Revisiting Restraints on Alienation: Public and Private Dimensions

The fee simple interest in land is regarded as the quintessential property right that exemplifies the personal autonomy of ownership. However, counterbalancing this conception is the historical rule prohibiting restraints on the alienation of the fee simple interest, justified either by the doctrine of repugnancy or by the facilitation of the public interest in the free movement of resources. In more recent times the public policy justification has become preeminent, but has itself been diluted by allowing reasonable restraints in the protection of a ‘legitimate collateral purpose’. Such purposes are usually conceived as being personal in nature, implicating commercial advantage or freedom of choice in association (eg as between co-owners). This article focuses on the decision of the New South Wales Court of Appeal in Bondi Beach Astra Retirement Village Pty Ltd v Gora, which undertakes a lengthy and detailed analysis of the restraint jurisprudence in the context of retirement village accommodation. The relevant restraint was plenary in nature, and on the basis of the existing law one would have given it little chance of being upheld. However, the Court of Appeal held that the restraint was valid, but in doing so departed from the traditional practice of balancing perceived personal and public interests. Rather, the Court recalibrated the contest into competing visions of the public interest. In charting the trajectory of the Australian law of restraints on alienation and drawing on American material, the article explores the concepts of private preference and public interest, and provides insight into the role that property plays in marking a boundary that both separates and joins the two.