All land under the dominion of the English crown is held “mediately or immediately, of the king”—that is, the crown has “radical title” to all land under its political dominion. William the Conqueror declared that all land in England was literally the king’s property; everyone else had to settle for the privilege of holding it for him—the privilege of tenure (from the Norman French word “tenir”—to hold). Tenurial rights were intensely personal in early feudal society: the right to hold land was a privilege granted by the crown in exchange for an oath of allegiance and a promise of military service by the tenant—the oath of homage. The word homage derives from the French word homme—literally “man”—precisely because the ceremony surrounding the oath created not only the right of tenure, but a political and military relationship between “lord and man.”* In exchange for the tenant’s loyal support, or fealty, the lord warranted the tenant’s right to hold a plot of land, called a fief, or fee.

Homage Ceremony
Source: JAMES HENRY BREASTED & JAMES HARVEY ROBINSON, 1 OUTLINES OF EUROPEAN HISTORY 399 (1914).

Acceptance of this form of military tenure obligated the tenant to provide a certain number of knights when called on by the king, and the land held by the tenant was supposed to provide sufficient material support to enable him to meet this military obligation. Sometimes, by the process of subinfeudation, the King’s direct tenants (or “tenants-in-chief”) could spread this burden around by in turn accepting homage from other, lesser nobles and freemen, each of whom would be responsible to the tenant-in-chief for a portion of the tenant-in-chief’s obligation to provide knight-service. The tenants-in-chief thereby became “mesne lords” in their own right (“mesne” being Norman French for “middle” or “intermediate”). There could be several layers of mesne lords (i.e., “land lords”) in the feudal hierarchy, at the bottom of which were “tenants in demesne” (“demesne” being Norman French for “domain” or “dominion”)—who actually held the land rather than subinfeudating it further. Of course, holding land did not mean one actually worked it; a tenant in demesne often left the cultivation and productive use of land to those of lower social status. These could be “villeins”—serfs legally bound to the land by birth—or “leasehold” tenants—a leasehold being a right to hold land for a term of years in exchange for payment of rent in cash or (more often) kind, and of lesser status than the “freehold” estate held by feudal tenants tracing their rights up the feudal pyramid to the crown.

Because a feudal tenant’s land rights were intimately connected to this web of personal, political, and military relationships, there was no logical reason why the tenant ought to be free to transfer those rights to anyone else—and good reason for the lords to resist such alienation of the fee by their tenants. Indeed, fees could be forfeited to the lord for the tenant’s breach of the homage relationship or commission of some other “felony,” and on the tenant’s death it was not clear that his family members had the right to inherit the fee. The king was assumed to have the right to retake the fee and re-grant it to a preferable new tenant upon his displeasure with or the death of the old tenant (it was his land, after all). Within a century, however, the dynastic ambitions of the baronage compelled King Henry I to concede (in his Coronation Charter of 1100) that a recently deceased baron’s heir could redeem his fee upon payment of “a just and lawful relief”—i.e., a payment of money to the crown, as a kind of inheritance tax. Under the principle of primogeniture that took hold in England around this time, the lord’s heir was his eldest son; landowners were not free to choose who would take over their tenancy after their death. Thus, subject to the payment of a relief, the fee became descendible—capable of being inherited from one generation to the next—and the grant of a descendible tenancy by the crown was now made not “to Lord Hobnob,” but “to Lord Hobnob and his heirs.” To this day, the latter phrase remains the classic common-law formula for creating the broadest interest in land that the law will recognize: the fee simple absolute.

