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Alienation Property Law

Alienation Property Law

Under common law systems, the term alienation in property law refers to the voluntary action taken by the owner of a property for disposal of said property. Meanwhile, alienable is a term that refers to the capacity of a property right or piece of property in which is sold or transferred between the property owner and another person. The majority of property is considered alienable, however, there are circumstances when property could be subject to restrains of alienation.

Under the feudal system in England, the transfer of land was typically done under subinfeudation, while alienation required the overlord providing a license to do so. Furthermore, there are certain objects which are incapable of being considered property, making them inalienable, such as body parts and people. An example of inalienability is aboriginal title, within jurisdictions with common law systems. Whereas, an aboriginal title is a doctrine under common law which refers to the land rights of indigenous people of customary tenure persisting after assuming the sovereignty under a settler colonialism.

Additionally, non-transferability is a similar concept, such as tickets. Usually, rights that are frequently defined as a permit or license are just personal and not assignable. Although, they are usually alienable and able to be surrendered.

Traditionally, freehold landowners were protected under English common law from unsecured creditors. However, Legislation was passed in 1732 by the Parliament of Great Britain, entitled “The Act for the Easier Recovery of Debts in His Majesty’s Plantations and Colonies in America.”

This act required British American real property to all be treated like chattel for the purpose of collecting debt. Various statehouses since have reenacted this legislation after the American Revolution. This has resulted in the present day American property laws, which are transferable and commodified development.

Restraint on Alienation

This is a term utilized under real property law, which is a clause that is used for the purpose of prohibiting a recipient form either selling the property or transferring interests from the property to another party. The clause is used within the conveyance under jurisdictions of common law systems. Under these laws, such restraints will be voided against public policy which allows the landowner to dispose of their property freely.

There are some rules against restraints on alienation by the courts, which invalidate certain situations placed on land alienation while granting as public policy. The three restriction types include:

Disability: The grant stipulates transfers conducted by the grantee are not in effect or forced.

Forfeiture: The grant spatulates the land will be forfeited by the grantee upon transfer.

Promissory: A grant includes covenant forbidding of the alienation. Usually, the solution is either damages or injunction of a contract breach.

 “alienable – Definition of alienable in English by Oxford Dictionaries”. Oxford Dictionaries – English.