A restraint on alienation, in the

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring their interest in the property. Under the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...

such restraints are void as against the

public policy Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...

of allowing landowners to freely dispose of their property. Perhaps the ultimate restraint on alienation was the

fee tail In English common law, fee tail or entail is a form of trust established by deed or settlement which restricts the sale or inheritance of an estate in real property and prevents the property from being sold, devised by will, or otherwise alien ...

, 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. However, certain ''reasonable'' restraints will be given effect in most jurisdictions. These traditionally include: # A prohibition against

partition Partition may refer to: Computing Hardware * Disk partitioning, the division of a hard disk drive * Memory partition, a subdivision of a computer's memory, usually for use by a single job Software * Partition (database), the division of a ...

of property for a limited time. # The

right of first refusal Right of first refusal (ROFR or RFR) is a contractual right that gives its holder the option to enter a business transaction with the owner of something, according to specified terms, before the owner is entitled to enter into that transactio ...

– 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. # 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 The Crown Estate is a collection of lands and holdings in the United Kingdom belonging to the British monarch as a corporation sole, making it "the sovereign's public estate", which is neither government property nor part of the monarch's priv ...

; which meant that these parks were held in

perpetuity A perpetuity is an annuity that has no end, or a stream of cash payments that continues forever. There are few actual perpetuities in existence. For example, the United Kingdom (UK) government issued them in the past; these were known as conso ...

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: # Type of price (fixed or not fixed; courts prefer non-fixed) # Purpose: Is it a legitimate purpose, or not? (courts prefer legitimate) # Equal bargaining power of the parties # Duration (a time limit to the restraint is preferred) # Limit to the number of persons to which transfer is prohibited # 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: # It must be

enforceable An unenforceable contract or transaction is one that is valid but one the court will not enforce. Unenforceable is usually used in contradiction to void (or ''void ab initio'') and voidable. If the parties perform the agreement, it will be valid ...

. To be enforceable it must not be too vague, it must not violate a statute or the

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...

, it must not violate public policy, and it must meet the requirements under the statute of frauds. # It must touch and concern the land. # It must be intended to run. # There must be privity between the successive occupants. # There must be notice of the existence of a real covenant/equitable servitude.

New Zealand law

New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...

, ''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". These preferred classes include ''whanaunga'' (blood relations) of the owner, other current owners, and members of the owner's hapu.Section 4, Te Ture Whenua Maori Act 1993/Maori Land Act 1993
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References

{{Property navbox Property law

New Zealand law

See also

References