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Property I Professor Donald J. Kochan Classes 16, 18-19.

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1 Property I Professor Donald J. Kochan Classes 16, 18-19

2 Current Readings Pages ; ; Pages ; ; Rules Furthering Marketability Rules Furthering Marketability Destructibility Destructibility The Rule in Shelley ’ s Case The Rule in Shelley ’ s Case The Doctrine of Worthier Title The Doctrine of Worthier Title The Rule Against Perpetuities The Rule Against Perpetuities Perpetuities Reform Perpetuities Reform Jee v. Audley Jee v. Audley The Symphony Space, Inc. v. Pergola Properties The Symphony Space, Inc. v. Pergola Properties Sir Orlando Bridgeman

3 DO PROBLEMS As many as you can – It is the only way you will learn this material. Do the problems in the book, in these slides, and in supplements.

4 Destructibility “A remainder is destroyed if it does not vest at or before the the termination of the freehold estate.” D&K “A remainder is destroyed if it does not vest at or before the the termination of the freehold estate.” D&K Understand actual and artificial terminations Understand actual and artificial terminations Understand Merger and How to Rewrite When Necessary Understand Merger and How to Rewrite When Necessary Doctrine is largely abolished, but consider its policies as the promotion of alienability Doctrine is largely abolished, but consider its policies as the promotion of alienability See previous slide See previous slide This will not be tested. This will not be tested.

5 The Rule in Shelley’s Case “One of the earliest rules favoring marketability...” “One of the earliest rules favoring marketability...” Doctrine is largely abolished, but consider its policies as the promotion of alienability Doctrine is largely abolished, but consider its policies as the promotion of alienability “The Rule in Shelley’s Case has been abolished in an overwhelming number of states.” D&K “The Rule in Shelley’s Case has been abolished in an overwhelming number of states.” D&K This will not be tested. This will not be tested.

6 Doctrine of Worthier Title Common Law distinction between acquisition by inheritance and acquisition by purchase Common Law distinction between acquisition by inheritance and acquisition by purchase See examples See examples Doctrine is largely abolished, but consider its policies as the promotion of alienability Doctrine is largely abolished, but consider its policies as the promotion of alienability This will not be tested. This will not be tested.

7 Cautionary Note The historical and philosophical readings matter. Do not read them as archaic or irrelevant The historical and philosophical readings matter. Do not read them as archaic or irrelevant  Instead ask yourself how they contribute to where we are today  Sometimes this will require revisiting them after you learn more. We cannot know how we arrived to today if we don’t understand the voyage  My advice is to focus on WHY the older precedents helped form current law

8 The Rule Against Perpetuities "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." -- John Chipman Gray, The Rule Against Perpetuities §201 (2d ed., 1906) This is the common law Rule Against Perpetuities.

9 Origins: Duke of Norfolk’s Case 3 Ch. Cas. 1, 22 Eng. Rep. 931 (Ch. 1682) Henry Howard, 6 th Duke of Norfolk

10 Other Selected Seminal Sources W. Barton Leach: Perpetuities in a Nutshell, 51 Harv. L. Rev. 638 (1938).

11 Other Selected Seminal Sources (part 2) W. Barton Leach: Perpetuities: The Nutshell Revisited, 78 Harv. L. Rev. 973 (1965).

12 Outside Insight 30 September, :01 Guests: Professors Ron Brown and Joe Grohman, Nova Southeastern University Shepard Broad Law Center Topic: Property Law: The Rule Against Perpetuities Running Time: 9:44: an_Brown_RAP1.mp3 an_Brown_RAP1.mp3 For helpful CALI Lessons on both future interests and perpetuities (among other subjects), Remember to Logon to TWEN: getitle=CALI%20Lessons getitle=CALI%20Lessons And remember there are books with problems on reserve in the library.

13 What Might Happen? Force this analytical question into your head. Force this analytical question into your head. It is the key to determining validity or invalidity. It is the key to determining validity or invalidity. It requires that you even consider the improbable but not impossible – like the fertile octegenarian. It requires that you even consider the improbable but not impossible – like the fertile octegenarian.

