Also known as: disabling restraint on alienation · disabling restraints against alienation · restraint on alienation · disabling restraint
Written by attorneys · grounded in primary & secondary sources — see below
A restraint on alienation that renders any attempted conveyance of the affected interest void. The restraint operates by stripping the holder of the legal power to transfer the interest rather than by imposing liability or triggering forfeiture.
Delilah Duran leased commercial space from Davenport Pharmaceuticals under a lease requiring tenant consent before the landlord could sell its interest. When Davenport sought to sell to a third party, Delilah refused consent for personal reasons unrelated to the buyer's qualifications. The attempted sale was treated as void because the lease imposed a disabling restraint that prevented alienation without consent.
Deborah Dunn received land subject to a recorded servitude stating the parcel could never be sold to anyone. When she attempted to convey the property to a buyer, the deed was held void because the servitude imposed an absolute disabling restraint that eliminated any power of alienation.
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Daphne Doyle's will devised shares to her nephew with an absolute clause forbidding any sale or assignment for any reason. The nephew's attempted transfer to a third party was declared void because the clause created a disabling restraint that made alienation impossible from the moment of the donative transfer.
David Dawson leased property from Dynamic Solutions under terms requiring landlord consent for any assignment by the tenant. When David attempted to assign the lease without consent, the assignment was treated as void because the lease imposed a disabling restraint on the tenant's interest.
Derek Douglas inherited shares under a will containing a clause barring all transfers for the life of the company. His attempt to pledge the shares as collateral failed because the clause operated as a disabling restraint that prevented any alienation from the date of the gift.
Daniel Diaz sought to assign a commercial lease to a new tenant. The landlord withheld consent without any commercial justification. The assignment was permitted to proceed because the consent requirement could not function as an absolute disabling restraint when consent was unreasonably withheld.
A disabling restraint renders the attempted conveyance void by removing the power to alienate. A promissory restraint instead imposes contractual liability on the transferor for breaching a promise not to convey.
Supporting sources
A disabling restraint in a donative transfer is invalid if it would make transfer impossible for any period after the transfer takes effect. Courts weigh purpose, nature, and duration against the policy favoring free alienation to determine validity of narrower restraints.
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No. A clause limiting how property may be used after transfer regulates conduct on the land rather than the power to convey title. Courts treat such provisions as use restrictions that do not trigger the rules governing disabling restraints on alienation.
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…v. Darger, supra, 119 Cal. App.3d at p. 682.) Reasonableness is determined by comparing the justification for a particular restraint on alienation with the quantum of restraint actually imposed by it. "[T]he greater the quantum of restraint that results from enforcement of a given clause, the greater must be the justification for that…