Alienation, Exit and Control
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Learning Outcomes
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.
- Explain the nature of restrictive covenants in land as distinguished from contractual agreements.
- Describe under what circumstances a restrictive covenant "runs with the land" and explain the implications of this result.
Having now studied some of the historical basis for problems of recognition and exclusion, 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 in the classical style—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. We will also examine the context of restrictive covenants in land.
In order to understand the controversies around alienability we study this week, we will first need some further background on the doctrine of estates in land and on the enforcement of restrictive covenants that “run with the 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, practice identifying key interests and look at the early rules that determine when a restrictive covenant will be enforced against downstream owners. These topics will provide the foundation for understanding issues surrounding alienability in the cases.
Our Problem this Week #
For our problem this week, we pick up once again on some of the simmering tensions among landowners in West Egg and explore some of the strategies they attempt to use to exert control over the transfer of their property rights: Restraining Alienation.