Alienation of Property
What is Alienation in Property Law?
Alienation in property law refers to the voluntary act of a property owner to dispose of the property, whereas alienability, or being alienable, refers to the ability of a piece of property or a property right to be sold or otherwise transferred from one party to another.
Most property is alienable; however, some may be subject to alienation restrictions.
Land was frequently transmitted by subinfeudation in England under the feudal system, and alienation required permission from the overlord.
Between 1765 and 1769, William Blackstone published Commentaries on the Laws of England.
In the commentaries, he described the main goal of English real property laws as the law of inheritance, which maintained the cohesiveness and integrity of estates through generations and thus secured political power within families.
In his Commentaries on the Constitution of the United States, Justice Joseph Story linked landowners’ jealous watchfulness of their rights and spirit of resistance in the American Revolutionary War with the system of American institutions.
They recorded and clarified land title and expanded landed markets in 1833.
Other early American legal critics who lauded the new United States’ simple and relatively inexpensive conveyancing system included Zaphaniah Swift, Daniel Webster, and James Kent.
Some objects, such as individuals and body components, are currently considered incapable of becoming property and thus inalienable.
In common law jurisdictions, Aboriginal title is one example of inalienability (save to the Crown). Non-transferability, such as tickets, is a similar notion. Rights typically referred to as a license or permission are normally personal and non-transferable.
They are, however, alienable in the sense that they may usually be surrendered.
Restraint on alienation
A restraint on alienation is a clause used in the conveyance of real property that aims to prevent the recipient from selling or otherwise transferring his interest in the property.
Such constraints are unlawful under common law because they violate the public policy of allowing landowners to freely dispose of their property.
Perhaps the final limit on alienation was the fee tail, a type of ownership that required property to be passed down in the same family from generation to generation, which has now been substantially abolished.
Certain reasonable limits, however, will be enforced in most jurisdictions. Traditionally, these include:
- For a brief time, there is a prohibition on property partition.
- The right of first refusal for example, if Joey sells property to Rachel, he may stipulate that if Rachel later wishes to sell the land, she must first give Joey the opportunity to buy it back.
- The development of public parks and gardens, such as The Royal Parks of London in the United Kingdom. The Crown Estate built these public areas under such circumstances, which meant that these parks were retained in perpetuity for public use.
Specific restrictions on alienation in the United States include:
- Disabling restraints: For enforcement to be successful, the grantor must sue the grantee. The lawsuit’s success may prevent the transfer from taking place.
Furthermore, if the disabling restraint is found to be unlawful, the restraint will be rendered ineffective.
- Promissory restraints: If the grantee breaches the promissory note, the grantor may sue for damages. Unlike disabling constraints, the lawsuit’s success does not prohibit the transfer from taking place.
However, the Supreme Court rules such promissory constraints are unconstitutional. The promissory note discourages the individual who is about to sell the property, having the same effect as the debilitating restraint.
- Restraints on forfeiture: In the event of a breach, the property is returned to the grantor or the grantor’s heirs. Because the return occurs automatically, the argument that there are no state activities can be made.
However, according to a constitutional argument, the sheer fact that the state recognizes the validity of an automatic transfer qualifies it as a state action.
There are six criteria to consider when determining whether a restriction on alienation is reasonable:
- Price classification (fixed or not fixed; courts prefer non-fixed).
- Is it a legitimate purpose, or is it not? (Courtesy is preferred by courts.)
- Parties have equal bargaining strength.
- Timeframe (a time limit to the restraint is preferred).
- There is a limit to the number of people who can be transferred.
- A constraint that raises the value of real estate is more sensible.
There are five key elements that must be completed in order for a real covenant and fair servitude to be effective:
- It must be legally binding. It must not be too ambiguous to be enforceable, must not contradict a statute or the constitution, must not contravene public policy, and must meet the standards of the statute of frauds.
- It must have an impact on and be concerned with the land.
- It must be designed to run.
- There must be a period of privity between consecutive tenants.
- Notice of the existence of a true covenant/equitable servitude must be given.
Difference between alienation and transfer
Alienation conveys the legal right to possession of the property. Transfer conveys the right to use and enjoy, but not to possess.
Transfer also serves a broader purpose, in that it has a dual purpose of acquiring a remedy.
The distinction between alienation and transfer is one of time: “Transfer is generally by words or conduct, with or without value being given, while alienation requires the delivery of an instrument.”
The right to alienate property was considered in common law as a great acquisition of liberty.
However, it is also a necessary of life. “By alienating, the owner or possessor of the property makes himself or herself a trustee or agent for another, by whom he or she may be dispossessed.”
Similarly, the possession of property can be acquired by alienation.
An implied contract not to alienate is called an “express contract to hold” (or possess). A sale without any consideration does not transfer title but only conveys an equitable title.
Alienated land is land that the government has purchased from customary landowners for its own use or for private development that necessitates a mortgage or other types of assurance. Historically, the word alludes to the capture of customary territory by European colonial powers. Land was taken from all colonies.
However, Africa and Asia have been most affected. The majority of land alienated in Africa is for hunting grounds (such as the Masai Mara).
