George Mason
Law Review

Misconstruing Melms: The Fall of Ameliorative Waste

Zach Villemez
Volume 28
Issue 3


Land use disputes can arise when multiple parties have temporally successive interests in the same real property, involving one party who presently possesses the property and another party with a future interest who will likely retake the property after a certain period.1Sally Brown Richardson, Reframing Ameliorative Waste, 65 Am. J. Comp. L. 335, 336 (2017). Waste is a doctrine that governs such disputes. The future interest holder brings an action of waste against the present possessor to prevent him from injuring the future interest in the property.2Thomas W. Merrill, Melms v. Pabst Brewing Co. and the Doctrine of Waste in American Property Law, 94 Marq. L. Rev. 1055, 1056 (2011). Voluntary and permissive waste are the two more common forms these actions take. If the life tenant3Landlord-tenant relations today are typically governed by short-term contracts that specifically stipulate what the tenant cannot do to the property, making waste law virtually obsolete in that context. Id. at 1085. Since today’s waste disputes most often occur in the context of life estates and remainders, this Comment will most often use “life tenant” when referring to present possessors in general and “remainderman” or “remaindermen” when referring to the future interest holder(s). This sort of interest-sharing relationship is created when an owner conveys his property, usually by will, to someone only for his lifetime, so that it is passed to a named remainderman and his heirs in permanent ownership (fee simple) after the life tenancy is up, and there is no privity between the life tenant and the remainderman. 31 C.J.S. Estates § 40. commits an act to injure the property (e.g., tears down a house), he is a perpetrator of voluntary waste.4Richardson, supra note 1, at 336. If the life tenant fails to act (e.g., allows a house to fall into disrepair), the remainderman has a case for permissive waste.5Id. at 336–37.

The third and more contentious variety is ameliorative waste. Whereas the other two forms hinge on measurable damage done to the property, the life tenant commits ameliorative waste when he makes a significant change to the property that actually increases its market value.6Merrill, supra note 2, at 1057. Take the facts of Woodrick v. Wood,7No. 65207, 1994 WL 236287 (Ohio Ct. App. May 26, 1994). a fairly recent waste case. In Woodrick, a man conveys his property by will to his wife in a life estate interest and then to his children as remaindermen.8Id. at *1. A barn on the property falls into disuse during the now-widow’s tenancy, and she intends to raze it.9Id. The conveyor’s daughter, a remainderman, files suit to enjoin the widow, but the widow shows by appraisal evidence that, because of the barn’s dilapidated state, destroying it would actually increase the property’s value.10Id. Should this still be considered actionable waste, forcing the widow to keep the barn until the property reaches its more permanent owner? Or should she be allowed to destroy the barn because doing so would be the most economic decision regarding the property?

These opposing views of ameliorative waste reflect a fundamental division recurring throughout property law.11Merrill, supra note 2, at 1055. Those who view property as an individual right believe that because remaindermen have been given a property right; they have been given security that they will be allowed to use the property how they see fit, even if that desire is idiosyncratic and runs counter to economic efficiency.12Eric Claeys,Dividing Ownership: Derivative Property Rights, in Natural Property Rights (forthcoming 2022) (manuscript at 33–34) (on file with author). Because the life tenant and the remainderman have entered into an agreement where each has an interest that is less than full ownership, each should be entitled to use and enjoy the property as it was conveyed, which the remainderman cannot do if the other party significantly alters it.13Id. The widow should have to keep the barn for the sake of the daughter. On the other hand, subscribers of the property-as-social-institution view would say that the main function of property is “to maximize the value that society ascribes to particular things.”14Merrill, supra note 2, at 1055. Because society benefits from land being as valuable as possible, the widow should be allowed to maximize her life estate’s worth by razing the barn.

Over the course of the twenty-first century, American jurisprudence has grown to embrace the latter view more and more as it pertains to waste law. In fact, at this point most courts practically apply a pure wealth maximization test: any alteration that increases the value of the property does not constitute waste.15Richardson, supra note 1, at 371. Just ten states define waste as any material alteration of the property, regardless of whether it adds value. Merrill, supra note 2, at 1083 (citing Gina Cora, Want Not, Waste Not: Contracting Around the Law of Ameliorative Waste 11 (Apr. 1, 2009) (unpublished comment), Ameliorative waste is for the most part dead.

This Comment seeks to track the doctrine’s erosion, particularly as it has spiraled following the two most influential cases in the field, Melms v. Pabst Brewing Co.1679 N.W. 738 (Wis. 1899). and Brokaw v. Fairchild.17237 N.Y.S. 6 (Sup. Ct. 1929), aff’d, 245 N.Y.S. 402 (App. Div. 1930) (mem.), aff’d, 177 N.E. 186 (N.Y. 1931) (mem.).Melms held that a life tenant could raze a mansion on the property that had come to be surrounded by an industrial neighborhood.18See Melms, 79 N.W. at 741. The property was worth much more if it were retrofitted for an industrial purpose because of these changed conditions.19Id. at 740. Three decades later, Brokaw instead found judgment for the remaindermen who sought to keep the life tenant from tearing down a mansion, this time for the purpose of building apartment buildings over it to reflect the surrounding land use.20Brokaw, 237 N.Y.S. at 14. This, the court said, would constitute waste.21Id. at 15. Many see these two cases as irreconcilable representations of the two overarching ideological outlooks on property.22Merrill, supra note 2, at 1083. Brokaw matches the rights-based view, and Melms takes “the view of property as a social institution”—so goes the conventional wisdom.23Id.

The academic and judicial backlash against Brokaw, seen as a rigid insistence on preservation of property, led the consensus to embrace Melms and brought on the pure wealth maximization test used today.24Id. at 1081. The modern doctrine allows the profit-seeking life tenant to always prevail, even though he is only temporary. This has created an inequitable imbalance—the party receiving the property afterward as the permanent, fee-simple owner should have more power in this dynamic. The remainderman expects to receive the land as conveyed, and his expectations should be protected, no matter how idiosyncratic or counter to economic efficiency they may be.25See id. at 1059.

Accordingly, this Comment calls for a more rights-based ameliorative waste doctrine that offers this protection. It does not, however, disregard Melms, like the social institution proponents so carelessly did to Brokaw. It purports a harmonious way of reading the two. To accomplish this, Part I of this Comment illustrates the evolution of ameliorative waste, centered around these two cases, and provides a brief survey of the differing modern views on the issue. Part II then takes the analyses from both Melms and Brokaw and puts forth a synthesized test in order to create a doctrine that allows life tenants some room to alter their temporary property, but in much narrower circumstances than they do today. The current doctrine in most states allows the life tenant to make any significant alteration as long as it does not decrease the property’s value, disregarding the fee simple (i.e., more permanent) interest of the remainderman who may idiosyncratically wish to receive the property as conveyed. In other words, the remainderman who may hold sentimental value in the property and prefer it as is rather than changed in a way that would financially be worth more. The proposed test remedies this problem by only allowing such alterations when they are necessary for the life tenant to enjoy the property, preserving the spirit of Melms’s changed-conditions standard while also seeking to better define it.

