Ownership of real property - Rule against perpetuities: comm...

Learning Outcomes

This article explains the Rule Against Perpetuities (RAP) in the context of real property and MBE-style problems, including:

• The definition, purpose, and policy justifications for the common law RAP, and how those policies guide courts in deciding whether remote control over property should be cut off.
• Which future interests and related rights are subject to, or exempt from, the RAP, with particular attention to contingent remainders, executory interests, vested remainders subject to open, options, rights of first refusal, and powers of appointment.
• How to apply the “lives in being plus 21 years” test step by step, identify potential validating lives, and determine whether any hypothetical scenario creates a risk of late vesting.
• How to analyze class gifts under the “bad as to one, bad as to all” rule, including classic pitfalls such as the fertile octogenarian and unborn widow problems, and how these patterns appear on multiple-choice questions.
• How executory interests, options to purchase, and preemptive rights can create remote vesting problems, how to strike only the offending interest, and what estates remain after invalid provisions are removed.
• The main statutory reforms—wait-and-see statutes, USRAP’s 90-year alternative period, age-reduction provisions, and perpetuities savings clauses—and how these reforms alter outcomes that would otherwise be required by the common law rule.

MBE Syllabus

For the MBE, you are required to understand the Rule Against Perpetuities as it applies to ownership of real property, with a focus on the following syllabus points:

• The common law RAP: formulation, purpose, and method of analysis.
• Future interests subject to the RAP: contingent remainders, executory interests, and vested remainders subject to open.
• Related property rights subject to the RAP: certain powers of appointment, options to purchase, and rights of first refusal.
• Application of the RAP to class gifts, including closing the class and the “all or nothing” rule.
• Consequences of a violation: which interests are struck and what estates remain.
• Statutory reforms, including wait-and-see statutes, age-reduction and savings clauses, and the Uniform Statutory Rule Against Perpetuities (USRAP).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following future interests is NOT subject to the Rule Against Perpetuities?
   1. Contingent remainder
   2. Executory interest
   3. Vested remainder in an individual
   4. Class gift remainder
2. Under the common law RAP, which of the following violates the rule?
   1. "To A for life, then to B if B marries C."
   2. "To A for life, then to A's children who reach 30."
   3. "To A for life, then to B's children."
   4. "To A for life, then to B."
3. Which statutory reform allows courts to uphold interests that actually vest within the perpetuities period, even if they might have vested too late?
   1. "Wait and see" statute
   2. Rule in Shelley's Case
   3. Doctrine of Worthier Title
   4. Doctrine of Merger

Introduction

The Rule Against Perpetuities (RAP) is one of the most technical doctrines in Real Property. It limits “dead hand” control by requiring that certain future interests become vested within a fixed period. On the MBE, RAP questions commonly involve gifts to unborn or shifting beneficiaries, age contingencies, class gifts, executory interests, and statutory modifications.

At its core, the RAP is not about when an interest becomes possessory. It is about when the interest becomes vested, meaning that the taker is fixed and any conditions precedent to taking have occurred.

Key Term: Rule Against Perpetuities (RAP)
The common law rule that no future interest is valid unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest.

Key Term: Vesting
The point at which a future interest becomes a present, fixed right to possession, not subject to a condition precedent and not subject to being lost by the addition of new class members.

Key Term: Life in Being
A person who is alive at the time the interest is created and whose life is used as a measuring life for the perpetuities period.

Key Term: Validating Life
A life in being such that, if that person is the last surviving measuring life, we can say with certainty that the interest will either vest or fail within 21 years of that person’s death.

Why the RAP Exists

The RAP serves several policy purposes:

• It promotes marketability of land by preventing remote contingencies from clouding title indefinitely.
• It limits dead hand control—the ability of a property owner to control property long after death.
• It imposes a uniform time limit on how long contingent arrangements can remain unresolved.

For exam purposes, you must be able to:

• Identify interests subject to the RAP.
• Apply the “must vest, if at all” test using possible, not probable, scenarios.
• Recognize classic problem patterns (fertile octogenarian, unborn widow, administrative contingencies, remote class members).
• Contrast common law results with modern statutory reforms.

Interests Subject to the Rule

The RAP does not apply to all future interests. You must first classify the interest.

