Tuesday, April 17, 2012

Ameliorative Waste

Ameliorative waste occurs in both the context of a life tenant and a remainderman (when a remainderman sues a life tenant for waste), as well as a tenant and landlord (when a landlord sues a tenant for waste). In both contexts, the definition of ameliorative waste is the same. Ameliorative waste is a change that benefits the property economically. The analysis for the two contexts differs slightly.

In regards to a life tenant and remainderman, you should first determine whether the change to the property diminished the value of the future interest, or whether a remainderman objected to the changes. If both of these questions are answered in the negative, then the changes are allowable, and no waste has occurred.

If, however, either one of those questions is answered in the affirmative, then the waste will be actionable unless a substantial and permanent change in neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness.

In regards to a lease context, if the tenant alters the leased property (and the alterations increase the value of the property) ameliorative waste has occurred, and the tenant will be liable if the property needs to be restored to its condition prior to the changes. The only exception permits a tenant to make this type of change if he is a long-term tenant and the change reflects changes in the neighborhood.

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