The Rule Against Perpetuities (RAP)

Question 1

What is the general rule for the Rule of Perpetuities (RAP)?

Answer 1

Certain kinds of future interests are void if there is a any possibility (however remote) that the given interest may vest more than 21 years after the death of a measuring life

Question 2

What are the 4 steps in analyzing a RAP problem?

Answer 2

1. Determine which future interests have been created by the conveyance (The RAP potentially applies only to only to contingent remainders, executory interests and certain vested remainders subject to open)
   i) RAP Does not apply to any future interest in the Grantor or to indefeasibly vested remainders subject to complete defeasance
2. Identify the condition precedent to the vesting of the future interest
3. Find a measuring life (look for a person who is alive at the date of the conveyance and ask whether that persons life or death is relevant to the conditions occurrence)
4. 21 Years – 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
   i) If so the conveyance is good
   ii) If there is any possibility, however remote, that the condition precedent could or could not occur more than 21 years after the death of a measuring life), the future interest is void

Question 3

What are RAP bright line rules?

Answer 3

1) A gift to an open class that is conditioned on the member’s surviving to an age beyond 21 violates the common law RAP
2) Many “shifting executory interests” violate the RAP, an executory interest with no limit on the time within which it must vest violates the RAP (e.g. “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.”)

Question 4

How does 1) A gift to an open class that is conditioned on the member’s surviving to an age beyond 21 violate the common law RAP?

Answer 4

a) “Bad as to one, bad as to all” – To be valid it must be shown that the condition precedent to every class members taking will occur with in the perpetuities period; if it is possible that a disposition might vest too remotely with respect to any member of the class, the entire class gift is void
i) E.g. “To A for life, then to such of A’s children as live to attain the age of 30.” A has two children, B and C. B is 35 and C is 40. A is alive.
(1) B & C have a vested remainder subject to open, however they are voided by the first RAP (bad as to one, bad as to all)
(2) So under the CL RAP we would be left with a life estate in A and a reversion in O

Question 5

How do “shifting executory interests” violate the RAP, an executory interest with no limit on the time within which it must vest violates the RAP?

Answer 5

1. Classify the future interest – In the example B has a shifting executory interest
2. What are the conditions that trigger B’s entitlement – The land must cease to be used for farm purposes
3. Find a measuring life – A has the power to abide by or breach the condition
4. Will we know with certainty in 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. The condition may not be breached, if ever, until hundreds of years have passed.
   i) Once the “offensive” future interest is stricken we have: To A and his heirs so long as the land is used for farm purposes (the future interest is void), thus A has a fee simple determinable (so long as, to A and his heirs) and O has the possibility of reverter (no
   ii) NEW EXAMPLE - “To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs.” – The entire second clause is stricken – so now A hasa fee simple absolute (Strike the offensive clause)
   iii) Charity to Charity exception:
   (1) A gift from one charity to another never violates the RAP (see page 27)

Question 6

What is the “Wait and See” or “Second Look” Doctrine?

Answer 6

Under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist (at the end of the measuring life)
a) This eliminates the “what if” or “anything is possible” line of inquiry

Question 7

What is the the Uniform Statutory Rule Against Perpetuities (USRAP)?

Answer 7

Codifies the CL RAP and in addition provides for a 90 year traditional CL RAP vesting period