I.     Background: From Preservation to Posner

A.     The Common Law Doctrine and its Americanization

The English common law as it pertained to waste was much more respectful of the wishes of the landowner, that is, the remainderman who would overtake the property following the tenancy.26Jedediah Purdy, The American Transformation of Waste Doctrine: A Pluralist Interpretation, 91 Cornell L. Rev. 653, 662 (2006). There were many specific restrictions on the life tenant’s use of the land.27See id. For example, tenants could only take an amount of timber from the land that was necessary for maintaining buildings, making tools, and firewood.28Id. at 663. Tenants simply could not change patterns of land use, or commit any “material or ‘permanent injury to the inheritance.’”29Id. at 660 (quoting Jackson v. Brownson, 7 Johns. 227, 232–34 (N.Y. Sup. Ct. 1810)). They could not construct new buildings, even if doing so would increase the property’s value.30Id. at 663. They could neither allow land capable of being farmed to grow into a forest, nor cut down a forest to farm the land.31John G. Sprankling, The Antiwilderness Bias in American Property Law, 63 U. Chi. L. Rev. 519, 534 (1996). Existing uses were always preferred to new ones.32Id.

The United States adopted these common law standards but soon carved out an exception for forested land. In Jackson v. Brownson,337 Johns. 227 (N.Y. Sup. Ct. 1810). the Supreme Court of New York ruled that clearing timber in order to cultivate the land could not be considered waste because it was not a material injury to the inheritance, but still found the defendant guilty of waste because he had committed such a material injury by not leaving sufficient timber for basic upkeep.34See id. at 232–33. Other courts followed suit and soon a “good husbandry standard” was adopted to supplement the “material injury to the inheritance” standard: clearing forest for farming was not waste provided that the tenant preserved a small portion of the forest for basic needs.35Sprankling, supra note 31, at 535. This partial divergence from English law can be explained by the differences in the land of the two nations.36See id. at 532. Most of England’s land was already developed, so the law encouraged the continued use of this developed land.37Id. at 533. In contrast, vast parts of the United States were still wilderness, so the American policy post-Jackson was consciously “designed to stimulate the creation of productive land through the destruction of wilderness.”38Id.

It is important to note that Jackson’s “material injury to the inheritance” rule that led to the good husbandry standard was not concerned with property value.39See Purdy, supra note 26, at 673. The court found that waste occurred because the tenant had left less timber than was needed for basic upkeep.40Id. Waste thus depended on “a concept of appropriate use” rather than whether the property’s value increased or decreased.41Id. (emphasis omitted).

B.     Melms and Brokaw

1.     Melms Changes the Landscape

Coming at the tail end of the nineteenth century, Melms catalyzed a shift in American waste law.42Merrill, supranote 2, at 1058. As this Comment will discuss, many read Melms as an even greater shift—condoning acts that had previously been deemed waste so long as those acts increased the property’s value. See id. at 1056. Before this case, all courts would have regarded the destruction of a house as waste, but the interesting facts at hand caused the Supreme Court of Wisconsin to reconsider common wisdom.43See id. at 1081. Charles Melms conveyed a life estate in a piece of land with a mansion to his wife by will, but because of financial stress she renounced the will and sold the land to Frederick Pabst.44Id. at 1063–64. The neighborhood underwent a transformation, and soon the residential property was surrounded by factories and railway tracks.45Melms v. Pabst Brewing Co., 79 N.W. 738, 738 (Wis. 1899). It was clear the home would no longer rent for enough to pay for property taxes and insurance but that “it would again be useful, and its value would be largely enhanced” if it were graded down so that it could be used as a business property.46Id. Pabst, mistakenly believing that he owned the property in fee simple rather than as a life tenant, did this very thing and destroyed the mansion.47Id. Melms’s children, the remaindermen, sued for waste.48Id.

According to conventional wisdom, this case forever severed waste law from the common law and good husbandry standard, driving toward a doctrine conducive to the social institution view of property—but the opinion itself does not read so radical. Melms instead appears to carve out a limited exception to the current doctrine. The court linked the good husbandry rule with its finding that the life tenant had not committed waste by way of what it called “change of conditions”:

As we have before seen, the cutting of timber, which in England was considered waste, has become in this country an act which may be waste or not, according to the surrounding conditions and the rules of good husbandry . . . . The changes of conditions which justify these departures from early inflexible rules are no more marked nor complete than is the change of conditions which destroys the value of residence property as such, and renders it only useful for business purposes.49Id. at 740.

An uncontrollable change of conditions, a residence now completely surrounded by factories, had “deprived” the property as conveyed “of its value and usefulness.”50Id. at 741. The court said that alleviating this uselessness was not a material injury to the inheritance, as the property identity change in Jackson was.51Compare Melms, 79 N.W. at 741, with Jackson v. Brownson, 7 Johns. 227, 232–34 (N.Y. Sup. Ct. 1810).

The opinion is replete with absolutist language that intends to drive home how extreme a case this is to call for such an exception. It calls the neighborhood change “so complete” and “permanent” multiple times.52Melms, 79 N.W. at 740–41. The property was now “worthless,” “useless,” and “absolutely undesirable” due to its industrial surroundings.53Id. at 740. Furthermore, the opinion is very careful to stress how its holding should not be used to gut the rule of ameliorative waste as it stood. Near the end, Judge Winslow remarked, “This case is not to be construed as justifying a tenant in making substantial changes . . . to suit his own whim or convenience, because, perchance, he may be able to show that the change is in some degree beneficial.”54Id. at 741. These facts were not ordinary circumstances under which the remainderman would be entitled to receive the property in substantially the same condition as it was conveyed.55Id.

And yet, many saw Melms as supporting a reading that waste disputes should be resolved by comparing the economic values of the property before and after the change made by the life tenant.56E.g., Merrill, supra note 2, at 1056. The opinion certainly contains some of that language, stating that destroying the mansion would enhance the property’s value, while structurally moving away from the baseline rule that “changes in the nature of buildings, though enhancing the value of the property, will constitute waste if they change the identity of the estate.”57Melms, 79 N.W. at 740. But the opinion also stresses the importance of this ameliorative waste rule, stating that the facts of most cases will sustain it.58Id. And then Judge Winslow’s admonishment at the end removes all doubt that this holding is meant only as a narrow exception to the rule.

Even Professor Thomas Merrill, who recognizes the limitations of the opinion, says it “is consistent with the view of property as a social institution.”59Merrill, supra note 2, at 1059. This is because it calls for a “flexible standard” that asks which party’s desires are more congruent with the interests of society rather than insisting the absent owner always prevails.60Id. at 1059–60. As a proponent of property as an individual right on matters of waste, Merrill laments that Melms took a giant step toward the “understanding of property as economic value” in creating its exception.61Id. at 1075. He sees the opinion’s rhetorical question, “Must the tenant stand by and preserve the useless dwelling-house, so that he may at some future time turn it over to the reversioner, equally useless?” as implying that the duty to preserve property’s identity is trumped by considerations of economic value.62Id. (quoting Melms, 79 N.W. at 740). While this question itself does not necessitate an economic reading, and Melms and Brokaw can be read harmoniously, this Comment later challenges how the Melms court might define “useless” in partly economic terms based on other parts of the Melms opinion.

But regardless of how narrowly one reads Melms, it did not immediately open up a world of doctrine concerned primarily with monetary value. This began in earnest after the other major decision that framed the twentieth century argument for reforming the law of waste.63See id. at 1080.

