Restraint on alienation

A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring his interest in the property. Under the common law such restraints are void as against the public policy of allowing landowners to freely dispose of their property. Perhaps the ultimate restraint on alienation was the fee tail, a form of ownership which required that property be passed down in the same family from generation to generation, which has also been widely abolished.[1]

However, certain reasonable restraints will be given effect in most jurisdictions. These traditionally include:

  1. A prohibition against partition of property for a limited time.
  2. The right of first refusal – for example, if Joey sells property to Rachel, he may require that if Rachel later decides to sell the property, she must first give Joey the opportunity to buy it back.
  3. The establishment of public parks and gardens, as was the case for The Royal Parks of London in the UK. These public spaces were created under such terms by the Crown Estate; which meant that these parks were held in perpetuity for the public to use.

Some specific restraints on alienation in the United States include:

Disabling restraints 
To be effective the grantor must sue the grantee for enforcement. The effectiveness of the lawsuit could prevent the transfer from being made. In addition, if the disabling restraint is found to be unconstitutional the restraint will not be effective.
Promissory restraints 
If the promissory note is breached by the grantee, the grantor may sue for damages. Unlike disabling restraints, the effectiveness of the lawsuit does not prevent the transfer from being made. However, the Supreme Court says promissory restraints are not permissible. The promissory note discourages the person getting ready to sell the property which is the same effect as the disabling restraint.
Forfeiture restraints 
In the event of a breach the property returns to the grantor or the grantor's heirs. The return happens automatically, hence the argument can be made that there is no state actions. However, according to a constitutional argument the mere fact that the state recognizes the validity of an automatic transfer makes it a state action.

To be effective the restraint must be reasonable and the restraint must be the same as a real covenant or equitable servitude.

There are six factors to determine if a restraint on alienation is reasonable:

  1. Type of price (fixed or not fixed; courts prefer non-fixed)
  2. Purpose: Is it a legitimate purpose, or not? (courts prefer legitimate)
  3. Equal bargaining power of the parties
  4. Duration (a time limit to the restraint is preferred)
  5. Limit to the number of persons to which transfer is prohibited
  6. A restraint that increases the value of property is more reasonable.

There are five basic conditions that must be met in order for there to be an effective real covenant and equitable servitude:

  1. It must be enforceable. To be enforceable it must not be too vague, it must not violate a statute or the constitution, it must not violate public policy, and it must meet the requirements under the statute of frauds.
  2. It must touch and concern the land.
  3. It must be intended to run.
  4. There must be privity between the successive occupants.
  5. There must be notice of the existence of a real covenant/equitable servitude.

New Zealand law

In New Zealand, Te Ture Whenua Maori Act 1993/Maori Land Act 1993 puts restrictions on alienation of land owned by a Māori person, or by a group which is predominantly Māori. Sections 146 and 147 of the Act force an owner of Māori land who wishes to alienate their interest in the land to give right of first refusal to people belonging to "preferred classes of alienees".[2] These preferred classes include whanaunga (blood relations)[3] of the owner, other current owners, and members of the owner's hapu.[4]

See also

  • Moynihan, Cornelius J. Introduction to the Law of Real Property: An Historical Background of The Common Law of Real Property and its Modern Application, 4th ed. (St. Paul, Mn: Thompson West), 42.

References

  1. ^ https://www.law.cornell.edu/wex/fee_tail
  2. ^ Te Ture Whenua Maori Act 1993/Maori Land Act 1993
  3. ^ Māori Dictionary
  4. ^ Section 4, Te Ture Whenua Maori Act 1993/Maori Land Act 1993
Alienation (property law)

In property law, alienation is the voluntary act of an owner of some property disposing of the property, while alienable is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Most property is alienable, but some may be subject to restraints on alienation. In England under the feudal system, land was generally transferred by subinfeudation and alienation required licence from the overlord. Some objects are incapable of being regarded as property and are inalienable, such as people and body parts. Aboriginal title is one example of inalienability (save to the Crown) in common law jurisdictions. A similar concept is non-transferability, such as tickets. Rights commonly described as a licence or permit are generally only personal and are not assignable. However, they are alienable in the sense that they can generally be surrendered.

English common law traditionally protected freehold landowners from unsecured creditors. In 1732, the Parliament of Great Britain passed legislation entitled “The Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America”, which required all real property in British America to be treated as chattel for debt collection purposes. The legislation was reenacted by many statehouses after the American Revolution, leading to the more commodified and transferable development of American property law.