Descendibility of the fee simple having been settled early in the history of English land law, the broader question of full alienability took several more centuries to work out. The history of medieval English land law is a history of tenants trying to secure their families’ wealth and power by expanding alienability and evading tenurial obligations to their lords and the crown, while the crown and higher nobility tried to adapt the law to preserve their status and prevent such evasions. There is a dialectical quality to this history. For example: for complicated reasons subinfeudation quickly came to present a greater threat to the economic interests of the higher ranks of the feudal hierarchy than simple substitution of one tenant for another. Thus, in 1290 the Statute of Quia Emptores banned subinfeudation. But in doing so it validated substitution, and with it the practice of selling an entire fee in exchange for money during the life of the tenant. Similarly, in 1536, at the insistence of King Henry VIII, the Statute of Uses abolished many clever schemes adopted by tenants to use intermediaries to direct the disposition of real property interests after death and to put those interests outside the reach of the law courts (and of the crown’s feudal authority). But in doing so, the statute validated one type of flexible property arrangement we have come to know as a trust. Moreover, the removal of the primary mechanism lawyers had developed to meet tenants’ demand for intergenerational planning was sufficiently unpopular that Henry felt compelled to consent to the enactment of the Statute of Wills in 1540—finally permitting tenants to pass their legal estates in land by will rather than being at the whim of the rule of primogeniture. Finally, since the 16th century, primogeniture has given way to a more complex system of default inheritance rights for various relatives of the deceased who leaves no will; these rights are designed to try to approximate what legislatures think the decedent would have wanted, not necessarily what is best for the government. This set of default rights comprises the law of intestate succession, which we will discuss in a separate unit (or which you may study in a separate course on trust and estates law).

Various other statutes and common-law developments over the centuries culminated in the system of possessory estates and future interests that were imported into the North American English colonies, and thus into the independent American states (excluding Louisiana). Underlying them all is a fundamental distinction that traces back to the “radical title” asserted by William the Conqueror in 1066: there is a conceptual difference between the ownership of land and the ownership of a legal interest in that land. This distinction remains important to modern property law, and this unit will introduce you to the types of legal interests in land that American law will recognize. In particular, it examines how the common law divides up legal interests in land among successive owners over time.

Before delving into this material, we should warn you that the estates system has limited relevance even for the practicing real estate lawyer of today. The study of estates and future interests remains in property courses for three primary reasons: (1) the estates are still legally valid property interests, and their complexity can therefore can be a danger to lawyers who encounter them and are unfamiliar with them; (2) some of the legal estates and future interests in real property can be usefully extended to equitable interests in property held in trust; and (3) the bar examiners are fond of testing aspirant attorneys on future interests—perhaps simply because they are fairly mechanical and therefore highly testable. To be sure, mastering the system of estates and future interests requires considerable exercise of the lawyerly skills of close reading, logical reasoning, and breaking down a big problem into lots of smaller problems. But there are other ways of learning those things, and a contemporary lawyer whose client wanted to divide up interests in property would be courting malpractice by relying on legal estates and future interests in land (which makes the bar examiners’ continued affection for them even more baffling). Instead, the modern lawyer should look to the much more flexible law of trusts and to the various forms of business associations—such as corporations—that can own property in their capacity as fictional legal “persons.” We discuss these strategies in a separate chapter on trusts and corporate property. 

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* The ceremony of homage, recorded by the 13th-century jurist and ecclesiastic Henry de Bracton, required the tenant to come to the lord in a public place, and there “to place both his hands between the two hands of his lord, by which there is symbolized protection, defense and warranty on the part of the lord and subjection and reverence on that of the tenant, and say these words: ‘I become your man with respect to the tenement which I hold of you … and I will bear you fealty in life and limb and earthly honour … and I will bear you fealty against all men … saving the faith owed the lord king and his heirs.’ And immediately after this [to] swear an oath of fealty to his lord in these words: ‘Hear this, lord N., that I will bear you fealty in life and limb, in body, goods, and earthly honour, so help me God and these sacred relics.’” 2 Bracton Online 232 http://bracton.law.harvard.edu/Unframed/English/v2/232.htm. The Anglo-Saxon Chronicle contains a remarkable and much-debated passage in which William the Conqueror is said to have held court at Salisbury twenty years into his reign, and there summoned and taken direct oaths of homage and fealty from every landowner “of any account” in the whole of England. See H. A. Cronne, The Salisbury Oath, 19 HISTORY 248 (1934); J.C. Holt, 1086, in COLONIAL ENGLAND, 1066-1215, at 31 (1997).

