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Life Tenancy and Waste

On Behalf of | Oct 19, 2012 | Real Estate Law |

Chances are that most people are not aware that “waste” is a cause of action that can be brought against life tenants who mismanage real property while it is in their possession.

Pursuant to M.G.L. c. 242, § 1, a valid claim of waste may exist

[i]f a tenant . . . for life . . . commits or suffers waste on the land so held, [such that] the person having the next immediate estate of inheritance may have an action of waste against such tenant to recover the place wasted and the amount of the damage.

The fairly recent case of Matteson v. Walsh, 79 Mass. App. Ct. 402, 405-07 (2011), succinctly defined “waste”:

Waste has been defined as ‘an unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession, which results in its substantial injury.’ Thayer v. Shorey, 287 Mass. 76, 81, 191 N.E. 435 (1934), quoting from Delano v. Smith, 206 Mass. 365, 370, 92 N.E. 500 (1910) (Delano). In Delano, supra, the court further defined waste as ‘the violation of an obligation to treat the premises in such manner that no harm be done to them and that the estate may revert to those having an underlying interest undeteriorated by any wilful or negligent act. [citations omitted]’

Waste has been held to include physical injury to the property, neglecting buildings to a point of severe or substantial disrepair/deterioration, and the failure to pay taxes to the point that it results in tax-taking documents being recorded by the municipality or tax authority.

To the extent that this form of land ownership and possession is sometimes used as an estate planning tool, it is important to understand that there is potential for litigation if property is mismanaged, and particularly when conflict arises between life tenants and remaindermen and/or when the life tenant cannot afford to take care of the property adequately.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.


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