Possessory estates and future Interests

 Possessory estate: The party that holds the right to take actual possession of the
property right now
 Future Interest: The party who holds the right to take actual possession of the property
in the future (when the prior estate ends)
Instruments Used to Create Possessory and Future Estates
 Deed: (creates legal possessory estates and future interests)
 Trust: the trustee hold legal title and the trust beneficiaries hold the equitable interest
in the trust property. (Creates equitable possessory estates and future interests)
Proper Analysis of Possessory estates
1. Identify who holds the possessory estate
2. Identify which possessory estate has been created based upon its duration
Proper Analysis of Future Interests
1. Identify which future interest it is
2. Identify who holds it
3. Indicated the duration of the future interest (how long the party has the right to possess
the property once it becomes possessory)
Transferability, Devisability, and Inheritability
 Transferable: if , while the owner of the interest is alive, can transfer to a third party
 Devisable: if, upon the owner’s death, he/she can freely will it in his/her last will or
testament to a third party
 Inheritable: if heirs of the owner of the interest can inherit the property interest if the
owner dies without a valid will

Fee Simple Absolute

 When someone owns property, without qualification
 It lasts forever
 There is no future interest (no one presently has the right to possess the property in the
future)
 No inherent condition/restriction limiting how the owner can use the property
 While the owner is alive, they have the right to transfer the property freely to
whomever he/she wishes
 In the event that the owner dies without devising the property, it will pass to the heirs
 Is freely transferable, devisable, and inheritable
Drafting a FSA
 O  A and her heirs

Fee Simple Defeasibles

 May last forever
 The words immediately following the words of purchase typically are the words of
limitation which help indicate which possessory estate is being conveyed
  Wording of the conveyance is NOT absolute, but rather is qualified by a restriction or
condition
 The possessory estate may last forever (if the condition or restriction never occurs), but
the possessory estate may end (if the condition or restriction occurs)
Drafting an FSD
 Example: OA and her Heirs, but if A sells alcohol on the land, the O had the right to re-
enter and reclaim the land.
Three types of FSDs:
1. Fee simple determinable
2. Fee simple subject to a condition subsequent
3. Fee simple subject to an executory limitation
Distinguishing between the three:
1. Who holds future interest?
A. If held by grantor:
i. Fee Simple Determinable
(1) If the grantor’s intent is to terminate the fee simple automatically the
moment the express qualifying condition occurs
(2) Future interest=reverter in Fee Simple Absolute
(3) Phrases:
(a) “To A and her heirs as long as/so long as…” “until” “during” “while”
ii. Fee Simple Subject to Condition Subsequent
(1) If the grantor’s intent is NOT to terminate the possessory estate
automatically the moment the qualifying condition occurs, BUT rather to
give the grantor the Option to Terminate—right to enter and reclaim the
property (called: “right to enter” or “power of termination”)
(2) Future interest=right of entry/power of termination in Fee Simple
Absolute
(3) Phrases:
(a) “To A and her heirs but if…” “however, if…” “provided that…”
B. If held by third party:
i. Fee Simple Subject to an Executory Limitation
(1) Example: O  A and her Heirs, but if A sells alcohol on the land, then to B
and his Heirs.
(2) Fee simple subject to an executory limitation terminates automatically
upon the occurrence of the expressed condition subsequent
(3) Future interest=executory interest in Fee Simple Absolute
C. If no expressed language is indicating to whom future interest is granted, it is by
default the grantor
2. All three are freely transferable, inheritable, and devisable

