Who is suing whom for what?
Remaindermen (daughter and grandson) are suing the estate of the life tenant (Ada Brannan) for waste, seeking damages for the deterioration of a farmhouse due to the neglect of the life tenant
Leslie Brannan died in 1962 and his will devised his farm “to his wife, Ada, for her life, then to Dorothy Moore and Kent Reinhardt in fee simple absolute.”
Life Estate: Ada
Remainder in FSA: Dorothy and Kent (plaintiffs)
If I own Blackacre outright in Fee Simple Absolute, generally speaking I can use or abuse the property as I wish (subject to certain limitations, such as health and safety laws intended to protect society’s interest).
If I wish to allow my property to deteriorate, I may do so.
If I wish to alter the property, I may do so.
If the Padres lose an important game, I can take a hammer and demo the living room (like Ben and Erin Napier on HGTV)
I can cut down trees and tear down buildings.
And as Lady Day might croon, “it ain’t nobody’s business if I do.”
But now suppose Grutz conveys Blackacre “to Duncan for Life, then to Schutz and his heirs.”
I have a life estate—the present possessory estate—and Schutz has a remainder in fee simple absolute. He is the present owner of a future fee simple estate in Blackacre.
Now whose business is it if I start knocking down buildings and cutting down trees? Or even if I refuse to repair a leaky roof?
Should there be some limits in this situation on my harmful treatment of Blackacre during my life estate?
What is “waste?”
Waste is injury to the property caused by the person in possession of land that is wrongful to another person who owns an interest in the same land.
There are two classes of waste:
1. Voluntary waste: the commission of some affirmative act causing injury to the property
--for example, my knocking down the walls of the family room after the Dodgers beat the Padres in the postseason.
--Or my bulldozing the house on Blackacre because I decide to make Greta Thunberg happy by shrinking my carbon footprint and living in a tent.
2. The second class of waste is Permissive Waste, which is the failure to preserve the property in a reasonable state of repair so as to prevent deterioration and decay.
Let’s talk about permissive waste first, since that was what was involved in Moore v. Phillips.
Suppose the land is a farm including a farmhouse and various barns and farm structures.
What should I (the owner of the life estate) be required to do to maintain them for the remainderman?
There is no specific standard other than one of reasonableness—the life tenant is required to preserve the land and structures in a reasonable state of repair. For example:
--the life tenant has a duty to repaint exterior surfaces when failure to do so would expose the structure to serious rot or deterioration
--a duty to keep the premises wind-tight and watertight to protect against rot and deterioration [fix broken windows and repair leaky roofs and foundations]
--but no duty to make repairs resulting from ordinary wear and tear unless such conditions would expose the structure to rot and deterioration.