Blackacre

Blackacre, Whiteacre, Greenacre, Brownacre, and variations are the placeholder names used for fictitious estates in land.

The names are used by professors of law in common law jurisdictions, particularly in the area of real property and occasionally in contracts, to discuss the rights of various parties to a piece of land. A typical law school or bar exam question on real property might say:

Adam, owner of a fee simple in Blackacre, conveyed the property "to Bill for life, remainder to Charles, provided that if any person should consume alcohol on the property before the first born son of Charles turns twenty-one, then the property shall go to Dwight in fee simple." Assume that neither Bill, Charles, nor Dwight is an heir of Adam, and that Adam's only heir is his son, Edward. Discuss the ownership interests in Blackacre of Adam, Bill, Charles, Dwight and Edward.

Where more than one estate is needed to demonstrate a point – perhaps relating to a dispute over boundaries, easements or riparian rights – a second estate will usually be called Whiteacre, a third, Greenacre, and a fourth, Brownacre.

Customary land

Customary land is land which is owned by indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership.

Since the late 20th century, statutory recognition and protection of indigenous and community land rights continues to be a major challenge. The gap between formally recognized and customarily held and managed land is a significant source of underdevelopment, conflict, and environmental degradation.In the Malawi Land Act of 1965, "Customary Land" is defined as "all land which is held, occupied or used under customary law, but does not include any public land". In most countries of the Pacific islands, customary land remains the dominant land tenure form. Distinct customary systems of tenure have evolved on different islands and areas within the Pacific region. In any country there may be many different types of customary tenure.The amount of customary land ownership out of the total land area of Pacific island nations is the following: 97% in Papua New Guinea, 90% in Vanuatu, 88% in Fiji, 87% in the Solomon Islands, and 81% in Samoa.

Equitable conversion

Equitable conversion is a doctrine of the law of real property under which a purchaser of real property becomes the equitable owner of title to the property at the time he/she signs a contract binding him/her to purchase the land at a later date. The seller retains legal title of the property prior to the date of conveyance, but this land interest is considered personal property (a right to the payment of money, rather than a right to the property). The risk of loss is then transferred to the buyer – if a house on the property burns down after the contract has been signed, but before the deed is conveyed, the buyer will nevertheless have to pay the agreed-upon purchase price for the land unless the seller in possession or deemed in possession has failed to protect it. Such issues can and should be avoided by parties by stipulating in the contract who will bear the loss in such occurrences. The above rule varies by jurisdiction, but is the general rule.

Estate (law)

An estate, in common law, is the net worth of a person at any point in time alive or dead. It is the sum of a person's assets – legal rights, interests and entitlements to property of any kind – less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person. (See inheritance.)

Depending on the particular context, the term is also used in reference to an estate in land or of a particular kind of property (such as real estate or personal estate). The term is also used to refer to the sum of a person's assets only.

The equivalent in civil law legal systems is patrimony.

Estate in land

An estate in land is an interest in real property that is or may become possessory.

In the legal systems of almost every country, the ultimate true "owner" of all land is the sovereign, which for a republic is the whole people of a society, which with sovereign, exclusive control over a well-defined tract of land, may be called a "state". Private parties own not the underlying land, but claims on parcels of land, which taken together define the estate for that parcel. This superior ownership is the basis for taking the land through eminent domain. However, the claims that define the estate are themselves personal property.

This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general.

In property law, the rights and interests associated with an estate in land may be conceptually understood as a "bundle of rights" because of the potential for different parties having different interests in the same real property.

Estoppel by deed

Estoppel is a common law doctrine which, when it applies, prevents a litigant from denying the truth of what was said or done. The doctrine of estoppel by deed (also known as after-acquired title) is a particular estoppel doctrine in the context of real property transfers. Under the doctrine, the grantor of a deed (generally the seller of a piece of real property) is estopped (barred) from denying the truth of the deed. The doctrine may only be invoked in a suit arising out of the deed, or involving a particular right arising out of the deed.While rooted in warranty deeds, estoppel by deed has been extended to affect quitclaim deeds if the deed represents that the grantor actually had title.

Ingress, egress, and regress

In property law, ingress, egress, and regress are the rights of a person (such as a lessee) to enter, leave, and return to a property, respectively.

In a sale and purchase contract, it means that the buyer gets full rights to insure the property according to Standard A.