Finite Estates
 Must End
 None of the Finite estates include “fee simple” or “and her heirs” in its name
Distinguishing between the Three Finite Estates:
1. LIFE ESTATE:
A. Lasts for the duration of the grantee’s life
B. O  To A for life.
C. In Common Law this is also the default estate: the estate which results if the grantor
fails to draft properly any of the other possessory estates
D. A grantee can transfer his life estate inter vivos. IF transferred, the
grantee/transferee holds the life estate pur autre vie: a life estate measure by the
life of another
E. NOT devisable or inheritable. It is transferable, but can only transfer for the duration
of one’s life
2. FEE TAIL
A. A serious of potential life estates
B. A life estate to the immediate grantee and, upon his death, a life estate to his
children, and upon each child’s death, a life estate to that child’s children, and so on
until there are no more “children”
C. O  To A and the heirs of her body, then to B and the heirs of his body
D. Neither devisable nor inheritable. Can only transfer for the duration one has.
E. Grantor can limit the eligible heirs of the body:
i. FEE TAIL MALE: O  To A and the male heirs of her body
3. TERM OF YEARS
A. The express language of the conveyance establishes a finite duration which is
calculable on the day the interest is created—the end date must be capable of being
determined on the first day the interest becomes possessory.
B. Freely transferable, devisable, and inheritable.
C. Examples:
i. O  To A for 5 years
ii. O  To A from Jan. 1, 2006 until Dec. 31, 2010
iii. O  To A for 180 days starting today.
Future interests:
 If grantor holds the future interest it is a reversion
 If a third party holds the future interest it is a remainder

Remainders: Vested v. Contingent

Test for Vested Remainders:
1. A remainder is vested if (1) the remainderman (the party who holds the remainder) is:
A. Born and
B. Ascertainable (i.e. can be identified by personal name) and
C. There is no express condition precedent, in the same clause creating the remainder
or the preceding clause. (A condition precedent is one which typically must be
satisfied before the remainderman can take actual possession)
2. The remainder must satisfy all 3 requirements or it is a contingent remainder
Born and Ascertainable
  Example: O  To A for ten years, then to whomever is the President of the U.S.A.
- This is born but NOT ascertainable. The President is obviously born but the personal
name is not identifiable)
No Express Condition Precedent
 If there is such an express condition precedent, then remainder is contingent until the
condition is satisfied
1. Qualifying Condition must be a Condition Precedent/Subsequent
A. Both MUST set forth in the express words of conveyance which must be satisfied
before the holder can claim the right to possess the property. The express condition
precedent must be set forth in the same clause creating the remainder or the
preceding clause.
B. A condition precedent is a condition that applies to an interest before it becomes
possessory. Must be satisfied before the remainderman has the right to claim
actual possession.
1. “if” typically introduces a condition precedent
2. MUST set forth in the express words of the conveyance which must be satisfied
before the holder can claim the right to possess the property.
3. Contingent remainder
i. O  To A for life, then to B and his heirs if he gets married.
C. A condition subsequent is a condition which applies after the interest becomes
possessory
1. Most common is Fee Simple Defeasible
2. O  To A for life, then to B and her heirs as long as she farms the land
organically.
3. Usually introduced with “as long as” “while” “until”
Remainder’s in Fee Simple:
 Anytime there is a contingent remainder in fee simple, the must be someone to take the
property in the event that the contingent remainder fails to vest in time. Where there is
not express party to take in case the contingent remainder fails to vest, the default
taker is the original grantor.
 Example: O  A for life, then to B and her heirs if B graduates Law school.
- A has a life estate
- B has a contingent remainder in fee simple, and
- O has a reversion in fee simple
- If B failed to graduate law school before A’s death than the contingent remainder is
destroyed
Alternative Contingent Remainder
 Alternative Contingent Remainder arises where the conveyance sets forth 2 contingent
remainders, with the second expressly contingent on the first failing to vest.
 Example: O  To A for life, then to B and her Heirs if she graduates from law school, but
if she fails to graduate from law school, then to C and his heirs.
- A has life estate
- B has contingent remainder in fee simple
- C has (alternative) contingent remainder in fee simple absolute
  Can be worded like above or “…if B graduates law school, otherwise to C and his heirs”
Premature Termination of Finite Estate:
1. Forfeiture:
A. During Common Law, it is the punishment if the tenant committed certain crimes
B. Forfeiture terminated the life tenant’s estate interest in the property
C. If the contingent remainder had not vested prior to or at the moment of forfeiture,
the contingent remainder was destroyed, and the grantor’s reversion would become
possessory
2. Renunciation
A. A life tenant can voluntarily renounce their interest in the life estate at any time
during the life estate
B. If the contingent remainder has not vested by the time of, or at the moment of,
renunciation, the contingent remainder will be destroyed under the rule of the
destructibility of contingent remainders
3. Merger
A. If the same party holds successive vested interests, the interests should be merged
and re-identified based upon the largest estate created by the merger
B. Applies only to vested interests and the vested interests must be successive and held
by the same party
Application to the Alternative Contingent Remainder
 Anytime there are alternative contingent remainders, if the preceding finite estate ends
prematurely (through merger, renunciation or forfeiture), only the reversion or the first
possessory estate can become possessory.
 If the first contingent remainder has not vested prior to or at the moment the finite
estate ends prematurely, both of the contingent remainders are destroyed and the
reversion becomes possessory.
 If, on the other hand, the first contingent remainder has vested by the premature
termination of the preceding finite estate, upon the vesting of the first contingent
remainder, the alternative contingent remainder and the reversion are destroyed.
 If the preceding finite estate ends naturally, one of the two alternative contingent
remainders will become possessory and the reversion will be destroyed
- Which of the 2 contingent remainders will become possessory depends upon
whether the first contingent remainder vests prior to or at the moment of the
natural expiration of the preceding finite estate.
Alternative Contingent Remainder Look-Alike
 Where the first contingent remainder is not in fee simple, there can be an express gift
over to a third party in fee simple which eliminates any need for a default reversion in
the grantor
 O  To A for life, then to B for life if she graduates from law school, but if B fails to
graduate from law school, then to C and her heirs.
- A has life estate
- B has contingent remainder in life estate
- C has vested remainder in fee simple
- O has bubkis
Transferability, Devisability and Inheritability
Vested remainders
 Are freely transferable, devisable, and inheritable to extent permitted by the express
terms of the conveyance and/or the nature of the possessory duration of the future
interest
Contingent remainders
 Common law: not transferable BUT are devisable and inheritable to the extent the
nature of the express condition precedent and the duration of the future interest
permitted
At common law, all possessory estates and future interests were transferable, devisable, and
inheritable to the extent permitted by the nature of the estate (i.e., its duration), with the
exception of (1) the possibility of reverter and right of entry/power of termination, which were
not transferable or devisable, and (2) the contingent remainders and executory interests, which
were not transferable