14 Know The Meaning and Importance of These Terms and Concepts Life in Being (LIB) Life in Being (LIB) Validating Life Validating Life Measuring Life Measuring Life Vest or Fail – When and Whether Vest or Fail – When and Whether Open Class/Closed Class (***Remember you must determine that it will vest or fail FOR ALL EXISTING OR POTENTIAL MEMBERS OF A CLASS WITHIN AN LIB+21 YEARS) Open Class/Closed Class (***Remember you must determine that it will vest or fail FOR ALL EXISTING OR POTENTIAL MEMBERS OF A CLASS WITHIN AN LIB+21 YEARS)

15 The Autonomy/Utility Conflict Do not forget that there is a conflict in these rules between FULL autonomy to place restrictions on alienability in perpetuity conflicting with society’s desire to not so constrain property transfer in subsequent possessors/owners such that the property is immovable in the market, less valuable, or incapable of being put to its highest and best use. The rules attempt to maintain a balance.

16 Ambiguity and Intent Consider that intent plays a large role when ambiguity exists in a conveyance. Consider that intent plays a large role when ambiguity exists in a conveyance. Remember that careful drafting is part of your job. Remember that careful drafting is part of your job.

17 Jee v. Audley Class Gifts Issues (please read Note after closely) Class Gifts Issues (please read Note after closely) Interpretation Issues Interpretation Issues Bloodline intentions and the Abolition of the Fee Tail Bloodline intentions and the Abolition of the Fee Tail Identification of Validating Lives Identification of Validating Lives Fertile Octogenarian Fertile Octogenarian

18 RAP Problems Approach: Approach: Lives in Being Plus 21 years: At common law, no estate in property shall be valid unless it must vest, if at all, not later than 21 years after one or more lives in being (LIB) at the creation of the estate and any period of gestation involved. Lives in Being Plus 21 years: At common law, no estate in property shall be valid unless it must vest, if at all, not later than 21 years after one or more lives in being (LIB) at the creation of the estate and any period of gestation involved. The best way to handle the rule is to view it as a rule of proof. The party claiming that an interest is valid has met the “absolute certainty of vesting” test. He must be able to show that regardless of what might happen, his interest will vest, if it does vest, within that person’s lifetime (i.e., someone who was alive at the time the interest was created) or within 21 years after that person’s death. If the claimant can show that his Interest will vest, if at all, during the lifetime of (or 21 years after the death of) a measuring life, his interest is valid. It only takes one “life in being” to make it work. If the claimant cannot meet that proof test – if there is any possibility, however remote or fanciful, that his interest could vest more than 21 years after the death of any person alive when the interest was created – his interest is void. The best way to handle the rule is to view it as a rule of proof. The party claiming that an interest is valid has met the “absolute certainty of vesting” test. He must be able to show that regardless of what might happen, his interest will vest, if it does vest, within that person’s lifetime (i.e., someone who was alive at the time the interest was created) or within 21 years after that person’s death. If the claimant can show that his Interest will vest, if at all, during the lifetime of (or 21 years after the death of) a measuring life, his interest is valid. It only takes one “life in being” to make it work. If the claimant cannot meet that proof test – if there is any possibility, however remote or fanciful, that his interest could vest more than 21 years after the death of any person alive when the interest was created – his interest is void. If there is, or may be, a perpetuities problem, the key is to identify the vesting period – the time period in which the interest will vest (if it does vest). If there is, or may be, a perpetuities problem, the key is to identify the vesting period – the time period in which the interest will vest (if it does vest).

