Alienation (property law)

Property law
Part of the common law series
Types
Acquisition
Estates in land
Conveyancing
Future use control
Nonpossessory interest
Related topics
Other common law areas
Higher category: Law and Common law

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 

  1. ^ Busby, John C (23 September 2009). "Alienable". LII / Legal Information Institute.
  2. ^ "alienable - Definition of alienable in English by Oxford Dictionaries". Oxford Dictionaries - English. Archived from the original on April 12, 2017.
  3. ^ "What is ALIENABLE? definition of ALIENABLE (Black's Law Dictionary)". 4 November 2011.
  4. ^ "What is ALIENATION? definition of ALIENATION (Black's Law Dictionary)". 4 November 2011.
  5. ^ a b c d e Priest, Clare (2021). Credit Nation: Property Laws and Institutions in Early America. Princeton, NJ: Princeton University Press. ISBN 978-0-691-15876-1. OCLC 1193064561.
  6. ^ Priest, Claire (December 2006). "Creating an American Property Law: Alienability and Its Limits in American History" (PDF). Harvard Law Review. 120: 385. Archived from the original (PDF) on 7 November 2017. Retrieved 2 May 2024.