Alienation of Property

Alienation is the process by which an owner of the property freely transfers or sells the title to their land to a third party. This can take the form of a gift or an outright sale. When speaking of a piece of real estate as being “alienable,” what is meant to be conveyed is that it is free to be sold or otherwise transferred to another individual. When it comes to some properties, a restriction known as a “restriction on alienation” may be in place. This restriction prevents the owner of the property from passing or disposing the property to a third party. Alienation is a term that most commonly refers to transfers that take place while the owner of the property is still alive; however, it can also reference to transfers that take place after the property owner has passed away. Alienating property can be accomplished through the sale, mortgage, leasing, or even bailing it out. As soon as the property is transmitted, the alienation of the property goes into force.

The entitlement to proprietorship of property encompasses several imposed rights, such as the privilege to have title over the estate, the opportunity to receive the property, and the right to alienate it while taking into account the provisions of the law. These rights must be exercised in accordance with the requirements of the applicable legal system. Ownership, according to Austin’s definition, entails the power to make unconstrained decisions regarding the property’s usage, tenure, and disposal at any time. According to Fredrick Pollock, the definition of ownership is the entire and unrestricted right to use and dispose of something. The regulations that govern the process of transferring property ownership in India were established by the Transfer of Property Act in 1882. Additionally, it outlines the criteria that must be met in order to carry out the transfer, as well as the time frame in which the estate transaction must be finalized.

When a lender sells the estate, an alienation provision will prohibit them from being able to transmit the loan liability to the new owner of the property. When it is contained in a loan agreement, it indicates that the outstanding loan amount is due in full following the consummation of a sale. This is the case even if the loan was paid off in full at a later date. If the mortgage agreement includes an alienation clause—and the vast majority of them do—the full loan sum is payable as immediately as the debtor accomplishes a sale of the house or a transferring of the title deed. In practice, what this indicates is that the cash made from the sale will initially go toward paying down the debt, and only then would any remaining funds be given to the seller immediately. It also implies that the seller is unable to move their mortgage to the prospective investor, meaning that the prospective investor will be subject to the same older rate of interest and conditions. With the current rules, the buyer is responsible for applying for their own loan.