2.     Brokaw Attempts to Follow Its Predecessor

Brokaw involved a residential plot in Manhattan, across from Central Park, upon which sat a mansion.64Brokaw v. Fairchild, 237 N.Y.S. 6, 9–10 (Sup. Ct. 1929), aff’d, 245 N.Y.S. 402 (App. Div. 1930) (mem.), aff’d, 177 N.E. 186 (N.Y. 1931) (mem.). The life tenant sought a declaratory judgment that it would not be waste to tear down the mansion and build an apartment building in its place, which the conveyor’s children, the remaindermen, opposed.65Id. at 9. Since the death of the conveyor, changed conditions had affected the surroundings: many apartments were erected, and the building of private homes had ceased.66Id. at 10. As a result, nobody wanted to rent the mansion from the life tenant, but there was “an excellent demand” for apartments.67Id. at 10–11. Upkeep for and taxes on the mansion were significant.68Id. at 10. Without being able to rent it out, the life tenant operated at a loss, while he stood to make a profit if it were an apartment building instead.69Id. at 11.

But the Supreme Court of New York County held that the life tenant’s proposed actions would constitute waste because they would “change the inheritance or thing . . . so that [it] could not be delivered to the remaindermen or reversioners at the end of the life estate.”70Brokaw, 237 N.Y.S. at 17. Judge Hammer quashed the economic value argument, stating it did not matter if the remaindermen would benefit financially from the life tenant’s change; courts should not question the motives of the future interest holder, even if they may be idiosyncratic.71Id.

This ruling is not out of step with waste law before or even after Melms, if one reads Melms as only a narrow exception to the normal ameliorative waste rule that changing the identity and use of the property is waste. This is in fact how Brokaw reads it, explicitly distinguishing the facts from the Melms decision thirty years earlier. In Melms, the mansion was surrounded by railroad tracks and factories with no other dwellings in the neighborhood, which made it “absolutely undesirable as a residence,” creating a “complete change of conditions.”72Melms v. Pabst Brewing Co., 79 N.W. 738, 740 (Wis. 1899) (emphasis added). In Brokaw, the court points out the existence of many other private homes in the area of the Brokaw home, demonstrating the lack of a complete change.73Brokaw, 237 N.Y.S. at 18. The facts of Brokaw simply did not fit the exception laid out in Melms. This, rather than a defiant, clinging reverence of traditional doctrine, is why the court came to a different conclusion on the waste issue.

C.     Ameliorative Waste Today

1.     Backlash Leads to the Modern Doctrine

Despite this consistency with Melms, Brokaw “was widely condemned” as too rigid and unreasonable by prominent law professors.74Merrill, supra note 2, at 1082. One of these professors, Professor John Merryman, aired his frustrations in the chapters he wrote in American Law of Property.751 American Law of Property § 2.16, at 136–41 (James Casner ed., 1952). Merryman lambasted doctrine that, he claimed, gave too much power to the remainderman by strictly prohibiting changing the land’s use, regardless of context.76Id. In order to be more flexible, he suggested a reasonable use standard that in part attempts to discover the intent of the conveyor, under which judges could consider factors like changed conditions of the surroundings, changed market value of the property, community customs, and evidence that the conveyor wanted the property to remain as-is.77Id. at 139–40.

In 1935, the New York legislature passed into law section 803 of New York’s Real Property Actions and Proceedings, which overturned Brokaw and sought to cement the Melms rule.78N.Y. Leg. 158-60, at 7, 51–52 (1935). This law is still on the books, but it now reflects the modern consensus: the pure valuation rule of waste. N.Y. Real Prop. Acts. Law § 803 (McKinney 2009). The law’s test for determining waste included whether the area has experienced changed circumstances and whether the life tenant’s modification would increase the property’s value.79N.Y. Leg. 158-60, at 60–61. Already, one can see how the pushback to Brokaw, though ostensibly an embrace of Melms, went beyond that earlier case. Melms was an exception to the ameliorative waste rule focused on an extreme change of conditions. Increase in value was not an equal factor in the court’s calculus that could excuse a major alteration of the property. Yet, those claiming to be proponents of Melms used the case to push doctrine that centered on consideration of a property’s value.

Section 803 was similar, though not identical, to the first Restatement of Property that was published the previous year. Section 138 of the Restatement says that a life tenant has a duty not to diminish the “market value” of the property for the future interests, rather than placing emphasis on whether value is increased like New York’s section 803.80Restatement (First) of Prop. § 138 (Am. L. Inst. 1936). This requirement could be compatible with Melmsif it were combined with another requirement that clarifies waste can occur even if market value is not diminished. Section 140 of the Restatement creates a similar requirement to this, but not quite in a way consistent with Melms. Instead, section 140 says the life tenant also has a duty “not to change the premises . . . in such a manner that the owners of the interests limited after the estate for life have reasonable ground for objection thereto.”81Id. § 140. The obvious question is: What constitutes a reasonable objection?

These Restatement sections read together suggest that a remainderman can block proposed alterations by a life tenant even if they do not diminish the property’s market value, but it is not clear.82John A. Lovett, Doctrines of Waste in a Landscape of Waste, 72 Mo. L. Rev. 1209, 1213 (2007). Comment f to section 140 helps its interpretation a bit by incorporating the changed conditions language of Melms: remaindermen have no reasonable ground for objection “when a substantial and permanent change in the conditions of the neighborhood . . . has deprived the land . . . of reasonable productivity or usefulness; and the proposed alteration or replacement is one which the owner of an estate in fee simple absolute normally would make.”83Restatement (First) of Prop. § 140 cmt. f(2). The drafters of the Restatement were apparently attempting to articulate the Melms rule while also responding to the facts of Brokaw84Lovett, supra note 82, at 1213. but were hardly successful in the former. For one, the changed circumstances exception of comment f is not as narrow as the one in Melms, as it allows for alteration when changed conditions have deprived the land of “reasonable productivity or usefulness.” But Melms only allows for alteration when changed conditions are “so complete” as to make the property “useless.”85Melms v. Pabst Brewing Co., 79 N.W. 738, 740 (Wis. 1899). Also, use of the word “productivity” suggests that the life tenant can make an alteration that would make the property more productive, as long as there are some changed conditions that limit this productivity. This is the first step toward broadly allowing alterations that increase the property’s value.

Furthermore, the notion that a remainderman’s objection is unreasonable if the proposed alteration is one that a normal owner in fee simple would make is troubling because most owners in fee simple would make alterations if they would increase the property’s value. So, is the standard owner assumed to be a profit seeking one? The Restatement rule also defies a fundamental reason for the doctrine of ameliorative waste in the first place, which is perfectly articulated by a portion of the Brokaw opinion that bears repeating: the objecting remaindermen “may be selfish and unmindful” in rejecting a valuable alteration.86Brokaw v. Fairchild, 237 N.Y.S. 6, 15 (Sup. Ct. 1929), aff’d, 245 N.Y.S. 402 (App. Div. 1930) (mem.), aff’d, 177 N.E. 186 (N.Y. 1931) (mem.). “With motives and purposes the court is not concerned.”87Id. The Restatement, however, essentially left the door open for its adopters to gut the ability of an idiosyncratic remainderman, unconcerned with profit, from receiving the property as conveyed.

