Chapter § 64.1 DEFINITION AND INTRODUCTION

• Jurisdiction: Oregon

§ 64.1 DEFINITION AND INTRODUCTION

Waste is a tort for injury to property. Jones v. Bierek, 88 Or App 11, 14, 743 P2d 1153 (1987), aff'd, 306 Or 42, 755 P2d 698 (1988) (suit for personal injuries suffered in a fall from a stairway that was inadequately lighted; two-year tort statute of limitations applied because plaintiff had a common-law claim independent of the rental agreement or the Residential Landlord and Tenant Act). It involves the "destruction or material alteration of any part of a tenement" by a party having a possessory interest in the property (e.g., tenant, mortgagor, trustor, purchaser) to the injury of some other person having an interest, usually nonpossessory, in the property (e.g., remainderman, landlord, mortgagee, trustee, seller). Davenport v. Magoon, 13 Or 3, 6, 4 P 299 (1884). In other words, waste is the failure of the party rightfully in possession of real property to fulfill the obligation owed to others holding an interest in the same real property. The extent of this obligation varies with the legal relationship between the parties and their reasonable expectations regarding responsibility for protecting the property. In re Stout's Estate, 151 Or 411, 426, 50 P2d 768 (1935). Usually, for there to be waste, the injury must rise to a level that "causes the property's value to decrease as the result of abuse or destruction"; although the abuse or destruction can result from an act or omission. Whistler v. Hyder, 129 Or App 344, 349, 879 P2d 214, rev den, 320 Or 453 (1994) (citing In re Stout's Estate, 151 Or at 422). Various legal relationships in which waste can occur are discussed in § 64.4-1 to § 64.5-9.

Liability for waste may be statutory, contractual, or based on common law. When liability is based on contract, the law of waste is often...