Aggregate Alienability

32 Pages Posted: 22 Oct 2014 Last revised: 5 Aug 2020

See all articles by Luke Meier

Luke Meier

Baylor University - Law School

Rory M. Ryan

Baylor University - Law School

Date Written: October 20, 2014

Abstract

This Article proposes a new concept — “aggregate alienability” — as a lens by which to understand the complicated law regarding the validity of privately-imposed restraints on the alienability of real property. Modern scholars have tended to explain this law — which sometimes invalidates restraints and sometimes upholds and enforces restraints — as simply a “naked preference.” In those instances in which the restraint is upheld and enforced, the law is said to prefer the alienation rights of the grantor (the party imposing the restraint). When the restraint is stricken, the law is said to prefer the alienation rights of the grantee (the party on whom the restraint is imposed). This Article rejects the notion that the nuanced law regarding the validity of restraints on alienability is best explained as simply a naked preference in favor of some parties over others. Instead, this Article argues that the rules regarding the validity of restraints on alienation are actually based on a rough prediction as to how to maximize property alienability. In some instances, maximum alienability is best achieved by invalidating the attempted alienability restraint. In other instances, however (and somewhat counter-intuitively), maximum alienability is best achieved by upholding and enforcing an alienability restraint. In either instance, the legal rules about the validity of a particular restraint are not a preference for either the grantor or the grantee, but an attempt to maximize efficiency by facilitating the alienation of property.

Keywords: property, alienability, alienation, restraints on alienation, restraints on alienability, leases

Suggested Citation

Meier, Luke and Ryan, Rory M., Aggregate Alienability (October 20, 2014). 60 Villanova Law Review 1013 (2015), Available at SSRN: https://ssrn.com/abstract=2512389 or http://dx.doi.org/10.2139/ssrn.2512389

Luke Meier (Contact Author)

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

Rory M. Ryan

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

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