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Real Property • The Rule Against Perpetuities
PROP#032
Legal Definition
Under the Rule Against Perpetuities, no interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
Plain English Explanation
You're finally here. This is arguably one of the most difficult, confusing, criticized concepts taught in law school. It is so ridiculous that most states have gotten rid of it via legislation. And yet, here you are, forced to learn it. I'm so, so sorry. Let's dive in.
First, let's understand why the Rule Against Perpetuities ("RAP") exists. Under the law, property rights are sacred, and one of the most important property rights is the right to decide who to give your property to. However, the law hates it when dead people try to control land for too long. For example, you could have a conveyance that goes something like:
Oz conveys Blackacre, "to Amy for life, then to Amy's first child, then to Amy's first child's second child's spouse."
Take a look at that nonsense. It could take decades to figure out who will finally own Blackacre. It is this uncertainty that the RAP attempts to solve. In fact, you can think of the Rule Against Perpetuities more as the Rule Against Perpetual Uncertainty. The law demands closure. And so it created RAP.
Under RAP, some future interests are void if there is any possibility at all, no matter how remote, that they may vest more than 21 years after a life in being has died. Let's break this down some more. The first important thing you'll need to do is identify a life in being, because it is their life that becomes the relevant countdown.
A life in being is some life that is related in some way to the conveyance. It doesn't necessarily have to be mentioned in the conveyance, but it often times will be. So who is the measuring life in a conveyance? You get to pick. Once you've picked one, you need to ask yourself: "By the time this measuring life dies, plus 21 years, will we know for sure whether any interest in the conveyance vests or fails to vest?
Let's use a simple example: Oz conveys Blackacre "to Amy for life, remainder to Amy's children."
Here, the only life in being that is named is Amy, so she becomes the measuring life. When Amy dies, plus 21 years, will we know whether the interest vests in her kids? Of course we will. In fact, we don't even need 21 years. We will know immediately upon Amy's death whether or not she has any kids. If she does, the interest vests. If she doesn't, it fails. Under RAP, this would be a valid conveyance.
Let's look at another example: Oz conveys Blackacre "to Amy for life, then to Amy's children for life, remainder to A's grandchildren."
Who's the measuring life here? Once again, it is Amy. Will we find out within 21 years of Amy's death whether all the interests vest or not? As discussed above, we will know when her children's interest vests. But what about her grandchildren? Nope.
When Amy dies, she could have a child who may or may not have children within 21 years of Amy's death. In fact, it's completely possible that Amy's child will have a child 22 or more years after Amy dies. As such, it fails under RAP.
How was that? Pretty hard to get, right? A Harvard professor once famously described RAP in more than 800 pages of text. I have no goal to get that detailed. Why? Statistically speaking, RAP is rarely tested on exams and, when it is, what you mostly need to know is the rule statement on the answer tab. Likewise, it isn't commonly a correct answer on multiple choice. In other words, if you get a RAP question on an exam, do your best -- but if you have to guess in order to not waste time, don't beat yourself up about it.
First, let's understand why the Rule Against Perpetuities ("RAP") exists. Under the law, property rights are sacred, and one of the most important property rights is the right to decide who to give your property to. However, the law hates it when dead people try to control land for too long. For example, you could have a conveyance that goes something like:
Oz conveys Blackacre, "to Amy for life, then to Amy's first child, then to Amy's first child's second child's spouse."
Take a look at that nonsense. It could take decades to figure out who will finally own Blackacre. It is this uncertainty that the RAP attempts to solve. In fact, you can think of the Rule Against Perpetuities more as the Rule Against Perpetual Uncertainty. The law demands closure. And so it created RAP.
Under RAP, some future interests are void if there is any possibility at all, no matter how remote, that they may vest more than 21 years after a life in being has died. Let's break this down some more. The first important thing you'll need to do is identify a life in being, because it is their life that becomes the relevant countdown.
A life in being is some life that is related in some way to the conveyance. It doesn't necessarily have to be mentioned in the conveyance, but it often times will be. So who is the measuring life in a conveyance? You get to pick. Once you've picked one, you need to ask yourself: "By the time this measuring life dies, plus 21 years, will we know for sure whether any interest in the conveyance vests or fails to vest?
Let's use a simple example: Oz conveys Blackacre "to Amy for life, remainder to Amy's children."
Here, the only life in being that is named is Amy, so she becomes the measuring life. When Amy dies, plus 21 years, will we know whether the interest vests in her kids? Of course we will. In fact, we don't even need 21 years. We will know immediately upon Amy's death whether or not she has any kids. If she does, the interest vests. If she doesn't, it fails. Under RAP, this would be a valid conveyance.
Let's look at another example: Oz conveys Blackacre "to Amy for life, then to Amy's children for life, remainder to A's grandchildren."
Who's the measuring life here? Once again, it is Amy. Will we find out within 21 years of Amy's death whether all the interests vest or not? As discussed above, we will know when her children's interest vests. But what about her grandchildren? Nope.
When Amy dies, she could have a child who may or may not have children within 21 years of Amy's death. In fact, it's completely possible that Amy's child will have a child 22 or more years after Amy dies. As such, it fails under RAP.
How was that? Pretty hard to get, right? A Harvard professor once famously described RAP in more than 800 pages of text. I have no goal to get that detailed. Why? Statistically speaking, RAP is rarely tested on exams and, when it is, what you mostly need to know is the rule statement on the answer tab. Likewise, it isn't commonly a correct answer on multiple choice. In other words, if you get a RAP question on an exam, do your best -- but if you have to guess in order to not waste time, don't beat yourself up about it.
Hypothetical
Hypo 1: Oz conveys Blackacre "to Amy, then to Amy's children, then to Amy's grandchildren." Result: The problem here is the conveyance to Amy's grandchildren. Why? We can be 100% certain that we will know, for sure, who all of Amy's children are within 21 years of Amy's death. However, it is possible that Amy may have a grandchild born more than 21 years after she dies. Since this possibility is too remote, the future interest in Amy's grandchildren is void. Thus, the conveyance becomes, simply, "to Amy, then to Amy's children."
Related Concepts
What are common statutory reforms to the Rule Against Perpetuities?
What are common violations to the Rule Against Perpetuities?
What happens to a transfer if it violates the Rule Against Perpetuities?
When does the Rule Against Perpetuities begin to run?
Which types of interests does the Rule Against Perpetuities commonly apply to?
Which types of interests does the Rule Against Perpetuities NOT apply to?
