Want Not, Waste Not: Contracting Around the Law of Ameliorative Waste

Abstract

The law of waste is an ancient doctrine that has recently invoked new interest among scholars. Scholars largely focus on one category of waste: ameliorative waste. In short, ameliorative waste occurs when a person who does not own the property—but has a possessory interest in it—makes a significant change to the property that increases the property’s value. Scholars discuss ameliorative waste for very different purposes: to understand early American land development, to illustrate economic principles both in theory and for pedagogical purposes, to discuss environmentalist concerns regarding land use, and even to argue for certain tax reforms. No scholar, however, has done anything even close to a comprehensive study of ameliorative waste in the United States. Instead, they all tend to discuss the most famous cases and make gross generalizations based upon them. No scholar’s theory, furthermore, has adequately accounted for why ameliorative waste cases only rarely appear in courts today. In fact, one recent scholar argues that the doctrine is still very relevant to our current jurisprudence.