasser, and by wrong, belongs to him who has the inheritance.

Waste is frequently committed on cultivated fields, orchards, gardens, meadows, and the like. It is proper here to remark that there is an implied covenant or agreement on the part of the lessee to use a farm in a husbandman-like manner, and not to exhaust the soil by neglectful or improper tillage. It is therefore waste to convert arable to woodland and the contrary, or meadow to arable; or meadow to orchard.

Cutting down fruit trees although planted by the tenant himself, is waste; and it was held to be waste for an outgoing tenant of garden ground to plough up strawberry beds which be had bought of a former tenant when he entered. It is a general rule that when lands are leased on which there are open mines of metal or coal or pits of gravel, lime, clay, brick, earth, stone, and the like, the tenant may dig out of such mines, or pits. But he cannot open any new mines or pits without being guilty of waste and carrying away the soil, is waste.

Examples of the Act of Waste in Real Estate

Common examples of the act of waste real estate include:

  • Structural destruction – tearing down walls, roofs, or entire buildings without authorization.
  • Resource exploitation – cutting timber, removing soil, or mining beyond lease rights.
  • Neglecting property use restrictions – converting farmland to industrial use, or altering residential properties to commercial without approval.
  • Removing fixtures – taking out built-in appliances, doors, or windows, even if initially installed by the tenant.

Courts weigh whether the act permanently harms the property or changes its intended use. Actions that alter the property but improve its value may still be classified as waste if they interfere with the owner’s expectations.

What Is Permissive Waste?

Permissive waste. Permissive waste in houses is punishable where the tenant is expressly bound to repair, or where he is so bound on an implied covenant. It is waste if the tenant suffer a house leased to him to remain uncovered so long that the rafters or other timbers of the house become rotten, unless the house was uncovered when the tenant took possession.

Of remedies for waste. The ancient writ of waste has been superseded. It is usual to bring case in the nature of waste instead of the action of waste, as well for permissive as voluntary waste.

Some decisions have made it doubtful whether an action on the case for permissive waste can be maintained against any tenant for years. Even where the lessee covenants not to do waste, the lessor has his election to bring either an action on the case, or of, covenant, against the lessee for waste done by him during the term. In an action on the case in the nature of waste, the plaintiff recovers only damages for the waste. The latter action has this advantage over an action of waste, that it may be brought by him in reversion or remainder for life or years, as well as in fee or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste.

Remedies and Prevention of Waste

The remedies available for waste vary by jurisdiction but generally include:

  • Damages: Compensating the property owner for the loss in value.
  • Injunctions: Preventing further harmful actions by the tenant.
  • Lease termination or forfeiture: Ending the tenant’s rights in cases of serious or repeated waste.

To prevent waste, property owners often:

  • Include clear covenants in leases requiring tenants to maintain and repair property.
  • Conduct regular inspections to identify early signs of damage.
  • Require security deposits or bonds to cover potential waste-related losses.

By enforcing these measures, landlords protect their long-term interests and minimize costly disputes.

Frequently Asked Questions

  1. What does “act of waste real estate” mean?
    It refers to actions by a tenant or property holder that damage or diminish the property’s value, harming the rights of the landlord or future owner.
  2. What are examples of voluntary waste?
    Examples include tearing down buildings, cutting timber beyond what is needed for repairs, or opening unauthorized mines.
  3. Can improving property still be considered waste?
    Yes. Even if improvements increase value, if they alter the property’s character or intended use without consent, courts may classify it as ameliorative waste.
  4. What remedies exist for waste in real estate?
    Remedies include damages, injunctions, and in some cases lease forfeiture or termination of the tenant’s interest.
  5. How can landlords prevent waste?
    They can include maintenance covenants in leases, conduct inspections, and require deposits or bonds to cover potential damages.

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