This is exactly what happened. Many states came to decide waste by multifactor standards, à la Merryman, that always included weighing whether a normal fee simple owner would do what the life tenant wanted to do with the property,88See, e.g., Wingard v. Lee, 336 S.E.2d 498, 500 (S.C. Ct. App. 1985) (including within the factors to consider in determining whether an act constitutes waste “whether the use is reasonable in the circumstances”). and also whether it would increase the property’s value.89See, e.g., Zywiczynski v. Zywiczynski, 80 N.E.2d 807, 809 (Ohio Ct. App. 1947) (stating the tenant may not “do[] those things . . . which have the effect permanently to diminish the value of the future estate”). And in practice, market value is usually the most important factor in these regimes because the “normal owner” is seen to desire wealth maximization.90Merrill, supra note 2, at 1059. Some states drop the guise completely, openly applying a pure valuation test.91E.g., Woodrick v. Wood, No. 65207, 1994 WL 236287, at *3 (Ohio Ct. App. May 26, 1994) (holding no waste where destroying a barn would not diminish the value of the property). Only ten states today define waste as a substantial alteration of the property without paying mind to value.92Merrill, supra note 2, at 1083 (citing Cora, supra note 15, at 11). If a temporary owner wants to tear down a family home to make room for some value-increasing condominiums, regardless of the future fee simple owner’s objections, in most of the country he can.93There is another major change to waste law that should be noted: it has largely been replaced by the trust over time. Richard A. Posner, Comment on Merrill on the Law of Waste, 94 Marq. L. Rev. 1095, 1098 (2011). The trust system contracts away the possibility of litigation for the most part by establishing a neutral third party, a trustee, to arbitrate any conflict between the parties sharing interest. Id. Waste litigation has dwindled but still exists. Judge Posner estimated that about 250 waste cases occurred between 2001 and 2011. Id. at 1099 n.9. Despite having been supplanted by the trust system, waste remains an important background and default principle, especially in settings where dramatic physical or economic transformations occur and place patterns of land use and development “under intense pressure.” Lovett, supra note 82, at 1212.

2.     Views of Modern Scholarship

Merrill, a proponent of a rights-based view of property when it comes to waste, sees the Melms decision as more of a departure from the common law rule of ameliorative waste than, as this Comment sees it, an upholding of the common law with a very narrow exception.94See Merrill, supra note 2, at 1059. He believes Melms is consistent with the “social institution” view of property and allowed economic value to become a factor in waste analysis.95Id. at 1059, 1075. That case, according to Merrill, did not make the complete leap from prohibiting material injury to the inheritance, including changing the property’s use and identity, to a pure valuation test, but its rationale “served as the model” for modern, valuation-focused doctrine.96Id. at 1084.

As a result, Merrill would like to go back to the common law doctrine before Melms.97See id. at 1090. He states simply his preferred rule: “If the tenant materially changes the condition, the tenant has committed waste; otherwise not.”98Id. at 1091. This bright-line rule, he argues, is much easier and more intuitive than one of the value-centering factor tests or the pure valuation test.99Id. at 1090–91. It does not depend on elaborate evidence meant to determine the intention of the conveyor or expert appraiser testimony.100Merrill, supra note 2, at 1090–91. If the term “materially” is too vague, we should ask what a normal owner would do to preserve the use and identity of the property; there is a material change if the tenant fails to meet this standard.101Id. at 1092.

Judge Richard Posner, a proponent of the social institution view of property and a pure valuation test for waste, responded to Merrill by arguing that this material alteration test is not as clear and simple as Merrill claims.102See Posner, supra note 93, at 1099. Posner picks at the word “materially,” as Merrill seemed to think he might, stating that the “goal, interest, or value” sought by this standard is unclear.103Id. He asks: “Is it waste to install central air conditioning? To convert a barn to a garage? To pave a driveway?”104Id. Posner then claims that his own doctrine’s goal of efficiency is really not very different from the common law doctrine: “I imagine that in practice the criterion of material alteration has always been implicitly economic and that all the courts have done is made its economic character transparent.”105Id. at 1100.

For our purposes here, Merrill106Merrill’s position in the larger rights-based versus social institution property debate is actually more complicated and difficult to pin down. On the issue of eminent domain, for example, he is much more sympathetic to economic development justifications for altering property and allowing government takings. See, e.g., Thomas W. Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61, 111 (1986). In his discussion of waste, Merrill makes some rights-based arguments (e.g., that future interest holders are entitled to protest ameliorative waste), but he may take this position more because of his belief that it would create a clear and simple default rule. See Merrill, supra note 2, at 1091 (“[T]he traditional common-law rule should function well as a bargain-inducing default rule. It issimple, intuitive, and self-applying. It sends a clear signal to the parties about their respective rights and obligations. If the parties want a different rule, they will know that they must contract for a different rule.” (footnote omitted)). and Posner represent the rights-based and social institution views of property, respectively. In between these two are other scholars who have called for a change to the standard doctrine of today. Professor Peter Gerhart believes that the most important factor in Melms is actually that the life tenant acted in good faith, believing himself to be an owner in fee simple.107Peter M. Gerhart, Property Law and Social Morality 234, 236 (2013). This is because Gerhart pushes a reasonability test, and a life tenant who makes a good faith mistake is acting reasonably.108Id. at 236. Bad faith possessors, however, must reasonably take into account the remainderman’s desires to not commit waste.109Id. This is a complicated question that depends on “what the decision maker reasonably knows or can determine about each subsequent owner’s subjective valuation” and “the comparative weight to be given to the various subjective valuations.”110Id. So if a life tenant does not make alterations under a good faith mistake, Gerhart would apply a reasonability factor test similar to that in the first Restatement, except that it focuses on subjective valuations and theoretically gives more power to the remainderman.

Professor John Sprankling takes an environmentalist angle, believing that the American shift away from the English common law represents an anti-wilderness perspective and incentivized tenants to replace forests with farmland.111Sprankling, supra note 31, at 526. He suggests a different standard of “prudent preservation” for wilderness land that contains a presumption in favor of the wilderness.112Id. at 588–89. The life tenant can overcome the presumption if there is significant “social value”—not market value—to his desired actions, though Sprankling does not elaborate on what this social value might look like.113Id. at 589.

Both of these proposals are primarily focused on the value of the life tenant’s alterations, even if that value is not purely economic. In contrast, Professor Eric Claeys, a firm proponent of the rights-based view of property, advocates for the Melms rule if one reads that case as a narrow exception to the common law rule, where waste occurs if the life tenant materially changes the property’s use and identity.114Claeys, supra note 12, at 37. In Claeys’s view, as well as this Comment’s, the presumption against substantial alterations in favor of the remainderman can be overridden if surrounding conditions change and “the changes make the resource at issue useless for the purposes for which it was reasonably likely to be used when conveyed.”115Id.

Claeys attempts to better understand what exactly “useless” might mean for this test, recognizing that reasonable people can find the same resources useful for different goals.116Id. Therefore, if the life tenant finds the resource at issue underused, this should be weighed as a factor in the analysis, but the intentions of the conveyor have priority.117Id. Furthermore, the resource is useless for its current purpose if the remainderman would be unreasonable to maintain that use.118Id. For example, those in Melms would have been unreasonable to use the mansion for residential purposes because it had “ceased to be fit for residential living.”119Id.