Alternative Approach to Analyzing Conveyances: Lead with the Parties

A slightly different approach is to identify all of the parties named in the conveyance who could
have a property interest in the conveyance (including the grantor) and list them.
Example: O  To A for life, then to B for life, then to C and the heirs of his body.
 There are four parties who could possibly hold an interest: A, B, C, & O
 Identify the property interest of each, if any:
- The first party will have one phrase describing her property interest and all other
parties will have two phrases describing their property interest: (1) the name of
the future interest and (2) the duration of future interest
- A: holds a life estate
- B: holds a vested remainder in life estate
- C: holds a vested remainder in fee tail
- O: holds a reversion in fee simple absolute

Variations on the Executory Interest

Shifting vs. Springing Executory Interests
 When there is a Fee Simple Subject to Executory Limitation, the future interest held by
the third party is a shifting executory interest (in fee simple)
 Where, however, the underlying fee simple defeasible is held by the grantor, the future
interest is called a springing executory interest
- Usually occur in two types of conveyances: (1) the “future interest only”
conveyance, or (2) the “gap” scenario conveyance
Springing Executory Interests
A. The “Future Interest Only” Conveyance
Drafting a conveyance where the grantee identified first takes a future interest, not a
possessory estate:
 Example: O  To A and his heirs if A is married
  A does not have the right to claim actual possession immediately after the conveyance.
There is an expressed condition precedent which must be satisfied before he can claim
the right to actual possession
 The grantee is taking a future interest, not a possessory estate. The conveyance is a
“future interest only” conveyance
 The grantor retains the right to possession until the expressed condition occurs
 The grantor had fee simple before conveyance, after conveyance it was fee simple
subject to executory interest (in fee simple)
 Because the right to possession will be taken from the grantor if the possessory estate is
cut short, the third party (grantee) holds a springing executory interest in fee simple
B. The “Gap” Scenario
The “gap” scenario arises when there is what appears to be a contingent remainder, but the
express condition precedent is on which nature cannot be satisfied before the end of the
preceding finite estate.
 Example: O  To A for life, then to B and his heirs if B attends A’s funeral.
 The expressed condition precedent (attending funeral) is one which by its nature cannot
be fulfilled during the preceding finite estate.
 There is a temporal “gap” between the end of the finite estate and the point in time
when the express condition precedent may be satisfied
 Pre-1536, the future interest following the “gap” type conveyance was null and void
 Post-1536, the “gap” type conveyance is a variation on the fee simple subject to
executory limitation with a Springing executory interest combination.
 Grantor holds a fee simple subject to an executory limitation, and the third party
(grantee) holds a springing executory interest in fee simple.
 Grantor will hold a reversion in fee simple subject to an executory limitation to cover
the gap, and the third party will hold an springing executory interest in fee simple
Vested Remainder Subject to Divestment
A conveyance in which a party who held a vested remainder could lose the right to possession
before he/she ever took possession of the property
 Example: O  To A for life, then to B and her heirs, but if A stops farming the land, then
to C and her heirs
 “If A stops farming” is an express condition precedent which, if it occurs, will shift the
right to possession from A to C, thereby destroying (or “divesting”) B’s vested remainder
 The vested remainder is said to be “subject to divestment” and the future interest
following a vested remainder subject to divestment is an “executory interest”
- A: holds a life estate
- B: holds a vested remainder in fee simple subject to divestment
- C: holds an executory interest in fee simple
A. The Requirement of a Vested Remainder
There is no chance that an estate is a vested remainder subject to divestment unless: (1) it is a
remainder, and (2) it is a vested remainder
 The preceding estate in the conveyance must be a finite possessory estate (typically a
life estate)
  If there is not preceding finite possessory estate, the express condition cannot be one
which could occur before the party takes possession
 Example: O  To A for life, then to B and his heirs, but if A sells alcohol on the land,
then to C and her heirs
- There is a preceding finite estate because the condition is one which must occur,
if at all, prior to B’s remainder becoming possessory, the remainder is a vested
remainder subject to divestment
B. Express Condition Precedent Requirement
The condition must be express condition precedent—not a condition subsequent.
 Example: O  To X for life, then to A and her heirs, but if X fails to maintain the
