LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed period, even though the statute and cases were extremely old.
Held: Interpretation of statutes given relatively soon after the inception of a statute and relied upon over centuries should be set aside only with caution. After a very extensive review of ancient statute and case law, the court noted that a tenant for life and a tenant for years were liable in damages for permissive waste for about 600 years from 1267. A tenant for years can be liable for permissive waste.
Richard Havery QC HHJ
Gazette 25-Nov-1999, (1996) ORB 1077, [1999] EWHC Technology 186
Bailii
Statute of Marborough 1267, Statute of Gloucester 1278, Statute of Westminster 1285 c.14
England and Wales
Citing:
Cited – Harnett v Maitland 1847
The court was asked whether a tenant for years was liable for permissive waste.
Held: ‘As to the question, whether the action for permissive waste lies against a tenant for years, all the authorities are collected in the notes to Greene v. . .
Cited – Yellowly v Gower CEC 1855
A tenant for years was liable for permissive waste: A doubt has been stated indeed in a note to 2 Saund. 252b, whether a tenant for years is liable for permissive waste . . .These doubts arise from three cases in the Common Pleas: Gibson v. Wells 1 . .
Cited – Herne v Bembow 1813
The premises were demised by the plaintiff to the defendant by lease. It was an action on the case in the nature of waste.
Held: ‘Case for permissive waste does not lie against a tenant by lease, who has not covenanted to repair’. . .
Cited – Davies v Davies 1888
A tenant for years was liable for permissive waste: ‘Actual waste, that is to say, waste committed by him, would of course render him liable to eviction; but it is said that that does not apply to a case of this kind – that a lessee for years is not . .
Cited – Countess of Shrewsbury’s Case 1600
A tenant at will is not liable for permissive waste where confidence has not been reposed in him. . .
Cited – 21 E.1 Adam’s Case 1293
(Year Books) If the sheriff hold the inquest and return that the grange and bakehouse were burned by accident, and do not say whether the conflagration was caused by the default of the tenant or not, the sheriff will be again ordered to enquire . .
Cited – 29 E3.33 1355
(Year Books) In waste for a chamber demolished and sold Gower says that at the time of the making of the lease it was very weak and so it collapsed through a storm and we did not demolish it nor did it collapse by our fault. And this was held a good . .
Cited – 42 E.3.21 1368
(Year Books) The prior of the Hospital of St John brought a writ of waste against one J. and alleged that he had committed waste in certain tenements which he held for the term of his life by the lease of his predecessor, namely in respect of a . .
Cited – Jones v Hill CCP 1817
The lessor granted a lease and covenanted to cause the alterations and improvements then going on under the direction of J.M., and the lessee covenanted to repair the premises and to yield them up in as good plight and condition as they should be in . .
Cited – 12 H.4.5 1410
(Year Books) The abbot of Sherborne brought a writ of waste against two husbands and their wives and when the grand distress was returned one husband and wife defaulted and the other husband and wife appeared.
Skrene . . if I lease buildings . .
Cited – Gibson v Wells 1806
This was an action on the case in the nature of waste. The first count alleged that the defendant was a tenant for a certain term and had committed voluntary waste. It was alleged that the defendant was a tenant for a certain term and had committed . .
Cited – 7 H.6.38 1429
Waste was brought against one and waste was assigned in respect of a chamber because he had allowed it to fall down for lack of roofing and also in certain cottages, . . .
Newton . . .As for the chamber we tell you that it was unroofed at the . .
Cited – 11. H.6.1 1432
Waste brought against a tenant for term of years for the cutting down of one hundred oaks and allowing the wood to lie unenclosed so that animals have eaten the shoots of the said wood so that they have ceased to grow.
Danby It was not the . .
Cited – Greene v Cole 1670
(Note) With regard to an action for waste: ‘But this action is now very seldom brought, and has given way to a much more expeditious and easy remedy by an action on the case in the nature of waste. The plaintiff derives the same benefit from it, as . .
Cited – 5 E.4 89 1465
A writ of waste was brought and declaration made that the waste had been committed in a messuage, namely in one hall and assigned the waste in a chamber etc. and in a kitchen and assigned the waste in allowing the kitchen to fall down because he did . .