Most doctrines in place today and most doctrines advocated by scholars at least in part depend on an interpretation of, or reaction to, Melms. As discussed, this Comment interprets Melms as Claeys does, as a narrow exception to an ameliorative waste rule that presumptively favors the remainderman. That highly influential case is not on its own conducive to the pure valuation test that dominates today. Accordingly, this Comment proposes a new doctrine that is both compatible with a rights-based view of property and more deferential to Melms. Additionally, this new doctrine better defines “useless,” as used in the Melms exception, for easier applicability.

II.     Analysis: A Simple yet Flexible Standard

Because Brokaw need not be read as a departure from Melms, this section attempts to synthesize the two cases and form a baseline proposed rule. This baseline rule is similar to Merrill’s material alteration standard: the remainderman can enjoin a life tenant’s action that materially changes the use or identity of the property, unless a complete change in conditions to the surroundings has rendered the property useless. However, because Melms was unclear on what makes a property useless, this section also attempts to create a standard for that condition. The proposed standard for uselessness is borrowed from nuisance law: a property is made useless if the enjoyment of it has come to be disturbed by a consistent nuisance according to the locale standard that matches the individual property in question. For example, in the case of a residential property, if changed conditions have effectively made the surrounding neighborhood an industrial area, causing a nuisance, the property is considered useless and the life tenant can move forward with material alterations. Appreciating the different issues that scholars have recognized in waste doctrine, the Comment proposes a simple120The proposed doctrine takes into account Merrill’s call for a “simple, intuitive, self-applying rule.” Merrill, supra note 2, at 1087. yet flexible121The proposed doctrine, like Merryman, recognizes the need for context-specific flexibility, though it rejects Merryman’s multi-factor doctrine that places more power in the hands of the life tenant. American Law of Property, supra note 75, § 2.16, at 139–40. standard.

A.     Harmonizing Melms and Brokaw

As demonstrated previously, Melms only carved out a limited exception to the ameliorative waste and good husbandry rule at the time.122Melms v. Pabst Brewing Co., 79 N.W. 738, 740–41 (Wis. 1899). A significant life tenant alteration could only avoid waste if there was a complete change of conditions surrounding the property that made it useless in its current form.123Id. at 741. A statement at the end of the opinion removes all doubt and makes clear that the court must find a significant degree of uselessness, rather than the property simply not being in the most profitable state, to overcome a finding of waste: “This case is not to be construed as justifying a tenant in making substantial changes . . . to suit his own whim or convenience, because, perchance, he may be able to show that the change is in some degree beneficial.”124Id. Melms does not give a green light to life tenants to alter the use of property in order to make it more profitable.

One could copy and paste this admonition from Melms into the Brokaw opinion, and it would fit perfectly. Brokawexplicitly distinguishes the case’s facts from Melms, in which completely changed conditions made the residence absolutely undesirable. Here, Brokaw reasons, the fact that apartment buildings have sprung up around the home does not make it as undesirable as being completely surrounded by factories.125Brokaw v. Fairchild, 237 N.Y.S. 6, 17 (Sup. Ct. 1929), aff’d, 245 N.Y.S. 402 (App. Div. 1930) (mem.), aff’d, 177 N.E. 186 (N.Y. 1931) (mem.). Furthermore, the home is not even completely surrounded by apartment buildings; there are many other private homes still in the neighborhood.126Id. at 18. The differences between the two sets of facts are clear. The life tenant in Brokaw did not face completely changed conditions that would make the home useless and undesirable. He was just having trouble finding someone to rent the property.127Id. at 10. Substantial changes are not justified by the life tenant merely showing they would be beneficial.128Melms, 79 N.W. at 741.

Thus, the proposal that follows is not solely based on Melms. It is based on both Melms and Brokaw. Despite many scholars’ insistence that the latter broke from the rule of the former, these cases can and should be read as congruous and complementary. This is proven both by Melms’s insistence as an adherent to the common law rule before it and by the distinguishing facts that allow Brokaw to find waste where its sister case did not.

B.     A Synthesized Rule

1.     What a Synthesized Rule Should Maintain

The first Restatement and the current majority doctrine that applies a pure valuation test go far beyond simply undoing Brokaw and reverting back to the Melms rule.129See Restatement (First) of Prop. § 138 (Am. L. Inst. 1936); Merrill, supra note 2, at 1083. They give much more power to the temporary life tenant and gut the ability of the more permanent remainderman to object to overhauling changes to the property.

Melms did make a necessary exception to the common law doctrine, however, and we should not return to a world where a life tenant is always liable for waste whenever he materially changes the property’s use and identity, as Merrill recommends. A life tenant should not be stuck with property that is completely unusable. Merrill’s stance is due in part to his belief that the old rule began to break down after Melms because it introduced the excusing of waste based on a measure of economic value.130Merrill, supra note 2, at 1075. Yet depending on how you interpret “useless” in Melms, one can read the case as only creating an exception based on an ability to use the property, rather than an ability to profit from the property or at least not operate it at a loss. And such a narrow exception is needed to give the life tenant a lifeline in extreme cases. The preferable rule for ameliorative waste is thus one that harmonizes the two major cases on the issue, with an exception that builds on, not departs from, the common law rule.

It should also be noted that Brokaw and Melms did not emphasize the fact that their life tenants were not acting under good faith mistake.131See Brokaw, 237 N.Y.S. at 17–18; Melms, 79 N.W. at 741. Melms highlighted instead the changed conditions of the surrounding property.132Melms, 79 N.W. at 741. Therefore, unlike Gerhart, this Comment proposes a rule that hinges on changed conditions rather than good faith.

2.     A Clearer Standard of Uselessness

Interpreting Melms in this way, the baseline rule for ameliorative waste should be: a remainderman can object to an alteration that materially changes the use or identity of the property,133Again, this first part is similar to Merrill’s material alteration standard. See Merrill, supra note 2, at 1091. unless a complete change in conditions to the property’s surroundings has made the property useless in its current state. This serves as the baseline for the rule proposed here. It hands presumptive control over the fate of the land back to the remainderman, whose lineage will hold the property in fee simple, rather than the temporary life tenant. And it does so regardless of whether the remainderman is a profit seeker or values the property for more idiosyncratic reasons. The pure economic valuation test that rules today treats property like stock, for which one can commit waste through mismanagement that diminishes the stocks’ value.134E.g., Park Bancorporation, Inc. v. Sletteland, 513 N.W.2d 609, 614 (Wis. Ct. App. 1994). But real property is not like stock; many people attach personal value to land and to homes beyond mere dollars and cents. The proposed rule considers these things while leaving open the possibility for a life tenant to alter the property where he faces true hardship, when the property has become useless due to surrounding changes.

To make this rule easier to apply uniformly, what makes a property “useless” must be clearly defined. Melms does not articulate a definition for what makes a property useless, despite its repetition of the word.135See Melms, 79 N.W. at 740. But again, the opinion’s admonishment at the end suggests that it cannot mean “unable to be profited from” or “not the most beneficial or economic use of the property.”136Id. at 741 (“This case is not to be construed as justifying a tenant in making substantial changes . . . to suit his own whim or convenience, because, perchance, he may be able to show that the change is in some degree beneficial.”). At the same time, however, the scant evidence used to demonstrate the property’s uselessness seems economic in nature. The opinion reads, “the residence, which was at one time a handsome and desirable one, became of no practical value, and would not rent for enough to pay taxes and insurance thereon.”137Id. at 738. The court felt the need to point out that one could not lease the home for a profit, and “desirable” in this context connotes subjectivity, as in desirable to potential renters. Focusing on this language, perhaps then Merrill is right. Perhaps the court did intend to open up waste law to a whole new world of market value-based analysis.