The RAP applies to:

• Contingent remainders (because vesting is uncertain).
• Executory interests (because they take effect by cutting short a prior estate or following a gap).
• Vested remainders subject to open (class gifts where more class members may join).
• Certain powers of appointment.
• Options to purchase and rights of first refusal that can be exercised beyond the perpetuities period (unless limited to the holder’s lifetime).

The RAP does not apply to:

• Present possessory estates (e.g., fee simple absolute, life estates).
• Vested remainders in an ascertained individual that are not subject to open.
• Future interests in the grantor: reversions, possibilities of reverter, and rights of entry/powers of termination.
• Vested remainders subject to divestment (vested subject to a condition subsequent, not a condition precedent).

Key Term: Contingent Remainder
A remainder created in an unascertained person or subject to a condition precedent (or both), so that it is not certain to vest.

Key Term: Vested Remainder Subject to Open
A vested remainder created in a class of persons at least one of whom is ascertained and can take, but where the class may still increase (e.g., “to A’s children”).

Key Term: Executory Interest
A future interest in a transferee that either cuts short a prior estate (shifting) or follows a gap in possession (springing), and is not a remainder.

Key Term: Class Gift
A gift to a group of persons described by relationship or status (e.g., “children,” “grandchildren”) where the number of members may change.

Key Term: Option to Purchase
A contractual right to purchase property at a stated price within a specified time; when tied to land and binding successors, it is often treated as a future interest for RAP purposes.

Key Term: Right of First Refusal
A right to buy property before it is sold to someone else, usually on specified terms; can be subject to the RAP if it can persist indefinitely.

Powers of Appointment

A power of appointment allows a donee to decide later who will take an interest.

• General powers (especially those exercisable by will or presently exercisable) and
• Special or limited powers (to appoint among a defined group)

can be subject to the RAP. For MBE purposes, you mainly need to know that interests created under powers of appointment must still satisfy the RAP, usually measured from the creation of the power, not from its exercise.

Key Term: General Power of Appointment
A power that allows the donee to appoint property to anyone, including the donee, the donee’s estate, or creditors.

Key Term: Special (Limited) Power of Appointment
A power that allows the donee to appoint property only among a specified group of permissible appointees.

The Common Law Rule: "Lives in Being Plus 21 Years"

The common law RAP states:

“No interest 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.”

Several points are critical:

• Creation time:

  • Inter vivos deed: when the deed is delivered.
  • Will: at the testator’s death.
  • Irrevocable trust: when the trust becomes irrevocable.

• “Must vest, if at all” is a possibility test:
  At the moment the interest is created, you ask whether it is possible—not likely—that the interest could vest too late. Any remote possibility of late vesting makes the interest void from the start.

• Gestation is allowed:
  A life in being includes a child en ventre sa mère (in gestation) at the time of creation.

What Does “Vesting” Require

An interest vests when:

• The taker is ascertained (identified person or persons), and
• All conditions precedent to taking are satisfied, and
• For class gifts, the class is closed as to that interest.

It is irrelevant for RAP purposes whether the interest becomes possessory within the period. The question is whether the right becomes fixed within the allowed time.

When Does the Period Begin

• Inter vivos conveyance: at the time of delivery of the deed.
• Testamentary disposition: at the testator’s death.
• Irrevocable trust: at the time the trust becomes irrevocable (commonly at creation; for revocable trusts, often at the settlor’s death when it becomes irrevocable).

The Analytical Method

On the exam, use a structured approach:

1. Identify the suspect future interest(s):

   • Contingent remainder, executory interest, vested remainder subject to open, power of appointment, option, or right of first refusal.

2. Determine what must happen for vesting:

   • Who must be born?
   • What condition must be satisfied (age, survival, marriage, etc.)?

3. Choose potential validating lives:

   • People alive at creation whose lives are logically connected to the vesting.

4. Ask the RAP question:
   Is there any possible scenario, however unlikely, in which the interest could vest more than 21 years after the death of all possible validating lives?

   • If yes, the interest is void from the outset.
   • If no, the interest is valid.

5. Strike only the offending interest and reclassify the remaining estates.

Worked Example 1.1

O conveys: “To A for life, then to A’s first child to reach age 30.” At the time of the conveyance, A has one child, B, who is 5 years old.