Cited – Newall v Donning 1633
If a lessee permit the walls to be in decay for default of daubing, by which timbers become rotten, an action of waste lies. Decision of Court of King’s Bench in banc on writ of error, and the first judgment affirmed accordingly. . .
Cited – 10 H.7.5a 1494
In the Common Bench a writ of waste was brought and the plaintiff assigned as waste allowing an earthwall to stand uncovered so that it was destroyed by rain-storms; and he also assigned as waste allowing another wall made of wood to decay and also . .
Cited – Weymouth v Gilbert 1632
If a lessee allow a chamber to fall into disrepair through a defect of plastering, by which great timbers become rotten and the chamber becomes foul, there lies an action of waste. Decision of the Court of King’s Bench in banc on writ of error, . .
Cited – 10 H.7.2 1494
Waste brought by an abbot; and he counted how the defendant had committed waste in various things in lands leased to him by his predecessor for a term of years; and assigned as waste . . . the permitting of a certain house to fall . . .
Also . .
Cited – Darcy v Askwith 1617
Limits to Tenant’s Powers as Devisee
‘It is generally true that the lessee has no power to change the nature of the thing demised; he cannot . . decay the pale of a park, for then it ceases to be a park, nor may he drive away the stock . . because it disherits and takes away the . .
Cited – 13. H.7.21 1498
In waste the plaintiff counted of the lease of a mill for term of years and assigned waste committed in the floodgates and other things belonging to the mill. And the defendant said that there had been an agreement out of court between the plaintiff . .
Cited – Anon 1568
Meade, Serjeant, moved this case at the bar: A man made a lease for years by indenture of a messuage and divers lands, with this clause in it, s. that if it happen the lessee to do any waste in and upon the premises, it shall be lawful for the . .
Cited – 12. H.8. 1 1520
(Year Books) One N. brought an action of waste against J., suggesting that he had cut down certain trees etc. And the defendant pleaded that he had committed no waste. Subsequently at nisi prius in the county he gave in evidence that the plaintiff . .
Cited – Anon 2 Mar 1 1554
It was held by the Chief Justice that the erasing of a new frame, which was never covered, is not waste. But it was agreed that if a house be ruinous for default of any covering at the time of the death of the lessor, and afterwards the tenant . .
Cited – Anon 1564
Waste in a marsh was alleged, in that the lessee had allowed a sea wall adjoining the marsh to become ruinous, as a result of which the sea had caused damage to the land. Counsel submitted that the allegation was not good, because the overflowing of . .
Cited – Griffith’s Case 1564
Walter Griffith assigned waste in that the lessee suffered the banks of the River Trent, which flowed through the said lands, to be unrepaired, whereby the water burst the banks and surrounded the lands by default of the lessee. It was held by all . .
Cited – Lord Advocate v Walker Trustees HL 1912
The 1707 Act preserved the traditional offices in Scotland. The respondent held the position of Usher of the White Rod, and claimed his fees from those granted honours by the English parliament.
Held: The Act was clear. The fact that had been . .
Cited – Hebbert v Purchas 1871
Lord Hatherley said: ‘It is quite true that neither contrary practice nor disuse can repeal the positive enactment of a statute, but contemporaneous and continuous usage is of the greatest efficacy in law in determining the true construction of . .
Cited – The Trustees of Clyde Navigation v Laird and Sons HL 1883
The court was asked whether the Clyde Navigation Consolidation Act 1858 required dues to be paid on logs which were chained together and floated down the River Clyde. The evidence was that these dues had been levied and paid without protest for a . .
Cited – Lord Castlemain v Lord Craven 1733
Both voluntary and permissive waste (suffering houses to go out of repair) were alleged against a tenant for life. The relief sought was an account and an injunction. In relation to the permissive waste, the court refused to order an account or an . .
Cited – Powys v Blagrave 24-Mar-1854
Tenant for Life. Permissive Waste
Courts of Equity have no means of interfering in cases of permissive waste by a tenant for life of real property.
There is no implied trust to keep the property in repair imposed upon a tenant for life under a will; for, if there were, he . .
Cited – Re Cartwright; Avis v Newman ChD 1889
Permissive Waste: Tenant for Life / Remainderman
A tenant for life is not liable in damages for permissive waste. ‘Since the Statutes of Marlbridge and of Gloucester there must have been hundreds of thousands of tenants for life who have died leaving their estates in a condition of great . .
