Real Property · Rule Against Perpetuities

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MBE Real Property: Rule Against Perpetuities

An overview of the Rule Against Perpetuities as tested on the MBE, including key rules, common question patterns, and practice questions.

Overview

The Rule Against Perpetuities (RAP) is a legal doctrine that prohibits the locking up of property interests for an excessively long period. Under the common law, an interest must vest, if at all, within a period that does not exceed twenty-one years plus the life of a measuring life at the time of the interest's creation. This doctrine aims to ensure that property is freely transferable and not encumbered by uncertain future interests, thus promoting marketability and preventing property from being frozen in time.

The RAP applies to future interests, such as contingent remainders and executory interests, and is critical in evaluating whether such interests comply with the rule. When examining questions on the MBE, candidates must identify the key components of the RAP, including the identification of potential lives in being and the determination of whether the interest can vest within the permissible time frame set by the rule. Given its complexities, this rule remains a frequent topic on the exam, often presented through intricate fact patterns that test candidates' ability to apply the rule effectively.

Key Rules
  1. An interest is invalid if it may vest more than 21 years after the death of a relevant life in being.
  2. A life in being must be a person who is alive at the time the interest is created.
  3. The common law RAP applies to contingent remainders and executory interests.
  4. Interests created in violation of the RAP are void ab initio (from the beginning).
  5. Charitable trusts are not subject to the Rule Against Perpetuities.
Common Question Patterns
  • Combining fiction with reality to identify lives in being and their relation to future interests.
  • Evaluating whether a future interest will definitely vest or not within the RAP time frame.
  • Using hypothetical scenarios to test understanding of the RAP's exception clauses.
Practice Questions

1. A grants Blackacre to B for life, then to B's children who reach 21. What happens under the RAP?

A. A) The grant is valid.

B. B) The grant violates the RAP.(Correct)

C. C) Only B's children who are 21 at the time of B's death get the land.

D. D) The grant is valid if no children under 21 exist.

Explanation: The interest to B's children is contingent upon them reaching 21, which may occur after B's lifetime plus 21 years, thus violating the RAP.

2. T conveys property 'to my heirs who reach the age of 25 but no later than 30 years after my death.' Is this valid under the RAP?

A. A) Yes, it's a valid interest.

B. B) No, it violates the RAP!(Correct)

C. C) Yes, it only affects T's life.

D. D) No, it’s uncertain.

Explanation: The vesting of the interest is conditional on reaching 25, which could exceed 21 years after T's death, thereby violating the RAP.

3. If a future interest must vest within 20 years after the death of a person, is it valid under the RAP?

A. A) Yes, it's valid.(Correct)

B. B) Only if the person is living.

C. C) No, it's too ambiguous.

D. D) Valid if there are clear vesting instructions.

Explanation: If the future interest can vest within 20 years after a life in being, it complies with the RAP and is valid.

4. A creates a trust for B for life, then to B's descendants for 21 years after the end of B's life. Is this valid?

A. A) Yes, it’s valid.

B. B) No, it violates the RAP.(Correct)

C. C) It depends on B's previous actions.

D. D) Invalid if B has no descendants.

Explanation: The interest to B's descendants could span beyond 21 years after B's life, thus violating the RAP.

5. A property is to be held in trust for 'the life of Sarah, and then to her children living at that time.' What does this mean in relation to the RAP?

A. A) The trust vests immediately.

B. B) It could potentially violate the RAP.(Correct)

C. C) It's valid because it is life-based.

D. D) Valid until children no longer exist.

Explanation: The interest may not vest until the death of Sarah plus the possibility of waiting for children, which may exceed the RAP period.

Test-Taking Tips
  • Carefully identify the measuring lives and analyze the timing and conditions for vests.
  • Break down complex fact patterns into simpler components to evaluate the RAP applicability.
  • Practice applying the RAP under varying scenarios to strengthen your understanding of exceptions.

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