This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
A tenant for life has -
(1) power to enjoy the land as he likes during his life, limited, however, by rules which prohibit "waste"; that is, prevent the life tenant from altering the nature of the land which is to go to the person entitled after his death.
(2) Power to alienate the land; but he cannot sell or give the land for an estate to endure longer than for his own life, for it is a well settled rule that a man cannot give more than he has got.
(a) 1 Vict. c. 26.
This, however, is subject to the powers which are given to a tenant for life by the Settled Land Acts (c).
(3) On the death of a tenant for life his rights cease except that his representatives are entitled to "emblements," i.e. to cut the crops which he has sown.
But this rule does not apply if the tenancy ceased by the act of the tenant himself, e.g. if land is given to A for life or until he ceases to reside there. If A ceases to reside, he cannot afterwards claim emblements.
When the tenant for life has granted a lease, and the lease ceases by reason of his death, then, if the rent is the best rent that could be obtained, the tenant is allowed to remain in possession of the land for the rest of the year instead of taking the emblements (d).
(1) As to Waste. - Waste is of three kinds.
1. Voluntary waste is any unauthorized act which alters the character of the land.
Thus, cutting down timber, opening and working mines, ploughing up pasture land, etc., are acts of voluntary waste. But the act need not necessarily be one which diminishes the value of the land. Thus, turning arable land into meadow is also waste. This form of waste is sometimes called "ameliorating waste." At common law a tenant for life was entitled to commit waste, unless (1) he was specially prohibited from so doing, or (2) he was a tenant by operation of law, e.g. a tenant by curtesy (see pp. 16, 17).
At the present day (e) a tenant for life may not commit voluntary waste, unless he is expressly made "unimpeachable for waste" (= not to be impeached or made liable for waste).
(c) See p. 41.
(d) See Landlord and Tenant Act, 1851, 14 & 15 Vict. c. 25.
(e) Since the Statute of Marlborough, 6 Ed. I. c. 5.
If a tenant for life does commit waste, the person entitled to the fee simple could either (1) sue him for damages at Common law, or (2) restrain him by injunction in Equity from committing the waste. (f). Since the Judicature Act, 1873 (g), he can make use of either or both remedies in either branch of the High Court.
2. Permissive waste is merely allowing the land to get out of repair.
A tenant for life is not responsible for permissive waste unless expressly made responsible.
A tenant for years, however (i.e. a leaseholder), is responsible for repairs unless they are expressly undertaken by the landlord.
Note, that "permissive" waste is not "waste which is permitted," but waste which consists in "permitting" the land to become ruinous.
3. Equitable Waste. - A tenant for life who is expressly made "unimpeachable for waste" can be restrained from committing wanton destruction.
History. - (a) At Common Law he could do anything he liked.
(b) Equity. - The Court of Equity would restrain him by injunction from committing wanton destruction.
Vane v. Lord Barnard (1716), 3 Vern. 738.
Lord B. settled Raby Castle on himself for life without impeachment of waste, remainder to his son for life, remainder to the son's sons in tail.
"Lord Barnard having taken some displeasure against his. son, got 200 workmen together, and of a sudden, in a few days,, stript the castle of the lead, iron, glass, doors, and boards, etc., to the value of £3000."
Result, the Court granted an injunction to prevent further waste, and ordered him to repair the castle.
(f) The old writ of waste by which he could recover threefold damages and cause the land to be forfeited was abolished by the Statute of Gloucester, 52 Hen. III., c. 23. See Goodeve," Real Property," 5th ed.. p. 138.
(g) 36 & 37 Vict. c. 66.
(c) At the present day, since the Judicature Act, 1873, he can be restrained from wanton destruction in any branch of the High Court.
Note, therefore, that "Equitable" waste does not mean "waste which is equitable," but waste which is so inequitable that it would be restrained in Equity, although allowed at Common Law.
(2) Power to alienate.
Powers of a Tenant for Life under the Settled Land Acts.
Object of the Acts. - The most usual way in which life estates are created is in case of settlements of land (see p. 34, ante).
The land is granted to A for life, with remainder to his eldest son in tail, etc.
The result was formerly that A, having only a life interest, could not sell the fee simple, and the son of A until he reached 21 could not sell it, being an infant. When the son reached 21, A and the son together could bar the entail (see pp. 27 and 31), and sell the fee simple. But the custom is that the son should, immediately after attaining 21, re-settle the land to A for life, remainder to himself (the son) for life, remainder to his (the son's) eldest son in tail.
Thus the land could only be sold once in a genera-tion, i.e. as each eldest son reached 21.
It therefore frequently happened that, as land decreased in value, a family became too poor to keep up the estate properly, and the land would go to ruin, while the family lived in poverty.
To prevent this the Settled Land Act was passed in 1882 to enable A to sell the whole fee simple, i.e. to turn the land into money; but the money must be tied up in the same way as the land; so that the rights of all parties after a sale may be exactly the same as before, except that the land has become money.
Other acts amending and extending the first Settled Land Act have been passed, and are usually called "the Settled Land Acts, 1882 to 1890." The following is a summary of the powers under these Acts.