Ameliorating Waste In England and The United States
| Date | 01 March 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00350.x |
| Published date | 01 March 1956 |
| Author | D. C. M. Yardley |
AMELIORATING WASTE IN ENGLAND
AND THE UNITED STATES
THE
rule has become well established in English law that a landlord
may not recover damages
or
obtain an injunction against his tenant
for years where such tenant has changed the course of husbandry
of the property in such a way as to amount to ameliorating waste.
We shall revert to this rule and to the phenomena of ameliorating
waste
in
a few moments, but
Dr.
Cheshire has suggested that the
Town and Country Planning Act,
1947,
may become the means
of
encouraging courts to grant injunctions more readily against
acts now considered as ameliorating waste,' and that in fact a
change might take place in this intriguing backwater of English
law. His remarks also throw some light upon an injuitice which
seems implicit
in
the law as it stands today, namely that the
ameliorating quality
of
a change brought about in the course
of
'husbandry by a lessee is judged according to the values of the day
objectively, and not according
to
the personal values given
to
the
change by the lessor. The fact that the lessor may have no desire
for increased profit may have been overlookedYa but what appears
to be the prevailing view in America takes such a desire into
account, and it is the purpose
of
this article to elucidate the state
of the law on this point
in
the United States, and to show how
the Town and Country Planning Act may help us to acquire a
more upto-date rule in English law.
A tenant has leased
for
a term
of
twenty years a farm which included a windmill pumping water
for
the
farm, and he has covenanted, among other things, to repair
the windmill and to insure
it
against destruction by lightning.
After the lease has run for eighteen years the windmill
is
badly
damaged by lightning, and the tenant pulls down what remains
of
it, constructing in its place a new shed containing an engine, which
is more powerful and capable of producing more water than the old
windmill.
Does
the action of the tenant amount to ameliorating
waste,
cr
is he guilty of ordinary voluntary waste? Has the
property inevitably increased in value,
or
is it open to the landlord
to insist that the tenant should have repaired the windmill and
This article is
restricted
to
the relationship
of
landlord
and tenant. The law
of
waste
also
applies in the case
of
a
tenant for life, but the discussion will not be expanded
to
include the intricacies of settled land and trusts
for
sale.
1
But compare
Doherty
v.
Allman
(1877)
3
App.Cas.
709,
in which
it
is
hard
to think that such
a
desire can have been overlooked. The lessor was
positively objecting
to
the conversion of dilnpidated buildings into profitable
dwellinghouses.
Let us pose a problem.
1
The
Modern
Law
of
Real
Property,
7th ed.,
1954,
p.
199.
150
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