RAP Flashcards
Rule def
Rule: “No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.”
Rule purposse
Purpose: To free up land from the dead hand requirement. Grants are limited to about two generations
- DOES THE RAP APPLY?
Applies only to:
Executory interests,
Vested remainders subject to open, and
Contingent remainders.
RAP doesnt apply to…
Does not apply to: reversions, possibility of reverter, power of termination/right of entry.
2.WHO ARE THE VALIDATING LIVES?
Life in being:
Someone who is alive at the time the interest was created.
A life in being is someone named in the conveyance (or their heirs).
2.WHO ARE THE LIVES IN BEING: will v. Grant
If it is a contract/grant, the interest is created at the time of the grant.
If it is a will, the interest is created at the time of death.
3.KILL OFF THE LIVES IN BEING
WHAT IS THE FIRST POINT AT WHICH THE FUTURE INTEREST MUST VEST?
Interest must vest when the person entitled to possession under the future interest are ascertained AND
There is no other condition that must be met before the interest can become possessory.
4.WILL THE INTEREST VEST WITHIN 21 YEARS? or WILL IT NEVER VEST?
If the interest must vest within 21 years OR will definitely never vest, RAP is not violated.
NOTE: Courts do not care whether it is highly unlikely or even scientifically impossible for an event, such as the birth of another child, to occur. Ex: Jee v. Audley (75 y.o. woman, for the purposes of the RAP, still has the potential to have another child).
- COMMON LAW OR STATUTE?
If common law, if a clause is found invalid, it is struck from the grant.
If statute, most take the “wait and see” approach to a RAP violation.
This means that the state waits to see if the RAP is violated.
If RAP is not violated, even if it could have been, then the grant is valid.
Problem with this approach is that grantees have to wait a long time to ascertain the validity of their interests.
G grants FSA “to A for life, then to A’s children for life, and upon the death of the last survivor, to A’s surviving grandchildren.” A currently has C1 and C2 children.
GRANT TO A’s CHILDREN…
Type: Vested remainder subject to open because A could have more children. RAP Applies.
Validating lives: A, C1 and C2.
Future interest must vest upon A’s death, because A cannot have any more children and the identities of all the children will be known.
Therefore, this interest is valid, because the time of vesting is well within the death of A (life in being).
G grants FSA “to A for life, then to A’s children for life, and upon the death of the last survivor, to A’s surviving grandchildren.” A currently has C1 and C2 children.
TO A’S GRANDCHILDREN
Grant to A’s grandchildren:
Type: Contingent remainder because the identity of grandchildren are unknown. RAP applies.
Validating lives: Same as above.
If A, C1 and C2 died, but A had had another child (C3) after the time of the grant and C3 lived for more than 21 years, the condition would be violated because the A’s grandchildren’s interest would not vest until more than 21 years after the death of the lives in being.
Therefore, this interest is invalid.
“To A for life, then to A’s children for life, then to B.”
VALID: B’s remainder is vested on creation.
“To A for life, then to A’s children for life, then to A’s grandchildren.”
INVALID:A may have a child after the interest is crated and so may have grandchildren beyond the perpetuities period.
“To B for life, remainder to those of B’s siblings who reach age 21.”
VALID: B’s parents can be used as measuring lives.
“To B for life, then to such of B’s children who become lawyers.”
INVALID:B may have a child born after the disposition who becomes a lawyer more than 21 years after B’s death.
“To A for life, then to his wife W for life, then to A’s surviving children.”
VALID; No unborn widow problem because to W, a life in being.
“To A for life, then to his widow (NOT NAMED) for life, then to A’s surviving children.”
INVALID:Unborn widow problem - A’s wife might die, might remarry someone not yet born, thus not life in being.
“To X for life, then to Y, but if at her death, Y is not survived by children, then to Z.”
VALID: Y is the measuring life.
“To M for life, then to M’s children for their lives, then to M’s grandchildren.” (M is 80 years old and has had a hysterectomy.)
INVALID(unless stature)
Fertile octogenerian problem
White v. Brown
White v. Brown (Supp) (VT):
Will said: “I wish Evelyn White to have my home to live in and not to be sold.”
Ds claimed this was a LE grant (they were heirs). White (P) wanted FSA.
Court held that because there were no subsequent provisions dictating what should occur at the end of White’s life, it should be construed as a FSA.
Also held that the fact that “not to be sold” was a restraint on alienation did not overcome the presumption in favor of construction as a FSA.
Restraint on alienation is void for PP, so White can sell home if desired.
Shows that courts always prefer the construction to be FSA, not LE.
Example of the will of the testatrix being defeated in favor of efficiency.
Disabling Restraint
(prohibition on alienation)
“To A, and A may not transfer the land”
FEE SIMPLE/LE/TENNACY void?
Void/ void/ valid in most statew
Forfeiture Restraint
(attempted alienation is a condition that permits grantor to exercise power of termination or results in reversion)
“To A, but if A attempts to transfer land, title reverts to grantor”
FEE/LE/LEASHOLD
Void/valid/valid
Promissory Restraint
(attempted alienation is a breach of covenant, so covenantor is liable for the breach)
“To A, and A promises not to transfer land”
Fee/le/leashold
Void/valid/valid
Rap 4 steps
- 4 Steps:
a. Classify the future interests. REP only applies to: contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase (not attached to a leasehold), rights of first refusal, and powers of appointment.
b. What are the conditions precedent to the vesting of the future interest?
c. Find a measuring life (anyone alive at time of transfer AND named in the transfer or inferred in transfer as being central to the conveyance).
d. Will we know, with certainty, within 21 years of the death of the measuring life, if a future interest can take? Two possibilities
i. Executory interest vest only when they become possessory
ii. Contingent remainders vest when the contingency occurs, and they become certain to become possessory