Cited – Campbell College, Belfast v Commissioner of Valuation for Northern Ireland HL 1964
The rule of contemporary exposition should be applied only in relation to very old statutes. . .
Cited – Bourne v Keane HL 1919
Gift for Masses not Void for Superstition
An Irish Roman Catholic testator, domiciled in England, bequeathed 200 pounds to Westminster Cathedral for masses, and 200 pounds and his residuary personal Estate to the Jesuit Fathers of Farm Street, again for masses. The next of kin contended . .
Cited – Hammond v Webb 1715
(Serjeant Salkeld in argument) The Statute of Marlborough is a penal law; and yet, because a remedial law, it has been interpreted by equity. That Act says firmarii non faciant vastum; and it has been resolved . . that this Act extended to waste . .
Cited – Wood v Gaynon 2-Mar-1761
The plaintiff sought a decree to compel a life tenant and her husband to put and keep the premises in repair, or the appointment of a receiver with directions to repair the premises. The plaintiff could not sue at law because a party who shared the . .
Cited – Lord Bernard’s Case 1716
The Lord Chancellor’s court granted an injunction restraining a tenant for life without impeachment of waste who had committed voluntary waste of the mansion-house from committing further waste and obliging him to rebuild the mansion-house and put . .
Cited – Barnes v Dowling QBD 1881
A preliminary issue was tried as to whether the plaintiff had an estate or interest entitling him to maintain an action for waste, either voluntary or permissive, against the defendant, who was tenant for life or lives.
Held: On the basis that . .
Cited – 7 H.3 wast 141 1223
CS Attachment against a tenant in dower as to why she had assarted one hundred oak trees and a mill had been broken and drained and the mill-pond also. The tenant said that her late husband M. by the king’s order . .
Cited – 40 E.3. 15b 1366
In a writ it was found that he had committed waste in respect of willows to the value of etc. and it was asked of the inquest jury whether it seemed to them that this was waste and they said that they were growing within the view and the site of the . .
Cited – 8 E.2 wast. 111 1315
In waste where the waste was found of three oak-trees worth etc. and two hundred willow-trees the plaintiff asked for judgment in accordance with the verdict.
INGE, J. did not adjudge waste in such form that he recover the place wasted for the . .
Cited – 38 Ass.1 1364
In a nisi prius at Winchester there was a writ of waste and where the tenant had pleaded that he had committed no waste it was found that the tenant had committed waste before the acquisition of the writ to the damage of one hundred shillings but it . .
Cited – 34 E.3 1360
Waste of a messuage. The tenant pleads ‘no waste committed’ and it was found that they were ruinous for lack of roofing within the term but that the buildings were still standing; notwithstanding this it was adjudged waste. . .
Cited – 17 E.2 wast 119 1324
Waste: the inquest says in respect of one building that he was said to have wasted that at the time the tenements were leased there was no building there but that the lessee had built it and then it was demolished and it was adjudged waste. In . .
Cited – 4 E.3. wast 22 1330
Waste alleging that he held for a term of years by his lease
Pole. No waste committed etc.
The inquest found that he had committed waste in a bakehouse and a rapine and in a mill to the damage of one mark and that he had felled an ash-tree . .
Cited – 29 E.3.33 1355
In waste for a chamber demolished and sold Gower says that at the time of the making of the lease it was very weak and so it collapsed through a storm and we did not demolish it nor did it collapse by our fault. And this was held a good response. . .
Cited – 17 E.3. 65 1343
Two brothers, J. Gray and his brother W., brought a writ of waste against a woman who held in dower of their inheritance and alleged by their count that this was because the lands were partible and counted of waste committed in buildings, lands and . .
Cited – 26 E.3. 76 [recte 26 E.3. 22] 1352
In a writ of waste brought against a tenant in dower the count was that she held in dower of his inheritance and that she had committed waste in the manor of W. and he assigned the waste.
Birton. He does not show how we hold of his . .
Cited – 17 E.3. 7 1343
John de Hull and Maud his wife brought a writ of waste against H. Hadenham and assigned the waste in buildings, namely the knocking down of a hall, chamber, cowshed and grange, and in lands in the digging for ironstone and coal, and in gardens and . .
