Real Property

QWhat does the Rule Against Perpetuities (RAP) prohibit?
AIt prohibits the creation of interests that are not certain to vest within a life in being plus 21 years.
QWhat is the first step in assessing a RAP problem?
AIdentify all of the interests. The interests that are affected by the RAP are: 

  1. Contingent Interests
  2. Executory Interests
  3. Vested Remainders Subject to Open (classes that are not yet closed, such as “children” or “grandchildren” while the parents that can produce them are alive).
QAfter identifying all the interests that are affected by the RAP, what is the next step in determining if the grant violates the RAP?
ADetermine what event will cause the interests to vest. It might be a marriage, the death of a parent (closes the class of “children”), might be surviving to a certain age, could be the use of the property in the grant (where a grant prohibits certain uses), etc.
QWhat are the requirements for the “measuring life,” or “life in being” necessary for the purposes of a RAP analysis?
AThe “life in being” must be a life referenced in the granting instrument, and the person must be alive at the time of the grant. 

 

NOTE: Where the question says the grantor “devises” property, the grantor is not the measuring life, since a devise is a gift in a will. The grantor is already dead.

QAfter identifying any interests affected by the RAP, determining what event will cause those interests to vest, and identifying the different possible measuring lives, what is the final step in a RAP analysis?
AApply the rule – see if the interests vest within a life in being plus 21 years. If an interest does not vest, then strike the offending interest from the grant.
QO grants his farm “To A, and if the land ceases to be farm, to B and his heirs.” What estate does A have?
AA has a Fee Simple. The grant violates the Rule Against Perpetuities (RAP), because it creates a contingent interest (B’s executory interest) that is not certain to vest within a life in being plus 21 years time. Because B’s interest is contingent and is uncertain to ever vest it violates the RAP. 

NOTE: Any executory interest without a time constraint will always violate the RAP, for instance, “no commercial use,” “no logging,” etc. Without a time limit, the executory interest is never certain to vest in the required time, so the interest is stricken.

QO grants his farm “To A, and if the land ceases to be farm, then O shall have the right of reentry.” Does the grant violate the RAP?
ANo. A grantor’s interests are exempt from the RAP. Therefore rights of reentry, possibilities of reverter, and reversions (all the rights a grantor may retain) are never subject to the rule.
NOTE: Remember that reversions follow a life estate, possibilities of reverter follow a fee simple determinable.
 

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