19 Problem # conveys land “to A and his heirs for so long as no liquor is sold or consumed on the premises; and if liquor is ever sold or consumed on the premises, title shall pass to B and his heirs.” 1. 0 conveys land “to A and his heirs for so long as no liquor is sold or consumed on the premises; and if liquor is ever sold or consumed on the premises, title shall pass to B and his heirs.” Step 1: Classify the Interests as though there were no rule Step 1: Classify the Interests as though there were no rule A: determinable fee subject to executory interest A: determinable fee subject to executory interest B: executory interest B: executory interest 0: zero (absent a RAP problem) 0: zero (absent a RAP problem) Step 2: Analyze validity under RAP (“what might happen”) Step 2: Analyze validity under RAP (“what might happen”) Not valid – B’s interest might vest remotely so it’s void from day 1 Not valid – B’s interest might vest remotely so it’s void from day 1 Result: Result: A: fee simple determinable A: fee simple determinable B: void B: void 0: possibility of reverter 0: possibility of reverter

20 Problem #2 2. “to A and his heirs for so long as no liquor is consumed on the premises; and if liquor is sold or consumed on the premises during the next 20 years, title shall pass to B and his heirs.” 2. “to A and his heirs for so long as no liquor is consumed on the premises; and if liquor is sold or consumed on the premises during the next 20 years, title shall pass to B and his heirs.” A: fee simple determinable subject to executory interest A: fee simple determinable subject to executory interest B: executory interest B: executory interest 0: Possibility of Reverter 0: Possibility of Reverter Valid under RAP because B’s interest will vest, if at all, within 20 years. Valid under RAP because B’s interest will vest, if at all, within 20 years.

21 Problem #3 3. “to A and his heirs for so long as no liquor is sold or consumed on the premises; and if liquor is sold or consumed on the premises during the next 30 years, title shall pass to B and his heirs.” 3. “to A and his heirs for so long as no liquor is sold or consumed on the premises; and if liquor is sold or consumed on the premises during the next 30 years, title shall pass to B and his heirs.” B’s interest is void under RAP B’s interest is void under RAP B could have B, Jr.; everyone but Jr. could die; then at year 25, liquor is sold (Interest vests) and at that time might vest remotely so void. B could have B, Jr.; everyone but Jr. could die; then at year 25, liquor is sold (Interest vests) and at that time might vest remotely so void.

22 Problem # conveys “To church for so long as the premises are used for church purposes, and if they shall ever cease to be so used, to N, his heirs and assigns.” 4. 0 conveys “To church for so long as the premises are used for church purposes, and if they shall ever cease to be so used, to N, his heirs and assigns.” Church:Fee simple determinable subject to executory interest Church:Fee simple determinable subject to executory interest 0:Possibility of reverter 0:Possibility of reverter But, N’s interest violates RAP so strike executory interest and “subject to” But, N’s interest violates RAP so strike executory interest and “subject to”

23 Problem # conveys land “to A and his heirs; provided, however, and on the express condition that if liquor is ever sold or consumed on the premises, B and his heirs shall have the right to reenter and retake the premises.” 5. 0 conveys land “to A and his heirs; provided, however, and on the express condition that if liquor is ever sold or consumed on the premises, B and his heirs shall have the right to reenter and retake the premises.” A: fee simple subject to condition precedent ~ [NY: fee on condition] A: fee simple subject to condition precedent ~ [NY: fee on condition] B: executory interest (cannot be a right of entry because that only arises in a grantor) B: executory interest (cannot be a right of entry because that only arises in a grantor) 0: zero 0: zero B’s interest is not valid under RAP (“ever”) so, A has fee simple absolute and 0 has zero B’s interest is not valid under RAP (“ever”) so, A has fee simple absolute and 0 has zero