Land alienation also refers to the on-going process in which Indigenous peoples are dispossessed of their ancestral homelands. In Southeast Asia, much of this was done by the Dutch during colonial rule.
Alienation of communal land
Alienation of communal land is a process in which a community sees the benefit from selling its land to others who can use it in some way that benefits all.
The alienation of communal lands may be at the request of traditional owners, as is usually the case with communal lands of indigenous communities. This alienation may be granted by customary law or by an Act of Parliament.
In Australia, the government provides compensation to Aboriginal families who choose to sell their land.
In the United Kingdom, a community in Cornwall was the subject of a Parliamentary bill to alienate borrowed public funds (the proceeds of which were used for improvements on the land) and displace farmers.
Communities have met this kind of alienating activity with outrage and resistance.
Land alienation has also been used as a measure against squatter populations and has been linked with extreme forms of violence against people evicted from their homes.
What is Alienation in Property Law?
In property law, alienation refers to a transfer of property rights. Alienation derives from the Latin word “alienare,” which means “to seize away.”
An example of an alienation would be if I purchase a piece of property with cash and title to it. I pay the seller money in return for the deeds and document verifying ownership.
What is Land Allocation?
Land allocation is a process where a government dispossesses land from its traditional owners and grants it to others who have no right to it.
Can alienation be restrained?
In some cases, yes. More specifically, the restraint is called an “equitable servitude.” This applies to property held for the purpose of creating a housing development. In such cases, the landowner is not allowed to divest himself or herself of any interest in the property for a certain period of time.
What is an unreasonable restraint on alienation?
A restriction on alienation is a restriction in a deed or will conveying real property on future conveyance of that real property. Alienation restraints might be unlimited or limited in time.
What are the conditions restraining alienation?
Condition restraining alienation-When property is transferred subject to a condition or limitation that completely prohibits the transferee or anyone claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease.
What are absolute and partial restraints on alienation?
While an absolute restraint is null and void, a partial restraint is not always. A partial limitation that restricts transfers solely to a specific class of people, for example, is not invalid.
However, if the transfer is restricted to only certain individuals, it is an absolute restraint and hence null and void.
What is a forfeiture restraint?
A land ownership limitation that terminates the owner’s interest if he attempts to transfer the land.
Is a right of first refusal an unreasonable restraint on alienation?
Another widely permissible constraint on alienation is a “right of first refusal,” which indicates that the transferor retains the right to be the first to purchase property upon the owner’s desire to sell, on the same terms as a third party (or at terms dictated by the restraint).
What is transfer section?
According to this section, a transfer of property is an act in which a living person conveys property to one or more other living persons, or to himself and other living persons, in the present or in the future.
Can personal property be alienated?
A sale, mortgage, lease, or bail can all be used to alienate property. Alienation takes effect the moment the property is transferred.
What is a fee interest?
A fee interest is the legal possession of a property’s surface and mineral rights. The owner of a fee interest has the option of selling the surface rights while keeping the mineral rights – or vice versa.
What is prohibition alienation?
Interest or property right in any land given by this Act’s free patent, homestead, or individual sale provisions, or in any permanent improvement on such land (as amended by section 24 of the Act.)
Who can alienate property?
A sole surviving Coparcener has complete authority to alienate joint family property. However, if another Coparcener is present in the womb at the time of such alienation, such coparcener can challenge or ratify the alienation after reaching the age of majority.
Is all alienation prohibited?
No. Landowners are still able to convey their interest in their land by gift and by will.
Can land be re-allocated?
Yes. However, this would usually only be done if the community has requested it.
What is the doctrine of equitable conversion?
The common law principle of equitable conversion states that once two parties enter into an agreement for the sale of real property, the purchaser under the agreement is the owner-in-equity of the land, and the seller is only deemed to hold legal title as security for the payment of the purchase price.
What is restrained property?
Land that is owned by a local or state government that has been alienated cannot be sold without re-allocation.
What is a trust?
A trust is a fiduciary relationship imposed on an individual as a result of a trust deed. A trustee has fiduciary obligations such as the duty of loyalty and care, the duty to disclose conflicts of interest, and the duty to avoid conflicts of interest. A trustee’s duties are more stringent than those under common law (e.g., equity).
What is privity in property law?
Also known as title privity or estate privity. It is the legal relationship between parties whose estates create one estate in law in a real estate environment. When two or more persons have an interest in the same real property, this is referred to as privity of estate.
Privity is a term used to describe the relationship between a third party and a beneficiary of an express trust. A third party could be the beneficiary of an implied trust.
What is “rendering to each his own?”
The common law principle called “rendering to each his own” meant that no one could alienate property unless he had title to it, or if he did not, that he made full and true disclosure as to its status in equity.
Where does the term fee simple come from?
In England and Wales, the fee simple estate is often known as “estate in fee simple” or “fee-simple title,” or simply “freehold.”
The tenant or “holder” of a fief could not alienate (sell) it from the possession of his overlord from the beginning of the Norman period, when feudalism was introduced to England.