To begin understanding how the law divides up interests in land over time, we begin with the fundamental distinction between possessory estates and future interests. A possessory estate is a legal interest that confers on its owner the right to present possession of some thing. A future interest is a legal interest that exists in the present, but does not entitle the owner to possession until some point in the future.

This may sound confusing, but you are probably already familiar with an arrangement that follows this pattern: a lease. A lease is a transaction in which the landlord gives the tenant a possessory estate (a leasehold estate), and retains a future interest—the right to retake possession after the lease term ends. This retained future interest—an unqualified right to future possession retained by the party who created the possessory interest that precedes it—is called a reversion. (Landlord-tenant relationships are obviously more complicated than this—they entail a number of contractual rights and obligations and are heavily regulated by statutory and decisional law and, in many cases, administrative codes. We cover these relationships more thoroughly in our unit on Landlord and Tenant.)

The idea that both landlord and tenant can have legal interests in the same parcel of land at the same time, even though only one of them has the right to possess the land at any given time, is a good introduction to the concept of future interests. If you think about it, you will probably recognize that the basic idea of a lease implies certain rights and powers of a landlord in the leased premises even during the term of the lease. The most important one is the reversionary right itself: the right to take possession at some point in the future. That’s a right the tenant can’t take away, even while the tenant has the right to possession. The landlord might be interested in selling (or mortgaging) this reversionary right, even before the lease ends. And if she does sell or mortgage her interest (which she may, subject to the tenant’s interest), the thing sold is not “the property”; it is the landlord’s reversion: a legal interest in real property that exists in the present but will not entitle its holder to possession of that real property until some point in the future.

When learning about estates and future interests, we will follow some conventions that will simplify our discussion as much as possible. Most of our problems will involve an owner of land transferring some interest in that land to one or more other parties. Following longstanding tradition in the study of Anglo-American property law, we will refer to the parcel of land in question as “Blackacre” (or “Whiteacre,” “Greenacre,” “Ochreacre,” etc. if more than one parcel is at issue). We will refer to the original owner as O, and the other parties as A, B, C, etc.

In addition, there are a variety of technical terms that arise, a few of which you should be familiar with:
• A grant or conveyance is a transfer of an interest in property. The person making the grant is the grantor (or transferor); the person receiving the grant is the grantee (or transferee). If the grant is made during the life of the grantor, it is said to be an inter vivos conveyance (literally, “between the living”). If in a will, it is said to be a testamentary conveyance. A testamentary conveyance of real property is called a devise. A testamentary conveyance of personal property is called a bequest (or sometimes a legacy).

• When a person dies, they will either have left a valid will or not. A person who dies with a valid will dies testate; one who dies without a valid will dies intestate. Either way, the dead person can be referred to as a decedent. If the decedent did leave a valid will, they may also be referred to as a testator if male, or a testatrix if female.

• The assets that a decedent owned at her death are collectively referred to as the decedent’s estate. An estate can sometimes take on the qualities of a legal person—it is not uncommon to say that a certain asset is owned by “the estate of O.” The property rights of this fictional legal person are managed by an actual person whose title depends on whether the decedent left a will. The instructions in a will are carried out by an executor (if male) or executrix (if female), designated as such in the will itself. An intestate estate is disposed of by a court-appointed administrator (if male) or administratrix (if female).

• The authority of an administrator or executor to dispose of the estate’s assets is conferred by a probate court. When a valid will is filed with the probate court and deemed valid, the court will admit the will to probate (or probate the will), and will issue letters testamentary to the executor authorizing him to take possession of the estate’s assets and dispose of them according to the will’s instructions. If the decedent died intestate, the court will issue letters of administration to an administrator authorizing him to take possession of the estate’s assets and dispose of them according to the laws of intestate succession.

• If the decedent did leave a valid will, it will typically contain instructions for transferring assets to various identified people or entities. The parties receiving the bequests are referred to as the will’s beneficiaries, devisees (for real property), or legatees (for personal property). When a decedent passes property by will he or she is said to have devised that property. A property interest that the decedent has the power to transfer by will is said to be devisable.