Answer:
This violates the RAP. The future interest (“to A’s first child to reach 30”) is a contingent remainder because no child has yet satisfied the age condition. A could have another child after the conveyance. That afterborn child might not reach 30 until more than 21 years after the deaths of A and B (both lives in being when the interest was created). Because there is a possible scenario of vesting beyond lives in being plus 21 years, the gift is void from the start.

Contrast this with an age condition of 21, as the next example shows.

Worked Example 1.2

O conveys: “To A for life, then to A’s first child to reach 21.” At the time of the conveyance, A has no children.

Answer:
This is valid under the RAP. Any child of A must be born, if at all, during A’s lifetime or within the period of gestation following A’s death. A is a validating life. Once born, any child of A must reach 21 within 21 years of A’s death. There is no way for the interest to vest later than 21 years after A’s death, so the gift satisfies the RAP.

Application to Class Gifts: "Bad as to One, Bad as to All"

Class gifts are treated harshly under the common law RAP. If the gift is to a class and it is possible that any member could vest too late, the entire class gift is void.

Key Term: Rule of Convenience
A rule of construction (not part of the RAP) under which a class closes when any member becomes entitled to immediate possession, in the absence of contrary intent.

For RAP analysis, however, you must ignore the Rule of Convenience unless the instrument or jurisdiction expressly adopts it for perpetuities analysis. The RAP applies at the moment of creation and asks whether late vesting is possible, even if the class might close earlier by convenience.

Worked Example 1.3

O conveys: “To A for life, then to A’s children who reach 25.” At the time of the conveyance, A has one child, C, age 24.

Answer:
The gift to A’s children who reach 25 is a class gift, and each child’s interest is contingent on reaching age 25. A could have another child after the conveyance, and that afterborn child might not reach 25 until more than 21 years after A’s death. Because one possible class member could vest too late, the entire class gift is void under the RAP (“bad as to one, bad as to all”), even though C himself will clearly reach 25 within the perpetuities period.

Classic Class Gift Problems

Two classic exam patterns:

• Fertile octogenarian: The law assumes anyone, no matter how old or infertile in reality, can have children for RAP purposes.

Key Term: Fertile Octogenarian
The assumption, for RAP purposes, that any person, regardless of age or health, is capable of having children as long as they are alive, which can create remote possibilities of vesting.

• Unborn widow: A gift conditioned on a “widow” or “spouse” can fail because the identity of the spouse who survives may not be a life in being at creation.

Key Term: Unborn Widow Problem
A RAP issue arising when a gift is made to the “widow” or “spouse” of a life in being; that surviving spouse may be someone not yet born when the interest is created, making vesting potentially remote.

Executory Interests and Remote Vesting

Executory interests are especially vulnerable because they are often tied to events that can happen at any time.

Key Term: Executory Interest
A future interest in a transferee that cuts short a prior estate or follows a gap in possession and is not a remainder.

Worked Example 1.4

O conveys: “To A so long as the land is used as a park, then to B.”

Answer:
A has a fee simple subject to an executory limitation, and B has a shifting executory interest. The land could be used as a park for hundreds of years. B’s interest might not vest (by cutting short A’s estate) until far beyond 21 years after all lives in being at the creation of the interest have died. Because it is possible that B’s interest will vest too remotely, B’s executory interest is void under the RAP. The offending gift to B is stricken, leaving A with a fee simple determinable and O with a possibility of reverter (which is not subject to the RAP).

Worked Example 1.5

O conveys: “To A, but if the property is ever used for nonresidential purposes, then to B.”

Answer:
B’s shifting executory interest is void under the RAP. The condition (“ever used for nonresidential purposes”) could be satisfied generations after all lives in being have died. The possibility of such remote vesting invalidates B’s interest. The result: A takes a fee simple absolute, because the executory limitation is struck and there is no valid future interest to cut short A’s estate.

Options, Rights of First Refusal, and the RAP

Options and preemptive rights that run with the land can also violate the RAP.

Key Term: Option to Purchase
A contractual right to buy specified property at a fixed price within a stated period; when binding on successors, it can be treated as a future interest subject to the RAP.