24 Problem # conveys “to N, as long as no liquor is sold or consumed on the premises; and if liquor is ever sold or consumed on the premises, to Church.” 6. 0 conveys “to N, as long as no liquor is sold or consumed on the premises; and if liquor is ever sold or consumed on the premises, to Church.” N: fee simple determinable N: fee simple determinable Church: executory interest Church: executory interest 0: possibility of reverter 0: possibility of reverter Church’s Interest invalid under RAP so, N has fee simple determinable and 0 has POR. Church’s Interest invalid under RAP so, N has fee simple determinable and 0 has POR. In Question 6, the limitation is tied to the gift to N. When you strike the void gift to Church, the limitation is still tied to the gift to N. In Question 5, the condition, expressed as a condition subsequent, is tied to the gift over to B. When you strike the gift to B, you also strike the condition that triggers it, leaving A with a fee simple. The grantor has no right of entry because no right of entry was expressly raised in the conveyance. In Question 6, the limitation is tied to the gift to N. When you strike the void gift to Church, the limitation is still tied to the gift to N. In Question 5, the condition, expressed as a condition subsequent, is tied to the gift over to B. When you strike the gift to B, you also strike the condition that triggers it, leaving A with a fee simple. The grantor has no right of entry because no right of entry was expressly raised in the conveyance.

25 Problem #7 7. Dad’s will devises Briarwood “to my son S and his heirs, but if S shall attempt to sell, convey or otherwise transfer any interest in Briarwood during his lifetime, his title shall cease, and title to Briarwood shall pass to my son H and his heirs.” What interests are created? 7. Dad’s will devises Briarwood “to my son S and his heirs, but if S shall attempt to sell, convey or otherwise transfer any interest in Briarwood during his lifetime, his title shall cease, and title to Briarwood shall pass to my son H and his heirs.” What interests are created? Choices: Choices: A) S has a fee simple subject to a remainder, and H has a remainder in fee simple. A) S has a fee simple subject to a remainder, and H has a remainder in fee simple. B) S has a fee simple subject to executory interest; H has an executory interest. B) S has a fee simple subject to executory interest; H has an executory interest. C) S has a fee simple because H’s interest violates RAP C) S has a fee simple because H’s interest violates RAP D) S has a fee simple absolute because the restriction on transferability violates the rule against restraints on alienation. D) S has a fee simple absolute because the restriction on transferability violates the rule against restraints on alienation. Answer: D is correct. A is incorrect because it cannot be a remainder because it doesn’t follow a life estate. B would be the answer, except for D. C is incorrect because of language of “during his lifetime” means H’s interest will vest, if at all, within a life in being plus 21 years. Answer: D is correct. A is incorrect because it cannot be a remainder because it doesn’t follow a life estate. B would be the answer, except for D. C is incorrect because of language of “during his lifetime” means H’s interest will vest, if at all, within a life in being plus 21 years.

26 Problem #8 8. In 1990, Ollie conveys Redacre “to First Baptist Church, its successors and assigns, for so long as the land is used for church purposes.” A chapel is built on the land, and services are held every Sunday. In 1998, oil is discovered in the vicinity, and a well drilled on Redacre 200 feet from the chapel. The well produces oil in substantial quantites. Ollie brings an action to enjoin the further removal of oil and to recover title to the land. If the church prevails in the action, it will be because: 8. In 1990, Ollie conveys Redacre “to First Baptist Church, its successors and assigns, for so long as the land is used for church purposes.” A chapel is built on the land, and services are held every Sunday. In 1998, oil is discovered in the vicinity, and a well drilled on Redacre 200 feet from the chapel. The well produces oil in substantial quantites. Ollie brings an action to enjoin the further removal of oil and to recover title to the land. If the church prevails in the action, it will be because: A) The church is a charity, meaning that it’s not subject to RAP A) The church is a charity, meaning that it’s not subject to RAP B) The provision restricting the use of the land for church purpose violates the rule against restraints on alienation B) The provision restricting the use of the land for church purpose violates the rule against restraints on alienation C) The church’s interest, although defeasible, is a fee. C) The church’s interest, although defeasible, is a fee. D) Production of oil is controlled by government regulation, not individual regulation, and Ollie has no standing to enjoin production. D) Production of oil is controlled by government regulation, not individual regulation, and Ollie has no standing to enjoin production. First, identify the interests. Church has a fee simple determinable and Ollie has a possibility of reverter. First, identify the interests. Church has a fee simple determinable and Ollie has a possibility of reverter. A is incorrect because RAP not involved (and even if it was, the exception recognized in some jurisdictions only covers charity to charity transfers, not individual to charity transfers). A is incorrect because RAP not involved (and even if it was, the exception recognized in some jurisdictions only covers charity to charity transfers, not individual to charity transfers). B is incorrect because only restrictions on transferability are affected by the rule against restraints on alienation. B is incorrect because only restrictions on transferability are affected by the rule against restraints on alienation. D is just incorrect. D is just incorrect. C is correct because it’s true and church has all the rights of a fee simple owner. If the church had a life estate, it could not drill because such action would constitute waste. C is correct because it’s true and church has all the rights of a fee simple owner. If the church had a life estate, it could not drill because such action would constitute waste.

