WASTE DOCTRINE an injury of lasting character committed by the holder of a which Waste PPE – affects a OR concurrent interest, OR security interest FPI, is NOT necessarily physical or economic, BUT much broader (i.e. Injury change in character of property, boundary lines) is NOT necessarily permanent, BUT more than temporary Lasting is committed by one w/ NO right to be on thus, action Trespass property… against holder of is for (NOT PPE waste trespass) action may be brought against holder of Waste PPE by… Holder of FPI Co-tenant (2(+) people w/ simultaneous right of possession) Lender (if/when borrower trashes property upon default/foreclosure) Types of waste… holder actively doing something NOT entitled Active waste – holder failing to fulfill duty to do something (inactive) Passive waste – change in character of property that benefits property Ameliorating waste – Grantor MAY expressly state whether or not holder of may make changes to PPE property… BUT, if intent is NOT clear, then factual analysis is … grantor’s required… thus, if A (holding wants to make change, and B (holding wants PPE) FPI) … to block change factors to consider… Length of time (i.e. 99-yr. lease vs. 1-yr. lease) Certainty of possession of (i.e. vs. FPI reversion CR) Changes in area AND impact Cause of changes Time b/w conveyance and desire to make change grantor’s A’s Remedies… B learning of desire to make change MAY obtain injunction… A’s BUT, if B is unable to enjoin A, then MAY bring … suit for… (though, MAY not be available w/ Diminution in value/economic damages ameliorating waste) (replace though unlikely as remedy) Specific performance waste, (secondary remedy when not Punitive damages economic damages available)
WASTE DOCTRINE Waste – an injury of lasting character committed by the holder of a PPE which affects a FPI, OR concurrent interest, OR security interest Injury is NOT necessarily physical or economic, BUT much broader (i.e. change in character of property, boundary lines) Lasting is NOT necessarily permanent, BUT more than temporary Trespass is committed by one w/ NO right to be on property… thus, action against holder of PPE is for waste (NOT trespass) Waste action may be brought against holder of PPE by… Holder of FPI Co-tenant (2(+) people w/ simultaneous right of possession) Lender (if/when borrower trashes property upon default/foreclosure) Types of waste… Active waste – holder actively doing something NOT entitled Passive waste – holder failing to fulfill duty to do something (inactive) Ameliorating waste – change in character of property that benefits property Grantor MAY expressly state whether or not holder of PPE may make changes to property… … BUT, if grantor’s intent is NOT clear, then factual analysis is required… … thus, if A (holding PPE) wants to make change, and B (holding FPI) wants to block change factors to consider… Length of time (i.e. 99-yr. lease vs. 1-yr. lease) Certainty of possession of FPI (i.e. reversion vs. CR) Changes in area AND impact Cause of changes Time b/w grantor’s conveyance and A’s desire to make change Remedies… B learning of A’s desire to make change MAY obtain injunction… … BUT, if B is unable to enjoin A, then MAY bring suit for… Diminution in value/economic damages (though, MAY not be available w/ ameliorating waste) Specific performance (replace waste, though unlikely as remedy) Punitive damages (secondary remedy when economic damages not available)
Property-2_Coskran-Spring-2009.docx