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Topic: Restraint on alienation

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	Restraint on alienation - Wikipedia, the free encyclopedia
		A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring his interest in the property.
		Under the common law such restraints are void as against the public policy of allowing landowners to freely dispose of their property.
		Perhaps the ultimate restraint on alientation was the fee tail, 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.
	en.wikipedia.org /wiki/Restraint_on_alienation (197 words)

	Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 C4th 342
		Restraints on alienation of these interest were presumably imposed to prevent withholding of services through transfer of the estate and to avoid frustration of reversionary rights.
		Alienation is restrained to the extent the advantages of the move do not exceed the increased cost of space at the new location.
		Alienation is restrained to the extent the lessee is unwilling to risk losing all rights in the premises, including the value of tenant improvements, in order to be free of further obligation for the unwanted space.
	online.ceb.com /calcases/C4/2C4t342.htm (10614 words)

	Washington Courts (Site not responding. Last check: 2007-10-10)
		We hold that the restriction in the deed is not a prohibited restraint on alienation.
		Restraint on Alienation We first address the question of whether a conveyance in fee simple with the possibility of reverter constitutes a 'restraint on alienation' for the purposes of public policy analysis.
		A restraint on alienation means the absence of the former, not merely the latter.
	www.courts.wa.gov /opinions?fa=opinions.opindisp&docid=215296MAJ (2976 words)

	24 Wn. App. 652, TERRY v. BORN
		A restraint on the alienation of property is not ipso facto void.
		The validity of such a restraint is determined by considering its necessity to protect the property interests of the benefited party in the light of the detrimental effect on the interests of the party whose right of free alienation is being restricted.
		A restraint on the alienation of a vendee's interest under a real estate contract is invalid and unenforceable when coupled with a prohibition against prepayment unless the vendor can show that the restraint is necessary to protect his security.
	www.mrsc.org /mc/courts/appellate/024wnapp/024wnapp0652.htm (1214 words)

	Wellenkamp v. Bank of America (1978) 21 C3d 943
		In determining whether enforcement of this clause constituted an unreasonable restraint on alienation, we considered not only whether the restraint was necessary to prevent impairment to the lender's security, but also the effect that enforcement of the restraint would have on alienation.
		Thus, the greater the quantum of restraint that results from enforcement of a given clause, the greater must be the justification for that enforcement.
		We reasoned that the restraint on alienation was slight in such cases because the seller received payment sufficient to discharge the balance of the loan secured by the deed of trust, fn.
	online.ceb.com /calcases/C3/21C3d943.htm (4567 words)

	[No title]
		sublet a portion of the premises, was an unreasonable restraint on alienation and a breach of the implied
		restraint on alienation that contravened public policy and was, therefore, void.
		permission to assign or sublet, the actual effect of the restraint on alienation was total.
	www.icsc.org /srch/cases/0000212C.html (367 words)

	Supreme Court of Canada - Decisions - Hongkong Bank of Canada v. Wheeler Holdings Ltd.
		The Master cited several authors for the proposition that restraint on alienation means a limitation on the free use of property by the new owner of property.
		To the extent that the policy against restraints on alienation applies to contractual provisions that are not annexed to the land so as to run with the land, it does not render such provisions unenforceable for all purposes.
		On the one hand there is a policy against restraints on alienation which permits real property to circulate freely in commerce and preserves the right of the owner to dispose of it and on the other the law favours that bargains be kept and not breached with impunity.
	scc.lexum.umontreal.ca /en/1993/1993rcs1-167/1993rcs1-167.html (10587 words)

	25 Wn. App. 299, RISTE v. EASTERN BIBLE CAMP
		The doctrine of equitable estoppel may not be used to uphold a restraint on alienation which is void on public policy grounds.
		A restriction in a deed requiring all occupants of the premises to abide by the principles of a particular religious faith is void under RCW 49.60.224, which invalidates provisions in instruments purporting to limit the occupancy of real property on the basis of creed.
		The rule in Washington is that a clause in a deed prohibiting the grantee from conveying land to another without the approval of the grantor, when the grantor transferred a fee simple estate to the grantee, is void as repugnant to the nature of an estate in fee.
	www.mrsc.org /mc/courts/appellate/025wnapp/025wnapp0299.htm (1180 words)