27 Problem #9 9. Terry dies in 1980, leaving a will that devises land “to my son A for life, and on his death to my grandson B.” B dies in 1995 survived by A, his wife W, and his son S. B leaves a will that devises “all my property to W.” A dies in Terry dies in 1980, leaving a will that devises land “to my son A for life, and on his death to my grandson B.” B dies in 1995 survived by A, his wife W, and his son S. B leaves a will that devises “all my property to W.” A dies in A: life estate A: life estate B: indefeasibly vested remainder (there’s no contingency to B’s taking other than A’s death) B: indefeasibly vested remainder (there’s no contingency to B’s taking other than A’s death) T’s estate: zero T’s estate: zero Who own’s the land after A’s death? Who own’s the land after A’s death?

28 Problem # dies in 1984, leaving a will that devises land “to my son A for life, and on A’s death to his children in equal shares.” At the time of 0’s death, A has three children – V, W, & X. In 1987 another child, Y, is born to A. V dies in A dies in months later, A’s wife gives birth to another child, E. Who owns the land after A’s death in 1998? dies in 1984, leaving a will that devises land “to my son A for life, and on A’s death to his children in equal shares.” At the time of 0’s death, A has three children – V, W, & X. In 1987 another child, Y, is born to A. V dies in A dies in months later, A’s wife gives birth to another child, E. Who owns the land after A’s death in 1998? Answer: 1/5 shares to V’s estate, W, X, Y, and E. Answer: 1/5 shares to V’s estate, W, X, Y, and E. In 1984, V, W, & X: had vested remainders subject to open (remainder was to class); it’s also called a vested remainder subject to partial divestment. The class hasn’t closed because disposition to “children” is not yet necessary. In 1984, V, W, & X: had vested remainders subject to open (remainder was to class); it’s also called a vested remainder subject to partial divestment. The class hasn’t closed because disposition to “children” is not yet necessary. On Y’s birth in 1987: Class opened and now 4 kids each have ¼ shares On Y’s birth in 1987: Class opened and now 4 kids each have ¼ shares On V’s death in 1995: his share of remainder passes to successors On V’s death in 1995: his share of remainder passes to successors E: gestation principle allows E to be a class member and takes share as a posthumous child. E: gestation principle allows E to be a class member and takes share as a posthumous child. Class gifts rule (surviving class members take) in wills didn’t apply when V died because V was alive in 1984 when T’s will took effect – rule only applies if a class member predeceases T.____ Class gifts rule (surviving class members take) in wills didn’t apply when V died because V was alive in 1984 when T’s will took effect – rule only applies if a class member predeceases T.____

29 Problem # “To A for life, and on A’s death then B; but if at B’s death B is not survived by issue, on B’s death to C.” 11. “To A for life, and on A’s death then B; but if at B’s death B is not survived by issue, on B’s death to C.” A: life estate A: life estate B: vested remainder subject to total divestment B: vested remainder subject to total divestment C: executory interest C: executory interest 0: zero – it’s a total conveyance of fee simple title 0: zero – it’s a total conveyance of fee simple title Valid under RAP – can point to B and meet proof test and C’s interest will vest, if at all, at the death of B (an LIB) Valid under RAP – can point to B and meet proof test and C’s interest will vest, if at all, at the death of B (an LIB)

