This week we move on to examine the context of 'exit', i.e. how owners transfer their rights in land and thereby disentangle themselves (wholly or partially) from property relations.
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Learning Objectives
Learning objectives are statements about the skills, knowledge and attitudes learners will acquire or develop when they complete this lesson.
By the end of this week, you should be able to:
- Identify and describe the different types of common law estates and future interests in land and use these concepts and relevant legislation to interpret a clause in a will (testamentary bequest) or inter vivos grant.
- Explain the rational behind the principle that says restraints on alienation are invalid and identify and apply exceptions to this principle.
Having now studied some of the historical basis for problems of recognition and governance, this week we move on to examine the context of exit: how owners transfer their rights in land and thereby disentangle themselves (wholly or partially) from property relations.
Central to this context are persistent tensions between an owner’s right to alienate property and their power to place restrictions on future owners’ rights to do the same. As we will see, courts often put a heavy emphasis on the free alienability of land. Any attempts to restrict free alienability are viewed with considerable skepticism-—consistent with the liberal ideal that property rights should support individuals to pursue their own ends. We will read cases in which 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.
In order to understand the controversies around alienability we study this week, we will first need some further background on the common law doctrine of estates in land. These are reasonably complex topics that we will return to again next term, but we will start with the basic elements of common law estates and practice identifying key interests. These topics will provide the foundation for understanding issues surrounding alienability in the cases.
Weekly Problem: Land Back by Bequest
After you have read through the background for this week's lesson above, your next step is to review the weekly problem.
A testator attempts to return ownership of their family farm to the Mi'kmaq by including a special provision in their Last Will & Testament.