But the opinion does not make that clear in the actual rule it lays out, which one would expect if the court sought to radically change all of waste law. The doctrine as Merrill reads it would not make sense for residential property, the very type under consideration in Melms, especially as the court wished the exception that it laid out to be kept a very limited one. Residential property is always technically operating at a loss if used personally as a residence due to taxes, insurance, and maintenance. Recall that Brokaw rejected the notion that property only being operated at a loss excuses substantial alteration by the life tenant, in order to meet the idiosyncratic desire of the remainderman.138See Brokaw v. Fairchild, 237 N.Y.S. 6, 17 (Sup. Ct. 1929), aff’d, 245 N.Y.S. 402 (App. Div. 1930) (mem.), aff’d, 177 N.E. 186 (N.Y. 1931) (mem.). And of course it is not even idiosyncratic, remainderman or not, to live in a residential property rather than lease it out. Merrill’s reading of “useless” in Melms would mean any life tenant having difficulty leasing the property has the right to completely change its nature, which would destroy the limited nature of the exception and make the final admonishment in the opinion moot.

The court wanted the exception to be narrow but did not articulate a precise definition for what makes a property useless. The exception should remain narrow because its very existence is a curb on the idiosyncratic interests of the remainderman. That is, it essentially assumes that no one would want property in a current state that is “useless,” whatever that means. Therefore, its definition should be careful so as to not include property that someone could conceivably want to use without changing it. With this balancing act in mind, useless should mean that it is absolutely necessary for the life tenant to alter the property in order for it to be used and enjoyed.139This is similar to Claeys’s reading of Melms. Claeys, supra note 12, at 37 (noting the residence in Melms “ceased to be fit for residential living because of all the ambient noise and smoke created by breweries and factories”). This begs the question: How would courts measure this? Luckily, a doctrine already exists that holds owners liable for infringing on another’s ability to use and enjoy his property—nuisance. The locale standards of nuisance law can smoothly be incorporated into the changed conditions exception to ameliorative waste, clarifying the meaning of “useless” while maintaining the spirit of Melms and Brokaw.

These standards include three types of locale: residential, commercial or industrial, and mixed use. If one is in a residential locale, a person’s activity, whether that be one producing smoke, noise, or other low-level non-trespassory physical invasions, constitutes nuisance if it would disturb the reasonable homeowner.140See, e.g., Campbell v. Seaman, 63 N.Y. 568, 581–82 (1876) (holding that the defendant’s burning of bricks that released “noxious gases” in a residential locale constituted nuisance). If one is in an industrial locale, a person’s activity constitutes nuisance if it would constructively evict the industrial property owner, making him unable to use his property as intended, a much higher standard.141See, e.g., Gilbert v. Showerman, 23 Mich. 448, 456–57 (1871) (holding that the defendant’s flour mill, which caused the neighborhood’s property to shake, did not constitute nuisance because the shaking occurred in a commercial locale where such activity was to be expected). If one is in a mixed-use locale, which includes rural and farm land, a person’s activity again constitutes nuisance if it would constructively evict the owner of the type of property common in the area.142See, e.g., Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 660, 662 (Tenn. 1904) (holding that the defendant’s smoke emission, which made it difficult for plaintiffs to grow crops, constituted a nuisance because it occurred in a rural farm area). Applying this to waste, the life tenant can only make a substantial alteration if the use and enjoyment of the property would be disturbed by a consistent, ongoing nuisance according to the locale standard that matches the individual property in question. It must be an ongoing nuisance because Melms stressed that its exception only applied to a complete change of conditions.143Melms v. Pabst Brewing Co., 79 N.W. 738, 740 (Wis. 1899). A single noise complaint or instance of smoke shrouding a home would not suffice to make a residence useless. This is also congruent with nuisance law, as an ongoing nuisance is needed for an injunction against the nuisance-causing activity to demonstrate that monetary damages are not adequate,144Restatement (Second) of Torts § 822 (Am. L. Inst. 1979). and we are not operating in the realm of monetary damages in waste when deciding whether a life tenant can make a material change to the property.

This standard of uselessness, by limiting the exception to the prohibition on material alteration to only the most equitable purposes, is consistent with the outcomes of Melms and Brokaw. Because the property in each is residential, we use the standard of a residential locale. A life tenant living in the Brokaw home would likely not be subjected to consistent nuisance by a residential standard, as the surroundings were still residential.145See Brokaw v. Fairchild, 237 N.Y.S. 6, 17 (Sup. Ct. 1929), aff’d, 245 N.Y.S. 402 (App. Div. 1930) (mem.), aff’d, 177 N.E. 186 (N.Y. 1931) (mem.). This is assuming the life tenant was not disturbed by anything other than the complaint he raised: not being able to operate the property at a profit. Importantly, under this standard, a life tenant could never make a material alteration that does not react to a discrepancy between the property and its surrounding locale categorized as either residential, industrial, or mixed use. The outcome under this test would not change even if everything around the single-family mansion in Brokaw had become multi-family apartment housing because the surroundings would still be residential. On the other hand, a life tenant attempting to live in the Melms home would certainly be subjected to consistent nuisance by a residential standard because it was completely surrounded by what was in essence an industrial locale: all factories and train tracks producing noise, gas, smoke, and other disturbances.146Melms, 79 N.W. at 740. The spirit of Melms remains intact with this standard,147The rule proposed by this Comment, essentially a material alteration rule with a Melms-esque exception rooted in nuisance locale standards, is referred to as the “useless by nuisance” standard. preserving a strict and narrow exception, while allowing alteration where there exists a true hardship for the life tenant who is unable to enjoy the property as conveyed.

3.     Flexibility and Judicial Discretion Within the “Useless by Nuisance” Standard

This proposed useless by nuisance standard begets two main questions not answered by the nuisance law it incorporates. First, when is a change to the land significant enough to trigger the standard and subject the life tenant to this analysis in the first place? Merrill’s preferred material alteration test that ruled in the pre-Melms common law era serves as the base of the useless by nuisance standard, but is this test clear enough?

Second, one could imagine scenarios where the nuisance locale standard would not apply, yet the life tenant would nonetheless be unfairly stripped of the ability to use the property in its current state. Should courts be given discretion in such extraordinary situations, and if so, what principles should guide and constrain the discretion?

a.     Not Vague, but Flexible

Despite Posner’s insistence, Merrill’s material alteration test is not a vague one. Posner fixates on the word “material,” as he wonders where the line that separates a material alteration from an insignificant one is drawn.148Posner, supra note 93, at 1098–99. He needles Merrill: “Is it waste to install central air conditioning? To convert a barn to a garage? To pave a driveway? Are all improvements that alter a property physically waste?”149Id. at 1099.