• Sometimes a will fails to provide instructions for all the assets owned by the testator at death; in this case the unallocated assets are said to create a partial intestacy. When this happens, assets designated in the will are distributed according to the will’s terms, while the estate’s remaining assets are distributed according to the laws of intestate succession. In order to avoid partial intestacy, it is good practice to include a residuary clause in a will, disposing of all the assets of the decedent not devised through specific bequests. Such unenumerated assets are referred to as the residuary estate.

• If the decedent did not leave a valid will, her property will pass to her heirs (sometimes referred to as heirs at law). Heirs are those who are designated by law as successors to property that passes by intestate succession rather than by will. When heirs take such property, they are said to inherit it. A property interest that can pass by intestate succession is said to be descendible.

• Note that until the decedent actually dies, we don’t know who her heirs are; rights of inheritance are allocated only to relatives of the decedent who survive her—who are still alive when the decedent dies. Thus, until a property owner dies, her relatives have no legally enforceable rights in her property under the laws of intestate succession. It is sometimes said that such relatives have a mere expectancy, and they are sometimes referred to as heirs apparent.

• Heirs under intestacy laws are drawn from various categories of relatives. In addition to spouses, there are issue: the direct descendants of the decedent (children, grandchildren, great-grandchildren, etc.); ancestors (parents, grandparents, great-grandparents, etc.); and collaterals: relatives who are not direct ancestors or descendants (siblings, aunts, uncles, nieces, nephews, cousins).

• If a person dies without a will and without any heirs at law, any property in their estate escheats to the state, which becomes its owner.

The fee simple absolute is the most complete interest in land that the law will recognize. When we say that “O owns Blackacre” without any further qualification, what we actually mean is that O owns a presently possessory fee simple absolute in Blackacre. The key distinguishing characteristic of the fee simple absolute is that it has no inherent end—it is an estate of indefinite duration. It is descendible, devisable, and alienable inter vivos; so it can be transferred to a new owner, but it cannot be destroyed. At most, it can be carved up into lesser estates and interests for a while, and we will spend most of the rest of this chapter understanding how that happens.

At common law, as previously noted, the fee simple absolute was created by the formula: “to A and his heirs.” That formula still works, but in modern usage it is sufficient to simply say “to A,” and the use of such language in a conveyance from the owner of a fee simple absolute will be presumed to create a fee simple absolute in A.

The life estate is just what it sounds like: an estate that confers a right to possession for the life of its owner. The owner of a life estate is referred to as a life tenant. The life estate terminates by operation of law upon the owner’s death (i.e., it ceases to exist). It is created by the formula: “to A for life.” Because it must by definition end—we all have to die sometime—any land held by a life tenant must also be subject to a future interest in some other person. We’ll explore what those future interests might be shortly.

Recall the legal principle of nemo dat quod non habet (or nemo dat for short), which we encountered in our discussion of good faith purchasers: a grantor cannot convey title to something she doesn’t herself own. Following this principle, life estates are alienable inter vivos during the life of the life tenant, but obviously not devisable or descendible: they cease to exist upon the death of their owner, so the life tenant’s estate has nothing to convey. Nemo dat also implies that the owner of an interest in real property cannot convey more than their interest; a life tenant cannot convey a fee simple absolute, for example. More to the point, if a life tenant A transfers their life estate to a grantee B, B cannot receive anything more than what A owns: a possessory estate that will terminate by operation of law when A dies. Because such an interest is measured by the life of someone other than its owner, it is called a life estate pur autre vie (literally, in Law French, “for another life”). A life estate pur autre vie can also be created explicitly, as by a grant “to A for the life of B.”

We’ll hold off on any further illustrative problems at this point, because we still need some exposition of what happens after a life tenant dies. The answer, as we’ve already noted, involves future interests.