30 Problem # In 1980, 0 conveys “to A for life, and on A’s death to B and his heirs if B attains the age of 30.” B is 5 years old at the time of this conveyance. 12. In 1980, 0 conveys “to A for life, and on A’s death to B and his heirs if B attains the age of 30.” B is 5 years old at the time of this conveyance. A: life estate A: life estate B: contingent remainder B: contingent remainder 0: reversion (because B may not make it to age 30) 0: reversion (because B may not make it to age 30) Valid under RAP because B can point to himself as an LIB and B will make it to age 30 or die within his own lifetime. Valid under RAP because B can point to himself as an LIB and B will make it to age 30 or die within his own lifetime. Assume A dies ten years after this conveyance; B is 15 years old. Assume A dies ten years after this conveyance; B is 15 years old. B: executory interest B: executory interest 0: fee simple subject to executory interest (because if B dies before 30, 0 will get full fee simple because A’s dead) 0: fee simple subject to executory interest (because if B dies before 30, 0 will get full fee simple because A’s dead)

31 Problem # Teddy dies leaving a will that devises his residuary estate “to my son John for life, then to such of John’s children as live to attain the age of 30.” At Teddy’s death, John has 3 children: Tommy (age 12); Dickie (age 8) and Harry (age 5). 13. Teddy dies leaving a will that devises his residuary estate “to my son John for life, then to such of John’s children as live to attain the age of 30.” At Teddy’s death, John has 3 children: Tommy (age 12); Dickie (age 8) and Harry (age 5). Step 1. Classify the Interests as though there were no rule Johns children as live to attain 30: contingent remainder (age 30 is condition precedent) Step 1. Classify the Interests as though there were no rule Johns children as live to attain 30: contingent remainder (age 30 is condition precedent) Teddy’s estate: reversion (none may make it to 30). Teddy’s estate: reversion (none may make it to 30). Step 2. Analyze Validity under RAP (“what might happen”) Step 2. Analyze Validity under RAP (“what might happen”) The remainder in John’s children is void because its an open class and thus might vest remotely (an age contingency beyond 21 in an open class). The remainder in John’s children is void because its an open class and thus might vest remotely (an age contingency beyond 21 in an open class). After Teddy’s death, John could have another child Z (not an LIB because not alive at T’s death). Before Z has his 9th birthday, everyone now on the scene might die. More than 21 years later (after LIB’s die), Z attains age 30 at which time the remainder vests. After Teddy’s death, John could have another child Z (not an LIB because not alive at T’s death). Before Z has his 9th birthday, everyone now on the scene might die. More than 21 years later (after LIB’s die), Z attains age 30 at which time the remainder vests. Same facts except that John predeceased T: Same facts except that John predeceased T: Now gift is valid because it’s a closed class. Because John is dead, there cannot be any more children and remaing kids will make it to 30 in their own lifetime (all are alive at T’s death). Now gift is valid because it’s a closed class. Because John is dead, there cannot be any more children and remaing kids will make it to 30 in their own lifetime (all are alive at T’s death). Same facts except that t’s will devises his residuary estate “to my daughter Mary for life, and on her death remainder to such of Mary’s children as attain age 30. “At t’s death, Mary is 59 years old and had a hysterectomy. Same facts except that t’s will devises his residuary estate “to my daughter Mary for life, and on her death remainder to such of Mary’s children as attain age 30. “At t’s death, Mary is 59 years old and had a hysterectomy. Step 1: Classify the Interests as though there were no rule contingent remainder in Mary’s children; Mary has life estate Step 1: Classify the Interests as though there were no rule contingent remainder in Mary’s children; Mary has life estate Step 2: Analyze Validity under RAP (“what might happen”) Step 2: Analyze Validity under RAP (“what might happen”) Remainder is void - - Fertile octogenarian problem Remainder is void - - Fertile octogenarian problem

