Also known as: market alienabilities · alienability
Written by attorneys · grounded in primary & secondary sources — see below
The capacity of a property interest to be transferred by sale to a willing buyer without legal barriers that prevent or unduly restrict such transfers. This capacity turns on whether the interest is commercial in character or whether creation terms or resulting burdens on the servient land limit transfer.
Miles Montgomery granted Mercury Industries a commercial easement in gross to run power lines across his rural parcel. Mercury later sought to sell the easement to Marathon Logistics. Because the easement served a commercial purpose, Mercury could transfer it subject only to the same alienability limits that apply to a fee simple of like duration.
Maria Morales obtained a noncommercial easement in gross to cross Matthew Martinez's land for personal hiking access. The creating deed contained no language addressing transfer. Maria attempted to sell the easement to a neighbor. The absence of any creation-term restriction left the easement inalienable.
Select any source to read its text and confirm it supports the definition.
Marco Marquez held a noncommercial easement in gross to draw water from Marcus Mitchell's spring. Transfer would have doubled daily withdrawals and halved the spring's value to Mitchell. The probable increase in physical burden and loss in land value rendered the easement inalienable.
Maya Malik sold property to Morgan Financial but retained a commercial purchase option exercisable decades later. When Maya tried to market the option to a third party, the buyer refused because the option violated the rule against perpetuities and therefore lacked market alienability.
Maxwell Manufacturing held a commercial lease that required landlord consent for assignment. Maxwell located a financially stronger assignee willing to assume all terms. The landlord refused consent arbitrarily. Maxwell could not freely alienate its leasehold interest in the market.
Matthew Martinez received land devised to him and the heirs of his body. He contracted to sell the parcel outright to Morgan Financial. Because the estate followed the lineal bloodline, Matthew could convey only during his life and could not pass full market alienability to the buyer.
A commercial easement in gross may be subjected to the same alienability restrictions that apply to an estate in land of like duration. Courts therefore treat such easements as ordinary property interests that can be bought and sold unless the creating instrument imposes a specific limit.
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The alienability of a noncommercial easement in gross is determined solely by the manner or terms of its creation. If the instrument is silent, the easement is ordinarily inalienable. Explicit language permitting transfer is required to make it marketable.
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A court weighs the probable increase in physical use or decrease in servient-land value that would result from allowing the easement to be sold. When alienability would substantially enlarge the burden or materially reduce the land's worth, the easement is treated as inalienable.
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An option that is too remote in vesting cannot be transferred because any attempted sale would convey an interest that the law refuses to recognize. Purchasers therefore decline to buy such options, destroying their market alienability.
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…(calling the actual public use standard the "majority view" and citing other cases). [^maj-3]: Some States also promoted the alienability of property by abolishing the feudal "quit rent" system, i. e. , long-term leases under which the proprietor reserved to himself the right to perpetual payment of rents from his tenant.…