Chapter § 64.5 OTHER PARTIES TO WASTE

• Jurisdiction: Oregon

§ 64.5 OTHER PARTIES TO WASTE

§ 64.5-1 Introduction

Waste can be committed only by a person rightfully in possession of real property. In addition to those already discussed in this chapter, waste may occur in any of the relationships addressed in § 64.5-2 to § 64.5-9.

§ 64.5-2 Life Tenants

A life tenant in Oregon, like a tenant under a lease, is responsible for making all reasonable repairs required to preserve the property and prevent waste. In re Stout's Estate, 151 Or 411, 420, 50 P2d 768 (1935); 93 CJS Waste § 10 (supplemented periodically); Waste, 78 Am Jur2d § 10 (2013) (supplemented periodically). The rationale is that the life tenant receives all of the rents, income, and profits growing out of the use of the property during his or her tenancy. In re Stout's Estate, 151 Or at 420. Whether the life tenant has committed waste is determined by whether the act or omission injured the reversionary or remainder interests. In re Stout's Estate, 151 Or at 422. Damages awarded to remainder or reversionary interests are determined the same way as with waste committed by a purchaser under a land sale contract. If diminution in value is the measure, damages is the difference between the value of the property in its present condition and what it would have been worth had the life tenant maintained the property as a reasonably prudent person under similar circumstances. In re Stout's Estate, 151 Or at 423. See § 64.6-3(a) to § 64.6-3(c) for further discussion regarding the proper measure of damages.

NOTE: ORS 105.825 provides a statutory remedy to "[a] person seized of an estate in remainder or reversion . . . for any injury to the inheritance, notwithstanding the presence of an intervening estate for life or years."
PRACTICE TIP: To argue exceptions to the above rule regarding the life tenant's duty, an attorney should argue that the acts complained of are not waste. For example, in Pedro v. January, 261 Or 582, 494 P2d 868 (1972), the life tenant cut down some timber on the property. The court considered whether circumstances existed requiring the life tenant to thin trees to promote growth for commercial purposes, or whether it was the custom of the estate and primary use of the property to commercially exploit the timber. Because the property was used primarily for grazing, the court held that no exception applied. Pedro, 261 Or at 595.

NOTE: Consider Gilfry v. Gilfry, 248 Or 358, 363, 434 P2d 348 (1967), in which the court recited the corollary proposition

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