32 Problem # Tammy dies leaving a will that creates a trust: “income to my daughter D for life, and on her death income to D’s children, Sammy and Susie, for their lives; and on the death of the survivor of Sammy and Susie, principal to D’s then living grandchildren.” 14. Tammy dies leaving a will that creates a trust: “income to my daughter D for life, and on her death income to D’s children, Sammy and Susie, for their lives; and on the death of the survivor of Sammy and Susie, principal to D’s then living grandchildren.” Step 1: Classify the Interests as though there were no rule Step 1: Classify the Interests as though there were no rule Donna:life estate Donna:life estate Sammy and Susie: remainder life estates Sammy and Susie: remainder life estates Donna’s grandchildren: contingent remainder in fee simple (“then living”) Donna’s grandchildren: contingent remainder in fee simple (“then living”) Tammy’s estate:reversion Tammy’s estate:reversion Step 2: Analyze Validity under RAP (“what might happen”) Step 2: Analyze Validity under RAP (“what might happen”) Valid, will vest at death of Sam and Sue and they’re LIB’s Valid, will vest at death of Sam and Sue and they’re LIB’s

33 Problem # T dies leaving his residuary estate in trust: “To my son J for life, then to J’s widow for life, then to such of J’s descendants as are living on the death of his widow. “J is happily married to S and has 2 children. 15. T dies leaving his residuary estate in trust: “To my son J for life, then to J’s widow for life, then to such of J’s descendants as are living on the death of his widow. “J is happily married to S and has 2 children. Step 1. Classify the Interest as though there were no rule Step 1. Classify the Interest as though there were no rule J: life estate J: life estate S: zero S: zero J’s widow: contingent remainder life estate J’s widow: contingent remainder life estate J’s descendants then living: contingent remainder in fee simple J’s descendants then living: contingent remainder in fee simple T’s estate: reversion T’s estate: reversion Step 2: Analyze Validity under RAP (“what might happen”) Step 2: Analyze Validity under RAP (“what might happen”) Remainder in J’s descendants invalid because w/n nest until death of widow and widow might not be born at T’s death. After T’s death, S may divorce or die; J marries L, a woman not alive at T’s death; J has child Z by new bride; everyone alive at T’s death dies; More than 21 years later, L dies; Z is a descendant and not a LIB. Remainder in J’s descendants invalid because w/n nest until death of widow and widow might not be born at T’s death. After T’s death, S may divorce or die; J marries L, a woman not alive at T’s death; J has child Z by new bride; everyone alive at T’s death dies; More than 21 years later, L dies; Z is a descendant and not a LIB. Life estate in J’s widow valid under RAP - - J is LIB and will vest at his death and we’ll know who his widow is at his death. Life estate in J’s widow valid under RAP - - J is LIB and will vest at his death and we’ll know who his widow is at his death.

34 USRAP Uniform Statutory Rule Against Perpetuities (“USRAP”) Uniform Statutory Rule Against Perpetuities (“USRAP”) The Symphony Space, Inc. v. Pergola Properties, Inc. The Symphony Space, Inc. v. Pergola Properties, Inc. Understand wait-and-see and changes in statutory periods Understand wait-and-see and changes in statutory periods A suggested supplemental source is at: pdf A suggested supplemental source is at: pdf pdf pdf California generally follows USRAP California generally follows USRAP * * * BUT, you will only be tested on compliance with the traditional common law rules

35 Perpetuities Reform “[T]he Rule Against Perpetuities has lost its status as an untouchable pillar of property law. Indeed the question now arises whether the rule is needed at all....” D&K TRUE: But you need to know it and learn it for legal practice purposes and also as a mental tool regarding the training of the lawyer’s mind.

36 Concluding Thoughts Be methodical and don’t forget to ask: what it is the nature of the estate if valid; then decide if anything is invalid; then rewrite it if necessary; then redefine the nature of all parties’ interests after rewriting. Be methodical and don’t forget to ask: what it is the nature of the estate if valid; then decide if anything is invalid; then rewrite it if necessary; then redefine the nature of all parties’ interests after rewriting. And hey, I discovered that you can even buy RAP gear, since this is so much fun: perpetuities-sweatshirt/ perpetuities-sweatshirt/


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