We encountered the reversion once before, when discussing leases as an introduction to the concept of a future interest. But reversions often arise in non-leasehold contexts too. Consider what happens when A, owning a life estate in Blackacre, dies. A’s life estate terminates by operation of law; it simply ceases to exist and disappears. Who “owns” Blackacre now? It seems obvious that somebody must have a right to possession of the land, but it seems equally obvious that whoever that somebody is, they had no right to possession before A died. Whoever they are, during the term of A’s life estate they must have held an interest that would entitle them to take possession at some point in the future (that is, a future interest).

There are two candidates for such an interest. We will begin with the most basic: the reversion. Suppose that O, owning a fee simple absolute in Blackacre, conveys Blackacre “to A for life,” and says nothing more? What is the legal effect of this grant?

Based on the formula we just learned, it should be clear that A receives a life estate in Blackacre. But what other effects does the grant have on the legal rights of the parties? Think about the interest O held prior to the conveyance: the fee simple absolute. Remember that a fee simple absolute is an interest of infinite duration—it never ends. So when O starts with a possessory interest of infinite duration, and then gives away a life estate—whose duration is limited by a human lifespan—to A, something was left over. Specifically, O never gave away the right to possession of Blackacre from the day of A’s death to the end of time. Whether meaning to or not, O gave away less of an interest in Blackacre than what he owned, meaning he still holds some interest. We call this type of interest—the residual interest left over when a grantor gives away less than they have—a retained interest.

This retained interest can’t entitle O to possession during A’s life—A has the exclusive right to possession as the life tenant. So O’s interest must be a future interest during the term of A’s life estate: an interest that will entitle O to possession after the natural termination of the life estate. As we discussed in the example of the lease, we call this kind of future interest a reversion. It is a retained interest in the grantor—created when a grantor conveys less than his entire interest—that will become possessory by operation of law upon the natural termination of the preceding estate. Colloquially, we say that Blackacre “reverts” to O. In some opinions, you will see the holder of a reversion referred to as a “reversioner.”

A reversion can of course also be created explicitly, for example, if O conveys Blackacre “to A for life, then to O.” In this case, O has explicitly created a life estate in A followed by a reversion in O.

A remainder is a type of future interest created in someone other than the grantor. The distinguishing characteristic of the remainder is that—like a reversion—it cannot cut short or divest any possessory estate. (We will later encounter other future interests that can.) A remainder simply “remains,” sitting around and waiting for the natural termination of the preceding possessory estate (be it a life estate or a lease), at which point the remainder will become possessory by operation of law. Suppose that O, owning a fee simple absolute in Blackacre, conveys Blackacre “to A for life, and then to B.” Again, A would have a life estate, but now O has also affirmatively created a future interest in B. Because the future interest is created in someone other than the grantor, it isn’t a reversion. And because it cannot cut short A’s life estate (note the “and then” language), it must therefore be a remainder. Due to the persistence of dated gendered terms in legal discourse, you will often see the holder of a remainder referred to as a “remainderman,” even today, regardless of that person’s gender.

Future interests get a lot more complicated than this, but you now have enough to begin examining some problems that can arise from even this limited set of interests.

1. O, owner of a fee simple absolute in Blackacre, conveys Blackacre “to A for life, then to B for life.” (Assume that both A and B are alive at the time of the grant.) What is the state of title in Blackacre?
a. What will be the state of title if A dies, survived by B and O?
b. What will be the state of title if B dies, survived by A and O?
c. What will be the state of title if O dies, then A dies, then B dies?

2. What will be the state of title if, while O, A, and B are still alive, B conveys her interest to C?
a. What will be the state of title if, after B conveys her interest to C, A dies, survived by B, C, and O?
b. What will be the state of title if, after B conveys her interest to C, C dies, leaving D as his heir, and is survived by A, B, and O?
c. What will be the state of title if, after B conveys her interest to C, B dies, survived by A, C, and O?

