Facts While married and residing in Memphis, Tennessee, Anna and Mark Smith purchase a condominium in Gatlinburg, Tennessee.

They purchase said condominium out of marital funds and become tenants by the entirety April 12, 2000. 2004, they decide to divorce but both still want access to the property. They have clause entered in divorce decree, Both parties hereto agree that as long as oth 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 wants to sell property and split the proceeds with Anna. Anna refuses to buy Mark out or partition. Mark brings action to partition property, claiming clause is unenforceable because it is an invalid restraint on alienation. Issue Is clause enforceable under Tennessee state law? Rule When purchasing property as husband and wife, they become tenants by the entirety. This is defined as an interest in property that can be held only between a husband and wife in which each party has a right of survivorship over the property and which neither party can terminate without the consent of the other. A divorce automatically breaks up a tenancy by the entirety. The couples ownership then converts to tenants in common. McGahey v. Wilson, 2001 Tenn. App. LEXIS 499 (Tenn. Ct. App. July 17, 2001) explains, Generally, a tenant in common, is entitled to partition, or sale for partition. a tenant in common has a right to withdraw from a co-tenancy at any time for whatever reason fostering the principal of fee alienability of property, although, generally, this right is not absolute where the parties have contracted otherwise. Headnote 7 of the same case says, It is the policy of the law to give each person his own severalty and not to force him to continue in partnership with another. The clause is not enforceable because it constitutes an unreasonable restraint on the alienation of property. Headnote 9 of the above mentioned case explains, Where a contract not to partition is silent as to the length of time, it is effective, the courts do not appear to be entirely consistent as to whether to hold it void as being a perpetual suspension, or to hold it valid as being a suspension for a limited time. This is reiterated in the case of McAlexander v. McAlexander, 2003 Tenn. App. LEXIS 681 (Tenn. Ct. App. Sept. 15, 2003). In this case the courts say, In order to sustain the validity of an agreement not to partition real property, the agreement must either contain an express eriod of duration or the agreement must contain sufficient evidence from which a court can determine the purpose for the restraint and from which the court can set a duration sufficient to accomplish that purpose. Analysis One of the main problems with the clause form the divorce decree is it not having a defined period. Courts disfavor provisions that deny property conveyance for an indeterminable amount of time. Conclusion

Property purchased and enjoyed jointly brings about special laws designed to protect all owners and assuring equal bargaining rights. The similarities of the example cases with the case in question lead me to believe the courts would sid the same way as procedural history shows. The clause within the divorce decree cannot be enforced as it puts constraints on the usage of the property which the courts find in violation of the owners rights. The clause would be more debatable if a realistic time period was set.