Property Law
Rule Against Perpetuities
Boston College Law School
November 28, 2005
Rule Against Perpetuities
• Policy interests
– Prevent “dead hand control”
• Restrictions on current use of property
• Ability to move property to more valued use
– But enable some ability to control grants
Rule Against Perpetuities
• Rule
– “No interest is good unless it must vest, if at all, no
later than 21 years after the death of a life in being at
the creation of the interest”
• Example
– O to A, so long as used as a hospital, then to B
– May vest more than 21 years after O, A & B dead
Rule Against Perpetuities
• Applies to:
– Contingent third-party interests
• Executory interests (“O to A, so long as used for hospital, then to B”)
• Contingent remainders (“O to A for life, then to B if B graduates”)
• Vested remainders subject to open (“O to A for life, then to A’s children”)
• Options
• Does not apply to:
– Vested interests
• Reversions (“O to A for life”)
• Vested remainders (“O to A for life, then to B”)
• Vested remainders subject to divestment (“O to A for life, then to B, but if ...”
– Contingent interests in the grantor
• Possibility of Reverter (“O to A, so long as used for a hospital”)
• Right of Re-entry (“O to A for use as hospital, but if not, then B has right …”
Rule Against Perpetuities
• Elements of rule
– “must vest if at all”
• Invalid if any possibility that might vest outside time
• Does not matter if actually vests within time
– “within 21 years of death of life in being at time
of grant”
• Look to lives mentioned in the grant
• Corporations have no “life”
Rule Against Perpetuities
• Examples
– “O to A, so long as used for hospital”
– “O to A, so long as used for hospital, then B”
– “O to A for life, then to B if B graduates”
– “O to A for life, then to B, but if B marries C, then the
property reverts back to O”
– “O to A for life, then to the children of B”
– “O to A for life, remainder to the first daughter of A to
become president of the U.S.”
Rule Against Perpetuities
• Consequence: strike offending language
• Potentially different consequences
– “O to A for residential purposes, then to B”
• Becomes “O to A for residential purposes”
– “O to A, but if for non-residential purposes,
then to B”
• Becomes “O to A”
Rule Against Perpetuities
• Modifications
– Wait and See Approach
• Wait to see if interest actually vests w/in time period
• E.g. “O to A for use as hospital, then B”
– Uniform Statutory Rule Against Perpetuities
• Like wait and see approach
• Except use 90-year period from grant
– Statutory Cut-offs for Grantor Rights
• Possibility of reverter
• Right of re-entry
– Marketable Title Acts
Next Assignment
• Finish IV.D.3 – Rule Against Perpetuities