Alienation (property law)

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Property law
Part of the common law series
Types
Personal property Community property Real property Unowned property
Acquisition
Gift Adverse possession Deed Conquest Discovery Accession Lost, mislaid, and abandoned property Treasure trove Bailment License Alienation
Estates in land
Allodial title Fee simple Fee tail Life estate Defeasible estate Future interest remainder Concurrent estate Leasehold estate Condominiums Real estate Land tenure
Conveyancing
Bona fide purchaser Torrens title Strata title Deeds registration Estoppel by deed Quitclaim deed Mortgage Equitable conversion Action to quiet title Escheat
Future use control
Restraint on alienation Rule against perpetuities Rule in Shelley's Case Doctrine of worthier title
Nonpossessory interest
Lien Easement Profit Usufruct Covenant Equitable servitude
Related topics
Fixtures Waste Partition Practicing without a license Property rights Mineral rights Water rights prior appropriation riparian Lateral and subjacent support Assignment Nemo dat Quicquid plantatur Conflict of property laws Blackacre Security deposit
Other common law areas
Contract law Tort law Wills, trusts and estates Criminal law Evidence Higher category: Law and Common law
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In property law, alienation is the voluntary act of an owner of some property to dispose of the property, while alienability, or being alienable, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another.^[1][2][3][4] 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 license from the overlord. When William Blackstone published Commentaries on the Laws of England between 1765 and 1769, he described the principal object of English real property laws as the law of inheritance, which maintained the cohesiveness and integrity of estates through generations and thus secured political power within families.^{[5]: 3 citing Vol. 2 p. 201 of the University of Chicago Press 1979 facsimile edition} In 1833, Justice Joseph Story in his Commentaries on the Constitution of the United States linked landowners' jealous watchfulness of their rights and spirit of resistance in the American Revolutionary War with the system of American institutions which recorded and clarified land title and expanded landed markets.^{[5]: 4 citing Book 1 section 173 and 174} Other early American legal commentators who praised the simple and relatively inexpensive conveyancing system in the new United States included Zaphaniah Swift, Daniel Webster and James Kent.^[5]: 5

Some objects are now regarded as ineligible for becoming property and thus termed inalienable, such as people and body parts.^{[citation needed]} Aboriginal title is one example of inalienability (save to the Crown) 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.

English common law traditionally protected freehold landowners from unsecured creditors. In 1732, the Parliament of Great Britain passed legislation entitled “The Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America”, sometimes known as the Debt Recovery Act of 1732, which required all land and slave property in British America to be treated as chattel for debt collection purposes. It thus removed the shield from creditors which had protected large, landed estates (and which continued to protect those estates in Britain). However, the act was amended within a decade to allow colonial legislatures, particularly in the southern American colonies, to again protect real estate transferred in fee tail or inherited through primogeniture. Thus, colonies which relied on enslaved labor adopted legislation which promoted the liquidity of slave property.^[5]: 6–7 Although Virginia repealed laws supporting primogeniture and the fee tail in 1776, it refused to extend the Debt Recovery Act after the American Revolution, and passed further legislation which protected real estate from creditors. Other states adopted similar legislation (some specifically protected homesteads from creditors), but the recording systems adopted throughout the new American states led to the more commodified and transferable development of American property law.^[6] In 1797, Parliament repealed the Debt Recovery Act with respect to slaves in the remaining colonies. Nonetheless, by 1806, abolition pamphleteers in Britain continued to criticize as cruel the act's sanction of slave auctions to satisfy a slaveowner's secured as well as unsecured debts.^[5]: 9