This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
"Permissive waste is waste by reason .of omission or not doing, as for want of reparation, * * * for he that suffereth a house to decay which he ought to repair, doth the waste, "10a and it is said that "waste may be done in houses by suffering the same to be uncovered, whereby the spars or rafters or other timbers of the house are rotten, but if the house be uncovered when the tenant cometh in, it is no waste in the tenant to suffer the same to fall down."11
8. McGregor v. Brown, 10 N. Y. 114, per Edwards, J. This view appears to be regarded with approval in Moore v. Townshend, 33 N. J. Larv, 284, 306.
9. Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19; Cool v. Peters Box & Lumber Co., 87 Ind. 537; Giles v. Simonds, 5 Gray (Mass.) 441, 77 Am. Dec. 373;
White v. King, 87 Mich. 107, 49 N. W. 518; Bruley v. Garvin, 105 Wis. 925, 48 L. R. A. 839, 81 N. W. 1038. See 18 Am. & Eng. Enc. Law (2d Ed.) 1131.
10. 1 Barringer & Adams, Mines & Mining, 67 2 Id. 59.
10a. 2 Co. Inst 145.
11. Co. Litt. 53.
Sec. 286 ]
Rights of Enjoyment.
A tenant for life is, in England and Canada, apparently not liable for permissive waste,12 but such a liability on his part has been recognized in several decisions in this country.13
There are occasional modern decisions in England recognizing a liability upon the part of a tenant for years for permissive waste, that is, an obligation upon him, apart from express contract, to make repairs.14 In this country, likewise, a liability has been asserted as against a tenant for years for permissive waste,15 while in some cases he is stated, without the use of the expression "permissive waste,': to be bound to make repairs.16 Thus it has been said that a tenant for years is bound to make "ordinary repairs,"17 and that he is not bound to make substantial lasting or general repairs, but must make "such ordinary repairs as are necessary to prevent waste and decay,"18
12. In re Cartwright, 41 Ch. Div. 532; In re Parry 1(900) 1 Ch. 160; Patterson v. Central Canada Loan & Sav. Co., 29 Ont. 134.
13. Kline v. Dowling, 176 Ind. 521, 96 N. E. 579; Prescott v. Grimes, 143 Ky. 191. 136 S. W. 206; Stevens v. Rose, 69 Mich. 259, 37 N, W. 205; Wilson v. Edmonds, 24 N. H. 517. 545: Schult-ing v. Schulting, 41 N. J. Eq. 130, 3 Atl. 526; Woolston v. Pullen, 88 N. J. Eq. 35, 102 Atl. 461. In Rogers v. Atlantic Gulf & Pac. Co., 213 N. Y. 246, 107 N. E. 667, such liability on the part of the life tenant appears to be repudiated.
Occasionally a life tenant has been said to be under an obliga-tion to make or pay for repairs, without the use of the expression "waste." Stansbury v. Inglehart, 20 Dist. Col. 134; Hamilton v. Hamilton, 140 Iowa, 282, 115 N.
W. 1012, 118 N. W. 375; St. Paul Trust Co. v. Mintzne'* 65 Minn. 124, 32 L. R. A. 756. 60 Am. St. Rep. 444, 67 N. W. 657. See Wilson v. Edmunds, 24 N. H. 517.
14. Harnett v. Maitland. 16 Mees. & W. 257; Yellowiy v. Gow-er, 11 Exch. 274; Davies, v. Davies, 38 Ch. Div. 499. See. also, the exhaustive opinion of .Meredith, C. J., in Morris v. Cairncross. 14 Ont Law Rep. 544, and an article in 33 Solicitors' Journal, 743.
15. Moore v. Townshend, 33 X. .J. Law, 284.
16. Libbey v. Tolford, 48 Me. 316. 77 Am. Dec. 229.
17. Hatch v. Stamper 42 Conn. 28; Lynch v. Sauer, 16 Misc. 1, 37 N. Y. Supp. 666; Hitner v. Ege, 23 Pa. 305; Windon v. Stewart, 43 W. Va. 711, 28 S. E. 776.
18. Suydam v. Jackson, 54 N. Y. 450.
And that he is bound to make "fair and tenantable repairs, so as to prevent waste and decay," but not "substantial and lasting or general repairs," such as to put on new roofing.19 It has been held that a tenant in dower is under no obligation to repair an absolutely valueless building on the land leased,20 and there is a dictum apparently to the effect that the tenant under a lease is under no obligation whatever to repair defects riot caused by himself.21
In at least one state the liability of a tenant from year to year for permissive waste has been clearly asserted.22 It has been said in England, in cases involving tenancies from year to year, that the tenant is under an obligation to keep the premises "wind and water tight"23 and to make "fair and tenantable repairs, so as to prevent waste and decay,"24 but that he is under no obligation to make "general"25 or "substantial"26 repairs, or to make good "mere wear and tear,"27 or to "sustain and uphold the premises,"28 or to keep them "in good tenantable condition."29
In the English cases above cited, in which an obligation to make repairs is asserted as against a ten19. Long v. Fitzimmons, 1 Watts & S. (Pa.) 530. See Russell v. Rush, 2 Pittsb. Rep. (Pa.) 134; Scheerer v. Dickson, 3 Brewst. (Pa.) 276.
20. Sherrill v. Connor, 107 N. C. 630, 12 S. E. 588.
21. United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65. .
22. Newboid v. Brown, 44 N. J. Law, 266.
23. Auworth v. Johnson, 5 Car. & P. 239; Leach v. Thomas, 7 Car. & P. 327.
24. Ferguson v. - , 2 Esp.
25. Horsefall v. Mather, Holt, N. P. 7
26. Leach v. Thomas, 7 Car & P. 327.
27. Torriano v. Young, 6 Car. & P. 8. In Davies v. Davies, 38 Ch. Div. 499, Kekewicr J . seems to assert that the obligation upon a tenant for years not to do permissive waste requires the tenant to repair any injuries from wear and tear to the floor or walls of the building, and even to repair injuries to the chimneys caused by a storm.
28. Auworth v. Johnson, 5 Car. & P. 239.
29. Horsefall v. Mather, Holt, N. P. 7.
Ant from year to year, the failure to make them is not termed permissive waste, and the obligation seems rather to be based upon an implied agreement, it being intimated in one of these cases that such a tenant is not liable for permissive waste.30 Historically, there may be reason for so holding, since the tenancy from year to year is to some extent a development from tenancy at will, but in view of the fact that a modern tenant from year to year stands in most respeets in the position rather of a tenant for years than. of one at will, it appears to be a distinction of somewhat excessive refinement to hold that a tenant for years is bound to make repairs because otherwise he would be guilty of permissive waste, while a tenant from year to year is so bound, not for that reason, but because he has impliedly agreed to do so.