Lateral and subjacent support

Lateral and subjacent support, in the law of property, describes the right a landowner has to have that land physically supported in its natural state by both adjoining land and underground structures. If a neighbor's excavation or excessive extraction of underground liquid deposits (crude oil or aquifers) causes subsidence, such as by causing the landowner's land to cave in, the neighbor will be subject to strict liability in a tort action. The neighbor will also be strictly liable for damage to buildings on the landowner's property if the landowner can show that the weight of the buildings did not contribute to the collapse of the land. If the landowner is unable to make such a showing, the neighbor must be shown to have been negligent in order for the landowner to recover damages.

If the landowner owns everything beneath the ground on his property, he may convey to another party the rights to mineral deposits under the land and other things requiring excavation, such as easements for buried conduits or for water wells. However, such a conveyance requires the recipient to prevent any damage to the surface of the land caused by the excavation unless the conveyance itself grants express authority for the surface land to be damaged, "as reasonably necessary" for the recipient to exercise his extraction rights.

Moiety title

Moiety title is a legal term describing a portion other than a whole of ownership of property. The word derives from Old French moitié, "half" (the word has the same meaning in modern French), from Latin medietas ("middle"), from medius.In English law, the term is used in parsing aspects of ownership and liability in all forms of property.In the Australian system of land title, the term is typically applied to maisonettes or attached cottages whereby the owner owns a share of the total land on the title and leases a certain portion of the land back for themselves from the other owner(s). Some finance institutions do not offer loans for properties on moiety titles as security.

Nonpossessory interest in land

A nonpossessory interest in land is a term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another. Such rights can generally be created in one of two ways: either by an express agreement between the party who owns the land and the party who seeks to own the interest; or by an order of a court.

Under the common law, there are five variations of such rights. These are:

easements

profits

restrictive covenants

equitable servitudes, and

licenses.

Personal property

Personal property is generally considered property that is movable, as opposed to real property or real estate. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables – any property that can be moved from one location to another.

Personal property is movable and can be understood in comparison to immovable property or real property, such as land and buildings. Movable property on land, for example, larger livestock, was not automatically sold with the land, it was "personal" to the owner and moved with the owner. The word cattle is the Old Norman variant of Old French chatel, chattel (derived from Latin capitalis, “of the head”), which was once synonymous with general movable personal property.

Quiet title

An action to quiet title is a lawsuit brought in a court having jurisdiction over property disputes, in order to establish a party's title to real property, or personal property having a title, of against anyone and everyone, and thus "quiet" any challenges or claims to the title.

This legal action is "brought to remove a cloud on the title" so that plaintiff and those in privity with him may forever be free of claims against the property. The action to quiet title resembles other forms of "preventive adjudication," such as the declaratory judgment.This genre of lawsuit is also sometimes called either a try title, trespass to try title, or ejectment action "to recover possession of land wrongfully occupied by a defendant." However, there are slight differences. In an ejectment action, it is typically done to remove a tenant or lessee in an eviction action, or an eviction after a foreclosure. Nonetheless, in some states, all terms are used synonymously.

Restraint

Restraint may refer to:

Self-control, a personal virtue

Physical restraint, the practice of rendering people helpless or keeping them in captivity by means such as handcuffs, ropes, straps, etc.

Medical restraint, form of general physical restraint used for medical purposes

Restraint (film), an Australian thriller directed by David Deenan

Restraint (book), a non-fiction book on international relations by Barry Posen

Reversion (law)

A reversion in property law is a future interest that is retained by the grantor after the conveyance of an estate of a lesser quantum that he has (such as the owner of a fee simple granting a life estate or a leasehold estate). Once the lesser estate comes to an end (the lease expires or the life estate tenant dies), the property automatically reverts (hence reversion) back to the grantor.

A reversion interest is logically similar, but not legally identical, to the rights retained by someone who lends his property to another for a limited time. Although the bailee would have the right to possess the property during the limited duration, these rights are neither permanent nor exclusive. When the time comes, the property rights of possession will terminate and return to the holder of the reversion.

Reversions are commonly created in real property transactions, particularly during lease arrangements as well as devise (the transfer of real property through a will). In the context of a will, a testator may devise a simple life estate to a devisee. The testator may retain the reversion in the estate or give it to another individual. The owner of the life estate will retain ownership of the property during the devisee's life, and may freely alienate this interest. However, upon the death of the devisee the life estate will terminate and ownership of the real-property will fully vest in the holder of the reversion.