These hypotheticals are quite easy to answer under the material alteration standard: no, yes, no, and no. A material alteration is one that would actually change how one can use the property.150See Merrill, supra note 2, at 1059. Waste law in Merrill’s view is supposed to protect the remainderman’s “subjective expectations about the thing—[his] plans for its use in the future.”151Id. So not all improvements that physically alter a property constitute waste. Installing central air conditioning and paving a driveway improves the property without changing its use. Converting a barn into a garage, however, derails a remainderman’s expectations, for he can no longer use the property as a shelter for livestock. As with any legal rule, one can likely think up a hypothetical hard case that could strain this language, but this it is not a vague, unworkable standard as Posner suggests.

Also, missing from the proposed definition of useless that supports the useless by nuisance standard is anything relating to the conveyor’s intent for the property. Claeys purports that this should also be a factor.152Claeys, supra note 12, at 37 (“A conscientious fact-finder would give great weight to the intentions of the owner who created and assigned away derivative rights.”). However, this would be a difficult and speculative analysis, going beyond explicit statements in the will or contract to guess at an intent that would bind the life tenant and make waste law unnecessary in many respects.153See Merrill, supra note 2, at 1088. Like Merryman’s intent-based standard, this would “require a complicated inquiry into legal documents and personal circumstances that cannot be discerned by looking at the land.”154Id. Though including conveyor intent may be more complimentary of a rights-based view of property, it was not an important element to Melms or Brokaw (the spirit to which this Comment attempts to be faithful) and would hamper an otherwise simple standard based on changed conditions.

b.     Judicial Discretion

Clarity is important, but judicial discretion to a point is also necessary for a successful ameliorative waste rule. The legal interests of life tenants and remaindermen often do not fit a regular pattern that can be squeezed into a uniform standard.155Claeys, supra note 12, at 36. If this useless by nuisance standard is to follow the spirit of Melms, it must be willing to recognize exceptions, that a life tenant can bare hardship in his temporary ownership that falls outside of experiencing a consistent nuisance due to changed conditions in the surrounding properties. Merryman was right about one thing: the need for some level of context-specific flexibility in waste law.156See American Law of Property, supra note 75, § 2.16, at 137–39.

Therefore, some discretion should be allowed within the proposed standard of uselessness. The nuisance locale analysis is the baseline, but there are changed conditions beyond consistent nuisance that, because they so drastically affect land use, should be recognized as sufficient to allow a significant alteration to the property. Any instance of an owner being literally unable to use the property as it had been used should be included. An example of this is the Woodrick case, in which the life tenant claimed that a barn could no longer be used for its original purpose as a horse stable due to changes in local zoning ordinances.157Woodrick v. Wood, No. 65207, 1994 WL 236287, at *1–3 (Ohio Ct. App. May 26, 1994). Being in a jurisdiction that applied a pure valuation test, the court did not even address this fact, as the life tenant’s proposed alteration was found not to be waste due to its economic advantage.158Id. at *3. If the property is illegal to use as intended, this of course necessitates a change. And if any more peculiar changed conditions make a certain property physically unusable, massive environmental changes or natural disasters for instance, courts should know them when they see them and accordingly provide an out for the life tenant.

Such dramatic hardships incurred by the life tenant would be more obvious, but there are other situations where courts should still be allowed discretion to not strictly apply the useless by nuisance standard. Sometimes, being conveyed a property is nothing but a burden, even though nothing terrible has happened to it or changed around it. These were the facts of Baker v. Weedon.159262 So. 2d 641 (Miss. 1972). In this case, John Weedon bequeathed his farmland to his wife for a life tenancy and then to his grandchildren as remaindermen.160Id. at 642. The widow’s only income came from renting out the farm and social security, which was insufficient due to her old age and deteriorating health.161Id. Fortunately, it is already the case that courts can order a judicial sale (which the lower chancellor court did in this case), but only when there is an evident necessity to do so, usually where the property is deteriorating and the income therefrom is insufficient to pay property taxes and maintain the property.162Id. at 644. This was the case for the life tenant in Brokaw: rent from the mansion could not cover taxes and upkeep. Brokaw v. Fairchild, 237 N.Y.S. 6, 10–11 (Sup. Ct. 1929), aff’d, 245 N.Y.S. 402 (App. Div. 1930) (mem.), aff’d, 177 N.E. 186 (N.Y. 1931) (mem.). Why then was that life tenant not afforded this relief? He was, in fact. Selling his limited interest in the property by necessity was always an option. If he really wanted to be rid of the property, he could have prematurely given it to the remaindermen. But he wanted to make a material alteration to the property by changing it into an apartment complex so that he could profit during his tenancy, which the court in Brokaw did not allow. Id. at 15. This Comment maintains that this is the recourse that should be available to a financially burdened life tenant, rather than a relaxing of the prohibition on material alteration. However, it is useful to understand how the Baker court came to a compromise—by being flexible to account for unique circumstances.

What is noteworthy about the court’s decision here is not just its flexibility in applying the necessity rule, but also how it still accounted for the remaindermen by making a context-specific holding. First, the court allowed for a judicial sale even though the farm was not deteriorating and the rental did in fact provide sufficient income to pay for taxes and upkeep.163Baker, 262 So. 2d at 644. This is both because the widow life tenant had other “reasonable needs” (i.e., healthcare costs), and because the remaindermen actually wanted to sell their fee simple interest in the land as well, just not right at this time.164Id. at 643–44. They had incentive to wait to sell due to the nearing completion of a US highway nearby, which would almost double the market value of the property.165Id. at 643. Therefore, the court reasoned, a judicial sale can be made when it is necessary for the best interests of all the parties involved.166Id. at644. Because the best interest of all the parties would not be served by immediate judicial sale, the court remanded for determination of a partial sale of the land to accommodate for the widow’s needs, holding off on a sale of the rest of the land until the completion of the nearby highway for the benefit of the remaindermen.167Id.

Again, this case does not directly apply to ameliorative waste and the useless by nuisance standard. In fact, the standard already provides an avenue through which the remainderman can offer partial relief to the life tenant if it is in his own best interests. That is, because the standard gives the remainderman the option to block a material alteration, he can also allow individual alterations if he desires. Still, Baker can serve as a model of the sort of context-specific flexibility that the useless by nuisance standard should remain open to. A single rule cannot account for the entire spectrum of divided interest situations that do not fit a regular mold and peculiar ameliorative waste disputes that could manifest, and there is value in admitting as much.168Claeys, supra note 12, at 36.

c.     Disfavoring Wealth Maximization

In the spirit of Melms as a limited exception that applies only in extreme circumstances, there should be no room for flexibility or judicial discretion where the life tenant faces no actual hardship and is seeking only to alter the property for profit-seeking purposes. In such situations, the useless by nuisance standard should be strictly applied. The inciting reason for this Comment’s call to move current waste law away from a pure valuation standard is that standard’s propensity to favor an interloping life tenant, secure in his means, who wants to maximize his own wealth at the expense of what was meant to be conveyed to and enjoyed by the remainderman. This phenomenon should be avoided at all costs.

Interestingly, Professor Jedediah Purdy characterizes the American nineteenth century shift away from England’s strict waste regime that favored the remainderman as rooted in an egalitarian repudiation of feudal status quo.169Purdy, supra note 26, at 688–89. The American standard guided by market value, he says, treats property as a commodity and deprives it of “one aspect of its status as a marker of social hierarchy,” so that each individual has an equal right and opportunity to use property.170Id. at 688. Under the old English rule, “[c]ommand ran up the ladder of obligation, culminating in the crown.”171Id. at 689. But in the United States, the market of property “makes land a vehicle for opportunity and mobility rather than a marker of enduring social distinctions.”172Id. at 696–97.

