The Rule Against Perpetuities

The dreaded Rule Against Perpetuities. The rule has been described both as a "technicality-ridden legal nightmare," as well as a "dangerous instrumentality in the hands of most members of the bar." 

And with that said, it's tested on the MBE, so let's try our best to understand it. 

First, the rule: No interest is valid unless it must vest, if at all, not later than 21 years after some measuring life at the creation of the interest.  But let's think of this in a more helpful way; if there is any possibility that an interest in property will not vest within 21 years of someone who is alive at the time that the interest is granted (a measuring life), then the common law Rule Against Perpetuities is violated. And so in determining whether the rule has been violated you've got to come up with a hypothetical situation in which someone who has been granted a non-vested interest in property might have that property vest more than 21 years after all the measuring lives have died. 

Let's say A grants property to B for "so long as no alcohol is consumed on the property, and then to C." Here B has a fee simple subject to an executory limitation, and C has an executory interest. But the question is whether the executory interest granted to C is valid. The measuring lives here are A, B, and C. It's possible that A, B, and C could die and then more than 21 years after the death of all, B's heirs will violate the condition causing the property to vest in C's heirs. But that vesting will occur more than 21 years after the death of the measuring lives. And so the executory interest in C violates the Rule Against Perpetuities, and the grant becomes a fee simple determinable. If the condition is violated, the interest will revert back to A or A's heirs rather than shifting to C or C's heirs. 

Or let's say that A grants property "to B for life then to B's children for life, and then to B's grandchildren."Assume that at the time of the grant to B, B has two children, C and D, and one grandchild, E. Again, ask yourself whether it's possible that any of the granted interests might vest more than 21 years after all the measuring lives have died. The measuring lives here are A, B, C, D, and E. Assume that a week after the grant, C, D, E, and A all die. Sometime later B has another child, F. Note that F is not a measuring life because F was not alive at the time of the grant. Then B dies. 

So now F is alive and as per the grant, when B dies the property goes to F, B's child. No problem there since it was certain the property to F would vest within 21 years of a measuring life (here, B). F lives for another 25 years and then has a child, G. Then F dies. Now the property is supposed to vest in G, B's grandchild. The problem for G though is that all the measuring lives (A, B, C, D, and E) have been dead for more than 21 years. If F were a measuring life, there would be no problem. But F is not a measuring life as discussed above. So, it was possible as per the grant that a granted interest would vest more than 21 years after the death of all measuring lives (it happened here, so it had to have been possible).  Because of that possibility, the interest granted to B's grandchildren violates the rule and should be stricken. 

The rule is as horrible as everyone claims it to be. And there are certain details not covered in this post that could be tested on the MBE. But if you understand the above, you'll begin to understand how to analyze these problems, and the "legal nightmare" might be a bit less scary.