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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 alienation 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.
In property law, alienation is the voluntary act of an owner of some property disposing of the property, while alienable is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Most property is alienable, but some may be subject to restraints on alienation. In England under the feudal system, land was generally transferred by subinfeudation and alienation required licence from the overlord. Some objects are incapable of being regarded as property and are inalienable, such as people and body parts. Aboriginal title is one example of inalienability in common law jurisdictions. A similar concept is non-transferability, such as tickets. Rights commonly described as a licence or permit are generally only personal and are not assignable. However, they are alienable in the sense that they can generally be surrendered.
Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.
In English common law, real property, real estate, realty, or immovable property is land which is the property of some person and all structures integrated with or affixed to the land, including crops, buildings, machinery, wells, dams, ponds, mines, canals, and roads, among other things. The term is historic, arising from the now-discontinued form of action, which distinguished between real property disputes and personal property disputes. Personal property was, and continues to be, all property that is not real property.
However, certain reasonable restraints will be given effect in most jurisdictions. These traditionally include:
Some specific restraints on alienation in the United States include:
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:
There are five basic conditions that must be met in order for there to be an effective real covenant and equitable servitude:
In New Zealand, 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.
New Zealand is a sovereign island country in the southwestern Pacific Ocean. The country geographically comprises two main landmasses—the North Island, and the South Island —and around 600 smaller islands. New Zealand is situated some 2,000 kilometres (1,200 mi) east of Australia across the Tasman Sea and roughly 1,000 kilometres (600 mi) south of the Pacific island areas of New Caledonia, Fiji, and Tonga. Because of its remoteness, it was one of the last lands to be settled by humans. During its long period of isolation, New Zealand developed a distinct biodiversity of animal, fungal, and plant life. The country's varied topography and its sharp mountain peaks, such as the Southern Alps, owe much to the tectonic uplift of land and volcanic eruptions. New Zealand's capital city is Wellington, while its most populous city is Auckland.
The Māori are the indigenous Polynesian people of New Zealand. Māori originated with settlers from eastern Polynesia, who arrived in New Zealand in several waves of canoe voyages some time between 1250 and 1300. Over several centuries in isolation, the Polynesian settlers developed a unique culture, with their own language, a rich mythology, and distinctive crafts and performing arts. Early Māori formed tribal groups based on eastern Polynesian social customs and organisation. Horticulture flourished using plants they introduced; later, a prominent warrior culture emerged.
A mortgage is a security interest in real property held by a lender as a security for a debt, usually a loan of money. A mortgage in itself is not a debt, it is the lender's security for a debt. It is a transfer of an interest in land from the owner to the mortgage lender, on the condition that this interest will be returned to the owner when the terms of the mortgage have been satisfied or performed. In other words, the mortgage is a security for the loan that the lender makes to the borrower.
This aims to be a complete list of the articles on real estate.
A deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring (conveyancing) title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.
An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. In England and Wales the term is defunct and in Scotland it has very long been a sub-type of the Scottish legal version of servitudes, which are what English law calls easements. However covenants and equitable servitudes in most of the jurisdictions across North America, are slightly different. The usual distinction is based on the remedy plaintiff seeks and precedent will allow for the scenario in question. Where the terms are unmerged, holders of a covenant seek money damages; holders of equitable servitudes seek injunctions. The term used to exist in England widely before Tulk v Moxhay and as byproduct of the Judicature Acts became one of the fullest mergers of equity and common law in England and Wales so as to agree initially on the term "equitable covenant", then coming to be united in the term covenant save that "equitable" bears a particular meaning in English property rights since at least 1925: it means not fully compliant with registration/written formalities. If lacks legally routine formalities it is not a full legal covenant and therefore more tenuous, often only enforceable personally and against the original covenantor.
A covenant in its most general sense and historical sense, is a solemn promise to engage in or refrain from a specified action. Under historical English common law a covenant was distinguished from an ordinary contract by the presence of a seal. Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of consideration. In United States contract law, an implied covenant of good faith is presumed.