wetlands on the property, then to B and his heirs
 “But if X fails to maintain the wetlands” is a condition precedent
 Because A’s vested remainder is qualified by an express condition precedent in the
clause subsequent to the clause creating the remainder…
- A holds a vested remainder in fee simple subject to divestment
- B holds a shifting executory interest in fee simple
 It is an EXPRESS condition subsequent as well because it must be performed during X’s
life estate
C. Condition Precedent Must be in the Subsequent Clause
Expressed condition precedent MUST be in a clause subsequent to the clause creating the
remainder.
 If the express condition precedent is in the same clause as the clause creating the
remainder or a preceding clause, then the condition precedent makes the remainder a
contingent remainder.
 Where there is an express condition precedent, the remainder will either be a
contingent remainder or a vested remainder subject to divestment—there will not be a
contingent remainder subject to divestment.
D. Express Condition Which Can Be Either A Condition Precedent or Condition
Subsequent
A condition which could occur before the remainder becomes possessory and which could also
occur after the remainder becomes possessory. (Particularly true where the express condition is
not tied to the use of the land or the life of the party holding the preceding finite estate)
 Example: O  To A for life, then to B and her heirs, but if P marries G, then to C and her
heirs
- A holds a life estate
- B holds a vested remainder in fee simple subject to an executory limitation
- C hold a shifting executory interest in fee simple
E. Effect Upon the Preceding Finite Estate
Since this is an introduction, assume that the divesting condition only divests the vested
remainder and does not affect the underlying finite estate. (pp. 112-114)
 Distinguishing Condition Precedent from Condition
Subsequent from Divesting Condition
I. Revisiting the Condition Subsequent
A condition subsequent is a condition which affects a grantee’s right to retain possession of the
property after the grantee has taken possession.
II. Revisiting the Condition Precedent
A. Revisiting Contingent Remainders
A condition precedent is a condition which affects a grantee’s right to take possession of the
property before the grantee has taken possession of the property. (the defining characteristic of
the contingent remainder)
 A condition that must be satisfied before the grantee can take possession of the
property
 The condition precedent introducing a contingent remainder is either the same clause
creating the estate or in the immediately preceding clause
B. Revisiting the Divesting Condition
The divesting condition looks a lot like both of the other types of express conditions:
 O  To A for life, then to B and his heirs, but if A fails to graduate from law school, then
to C and her heirs.
- Classic example of a vested remainder subject to divestment
- The divesting condition is a condition precedent: B’s right to take possession is
dependent upon whether A graduates from law school, an event which must
occur during the A’s life estate
How is the divesting condition different than the condition precedent for purposes of a
contingent remainder?
 Different wording and structure of the conveyance
 In contingent remainder: the condition precedent is in the same clause creating the
remainder or the preceding clause and is typically introduced by the word “if”
 In the vested remainder subject to divestment: the condition precedent is in the clause
immediately following the clause creating the remainder and is typically introduced by
the words “but if” (above example)
III. RECAP
 The distinguishing characteristic of the fee simple defeasibles (the fee simple
determinable, fee simple subject to a condition subsequent, and the fee simple subject
to an executory limitation) is that there is a condition subsequent which affects the
grantee’s right to retain possession of the property after the grantee has taken
possession of the property
 The distinguishing characteristic of the contingent remainder is that there is a condition
precedent which affects the grantee’s right to take possession of the property before the
grantee has taken possession of the property. The condition precedent should be in the
same clause as the clause creating the remainder or in a preceding clause.
  The distinguishing characteristic of the vested remainder subject to divestment is that
the grantee’s right to take possession is subject to a condition precedent which is
expressed in a clause immediately following the clause creating the remainder.
 In distinguishing the vested remainder subject to an executory limitation and the vested
remainder subject o divestment, the key is whether the qualifying condition expressed
in the clause immediately following the clause creating the remainder is one which may
occur before the remainder becomes possessory (makes it a vested remainder subject to
divestment) OR if the condition is one which can occur, if at all, only after the remainder
becomes possessory (makes it a vested remainder subject to an executory limitation)