Purdy is not so naïve as to say this “eliminate[d] the relation of land and status altogether,”173Id. at 688. but proponents of the pure economic valuation standard cannot use this logic to justify their stance. Here there is no crown. There is no feudal hierarchy dependent on property ownership as social signifier. The remainderman is not some member of the bourgeois ruling class lording over his tenant, stymying any benefits the latter might incur from his temporary enjoyment of land. Many waste disputes are between two financially secure parties like those in Brokaw, eventual inheritors of a New York City mansion and a life tenant of the same mansion balking at the idea of not profiting from this arrangement.174Brokaw v. Fairchild, 237 N.Y.S. 6, 9–11 (Sup. Ct. 1929), aff’d, 245 N.Y.S. 402 (App. Div. 1930) (mem.), aff’d, 177 N.E. 186 (N.Y. 1931) (mem.). Therefore, unless the life tenant is experiencing true hardship, then there is no egalitarian, American Dream-realizing reason for a doctrine that almost always favors the life tenant.

Modern waste law incentivizes reforming land for a “productive” use, whichever is most profitable, favoring “the exploiter over the preserver.”175Sprankling, supra note 31, at 569. The pure valuation doctrine works under the guise of innovation and economic efficiency, encouraging that land be extracted for all its mechanical worth and justifying this as in service of the greater good. But the good of preserving property for those with a vested right should not be abandoned. Recognize waste law for what it often is: a method of ruling in favor of one privileged person over another. Where this is not the case, and hardship like what the widow in Baker experienced does exist, there can be room for flexibility. But where it is the case, the idiosyncratic remainderman has the right to acquire the property as conveyed. As the preservation of property rights, on top of Purdy’s “egalitarianism,” is also an ingrained American ideal,176See Merrill, supra note 2, at 1059 (noting that under “conventional” thinking, property “protect[s] owned things from interference by others” and “promotes autonomy, security, the ability to make long-term plans, the right to be different”). this Comment’s proposal is more coherent within America’s property system than a pure valuation standard, which undermines that ideal by allowing a temporary owner to frustrate the permanent owner’s expectation to receive the property as it was meant for him.

4.     Applying the Useless by Nuisance Standard

Evaluating a more modern case will demonstrate the effect that the useless by nuisance standard would have on waste law. Let us return to Woodrick v. Wood. If you will recall, the court in this case denied injunctive relief for a remainderman who wished to stop the life tenant from destroying a barn on the property.177Woodrick v. Wood, No. 65207, 1994 WL 236287, at *3 (Ohio Ct. App. May 26, 1994). Destruction would enhance the value of the property as the barn had fallen into disrepair, and the state of Ohio applies a pure economic valuation test to waste.178Id. at *1, 3.

First of all, destroying the barn would constitute a material alteration because it would change how one could expect to use the property; the remainderman would lose the expectation that he can use the property to shelter animals in the manner one does with a barn. Destruction of a structure, whether to replace it with something else or not, is overwhelmingly the most common example of a material alteration that occurs in waste cases, though of course these cases more recently result in no waste being found because the court operates under a valuation-focused analysis.179This was the issue in both Melms and Brokaw—the destruction of a home. For relatively more recent examples, see Sprucewood Inv. Corp. v. Alaska Hous. Fin. Corp., 33 P.3d 1156, 1160, 1165 (Alaska 2001) (holding, under valuation reasoning and separate contract issues, no waste where a public entity with a demolition contract demolished certain houses, even though the contractor salvaged the houses and sold them to a third party); Crewe Corp. v. Feiler, 146 A.2d 458, 459, 463 (N.J. 1958) (holding, under more valuation reasoning than this Comment’s rights-based reasoning, waste where a leaseholder “revamped” an industrial-purposed building into an office building because the change would increase the lessor’s tax burden). Such an act is very unlike most of the cheeky hypotheticals that Posner flung at Merrill (installing central air conditioning, paving a driveway). Posner’s outlier example, converting a barn into a garage, is more similar to destruction, and may depend on certain facts. If the “conversion” would preclude the ability to use building or property for its former function, the alteration would be material. Regardless, the act in Woodrick resembles the sort usually brought up in waste cases and is clearly a material alteration.

Once a material alteration is found, we would ask whether the life tenant can still be excused from injunction against making the change. The opinion mentions nothing about changed conditions of the neighborhood that might have the effect of an ongoing nuisance on the use of a barn.180As the locality to be measured against in the proposed standard is set by the property in question, whether the property is residential or industrial depends on how the barn had been used. Given the opinion’s lack of facts on this matter, this Comment assumes that the barn was residential rather than commercial or industrial, meaning that it would be measured against a residential nuisance standard. So, barring anything unusual, this is an easy case to resolve in favor of the remainderman under the proposed standard. That the value of the property would increase if the barn were destroyed matters not; this action would constitute waste because the remainderman prefers to keep it intact.

However, the court mentions in passing that the life tenant claims changes in zoning ordinances keep the barn from being used for its original purpose as a horse stable.181Woodrick, 1994 WL 236287, at *1. Under the useless by nuisance standard, this fact would be significant. The court would have to solicit more information to discover whether the new zoning ordinances make the barn useless. If the ordinances indeed prevent livestock from being housed and maintained in this zone, then the barn cannot be used in a way that would fulfill the very purpose of a barn. The life tenant’s proposed changes would therefore fall under the changed conditions exception and be allowed to make a material alteration—in this case, destroy the barn.

One can see how this standard favors the idiosyncratic remainderman without beholding the life tenant to his successor’s wishes beyond all reason. If the barn is still usable, then it must remain if the remainderman so desires because he has been given a property right and expects to receive the barn intact. If, however, the circumstances are so dramatic that no one would be able to use the barn for such a structure’s purpose, there is no sense in keeping it around as a burden to the life tenant. Instituting a more rights-based standard for ameliorative waste in favor of the remainderman does not have to mean strict adherence to a rule in the face of all reason. The economic valuation test for waste that currently reigns supreme turns property into a faceless commodity for the investors and bankers, leaving no room for the personal value that people may invest in it. Ameliorative waste can be revived to afford the latter group more say without succumbing to the trappings of an uncompromising, inflexible doctrine.


Modern waste law in the United States has practically eliminated ameliorative waste in most jurisdictions, allowing life tenants to make substantial changes to the property in which they only have a temporary interest, as long as they increases the property’s value. In order to restore respect to the remainderman’s possible idiosyncratic desires while still allowing substantial alteration by the life tenant in extreme circumstances, we should go back to a reasonable interpretation of the two most influential cases in the field. Ameliorative waste doctrine should adopt the changed conditions exception rule of Melms and Brokaw, and also incorporate nuisance locale standards to better define when property is made useless under that exception. This useless by nuisance standard is not meant to be a strictly applied rule without any judicial discretion, but rather a strong default that would reinstitute the remainderman’s presumptive ability to block any material alteration where there is no serious hardship incurred by the life tenant. With this, the future interest holder would have a reasonable expectation to receive the property as it was conveyed, as is his right.

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