In real estate business and law, a title search or property title search is the process of retrieving documents evidencing events in the history of a piece of real property, to determine relevant interests in and regulations concerning that property.
A servitude is a qualified beneficial interest severed or fragmented from the ownership of an inferior property and attached to a superior property or to some person other than the owner. At civil law, ownership (dominium) is the only full real right whereas a servitude is a subordinate real right on par with wayleaves, real burdens, security interests, and reservations. There are two types: predial, attaching to property, and personal, attaching to a person.
Marketable title is a title that a court of equity considers to be so free from defect that it will legally force its acceptance by a buyer. Marketable title does not assume that absolute absence of defect, but rather a title that a prudent, educated buyer in the reasonable course of business would accept. For real estate practitioners, the most complete reference to title issues is found in the preprinted wording contained within an agreement/contract. If you cannot produce a clear title of deed to the property then the prospective buyer should expect to lose in a specific performance action.
Te Ture Whenua Māori Act 1993 is a statute of the Parliament of New Zealand to "reform the laws relating to Māori land in accordance with the principles set out in the Preamble". These principles "reaffirm" the Treaty of Waitangi "relationship between the Māori people and the Crown" and "recognise that land is taonga tuku iho of special significance to Māori people". To that end, the principles "promote the retention of ... land in the hands of its owners, their whanau, and their hapu, and to protect wahi tapu". Further, they "facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu".
The Māori Land Court is the specialist court in New Zealand that hears matters relating to Māori land.
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". It is similar to real covenants and equitable servitudes; in the United States, the Restatement (Third) of Property takes steps to merge these concepts as servitudes.
Proprietary estoppel is a legal claim, especially connected to English land law, which may arise in relation to rights to use the property of the owner, and may even be effective in connection with disputed transfers of ownership. Proprietary estoppel transfers rights if,
Tulk v Moxhay is a landmark English land law case that decided that in certain cases a restrictive covenant can "run with the land" in equity. It is the reason Leicester Square exists today.
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the Anglo-Saxon system of Bookland and in the Anglo-Saxon multiple estate, a feudal system transformed by William the Conqueror and his influx of many new chief landlords after 1066. The modern law's sources derive from the old courts of common law and equity which includes legislation such as the Law of Property Act 1925, the Settled Land Act 1925, the Land Charges Act 1972, the Trusts of Land and Appointment of Trustees Act 1996 and the Land Registration Act 2002, and the European Convention on Human Rights. At its core, English land law involves the acquisition, content and priority of rights and obligations among people with interests in land. Having a property right in land, as opposed to a contractual or some other personal right, matters because it creates privileges over other people's claims, particularly if the land is sold on, the possessor goes insolvent, or when claiming various remedies, like specific performance, in court. Capital taxation, the industrial revolution and reform of the established church has resulted in a shift from predominant ownership by the church and landed gentry to largely agricultural, minority aristocratic ownership. This means today sites for development belong to a complex web of owners able meet market demand-side forces for development, tempered by supply-side forces including the values enshrined in public planning policy to protect green spaces and promote sustainable, locally diverse and socially useful development of land.
South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual rights with respect to property, and the control of proprietary relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.
The New Zealand Māori Council is a body for the representation of and consultation with the Māori people of New Zealand.
The judiciary of New Zealand is a system of courts that interprets and applies the laws of New Zealand, to ensure equal justice under law, and to provide a mechanism for dispute resolution. The judiciary has four levels: the six-member Supreme Court is the highest court; the ten-member Court of Appeal hears appeals from the High Court on points of law; the High Court deals with serious criminal offences and civil matters, and hears appeals from the lower courts; and the District Court, which meets in fifty-eight locations. There is also a separate Māori Land Court and Māori Appellate Court which have jurisdiction over Māori land cases under the Te Ture Whenua Maori Act 1993.