Duhaime's Law Dictionary

Permissive Waste Definition:

The failure of a possessor of a thing to exercise the care of a reasonable person to preserve and protect the estate for future interests.

Related Terms: Waste, Voluntary Waste, Negligence

A form of waste in the law of trusts; distinguished from voluntary waste which is the direct, harmful act of a trustee upon the property in which he is under a fiduciary duty to protect, such as the destruction of a building forming part of the trust, or the cutting of trees on trust land.

In permissive waste, the tort of the trustee is that of negligence, as failure to remove snow on a sagging roof; failure to pay property taxes or maintain insurance or to secure the property from rodents.

In Jowdry v Guerin, Justice Donofrio of the Court of Appeals of Arizona adopted these words:

"Waste is a species of tort, which may be briefly and very generally defined as the destruction, misuse, alteration, or neglect of premises by one lawfully in possession thereof, to the prejudice of the estate or interest therein of another....

"Waste is classified as voluntary or actual (sometimes called commissive), and permissive or negligent waste.

"Voluntary waste may be done by such acts as destroying, altering, or removing buildings, or cutting down timber trees.

"The failure of the tenant to exercise the ordinary care of a prudent man for the preservation and protection of the estate is permissive waste."

In White Mountain Apache Tribe, the argument was made that the American federal government acted as trustee of lands for the plaintiff tribe. Justice Dyk of the United States Court of Appeals wrote:

"Waste is generally defined as the destruction, alteration, misuse, or neglect of property by one in rightful possession to the detriment of another's interest in the same property.

"Permissive waste ... generally results from the failure of the possessor to exercise the care of a reasonable person to preserve and protect the estate for future interests. That care of a reasonable person accordingly requires a tenant to keep the premises in the condition it was in when the tenancy began, general wear and tear excepted.

"It is the duty of the trustee to use care and skill to preserve the trust property. The standard of care and skill which is applicable to this duty, as it is to his other duties, is that of a man of ordinary prudence.

"Here we believe that general principles of trust law obligate the (trustee) United States to use reasonable care and skill, to preserve the trust property from loss, damage or diminution in value. This obligation includes an obligation to make appropriate repairs to buildings... The trustee is ordinarily under a duty to keep in proper repair buildings and other property that he holds in trust. Such repairs include whatever is reasonably necessary to preserve the property and to keep it in proper condition.

"The government as trustee owes the beneficiary [here, the Tribe] the duty of using the care of a reasonably prudent man in protecting the trust res against decay and deterioration caused by use, by the elements, by catastrophe, or otherwise.... Indeed, under the common law of trusts, the first duty of a trustee must be to preserve the trust property intact. To do this, he must not suffer the estate to waste or diminish, or fall out of repair.

"A trustee's failure to act reasonably to preserve the trust property will also support a claim for permissive waste, a type of claim which is analogous to a claim under the law of property."


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