	Modrall Sperling :: Assignments and Consent
		A restraint on alienation without the consent of the landlord of the tenant's interest in the leased property is valid, but the landlord's consent to an alienation by the tenant cannot be withheld unreasonably, unless a freely negotiated provision in the lease gives the landlord an absolute right to withhold consent.
		Second, even if reasonableness is not implied as a matter of contract law, courts may rescue the consent provision from the prohibition against unreasonable restraints on alienation by construing the clause to require reasonableness as a matter of public policy.
		Because restraints on the alienation of property interests-in particular, unreasonable restraints--are frowned upon under the law, courts tend to strictly construe consent clauses to avoid application of the restraint where possible.
	www.modrall.com /articles/article_24.html (3409 words)

	FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code
		On the other hand, if the circumstances suggest that the restraint was freely entered into by mutual consent as a normal incident of an equal bargaining relationship in order to promote the original transfer of the property, the scales will tip back towards the reasonableness of the restraint.
		If the person imposing the restraint has some interest in land which he is seeking to protect by the enforcement of the restraint and if the enforcement of the restraint accomplishes a worthwhile purpose, the restraint is more likely to be reasonable.
		However, that the restraint could be interpreted as existing in perpetuity further supports our holding that it is an unreasonable restraint on alienation.
	caselaw.lp.findlaw.com /scripts/getcase.pl?court=mt&vol=97&invol=372 (4761 words)

	Attorney General - Opinion Archives
		We are inclined to agree that the approval provision of subsection (2) of section 2 of the bill might be construed to be unreasonable restraint since no guidelines are provided, thus leaving discretion over granting or denying approval unrestricted.
		It merely provides a "cooling off period" together with an opportunity to comment, which would not be binding on the parties to the conveyance.
		And we know of no instance of a grantor placing restrictive covenants upon property he is selling having been held to have to pay property tax upon the restrictions, unless they specifically benefit some other land.
	www.ago.state.ne.us /local/opinion?topic=details&id=1889 (458 words)

	DD 11\18 Restrictions on Condo Owners (Site not responding. Last check: 2007-10-10)
		Unit owners attempted to argue that the provision in question was invalid as an unreasonable restraint on alienation.
		The court first held that this was a use restriction and not a restraint on alienation, citing other cases that had so held.
		The court went on to point out that partial restraints on alienation (as the parties conceded this to be), are invalid only when they are unreasonable.
	dirt.umkc.edu /dd111895.htm (463 words)

	Oregon Judicial Department - Publications
		Also, Defendant's form of contract, which prohibits any alienation of Plaintiffs' interest without Defendant['s] approval, when coupled with the prohibition against prepaying the contract balance and eliminating the interest of [Defendant] in the real property, results in a substantial or total restraint on the alienation of the property which is prohibited by public policy.
		Conversely, the restraint on alienability resulting from enforcement of the prepayment restriction in this case can be for as few as nine years if plaintiffs exercise their contractual entitlement to pay up to $2,000 each year on the unpaid principal balance.
		Consequently, although the "consent-to-assignment" clause in the land sale contract restrains plaintiffs' right to alienate their interest in the property, that restraint is not, as they assert, absolute or subject to the defendant's "whim." Given its manifest justification, and its minimal restraint on alienation, the consent-to-assignment clause is, by itself, valid and enforceable.
	www.publications.ojd.state.or.us /A100968.htm (3642 words)