One Last Set of Estates: Life Estate Defeasibles

I. Overview
Because a life estate by definition must end, if a life estate may also be cut short, there are two
contingencies that must be dealt with:
(1) Who is going to get the right to possession if the life estate ends naturally;
(2) Who is going to get the right to possession if the life estate is cut short—if it ends
prematurely?
 Must determine if the express words of limitation cutting short the life estate are
determinable words of limitation or condition subsequent words of limitation.
II. The Life Estate Cut Short By Determinable Words of Limitation
If determinable words of limitation are used to cut short the life estate, the courts assumed
that the grantor intended for the same party to hold the future interest whether the condition
occurs or not
 O  To A for life as long as she remains unmarried
- Because A’s life estate could be cut short if she marries, there are two possible
points where the future interest could become possessory: (1) if the life estate
ends naturally; or (2) if the life estate ends prematurely with A’s marriage.
- All that is added is the word “determinable” to the life estate to indicate that it
could end prematurely
- A holds a life estate determinable
- O holds a reversion in fee simple absolute
III. Life Estate Cut Short by Condition Subsequent Words of Limitation
If the express words of limitation introducing the condition which may cut short a life estate are
the ‘subject to condition subsequent’ phrases (“but if”), the key becomes who holds the future
interest.
 If ‘condition subsequent’ words of limitation are used to cut short the life estate, and
the future interest is held by the grantor, add the phrase ‘subject to condition
subsequent’ to the life estate to reflect that it may be cut short
 O  To A for life, but if he marries, then to O and his heirs
- A holds a life estate subject to condition subsequent
- O holds a reversion in fee simple
BUT if the condition subsequent words of limitation are used (‘but if’) and the express future
interest is in a THIRD party, a COMPLETELY different analysis is preformed.
  The courts construe this combination as indicating that the third party was to take the
future interest ONLY if the life estate was cut short, and if it ended naturally, the grantor
retained the future interest.
 O  To A for life, but if he marries, then to B and his heirs
- A holds a life estate subject to an executory limitation
- B holds a shifting executory interest in fee simple
- O holds a reversion in fee simple absolute