Cited – 20 E.3. 1346
Waste assigned in a building and in land dug with pits, namely one acre, and in clay carried off, and in timber cut down, namely oaks and ashes etc. and the defendant pleaded no waste committed and by the nis iprius it was found that the building . .
Cited – 18 E.3.15 (recte 14) 1344
John Stapleton brought a writ of waste in three villages where it was pleaded that one place which was called a village was a hamlet of one of the other villages named in the writ and they were at issue on this in relation to the whole writ. And by . .
Cited – 19 E.3. 1345
Waste: where it was found by an inquest where the party pleaded that no waste had been committed that in respect of a kitchen that was burned by a woman who was a stranger without the knowledge of the defendant because they lived elsewhere and to . .
Cited – 41 E.3. 1367
Waste against one alleging that he had felled certain oak trees growing in a wood and also hazels, thorns and willows only in ten acres of land adjoining the wood. He had committed waste by cutting down all the hazels, worth twelve pence each, and . .
Cited – 40 E.3. 35 [recte 40 E.3. 25] 1366
In a writ of waste the plaintiff counted that he had committed waste in respect of hazels and oak trees. And in respect of all except the hazels Belknap pleaded no waste committed and in respect of them he said that they were growing in a park under . .
Cited – 40 Ass. p. 22 1366
It was presented in King’s Bench that John P. who held the manor of E. and H. of the king’s lease had committed waste in the tenements which he had in wardship by reason of the nonage of John the son and heir of John Darcy knight, namely by knocking . .
Cited – 42 E.3. 21 1368
The prior of the Hospital of St John brought a writ of waste against one J and alleged that he had committed waste in certain tenements which he held for the term of his life by the lease of his predecessor, namely in respect of a chamber, a . .
Cited – 46 E.3. 17 1372
Waste brought by a man and alleging that the tenant held by his lease for the term of his life and the tenant came and showed a deed by which the plaintiff and four others had leased the tenements to him for the term of his life, reserving the . .
Cited – 42.E.3. 6b 1368
Waste brought against a man and it was alleged that he had demolished buildings and sold them and that he had cut down the underwood each year, so that it could not grow without being sold and also that he had razed an oven and sold it in the . .
Cited – 43 E.3. 6 1369
A writ of waste was brought and it was alleged that he had committed waste in lands that he held for the term of life and it was assigned that he had committed waste in respect of a grange.
Cavendish. The waste that was committed in the grange . .
Cited – 44 E.3.21 1370
Waste brought against John Exter by the abbot of Waltham, alleging that he had committed waste in a wood to the value of etc. and in a grange to the value of etc. and in certain cottages etc.
Cavendish. As to the wood, no waste committed, ready . .
Cited – 44 E.3.44 1370
A man brought a writ of waste against a woman and supposed by his writ that she had committed waste in respect of a wall and one hundred apple trees and had cut down one hundred oaks and a grange.
Kirkton. As to the wall we ask judgment if this . .
Cited – 49 E.3.2 (recte 49 E.3.1) 1375
A man brought a writ of waste against Thomas Grey of York and alleged that he held for a life term by his lease and assigned waste in respect of a house namely in a grange, a hall and a cottage.
Fulthorpe. As for the hall and the grange we tell . .
Cited – Dove v Banhams Patent Locks 1983
The defendants installed a security gate. The plaintiff, a subsequent purchaser of the property claimed damages when the property was burgled and a defect in the security gate was revealed.
Held: The defendant owed a duty of to the subsequent . .
Cited – 5 R.2 wast 97 1382
Waste where the count was that he had committed waste in ponds which he held in wardship, namely one pond which he had drained and the other in which he destroyed the fish.
Burgh. The writ does not state whether we are guardian de facto or de . .
Cited – 9 H.6. 10 1431
In a writ of waste
Fulthorpe. Judgment of the count. He has alleged waste in oaks and thorns and thorns cannot be considered waste.
Goderede. What do you say in respect of the oaks?
Fulthorpe. That goes for all.
PASTON, J. That is . .
Cited – 11 H.4.32 1409
Thomas Earl of Arundel brought a writ of waste alleging that his ancestor had leased a manor to the defendant for a term of years and specified waste in a hall, a kitchen, a stable and certain oak trees.
