Chapter § 64.2 TYPES OF WASTE

• Jurisdiction: Oregon

§ 64.2 TYPES OF WASTE

§ 64.2-1 Waste as to Improvements

Damage to or destruction of improvements constitutes waste, even if the damage can be remedied. Johnson v. Nw. Acceptance Corp., 259 Or 1, 16-17, 485 P2d 12 (1971). Any material unauthorized alteration of improvements is waste, even though the change may add to the value of the property. Davenport v. Magoon, 13 Or 3, 4 P 299 (1884). In Davenport, the lessee had the right under the lease to "make alterations in the building now on said lands so as to adapt it to other business than that of a livery stable." Davenport, 13 Or at 4. Nevertheless, the court held that to tear down the building completely would constitute waste, even though the lessee contemplated building a better and more expensive building on the land. Davenport, 13 Or at 4-6. The rationale of this rule is that the tenant has an obligation to preserve the identity and character of the property. Some other jurisdictions, however, will consider the effect on the value of the remainder along with the expectations of the parties in deciding if the alteration constitutes waste. See 93 CJS Waste § 7 (supplemented periodically).

Absent an agreement to the contrary, the tenant must make all ordinary repairs necessary to preserve the property and prevent its going to waste, at least to the extent of its rental value. The tenant is bound to keep the premises in as good repair as when the tenant received them, not entirely excepting ordinary wear and tear. In re Stout's Estate, 151 Or 411, 50 P2d 768 (1935). In In re Stout's Estate, a remainderman brought an action for waste against the estate of a life tenant in possession of a residential building. The building had been left vacant for two years and had been stripped and vandalized by trespassers. The court held that the life tenant was responsible for all ordinary repairs needed during the tenancy to preserve the property in as good condition as when the tenant received it. For example, if the tenancy lasts for the first 19 years of the useful life of a 20-year roof, the tenant is not responsible for repair since the need did not arise during the tenancy. In this case necessary repairs were not made and waste resulted. As a result, a cause of action lies in tort for damages equal to the diminution in market value caused by the waste. Repair costs were held to be relevant evidence on the issue of diminution in value. In re Stout's Estate, 151 Or at 411.

To determine what constitutes waste as to...