1. Holographic Wills. A holographic will—a will handwritten by the testator—often presents a particular challenge for courts attempting to interpret it. Indeed, they are thought to be so problematic that about half of American jurisdictions refuse to recognize them as valid wills at all. See Stephen Clowney, In Their Own Hand: An Analysis of Holographic Wills and Homemade Willmaking, REAL PROPERTY, TRUST AND ESTATE LAW JOURNAL 27 (2008) (arguing that the defects of holographic wills, though real, are overstated). Lay testators attempting to settle their affairs without assistance of counsel often make legal or technical errors of various kinds, including errors of ambiguity such as the one that generated the litigation in Craigen.

2. Presumptions and Rules of Construction. The court reviews a number of rules of construction applied by courts in construing ambiguous grants. Most jurisdictions have similar rules of construction—sometimes promulgated by statute, other times judge-made. In Craigen, two rules in particular do considerable work: the presumption against intestacy and the clear-statement rule for creation of a life estate. The latter rule is sometimes expressed in other jurisdictions as a presumption in favor of the largest estate the grantor could convey. See, e.g., White v. Brown, 559 S.W.2d 938, 939 (Tenn. 1977) (quoting Tenn. C. Ann. § 32-301) (“Every grant or devise of real estate, or any interest therein, shall pass all the estate or interest of the grantor or devisor, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of the instrument.”).

What justification is there for presuming that an ambiguous grant conveys a fee simple absolute rather than a life estate? Is it any different for the justification underlying the presumption against intestacy? Was Craigen an appropriate case for the application of these presumptions?

3. Finding Ambiguity. Are you convinced by the court’s arguments that the language “till she dies” does not “clearly express the testator’s will to create a life estate”? What do you think Dalton Craigen meant by this phrase?

4. Dueling Presumptions. The court mentions another rule of construction—the presumption against disinheritance—but declines to apply it. Why? Is its reason for following the presumption against intestacy but declining to follow the presumption against disinheritance persuasive? How is a court to decide when a presumption or other rule of construction applies and when it doesn’t?

1. What exactly is the dispute between the majority and the dissent? Do they agree on the existence of a remedy for waste under New York law? On the definition of waste? On the applicability of waste doctrine to the lease before the court? On the remedy for waste?

2. Although this case deals with a lease for life—a peculiar hybrid estate that is not recognized in many jurisdictions—the doctrine of waste applies between freehold possessory estate holders and future interest holders just as it applies between leasehold tenants and landlords. Thus, even in the absence of a lease contract, Brownson could have been held liable for damages, or enjoined from felling any further timber, in an action for waste by the reversioners (if the jury concluded that it would indeed be waste for a possessor in Brownson’s position to fell such timber).

3. Forms of Waste. Waste can be either voluntary or permissive. Volutnary waste (sometimes called affirmative waste) refers to acts of the holder of the possessory estate, such as erecting or demolishing a structure, or extracting non-replenishing natural resources. Permissive waste refers to omisssions of the holder of the possessory estate, such as failing to pay property taxes, or failure to make needed repairs. Either can support a claim for waste by the owner of a future interest whose rights are permanently devalued as a result. Which form of waste was at issue in Jackson?

4. Theories of Waste. One commentator argues that Jackson was the starting point for a peculiarly American departure from the English doctrine of waste deplored by the dissenters. In this view, “courts created the American law of waste for several reasons: to promote efficient use of resources that the English rule would have inhibited; to advance an idea of American landholding as a republican enterprise, free of feudal hierarchy; and perhaps to advance a belief that a natural duty to cultivate wild land underlay the Anglo-American claim to North America.” Jedediah Purdy, The American Transformation of Waste Doctrine: A Pluralist Interpretation, 91 CORNELL L. REV. 653, 661 (2006). And indeed, the sensitivity of both opinions in Jackson to local conditions, the desirability of converting wild lands to agricultural use, and the sustainability of yeoman farming tend to support this pluralist view.

