Anna and Mark are residents of Memphis, Tennessee. While they were married, they purchased a condominium in Gatlinburg, Tennessee for vacation purposes. They purchased the condominium with marital funds and as tenants by the entirety. In 2004, Mark and Anna divorced, but maintained a friendly relationship. Since they both wanted to continue to have access to their condo in Gatlinburg, they had their lawyers insert the following clause into their divorce agreement:
"Both parties hereto agree that as long as both parties are living, neither party may sell, encumber, or otherwise partition our condominium in Gatlinburg, TN without the consent of the other party."
In 2012, Mark has some financial difficulties and really needs the money he could get from selling his share of the condo. Anna, who still wants to continue to use the condo, will not give her consent on selling and cannon afford to buy him out. Mark seeks an action to partition the property, stating that the clause that was placed in the divorce agreement is not enforceable because it is an invalid restraint on alienation.
There are two issues to address here. The first one is whether or not the agreement Mark and Anna made is an invalid restraint on alienation. Once that issue is addressed, it can be determined if it is enforceable or if the action to partition should be granted.
In Connie McGahey v. James Wilson, 2001 Tenn. App. LEXIS 499, McGahey and Wilson had purchased land together as tenants by the entirety while they were married. When they divorced, they entered into a property settlement agreement that included a provision that the parties agreed that the property could not be sold unless both parties gave consent. When Connie sought an action to partition fifteen years later, the special master that was appointed to the case by the trial court found that the agreement was unenforceable because it violated public policy. Later, the appellate court affirmed the decision but...
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