Restraint on alienation

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.

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.

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