Also known as: disabling restraints · restraint disabling transfer
Written by attorneys · grounded in primary & secondary sources — see below
A provision in a donative transfer of an interest in property that purports to render the transferee incapable of transferring that interest. The restraint is invalid if it would make transfer impossible for any period from the date of the transfer. Other disabling restraints are valid only when the policy favoring free alienation does not reasonably apply under all circumstances including the restraint's purpose, nature, and duration.
Doris Duffy receives a duplex under her grandmother's will. The will states that the duplex may never be sold, mortgaged, leased, or otherwise conveyed and must remain titled solely in Doris's name. Doris finds a buyer and the personal representative refuses to convey. The court strikes the clause because the restraint would make any transfer impossible from the moment the interest was created.
Diana Delgado receives land under a will directing that it be used as a public park forever and barring transfer to any private party. Years later the city faces a budget crisis and seeks to sell. The court upholds the restraint after weighing its purpose of preserving open space, its narrow scope limited to private buyers, and its indefinite but purpose-tied duration against the policy favoring alienation.
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A disabling restraint is invalid if it would make transfer of the interest impossible for any period from the date of the donative transfer. Courts strike the restraint while preserving the underlying gift.
Supporting sources
A disabling restraint survives only if, under all circumstances and considering its purpose, nature, and duration, the policy favoring free alienation does not reasonably apply. Courts apply this balancing test rather than a categorical ban.
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No. Acceptance does not validate an otherwise invalid disabling restraint. Validity turns on whether the restraint conflicts with the policy favoring alienation, not on the donee's knowledge or consent.
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The court disregards the clause as an invalid total restraint. The devise remains intact and the recipient takes the property free of the prohibition.
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…hampered, id. Thus the general rule is that a restraint on alienation which provides that the property cannot be alienated, a disabling restraint, Simes & Smith, supra at § 1131, Restatement of the Law of Property § 404, is per se invalid, Simes & Smith, supra at § 1137; Restatement of the Law of Property § 406, while…