Restraints on Alienation
Introduction #
Having now studied the roles of possession and exclusion in common law property, this week we move on to examine the context of exit–that is, how it is that owners extract themselves from property relations. Central to this context is the right to alienate property and the power of owners to place restrictions on alienability. Recall that we have already encountered alienation and restraints on alienation in the context of Aboriginal title going back to the Royal Proclamation in 1763. As we learn this week, the extent to which landowners can and should be able transfer their property rights to others and to place limits on alienation has long raised some pervasive controversies in common law property.
As you will see from Blackburn v McCallum and Re Walker, below, courts often place a heavy emphasis on the free alienability of land. Any attempts to restrict free alienability are viewed with considerable skepticism in the classical style—consistent with the liberal ideal that property rights should support individuals to pursue their own ends. For example, in both Blackburn and Walker, the courts scrutinize clauses in a will that purport to limit how or when beneficiaries under that will can transfer the property interests they receive. This emphasis on free alienability has also become crucial for modern understandings of property as the basis for a liberal market economy.
In order to understand the controversies around alienability in Blackburn and Walker, we will first need some background on the doctrines of tenure and estates. This is a big and reasonably complex topic that we will return to again next term. To start, the excerpt below offers a historical overview of tenure and estates and explains how these concepts became central to the structure of common law property in land. We will then cover the basic elements of common law estates and practice identifying key interests. These topics will provide the foundation for understanding issues of alienability in the cases that follow.
Restraints on Alienation and the Estate #
In Week 7, we interpreted the issue of remedy in nuisance as an example of the fundamental dilemma facing common law courts working in the liberal tradition. In cases like Canadian Paper Co. and Canadian Copper Co., we saw that it was impossible for one landowner to use their land freely without placing limitations on the rights of other landowners to do the same.
Attempts to restrain alienation provide another example of this dilemma. In the cases below, the testator (i.e., the person making the will) attempts to place restrictions on the free alienability of property they devise (i.e., pass on through the will). In Walker, that restriction is an attempt to direct what happens to the property once the recipient under the will (the devisee) dies. In Blackburn, the testator attempts to prevent the devisees from “encumbering” (such as by mortgaging) the land for a period of twenty-five years. From the perspective of the testators in these cases, they are simply exercising their freedom to do with their property whatever they choose. But from the perspective of devisees, the testators’ actions directly impair their own choices about what to do with their newly acquired property. Once again, the clash of individual freedoms is impossible to reconcile except by some application of societal interventions that weigh and determine whose interests should win out.
As you read Walker, next, notice how Justice Middleton employs and interprets the concept of common law estates discussed above to reach his decision.