Waste Law Definition Elements Defense Lawyer
Definition
Waste is an unlawful act or omission of duty by a person in possession of real property that results in an injury to the property. (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984; Cal. Civ. Proc. Code, § 732.)
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Element 1: Standing
The owner of the land, or an owner of an interest in the land, has standing to sue for waste. (Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 597-98; see also Cal. Civ. Proc. Code, § 732 [any person aggrieved by the waste may bring an action for therefore].)
Waste is primarily an action by an out-of-possession owner against an offending party in possession of the property. (Smith v. Cap Concrete (1982) 133 Cal.App.3d 769.)
If a guardian, conservator, tenant for life or years, joint tenant, or tenant in common of real property commits waste on the property, the out-of-possession owner of the property may bring an action against him or her for treble damages. (Cal. Civ. Proc. Code, § 732.)
Waste is actionable at the behest of, and for the protection of the reasonable expectations of, another owner of an interest in the same land. (Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 597-98.)
“Waste evolved and broadened from a cause of action designed to protect owners of succeeding estates against the improper conduct of the person in possession which harmed and affected the inheritance, to a legal means by which any concurrent nonpossessory holders of interest in the land are enabled to prevent or restrain harm to the land committed by persons in possession.” (Smith v. Cap Concrete (1982)133 Cal.App.3d 769, 775 (quoting Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 597-98.)
Element 2: Possessor’s Wrongful Conduct
In order to state a cause of action for waste, a plaintiff must plead and prove that the defendant was under a duty to preserve and protect the property involved. (Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82.)
The possessor may be liable to the owner for any unlawful act or omission of duty that injures the land. (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984; Cal. Civ. Proc. Code, § 732.) The defendant is generally a tenant, but persons who enter onto property with the consent of a possessor may also be liable. (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984; Cal. Civ. Proc. Code, § 732.)
A waste action may be maintained against those in possession as well as those who enter with the consent of the possessor. (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 776 [persons who entered property with possessor’s consent had sufficient privity of title to be subject to an action for waste].)
The owner of a life estate may use the land in the same manner as the owner of a fee simple, except that he must do no act to the injury of the inheritance. (Cal. Civ. Code, § 818.)
Wrongful conduct includes acts of commission and omission. (Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 597-98.)
Element 3: Causation and Damage
Waste occurs only when the injury to real property is “sufficiently substantial and permanent.” (Avalon [Pacific–] Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1215.)
To constitute waste, the defendant’s acts must proximately cause an injury to the land. (Avalon [Pacific–] Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1215.)
While loss of market value is the ultimate test, it is a measure which will be applied flexibly, bearing in mind the quantity or quality of the estate, the nature and species of property, and the relation to it of the person charged to have committed the wrong. (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 777.)
Presence of broken concrete fill on land may constitute waste. (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 777.)
Remedies
Compensatory Damages
Damages may be measured by loss of market value or cost of removal. (Cal. Civ. Code, § 3333; Smith v. Cap Concrete (1982) 133 Cal.App.3d 769, 778.)
Statutory Treble Damages
(See Cal. Civ. Proc. Code, § 732.)
Punitive Damages
Punitive damages are available for an action for waste. (See Cal. Civ. Code, § 3294.)
Statute of Limitations
The statute of limitations is three years. (Cal. Civ. Proc. Code, § 338, subd. (b).)
Affirmative Defenses
Statute of Limitations (see above)
Consent
Consent is an affirmative defense to waste. (See Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 778.)