Waltzing to R.a.p

• Publication year: 2022

39 Creighton L. Rev. 129. WALTZING TO R.A.P

Creighton Law Review

Vol. 39

DARRYL C. WILSON(fn*)

"One, two, three, Step, two, three, Turn, two, three. . . . "

"No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."(fn1)

Many of you recognize the latter quotation as the classic statement of the Rule Against Perpetuities (R.A.P.) stated by Professor John Chipman Gray.(fn2) The first quotation may also be recognizable to any of you who like myself spent any time learning formal ballroom dancing steps such as the foxtrot and the waltz.(fn3) The counting was frequently interrupted by an admonition that some of us less serious lads would soon find ourselves out of the program. However, this minor extension of the old two-step, more formally known as the waltz, was ultimately mastered by us all, albeit with a bit more grace by some individuals than others.

In hindsight, mastery of the waltz took relatively little time, though it did require a concentrated effort. Whether discussing the R.A.P. of Professor Gray or any other rap from current variations on the theme, it is safe to say that a workable appreciation requires the same type of time and effort referenced above.(fn4) Hopefully, this Article can assist readers in applying a system of three step approaches to Professor Gray's R.A.P. that will leave him or her literally dancing with joy from the excitement of adding this selection to their repertoire.(fn5)

If this introduction fails to come across as music to your ears, I ask that you stick with it for a while and try to feel the groove if you will. I never thought I would find myself writing an article on the R.A.P., however after seeing various publications advocating everything from planes to trains and automobiles as a means of explaining the rule I thought why not add my own spin to the hit list.(fn6) Thus, give it a listen and see if it adds to the veritable cacophony of exhortations or instead soothes the savage beast that the R.A.P. itself is so often portrayed to be.

The time spent addressing the R.A.P. as part of the greater study of real property is probably the highlight of many law students' educa-tional endeavors. "But seriously folks," this Article takes a very brief look at the common law real property rule(fn7) and hopefully demystifies its meaning, simplifies its application, and verifies the sour notes that students have been singing about it are really a bum rap.(fn8) Shall we dance?

PROPERTY 101

The first problem associated with the R.A.P. is that most students do not truly understand the context in which it is normally taught. Of course, this lack of understanding may be due to the perceived or real deficiencies of the professor as well as the timing of the rule's introduction. The rule is often introduced to first year law students, during their first semester when they have been in law school about two months.(fn9) In property, students' ability to understand the subject depends on their ability to grasp concepts involving competing interests that stand apart from the tangible thing (res) itself.(fn10) Many students are simply too overwhelmed with the law school experience as a whole to feel comfortable in applying these theoretical, yet necessary, basic abstractions so soon in their graduate studies. This need for conceptual severability is something most students are facing for the first time or at least the first time since they took the Law School Admissions Test (LSAT).(fn11)

The rule against perpetuities is generally taught as a subsection of an area called estates in land and future interests.(fn12) Estates and future interests refer to a figurative portion of title to property held by various parties at any given instant in time.(fn13) At any given time, one or more individuals may share the present estate in a given piece of land or hold one or more future interests.(fn14) For instance, many of you come from families in which your parents own the family home. The parents own the present estate in the property. You may be designated in the deed or trust document passing title to the parents to become the owner after they pass. Someone reading that document would identify you as the future interest holder. A parcel of land can only have one present estate and the sum of the present and future interest in property always equals the total interest available, something legally known as the fee simple absolute.(fn15)

WHAT'S REALLY UNDER R.A.P.

A constant theme throughout the property course is an attempt by certain societal powers to hoard property, and hence wealth, for themselves and their families. These powers are forever locked in battle with those who would ensure that property is always available to those wishing to make the highest and best use of it.(fn16) The R.A.P. originated as one of many approaches developed by lawmakers to achieve this goal.(fn17) To this end, the rule is applied to certain property that is initially transferred in an overly binding manner, in effect nullifying the original transfer and changing the status of the property so that it is once again freed for use in society. For example, if Oscar transferred property "to Abner as long as the property is never used as a disco, then to Bill," the chance of Bill receiving the property may appear patently remote.(fn18) Abner may have the property as long as he or any of his heirs live or transfer his interest in the property to some other specific individuals, all of whom adhere to the restriction. Bill may die before the property is used as a disco. In fact, the property may never be used as a disco. Applying the rule wipes out Bill's interest as well as the restriction, thus making it easier for Abner personally or his assigns and successors to make better use of the property.(fn19)

With the foundation set on the basis of the rule and what it seeks to accomplish, one can move to an analytical approach premised on simple core questions. Whenever there is an alleged bum rap afoot, it is necessary to either dispute or justify the characterization based on the surrounding circumstances. Nothing is as basic as who, what, where, when, and how. In discussing the R.A.P., the why is the availability concern set forth above.(fn20) The who is the parties typically identified in the transfer.(fn21) The what is the interest in property mentioned in the document of transfer.(fn22) It is the where, when, and how that demand special attention. A proper evaluation requires a sharp focus on the language of the transaction.(fn23) Since the rule against per-petuities destroys certain transfers we need to know if a given transfer is in fact subject to the rule.(fn24) The primary characteristic of a potentially susceptible transfer is that it be conditional in some respect.(fn25) In applying the R.A.P., one looks for conditional language in a transfer and asks where, when, and how it will occur.(fn26)

To answer these core questions one finds what is known as the validating life.(fn27) In introductory materials to the R.A.P., the condition and the validating life are usually inextricably intertwined.(fn28) Thus, we need to specifically address this elusive and sometimes illusory, being.(fn29)

THE VALIDATING LIFE: THE WAITING IS THE HARDEST PART

Students and experts agree that the greatest difficulties with the rule against perpetuities involve the attempt to find the validating (a.k.a. measuring) life.(fn30) Students constantly search for the equation that will allow them to "find the validating life every time." These efforts are routinely exacerbated by other students, as well as numer-ous study aids, that promise to provide this magical formula. Unfortunately no such formula exists because the goal, while admirable, is in fact unachievable.(fn31) There are occasions when there will be no validating life.(fn32) Like the rule itself, which focuses on whether the estate in question "must vest (or fail)" within the perpetuities period, one must recognize that finding the validating life is a high probability as opposed to a guarantee.(fn33) The application of the rule in essence calls for "finding or not finding" the validating life.(fn34)

If the validating life cannot be found, then the challenge is basically over.(fn35) It is only when a validating life is found that we test the condition against the time elements of the R.A.P. The more cynical readers may attack these statements as being too artificial or even invalid. Some say that the determination of a validating life is in fact dependent on whether the party chosen meets the time constraints.(fn36) However, this approach leads to the cart getting ahead of the horse. Though the determination of a validating life is inextricably intertwined with the time element of the rule, we must first grasp what types of individuals to look for so that testing can take place.(fn37)

The validating or measuring life may or may not be specifically mentioned in the transfer, however, this is obviously a good place to start looking. Since the transfer contains language indicating some requirement prior to a future party enjoying his or her estate, it is common for the language to identify the validating life.(fn38) If not specifically mentioned, it is often a simple inference from the language to deduce outside parties who may...