Miscellaneous Common Law Rules Regulating Conveyances

I. Overview
There were two conveyances which grantors used in attempt to avoid the dreaded inheritance
tax but common law courts responded by creating special rules that countered, and defeated,
these attempts at avoiding inheritance tax.
II. Rules Furthering the Common Law Inheritance Tax
A. The Rule in Shelley’s Case
One loophole to inheritance tax was by not conveying the A with A’s heirs inheriting the
property BUT by conveying to A and an expressed conveyance in remainder to A’s heirs:
 O  To A for life, then to the heirs of A and their heirs
Common Law courts saw through this and adopted the Rule in Shelley’s Case”
 If a life estate is given to a grantee, and in the same instrument a remainder is given to
the life tenant’s heirs, give the remainder to the life tenant
 So in the above example:
- A has a life estate
- A’s heirs have a contingent remainder in fee simple; and
- O has a reversion in fee simple
LIMITATIONS IN THE RULE IN SHELLEY’S CASE:
1. The rule applied only if the remainder is given to the heirs of the life tenant in the same
instrument as the instrument creating the life estate
2. It applies only if a remainder is given to a life tenant’s heirs. Rule does not apply if an
executory interest is given to a life tenant’s heirs:
- O  To A for life, then one day after A’s death, to A’s heirs and their heirs
- “gap” scenario
- A holds a life estate
- A’s heirs hold a springing executory interest in fee simple
- O holds reversion in fee simple subject to an executory limitation
- Because there is not remainder, Rule does not apply
3. Applies only if the life tenant’s heirs must hold the remainder
- O  To A for life, then to A’s children and their heirs
- The remainder is held by A’s children, not A’s heirs so Rule does not apply
IF RULE IN SHELLEY’S CASE DOES NOT APPLY: the merger doctrine often applies, but not always
 O  To A for life, then to B for life, then to A’s heirs and their heirs
- A holds a life estate
- B has vested remainder in life estate
 - A’s heirs hold a contingent remainder in fee simple
- O has reversion in fee simple
 BECAUSE the heirs of one of the life tenants, A are taking a remainder, give the
remainder to the life tenant. Restate the title:
- A has life estate
- B has a vested remainder in life estate
- A has vested remainder in fee simple
- B prevents the merger
 According to the Rule in Shelley’s Case, if there is a remainder in the heirs of a life
tenant, give the remainder to the life tenant (and check if merger applies)
B. The Doctrine of Worthier Title
In order to avoid inheritance tax, O could expressly convey the future interest directly to O’s
heirs:
 O  To A for life, then to the heirs of O and their heirs
- A has life estate
- O’s heirs have a contingent remainder in fee simple
- O has reversion in fee simple
Common Law closed this loop hole by creating The Doctrine of Worthier Title:
 Applies to any future interest (remainder or executory interest) given to grantor’s heirs
 If an instrument conveys a possessory interest to a third party and the same instrument
purports to give a remainder or executory interest to the grantor’s heirs, give that future
interest to the grantor (and check for merger)
III. The Rule in Purefoy’s Case
Where an interest can be construed as either a contingent remainder or an executory interest,
construe it as a contingent remainder.
 O  To A for life, then to B and his heirs if B graduates from law school
- A has life estate
- B has contingent remainder in fee simple
- O has reversion in fee simple
 The rationale behind the Rule in Purefoy’s Case is that favoring the contingent
remainder construction would mean that there was a chance that the interest would be
destroyed, thereby cleaning up the state of the title and promoting the productive use
of the land and its marketability.

Class Gifts
I. Overview
A conveyance can be more than one person or even to a class of individuals
 O  To A and B and their heirs
- A & B hold the property concurrently in fee simple absolute
II. Analysis
Three parts of vested remainders: (1) grantee is born, (2) is ascertainable, (3) no express
condition precedent
 O  To A for life, then to B’s children and their heirs
 - A has life estate
- B’s children have remainder in fee simple absolute
- Is remainder vested or contingent?
 Assume B has no children yet:
- Remainder is contingent and O has reversion in fee simple
 Assume B has one child, X:
- Vested
- Where there is a remainder to a class, once at least one class member vests, the
remainder becomes vested. BUT if the class is such that more individuals can
enter the class, the remainder is classified as “vested subject to open”
- Remains open until class closes
III. Closing the Class
A. Naturally/Physiologically
Two basic ways for class to close:
First, when it is impossible for new members to enter the class
 Common law presumes that individuals are fertile until death (physiological)
B. Rule of Conveyance
Second method is by the rule of convenience:
 A convenient rule the common law created to avoid a number of potentially difficult
legal and administrative questions
 Once one member of a class is entitled to take actual possession of the property, the
class closes
A class conveyance can be coupled with an express condition precedent:
 O  To A for life, then to B’s children who survive A and their heirs.
- Assume A is alive, B is alive, and B has two children, X & Y
- A has life estate
- The is an express condition precedent that only those children of B who survive
A are entitled to the property

