Waste is a legal claim made against an individual causing injury to structures on land that results in damages to another person. A claim of waste is distinct from other property claims like trespass or waste in that a person liable for waste is in lawful possession of the land and a person liable for trespass or nuisance has no right of entry on the property in question. A person who is suing for waste against another person is generally someone who has a present or future interest in the land whose investment in value is affected by the wrongful actions of another.
WHO CAN SUE FOR WASTE IN MICHIGAN?
Michigan law provides the following causes of action for waste:
- LANDLORDS AND CONTINGENT INTERESTS OF REAL PROPERTY AGAINST TENANTS AND LIFE ESTATE HOLDERS: “Any guardian, tenant in dower, life tenant, or tenant for years who commits or suffers any waste, during his term or estate, to the lands, tenements or hereditaments, without having a lawful license to do so, is liable for DOUBLE the amount of actual damages.” MCL 600.2919(2)(a). “A claim under this provision may be brought by the person having the next immediate estate, in fee, for life, or for years or by any person who has the remainder or reversion in fee or for life after an intervening estate for life or for years; and each of the parties shall recover damages according to his estate in the premises.” MCL 600.2919(2)(b). “A tenant who assigns his full interest is not liable for waste done or suffered by his assignees while he remains out of possession of the premises.” Id.
- JOINT TENANTS AND TENANTS IN COMMON OF REAL PROPERTY AGAINST OTHER JOINT TENANTS AND TENANTS IN COMMON: “Any joint tenant or tenant in common who commits or suffers waste of the lands, tenements, or hereditaments held in joint tenancy, without having a lawful license in writing to do so, is liable for DOUBLE the amount of actual damages at the suit of his cotenant.” MCL 600.2919(2)(a). “A joint tenant or tenant in common may bring the claim in case of waste by one of his joint tenants or tenants in common.” MCL 600.2919(2)(b).
- HEIR INHERITING REAL PROPERTY AGAINST ANCESTOR: “An heir, whether of full age or not, after coming into possession of his inheritance, may maintain a claim for waste done in the time of his ancestor as well as in his own time, unless recovery has been had by the executor or administrator of the ancestor.” MCL 600.2919(2)(b).
- PURCHASER OF REAL PROPERTY AGAINST SELLER BEFORE EXECUTION OF DEED: “If, at any time after the sale of real estate on execution and before a deed is executed in pursuance of the sale, the defendant in the execution or any other person commits waste on the real estate or removes from it any buildings, fences, or other fixtures belonging to the land which would pass to the grantee by a deed of conveyance of the land, the purchaser at the sale or any person who has acquired his rights may have and maintain, against the person doing the injury and against any other person who has the buildings, fences, or fixtures in his possession after their removal, the same actions which the absolute owner of the premises would be entitled to.” MCL 600.2919(6)(a).
- PURCHASER OF SHERIFF’S DEED AFTER FORECLOSURE AGAINST POSSESSOR OF LAND: “Whenever any lands or tenements are sold by virtue of an execution issued upon any judgment, the person to whom the conveyance is executed by the sheriff pursuant to the sale has a claim for damages for any waste committed on the premises by any person after the sale.” MCL 600.2919(6)(b).
WHICH COURT CAN THE CLAIM FOR WASTE BE FILED?
Generally, the district courts of Michigan have the jurisdiction to hear claims for money damages requesting $25,000.00 or less. The circuit court has jurisdiction to hear claims for money damages in excess of $25,000.00.
In a district court summary proceedings action for eviction, “a party… may join claims and counterclaims for money judgment for damages attributable to wrongful entry, detainer, or possession, for breach of the lease or contract under which the premises were held, or for waste or malicious destruction to the premises.” MCL 600.5739(1). “A claim or counterclaim for money judgment shall not exceed the amount in controversy that otherwise limits the jurisdiction of the court.” Id.
CAN FURTHER WASTE BE STOPPED WHILE A LAWSUIT FOR MONEY DAMAGES IS PENDING?
“In any case where there is not a plain, adequate, and complete remedy provided for waste [by money damages] or where waste is threatened the circuit court may grant injunctions to stay and prevent waste.” MCL 600.2919(3)(b). A plaintiff can sue for a permanent injunction as a remedy at the conclusion of the lawsuit to prevent tenants, life tenants, joint tenants or tenants in common still in possession of property from committing further waste on the premises by penalty of contempt of court. The court may also grant preliminary injunctions to stop waste while civil actions are pending.
