Define: Freely Alienable

Freely alienable refers to the legal concept that allows an individual or entity to transfer ownership of property or assets to another party without restriction or limitation. When property is considered freely alienable, the owner has the unrestricted right to sell, gift, convey, or otherwise transfer their interest in the property to another individual or entity. This concept is fundamental to property rights and allows for the free exchange of assets in markets and transactions. However, certain legal restrictions or limitations may apply in specific circumstances, such as legal requirements for transferring certain types of property, contractual obligations, or regulatory restrictions imposed by government authorities. Overall, freely alienable property rights play a crucial role in facilitating commerce, investment, and economic activity by enabling individuals and entities to freely transfer ownership of assets.

In land and property law, property is freely alienable if it can be bought and sold easily. Of course, strictly speaking, it is an interest in land that is alienable, not the land itself. The issue of alienability usually arises in the context of land that is tied up in a Trust. In such circumstances, the occupiers of the land may be restricted in their powers to sell it by the original establishment of the trust. In addition, potential buyers may be discouraged from buying from the trustees, because they can’t be sure that they will be able to get the land free of the interests of the Beneficiaries.

Consequently, English law developed a number of principles to prevent land becoming inalienable. For example, s2(2) the Law of property act (1925) provides an Overreaching mechanism by which beneficiaries rights can be detached from the property on a purchase that complies with certain formalities. Where there is Co-ownership of land, the law (but not, perhaps, the courts of Equity) favoured the assumption that there was a Joint tenancy, not a Tenancy in common. Why does this encourage alienability? Well, over a long period of time, as various co-owners die, the Right of survivorship acts to reduce the number of different interests in the land. In a tenancy in common, the number of interests generally increases when a co-owner dies, because a person may have more than one successor. Then there is the Rule against perpetuities, which prevents a trustee controlling the use of his land from, essentially, beyond the grave.

Of course, for society as a whole, it is important that land is freely alienable; but in individual cases, it can lead to injustice. Consequently, the courts of equity developed slightly different rules regarding sale and purchase of land, and these rules were, and are, sometimes at odds with common law provisions. For example, the only legal form of co-ownership of land is the joint tenancy. However, equity would allow a trust to be found — whether or not one was explicitly created — in which the joint tenants held their interests on trust for each other. Although the legal interests of the joint tenants could not be severed — the law said so — their respective equitable interests could be.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 29th March 2024.