Rule Against Perpetuities

I. Overview
The scheme of possessory estates and future interests gives a property owner the ability to
control, to some extent, the property even after conveying the property to another.
 O  To A and her heirs as long as the land is farmed, then to B and her heirs
- A has fee simple subject to executory limitation
- B has shifting executory interest in fee simple
 Common law realized that there had to be a limit on such control by a grantor or the
property might not be put to its best use, and society in general would suffer
The courts concluded that contingent remainders, executory interests, and vested remainders
subject to open had to “vest”, if at all, within the “lives in being” plus twenty-one years or the
future interest in question was void form its attempted creation.
II. The Create, Kill, and Count Approach
 Rule against Perpetuities applies only to:
 (1) Contingent remainders
(2) Executory interests, and
(3) vested remainders subject to open
 Vest = the right to become possessory
 “no later than 21 years…” = how long future interests may tie up the property
- The lives in being at the creation of the interest plus 21 years
- The perpetuities period comes into play and is applied to the future interest, the
moment the future interest is created
If you can conceive of 1 possible scenario, no matter how implausible, where the interest could
vest but only after the lives in being plus 21 years, the interest violates the Rule against
Perpetuities
CREATE, KILL, and COUNT:
1. Create someone in whom the interest can vest, but only after the perpetuities time
period
2. Kill everyone who is still alive at the time of the conveyance
3. Count 21 years
 If it is conceivable, no matter how absurd the scenario sounds, that one of the parties
created can claim possession of the property under the future interest, BUT only after
the lives in being plus 21 years time has expired—then the Rule against Perpetuities has
been violated and the interest is void from the moment of its attempted creation
A. Contingent Remainders
O  To A for life, then to A’s first child to reach age 25 and his or her heirs
 Assume A has 2 children: B is 23 and C is 20
 A has life estate
 A’s first child to reach 25 has a contingent remainder in fee simple
 O has reversion in fee simple
Is there a future interest subject to Rule against Perpetuities?
 Yes, the contingent remainder
Does this violate the RAP?
 Yes, if A has another child, and A, B, & C die, then in 21 years, the new child would only
be 21 (Applied Create, Kill and Count approach)
Another Example:
O  To A for life, then to B and her heirs if B reaches age 25 (B is 23)
 Can you create someone who would be eligible to claim property? No
 If you cannot create someone who will be eligible to satisfy the condition, then you
cannot create a scenario which violates the Rule and the interest must be valid
 If the condition is expressly tied to a named person who is alive, as opposed to a
generically-described person, the interest will not violate the Rule against Perpetuities
Example with 2 contingent remainders:
O  To A for life, then to A’s oldest child who survives A for life, then to A’s oldest grandchild
then living and his or her heirs
 Assume A is alive and has 2 children: B age 45 and C age 50
 A has life estate
  A’s oldest child who survives A has a contingent remainder in life estate
 A’s oldest grandchild who survives A’s oldest child who survived A has a contingent
remainder in fee simple
 O has reversion in fee simple
 With the first contingent remainder (child):
- No scenario in which we can delay the vesting of the interest until after the lives
in being plus 12 years. Cannot create “create, kill, and count” approach scenario
so interest is VALID
 With the second contingent remainder (grandchild):
- We can create a new child for A, child X, kill all lives in being, count 21 years, and
envision a scenario in which X has a child Y, which would be A’s grandchild.
- When X dies thereafter, the second contingent remainder would vest in Y, but
only after the running of the lives in being plus 21 years time period.
- Because we can create a scenario under the “c, k, and c” approach were the
interest vests but only after the perpetuities time period, interest is VOID
When contingent remainders are stacked one after the other, the second remainder typically
will be void UNLESS it vests upon the first contingent remainder becoming possessory.
B. Executory Interests
Four different scenarios in which there may be an executory interest:
1. Following a fee simple defeasible where the future interest is in the third party
 where the executory interest follows a fee simple subject to an executory interest
will almost always violate the Rule against Perpetuities unless the restricting
condition is expressly tied to a life in being (pp. 188-191)
