Rule Against Perps - difference between these questions? Forum

[SlipperyPete]

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[270910]

Here are two of the questions we did in class regarding the rule against perpetuities.

1) O grants Blackacre "to Huxley College, as long as it is used for instructional purposes; then to my son A and his heirs."

2) O grants Blackacre "to A; but if marijuana is inhaled on the premises, then to B and heirs."

I see both of these as attempting to create a fee simple subject to executory limitation, followed by a shifting executory interest. But RAP applies to both. The prof's power point slides say the same thing, and I get all that.

But then the prof's power point says about the first problem: "The son A’s purported executory interest violates the Rule Against Perpetuities, so it is struck out. This means O has a possibility of reverter."

And about the second problem: "B has an executory interest, but it violates the Rule against Perpetuities and is struck out. This leaves a fee simple in A."

How come the RAP forces the future interest created by the grant in (1) to become a possibility of reverter, but it basically deletes the future interested created by the grant in (2) and causes the present interest to become one in fee simple? Both grants created the same type of present and future interests, so why doesn't the RAP have the same effect?

In my experience it's best to work these things through one step at a time, to learn it well and avoid making mistakes.

Case 1:

O grants Blackacre "to Huxley College, as long as it is used for instructional purposes; then to my son A and his heirs."

Interests created: Fee simple to Huxley College. We see words of limitation, however, which means given the limited common law estates it must be a defeasible fee.

Is it a fee simple determinable or a fee simple subject to condition subsequent? Words to the effect of "for so long as" make FSD, words like "upon conditon that" or "provided that" make a FSSCS. Since it matches the first set of magic words, it's a fee simple determinable.

Are fee simple determinables subject to the RAP? Nope! So the grant to Huxley College does not violate the RAP.

Next interest: "then to my son A and his heirs." That would be a remainder if it came after a life estate, but here we see it cuts short another estate which makes it an executory interest. Uh oh, RAP battle!

Is it possible that the interest will vest 21 years after the death of some life in being? The answer is yes: the son could die tomorrow. 100 years later, the school could stop being used for instructional purposes. The grant would theoretically go to some form of heir of A, but all lives in being have been extinguished for quite some time.

The rule for violating the RAP is we strike the interest. We just cross out "to A and his heirs." Because O gave a fee simple determinable and there is now no mention of what happens upon, er, defeasment (that can't be a word) he must retain a property interest, in this case the possibility of reverter.

Groovy.

Problem 2:

O grants Blackacre "to A; but if marijuana is inhaled on the premises, then to B and heirs."

To A is a fee simple. Next we see words "but if". Same analysis above to classify the precise kind of defeasible fee. Here I'd say "but if" looks an awful lot more like a condition instead of a "so long as" type grant, so I would classify it as a fee simple subject to condition subsequent. "then to B and heirs" thus creates an executory interest, exactly like the above, and executory interests are subject to the RAP.

Is it possible under nearly identical circumstances to violate the RAP, so we strike the clause that violates the future interst which is "but if marijuana is inhaled on the premises, then to B and heirs".

I'm about 80% sure that's the answer, and thus the answer to your question is "in the first example, there was an entire valid defeasible fee PRIOR to the RAP violation while in the second the words of limitation that created the defeasible fee themselves violated the RAP and were struck."

[Renzo]

What disco said.

[270910]

A little more clarification: the example shows a real world difference between the two types of defeasible fees, and why a condition subsequent can have a different effect than a fee simple determinable.

If you're looking for logic, you won't find much... the rules of construction of grants are notoriously talismanic, and the two kinds of defeasible fees are the prime example of 'legalese' where the grantor's intent is likely to be frustrated by the way the law has come to exist.

[SlipperyPete]

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[spondee]

My book says fee simple determinable and fee simple subject to a condition subsequent are the present interests created when the future interest is retained by the grantor. If instead the future interest is created in a grantee, then the present interested created is a fee simple subject to executory limitation.

This is correct.

[SlipperyPete]

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[270910]

Yep, that's exactly what I attempted to say above.

[Grad_Student]

I love property