	[No title]
		However, nothing in the FLA prevents a family lawyer, or any creditor, from suing his or her own client and filing a writ of execution against the land.
		For this reason, it is sometimes prudent to check title before and during trial, to ensure that the opposing spouse's solicitor has not issued an execution that may take priority over a subsequent equalization order.
		Note that the FLA Act explicitly exempts from the restraint against alienation, the acquisition of an interest in the matrimonial home by way of a legal aid lien.
	www.klotzassociates.com /week0413.htm (990 words)

	OSCN Found Document:WAH-HRAH-LUM-PAH v. TO-WAH-E-HE
		A general restraint on alienation in the act of Congress will be construed as extending to devises by will.
		We are unable, however, to perceive how the admission that the lands and funds involved became unrestricted property in the hands of the defendant can in any wise affect the contract made by To-wah-e-he, during his lifetime, in relation thereto.
		Under the Osage allotment act hereinbefore referred to, To-wah-e-he could not alienate the lands, nor dispose of either the lands or the funds by will, without the approval of the Secretary of the Interior, which it is admitted was not secured.
	www.oscn.net /applications/oscn/DeliverDocument.asp?citeID=34883 (689 words)

	Duane Morris - Appellate Practice: Relief to Nonappealing Party (Site not responding. Last check: 2007-10-10)
		The plaintiff owners alleged, among other things, that the restriction was an unreasonable restraint on alienation of an interest in real property.
		Without notifying the parties, the court reached the merits of the plaintiffs' underlying claim, decided that the restriction at issue was an unreasonable restraint on alienation as a matter of law, and granted summary judgment to the plaintiffs striking the restriction from the documents governing their ownership.
		The merits of plaintiffs' claim of an unreasonable restraint were not before the court and could not form the basis of an award of summary judgment to plaintiffs.
	www.duanemorris.com /articles/article1805.html (1661 words)

	Racially Restrictive Covenants and Mexican Americans
		The family argued that the general long-standing rule regarding prohibition of alienation was based upon the public policy preference to eliminate impediments to the alienability of land.
		The Gary court claimed to have understood the concept that restraints on alienation are void.
		Dennistone was a long-time resident of the neighborhood and based his claim on the ground that he, along "with fifteen other owners of property in the 2200 block of Barclay," agreed to create a racially restrictive covenant that did not allow "Negroes" to use or occupy property in the surrounding area.
	academic.udayton.edu /Race/04needs/housing01.htm (2206 words)

	PRIOR BOARD APPROVAL OF NEW CONDO RESIDENTS - A POST 9/11 APPROACH
		Nevertheless, advance screening of prospective residents by condominium boards seems not to be a widespread practice presumably to a large extent because of concerns about unlawful restraints on alienation under traditional common law real estate doctrines.
		Legally, this has been perceived not to constitute an unlawful restraint on alienation because the purchase of shares in a cooperative did not involve the transfer of real estate.
		The law prohibiting unreasonable restraints on the alienation of real property has generally been thought not to apply to cooperatives because only shares of stock in the cooperative corporation were transferred and not title to real estate as in the case of a condominium.
	www.greenbaumlaw.com /Articles/boardapproval.html (1018 words)

	Michigan Appellate Digest - 194797 Lafond v Rumler (Site not responding. Last check: 2007-10-10)
		An unreasonable restraint on the alienation of property is an attempt by an otherwise effective conveyance or contract to (1) cause a later conveyance to be void, (2) impose a contractual liability upon the conveyance for conveying in breach of the agreement, or (3) terminate all or part of a conveyed property interest.
		The restriction upon the right of alienation of an owner in fee simple is repugnant to the grant.
		The restriction upon the plaintiff's right of alienation exceeded that necessary to the protection of the defendant's interest in ensuring payment under the original land contract.
	courtofappeals.mijud.net /Digest/newHTML/19479721.htm (648 words)