2. Following a “future interest only” conveyance
 Most “future interest only” conveyances will not violate the RAP because the
express condition typically is tied to a life in being.
o Example: O  To A and her heirs if she graduates from law school
o Tied to A, the “life in being”, and can never violate RAP
 Where an express condition is not tied to a life in being, the executory interest
typically will violate the RAP
o Example: O  To A and her heirs when a woman is elected President of
US
o It is conceivable that if a heir is created and everyone is killed off that in
21 years there still will not have been a woman president. VOID
3. Following a vested remainder subject to divestment
 Where the vested remainder subject to divestment follows a life estate, and the
divesting condition must occur, if at all during or upon expiration of the life
estate, the executory interest cannot violate the RAP
o Example: O  To A for life, then to B and his heirs, but if A sells alcohol
on the land, then to C and her heirs
o A has life estate, B has vested remainder in fee simple subject to
divestment, & C has a shifting executory interest in fee simple
 o The divesting condition is tied to the life tenant and it is impossible to
delay the vesting until after the lives in being plus 21 years
 Where the divesting condition is one which may occur during the preceding
estate, but may not occur until after the vested remainder has become
possessory, UNLESS the divesting condition is tied to a life in being, the
executory interest will violate RAP and be VOID
4. Following the “gap” scenario
 The RAP is typically not a problem where the “gap” is solely an express time
period less than 21 years
o Example: O  To A for life, then 1 year after A’s death, to B and her heirs
o 1 < 21 = no problem
 Where the “gap” is tied to an event, if the occurrence can be delayed, there will
be RAP problems
o O  To A for life, then 1 year after the election of a Green Party
candidate as President of US, to B and her heirs
o B’s executory interest is subject to RAP
o You can create, kill, and count and still not have an elected Green
President after 21 years
C. Class Gifts
If you can create one scenario where one class member vests, but after the lives in being plus 21
years from the date of the creation of the conveyance to the class, the interest is void.
 For purposes of RAP, the class must close, and if there is an express condition
precedent, all members of the class must satisfy the condition precedent, within the
lives in being plus 21 years
 Where there is no express condition precedent, there is only on class gift remainder after
a life estate, and the identified class does not skip a generation, there is no RAP problem
- Example: O  To A for life, then to A’s children and their heirs
- The contingent remainder in A’s children is subject to RAP but because the class
will close upon A’s death and there is not express condition precedent, there is
no RAP problem
 If there is only on class gift remainder after a life estate, there is no express condition
precedent, but the description of the class skips a generation, the class interest typically
will violate the RAP
- Example: O  To A for life, then to A’s grandchildren and their heirs
- A’s grandchildren’s remainder is subject to RAP
- Create new child for A: X, kill everyone, count 21 years
- Is it possible that after 21 years X could have A’s grandchild? YES
- INVALID
 When there is no express condition precedent, but stacked contingent or vested
remainders, the RAP problem is with the second contingent remainder or vested subject
to open remainder.
 - Example: O  To A for life, then to B’s children for life, then to B’s grandchildren
and their heirs (Assume: A and B alive, B has 4 children (K-N) and 2
grandchildren (R & S))
- The first contingent remainder is in one of B’s Children. If you create a new child
and kill everyone else, it would not take more than 21 years for it to vest so
VALID
- The second contingent remainder is in the grandchildren. If you create a new
child and grandchild and kill everyone else, it IS possible that it would take more
than 21 years for the new child to die and to pass it to the grandchild, sooo…
INVALID.
 A remainder to a class which contains an express condition precedent which can take
more than 21 years to satisfy has potential to have problems with RAP
- Example: O To A for life, then to B’s children who reach age 30 and their heirs
- If you create a new child for B and kill everyone else, it would take more than 21
years for that new child to turn 30, sooo…. INVALID
 If express condition precedent for the class is one which must be satisfied if at all within
21 years, then there is no RAP problem
- Example: O  To A for life, then to B’s children who reach age 20 and their heirs
- New child would turn 20 in under 20 years so it is VALID