Future-interests questions reward slow classification. Label the estate and future interest first; only then ask whether the Rule Against Perpetuities destroys the future interest.
Future-interests questions reward slow classification. Label the estate and future interest first; only then ask whether the Rule Against Perpetuities destroys the future interest.
Future interests RETAINED BY GRANTOR are interests that remain with the original owner after transferring a lesser estate.
REVERSION: Grantor transfers less than what grantor has. What's left automatically returns to grantor. - "To A for life" → Grantor kept everything after life estate = REVERSION - Arises by OPERATION OF LAW—no need to expressly reserve it - Always VESTED (certain to become possessory)
POSSIBILITY OF REVERTER: Follows FEE SIMPLE DETERMINABLE (FSD). - FSD language: "so long as," "while," "during," "until" - Land AUTOMATICALLY reverts if condition is violated - Example: "To A so long as no alcohol sold" → The moment alcohol is sold, ownership instantly snaps back to grantor
RIGHT OF ENTRY (Power of Termination): Follows FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT (FSSCS). - FSSCS language: "but if," "provided that," "on condition that" + express right to reenter - Grantor must ELECT to retake—not automatic - Example: "To A, but if alcohol sold, grantor may reenter" → If alcohol sold, grantor CAN retake but doesn't have to
KEY DISTINCTION: Determinable = automatic forfeiture. Condition subsequent = grantor's choice.
RAP: Grantor's interests are NEVER subject to Rule Against Perpetuities.
HYPO: O conveys Blackacre "to the City of Springfield, so long as the land is used for a public park, but if the land ceases to be used for a public park, O may reenter and retake."
ANALYSIS: This is a common bar exam TRAP—the conveyance uses BOTH types of language!
"So long as" suggests FEE SIMPLE DETERMINABLE → Possibility of reverter "But if... O may reenter" suggests FSSCS → Right of entry
When language is MIXED, courts generally look at the GRANTOR'S INTENT. The phrase "O may reenter and retake" suggests grantor wanted the OPTION to reclaim, not automatic reversion.
MOST LIKELY RESULT: Fee Simple Subject to Condition Subsequent with Right of Entry.
WHY IT MATTERS: - If FSD: Land automatically reverts when park use ends—City immediately loses ownership - If FSSCS: O must affirmatively elect to retake. Until O acts, City still owns it (and might resume park use!)
FLORIDA NOTE: Florida disfavors automatic forfeitures and will likely construe ambiguous language as FSSCS to require grantor action.
Section sources
Future interests given to THIRD PARTIES are more complex and require careful classification.
REMAINDERS follow naturally after a life estate or term of years. Ask two questions: 1. Is the remainderman IDENTIFIABLE? 2. Is there a CONDITION PRECEDENT to taking?
VESTED REMAINDER: Identifiable person + NO condition precedent - "To A for life, then to B" → B is identifiable, no condition → VESTED REMAINDER - Vested remainders are NOT subject to RAP
VESTED REMAINDER SUBJECT TO OPEN (Class Gifts): Class with at least one member - "To A for life, then to A's children" and A has one child - Child has vested remainder, but class can grow (more children born) - SUBJECT TO RAP for unborn class members
CONTINGENT REMAINDER: Either (1) unidentified person OR (2) condition precedent - "To A for life, then to A's children" and A has NO children → contingent (unidentified) - "To A for life, then to B if B survives A" → contingent (condition precedent) - SUBJECT TO RAP
EXECUTORY INTERESTS: Don't wait for natural termination—they CUT SHORT an earlier estate - SHIFTING: Cuts short estate in THIRD PARTY ("To A, but if A drinks, to B") - SPRINGING: Cuts short estate in GRANTOR ("To A when A passes bar exam") - Always SUBJECT TO RAP
HYPO: O conveys "to A for life, then to B's children." At time of conveyance, B has one child, C.
ANALYSIS: Classify all interests.
A: LIFE ESTATE (present possessory interest)
B's children: This is a CLASS GIFT following a life estate = REMAINDER.
Is it vested or contingent? - Is the class identifiable? YES—we know who B's children are - Does C exist? YES—C is born - Is there a condition precedent? NO—just need to be B's child
RESULT: C has a VESTED REMAINDER SUBJECT TO OPEN. - "Vested" because C exists and there's no condition - "Subject to open" because B might have more children who would share
What if B has another child, D, during A's lifetime? - D joins the class and shares the remainder - C and D each have vested remainder subject to open
What if B dies, then A dies? - Class CLOSES at A's death (no more children can enter) - C and D take in fee simple absolute
RAP ANALYSIS: Is there a RAP problem? - C's interest vests immediately (at conveyance) - D's interest vests at D's birth - B is the "life in being"—all of B's children will be born during B's life - RAP is SATISFIED (all interests vest within lives in being)
Section sources
RAP is the most tested (and most hated) property rule. The classic formulation:
"No interest is good unless it must VEST, if at all, within 21 years after some life in being at the creation of the interest."
STEP-BY-STEP ANALYSIS: 1. Is the interest subject to RAP? (Contingent remainder, executory interest, class gift) 2. Identify the MEASURING LIVES (lives in being at creation) 3. Ask: Is there ANY POSSIBLE SCENARIO where interest vests more than 21 years after all measuring lives die? 4. If YES → Interest is VOID from inception
THE TRAPS:
FERTILE OCTOGENARIAN: Assume ANYONE can have children regardless of age. - "To A for life, then to A's grandchildren who reach 21" - A is 90 years old. Still assume A might have another child tomorrow! - That afterborn child's children might reach 21 more than 21 years after A and all current lives die → VOID
UNBORN WIDOW: A person's "widow" or "spouse" might not be born yet. - "To A for life, then to A's widow for life, then to A's children" - A might marry someone not yet born. That widow could outlive A by 50+ years → children's interest is VOID
SLOTHFUL EXECUTOR: Administration could theoretically take forever. - "To my grandchildren who survive distribution of my estate" - Estate administration has no deadline → might take 100 years → VOID
CLASS GIFTS: If ANY member might vest too late, ENTIRE class gift fails. - "To A for life, then to A's children who reach 25" - A has one child age 30 (vested) but A might have afterborn child who reaches 25 more than 21 years after A dies - Entire gift fails (even for the 30-year-old!)
HYPO: O conveys "to A for life, then to A's first grandchild to graduate college." A has two children, B and C. B has one child, X (age 10). C has no children.
ANALYSIS: Is this interest valid under RAP?
Step 1: Is it subject to RAP? - A: Life estate (not subject) - A's first grandchild to graduate: CONTINGENT REMAINDER (condition precedent: graduate college). Subject to RAP.
Step 2: Identify lives in being: A, B, C, X (all alive at conveyance)
Step 3: Can we PROVE this will vest or fail within 21 years of all lives in being dying?
PROBLEMATIC SCENARIO: 1. After conveyance, C has a child, Y 2. A, B, C, and X all die next year 3. Y is now 1 year old (the only surviving grandchild) 4. Y graduates college at age 22 5. That's 21 years AFTER the last life in being died
We can't prove the interest will vest within the perpetuities period!
RESULT: The contingent remainder is VOID under RAP from the moment of the conveyance.
What happens? "To A for life" is valid. After A dies, land reverts to O (or O's heirs) because the remainder failed.
NOTE: X is hurt by this even though X exists! RAP is harsh—it voids based on what MIGHT happen, not what actually happens.
Section sources
Translate the grant into present and future interests before mentioning the Rule Against Perpetuities. RAP analysis is impossible if the interests are misclassified.
No. It targets contingent remainders, executory interests, and certain class gifts, not vested remainders or interests retained by the grantor.