Whether you’re preparing for your property exam or studying for the bar exam, you’re likely to encounter the rule against perpetuities (RAP). It has a reputation for being confusing and outdated, but once you understand its purpose and apply a few key strategies, it becomes much more manageable.
The Traditional RAP
The traditional RAP states that no interest in real property is valid unless it must vest, or fail to vest, no later than 21 years after a life in being at the time the interest is created. In simpler terms, the interest must be guaranteed to either vest or terminate within that time period.
A Useful Paraphrase
A helpful way to think about the RAP is this: a future interest is void if there is any possibility that it could vest more than 21 years after the end of all relevant lives in being when the interest is created. This framing often makes it easier to analyze exam questions.
Why Do We Have the RAP?
The RAP exists because the law favors the free transfer and productive use of property. If property interests could remain uncertain for too long, land could be tied up indefinitely. The RAP limits that uncertainty by imposing a strict time boundary.
What Interests Are Subject to the RAP?
The RAP applies to three main types of future interests. First are contingent remainders. Second are executory interests, including options to purchase and rights of first refusal. Third are vested remainders subject to open, which typically involve class gifts that can expand over time.
There are also important exceptions. The RAP does not apply to lease options held by tenants or to certain transfers from one charity to another. It also does not apply to fully vested interests or to interests retained by the grantor, such as reversions or rights of entry.
Tips for Applying the RAP
Start by identifying the measuring lives. These are individuals who are alive at the time the interest is created and whose lives are relevant to whether the interest will vest. Then ask whether it is possible for the interest to vest too late. This is where careful analysis comes in. On the bar exam, you must consider all possible scenarios, even highly unlikely ones. Assume that people can have children at any age, die unexpectedly, or create unusual timing outcomes. The key question is always whether any scenario exists in which vesting could occur outside the permitted period.
Applying the RAP
In simpler cases, the analysis will show that vesting must occur within the allowed timeframe, and the interest is valid. In more complex scenarios, such as those involving delayed probate or unusual family structures, you may be able to construct a hypothetical situation in which vesting occurs too late. If that possibility exists, the interest violates the RAP.
What Happens If the RAP Is Violated?
At common law, an interest that violates the RAP is void and removed from the conveyance entirely. However, many states have adopted more flexible approaches. Under the cy pres doctrine, courts may modify the interest to align with the grantor’s intent while complying with the RAP. Other jurisdictions follow a wait-and-see approach, allowing courts to observe whether the interest actually vests within the permissible period before invalidating it.
Final Thoughts
The rule against perpetuities may seem intimidating at first, but it becomes much more approachable once you focus on its purpose and apply a structured method of analysis. This is a frequently tested topic on the bar exam, and mastering it can help you pick up valuable points.
Prepare with BARBRI Bar Review to fully understand the rule against perpetuities and other frequently tested Property concepts so you can analyze tricky fact patterns and answer with confidence on exam day.
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