	ProvoCitizens.net news - Rental rules are under fire - deseretnews.com
		However, they do argue that the ordinance is illegal because it violates their rights to equal protection and uniform operation of the law, the public policy against restraints on the alienation of property, and their right to travel.
		However, we have previously recognized that an indirect restraint on alienation "'arises when an attempt is made to accomplish some purpose other than the restraint of alienability, but with the incidental result that the instrument, if valid, would restrain practical alienability.'" Id.
		We need not decide this issue at this time, however, because even assuming the S Overlay amendment places an indirect restraint on alienation of property, we uphold the amendment as reasonably necessary to protect Provo City's justifiable and legitimate interest in preserving the single-family residential character of the affected neighborhoods.
	provocitizens.net /cases/Andersonv.Provo.html (4240 words)

	The News-Press: Joe Adams
		Well embedded in Florida's common law is the notion that unreasonable "restraints on alienation" are impermissible.
		Restraints on alienation are agreements that unduly restrict a party's ability to transfer his or her property.
		The court attempted to distinguish the holding of its sister court in Coquina Club, and found the clause to be an unreasonable restraint against alienation, and therefore invalid.
	www.news-press.com /apps/pbcs.dll/article?AID=/20050915/COLUMNISTS16/509150307/1014/BUSINESS (886 words)

	Bowling v. United States, 233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1080 (1914)
		The patent conveying the land to Wea and his heirs was issued on April 8, 1890, and imposed a restraint upon alienation for a period of twenty- five years from its date.
		Upon the death of Wea, his heirs entered into a contract to sell the land, and in a suit brought by them in the United States court for the northern district of the Indian Territory, for the purpose of enforcing the contract, judgment was entered sustaining its validity.
		If, therefore, the conveyance by the allottee's heirs in the present case, would otherwise have been subject to cancellation, it was not saved by reason of the judgment entered in their suit against the purchaser.
	www.utulsa.edu /law/classes/rice/USSCT_Cases/Bowling_v_US_233_528.htm (990 words)

	[No title]
		Restraints on alienations are generally objected to for these reasons: Make property unmarketable.
		Promissory restraint — provides that the grantee promises not to transfer his interest See RESTATMENT (in Supplement) rules on restraints on alientation: A direct restraint on alienation is invalid if unreasonable.
		An indirect restraint on alienation is not invalid if it limits the use that can be made of property or by reducing the property value, unless there is no rational justification for the servitude.
	www.law.wisc.edu /students/sba/outlines/property/PropertyLarsonSpr02.doc (14480 words)

	NE Law Express (Site not responding. Last check: 2007-10-10)
		] A direct restraint on alienation is a provision in a deed, will, contract, or other instrument which, by its express terms, or by implication of fact, purports to prohibit or penalize the exercise of the power of alienation.
		The Court also found that the sublease creates a restraint on alienation and that as the fee simple owner of the property, Spanish Oaks has standing to raise this claim.
		Spanish Oaks argued that the use restriction is a restraint on alienation that is therefore void as violating public policy.
	www.nebar.com /resources/nelawexpress/scjournals/2003sc/scjan17.htm (7391 words)

	[No title]
		Exception: a partial restraint may be valid so long as it is reasonable in purpose, effect or duration.
		Plaintiffs: Both restrictions are restraints on alienation and are consequently void.
		The estate they mean is an FSD followed by POR.] (2) The explicit forfeiture restraint on alienation is invalid (3) The use restriction may indirectly interfere with alienation of the property, but it is nonetheless valid.
	www.ibiblio.org /jwsnyder/outlines/propf92.txt (12715 words)

	Converted WP file /web/download/n/opinion/Holding/00ca-067
		The court also held that the right of first refusal was not an unreasonable restraint on alienation of property, from which Smith cross-appeals.
		The seller can alienate his property at the same price he is offered by a third party; he surrenders nothing significant by offering the property first to the designated person to see if the price can be matched.
		Accordingly, and in a manner consistent with Gartley, with the Restatement, and with the common law, we affirm the district court and hold that these rights of first refusal are reasonable and do not constitute an unlawful restraint on alienation of property.
	www.supremecourt.nm.org /pastopinion/VIEW/00ca-067.html (2303 words)

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