The recent decision in Bitler Investment Venture II v. Marathon Petroleum, No. 12-3722 (7th Cir. Jan. 27, 2014)(Posner, J.), offered an opportunity to consider claims for common law waste in this month’s Pennsylvania Law Weekly column. Common law waste provides a claim by a lessor or a remainderman against a lessee or a life tenant for damage to the real estate or unreasonable depletion of a resource. So, if the lessee mines coal when the lease was for surface use only or if the lessee cuts down immature timber in order to get the profits during the tenancy, that can be waste. Contaminating real estate might be waste, but we do not have a good case. In Bitler, the lessee removed underground storage tanks at service stations, but never returned the properties to conditions suitable for use, and, in fact, the buildings on some of them to deteriorate to the point of being condemned. That was waste. The common law claim exactly overlapped claims for breach of the lease, but under state law offered doubled damages. Thus, the lesson may be that if you want the contract provisions to allocate rights between lessor and lessee, the document may have to disclaim common law claims explicitly.
To read Lessons in Claims for Common Law Waste, 37 Pa. L. Weekly 124 (Feb. 11, 2014), click here.