Norton (for the defendant) says that the . .
Cited – 7 H.6. 38 1429
Waste was brought against one and waste was assigned in respect of a chamber because he had allowed it to fall down for lack of roofing and also in certain cottages, certain oak trees and certain ash-trees, certain pear-trees and certain apple-trees . .
Cited – 12 H.4. 5 1410
The abbot of Sherborne brought a writ of waste against two husbands and their wives and when the grand distress was returned one husband and wife defaulted and the other husband and wife appeared.
Skrene. Against those who have defaulted we ask . .
Cited – 11 H.6.1 1432
Waste brought against a tenant for term of years for the cutting down of one hundred oaks and in allowing the wood to lie unenclosed so that animals have eaten the shoots of the said wood so that they have ceased to grow.
Danby. It was not the . .
Cited – 22 H.6. 12a 1443
In a writ of waste the plaintiff made a declaration through Danby and assigned as waste the felling of one hundred oaks and also the waste made to the stumps of these same oaks.
Bingham. It appears by the count that the waste is assigned in . .
Cited – 18 H. 6. 33b 1440
A very long scire facias case mainly concerned with other matters. Viner is picking up a passing reference in an argument by Markham that runs as follows: Markham. In a writ of waste brought against me I may well plead that at the time the lease was . .
Cited – 20 H.6. 1 1441
The plaintiff counted that the defendant had committed waste in certain land that he held by curtesy of his inheritance and assigned as waste allowing a sewer within the land not to be maintained so that so much meadow being part of the land is . .
Cited – 23 H.6. 24/22 H. 6 24 1443
In a writ of waste
Danby. Judgment of the writ for the writ supposes the waste to have been committed in terris, domibus, boscis et pratis and he has counted among other things of waste committed in knocking down a fence that surrounds a house . .
Cited – 22 H.6. 18 1443
In a writ of waste the waste assigned was in respect of a house, twenty oaks, forty cart-loads of clay.
Markham. Clay cannot be called waste.
To which it was said by the Court that it is waste in as much as the soil is made poorer by removal . .
Cited – 5 E. 4. 100 1465
A writ of waste was brought alleging that waste had been committed in respect of a building etc. and also in respect of wood, namely certain trees. And in the count in respect of the trees he counted that the defendant cut down the trees and sold . .
Cited – 12 H.8. 1 1520
One N. brought an action of waste against J., suggesting that he had cut down certain trees etc. And the defendant pleaded that he had committed no waste. Subsequently at nisi prius in the county he gave in evidence that the plaintiff had leased him . .
Cited – 5 E.4. 89 1465
A writ of waste was brought and declaration made that the waste had been committed in a messuage, namely in one hall and assigned the waste in a chamber etc. and in a kitchen and assigned the waste in allowing the kitchen to fall down because he did . .
Cited – 13 H.7. 21 1498
In waste the plaintiff counted of the lease of a mill for term of years and assigned waste committed in the floodgates and other things belonging to the mill. And the defendant said that there had been an agreement out of court between the plaintiff . .
Cited – 9 E.4. 35 1469
Report of an action of right for land which then half way through seems to become a report of a quite different action of trespass or of nuisance in which there is one relevant speech by NEEDHAM, J. If a man erect a building to the nuisance of my . .
Cited – 10 H.7.2 1494
Waste brought by an abbot; and he counted how the defendant had committed waste in various things in lands leased to him by his predecessor for a term of years; and assigned as waste . . . the permitting of a certain house to fall . . .
Also . .
Cited – 12 E.4. 1 1472
In waste brought by two on a lease for life. One of the plaintiffs was summoned and severed and the other sued on and alleged waste in respect of various matters etc. and also in cutting down willow trees. The waste was found and the damages . .
Cited – 10 H.7. 5a 1494
In the Common Bench a writ of waste was brought and the plaintiff assigned as waste allowing an earthwall to stand uncovered so that it was destroyed by rain-storms; and he also assigned as waste allowing another wall made of wood to decay and also . .
Cited – 2 H.7. 24 [recte 2 H.7. 14] 1487
In a writ of waste brought against a tenant for a life term who pleaded an order of the plaintiff and that he ordered him to dig for gravel. On which there was a demurrer for judgment as to whether or not the order was good.
Keble. It seems that . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.79848