A tenancy for years is a simple illustration of a reversion interest in the context of leasing arrangements. An owner of real-property becomes a lessor by transferring a bundle of rights - including a right of entry - to the leasee for a certain period of time. The lessor typically retains a reversion interest in the property which will mature after the lease expires. A common example of this transaction is the leasing of an apartment to a tenant for a one-year period. When the lease expires, the rights of the leasee are terminated and exclusive ownership of the property returns to the lessor.

Reversion should not be confused with the possibility of reverter created in the grant of a fee simple determinable. Although both result in the return of the land to the original grantor or his heirs, reversions occur upon the natural expiration of the grantee's estate, while the possibility of reverter actively ends the grantee's otherwise-indefinite estate as a consequence of the grantee's failure to comply with the condition contained in the grant.

Unlike some other future interests, reversions have always been fully alienable.

South Carolina v. Catawba Indian Tribe, Inc.

South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986), is an important U.S. Supreme Court precedent for aboriginal title in the United States decided in the wake of County of Oneida v. Oneida Indian Nation of New York State (Oneida II) (1985). Distinguishing Oneida II, the Court held that federal policy did not preclude the application of a state statute of limitations to the land claim of a tribe that had been terminated, such as the Catawba tribe.

The Court remanded to the United States Court of Appeals for the Fourth Circuit to determine whether South Carolina's statute of limitations applied to the facts of the case. All together, the Fourth Circuit heard oral arguments in the case seven times, six of those times sitting en banc, i.e. all the judges on the Circuit rather than a panel of three (although the Circuit wrote only five published opinions). The Fourth Circuit determined that the limitations statute only barred the claim against those defendants that could satisfy the standards of adverse possession and upheld the trial court's denial of a defendant class certification.

These rulings would have required the Catawbas to file individual lawsuits against the estimated 60,000 landowners in the area. The complaints were prepared and printed, but the parties reached a settlement before the date on which the Catawbas would have been required to file the individual complaints. Congress ratified the settlement, extinguishing all aboriginal title held by the Catawbas in exchange for $50,000,000—$32,000,000 paid by the federal government and $18,000,000 paid by the state.

Strawperson

A layman or straw man is a figure not intended to have a genuine beneficial interest in a property, to whom such property is nevertheless conveyed in order to facilitate a transaction.

The unity of time rule requires a joint tenancy be granted both parties at the same time. When the current owner of a property wishes to create a joint tenancy with another party, the grantor conveys the property to a strawperson (often a lawyer or the lawyer's secretary), who in turn creates a second deed conveying property to the original grantor and their desired joint tenant(s).

Strawpersons sometimes engage in straw purchases to protect the privacy of the beneficial owner or to allow the beneficial owner to acquire a property when the seller's rules, policies or biases might not have allowed it. Straw purchase of property is legal as long as the strawperson is not part of an attempt to defraud a mortgage lender or other creditor.

A strawperson is also "a person of no means," or one who deliberately accepts a liability or other monetary responsibility without the resources to fulfill it. This becomes illegal if the debt goes unpaid and fraud was found to be committed.

Tangible property

Tangible property in law is, literally, anything which can be touched, and includes both real property and personal property (or moveable property), and stands in distinction to intangible property.In English law and some Commonwealth legal systems, items of tangible property are referred to as choses in possession (or a chose in possession in the singular). However, some property, despite being physical in nature, is classified in many legal systems as intangible property rather than tangible property because the rights associated with the physical item are of far greater significance than the physical properties. Principally, these are documentary intangibles. For example, a promissory note is a piece of paper that can be touched, but the real significance is not the physical paper, but the legal rights which the paper confers, and hence the promissory note is defined by the legal debt rather than the physical attributes.A unique category of property is money, which in some legal systems is treated as tangible property and in others as intangible property. Whilst most countries legal tender is expressed in the form of intangible property ("The Treasury of Country X hereby promises to pay to the bearer on demand...."), in practice banknotes are now rarely ever redeemed in any country, which has led to banknotes and coins being classified as tangible property in most modern legal systems.

Warranty deed

A warranty deed is a type of deed where the grantor (seller) guarantees that he or she holds clear title to a piece of real estate and has a right to sell it to the grantee (buyer), is in contrast to a quitclaim deed, where the seller does not guarantee that he or she holds title to a piece of real estate. A general warranty deed protects the grantee against title defects arising at any point in time, extending back to the property's origins. A special warranty deed protects the grantee only against title defects arising from the actions or omissions of the grantor.

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