Key Term: Right of First Refusal
A contractual right giving its holder the opportunity to match any bona fide offer to buy the property before the owner sells to someone else.

If the option or right of first refusal can be exercised beyond lives in being plus 21 years, it may be void at common law.

Worked Example 1.6

O grants to X Corp. “an option to purchase Blackacre at any time in the next 50 years for $500,000.”

Answer:
This option is subject to the RAP. X Corp. is not a life in being, and the option is expressly exercisable for 50 years, which exceeds 21 years beyond any life in being at creation. Because it is possible that the option will be exercised more than 21 years after all relevant lives in being have died, the option is void under the common law RAP.

On the MBE, unless told otherwise, assume such long-term options are subject to and can be invalidated by the RAP.

Common Pitfalls: Fertile Octogenarian and Unborn Widow

The RAP operates on possibilities, not probabilities. This gives rise to classic pitfalls:

• Fertile octogenarian: anyone can have more children as long as they are alive.
• Unborn widow: the survivor labeled “widow” may not yet be born.

These make apparently reasonable gifts invalid.

Worked Example 1.7

O conveys: “To A for life, then to A’s widow for life, then to A’s descendants then living.”

Answer:
The gift to A’s descendants then living after the widow’s life estate is likely void under the RAP. A’s widow is defined as the person married to A at his death. It is possible that A will marry someone not yet born at the time of the conveyance. That spouse is not a life in being when the interest is created. The remainder to A’s descendants “then living” (at the widow’s death) might vest more than 21 years after the deaths of all lives in being at creation. Because such remote vesting is possible, the remainder to A’s descendants is void. The gifts to A and A’s widow can still be valid; the invalid interest is simply struck.

Charity-to-Charity Exception

At common law, there is an important exception for charitable dispositions.

Key Term: Charity-to-Charity Exception
A common law rule that the RAP does not apply to a gift over from one charity to another charity.

If both the present and future interests are held by charitable organizations, the RAP does not invalidate the future interest, even if it might vest remotely.

Worked Example 1.8

O conveys: “To Charity X so long as the land is used for a hospital, then to Charity Y.”

Answer:
Although the shifting executory interest in Charity Y could vest far in the future, the gift is from one charity to another charity. The charity-to-charity exception applies, so the RAP does not invalidate Charity Y’s interest.

Statutory Reforms: "Wait and See" and USRAP

Because the common law RAP can void gifts based on highly unlikely possibilities, many jurisdictions have softened it through statutory reforms.

Wait-and-See Statutes

“Wait and see” statutes change the timing of the RAP inquiry:

Key Term: Wait and See Statute
A statutory reform under which an interest is not invalid at creation simply because it might vest too remotely; instead, the court waits to see whether the interest actually vests or fails within the perpetuities period.

Key points:

• The interest is initially valid; no automatic voiding at creation.
• The court observes what actually happens over the perpetuities period (often still lives in being plus 21 years).
• If the interest actually vests (or fails) in time, it is valid.
• If it has not vested or failed in time, the court may then strike or reform it.

USRAP (Uniform Statutory Rule Against Perpetuities)

USRAP, adopted in many states, adds a different type of reform:

Key Term: Uniform Statutory Rule Against Perpetuities (USRAP)
A model statute that validates a nonvested property interest if it either satisfies the traditional RAP or actually vests or fails within 90 years of its creation.

USRAP typically provides:

• Two alternative tests for validity:
  • The traditional lives in being plus 21 years test; or
  • An alternative 90-year absolute vesting period.
• Even if an interest violates the common law RAP, it can still be saved if it in fact vests (or fails) within 90 years.
• Many USRAP jurisdictions also authorize reformation to approximate the donor’s intent while complying with the statute.

Key Term: Cy Pres (Perpetuities Reformation)
A statutory or common law doctrine allowing a court to reform an invalid interest to approximate the transferor’s intent while bringing the disposition into compliance with the applicable perpetuities period.

Worked Example 1.9

O conveys: “To A for life, then to A’s grandchildren who reach 25.” At the time of the conveyance, A has one child, B, age 30, and one grandchild, C, age 2.

