Also known as: direct restraint on alienation · direct restraints against alienation · restraints on alienation · alienation restraints
Written by attorneys · grounded in primary & secondary sources — see below
A provision that limits an owner's power to transfer or encumber property. Such a provision imposed by a servitude is invalid when unreasonable. Reasonableness turns on a balance between the restraint's utility and the harm from enforcing it.
O conveyed Blackacre to A by deed stating that A could not transfer or encumber the land before O died. The clause directly blocked any sale or mortgage during that period. When A later tried to sell, the restriction prevented the transfer and triggered a challenge under the reasonableness standard.
Bixler held a commercial lease from Pestana and sought to assign it to new tenants. Pestana refused consent unless the rent increased substantially. The refusal operated as a direct restraint because it blocked the assignment without any stated standard, leading the court to assess whether the restraint was reasonable.
Select any source to read its text and confirm it supports the definition.
Pergola granted Symphony Space an option to repurchase the property at a set price exercisable only on specific future dates decades away. The option directly limited Symphony Space's ability to sell to anyone else during the option period. The court evaluated whether the long-term restriction unreasonably hampered alienability.
Jackson purchased property subject to a covenant prohibiting sale to non-white buyers. When Jackson contracted to sell to a Black purchaser, neighboring owners sued to enforce the restriction. The covenant operated as a direct restraint on alienation by narrowing the class of permissible buyers.
A testator's will drafted by an attorney contained a clause preventing the devisee from selling the land for twenty-five years. The restriction directly limited the devisee's power to alienate. The devisee later challenged the clause after attempting a sale, claiming it was an unreasonable restraint.
A court weighs the utility served by the restraint against the injurious effects of enforcing it. The analysis focuses on the specific facts of the servitude and the degree to which it blocks transfers.
Supporting sources
No. A clause that merely limits how the property may be used leaves the owner free to sell or transfer title and therefore does not restrain alienation.
Supporting sources
The restraint is invalid and unenforceable. The underlying conveyance or servitude remains effective without the offending limitation.
Supporting sources
…(1980) § 8:15, at pp. 578-579. See also 2 Powell on Real Property, ¶ 246[1], at p. 372.97.) The common law's hostility toward restraints on alienation has caused such restraints on leasehold interests to be strictly construed against the lessor. (See Schoshinski, supra , § 8.16, at pp. 583-588; 2 Powell, supra , ¶ 246[1], at pp. 372.97,…