5. Law-and-economics theorists, in contrast, identify waste doctrine solely with the criterion of efficiency, and particularly the internalization of externalities and mitigation of holdout problems. As Judge Posner puts it: “The incentive of a life tenant is to maximize not the value of the property—that is, the present value of the entire stream of future earnings obtainable from it—but only the present value of the earnings stream obtainable during his expected lifetime. So he will, for example, want to cut timber before it has attained its mature growth even though the present value of the timber would be greater if the cutting of some or all of it were postponed; for the added value from waiting would inure to the remainderman…. [Moreover,] since tenant and remainderman would have only each other to contract with, the situation would be one of bilateral monopoly and transaction costs might be high.” To avoid these problems, “[t]he law of waste forbids the tenant to reduce the value of the property as a whole by considering only his own interest in it.” Richard A. Posner, Comment on Merrill on the Law of Waste, 94 MARQ. L. REV. 1095-96 (2011).

What if, instead of doing something that decreases the value of the future interest, the holder of the possessory estate does something that increases the market value of the land, but in doing so changes the premises in ways the future interest holder doesn’t like? Such alterations—known as ameliorative waste—have generated two types of approaches in the courts.

The first approach, adopted in Melms v. Pabst Brewing Co., 79 N.W. 738 (Wisc. 1899), looks to the effect of the life tenant’s actions on the market value of the parcel and whether those actions were necessitated by a change in conditions surrounding the parcel. In Melms, the Pabst Brewing Company had torn down an old mansion abutting a brewery it owned, mistakenly believing it owned the lot in fee simple when in fact it owned only the life estate of the widow Melms (the remainder being owned by her children). At the time of the demolition, the neighborhood around the house had become heavily industrialized, and had been re-graded such that the house stood 20-30 feet above street level and was worthless as a residential property. In these circumstances, the court held, whether the act of destroying the mansion and re-grading the lot on which it stood to street level constitutes waste is a question of fact for the jury. The court suggested that such actions will not constitute waste “when it clearly appears that the change will be, in effect, a meliorating change, which rather improves the inheritance than injures it.” Id. at 739.

The second approach—more consistent with the common-law roots of waste doctrine—holds that any material change to real property caused by a lawful possessor without the consent of the holder of the future interest is waste, full stop. This approach informed the decision of the New York Supreme Court in Brokaw v. Fairchild, 237 N.Y.S. 6 (Sup. Ct. N.Y. Cty. 1929). In that case, the court refused to allow the life tenant of a stately mansion on New York’s Fifth Avenue at 79th Street to tear the mansion down over the objections of the holders of future interests in the lot, even though living in the mansion had become cost-prohibitive and the neighborhood had become a prime location for luxury apartment buildings, which could be built and operated on the site for a substantial profit. The theory underlying this result is that a life tenant has merely the rights of use, not full rights of ownership, and that the holder of the future interest is entitled to take possession of the parcel in substantially the same condition as it existed at the time the future interest was created: “The act of the tenant in changing the estate, and whether or not such act is lawful or unlawful, i.e., whether the estate is so changed as to be an injury to the inheritance, is the sole question involved.” Id. at 15.

The opinion in Brokaw generated a backlash in New York’s reform-minded legislature, which enacted a statute redefining waste law along the lines set forth in Melms; that statute remains in force today. See N.Y. REAL PROP. ACTS. & PROCS. L. § 803. But interestingly, the opinion in Melms itself seems to have arisen from a number of questionable factual and legal pronouncements from the Wisconsin courts. The full, fascinating story is recounted in Thomas W. Merrill, Melms v. Pabst Brewing Co. and the Doctrine of Waste in American Property Law, 94 MARQ. L. REV. 1055 (2011). As of 2009, the rule of Melms was followed in most U.S. jurisdictions, while a small number continued to follow the rule of Brokaw. Id. at 1083 (citing Gina Cora, Want Not, Waste Not: Contracting Around the Law of Ameliorative Waste (Apr. 1, 2009) (Yale Law School Student Prize Papers: Paper 47), http://digitalcommons.law.yale.edu/ylsspps_papers/47).
Which of these two rules do you think is most consistent with the pluralist justifications for waste doctrine described by Professor Purdy? Which do you think is most consistent with the law-and-economics approach? Do either of the rules require some other form of justification, and if so, what might that justification be?