The word waste provides rich imagery for a fertile imagination. Waste is associated with many unsavory expressions: “wasted, waste product, waste away, and go to waste.” From a legal standpoint, however, “waste” is a narrowly defined concept in property law. It means the “unreasonable conduct by the owner of a possessory estate that results in physical damage to the real estate and substantial diminution in the value of the estates in which others have an interest.” https://casetext.com/case/pleasure-time-inc-v-kuss More simply, waste is the destruction of houses or lands by a tenant or holder of a life estate.Committing waste has significant legal consequences. Wisconsin law provides that, if an interference with land constitutes waste, “the court shall give judgment for double the damages found.” Wis. Stat. § 844.19(2). In practice, this statute is rarely used despite being a powerful tool for landowners to recover for damage to their properties. Some examples from case law illustrate the law’s application:
- A tenant for life who neglects to pay taxes that accrue after his tenancy commences is liable to an action for waste.
- Damage to carpeting and subflooring by a tenant in a residential lease.
In one notable case, Melms v. Pabst Brewing Co., the Wisconsin Supreme delineated the law of waste in a lawsuit concerning a mansion that was demolished. Captain Frederick Pabst (of Pabst Blue Ribbon fame) demolished the Melms’ mansion. Pabst wrongly thought he owned the mansion, but instead had only a life estate. (An estate held only for the duration of specified person’s life, usu. the possessor’s) He was sued for committing waste in tearing down the mansion. The Melms side argued Pabst should compensate them with an amount sufficient to cover the costs of rebuilding the mansion. Pabst argued he had done the Melms side a favor by demolishing the mansion as it detracted from the value of the land. Pabst argued that the mansion had no value because it was surrounded by industry and the best use of the land was for manufacturing. Ultimately, the Wisconsin Supreme Court held that Pabst did not commit waste. The Court poetically explained that:
The evidence shows that the property became valueless for the purpose of residence property as the result of the growth and development of a great city. Business and manufacturing interests advanced and surrounded the once elegant mansion, until it stood isolated and alone, standing upon just enough ground to support it, and surrounded by factories and railway tracks, absolutely undesirable as a residence and incapable of any use as business property. Here was a complete change of conditions, not produced by the tenant, but resulting from causes which none could control. Can it be reasonably or logically said that this entire change of condition is to be completely ignored, and the ironclad rule applied that the tenant can make no change in the uses of the property because he will destroy its identity?
After the Melms’ decision, the courts now assess whether the change to the property was economically advantageous. Although the law of waste is archaic in origin, it is still relevant today. Property owners whose interests are harmed by tenants should consider bringing a claim for waste if their property is substantially damaged by the unreasonable conduct of a tenant.
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