Answer:
At common law, this gift is void as to all grandchildren. A could have additional children after the conveyance, and those children could have children (A’s grandchildren) who might not reach 25 until more than 21 years after all lives in being at creation have died. Because a later-born grandchild could vest too late, the entire class gift fails.
Under a wait-and-see statute or USRAP, the court does not invalidate the gift at creation. It waits to see whether any grandchild actually reaches 25 within the permissible period (often 90 years under USRAP). Any grandchild who in fact reaches 25 within 90 years of the gift’s creation will take under the gift; others may not.

Savings and Age-Reduction Statutes

Modern statutes and careful drafting often include:

• Perpetuities savings clauses: e.g., “Notwithstanding any other provision, all interests shall vest, if at all, no later than 21 years after the death of the last surviving descendant of [named ancestor] living at my death.”
• Age reduction statutes: automatically reducing age contingencies over 21 to 21 years for RAP purposes (e.g., “25” is read as “21”) to save the gift.

Putting It All Together: A Structured Exam Approach

1. Classify all future interests in the conveyance.
2. Identify which interests are subject to the RAP:
   • Contingent remainders, executory interests, vested remainders subject to open, certain powers of appointment, options, and rights of first refusal.
3. Determine the conditions for vesting.
4. Select potential validating lives who are alive at creation and logically connected to vesting.
5. Apply the RAP test:
   • At creation, is there any possible scenario in which vesting could occur more than 21 years after the death of all validating lives?
6. If yes, strike the offending interest, leaving the rest of the conveyance intact.
7. Consider statutory reforms if the question says the jurisdiction has a wait-and-see statute or has adopted USRAP.

Worked Example 1.10

O’s will provides: “To A for life, then to A’s children who survive A, but if none of A’s children survive A, then to B.” At O’s death, A has two children, C and D.

Answer:

• The remainder “to A’s children who survive A” is a class gift contingent remainder. It will vest at A’s death in those children then living. A and A’s children are lives in being at creation (O’s death). The interest must vest or fail at A’s death, clearly within A’s lifetime plus 21 years. It is valid.
• The alternative gift “then to B” is an executory interest that takes if no child of A survives A. That condition is also resolved at A’s death. Again, A is a validating life. B’s interest must vest, if at all, at A’s death, well within the perpetuities period. B’s interest is valid.
  None of the gifts violates the RAP.

Key Point Checklist

This article has covered the following key knowledge points:

• The common law RAP provides that no interest is valid unless it must vest, if at all, within lives in being plus 21 years.
• The RAP applies to contingent remainders, executory interests, and vested remainders subject to open, as well as certain powers of appointment, options, and rights of first refusal.
• Future interests in the grantor (reversions, possibilities of reverter, rights of entry) and vested remainders in identified individuals (not subject to open) are not subject to the RAP.
• RAP analysis asks about possible, not probable, vesting; remote possibilities count.
• Class gifts are subject to the “bad as to one, bad as to all” rule: if any possible class member could vest outside the period, the entire class gift fails.
• Executory interests that can cut short an estate at any time in the future (e.g., “so long as used as a park, then to B”) are frequently void for remoteness.
• The fertile octogenarian and unborn widow problems demonstrate the law’s willingness to assume unlikely facts to invalidate gifts.
• Charitable gifts from one charity to another charity are exempt from the RAP under the charity-to-charity exception.
• Options to purchase and rights of first refusal that can be exercised beyond the perpetuities period are subject to the RAP and can be void.
• Statutory reforms, including wait-and-see statutes and USRAP’s 90-year alternative period, often save interests that would be void at common law.
• Perpetuities savings clauses and statutory age-reduction provisions can validate many problematic gifts.
• MBE questions will often specify whether the jurisdiction follows common law RAP or a statutory reform; your analysis must track the specified regime.

Key Terms and Concepts

• Rule Against Perpetuities (RAP)
• Vesting
• Life in Being
• Validating Life
• Contingent Remainder
• Vested Remainder Subject to Open
• Executory Interest
• Class Gift
• Rule of Convenience
• Fertile Octogenarian
• Unborn Widow Problem
• General Power of Appointment
• Special (Limited) Power of Appointment
• Option to Purchase
• Right of First Refusal
• Charity-to-Charity Exception
• Wait and See Statute
• Uniform Statutory Rule Against Perpetuities (USRAP)
• Cy Pres (Perpetuities Reformation)