RAP Flashcards
RAP
Certain kinds of future interests are void if there is any possibility, however remote, that a given interest may vest more than 21 years after the death of measuring life
4 Steps
- Determine which future interests have been created by the conveyanc
- Identify the condition precedent to vesting of the suspect future interest
- Find a measuring life
- Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take?
- If so → conveyance is good
- If not → future interest is void
RAP potentially applies to
Contingent Remainders,
Executory Interests,
certain Vested Remainders Subject to Open
options to purchase
Rights of First Refusal
powers of appointment
RAP does not apply to
any future interest in a grantor,
Indefeasibly Vested Remainders
Vested Remainders Subject to Complete Defeasance
charity to charity exception
“To A for life, then to the first of her children to reach the age of 30.” A is 70 and her only child, B is 29.
A has a life estate, B has a Contingent Remainder
Conditions precedent: A must die and A must have a child reach 30
Measuring life: A. Not B because the grant is not B specific (is about “children”)
Is there any possibility that A would not have a child to reach 30 until more than 21 years after A’s death? Yes. B, who is 29, could die tomorrow. Then A could have another child and could die in labor or live. We don’t know for sure today, whether the condition precedent to any potential newborn’s taking (the child turning 30) will be satisfied within A’s death.
So instead:
A has a Life Estate
O has a Reversion
“To A for life, then to such of A’s children as live to attain the age of 30.” A has 2 children, B and C. B is 35 and C is 40. A is alive.
B and C: Vested Remainder Subject to Open are voided by RAP because the class is still open because A is alive.
A has a Life Estate
O has a Reversion
Shifting executory interests
often violate RAP
An executory interest with no limit on the time within which it must vest violates the RAP.
Strike out Rule:
“To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs.”
B has a Shifting Executory Interest
Condition precedent: land must cease to be used for farm purposes
Measuring life: A
Will we know with certainty within 21 years of the death of our measuring life if a future interest holder can take? NO. A might abide by the condition during her lifetime and it may not be breached until hundreds of years have passed.
Strike out offensive language. We are left with: “To A and his heirs so long as the land is used for farm purposes”. A has Fee Simple Determinable. O has Possibility of Reverter
Compare with: “To A and is heirs, but if the land ceases to be used for farm purposes, to B and his heirs.” A has Fee Simple Absolute. O has nothing.
“To the American Red Cross, so long as the premises are used for Red Cross Purposes, and if they cease to be so used, then to the YMCA.”
YMCA has Shifting Executory Interest
American Red Cross has Fee Simple subject to YMCA’s Shifting Executory Interest
“Wait and See” or “Second Look” Doctrine
Validity is determined on the basis of the facts as they now exist, at the end of the measuring life
Eliminates the “what if” or “anything is possible” line of inquiry
Uniform Statutory Rule Against Perpetuities (USRAP)
Codifies common law RAP and provides for an alternative 90 year vesting period as an alternative to the life of being + 21 years.
Both “Wait and See” and USRAP embrace:
Cy pres doctrine: “as near as possible”
If a given disposition violates the rule, a court may reform it in a away that most closely matches grantor’s intent while complying with RAP
Reduction of any offensive age contingency to 21 years
New York Perpetuities Reform Statues
(three points)
Where an interest would be invalid because it is made to depend on any person’s having to attain an age in excess of 21 years, age contingency is reduced to 21 years
Common law fertile octogenarian principles is modified by NY, presuming that women over 55 cannot have a child
NY “suspension” rule
NY Suspension Rule
the rule against the suspension of the absolute power of alienation applies common law RAP to restrictions on the power to sell or transfer
Thus an interest is void if it suspends the power to sell or transfer for a period longer than the lives being + 21 (if there is a life estate in trust in an unborn person)
So, for a conveyance to be valid under the suspension rule, there must be persons in being who could join together in conveyance of the full Fee Simple title within lives being + 21.
To A for life, then to A’s children for their lives and upon the dath of hte last survivor, to B
B’s interest is vested, valid