- STOPPING WASTE WHILE LAWSUIT FOR MONEY DAMAGES IS PENDING: “After the commencement of any action based on a claim for damages for waste, or for the recovery of land, or for the possession of land the defendant shall not make any waste of the land in demand or premises in question during the pendency of the action. If the defendant commits, threatens to commit, or makes preparations to commit waste the court in which the action is pending or any circuit judge or circuit court commissioner may make, on the application of the plaintiff, an order restraining the defendant from the commission of any waste or further waste of the land in demand or premises in question. Any person violating the terms of any such order is guilty of a contempt of the court in which the action is pending, which is punishable as other cases of contempt.” MCL 600.2919(4).
- STOPPING WASTE WHILE REAL PROPERTY BEING LEVIED AGAINST OR FORECLOSED UPON: “If any person commits, threatens to commit, or makes preparations to commit any waste on real estate which has been attached or levied upon by execution in any civil action, the court from which the execution or attachment issued or any circuit judge or circuit court commissioner may make, on the application of the plaintiff, an order restraining the person from committing any waste or further waste on the land which has been attached or levied upon. Any person who shall violate the terms of any such order is guilty of contempt of the court in which the action is pending and is punishable as in other cases of contempt.” MCL 600.2919(5).
The penalties for contempt of court include paying a fine up to $7,500.00, costs or expenses of the proceeding, or coerce the offender to comply with the order by threat of imprisonment up to 93 days until compliance is achieved. MCL 600.1715. If there was an actual loss or injury to the plaintiff, the court can also order civil sanctions to compensate the plaintiff for out-of-pocket expenses that include attorney’s fees. MCL 600.1721.
SAFE HARBOR PROVISION AGAINST WASTE FOR POSSESSOR OF FORECLOSED PROPERTY UNTIL RIGHT OF REDEMPTION EXPIRES
A purchaser of a sheriff’s deed for foreclosed property has a cause of action against the previous owner still in possession of said property for any damage until the right of redemption period expires. Generally, the previous owner has the right to redeem the foreclosed property if he or she can pay the debt in full in a certain amount of time after the foreclosure sale (generally six months). If the property is redeemed, the sheriff’s deed is nullified and the original owner regains good title. If the property is not redeemed, the purchaser of the sheriff’s deed is vested with good title. Until that period expires, the previous owner has limited rights regarding use and possession of the real property in question to avoid civil liability.
“Any person entitled to the possession of lands or tenements sold under execution may use and enjoy the premises until the period of redemption has run in the following ways without being guilty of waste:”
- “He may in all cases use and enjoy the premises sold in the same manner and for the same purposes in and for which they were used and enjoyed prior to the sale, doing no permanent injury to the freehold.” MCL 600.2919(6)(c)(i).
- “If the premises sold were buildings or other erections he may make necessary repairs to them although he shall not make alterations in the form or structure of them.” MCL 600.2919(6)(c)(ii).
- “If the premises sold were land, he may use and improve the land in the ordinary course of husbandry, but he shall not be entitled to any crops growing on the premises at the expiration of the period of redemption.” MCL 600.2919(6)(c)(iii).
- “He may apply any wood or timber on the land to the necessary repair of any fences, buildings, or erections which were on the premises at the time of sale.” MCL 600.2919(6)(c)(iv).
- “If he is in actual occupation of the land sold he may take necessary firewood from the land for the use of his family.” MCL 600.2919(6)(c)(v).
WHAT CONSTITUTES “ACTUAL DAMAGES” RECOVERABLE IN A WASTE ACTION?
Generally, money damages recoverable in a waste claim are for physical injury to the real property. Stevens v. Mobil Oil Corp., 412 F. Supp. 809, 815 (E.D. Mich. 1976). Any liability for loss of a commercial use for purposes of waste must be founded upon some express or implied term of the lease. Id.
The Michigan Supreme Court has not determined whether unpaid property taxes are recoverable under a theory of waste. Denby v Ozeran, 255 Mich 477, 238 NW 218 (1931); Union Guardian Trust Co v Rau, 255 Mich 324, 327, 238 NW 166, 167 (1931).
Remember, a plaintiff can recover DOUBLE the amount of actual damages to the property. MCL 600.2919(2).
IF YOU BELIEVE YOU HAVE A LEGAL CLAIM FOR WASTE, YOU NEED A SKILLED PROPERTY LAW LAWYER IN YOUR CORNER
A claim for waste may be combined with other legal claims you may have against the tortfeasor such as conversion, malicious destruction of property, or negligence. You may want to divide the interests in jointly held property through a partition action or terminate a life estate due to bad behavior by the present interest-holder. You may even need an injunction to prevent further waste from occurring. Civil litigation is complicated but a lawyer with experience in property lawsuits can be of assistance. Our law firm has experience in these matters and can assist you every step of the way to increase the chances of a favorable result.
If you or a loved one have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.